By Bill Wilson — Now that the Supreme Court has ruled to uphold Obamacare, vastly expanding the taxing powers of Congress to now compel behavior to enter into commerce or engage in other activities, the fallout is being seen everywhere.
“It is not our job to protect the people from the consequences of their political choices.” That’s how Chief Justice John Roberts blithely put it in his majority opinion, essentially throwing his hands up in the air at those who wanted the Court to strike down the law.
Yes, in the tradition of Marbury v. Madison, it is not up to the Court to answer political questions with which the elected branches of government have discretion. Except of course when Congress has no authority to make such choices in the first place because they directly violate the Constitution.
And here was a law that the Court even said could not be sustained under Congress’ powers to regulate interstate commerce. But because it had a monetary penalty attached to it, suddenly, forcing people to purchase a product, in this case, health insurance, was okay in the eyes of Court. That is, if they merely pretended the individual mandate was not a penalty, but a tax.
As a result, the core provisions of the law were upheld, and the American people will perhaps be fighting for a generation to get it repealed.
And so, who will protect the people from the consequences of Roberts’ choice? Now, like it or not, it is solely up to Congress, and state legislatures, too, to deal with the fallout.
For Democrats in these elected bodies, they need only fight to keep the status quo, but for Republicans who have vowed to repeal this abomination, the uphill battle will be daunting. But there are some opportunities to act legislatively.
Medicaid expansion
Perhaps the only silver lining in the Court’s ruling — and I use that term cautiously because the Medicaid expansion’s unconstitutional coercion of states should have resulted in the entire law being struck down in toto — is the portion of it dealing with Medicaid expansion.
Obamacare includes a massive expansion of the Medicaid program up to 133 percent of the poverty level. That means 23.8 million potential new enrollees. Which, at a current cost of about $4,950 per Medicaid recipient, looks to be about a $117.8 billion annual, additional cost. The federal government promises it will pay 100 percent of those costs for three years, but then that number drops to 90 percent in the out-years.
That means states will be on the hook for at least $12 billion in Medicaid costs once the program is fully implemented, with the costs likely to rise substantially over the coming decade.
But thanks to the ruling, states can now opt out of the Medicaid expansion without penalty. Under the original law, states had to agree to the Medicaid expansion or else lose all federal matching funds for the program. But the Court found that to be an unconstitutional coercion against the states.
So that gives state legislatures across the country an opportunity to fight back against the law, by either rolling back or blocking the program’s expansion. Again, this could not only save the several states some $12 billion a year, but could save federal taxpayers an overall $117.8 billion a year. For if states do not individually agree to expand the program, then it cannot be expanded.
But already some Republican governors are getting squishy on this issue. A tepid Virginia Governor Bob McDonnell, who heads the Republican Governors Association, meekly suggested on June 29 that “Most governors are going to do what they think is best for their states.” Nor would McDonnell say if he would oppose the expansion himself in Virginia.
Way to lead the charge, Bob!
With Republican leadership like that, this law should be repealed by — well, never. But it is still not too late, with Medicaid expansion not taking effect until 2014. There is time for individual state legislators to lead where Republicans like McDonnell dare not.
The line is simple enough. If you love your country and do not want to place a tremendous burden on taxpayers, then opt out of this Medicaid expansion. Because, by accepting the expansion, states are knowingly bankrupting the federal government, adding $117.8 billion to the budget every year. Just where do they think the money will come from to pay for this?
Repeal and Destroy
In addition to opposing Medicaid expansion, it is now up to Congress to repeal and destroy key provisions of Obamacare via the budget reconciliation process — a threshold that only requires 51 votes in the U.S. Senate to meet, not 60 as with other votes.
Particularly, since the individual mandate has been ruled to be a tax — even though lawmakers never thought it was a tax when they voted on it — it now qualifies to be struck down by simple majorities in both houses. Another unintended consequence of the ruling perhaps, but one that should be taken advantage of.
