Legal Action and Political Action as a Two-Track Strategy for Opposing Obamacare

In a recent post, I suggested that Obamacare will be almost impossible to repeal through political action. History shows that it is extremely difficult to eliminate entitlements. In addition, repeal would require Republican congressional majorities and a Republican president; I doubt we will get both simultaneously for years to come. Although various state governments and conservative and libertarian activists are planning to file legal challenges to the bill, I also doubt that lawsuits alone can achieve that goal. The Supreme Court is reluctant to take on the political branches of government on major issues that are a high priority for Congress and the president. When it has done so in the past (as in the 1930s), it has usually lost.

But while neither legal nor political action is likely succeed by itself, a two-track strategy combining the two stands a better chance. Unlike most high-profile policy initiatives enacted with strong presidential and congressional support, Obamacare is generally unpopular. Polls show substantial opposition to it, with opponents outnumbering supporters by 10 to 20 points (see here and here). If majority opinion continues to oppose the bill and Republicans make big gains in November as a result, the courts might be less hesitant to strike it down. They will not face any political retribution if they strike down a bill that most of the public and a new congressional majority actually opposes. Indeed, their public standing might even increase if they did so. As co-blogger Randy Barnett puts it:

[I]f this legislation is popular, they are unlikely to strike it down. But if it is deeply unpopular, and one or both houses of Congress flip parties as a result, then the legislation is much more vulnerable. Assuming the Supreme Court follows the election returns, as “realists” claim.

We should also remember that litigation is likely to center on the bill’s mandate requiring individuals to purchase health insurance even if they prefer not to. This is one of the least popular elements of the bill, a fact that would give the courts further political cover. Eliminating the individual mandate might eventually destabilize other parts of the bill. Without the mandate, insurance companies might start lobbying for repeal of other elements of the plan (since the bill would no longer be a huge bonanza that gives them many additional customers). If the ban on excluding coverage of preexisting conditions is maintained, the elimination of the mandate would incentivize citizens to wait until they get sick to purchase insurance. It’s unlikely that such a system could persist for long.

In my view, the individual mandate is unconstitutional because it exceeds Congress’ powers under both the Commerce Clause and the Tax and Spending Clauses. I believe that courts should strike it down regardless of the political situation.

As a practical reality, however, courts are unlikely to strike down major legislation if doing so will produce a massive backlash from the other branches of government. Thus, a strong political effort is probably necessary for litigation to succeed. Such two-track efforts have a long history. For example, The NAACP coupled its litigation strategy against segregation with a longterm political effort designed to win greater support for racial equality among white voters. Brown v. Board and later decisions could never have happened without complementary political changes.

Even a successful political strategy doesn’t necessarily guarantee victory in court. The conservative majority on the Supreme Court is a narrow one (5-4), and it’s certainly possible that one or more conservative justices will refuse to strike down the individual mandate even if the political winds are favorable. And the political battle itself will be far from easy. It’s likely that voters will take a more favorable view of the Obama administration and its policies as the economy begins to improve over the next several years.

If I had to guess, I would say that Obamacare is more likely to survive than not, for reasons I summarized here. But a two-track strategy that combines litigation with political action has a much better chance of success than either taken alone.

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