The Darkening Skies over Obamacare

Published February 3, 2011

National Review Online

President Obama and his congressional allies want to create the perception that Obamacare is a done deal, and that Republicans need to get over it. But the events of the past week show quite clearly that that’s far from the reality. Since its passage, Obamacare has rested on shaky ground, owing to the heavy-handed tactics used to jam it through Congress against the wishes of a majority of the electorate. But now, after the Florida court decision and the vote in the Senate on repeal, Obamacare is more vulnerable than ever — politically, legally, and operationally.

At first glance, the vote last night in the Senate might look like a setback. After all, the repeal amendment failed. Senate Democrats raised a point of order against Sen. Mitch McConnell’s amendment; Republicans needed 60 votes to keep the amendment alive. All 47 Republican senators voted to do so, but no Democrats did. The repeal amendment therefore fell on a straight party-line vote, 47-51 (two senators, Mark Warner and Joe Lieberman, did not vote).

That outcome was predictable. The Senate is still controlled by the Democrats, most of whom supported Obamacare just ten months ago. But just because the vote was predictable doesn’t mean it was pointless, as some Democrats have suggested. Far from it. The battle lines in the Senate have now been drawn more clearly. Twenty-three of the 33 Senate seats up for grabs in 2012 are currently held by senators who caucus with the Democrats, including several from moderate to conservative states, such as Ben Nelson from Nebraska, Bill Nelson from Florida, Jon Tester from Montana, Jim Webb from Virginia, Claire McCaskill from Missouri, and Joe Manchin from West Virginia. If these senators run for reelection, their opponents are certain to pin tonight’s vote on them early and often.

The Senate vote is also an indication of how close Congress is to passing a full repeal bill. Yes, it would have taken 60 votes to repeal it today in the Senate because of the point of order, and a likely Democratic filibuster if no point of order was applicable. But that need not be the case if Republicans regain control of the chamber in 2013. Recall that, in the aftermath of Scott Brown’s election to the Senate, congressional Democrats made an end run around the Senate filibuster by employing the “reconciliation” process to hammer out the final agreement between the House and the Senate. That allowed the Democrats to pass the original Senate version of Obamacare (passed when there were 60 Democratic votes in the Senate) through the House, and to pass changes to that previously approved Senate bill through both the House and the Senate with a simple majority vote. In other words, the only reason Obamacare is law today is that the Democrats used “reconciliation” to pass it through the Senate without the need for 60 votes.

The same could be done for repeal. As Keith Hennessey has pointed out, if Republicans regain control of the Senate in 2012 (which seems plausible, given the number of seats in play that are currently held by Democrats), and the House remains under Republican control, Republicans could dismantle Obamacare on a reconciliation bill, and they could do so without the need for any Democratic votes. Repeal would need only a simple majority to clear the Senate. There are now 47 solid votes for repeal. With a pickup of just four repeal votes, Republicans could send a full repeal bill to the president in 2013. And if the president is someone other than Barack Obama . . . Live by reconciliation, die by reconciliation.

Legally, Judge Roger Vinson’s ruling this week that Obamacare is unconstitutional has fundamentally transformed the landscape. The individual mandate, which is at the center of Judge Vinson’s opinion, is now very much on the ropes in a legal sense. It is also highly vulnerable legislatively, with a large percentage of the electorate opposing its implementation. One way or another, the chances that the individual mandate survives intact until 2014 are low, and dropping by the day.

Further, Judge Vinson’s case has emboldened the states in their struggle for control over health-care policy. The architects of Obamacare assumed they could impose the law’s massive administrative burdens on the states without much pushback. The feds have all the money, and thus all the power, or so the thinking went. But now Judge Vinson has sided with 26 states that think the Constitution’s federalist framework means something. The truth is, Obamacare may be too cumbersome to be workable even with state cooperation, but it most certainly won’t work without the states doing most of the dirty work. With Judge Vinson’s ruling, many states are now openly wondering why in the world they should move forward with costly and risky plans to implement a program they find fundamentally flawed and objectionable.

Obamacare is hanging on by the thinnest of threads. It is the law for now, but it’s far from settled policy. The final word on it hasn’t been uttered yet. In all likelihood, the voters will get to do that, with the votes they cast in 2012.

James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director of the Office of Management and Budget from 2001 to 2004.

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