JONATHAN CHAIT DECEMBER 13, 2010
Click here for Jonathan Cohn on why we shouldn't freak out about the ruling.
Conservatives are jubilant that a Republican judge in Virginia has agreed with their contention that the individual mandate, formerly a pillar of Republican health reform proposals, is unconstitutional:
“Today’s ruling is a clear affirmation that President Obama’s health care law is unconstitutional,” Virginia Rep. Eric Cantor, the presumptive House majority leader next year, said in a statement. ...
“Today is a great day for liberty,” Utah Sen. Orrin Hatch proclaimed.
Richard Epstein writes, "Obamacare Is Now On The Ropes."
But it's not on the ropes. First of all, the mere fact that one Republican judge, Henry Hudson, has agreed with the party does not mean that all five Republican justices on the Supreme Court -- one of whom, Anthony Kennedy, does not always tow the party line -- will do so. Hudson is also a very Republican kind of judge:
Hudson's annual financial disclosures show that he owns a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm that worked this election cycle for John Boehner, Michele Bachmann, John McCain, and a whole host of other GOP candidates who've placed the purported unconstitutionality of health care reform at the center of their political platforms. Since 2003, according to the disclosures, Hudson has earned between $32,000 and $108,000 in dividends from his shares in the firm (federal rules only require judges to report ranges of income).
I don't think Hudson ruled as he did for financial reasons. I think his financial interests are a window into the fact that he's unusually likely to bend over backward to accept Republican arguments.
Second, even given the above, Hudson conceded that striking down the individual mandate would not invalidate the whole Patient Protection and Affordable Care Act. If you strike the individual mandate but leave the rest, you have a system that could easily be patched up with a better mechanism to avoid free-riding. The real loser here is the health insurance lobby. Health insurers would have preferred to avoid any health care reform at all. But the health insurance lobby's second-highest priority would be a working system with an individual mandate. A world in which they cannot discriminate against sick people but in which healthy people can avoid buying insurance until they're sick is a nightmare.
The health insurance lobby spent tens of millions of dollars to defeat health care reform. They have a lot of pull among Republicans. A system that gouges the health insurers but keeps in place the subsidies and regulations liberals want is not a status quo I see lasting very long.