This was certainly Conservative Outrage Week. Right-wing pundits fumed that the Confederate flag had to come down. They howled that the left was bullying South Carolina, which oddly was more unified and calm than the chattering class. Never before have so many northern Republicans cried over the Confederate flag. Go figure. (Those objecting to removal of the flag might want to take a look at recent polling showing less than 1/4 of Americans agree with them.)
Then came the Supreme Court. Cue more outrage. Chief Justice John Roberts “betrayed” conservatives! Well, conservatives are supposed to believe justices operate free from political preferences. “Established by the state” seemed clear enough to me, but the majority opinion in King v. Burwell was more coherent than Roberts’s decision to save Obamacare via the taxing power and by rewriting the Medicaid provision. (Low bar, I know.)
In this I share libertarian legal guru Randy Barnett’s take: “To the extent that [overriding deference to the government’s legislative scheme] – and not genuine textual ambiguity – is what is driving his opinion, then the Chief Justice seems to be telling us that he is once again putting a thumb on the scale for the government here as he did in his solo opinion in NFIB. Rather than assessing the constitutionality of the law as written – or enforcing it according to its terms – the court will rewrite the law to suit the government. And, if the government needs such a thumb on the scale, then this only reinforces my sense that the challengers actually have the better of the argument.”
I was not one certain that the court would or should unravel Obamacare, so I cannot summon the ire some on the right have expressed. Perhaps I’m outraged-out.
As we proceed forward on Obamacare and look ahead to 2016, one can only hope conservatives stop rending their garments. They should instead get to work. Every Republican candidate running for president, we can stipulate, wants to repeal Obamacare. There is no sense in squabbling over who wants it “more.” The real test is not who can dream up the most outlandish names for things and people they don’t like, but who is best able to navigate away from Obamacare toward something better. The former is how a minority party (or radio talk show host) acts; the latter is how a majority proposes to govern.
For so long the mantra on the conservative side has been “repeal and replace” that pols and pundits became confused. They obsessed on repeal, as if that was a prerequisite for replacement. Actually, once you have a replacement that er . . . well, replaces the old law then the new law prevails. Moreover, with no replacement, all the GOP is left with is silly shutdown stunts. The governing philosophy going forward for conservatives must be “explain and replace.”
Conservatives have listed all sorts of objectionable provisions and offer loads of constitutional and statutory arguments, but they have fallen short in demonstrating why the law is bad and how in the real world it is adversely affecting people. Whom is it hurting? They need to make the case that it is necessary and urgent to replace Obamacare. In short, they must answer the question: “Why is the president wrong when he says Obamacare is working?” That means finding real-world cases and statistical data to show why in practice the law is bad. Then the task is to find a feasible replacement that avoids the results of the law that conservatives found so harmful. Conservatives’ alternative must offer greater choice, lower costs, fewer taxes, and better health-care outcomes.
In assessing the 2016 candidates, voters should look for the candidate(s) with the replacement plan that is fiscally sound. They need to assess who has the skill to get rid of Obamacare and put in something better. If the candidate can’t get past the huffing and puffing stage, their response should be, “Next!” They should not be satisfied with generalities.
Conservatives cannot afford to sound self-pitying — as if taking down the Confederate flag and living with an adverse Supreme Court ruling are personal affronts to them. Everyone in the GOP is going to disparage Obamacare and run against the status quo. Right now a lot of voters would settle for someone with an actual agenda, an engaging personality (who can work with others) and the skill to implement his or her plans. Calmness, not rage. Plans, not poetry. Maturity, not incendiary rhetoric. Too much to ask? It might be.