What’s Next If ObamaCare Is Struck Down?

The political upside of ditching the health insurance mandate

What happens if the Supreme Court overturns the Patient Protection and Affordable Care Act? In some ways, very little: The architects of the constitutional case against the law designed their argument as a precision-guided missile that would take out ObamaCare while leaving the surrounding legal and policy edifice standing. Politically, however, a ruling against ObamaCare could have a huge effect on the health policy debate.

A decision against the law probably will not herald a sea change in the way the Court interprets the Constitution. Much case law and scholarship will still support the notion that the Commerce Clause gives Congress sweeping power to regulate economic activity of all kinds. The “substantial effects” doctrine would still allow Congress to restrict individual choices that are said to have ripple effects on interstate commerce. 

Nor would a negative ruling have a major impact on the nation’s entitlement infrastructure. A few provisions from the law that have already been enacted would be wiped from the books, and Medicare’s budget baseline would revert to its previous state. But since the law’s major coverage provisions have not kicked in yet, most Americans would not notice the change. 

Would health policy simply return to its pre-2010 state? Yes, but with one major difference: ObamaCare would be discredited, legally and politically —potentially clearing a path to more effective health care reforms. 

In the years prior to ObamaCare’s passage, Democrats and their allies tirelessly built a policy consensus around a major overhaul of the American health care system based on universal coverage. As Barack Obama swept to victory in the 2008 election, advocates of universal coverage settled on a patchwork approach: mandate, regulate, and subsidize, while claiming to reduce the federal budget deficit. 

But with the insurance mandate off the table, that policy consensus will no longer exist. ObamaCare’s consistently negative poll numbers—roughly half the public has opposed the law since its passage, and two-thirds oppose the mandate—will further complicate matters. Many moderate Democrats were worried about both the political and fiscal costs of health care reform to begin with. The combination of a Supreme Court defeat and widespread opposition will reinforce their resistance not only to ObamaCare’s specific reforms but to any large-scale health care overhaul. Liberal reformers determined to foist major structural changes onto the health care system will no longer have a viable short-term battle plan.

While those forces regroup, the free market policy community can build a case and consensus around less expensive, less intrusive, and more effective reforms. Granted, this won’t be easy; one of the reasons ObamaCare passed was that opponents spent too little time and effort on crafting workable alternatives. In the last two years, Republicans chanting “repeal and replace” have focused far more energy on the former part of the slogan. 

But even if those efforts are only minimally successful, policy will still be moving in a favorable direction—away from expensive, expansive, top-down projects and toward consumer-driven reforms. Congress has taken up a major health care reform, on average, about once every 18 years. Each time, the reforms have been marginally more market friendly. Far from clinching the case for a government-run single-payer system, as some progressives hope, overturning ObamaCare would clear the legislative and political slate, making way for choice-based reforms that tackle rising health care costs without adding yet another expensive entitlement. 

The health policy war, in other words, would be far from over, but scrapping ObamaCare would be a significant victory. 

Peter Suderman is a senior editor at reason.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Pro Libertate||

    It shall grow more powerful than we can possibly imagine?

  • sloopyinca||

    The supreme court is like a teenager hanging from a van door with an aluminum bat and Obamacare is like a flimsy mailbox on the side of the road in Lebanon, Ohio (ca: 1987-8). And we all know how that turned out, Gata.

  • Pro Libertate||

    Armstrong is a far, far greater power than Obamacare, which is an illegal and fictional construct.

  • ¿Ex Nihilo?||

    You have a lot more trust in the SC making the correct call than I do.

  • sarcasmic||

    ditto

  • Randian||

    I am going to make sure you can never show your face at the Golden Lamb again!

  • Dr. Frankenstein||

    That's what I'm afraid of Pro L.

  • ||

    So you're saying Obamacare is really Obi Wan Kenobi?

  • ||

    Damn it, this was supposed to be a response to the first post by Pro Libertate.

  • sloopyinca||

    What’s Next If ObamaCare Is Struck Down?

    I don't know about you, but I'm throwing a party and starting an "Ezra Klein Suicide Watch".

  • fish||

    That sounds like an awesome theme party! How shall we dress?

  • Pro Libertate||

    It wouldn't be a total win, but at least it would set some outer bounds for Leviathan if they went that far. I hope they do.

  • anon||

    Is that one where we get to watch Ezra Klein commit suicide? Cause I sure as fuck ain't gonna be the one to stop it from happening.

  • Brett L||

    Please. It'd be all emo-kid with a safety razor. "This time I'm really cutting myself!" Sure kid, here's a box-cutter. Down, not across.

  • GroundTruth||

    If 'buma-care does go down, I'm taking the rest of the day off so that I don't offend too many of my Obama-worshiping co-workers. Gloating is not nice!

