Maybe John Roberts did us a favor by saving ObamaCare

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Published by: Dan Calabrese on Thursday December 15th, 2016

By leaving it for Congress to dismantle, the Chief Justice ultimately set the stage for a better solution.

I'm not going to lie to you. I was as mad as anyone at Chief Justice Roberts when he - not once but twice - saved ObamaCare by engaging in legal gymnastics to avoid finding it unconstitutional - which it clearly was. First he pretended individual mandate fine was a tax, even after the Obama Administration had explicitly said it was not while trying to sell it to the public. Then he ignored clear language about who had to run the exchanges in order for them to be eligible for subsidies.

The other conservative Justices (even Anthony Kennedy) were ready to throw out the entire law on the grounds that it exceeded the authority of Congress. We thought Chief Justice Roberts saw the law the same way, and we suspected when he decided otherwise that he was worried about his "legacy" as Chief Justice and about how he would be polloried by the media and by liberal historians.

As an ardent defender of George W. Bush and his presidency, I had long pointed to Chief Justice Roberts as one of the reasons Bush couldn't be fairly tarred as "not a true conservative." Go and rescue ObamaCare, Chief Justice Roberts, and you're not making this easy for me!

But let's consider what would have happened if the Supremes had indeed tossed out ObamaCare - either in the 2012 case or in the 2015 case - compared with where we are now. If ObamaCare is tossed during 2012, the Republican-controlled House certainly has leverage to bargain with Obama in coming up with an alternative. But it still has to deal with Harry Reid in the Senate and with Obama himself in the White House. Given the way these battles tended to go during the Obama presidency, how much better do you think the ultimate bill would have been?

Remember, John Boehner was still Speaker of the House at the time, and he was getting rolled by Obama and the media on just about every issue. You could easily envision a scenario in which Boehner makes some terrible deal with Obama, proclaims it the best he could do under the circumstances, and he needs help from the Democrats to get it through the House because most Republicans refuse to play ball.

What are we left with? The individual mandate may well have survived, even if it was slightly watered down to help Boehner save face. The exchanges probably survive. The subsidies probably survive in some form.

The bottom line is that Obama wasn't afraid to walk away from the table if he didn't get what he wanted, because he knew the media would carry his water for him. And for that very same reason, Boehner was usually prepared to cave on any number of major issues before he even walked into the room.

Had the Supremes thrown out ObamaCare in 2015, the outcome might have been a little better because by this time the GOP controlled the Senate. By this time the exchanges were starting to collapse and it was clear to everyone that they couldn't keep their health plans or their doctors. But by this time you also had a lot of people signed up for expanded Medicaid, and Obama would have portrayed replacement bills as attempts to throw poor people out in the street. You know how well Capitol Hill Republicans usually handle that sort of thing.

By contrast, the Trump Administration will hit the ground on January 20 with a Republican House and Senate that can come up with a truly effective transition plan that doesn't require Obama's signature. And with Harry Reid safely retired in whatever toxic waste recepticle he finds comfortable, both the Senate and the House can avoid the nastiness of recent years and focus on acutally solving the many problems ObamaCare has caused.

When Roberts ruled against overturning ObamaCare the first time, he explained that it is not the job of the Supreme Court to rescue the electorate from its political choices. That is true, of course, although it is the job of the court to throw out unconstitutional laws. I still believe he ruled wrongly on the legal merits by refusing to do so. But I must be honest: I'd rather see ObamaCare repealed and replaced by a Republican Congress and President Donald Trump - not by the combination that would have done it in the aftermath of a Supreme Court nixing of the law.

Chief Justice Roberts may have done us a favor by forcing the elctorate to make better choices in order to get the better results we wanted.

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