Advancing a Free Society

Judge Vinson Issues His Health Care Law Ruling: What’s Next?

Tuesday, February 1, 2011

Now that federal judge Roger Vinson of a Florida district court has issued his much anticipated ruling declaring the 2010 health care reform law unconstitutional, it’s open season on predictions about how the decision will shape the political debate and the direction of health care policy. Here’s what I see when I look into the crystal ball.

This case is the heavyweight among the health care law lawsuits, being that it was brought by governors and attorneys general from 26 states. But Vinson’s decision, while it may be personally satisfying for critics of the health care law, won’t make a major difference in how things play out over the next year or so. Here’s why:

There will be little change in public opinion.

I’ll be watching the public opinion polls closely over the next few days and weeks, but I don’t expect to see significant change in the popularity of the health care law, even among independents and individuals with weak party allegiance. Even if the ruling does lead some Americans to reevaluate their opinion of the law, those reassessments will probably not swing decisively in one direction. Some Americans might be swayed to view the law less favorably while others could turn to support portions of the law they favor against what they might perceive as an activist judge legislating from the bench.

Yes, Senator Jim DeMint (R-SC) took the morning build up to the Florida ruling as the moment to trumpet (ok, tweet) that all 47 Republican senators had signed onto his bill to repeal the health care law. The news in that announcement was that the last four Republican hold-outs had agreed to support the bill (Lamar Alexander of Tennessee, Susan Collins of Maine, Thad Cochran of Mississippi, and Iowa’s Charles Grassley).

But it’s hard to make a convincing case that what led this gang of four to get behind the DeMint repeal bill was the prospect of a wave of public sentiment against the law following the Florida court decision. These senators would have been pressured by constituents and Republican party activists to take a public position in favor of repeal even if the Florida ruling had gone the other way. Recall that none of these lawmakers voted for the law last year, and between the Democrats in the Senate and Obama’s veto repeal isn’t going to happen, so it wasn’t a huge win for DeMint to get these four endorsements.

What DeMint would love to announce is that the Democrats in the Senate have begun signing on to the repeal. But until there are major shifts in public opinion on the law, we won’t see that. The least politically risky move for the Senate Democrats is to hold tight at their current position and not support the Republicans in their efforts to repeal, reform, and defund.

In the wake of the Florida decision, health care policy making in Congress is going to look like it did the day before the Florida decision: no repeal of the entire health care law, maybe repeal or reform of some relatively minor provisions, legislative fights in Appropriations committees to cut off funding for the implementation of the law, and plans for a mind numbing number of congressional hearings called by Republicans to paint the health care reform law as “job killing.”

Everyone is waiting on the Supreme Court.

What the Florida decision probably does do is rally activists and donors in the Republican Party and Tea Party for 2012 by creating a sense of momentum in their campaign against the health care law. If more energy and money flow to Republican and Tea Party candidates, that could mean big changes to American health care policy by a more heavily Republican Congress and maybe even a Republican president beginning in early 2013.

But any enthusiasm bump from the Florida ruling will be overshadowed in size and importance by the kick a Supreme Court decision would have. Provided the Supreme Court rules on the health care law sometime in the next 18 months (or rejects all petitions to hear appeals from the circuit courts), that’s the decision (or indecision) that will ignite activists and donors on the right and the left. That spark comes no matter the content of the ruling, and since the Democrats are already on the defensive, I think most of the action happens among the Republicans and Tea Partiers. If the high court declares the entire law or the individual mandate unconstitutional, the political right does a collective “I told you so” dance. If the law is upheld as constitutional, they will use the decision as the clarion call for the base to mobilize, elect Republicans, and repeal the law.

We already had conflicting rulings from lower federal courts (two declaring the law constitutional and one declaring the individual mandate unconstitutional), so it was likely the law was already moving its way toward a hearing before the Supreme Court. I don’t think the Florida decision did much to change in any meaningful way activists’ or lawmakers’ senses of the likelihood of a Supreme Court decision.

Don’t Make Too Big a Deal about Severability.

The Florida decision makes a difference in that it will force federal appeals courts and the Supreme Court to address the question of the law’s severability, an issue which was not raised by the earlier Virginia federal court ruling that found the individual mandate unconstitutional. But the prospects of the health care law remaining on the books would be the same no matter whether the law is declared severable or not. Democrats and Republicans agree that if the individual mandate is removed from the law, the law just won’t work. If younger, healthier Americans aren’t required to be in the risk pool, the new regulations that prohibit coverage denials based on preexisting conditions, end annual and lifetime benefit limits, and allow dependents under the age of 26 to remain on their parents’ plans will be too expensive for the pre-PPACA pool of insured individuals in the market to support (from a political standpoint, if not an economic one). If the Supreme Court ruled only the individual mandate unconstitutional, I’d put my money on Republicans picking up enough Democratic votes to repeal the rest of the law.

We’re along way from that point, though. Over the next few days, there are going to be a lot of histrionic statements about the consequences of the Florida ruling. The upshot of the decision, as I see it, is that the course of the next year to 18 months remains unchanged.