OVER THE PAST few months, President Barack Obama's healthcare law has been subjected to three devastating blows. First was the electoral repudiation of the Democrats in November 2010, based in large part on Obama's overreach when it came to both his political mandate and the boundaries of the Constitution. Second was the political repudiation of the new law by the newly Republican-dominated House of Representatives, which voted 245-189 in January to repeal the bill- a margin 49 votes greater than that of the original vote to pass it (followed by a close, but failed, Senate vote). The third repudiation came from the federal judiciary, and in two stages that sandwiched the House vote. Stage one was the ruling by Judge Henry Hudson of Virginia in December; the second was the ruling by Judge Roger Vinson of Florida in late January. Both held that there is no constitutional basis for the legislative imposition of a mandate that would require every American to purchase a health-care policy.
The electoral repudiation was a shock to the political system; it sent the message that, when it comes to far-reaching overhauls of America, voters prefer consensus and discussion to single-party legislative impositions. This nationwide repudiation was not surprising in the least to anyone outside the White House or the previous congressional leadership. Portents of electoral disaster had begun appearing on the political horizon more than a year before the 2010 elections. Gubernatorial triumphs for Republican candidates in New Jersey and Virginia in 2009 should have given the Obama team at least an inkling of the unrest it would be facing over its political tactics and policies. Nevertheless, those who chose to whistle past the electoral graveyard argued that both New Jersey and Virginia had had Republican governors before and shook off the 2009 election defeats as not particularly noteworthy.
IT WAS the Scott Brown election in January 2010 that first signaled to the White House, and the rest of the political establishment, that something unprecedented was going on. Brown's victory, in which a Republican in Massachusetts won the seat that had belonged to liberal lion Ted Kennedy, not only flummoxed the administration politically, but also put them on a dangerous policy and procedural path. For Brown had explicitly run as an opponent of the health-care bill on a promise that he would deny Democrats the sixtieth vote they would need to overcome a Republican filibuster in the Senate against the bill. Without that all-important sixtieth vote, Democrats were no longer able to jam through their initiative in a strictly partisan way, as they they could do in the majority-run House.
What this meant was that Democrats would ultimately have to resort to a strategy that would require the Senate and then the House to pass bills with the exact same language, thus vitiating the appointment of a conference committee usually needed to fix technical glitches or policy disagreements that arise when the two bodies consider similar legislation. The Democrats did exactly that, and after Senate passage in March 2010, House passage of the same bill was preordained. This legislative approach, with its attendant inability to correct or amend the bill, would become relevant in the court cases regarding the bill down the road, about which more later.
Once the Brown election took place, it became clear to everyone except perhaps Obama that there was going to be a changing of the guard in the U.S. House of Representatives, and possibly even in the Senate. (Obama once said about the prospects for health reform under his leadership, 'Well, the big difference here and in '94 was you've got me.") Obama was warned multiple times for more than 15 months by members of his own party about the political havoc he was wreaking. He chose to soldier on, saying discordant things to his various messengers, such as "Let's keep fighting" or "I feel lucky."
Luck, as it turned out, was not with him politically. The Republicans decisively took the House, gaining more than 60 seats. Republicans took control of 29 governorships and gained 680 state legislative seats. The GOP also gained six spots in the Senate, setting up the Republicans for a likely Senate takeover in 2012, for in that year Democrats will be effectively defending 23 seats to the Republicans' 10. Anticipating the ugliness of 2012 for the Democrats, Senator Kent Conrad of North Dakota, who has long been more liberal than his very red state, has already announced his retirement. More Democratic senators are likely to follow him out, either via preemptive retirement or electoral defeat.
The political upheaval of the November election has had a number of effects on the prospects for the Obama health-care bill. First, it shattered the air of inevitability regarding the law's implementation. The Democrats had quite clearly counted on the notion that the bill, once passed, would be accepted by the body politic and that the nation would wordlessly move on to the next issue. There were sound historical reasons for thinking this way, as repeal of existing law is relatively rare, limited to instances of gross error, such as slavery, or overreach, such as Prohibition, and 1988's Medicare Catastrophic Coverage Act, which was repealed in 1989.
Second, the elections put the Democrats on the defensive on their own signature initiative. They appear to have been unprepared for the intellectual fight they encountered over the bill. As New York Democrat Anthony Weiner told the Washington Post: "Republicans want another debate about health-care reform? Well, so should Democrats. They beat us in round one with lies and scare tactics. We welcome a second shot." Weiner may comfort himself that the Democrats lost via "lies and scare tactics," the definition of which reasonable people can disagree about, but there is no gainsaying his admission that the Democrats lost the battle of words in the health-care debate. The November election showed definitively, even to President Obama, how badly the Democrats had miscalculated the level of opposition to their health-care plan.
