I was as disappointed as anyone else by the Obamacare ruling, and I remain deeply troubled by Chief Justice Roberts' assertion that the federal government has the power to do virtually anything, so long as it calls it a tax.
But this is the hand we've been dealt, and the question now is how well can we play it? When you get over the punch in the gut and the feeling of betrayal, you should recognize that it's a hand we could play all the way to a pretty big win.
For one thing, by reclassifying the individual mandate as a tax, Roberts made it much easier for a Republican Congress to repeal it without having to worry about a Senate filibuster. Tax matters can be passed via reconciliation with a simple majority of 51 votes, so Republicans no longer have to worry about finding 60 voters to end debate. That's huge. It still requires the Republicans to keep the House, take the Senate and elect Mitt Romney president – but that's still far more doable than finding 60 Senate votes to get rid of Obamacare.
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Indeed, since Obamacare lacks severability clauses, I see no reason the entire bill couldn't be repealed via reconciliation. Elect a Republican House, Senate and president in 2012 and Obamacare is 51 and done.
For another thing, the Supreme Court threw out the Obamacare provision by which the federal government would have pulled states' Medicaid funding if they don't implement Obamacare. There are already 26 states that have sued the federal government because they don't want to implement it. Now they are essentially free to opt out without fear of losing funding. Not only that, but it will become much harder for the federal government to mask the true costs of Obamacare by pushing them off on the states. To this day, there are Democrats going around claiming that Obamacare "reduces the deficit" because of phony cost-manipulation like this. That's now over, if states stand firm and refuse to implement the law.
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Finally, Chief Justice Roberts did join a majority of the justices in rejecting Democrats' belief that the Commerce Clause and the "necessary and proper clause" pretty much give the federal government license to do whatever it wants. This is the first time that has happened since Democrats began using these clauses in the 1930s to expand the size and scope of government. In the future, Democrats will not be able to concoct creative readings of these clauses to justify continued federal power grabs. And if Romney is elected this year, and has the chance to replace one or more of the court's four liberal justices, this legal doctrine could be carved in stone as an American constitutional principle for 100 years or more.
This is the hand we've been dealt. It wasn't everything we wanted, since Obamacare still stands, but Roberts made an interesting statement when he said it's not the court's job to save the nation from the consequences of our political choices. Indeed. Elections do matter. When the voters elected Obama and gave him huge Democratic majorities in Congress, they needed to understand we would likely have something like Obamacare shoved down our throats. This is what Democrats do.
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Getting rid of Obamacare through the political process is much more achievable now, but we still need that proverbial army of Davids to rise up and approach the Philistine. The Republicans must take the House, capture the Senate and win the presidential race. Once in office, they must know that the American people demand nothing less than complete repeal of the entire Obamacare law, and that we expect the Senate to use reconciliation just as the Democrats used it to get the thing passed in the first place. The inside-the-Beltway crowd and the lamestream media will howl that this is beyond the pale and horrible. The Republicans need to learn to ignore these people and serve the public.
Meanwhile, at the state level, the people need to demand that their governors refuse to implement Obamacare. Louisiana Gov. Bobby Jindal has already announced he will take this stance. If other governors move toward implementation, their constituents need to let them know this is not acceptable.
As my economic adviser, Rich Lowrie, wrote the other day, we're only going to get this done if we're all in. As a result of the Roberts ruling, this election is now more than ever about taxes and the need to limit federal power. That should set us up for a huge Republican win, but it's more important than ever that the conservative base is mobilized, committed and ready to do whatever it takes.
I'm all in. Are you?