Robert L. Ehrlich Jr.
8:00 AM EDT, March 25, 2012
The most important six hours of recent American history will start to unfold on Monday. That day, the Supreme Court begins three days of oral argument on the legal challenge to President Barack Obama's health care reform law ("Obamacare").
The Court's decision will have a profound impact on the quality of American health care. The political repercussions will be equally strong: The decision will either reinvigorate an Obama campaign looking to make good on its signature legislative initiative or fuel a united Republican counterattack along the lines of, "We told you so."
Casual observers may not realize there are 26 states and one business organization (The National Federation of Independent Business) acting as plaintiffs in the consolidated case. Separate suits (representing constitutional challenges to the law's requirement that individuals purchase insurance) have been filed by the state of Virginia, Liberty University, and the Thomas Mann Center. Numerous other court challenges have been dismissed, mostly on procedural grounds.
The political stakes are high and trending Republican: Obamacare's myriad complexities and federal overreach was the rallying cry of a midterm election cycle that saw Democrats lose their House majority and six net Senate seats. More recent polling reflects equally ominous news for the president. A February USA Today/Gallup Poll showed 53 percent of voters in swing states viewed Obamacare as a "bad thing." Only 38 percent of respondents approved. Among independents, the news was even worse: 35 percent said the law makes them less likely to support the president's re-election, as opposed to 16 percent who said it makes them more likely. Recall that substantial GOP gains among independents fueled the 2010 midterms.
My next 50 columns could be taken up with political analysis surrounding this 2,300-page monstrosity. Recall then-House Speaker Nancy Pelosi's plea "to pass the bill so you can find out what's in it"? The good news: I will not devote my remaining 2012 columns to such a task. The bad news: You may not be so pleased to read what the president and congressional leadership blithely did to the health care consumer in the name of "reform."
With regard to process, let me assure you the average member of Congress did not follow the daily drafting process in great detail. The consumption and interpretation of 2,300 pages of constantly changing, arcane policy language is indeed a Herculean task. Most relied on "talking points memos" issued by the respective caucus staffs or bill writing committees. Nevertheless, Speaker Pelosi's inartful comment failed to convey a sense of order and competence rightfully expected by the general public.
Another bit of procedural news: The law's more than 700 pages of individual directives have already spawned 2,163,744 words (Fox News describes the volume as 21/2 times the size of the Bible) of regulatory interpretation (as of May) from federal agencies, mostly the Department of Health and Human Services. In other words, Obamacare is bureaucratic heaven on Earth; its regulations will be issued (and become the subject of countless lawsuits) for decades to come. This, of course, is one of the primary attractions for Obamacare's advocates, as federal health care policy gradually becomes more a function of government dictate than market-generated demand.
Alas, Obamacare dictates are not meant for all, especially those labor unions that were candidate Obama's most vociferous supporters in 2008. Indeed, the Obama administration had granted 1,231 waivers of participation as of January, when political pressure finally ground the waiver mill to a halt. Labor unions received fully 50 percent of the administration's largesse, a revealing fact in light of organized labor's enthusiasm for the bill. Two further anomalies: Nearly 20 percent of the waivers approved in April, 2011, emanated from former Speaker Pelosi's district, while Senate Majority Leader Harry Reid secured a waiver for all insurers operating in the individual market in the entire state of Nevada.
Much of the analysis and politics surrounding Obamacare pertain to one overarching issue: the power of the federal government to regulate private economic behavior through the Commerce Clause. Progressives see a generally limitless connection, while conservatives advance the notion that private health insurance (particularly the decision to forgo such insurance) is a personal decision outside the reach of the federal government. In other words, the mere power of the federal government to regulate commerce among the states does not extend to forcing every American into the commercial insurance market. A possible complication for the GOP: Justice Antonin Scalia, a member of the Court's so-called "conservative majority," has (at times) adopted a more expansive view of Commerce Clause jurisdiction. Nevertheless, I (and many other observers) believe it more likely than not that the Court will strike down the mandate. The Court could strike all or only portions of the statute. A divided Congress would then attempt to figure out what to do next.
Next week: Obamacare's impact on Medicaid and individual choice.
Robert L. Ehrlich Jr.'s column appears Sundays. The former Maryland governor and member of Congress is a partner at the law firm King & Spalding and the author of "Turn this Car Around," a book about national politics. His email is firstname.lastname@example.org.
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