    (OTOH, if the good guys loose, then I'm taking the rest of the off so I don't get locked up when I haul off and slug one of my Obama-loving coworkers for gloating.)

  • Xenohippus||

    How'd they take the slugging?

  • CockGobbla||

    When are we supposed to hear a decision?

    I'm fully prepared for this to go either way, but I've got to be near a TV to watch the full comedic glory of MSNBC if ObamaCare is struck down.

  • anon||

    By the end of the month. Probably in a couple of weeks.

  • LTC John||

    How about 'hipster-douchewear' in honor of Klein?

  • fish||

    As a chap of ...err...larger carriage....I look like shit in skinny jeans!

    How about Togas...I'm up for togas!

  • sloopyinca||

    Toga! Toga! Toga!

    /John "Bluto" Blutarsky

  • Pro Libertate||

    I saw that film, where German pilots attacked Pearl Harbor. The pilots were disguised as Japanese.

  • EDG reppin' LBC||

    Never underestimate the Germanic Race and their vile, yellow sneakiness. So clever to disguise themselves as the Japan Asiatics, with their precision engineering.

  • ||

    You don't want to look some kind of weirdo. Just get a moo moo.

  • LTC John||

    "What happens if the Supreme Court overturns the Patient Protection and Affordable Care Act?"

    I smile and drink lots of single malt whisky. Then I smile more.

    Perhaps surf some statist blogs to see the hyperbolic ranting that follows.

  • Raistlin||

    Why, nationwide Romneycare, of course! It's like Obamacare in every way except it will be supported by "conservatives" because getting rid of Obama is all that matters. Right John?

  • sloopyinca||

    You know, I was feeling good about things until I read that.

  • GroundTruth||

    nodding my head sadly

  • John||

    Except that Romney won't be elected God emperor anytime soon. And the Congress is not passing Romney care. And even if they wanted to the Dems in the Senate would never end a filibuster and let the Republicans reform health care. But other than the fact that it will never happen, your theory sounds probable.

  • Raistlin||

    It's cute because he believes all of this. Oh, to be so young again!

  • John||

    Son, sadly you are not cute. Stupid is never cute. You have to be a monumental retard to think that anything approaching Romneycare would come out of the Congress. There just wouldn't be the votes. And even if there were, the Senate Dems would have absolutely no incentive to let it pass and give up one of their biggest clubs to use against Republicans.

    It is all fun and games to bang your rattle and pretend they are all the same and are really working together in some evil plot. But they are not. That doesn't mean either are worthy of power. But to believe we will get Romney care is just fucking retarded.

  • Dr. Thaddeus Tingleberry||

    You're forgetting that it would be for the children.

    Won't you think of the precious children?

    They need *something* to pay for their pain pills, since all that social security and medicare money will be dropping on Syria and/or Iran, and/or Mexico - which, btw, is probably where all the pseudo-amphetamine-induced face-eating zombies are going to come from.

  • John||

    And of course even Romney says he wouldn't support Romney care at the federal level. Let me give a clue, other than maybe a repeal of Obamacre, there isn't going to be shit passed on health care over the next four years. Neither side has any incentive to do so.

  • Raistlin||

    President Romney in 2013: "Obamacare was a disasterous bill and thank God the court struck it down. But we still need healthcare reform in this country. MY bill will still contain mandates, coersion, intrusion and slam the nation with measures that are niether principled in the spirit of liberty or capable of producing real results. But it will make it look like we're doing something about the problem while grabing more power for government. After all, if WE get more power, it'll be used for good. Just don't give THEM power becuse they will abuse it. Unlike us. Hey, that's why all of you republicans supported the Patriot Act when Bush had it but not when Obama took over. Same thing. TEAM RED! TEAM RED!"

    Thinking this could never happen is "fucking retarded."

  • Rahm Emanuel||

    "fucking retarded."

    HEY!!

  • ||

    The only problem with that line of reasoning is that Obamacare IS Romneycare at the federal level. Reintroducing a law that's already been struck down would be a pretty stupid and futile move. And despite their self-contradicting polls, Americans want a free market in health insurance less than any other alternative. The only direction we'll be moving as a result of Obamacare being overturned, IF it is overturned, is toward single payer.

  • DRM||

    No, really, single payer is not happening. By and large Americans with insurance coverage like their coverage enough that they spit if you threaten it, and any program that tries to take their insurance from them will die messily under a hail of health insurer ads, a la HillaryCare. That's why ObamaCare had to go with a mandate to placate the health insurers and a promise from the President that if you like your coverage you'd keep it—and it still required that the Democrats have 60 seats and bribe the hell out of the last vote in the Senate.

    Nothing left of ObamaCare can actually be passed in the US.

