Democrats Could Still Kill Obamacare if They Are Not Careful

While last Thursday’s monumental Supreme Court ruling will inevitably resurface in the presidential debates later this year, the enduring legacy of the decision won’t be in the program it saved but in the way it did so. Democratic leaders now find themselves championing a ruling that severely limits the Federal Government’s role in regulating markets that don’t work as completely private entities. On top of that, the White House will soon have to figure out a way to either contextualize the opinion writing of Chief Justice Roberts to limit the verdict to the specific case it was written about or associate government expansion through taxes with positive change, a position avoided by every president since Jimmy Carter The fate of strong federal programs could be hanging on how delicately Democratic leaders handle the aftermath of a Supreme Court ruling too many are seeing as a finish line.

Most of the controversy surrounding the bill stems from the individual mandate, which was added to incentivize the section of the population who does not qualify for a government sponsored health program like Medicare and who has not already purchased private health insurance to do so or be faced with a financial penalty. Backers of the bill originally defended this mandate through the Commerce Clause of the Constitution by stating that a market must satisfy two requirements to need federal intervention under its power to regulate interstate commerce. First, the market must be one that most everyone will enter at some point in their lives and second, it must be a market that cannot be run effectively as a private one. As health care is something everyone needs to survive, it satisfies the first rule, and since it is practically impossible to know when someone will need health care and a private exchange can’t always be reached, it satisfies the second the rule. These were both pragmatic arguments that were used to counter arguments of a state overhaul of the insurance market; the system works around the private market and was a compromise of ideals. Now, it’s here where it gets complicated for the Obama camp.

The majority opinion in the Supreme Court declared that the individual mandate was not covered by the Necessary and Proper Clause or the Commerce Clause since the program didn’t “regulate existing commercial activity [and] instead compelled individuals to become active in commerce”, but it was covered by the federal government’s power to levy taxes as the penalty was a mere fiscal penalty with no legal repercussion. The ruling immediately framed the bill in a way many on the left, including Obama, have been avoiding from the start. The program was no longer an attempt by the federal government to ensure coverage to Americans who can’t afford it, it was a tax.

Republican structures like the Tea Party and Grover Norquist’s tax pledge have shown (and likely helped foster) the strong reaction that the American public has to proposed tax increases.  It has become the major obstacle of the Obama campaign to kick-start a slow national economy while shrinking a record breaking national deficit all without raising taxes for revenue. A look at the detail and care considered by the White House when dealing with proposed tax increases for even the top 1% of income earners who, statistically, rarely vote for a Democratic candidate, reveals how unusual the current political climate really is. Now that the incumbent president’s signature health care legislation has been declared a tax on those who choose not to buy health insurance, Obama must advocate an already marginally unpopular bill in a new light that seems prime for a Republican advantage, and the right has taken notice. Republican party leaders like John Boehner, Eric Cantor, and Mitch McConnell have already begun rallying electoral support by marketing a Romney administration as the only way to dismantle the Affordable Care Act - a strategy they are benefiting from with pretty clear metrics: Romney’s campaign raised $4.6 million in the 24 hours preceding the decision. And switching to the constitutional repercussions, the Supreme Court’s ruling that the ACA’s mandates are not covered by the federal government’s power to regulate interstate commerce invites future challenges that could gut the Commerce Clause and the ACA along with it. As the law depends greatly on the expansion of Medicaid to cover low-income communities, we could soon see challenges to the constitutionality of welfare health insurance programs if they’re seen as encroaching on a state’s right to regulate its own health care provisions. Let’s not forget last week’s decision already removed the teeth of the bill that forced states to accept the federal grants and cover those up to 133% of the federal poverty level.

The ruling shouldn’t come as completely bad news to the Obama campaign. Now that the Supreme Court has ruled ultimately in favor of the ACA, its popularity is rising among independents and even Republicans. As Democratic strategists had predicted, it seems now that people have learned what the program entails, outrage is beginning to subside. As for the durability of the ACA, it is absolutely vital to the bill that proponents immediately ensure their constituents understand the benefits they receive from the bill and strike down the ridiculous claims charging it to be the biggest “tax hike in history.” After the election, regardless of the outcome of the 2012 elections, Democratic leaders must be prepared to defend every part of the bill along with most other federal programs of similar magnitude and content; in Congress as much as in the courts.

Whatever the remaining four months of the election season hold, Democratic leadership must rely on deliberative press and careful policy. The future of a functioning ACA depends on it.