03/28/2012 04:45 pm ET Updated Dec 06, 2017

Supreme Court Health Care Decision: Does Worst-Case Scenario Have Bright Side For Obamacare?

So, for the second day in a row, Jeffrey Toobin has emerged from the Supreme Court sessions over the Affordable Care Act to declare that the government is making a messy hash of their case and so the Obama administration is facing six more weeks of train wrecks and aerial disasters. Toobin's merely running along with the consensus here that opponents of the health care reform bill are doing a better job with their oral arguments, and that the justices seem fairly predisposed to rule against the individual mandate (which, depending on how they come to view the issue of "severability," could either doom the bill or make it structurally inefficient in terms of managing costs).

It's worth pointing out, of course, that the predictions being made on Twitter may all turn out to be premature and that both Chief Justice John Roberts and Justice Anthony Kennedy have hinted that the bill may have a safe harbor, legally speaking. But the direness of the news at the Supreme Court has already given rise to speculation about what may or may not come next. The sunniest of the speculation centers on the idea that as the Affordable Care Act falls, the chances for single payer arise. Here's George Zornick of The Nation, making this argument:

One obvious option, besides just doing nothing and allowing health care costs to continue their exponential growth while more people lose coverage, is a single-payer health insurance plan. There is no doubt about the constitutionality here -- the government is clearly allowed to levy taxes to fund public benefits. Medicare, for example, is not challengeable on the same grounds as Obama’s health care reform.

So if health care reform goes down, the next logical step may well be just extending Medicare to everyone. This was not politically possible in 2009, but perhaps the demise of “Obamacare” would make it moreso as legislators looked for other solutions.

Zornick points to our pages, where former Labor Secretary Robert Reich argues that with a dose of "political jujitsu," the White House could pull the single-payer pony from the collapsed stable of Obamacare:

If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they're willing to remove that requirement -- but only if Medicare is available to all, financed by payroll taxes.

If they did this the public will be behind them -- as will the Supreme Court.

Well, I'd agree that "Obama and the Democrats" can and should make that argument, but "can" and "should" are a far cry from "will." It took decades for the Democrats to work up the nerve to attempt a comprehensive health care reform bill after President Bill Clinton's efforts foundered, and even this time, they weren't daring enough to try to enact a single-payer system. (Though the Affordable Care Act does provide for states to -- eventually -- do so, as long as certain standard benchmarks are met.) It takes a long time for Democrats to overcome their natural skittishness, and in an election year, they're not going to be so daring to take up this cause, and get blamed for wasting time when they could be working on the defict/unemployment/War in Afghanistan/job-creating floral arrangements. (Also, they do not have the votes to get single-payer to Obama's desk.)

Jim Newell made this point rather excellently yesterday while liveblogging in Richard Adams' space in the Guardian:

The demise of Obamacare will not increase the legislative appetite for a single-payer system anytime soon. More likely, if anything, it would lead to long-standing conservative alternatives -- allowing companies to sell insurance across state lines, for example -- that would lead to a race-to-the-bottom among the states and worsen the quality of care across the board.

And it's important to recognize the broader implications on our politics of an unconstitutional ruling in this case. This would be a devastating blow to concepts of collective action and risk-pooling for the benefit for the public at large. And some think that legislators would move in a more collectivist direction after this? Don't count on it happening anytime soon.

Even James Carville, spinning a SCOTUS defeat as good news for Democrats, presents a best-case scenario in which the Democrats are curiously passive:

"I think this will be the best thing that has ever happened to the Democratic Party," Carville said Tuesday on CNN's "The Situation Room with Wolf Blitzer."

He added: "You know, what the Democrats are going to say, and it is completely justified, 'We tried, we did something, go see a 5-4 Supreme Court majority.'"


"Then the Republican Party will own the healthcare system for the foreseeable future. And I really believe that. That is not spin," Carville said.

This reasoning isn't unsound. What Carville is suggesting is that over the long term, as bad outcomes mount as a result of the Affordable Care Act's downfall (people lose health care coverage, get sicker, die unnecessarily, or impoverish themselves in order to stay alive, thus depressing their productivity and social capital), voters will remember that the Democrats at least tried to prevent these outcomes. Of course, it's worth pointing out that the GOP seems willing to take up this wager -- their embrace of Paul Ryan's plan for entitlement spending demonstrates a certain lack of concern for when these outcomes manifest themselves as a result of ending Medicare.

There is, of course, a larger lesson the Democrats could stand to learn here -- their tendency to get skittish and retreat when it seems they'll lose a legislative battle is robbing them of the opportunity to demonstrate what they stand for, even in the face of a legislative loss. But while everyone's waiting for the long-term political benefit to kick in, the simple fact of the matter is that in the short term, we have widespread death and impoverishment to look forward to.

Rather than passively waiting for Carville's prophecy to fulfill itself, the Democrats would be better served to prepare to win a simple, short-term argument: "What would you like to do instead, GOP?" David Frum believes that if the SCOTUS takes out Obamacare, this will all "[come] roaring back as a campaign issue, to which Republicans have failed to provide themselves an answer."

Make no mistake: If Republicans lose in the Supreme Court, they'll need an answer. "Repeal" may excite a Republican primary electorate that doesn't need to worry about health insurance because it's overwhelmingly over 65 and happily enjoying its government-mandated and taxpayer-subsidized single-payer Medicare system. But the general-election electorate doesn't have the benefit of government medicine. It relies on the collapsing system of employer-directed care. It's frightened, and it wants answers.

"Unconstitutional" was an answer of a kind. But if the ACA is not rejected as "unconstitutional," the question will resurface: if you guys don't want this, want do you want instead?

Frum's point is well-taken. As time has gone by, the Republican's talk of "Repeal and Replace," has winnowed down to mere "Repeal." On the 2012 campaign trail, none of the candidates even attempt to answer the question of how they'll contend with America's health care crisis. Newt Gingrich and Rick Santorum never talk about it. And Mitt Romney -- who only got to join the league of Republican Presidential Aspirants because he went ahead and tried to make the Republican party the party of solving the universal healthcare problem -- no longer gets to enjoy the luxury of being a political innovator. Instead, he has to run away, constantly, from what amounts to the raison d'etre of his candidacy.

But by and large, the media has evinced a complete lack of curiosity over this question. Earlier this week, CNN's Wolf Blitzer interviewed Romney, who appeared on camera in a room with a prominently displayed campaign sign on the wall that read, "Repeal and Replace Obamacare." As the word "replace" was hanging there, in full view of everyone, it would have been a pretty opportune time to inquire of Romney, "So what do you plan on replacing it with?" Considering the fact that, "Something akin to what I did in Massachusetts" is now blasphemy, it would have been interesting to hear his answer.

Instead, Blitzer opted to try to ask a "gotcha" question about "The Hunger Games." So, the Democrats have a lot of work ahead of them if they want to change this dynamic.

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