The U.S. Supreme Court has settled the biggest question about Obamacare: Is it constitutional? Now comes the second question: Is it politically sustainable?
Supporters of the law have complained bitterly of the legal challenge that 26 Republican attorneys general – including Washington’s Rob McKenna – mounted against the Affordable Care Act.
But without the lawsuit, the act’s legality wouldn’t have been settled this soon. There would have been no victory in court on Thursday, and the massive law would still be dogged by the threat of unresolved constitutional issues.
As it happened, many critics of Obamacare turned out to be right on a fundamental issue: According to the court, the Commerce Clause of the Constitution does not empower Congress to order American citizens to buy a health insurance policy. But it can – so ruled Chief Justice John Roberts – issue the mandate under its taxing authority.
Better to find that out sooner than later.
Roberts made clear in his opinion that the court was ruling on the law’s underpinnings, not its wisdom: “Under the Constitution, that judgment is reserved to the people.”
The American people have been hopelessly conflicted on the measure. They like the goodies but not the price.
The vast majority of them favor the parts of Obamacare that forbid insurers from denying coverage to the sick. The Affordable Care Act will require carriers to write policies for high-cost patients and forbid them from dumping subscribers once they become seriously ill.
But if people could avoid coverage until they get sick, private health insurance would cease to exist. Medical plans depend on large pools of healthy people subsidizing care for ill people, the healthy realizing that they might get sick or injured at any moment and need care themselves.
The maligned individual mandate ensures that those pools of healthy people exist; by requiring Americans to remain insured, it prevents “free riders” from evading premiums until they need insurance, then dropping their policies when they recover.
Yet the mandate is widely unpopular while guaranteed coverage is widely loved. As the old blues song goes, “Everybody wants to go to heaven, but nobody wants to die.”
With Thursday’s ruling, the complicated package deal that is Obamacare – mandates, guarantees, restrictions, taxes and other gizmos – now faces the verdict of the American public.
The decision turns the November election partly into a referendum on the law. Mitt Romney vows to seek its repeal; President Obama would preserve it as his chief legacy. The Affordable Care Act is full of complexities, but the choice before the voters is not.