Yesterday I set out five predictable consequences in the event Obamacare is overturned in its entirety by the Supreme Court. A reader asked that I do the same exercise considering the possibility that the entire law would be upheld
First, there would be no spinning the result for judicial conservatives. Upholding the individual mandate would be demoralizing for those who’ve worked for years to develop a body of jurisprudence that preserves the basic structure of government create by the Framers. If a court with only four “liberal” justices couldn’t find a limitation on this extraordinary assertion of federal power, then conservatives would soon conclude, the prospects for protecting limited government by constitutional doctrine would be slim to none.
Second, if you thought the victory lap on the anniversary of Osama bin Laden’s killing was over-the- top, a victory for Obamacare would set off deafening chest-beating and celebrations by the White House, Democratic lawmakers, the deans and professors of elite law schools and left-wing pundits. That would no doubt energize the president’s base and give it something to talk about other than the economy. The president, I strongly suspect, would get a bump in polling and perhaps a new lease on his political life.
But, third, the decision would give Mitt Romney, conservative think tanks, right-leaning pundits and legal gurus, as well as Republicans in Congress, a rallying cry. They would roll out the many and varied policy arguments against Obamacare. Mitt Romney did some of that yesterday, in a speech in Virginia:
Fourth, the Republican House would bring vote after vote to the floor, forcing Democrats to uphold unpopular parts of the law (e.g. taxes, the Independent Payment Advisory Board). That would put red-state Democrats in a tricky position and remind voters why they didn’t like the bill.
Rewind to 2009. The fight over ObamaCare is raging, and a few news outlets report that something looks ethically rotten in the White House. An outside group funded by industry is paying the former firm of senior presidential adviser David Axelrod to run ads in favor of the bill. That firm, AKPD Message and Media, still owes Mr. Axelrod money and employs his son.
The story quickly died, but emails recently released by the House Energy and Commerce Committee ought to resurrect it. The emails suggest the White House was intimately involved both in creating this lobby and hiring Mr. Axelrod’s firm—which is as big an ethical no-no as it gets.
In sum, a “victory” for Obamacare would be a blow to judicial conservatives, but a boon to Republicans in this election. Going forward, conservatives would be pushed to make policy arguments (rather than constitutional ones) against liberal statism and centralization of decision-making in D.C. The reinvigoration of policy debates wouldn’t be altogether bad for conservatives, but they should dearly hope they will not be stripped of their constitutional claims.