In no way am I willing to excuse the legal illogic that led six of the nine Supreme Court justices to uphold ObamaCare’s clearly illegal subsidy scheme in the King v. Burwell ruling. I can’t say it any better than dissenting Justice Antonin Scalia, who rightly observes that words now mean nothing, and that we might as well refer to the law as SCOTUSCare if the Supremes are going to keep rescuing it from its own shortcomings.
If Chief Justice Roberts finds it that implausible that the Democrat Congress of 2009 would really design a law in a way that ensures its failure, I wonder if he’s read many of their other laws. It’s what they do.
But while I was hoping truth would prevail in King v. Burwell, and I’m extremely disappointed it didn’t, I think it’s important that we not lose sight of a larger fact: Repealing ObamaCare should be a very easy thing for a Republican-controlled Congress given a new Republican president taking the oath of office on January 20, 2017. If the Republicans who populate Washington D.C. are not willing to do that, fighting ObamaCare is pointless anyway, because it means there is no party in this country that is really interested in free markets and free people.
Rob made a good case last week for the idea that Republicans don’t really want to get rid of ObamaCare, because they’re part of the government too, and when government grabs power, that’s power they can use to their own advantage. He wrote:
There are now three types of Republicans in Congress.
Group one is the smallest, and is comprised of the select few who actually care about the Constitution.
Group two is somewhat bigger. These people don't really care about anything as long as they continue to get the perks of their office and don't have to take any tough political stands.
Group three is the largest. It's controlled by the party elites and boasts the current congressional leadership among its members. They're big-government expansionists who are every bit as guilty as Democrats when it comes to growing the size, scope, and debt of the federal government.
Groups two and three love this ruling. Even if the decision had gone the other way, they were probably going to implement an administration-friendly workaround. This saves them time and effort by removing a difficult PR battle from their plates, while simultaneously maintaining an unsustainable law which - someday soon - will need to be propped up by expanded taxation and increased federal power.
I’m willing to still believe the Republican Party is the party of limited government, and that it is committed to individual freedom and free markets, but they’re going to have to prove it to me when it comes to ObamaCare. They need to stop talking about repealing ObamaCare and do it, and get a new system drawn up and ready to go.
I am not demanding that the current Congress pass a repeal bill. I think there would be some value to that, but it would be mainly symbolic because everyone knows Obama would veto the repeal and ObamaCare would stay in place – just as it’s stayed in place following the two Supreme Court rulings that we hoped would eviscerate it. We don’t need any more symbolic victories. We need ObamaCare gone.
Getting rid of it is actually pretty simple, at least procedurally. In order to repeal ObamaCare, the Republicans need to first maintain their majorities in the House and Senate in the 2016 elections – while electing a Republican president who will sign the repeal.
They do not need a filibuster-proof Senate majority of 60 or more to repeal ObamaCare, because when ObamaCare was passed, Harry Reid used reconciliation rules that made it possible to bypass the filibuster. Reconciliation rules are typically used for taxing and spending bills so budgets can pass without the threat of a filibuster. Thanks to Chief Justice Roberts’s 2012 majority opinion in NFIB v. Sebelius, the ObamaCare individual mandate penalty is now legally considered a tax. So if reconciliation could be used to pass ObamaCare before that ruling, it can certainly be used now. Mitch McConnell simply needs to apply reconciliation rules to the repeal bill and pass it with a 51-vote (or better) majority.
Of course, Republicans have to do more than just repeal ObamaCare. They also have to transition to something that will actually work for the American people. The system prior to ObamaCare was not great because it put far too much emphasis on health insurers paying for everything, and on employers as the provider of health insurance. Individual Americans were dependent on far too many third parties under the old system, and ObamaCare made it worse by adding the federal government to the mix and instituting economically insane new rules that anyone could see would jack up premiums and narrow provider networks.
We should not go back to what we had. We need to replace ObamaCare with a new system that breaks down the barriers that prevent individuals and their doctors from making decisions independent of third parties wherever possible. Much of the money taken from individuals’ paychecks to pay for health premiums could be used for basic day-to-day care if they’d been allowed to keep it in the first place. It’s the federal tax code that discouraged this, and had done so since World War II. Republicans need to make it clear during the 2016 campaign that this is what they’re planning, so they can gain the consent of the governed before they win the election and actually go ahead with the change.
And yes, they can do this. ObamaCare remains unpopular with the general public, but people don’t believe Republicans have an alternative they can embrace. You can blame the media all you want for this, but the media will always be what they are and you can’t use that as an excuse. If Republicans can’t successfully campaign on this, and then do it once in office, it’s a waste of time lamenting that the Supreme Court didn’t save us. Because that would prove that even the party that claims to be for freedom and limited government really isn’t.
I’m ready to believe Republicans can rise to the occasion. But they’ve got to show me.