Since November, the Democrats have been forced to face some legislative repercussions due to their electoral defeat. The House repeal vote was the most overt act thus far, and the embarrassing nature of the rebuke is significant even if it remains unlikely that the repeal effort will reach President Obama's desk. On February 2, despite efforts by Majority Leader Harry Reid to prevent the repeal from coming to the floor, the Republican leader did manage a Senate vote on the question. The repeal measure failed along party lines, 47-51.
But even though the Republicans failed to pass the repeal in the Senate, the vote on the Senate floor put Democrats running for re-election in 2012 from solidly Republican or leaning-Republican states- I count 12 of them- on record against repeal, exacerbating their looming political defeat. As Republican Senator Orrin Hatch said after the vote, 'Yes, we were unsuccessful today, but we do know where everybody stands."
The House vote and the way in which it forced Democrats to hold a close Senate follow-up vote do not convey the full potency of the legislative powers imbued in the new House majority. Securing a House majority gives the Republicans the capacity to hold hearings, run investigations, and call witnesses, powers that are having an impact.
Budget Committee Chairman Paul Ryan held a recent hearing on the fiscal consequences of the bill in which he called former Bush appointees James Capretta and Dennis Smith as witnesses for the majority, two critics who were unlikely to have been called when the Democrats were in charge. In addition, as the "administration witness," Ryan called the Center for Medicare and Medicaid Services (CMS) chief actuary Richard Foster, who turned heads with his statement that the argument that the bill will bring down costs is "false, more so than true."
This is part of what House leadership aides call continuing to "build the case" for reform, which they are going to continue to do for the rest of this Congress. Such a strategy is all the more dangerous for a Democratic establishment that lost the debate about health care even when it had the speakership and thus the ability to control the House's agenda.
In addition, the mere presence of the new House majority has already forced the administration to downsize some of its more ambitious endeavors. The administration had begun to build a new and separate Office of Consumer Information and Insurance Oversight and brought in a number of critics of the insurance industry to run the operation. Some Republican congressmen raised questions about the authority of HHS to create this new entity, but HHS saw little need to react to these concerns while the Democrats remained in the majority and for the most part did not engage in oversight of the Obama administration. Once the Republicans gained the majority, however, HHS quickly began what a press release by its chief, Kathleen Sebelius, called the "transition of the Office of Consumer Information and Insurance Oversight (OCIIO) to the Center for Consumer Information and Insurance Oversight (CCIIO) at CMS." What all this acronyming means is that she was preemptively reining in the new entity.
These political and legislative changes, while significant, are far less important than the potentially devastating results of the separate lawsuits filed by state attorneys general against the bill. The first decision by Judge Henry Hudson in response to a suit filed by the state of Virginia said that the so-called "individual mandate- the requirement that every American be required by law to purchase health insurance- was unconstitutional." But Hudson stopped there- while he struck down the mandate, he ruled that the rest of the law should remain in place.
Liberals were unhappy with the decision, to be sure, and were quick to point out it was only one decision and that Hudson was a Republican appointee. Even so, they were relatively restrained in their objections, perhaps because they understood that Hudson's decision itself was relatively restrained. Liberal blogger Ezra Klein, for example, said he found it "a far cry from a world in which the Supreme Court strikes down the whole of the health-care law."
If this were Shakespeare, Klein's comment would have been followed by the stage direction "Enter Vinson." On January 31, Judge Roger Vinson issued a 78-page judicial avalanche of a decision in a separate case brought by 26 states acting in concert, citing The Federalist Papers, Madison, Hamilton, and the Constitution as part of his reasoning. In his opinion, Judge Vinson agreed with Judge Hudson and with the states "that Congress exceeded the bounds of its authority in passing the Act with the individual mandate."
But he went further, overturning not just the mandate but the entire bill. Using the metaphor of a finely crafted watch, he determined that ObamaCare "has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed." He made the point even sharper by noting that it was the Obama administration that had argued- "at least 14 times in its motion"- how crucial the mandate was to the working of the law. He also made clear that "this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government."
