Bill Pierce is a senior director in APCO Worldwide’s Washington, D.C., office. He specializes in advising health care clients; his work includes policy development, issue advocacy, message development, crisis communication and media relations.
Many people throughout the United States and internationally have been anxiously awaiting the U.S. Supreme Court’s decision on the Affordable Care Act. This morning, the wait was over as the Court issued its ruling to uphold the individual mandate. But the Court used a very different legal basis than argued; it’s a tax and Congress has the authority to tax. This makes the next few months clear.
Republicans now have a very specific target – the mandate is a tax and politically being anti/lower tax has always been a good and often winning strategy for Republicans. So look for the GOP to hit the tax issue hard in the months leading up to the November U.S. election. They will tie the mandate tax (and other taxes in the law) to the poor economy and slow job growth. And they will then say the only way to get the economy back on its feet is by electing a new president and GOP majorities in the House and Senate and then they will get rid of these taxes. This will energize the base. Calling for lower taxes always does.
For Romney, the situation is a little trickier since the Massachusetts law includes a mandate and now a tax as defined by the Supreme Court. But it seems apparent that he will justify this by using the states’ rights argument favored by Republicans.
For Democrats the path forward is tricky. While a short-term political victory for the president in that the Court upheld the law, by using the taxing authority and thus labeling the mandate a tax, they will have to battle the age-old charge that Democrats are nothing more than “tax and spenders,” a label President Obama has been trying to cast off since he took office. Democrats therefore, besides fighting a rearguard action against the tax charge, will have to go on offense saying that now the country can move ahead and fully implement the law and bring health insurance and health care to more than 30 million Americans who do not have coverage. That should boost the Democratic base.
The impact of the actual decision has two parts and it’s complicated.
The easy part is that the Medicaid ruling, saying the federal government can’t coerce the states to expand Medicaid eligibility under the threat of taking away funding, means the Medicaid expansion will be much slower. States will only expand eligibility as they can afford it and that is based on economic growth. So getting to 30 million new Americans with health insurance could take some time.
The tricky part is the mandate ruling. By defining it as a tax, this will likely make it more vulnerable to be modified or repealed using the budget reconciliation process. The reason: the reconciliation process requires only 51 votes to pass in the Senate, but it has its limitations in that it cannot be used for making policy, only tax and budget matters. But repealing other parts of the law using reconciliation is not likely no matter what politicos say. Recall that the law finally made its way through Congress using the reconciliation process because Scott Brown’s victory broke the Democrats filibuster proof majority. Democrats were unable to hold a conference report to negotiate a final bill so they used reconciliation.
What this means then is Republicans must win the Senate majority and the White House, because even if they control the Senate, if the GOP does not win the White House, a re-elected President Obama is not likely to sign a bill that guts his signature policy achievement.
Hold on tight – there is still a wild ride ahead.