Federal Judge Roger Vinson’s ruling that the unconstitutionality of the individual mandate that is the cornerstone of Obamacare renders the entire plan “void” requires the proponents of repeal to refocus their strategy in the coming weeks and months.
The U.S. House of Representatives has already, on a bipartisan basis, voted to repeal the new law. The measure has not yet come up for a vote in the Senate, but South Carolina Republican Jim DeMint has promised to use the chamber’s rules to push for a vote and, by close of business Monday, all 46 of DeMint’s GOP colleagues had agreed to cosponsor his repeal bill, S. 192. [Read the U.S. News debate: Should the healthcare law be repealed?]
Even if total repeal makes it through Congress, it is highly unlikely that is would survive an almost certain veto by President Barack Obama. The fallback position, in that case, was to try and dismantle the bill piece by piece, forcing votes in both the House and Senate on the bill's most unpopular provisions in an effort to effectively gut the measure. Vinson’s ruling changes that. [Read Ron Bonjean: Healthcare Ruling is the New 'Sputnik Moment']
If the House and Senate were to agree to eliminate the individual mandate—which most public opinion surveys indicate is the most unpalatable part of the new law—then it would negate the rationale employed by Vinson to void the entire law. It is, therefore, in the best interests of the supporters of total repeal to leave it alone. [See a slide show of 10 ways the GOP can take down Obamacare.]
There are still issues—such as the onerous paperwork requirements Obamacare imposes on small business and the matter of the waivers the Obama administration has been handing out to its friends—that should be given special attention. As to the total measure, however, it is likely the White House will wait to see how the Supreme Court rules when the issue comes before it, as it is now certain to do.
Vinson’s ruling also makes it difficult for the administration to move ahead with the creation of the numerous new agencies and bureaucratic systems necessary to implement Obamacare. Supporters of repeal would be more than justified in arguing that Congress should not fund these efforts as long as the constitutionality of the resulting new healthcare bureaucracy is in doubt—which could push the effective date for Obamacare’s implementation out well past its current 2014 target date. [Check out a roundup of political cartoons on healthcare.]
The Democrats now, because of the court’s ruling, have an incentive to negotiate with the Republicans over ways to “fix” the new law that satisfy the concerns raised in Vinson’s opinion. The GOP should resist the temptation to use this as an opportunity to “fix” a bad law—they will almost certainly lose more than they gain in any negotiated agreement with Senate Democrats and the White House—and should, instead, remain focused on the push for total repeal so that the process can start over. Once the slate is clean, they can develop an agenda that makes purchasing health insurance an appealing choice rather than a federal mandate—while enacting changes in the law that improve the quality of care and produce lower costs for everyone—which is the exact opposite of what many healthcare analysts say Obamacare will do once fully implemented.