We Have Not Yet Begun To Fight

(Andy Matthews/NPRI) – So … how you feeling today?

Shocked? Outraged? A little depressed? All I can say is: Shake it off. We’ve got a lot of work to do.
In a 5-4 decision that surprised many observers (this one included), the U.S. Supreme Court yesterday upheld the core provisions of the Patient Protection and Affordable Care Act, including its most controversial element: the individual mandate. Most surprising of all was that it was John Roberts who provided the pivotal vote, the chief justice joining the four reliably liberal justices in the majority.

There’s plenty to lament about this decision. Because ACA is still the law of the land, the threats it poses to businesses, individuals and state budgets — which my NPRI colleagues and I have already highlighted extensively — remain just as real and just as serious today as they were a couple days ago. It’s beyond frustrating to know that just one vote in the other direction would have struck this disastrous law down once and for all.

At the same time, it’s worth acknowledging that the ruling wasn’t all bad. In upholding the provision requiring individuals to purchase health insurance, the Court rejected the argument that Congress had the power to establish the mandate under either the Commerce Clause or the Necessary and Proper Clause. Instead, wrote Roberts in his majority opinion, it is under Congress’ power to tax — in this case, to tax those who choose not to buy insurance — that the provision passes muster. In other words, the Court rejected the idea that the federal government can explicitly compel you to purchase a product on the private market. In the long run, the Court’s affirmation that there are at least some limits on congressional power under both the Commerce Clause and the Necessary and Proper Clause is a very good thing.

Of course, in the short term, that’s of little consolation to those who would have to deal directly with ACA’s practical consequences.

Yet it’s still entirely possible that they won’t have to.

What happened yesterday was that the quick and conclusive victory that ACA’s opponents had hoped for didn’t come. But the fight isn’t over.

Now, instead of a legal fight, it simply becomes a political fight. Arguments over the law’s constitutionality will be replaced by arguments over its policy implications. And voters and policymakers, rather than judges, will have the ultimate say.

The Patient Protection and Affordable Care Act was enacted by Congress and signed by the president. Its undoing, if it is to occur at all, will have to come by a similar path.

What this means is that you and I need to make sure we win the policy argument. We need to continue to demonstrate to elected officials, candidates, members of the media, our friends, family members and other associates, how ACA will exacerbate, rather than ameliorate, the problems plaguing America’s health care system.

We need to point out that it will drive up the costs of health care while decreasing access and quality. That it will make it harder for business owners to hire more workers at a time when unemployment is already unacceptably high. That the fiscal strain it will place on state budgets will crowd out legitimate government services all across the country.

And we can’t let anyone forget that, as the Supreme Court said, this is a tax, and it represents one of the largest tax increases in the history of our nation — one that will be borne disproportionately by low- and middle-income Americans.

Constitutional or not, the reality is that our nation and its citizens simply cannot afford this law.
And we cannot afford to lose this fight.

But to win, we must do more than simply expose the problems with the law. We must clearly articulate superior, free-market alternatives. NPRI’s press release from yesterday is a good place to start.

So keep your spirits up, and keep fighting. There’s a long way to go on this yet.