The Supreme Court’s upholding of the Affordable Care Act does not mean that the law will survive. It means that the choice now falls to the voters. If Republicans can win the presidency and the Senate while holding the House of Representatives, they can repeal it. And while Romney continues to promise some unspecified replacement, Republicans are increasingly dropping the charade and planning to simply restore the status quo ante.
The ruling itself certainly helps Obama’s prospects for winning, at least a bit. When the Court argued the case, I wrote that an unfriendly verdict would be politically devastating, allowing Mitt Romney to attach the epithet unconstitutional to Obama’s agenda. The favorable ruling will have the opposite effect. Vast numbers of Americans know almost nothing about what the law does, and validation by the Court is the sort of thing that could help turn their opinion a bit more favorable. More important, Obama avoids the demoralizing stench of failure that would come from having his largest achievement go to waste.
Could a President Romney, working with congressional majorities, succeed in repealing the law? David Frum and Ryan Lizza argue that he couldn’t. Both of them, I darkly suspect, underestimate the sheer destructive will to power undergirding what has become a bloody shirt crusade for the GOP. Frum cites the difficulty of passing a replacement law, failing to consider the far more likely prospect that Republicans won’t bother to put forward a replacement at all.
Lizza ponders the chances that Republicans could use a reconciliation bill in the Senate to circumvent a Democratic filibuster. (They will.) He argues that they couldn’t, because “the process can only be used for policies that have budgetary effects and a C.B.O.” But huge swaths of the law run on money, including the most hated parts, like expanded Medicaid and tax credits to help low-income people buy insurance. Romney might not be able to repeal regulations protecting the sick from insurance discrimination, but he can defend or selectively enforce the laws.
If Romney is unwilling to break faith with his base after he has already secured the nomination, and needs to command the center, then he’ll be unwilling to break faith with them immediately upon taking office. I would take the Republicans at their word that they will use their power to the absolute maximum extent, at any human cost, to avenge what they consider a monstrous and tyrannical wrong. The 2012 elections are now primarily a fight over whether health insurance is a right or a privilege, which is to say, a fight for decency.
