RALEIGH – I thought it was supposed to be a waste of time.
Remember this spring when Gov. Beverly Perdue and other Democrats ridiculed a Republican bill that would have added North Carolina to the list of states challenging the constitutionality of ObamaCare?
At the time, Perdue said that it was “an ill-conceived piece of legislation” that would have expended tax dollars on an extraneous lawsuit. She vetoed it. Her Democratic allies went further, predicting that the federal courts would reject the constitutional challenge, that the litigation was purely partisan, and that North Carolinians would grow to like President Obama’s health care program.
None of these predictions turned out to be true.
So far, four federal district courts have weighed in on ObamaCare. Two judges upheld its constitutionality. Two other judges declared that the mandate to buy private health insurance exceeded the federal government’s power under the Commerce Clause. One judge struck down the individual mandate only, leaving the rest of the bill alone. The other judge struck the whole bill down.
This summer, two federal appeals courts issued their own rulings. By a 2-1 margin, a panel from the 6th Circuit Court of Appeals in Cincinnati ruled that the individual mandate was constitutional. More recently, a split panel of the 11th Circuit in Atlanta struck down the mandate.
These events guarantee that the U.S. Supreme Court will take the case. Obviously, the constitutional challenges to ObamaCare have not been frivolous or doomed from the start, as liberals argued.
Nor was it the case that the constitutional challenge to ObamaCare proved to be just partisan politics. Look at the two circuit court splits. In Cincinnati, one of the two judges upholding the mandate was a Republican appointee. In Atlanta, one of the two judges striking the mandate down was a Democratic appointee.
The issues in this case are critically important, and passionately debated among jurists and legal scholars. It was foolish and irresponsible for North Carolina to stay on the sidelines while the representatives of dozens of other state governments remained engaged.
Actually, Perdue’s veto did not stop the Republican leaders of the General Assembly from filing a friend of the court brief supporting the constitutional challenge. That was praiseworthy. But adding North Carolina to the plaintiff list would have been better.
ObamaCare is the epitome of bad public policy. It was pasted together on the fly, based on a fundamental misunderstanding of the markets for health insurance and medical services, and forced through Congress without any serious consideration of the damage it would do to the nation’s economy and its constitutional traditions.
Not surprisingly, the voters have not grown to love this monstrosity over the past few months. They are at least as horrified as they were before. During the summer of 2010, most establishment polls (Gallup, Associated Press, etc.) found that public opposition to ObamaCare exceeded public support by a single-digit margin, or at most a margin in the low teens.
In the establishment polls taken so far this summer, the margin of public disapproval has averaged about 13 percentage points.
So what happens next? If the Supreme Court strikes down all or part of the ObamaCare legislation before the 2012 presidential election, Barack Obama won’t just suffer a policy loss. He’ll take a political body blow. His major domestic accomplishment will have been declared an unconstitutional power grab.
On the other hand, if the high court waits to rule on the issue until after November 2012, health care will likely consume almost as much ink and pixels as the #1 campaign issue of jobs – and if Republican candidates have any sense, they will link the two issues by arguing that uncertainty about the fiscal and regulatory effects of ObamaCare are among the burdens holding down America’s economic recovery.
As for Gov. Perdue, she could have demonstrated moderation and independence by allowing North Carolina’s ObamaCare challenge to proceed with neither her signature nor her veto.
Instead, she has attached herself to the president on health care. I doubt it will turn out well for her.
Hood is president of the John Locke Foundation.