GOP Healthcare Strategy

Supremes Won't Save GOP From Itself on Obamacare—David Frum

KAREN BLEIER / AFP / Getty Images

All or nothing.

That has been the dominant Republican approach to Obamacare from the start, and it is the dominant Republican approach today.

In Congress, this approach led to the result: "Nothing."

Now conservative challengers are hoping the Supreme Court will step in. And who knows? Maybe the justices are feeling bold. Maybe they are ready to expose themselves again to the fiercest partisan criticism since Bush v. Gore, or even fiercer.

I'm not a Court-watcher, and have no expertise to offer, but just going with my gut: I doubt it. Even though the Solicitor General reportedly choked today, that doesn't change the fact that the conservatives on the Court have spent most of their intellectual lives railing against judicial activism.

Here for example is Justice Antonin Scalia writing in dissent in the Virginia Military Institute case of 1996:

The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent.

If you have said over and over again, in writing, that you object to judges writing their policy preference into the Constitution, you have to wince a little at the invitation to write your own.

Especially when the principle on which you are invited to reverse yourself—the distinction between economic "activity" and "inactivity"—is likely to be the laugh of the law schools over the next 100 years.

My uninformed guess: the ACA prevails, and probably not by a narrow margin.

What then?

What then is that healthcare comes roaring back as a campaign issue, to which Republicans have failed to provide themselves an answer. Because of the prolonged economic downturn, more Americans than ever have lost—or are at risk of losing—their health coverage. Many of them will be voting in November. What do Republicans have to say to them?

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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?

In that case, Republicans will need a Plan B. Unfortunately, they wasted the past three years that might have developed one. If the Supreme Court doesn't rescue them from themselves, they'll be heading into this election season arguing, in effect, Our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we're doing this so as to better protect the government-mandated insurance of people over 65—until we begin to phase out that insurance, too, for everybody now under 55.

That's a different version of "all or nothing"—and one that invites the voters to answer: "nothing."

In 2006, Mitt Romney did the heavy lifting to prepare Republicans for this moment. He readied himself to fight an election as a Republican presidential candidate who not only accepted the ideal of universal coverage, but who had actually delivered it. That would have been quite a story to tell. Had things gone slightly differently in 2008, it might right now fall to President Romney's Solicitor General Paul Clement to explain to a sympathetic Supreme Court why the mandates in Romneycare in fact are constitutional.

Such a Romney-appointed Solicitor General would have pointed to the array of things the federal government can unquestionably command people to do—including conscript them into combat and tax 98% of their earnings—that are vastly more onerous (and vastly less beneficial to the individual) than buy health insurance. Such a Solicitor General would have noted that it's absurd to describe as "inactivity" the actual experience of most uninsured Americans: desperately seeking an affordable policy and poignantly discovering that they cannot find it. Such a Solicitor General might even have cited the Supreme Court's own precedents, including the touchstone case NAACP v. Claiborne Hardware, that held that the decision not to buy something was not only an "activity," but even more: an expressive activity protected by the First Amendment!

Such a policy and such a line of reasoning would be something. And it's a solid rule of politics that you can't beat something with nothing.