Thursday, July 24, 2014
Two recent court rulings pertaining to the Affordable Care Act (ACA, aka
ObamaCare) are making the news. The lion's share of the attention is going to
Halbig vs. Burwell, in which a court ruled that the ACA does
not call for tax breaks for people who purchase insurance through
"exchanges" set up by the federal government (as opposed to exchanges run by states). Depending on whom you read, this
ruling is a disingenuous exercise in
context-dropping (and the tax breaks are fine) or it exposes a serious flaw in the ACA (which has
effectively been gutted). I'd love it for the ACA to be rendered moot, but I
strongly suspect that the ruling that has gotten all the attention will be
struck down. But my layman's speculations on the news are beside the
The reactions to these rulings on the part of conservatives is what interests me, and it all reminds me of the atmosphere just before the Supreme Court first rescued ObamaCare (via calling the individual mandate a tax). Having failed to oppose the ACA on the principle that it (like the rest of the welfare state) violates individual rights, the conservatives, unsurprisingly, saw the law passed and seemed to be wishing for it to just go away. (I think the court should have ruled differently, but we shouldn't have gotten to that point, anyway.)
The first article I cite brings this to mind in a couple of ways, primarily by means of the scenarios its author contemplates, obviously salivating at the prospect, should the ruling be upheld:
[T]he conservatives' "victory" would turn into a big political liability for red- and purple-state Republicans. An adverse ruling would create a problem that could be fixed in two ways: With an astonishingly trivial technical corrections bill in Congress, or with Healthcare.gov states setting up their own exchanges. If you're a Republican senator from a purple Healthcare.gov state--Wisconsin, Pennsylvania, Nevada, North Carolina, Florida, Ohio, and others--you'll be under tremendous pressure to pass the legislative fix. If you're a Republican governor in any Healthcare.gov state, many thousands of your constituents will expect you to both pressure Congress to fix the problem, and prepare to launch your own exchange.In other words, the battle the GOP shrank from the first time hasn't gone away. Had ObamaCare never been passed, there would have remained calls for the government to "do something" about the uninsured and the choice to do something -- or not, and explain that it is wrong for the government to do so. Had the individual mandate been struck down, those calls and that choice would have come. Those calls and that choice are set to return if -- contrary to what I expect -- the Halbig ruling stands.
Conservatives would like to believe that they could just leave something as deeply rooted as Obamacare permanently hobbled, or that they could use the ensuing chaos as leverage, to force Democrats to reopen the books, and perhaps gut the law in other ways. I think they're miscalculating. Just as government shutdowns and debt default threats don't create leverage because the public doesn't support inviting chaos in pursuit of unrelated goals, I don't think an adverse ruling in Halbig will create leverage for the GOP. [bold added]
And if the ACA remains untouched? Republicans won't have to stand up to self-righteous thieves (at least for the moment), but some other excuse for the government to loot the productive and pass it around will come -- maybe even as a result of economic distortions caused by the ACA. And that familiar call and that choice will return.
It is high time that conservatives question the moral basis of government looting and start to argue from the moral high ground that limited government actually possesses.