Other appropriations, including the Medicaid expansion and subsidized insurance exchanges — which make up the bulk of the costs of the law — can also be defunded via this process. So too can funding for the Independent Payments Advisory Board whose job it is to ration dwindling Medicare resources for seniors, health care co-ops, and other radical provisions.
Republicans in the House and Senate need not wait until 2013 to get started on this process. Surely, there are enough votes in the House to vote to get this done immediately. And as for the Senate, Democrats like Claire McCaskill for example, up for reelection in 2012, should certainly have an opportunity to let constituents know where they stand on repeal.
If it passes, let Obama be the one to veto the repeal.
But fighting against themselves, in response to the Supreme Court’s ruling, Republicans like presidential nominee Mitt Romney have said they would “repeal and replace” the law. But replace it with what? Something akin to Massachusetts’ health care law? No thanks.
The last thing we need is Mitt Romney leading an effort for health care “reform” nationally. In fact, after this ruling, it would be obscene for Congress to attempt to replace this abomination in a haphazard manner to assuage those who created this crisis in the first place. The only action Congress should take is to repeal and destroy this law — for good.
Unlimited taxing power?
The politics of Medicaid expansion and repeal are easy enough for Republicans to pull off in an election year. Legislators in several states, including Florida, Ohio, Pennsylvania, Colorado, Missouri, Mississippi, and Nebraska are already considering moves to block Medicaid’s expansion. And House Republicans are already scheduling another vote this month to repeal Obamacare.
Perhaps after 2012, Republicans will muster enough votes in Congress and reclaim the White House to do away with the law all together.
But beyond that, the longer term implications of the ruling may be even more problematic, and are not something that elections alone can cure. Particularly, thanks to Chief Justice Roberts’ ruling, Congress now appears to possess a new power to compel behavior with the tax code as their chief enforcement mechanism.
The trick? Create specific taxes so onerous as to make it cost-prohibitive not to abide by their mandates.
Congress wants to save the planet? Force everyone to drive those stupid battery-powered golf carts or else they’ll hit citizens with a tax that wipes them out. They want everyone to eat healthier? Force everyone to buy broccoli once a week or else they’ll hit citizens with a tax that wipes them out. They want to prevent the government from going bankrupt? Compel everyone to buy treasuries in their 401k’s or else they’ll hit citizens with a tax that wipes them out.
Being creative, there would appear nothing to stop Congress from compelling certain industries to meet government-desired production goals. For example, radical environmentalists could propose confiscatory corporate tax rates on oil companies that refuse to make solar panels. Or on fast food giants that sell fatty food. Or on banks that refuse to lend to lower-income individuals lacking an ability to repay.
One could go on, but it is easy to contrive of how Congress’ new unlimited taxing power may be abused by members in the future to engage in all manner of social engineering. Republicans should have little trouble alerting voters of this new power grab, and what it could mean if not rescinded.
As the nation’s fourth Chief Justice John Marshall wrote in McCulloch v. Maryland, “That the power to tax involves the power to destroy … [is] not to be denied.”
Besides electoral vigilance, and perhaps a generational shift in the Supreme Court itself to overturn it, there appears to be little the American people can do about this particular part of the ruling. It might take a constitutional amendment to rein in a taxing power so expansive as to render all other protections in the supreme law meaningless, which could take decades to implement.
No time
The only problem is that the American people do not have a generation to rein in this beast. With the $15.8 trillion national debt already larger than the nation’s entire economy, due to rise to $25 trillion by decade’s end, the American people cannot afford the $3 trillion 10-year costs of Obamacare once fully implemented.
Which means Republicans, should they benefit in Nov. 2012 politically from the fallout of this ruling, will have perhaps one chance to act — before it is too late. There simply is no time left. It’s 2012, or bust.
Bill Wilson is the President of Americans for Limited Government. You can follow Bill on Twitter at @BillWilsonALG.
