I cannot help believing that the SCOTUS decision on health care was a carefully crafted gambit by Chief Justice Roberts.
My thesis is that Mitt Romney will win the presidency and that Senate Democrats will lose at least four net seats, giving Republicans a majority, but less than 60 seats needed to prevent filibusters. It should be noted that Democrats have 21 seats up for election in November.
After the elections, Republicans will be able to gut the health care law of all those items in it that are “tax” related, and build a revised law around those that are popular with Americans. This could be accomplished by applying budget reconciliation to the tax increases in the current law. The Senate parliamentarian will make the final decision whether this tactic is permissible.
The principal item that has been declared a tax by Roberts is the mandate; “the penalty on citizens who fail to hold health insurance ...,” as stated in a Wall Street Journal article on Monday. Democrats passed the legislation claiming that the mandate “was proper under Congress’ constitutional right to regulate commerce among the states.”
At the time of passage, which was similarly accomplished using budget reconciliation, President Obama opted to rely upon the commerce clause to improve the law optically; he wanted to avoid raising taxes on Americans to pay for the law, and instead imposed a penalty on those who did not buy insurance. Roberts, in effect, unmasked Obama’s gamesmanship by clearly stating that the commerce clause tactic was unconstitutional and the mandate was a tax.
If Republicans are successful in eliminating the mandate in a reconciliation vote, the law becomes unworkable economically. “The Obama administration argued before the Supreme Court that the law’s key insurance provisions couldn’t work without the mandate.” Essentially, many healthy people will not buy insurance until they became sick. Insurance companies would have a less healthy group of policyholders and premiums would have to be higher.
There are a number of parts of the law that may be retained, which do not have tax implications and could not be excised using reconciliation. They include: requiring insurance companies to accept all customers and restricting how they vary premiums by age; young adults can stay on their parents plans until age 26; and a phase out of lifetime limits on benefits.
Regarding Roberts, it should be observed that he effectively tempered the criticisms about the Court being overly partisan. This is an important issue for future appointments made by Republican presidents. By appearing to be above politics, Roberts has helped future conservatives nominated to the Court. Moreover, the ability of government to grow too rapidly with protection from the commerce clause has been meaningfully impacted by Roberts’ decision.
I am certainly not saying Chief Justice Roberts is being conspiratorial or even that he is over-stepping constitutional limitations for a justice (actually I am not qualified to opine on these matters). Rather, these events have fallen together beautifully for Republicans to change the health care law after the November election. All they have to do is win the presidency and enough Senate seats to gain a majority. Roberts did his part. Can the Republicans now do theirs?