Obamacare Won't Die in the Courts

The Sixth Circuit's decision upholding the constitutionality of President Obama's massive health reform bill is a death knell for the current Republican strategy of bloviating against the bill and hoping that it will, somehow, go away. Although I dislike the bill quite a lot, I'm not convinced that it is unconstitutional and I'm very skeptical of the idea that conservatives should ever cheer judicial efforts that attempt to strike down broad democratically determined policies, if there's any wiggle room not to do so. (In other words, ending segregation made sense because it clearly violates the 14th amendement, while extensive precedent provides Congress with broad powers to tax and mandate.)

Quite simply, the law should be a wake-up call for conservatives to start formulating "plan B" on health care--a legitimate replacement for most of Obamacare's bad features. Conservatives should embrace solutions like a near-universal premium support mechanism as a replacement for the patchwork of subsidies that Obamacare provides, taxes on employer-provided health insurance (not as a revenue raising measure but, rather, to encourage the emergence of a system where people buy their own health coverage), straightforward cuts in subsidies Obama wants for the middle class, and greater use of waivers to let states experiment with their own solutions.

A real plan isn't going to be possible without compromises. For example, getting insurers to cover pre-existing conditions as the most recent Republican platform and the Pledge to America says the GOP wants to happen, isn't going to be possible unless a Republican plan also includes a tax provision (it can be called a "health tax credit,"  if it makes people happy) that's basically equivalent to the individual mandate. Although they might be rearranged, furthermore, most of the reductions in Medicare spending also make sense and should probably stay in place. Finally, if Republicans really want states to become laboratories of democracy, they need to write waiver language that supports both free-market experiments and market restricting ones. Above all, however, the decision should wake Republicans up to the fact that they have to get serious about healthcare reform.