Of the arguments the Republicans used in their attempt to have the Supreme Court overturn the Affordable Care Act, the one the public will remember for years is the claim it could lead to the government making citizens eat broccoli. It’s funny to think of federal agents sticking a tube down a citizen’s throat and administering a foie gras-like broccoli gavage. Humor aside, it’s a bad example because the Eighth Amendment protects us from cuisine and unusual punishment.
However, the broccoli argument is about arriving at a limiting principle, which is a valid concept. It’s reasonable to ask what the consequences might be, even on future laws, but it has more value in asking how it might affect existing laws. Because laws are a product of politics and future politics are unpredictable, the limiting principle imagining of future ACA consequence is far more a political question.
Chief Justice Roberts correctly identified that political limiting principle in the ruling:
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
Within the context of the Republican challenge, one could take that as telling the Republicans to put up or shut up, but Roberts is talking about the political process in general, throwing the ball into Congress' court. It’s the Affordable Care Act he affirmed that offers a challenge to the Republicans, as it has what should be called the Put Up or Shut Up provision.
President Obama spoke of that aspect of the law in his brief post-ruling address:
“Now, if you're one of the 30 million Americans who don't yet have health insurance, starting in 2014 this law will offer you an array of quality, affordable, private health insurance plans to choose from. Each state will take the lead in designing their own menu of options, and if states can come up with even better ways of covering more people at the same quality and cost, this law allows them to do that, too. And I've asked Congress to help speed up that process, and give states this flexibility in year one.”
Under the current law, beginning in 2017 states can get waivers to opt-out of ObamaCare by implementing plans that meet the same objectives. Senators Ron Wyden (D-OR), and Scott Brown (R-MA) have cosponsored the Empowering States to Innovate Act to allow states to opt-out of the ACA in 2014, when the whole law takes effect. A companion bill has been introduced in the House, but given the behavior of the GOP it’s doubtful either bill will ever see a vote.
There was a good political excuse for Republicans shunning the Empower Act when their efforts were aimed at overturning the entire law. Now that the Court has ruled, their only excuse revolves around the campaign slogan of Repeal and Replace. Besides that being a quixotic quest, the public, in general, knows that even if the Republicans managed to repeal ObamaCare they would refer the job of replacement to their House subcommittee on Platitudes and Nostrums. After being debated and examined there, it would be bottled-up in the Committee on Healthcare Excuses and Placebos.
The Great Truth here is the Congressional Republicans would never expose their red state counterparts to the dangers of proving the Party’s free market healthcare ideas are nothing more than dogma and doggerel.
While the Individual Mandate puts the President in a bit of a bind, most Americans will agree with the Put Up or Shut Up “if you have a better idea, let’s see it” theme. It’s that popular sentiment that will put Romney in a trap, because the GOP’s market dogma – more of the failed ideas we’ve heard already – doesn’t allow real reform or efficient function. That’s why the Republicans can’t Put Up and, despite the public’s desire to move on now that the Court settled the issue, Romney’s unavoidable need to stroke the terminally outraged GOP Base means he can’t Shut Up.
The economy will remain the issue of most American’s primary concern, but when RomneyCare Romney starts barking Repeal, Replace and Republican healthcare dogma, the President should roll up the Put Up or Shut Up provision of the Affordable Care Act and swat him on the nose.
“Bad dogma! Bad, bad dogma! Shut up!”