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Healthcare,Law & Order,Opinion,Politics & Elections

Obama Could Win By Losing

Mar. 27th, 2012
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RALEIGH – A few days ago, both Republicans and Democrats celebrated the second anniversary of the passage of the Affordable Care Act, the signature program of President Obama’s administration.

Well, okay, perhaps “celebrate” isn’t quite the right word to describe Republican sentiment. GOP lawmakers voted overwhelmingly against ObamaCare at every stage in its legislative development. They properly consider it to be an unnecessarily expensive and expansive response to the real problems facing American health care. They properly saw the individual mandate and other provisions to be beyond the constitutional authority of the federal government.

But in the short run, Republicans have been among the chief beneficiaries of ObamaCare. Its passage doomed the reelection bids of many incumbent Democrats who voted for it, such as North Carolina’s own Rep. Bob Etheridge. ObamaCare and the economy’s weak performance during 2010 were the major reasons why the GOP had one of the most successful midterm election cycles in its history – recapturing the U.S. House by a healthy margin, making major gains in the U.S. Senate, and winning more power in statehouses and legislatures than the Republicans have enjoyed since the 1920s.

As for the Democrats who truly did celebrate the anniversary of ObamaCare last week, they either believe that increasing federal taxes, subsidies, and regulatory control over health care was a good idea or are trying desperately not to weaken the president’s political position in an election year.

I think both of their assumptions are incorrect. I think that nationalizing the regulation and subsidy of health care was a horrible idea, one destined to increase cost and decrease freedom. And politically, President Obama would be better off if Americans thought less about his health care plan, which they dislike, and more about policies they actually like such as the president’s payroll-tax cut or his order to take out Osama bin Laden.

Unfortunately for the president and his party, events have conspired to put the media spotlight squarely on health care. Yesterday the U.S. Supreme Court began hearing arguments in the pivotal constitutional challenge to ObamaCare. It will be the longest oral argument before the high court in more than 40 years. The justices will be asked to address fundamental issues about the relationship between Washington and the states, the relationship between Washington and private individuals, and the extent to which we as Americans enjoy the right to conduct our private affairs as we see fit rather than as some lawmaker or regulator dictates we must.

I won’t restate the main legal arguments in the case, as I have written about them a number of times in the past and there are far better explorations of the constitutional issues at stake in two new articles I will commend to your attention.

First, David Rivkin and Lee Casey are former Justice Department attorneys who have represented 26 states in their constitutional challenge to ObamaCare. In a Wall Street Journal piece, they summed up the federalism argument nicely:

Americans cannot escape the individual mandate by any means because it regulates them as people, simply because they are alive and here. That requires police power authority. Permitting Congress to exercise that authority — however important its ultimate goal — is not constitutionally proper and would forever warp the federal-state division of authority.

Second, attorney Adam White wrote a lengthy cover story in The Weekly Standard that lays out the history of the case and its major components. His conclusion:

Unprecedented powers asserted by the government threaten to give rise to stark abuses of power—some foreseeable, perhaps many more unforeseeable. Faced with similarly novel assertions of government power in previous cases, the Court drew a constitutional line in the sand, out of an abundance of caution. The Court’s review of the individual mandate poses no less a challenge, and merits no less a response.

No one knows for sure which way the Court will rule. I have predicted in the past that parts or all of ObamaCare will be struck down, paving the way for true health care reform legislation to emerge from Congress in 2013. What I will predict now is that such a result would, in fact, be in President Obama’s net political interest. It would be a costly blow in the short run, but would reduce the salience of the issue by November.

Hood is president of the John Locke Foundation.