When it comes to Obamacare there is no guarantee it will survive beyond 2012. And even if it does in what way the law is implemented remains in doubt. The SCOTUS’s decision announcing the law constitutional did not make the public love it anymore than they did before (as in not much). Nor did it make many GOP governors, state legislatures and Congressional leaders any less willing to fight its implementation.
Nowhere is this more apparent than the GOP controlled House. By the AP’s count the House has voted 33 times, successfully all 33 times, to repeal Obamacare. Every single time it has died in the Democratic controlled Senate. But every two years we have these things called elections. It looks very likely 2012 could determine the immediate fate of Obamacare. Below I list three scenarios for Obamacare’s future with one caveat. I do not consider a scenario where the law survives in its entirety. In all three the law is changed to some degree or repealed in its entirety.
Scenario #1: Republicans win in 2012: Republicans have just come off a clean sweep in 2012. Despite a hard-fought contest Mitt Romney narrowly won a 271 electoral vote victory over Barack Obama (thank you New Hampshire). Republicans have maintained a healthy 20 seat edge in the House. In the Senate they hold a narrow 51-49 majority after Linda Lingle, playing on her popularity as governor and distancing herself from DC Republicans, pulled off the upset of the century in Hawaii. Meanwhile bye, bye Scott Brown and hello Dean Heller to your first full term. Independent Angus King decides to caucus with the Democrats after his win in Maine.
On day 1 of the Romney presidency he and congressional leaders initiate a triangulation strategy to get rid of Obamacare. Making good on their campaign promise the GOP House initiates yet another repeal vote to get rid of Obamacare. Every single Republican votes yes. Every single Democrat votes no. The bill moves to the Senate where the GOP with its narrow majority uses reconciliation to de-fund the bill and eliminate its tax and subsidy provisions. Linda Lingle sides with the Democrats while Independent Angus King breaks ranks and gives the GOP the 51st vote. President Romney signs the bill as soon as it hits his desk.
President Romney swiftly fills out his cabinet. His new HHS Secretary as soon as she is in office implements a blanket waiver to all states in regards to Obamacare. Executive fiat has been used to the GOP’s advantage. Obamacare is effectively dead.
In answer to Democratic attacks Republicans pass a flurry of bills on Healthcare. The bills allow kids to stay on their parents insurance until they turn 27, provide vouchers to those looking for private insurance, make insurance companies cover those with pre-existing conditions, extend insurance companies abilities to compete in other states, make insurance portable and implement a limited tort reform effort at the national level. The debate about Healthcare Reform rages on but former President Obama’s signature achievement, with the largest Democratic majority in Congress in decades, amounts to nothing.
Scenario #2: A Mixed Decision in 2012: Republicans have held control of the House and flipped the Senate narrowly. But in the end President Obama’s advantages were too much for flawed Mitt Romney. Republicans symbolically send a repeal vote of Obamacare to the President’s desk. He vetoes it immediately.
Republicans and Democrats are now at a loss. The election was partisan and bitter. Republicans held solid control of the House but now have several incumbents in moderate/liberal states. Democrats have to protect a new Senator in North Dakota and Tester in Montana. Republicans in Congress decide to take the fight to the president on Obamacare.
In exchange for not de-funding the law Republicans succeed in ending the sequestering cuts to the defense budget (not deficit friendly), succeed in seeing the Bush tax cuts extended beyond the year they were in the lame duck session of 2012 and get the Keystone Pipeline approved and fully funded.
At the state level many GOP state legislatures and Governors fight back against the law with Congress’s blessing. They dare the Federal Government to impede on their sovereignty and run state exchanges. The HHS passes on the challenge. Over two dozen major states including TX, FL, VA, MI, WI, NY and CA (the last two have Democratic Governors and legislatures) decide not to expand their Medicaid rolls. Over twenty million Americans go without Health Insurance and America continues to debate how best to cover those who are uninsured.
Scenario #3: Judicial Action: Nothing changed after 2012. The GOP still controls the House and Democrats the WH and Senate. GOP Congressional leaders, GOP governors and their legislatures turn to the courts to help weaken Obamacare. First up on the docket. Whether the Fed can create and run state exchanges? In a 5-4 decision with Roberts authoring the opinion he emphatically states the Federal Government has no power under the Commerce (or Necessary and Proper Clause) to do so.
Fueled by this quick victory in 2013 several states bring to the SCOTUS a question on how the mandate is collected. While the SCOTUS finds again the Mandate Constitutional it says the states must collect the mandate. Another victory for the right.
The states between 2012 and 2016 bring several more lawsuits before the Court. On almost every single one the Fed loses and Obamacare is severely weakened. It’s funding mechanism weakened, its Medicaid provision eliminated, and its ability to coerce people to buy insurance limited Obamacare does not carry as much punch, beyond regulations, as was promised. Meanwhile the SCOTUS declares Section V of the Voting Rights Act unconstitutional, reaffirms Arizona’s new immigration policy (when they passed new legislation in response to its 2012 decision) and eliminates all campaign finance restrictions on elections. The Court quickly becomes the most conservative court in modern history. Thank you John Roberts.
Now I realize none of these scenarios is guaranteed to happen. Nor are any likely to happen beyond 50%. But it is easy to see one of these three scenarios, or a dozen more, happen in regards to Obamacare. One thing remains clear however. Because the law does not go into full effect until 2017, with special exceptions carved out for major unions and corporations, it is unlikely to survive in its entirety when it is fully implemented.