Day of Diminution: SCOTUS gets a little smaller as it makes Obamacare a little smaller

by Ryan Streeter on July 2, 2012. Follow Ryan on Twitter.

In my latest Indy Star column, I talk about the Supreme Court’s ruling on Obamacare…what I call the Courts’ Day of Diminution:

The Roberts Ruling: It’s Up to Us to Slay the Beast, Produce Better Reform Package

Indianapolis Star, July 1, 2012

Supreme Court Chief Justice John Roberts certainly threw everyone for a loop on Thursday. The most anticipated Supreme Court ruling of his tenure proved to be the most unexpected.

Call it the Day of Diminution. Roberts made the colossal failure known as Obamacare a little less colossal. He also shrunk the esteemed role of Chief Justice into something more like Chief Policy Wonk of the Court.

Let me explain.

The Affordable Care Act is a colossal failure because it will drive up costs and taxes without the requisite improvements in health care. It will cost an additional $1 trillion over the next decade. It contains numerous new tax increases on everything from payrolls to investment income to medical devices. It promises to pile up hundreds of billions of dollars in new debt over the next few years. It is loaded with mandates and bureaucratic controls, which will raise the cost of health insurance that we’ll all pay for with higher premiums. Health outcomes are unlikely to improve much, and costs are likely to impede economic growth.

To work, Obamacare depends upon the individual mandate, which requires all of us to purchase health insurance.

For months, most analysts thought the ruling would be a choice between throwing out the individual mandate and upholding the law’s expanded view of the Commerce Clause. Instead, Roberts threaded the needle. He agreed that the mandate overstepped the bounds of the Commerce Clause, but he upheld the mandate by converting it into a tax on those who choose not to buy health insurance.

Then, as if one jolt of electricity didn’t produce the shock he wanted, he sent out a second jolt: he declared that states would not be penalized if they opted out of Obamacare’s expansion of Medicaid.

The Obama White House rather tepidly declared victory. They reacted more like a team that won a game because of a bad call by a referee than the strength of their performance.

Even worse for the White House, Roberts took the teeth out of Obamacare’s expansion of Medicaid. Obamacare’s designers relied on this expansion to show how dramatically the law would cut the number of uninsured Americans. Without it, mustering the needed votes would have been harder, if not impossible.

All of this has made Obamacare a smaller colossus. But it took a diminution of the role of the chief justice to pull it off. Rather than ruling on the constitutionality of Obamacare, Roberts rewrote the law in an effort to make it constitutional.

Roberts used his position to engage in a kind of policy wonkery about mandates, taxes and Medicaid’s applicability rather than giving a thumbs-up or down on the law’s constitutionality. In so doing, he ended in a matter of minutes the weeks-long hyperventilation among Obamacare supporters who were certain he would rule as a right-wing extremist. But he also discarded his self-described role as an “umpire” for something less, something more like a legislator-wannabe in a robe.

For most of us, the Day of Diminution has left us pretty much where we were beforehand. Despite Roberts’ ruling, we are unlikely to be facing a new era of judicial activism. Whatever his reasons for ruling as he did, Roberts is far too talented and prudent to allow that. And Obamacare is still far too expensive, bureaucratic and inefficient. The colossus shrunk a bit, but it’s still a colossus.

It’s therefore up to us mere mortals to slay the beast and replace it with a better package of reforms. The only way to cover the uninsured and chronically ill without breaking the bank is within the context of a real health-care marketplace, which we’ve never had. To do this, voters will need to back candidates who promise to change our dysfunctional tax treatment of insurance, push entitlement reforms, create portability and promote consumer choice.