The drama- within-the-drama here was the political decision by Obama and congressional Democrats to ram through a flawed piece of legislation without the American-style debate and consensus-building that identifies problems and irons out kinks. In fact, according to Timothy Jost of Washington and Lee University, "Everyone expected that there would be a conference committee that would straighten out the issues in the bill. And then there was Scott Brown's election." Brown's election meant that the Democrats would pursue an approach that did not include a "severability clause"- a provision that allows a law to survive should a part of it become invalidated. They did not have to take this approach. Jonathan Turley of George Washington University, a supporter of the health law, lamented that "the bill unnecessarily triggered the constitutional fight that led to its rejection in two federal courts."
Vinson's ruling means that even before a potential Supreme Court decision at some point in 2012, there is a good case to be made that the implementation process for the bill should come to a halt in the meanwhile. The Wall Street Journal's Janet Adamy reported that "David Rivkin, an attorney for the plaintiffs, said the ruling meant the 26 states challenging the law must halt implementation of pieces that apply to states and certain small businesses represented by plaintiffs."
Florida, for one, has said that it will shut down implementation efforts. A number of other states, including Wisconsin, are considering what applying the Rivkin view would mean. When Adamy brought this inconvenient aspect of the decision to the Obama White House press shop for comment, she was told, anonymously, that "we will continue to operate as we have previously." Of course, it was this very "damn the torpedoes, full speed ahead" approach that has caused so much political and now legal trouble for the White House.
These two decisions, by Hudson and now Vinson, constituted the third heavy body blow in short order to ObamaCare. For many people, this new line of assault seemed to have come out of nowhere, and perhaps it had. The New York Times's Kevin Sack observed that Vinson's "ruling was nonetheless striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous." Clearly, a lot had changed for the law in the nine months since it had passed.
Still, the White House tried to minimize the blow by calling it anomalous. As Stephanie Cutter wrote on the White House blog, "This ruling is well out of the mainstream of judicial opinion." An anonymous White House official told the Washington Times that "there's something thoroughly odd and unconventional about the analysis." These adjectival responses prompted the Washington Post's blogger Jennifer Rubin to observe: "They are truly nonplussed, and so they vamp, not with reasoned analysis but with an outpouring of adjectives."
Writers and experts on the left now recognize the danger posed by these judicial decisions to their perceived relentless march of progress. The New Republic's Jonathan Cohn worries that "health-care repeal litigation is fundamentally more threatening than attempts to repeal the law through Congress." Even if the Supreme Court does not issue a ruling as sweeping as Vinson's, Ezra Klein has noted with concern the distinct possibility "that Vinson's ruling will make Hudson's ruling seem more modest and appealing." By flanking Hudson, Vinson made it possible for the unpredictable Justice Anthony Kennedy to appear to split the difference if he votes against the mandate but does not invalidate the entire bill.
This is good news for ObamaCare's opponents. If Kennedy were to do this, and the Supreme Court were to rule against the mandate but not invalidate the law, the health-care law would still be dealt a mortal blow. The loss of the mandate would upset the balance the Democrats tried to impose between new impositions on insurers and the promise to those same insurers of healthy consumers who would be forced to purchase their products. If the individual mandate is gone, the law essentially dies as well.
Ironically, the challenge to the mandate might have the effect of pushing the entire debate among Democrats further leftward, since the only solution if the mandate were to go away may be a single-payer system of the sort used in Canada. Such a system would likely not be unconstitutional, which isn't the same as saying it could secure passage through Congress. It couldn't; single-payer is not politically feasible in the United States. In short, as the administration argued and, to their consternation, Vinson ruled, the mandate is the key, and the law cannot work without it.
So it is that the new law and the entire liberal vision for American health care have suffered three devastating blows in quick succession: the electoral repudiation in November, the political repudiation represented by the victorious repeal vote in the House, and the decisions by Hudson and now Vinson rejecting the constitutional basis for the mandate. Each has weakened the case for and the very existence of the new law, and have combined to foster the growing sense that ObamaCare may, in fact, be unsustainable, unworkable, and unwanted.
While the bill's political and legislative vulnerabilities have increased, our constitutional structure is such that a law, once passed, is not easy to repeal. At the same time, there are other avenues for redress here, as the Vinson decision made clear. Our political process depends on the Constitution, and the Constitution has a key role to play in the preservation of liberty and equality under the law. Our founding document was tried too cavalierly by Democrats in their rush to pass the legislation. The Vinson decision, by rightfully elevating the Constitution and honing in on the unconstitutional nature of the individual mandate, now appears to have the best chance of bringing about the process that will administer ObamaCare's deserved and eventual coup de grâce.