Supreme Court health care ruling increases the probability of second term for Obama

The ruling is likely to make the law much more popular among dubious independent voters.

Obamacare supporters react to the US Supreme Court decision
Obamacare supporters react to the US Supreme Court decision to uphold President Obama's health care law. Photograph: Getty Images

If there was news before last Thursday, no one in the United States remembers, because all we have been talking about since then is the US Supreme Court's ruling on the Affordable Care Act, which is the real name for "Obamacare". The high court, in a 5-4 decision, decided that the law affecting every single American citizen is constitutional, even the much-vilified individual mandate.

For those who have better things to do than keep track of our opaque and overly complicated debate over health care, "Obamacare," as it is widely known here, is our attempt at universal health care, a feature of every rich country that has been debated in the US since the Nixon era. We have known for a long time that the cost of health care could cripple the economy, and indeed, it has outpaced the rate of inflation by double digits. Other than education and housing, no other cost of living has grown so rapidly over the past decade, but no one had been willing to bear the political risk, especially after the beat-down suffered by Bill Clinton in 1993 when he tapped his wife, that wonky First Lady Hillary Clinton, to devise a way forward.

Broadly speaking, there are two ways of achieving universal care. One is to tax people and give the money back to them in the form of health care. The other is to force them to buy health care or pay a penalty. Either way, you pay. The only difference is you pay for something (that's good for you) or pay for nothing. In procedural terms, there is no difference between these, and the end is the same — everyone is put into a risk pool so that the healthy are underwriting the sick and the sick are not subject to the inhumane whims of the free market.

The means to that end, however, are laden with politics. Because Republicans are usually allergic to the idea of taxes, they hated the Clintons' proposal, and countered with a proposal of their own that avoided the appearance of a new tax. Instead they preferred a method that forced people by law to buy health insurance — and that became known under President Obama as the individual mandate.

Yes, the individual mandate that was embraced by a Democratic president, and passed by a Democratically-controlled Congress, was originally conceived by Republicans who were countering proposals made by a Democratic president. And that's not all.

Obama had wanted to put in place a "public option," which meant more or less greater access to Medicare (old-age health insurance). But that, too, was blocked by Republicans. So Obama, being the deal-maker that he is, put on the table something he thought even the Republicans couldn't turn down — their own policy idea. He was wrong, of course, and for the past two and a half years, we have seen an enormous effort on the part of Republicans and conservatives to show they never liked the individual mandate even though they were once its most vocal champions.

Since the late 1980s, the legal test of the mandate had always been assumed to be a slam dunk. Forcing people to buy health insurance was believed be lawful as it fell under the Commerce Clause of the Constitution, which gives Congress the power to regulate interstate trade. A health care market already existed, many reasoned, so Congress would be regulating a market that was already there.

But after Obama championed, and Congress passed, the individual mandate, Republicans and their libertarian allies, some of whom are billionaires and heads of health insurance corporations who spent millions fighting the law, essentially moved the goal posts, as we say here. No, they said, a health care market does not already exist (never mind that everyone needs health care), so making people buy anything is unconstitutional or un-American. In fact, that sounds like something only an Islamist-communist-fascist dictator like Barack Hussein Obama would do.

In the end, the ruling came down to Chief Justice John Roberts, who was nominated to the bench by President George W. Bush. It had been assumed that Roberts would side with the court's conservative wing who had determined that the Commerce Clause argument vis-à-vis the individual mandate was invalid. Even though Roberts agreed, he found that the individual mandate could stand under Congress's undisputed power to tax. If you don't buy health care, you pay a penalty. Roberts reasoned that this is a tax, whether you call a tax or not.

As I said, this was the very thing Republicans wanted to avoid: universal health care that relies on a universal tax. Republicans don't like to go on record as having voted in favor of a new tax. So the individual mandate was from the start an ingenious way to avoid the appearance of a new tax even though the money people would spend on insurance would be in effect the same money they would pay in a new tax.

This, again, is why there is no difference between these methods. So it is ironic that a conservative judge nominated by a conservative president has declared that a conservative idea meant to avoid looking like a tax says, um, it looks like a new tax.

It is doubly ironic, because Mitt Romney, the Republican presidential challenger, is now using that conservative judge's opinion against the president even though Romney, when he was the governor of Massachusetts, implemented the ingenious Republican idea of an individual mandate in that state.

If your head is swimming, hold on. It gets worse.

Romney's record on health care in Massachusetts, however admirable, is a liability among the GOP's conservatives, who already believe universal health care is code for "creeping communism". That Obama modeled his health care legislation on Romney's has always carried the unfair implication that Romney wasn't a real conservative. Obamacare, rightly or wrongly, has been very unpopular, mostly because most people don't understand it and the president has done a poor job of selling it. Romney can satisfy his base while making a legitimate bid for independent voters by vowing to repeal Obamacare.

But the Supreme Court ruling complicates matters. First, its seal of approval is likely to make the law much more popular among dubious independent voters, especially as its components become better understood, so that the more Romney vows to repeal it, the more he seems to be rehashing a settled issue.

Second, the Republican leadership is making a lot of noise over mandate as a tax, claiming that Obama has just pushed through the largest tax increase in American history (which is patently false). The more they push the tax message, the more Romney has to defend his record so that he doesn't appear to be a tax-and-and spend politician much like the president.

2012 is turning out to be the year of looking-glass politics. Romney once took credit for Obama's decision to bail out the auto industry when he had nothing to do with it. Now he could legitimately lay claim to having influenced the greatest piece of domestic legislation since the Great Society of the 1960s, but he wants nothing to do with it. Such are the times for a Republican presidential hopeful and such is the rising probability of second term for Obama.