The Daily Caller reports:
“Death by a thousand cuts,” a slow form of torture and execution that originated in Imperial China, could aptly describe what appears to be happening to the recently enacted health care reform law.
One group appearing to hold a knife is the courts. A federal district judge in Virginia ruled on December 14th that the individual mandate (Section 1501) was unconstitutional because Congress does not have the power under the Constitution’s Commerce Clause to require people to buy health insurance. The Obama administration argued during the legal proceedings that individuals do not choose to participate in the health care market because all people need health care at some point in their lives. Additional legal challenges (over twenty) remain to be decided, including a high-profile Florida court challenge to the health care law where twenty states are challenging the constitutionality of both the requirement that nearly all Americans buy insurance and the directive that states must expand their Medicaid programs to cover people earning up to 130% of the poverty level.
Ultimately, the Supreme Court will need to resolve all the legal wrangling, but the Court is likely to allow for appeals to work their way through the U.S. Circuit Courts of Appeals before taking up the issue. With neither the individual mandate to purchase health insurance nor the state expansion of Medicaid taking effect until January 1, 2014, there appears to be no compelling reason for the Supreme Court to act more quickly.
The immediate effect of the Virginia decision can be seen in its negative impact on the public’s support for the health care reform law, which has up to this point been a fraction more positive than negative. A Kaiser Foundation poll conducted the first week of December found that 42 percent of respondents view the law favorably and 41 percent view it unfavorably.
On the political front, the Virginia court decision will certainly embolden Republican efforts to repeal the law. Look for House Republicans to trumpet the Virginia district court’s decision to drive congressional oversight hearings on the law, which were previously planned but as a result of the recent court decision appear to have a greater air of legitimacy.
One could speculate about several possible scenarios playing out over the next two years, especially if several federal courts decide to strike down parts or all of the health care reform law. Notwithstanding the focus on the legal challenges to the law, the true driving factors in this debate will likely continue to be public opinion and how the issue plays out in the upcoming 2012 presidential and congressional races. Note that in 2012 there will be 23 Democratic senators up for re-election and only 10 Republican senators.
If the courts continue to question the constitutionality of the law, will Democrats in competitive races view such court decisions as an opportunity to push for a compromise on a somewhat scaled-back health care reform bill? The current health care reform bill is arguably unworkable without an individual mandate to purchase health insurance, as both the success of the insurance exchanges and the bevy of insurance reforms — like baring denial of coverage for pre-existing conditions — are underpinned by the mandate. A lack of an individual mandate is also likely to impact the cost of insurance and the ability of the law to moderate increases in insurance premiums. These factors could drive the drum beat for significant reforms of the health care law.
Efforts to find a bipartisan compromise short of repealing the health care law will also depend on how it plays into President Obama’s 2012 re-election strategy. If public support for the health care reform law continues to erode, particularly with Independents, who are the key to an Obama second term and Democratic electoral success in general, will President Obama make a major pivot similar to his recent approach to extending the Bush tax cuts for the rich?
At this time there are no real signs of such a scenario taking place, but that could certainly change. At this point, Democrats are unlikely to run away from their health care votes, either because they continue to support the law or because they believe that it is impossible to remove the “scarlet A” imprinted on their chests for voting for the law. In the end, most Democrats may conclude that they have no real choice but to defend the law to the bitter end.
Compromise would also meet opposition from both the Democratic far left and the Republican far right. Progressives who already view the current health care law as too moderate would likely vocally oppose any efforts to roll back the law and could use the opportunity presented by legal challenges to again push for a single-payer system. At the same time, conservative Republicans are likely to be both philosophically opposed to federally driven health care and politically afraid to support any deal with the president.
On this latter point, there remains a big question on the ability of Republicans to reach consensus within their own party on any type of comprehensive health care reform to replace the current law. The repeal part is easy; the more difficult task for Republicans will be what to propose as a replacement beyond popular health insurance reforms, medical malpractice reforms and a bar on any federal funding of abortion. Again, outside conservative groups are sure to oppose any compromise with President Obama or, for that matter, any comprehensive health care reform plan that places most of the control in Washington. Combine this with a sleep-altering fear many Republicans have of Tea Party-backed primary challengers, and many Republicans are likely to view no health care plan as the best way to promote their own long-term political health.