  • jack brown||

    Where do you get your silly idea that "by and large Americans with insurance coverage like their coverage enough that they spit if you threaten it" means people like the system?

    Yeah if you threaten to take away their coverage, 81 percent of people say 'no I'd rather keep what I've got, thanks.'

    Weasel words, DRM.

  • Tman||

    What next?

    Buy a round of beers for SCOTUS?

    Laugh hysterically at the inevitable "JUDICIAL OVERREACH!!!" NYT articles?

    So many options.

  • anon||

    Instead of drinking one beer at a time, you have to order as many as justices voted against the mandate. And finish them before they get warm.

  • Concerned Citizen||

    The day after that, drinking game while watching MSM, and drink every time they say "judicial activism". Should be shit faced in less than an hour.

  • sloopyinca||

    Question: Will Gary Johnson be smart enough to use the ruling as a cudgel against both Obama and Romney in the off-chance that the mainstream media lets him into a debate? And if so, what would be the result?

    I honestly think it could be a big winner with voters that think libertarians are all crazy people who are out of touch. And sadly, that's a majority of voters.

  • anon||

    in the off-chance that the mainstream media lets him into

    There is no "off chance;" there is absolutely zero chance. I don't think a more perfect zero has been found yet.

  • sloopyinca||

    I don't think a more perfect zero has been found yet.

    Obviously, you've not yet searched the White House.

  • PapayaSF||

    Oh, if they thought it would hurt Romney, they'd do it. But then they'd have to include the Green, which would hurt Obama.

  • Dr. Frankenstein||

    If you thought democracy was dead before, the salty ham tears from this will be exquisite.

  • Dr. Thaddeus Tingleberry||

    This time around, only members of Keith Olbermann's immediate family may be around to hear him claim that the decision is a million times worse than Vietnam and the Black Plague and Newt Gingrich combined.

  • Drake||

    What happens?

    We have an election in November to decide who gets to dream up the next non-free market health system.

  • Dr. Thaddeus Tingleberry||

    Elections?

    Are you serious? Are you serious?

    That is not a serious, er... 'thing.'

    Dan Quayle 2012!!!

  • Dr. Thaddeus Tingleberry||

    Elections?

    Are you serious? Are you serious?

    That is not a serious, er... 'thing.'

    Dan Quayle 2012!!!

  • some guy||

    Nah, you only get to try health care once every decade or two. It's off limits for the next president.

  • Emmerson Biggins||

    What’s Next If ObamaCare Is Struck Down?

    we get to hear the lamentation of their women?

  • BakedPenguin||

  • Dr. Thaddeus Tingleberry||

    As someone who thought this was 'no brainer' *un*Constitutional from the get go, I hope it is struck in its entirety 6-3 and Jonathan Chait and Dahlia Lithwick disappear into putrid-smelling puffs of logic...

    for me to poop on.

  • DJK||

    You've said this a couple of times. Who is the 6th vote for striking it down? It seems pretty obvious that Kagan, Sotomayor, Breyer, and Ginsburg will vote to uphold it. 5-4 at best.

  • ||

    I think he's assuming Sotomayor may flip due to some of her semi-tough questions. I don't believe it, but have to admit that would be incredibly awesome if true. Just imagine MSNBC's and the rest of the MSM's reactions.

  • DJK||

    I think it's incredibly unlikely. If she does decide to toss the individual mandate, it's in a concurring opinion.

  • PapayaSF||

    I still can't believe Kagan is going to vote on something she promoted while in the administration. Conflict of interest, how does it work?

  • ||

    Dear Obama,
    If you want more affordable health care, try uncoupling insurance from employment, and then people can shop around for it, like we do for everything else.
    Sincerely, Audrey the Liberal

  • Emmerson Biggins||

    Also, use the power of the Interstate Commerce Clause to actually affect, you know, interstate commerce. Make it a Federal Law that it's OK for a person to buy Health Insurance out of state.

  • ||

    Using the Commerce Clause for good instead of evil? Hmmm, I'm not sure that's legal.

  • anon||

    I agree with NAL on this one. Since health insurance is regulated by the states, it obviously CAN'T affect interstate commerce in any way whatsoever. Why? Fuck you, that's why.

  • joy||

    Granted, this won’t be easy; one of the reasons ObamaCare passed was that opponents spent too little time and effort on crafting workable alternatives. In the last two years, Republicans chanting “repeal and replace” http://www.riemeninnl.com/riem-lacoste-c-21.html have focused far more energy on the former part of the slogan.

  • ||

    Would health policy simply return to http://www.maillotfr.com/maill.....22_26.html its pre-2010 state? Yes, but with one major difference: ObamaCare would be discredited, legally and politically —potentially clearing a path to more effective health care reforms

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