Health care reform or high court reset?

The anguished and incomplete American struggle to achieve health care reform (HCR) is now 100 years old. In 1912, President Theodore Roosevelt’s Progressive Party platform called for “the protection of home life against the hazards of sickness.” From Teddy Roosevelt to Barack Obama, presidents of both parties have sought the Holy Grail of HCR. None of them has found it. And, as the costs of health care have spiraled upward and our society has grown much older, the nation now stands on the edge of an economic abyss. The reality is that today health care costs are threatening to destroy the federal government.

The costs of health care are now more than onesixth of the nation’s GDP, and those costs are rising much faster than any other major component of the national economy.

Federal spending for Medicare and Medicaid is the largest item in the federal budget. It’s over $832 billion this year — larger than Social Security, defense or interest payments on the national debt. The nation’s unfunded liability for Medicare and the new prescription drug program is in excess of $100 trillion dollars — that’s trillion with a “T.”

Right after he took office, President Obama made the enactment of HCR his top priority.

The battle raged for 15 months. It tore the nation in half. It produced a bill that only Democrats supported.

The law President Obama signed is 2,300 pages in length, has more than 10,000 pages of regulations, and none of us understands it. The latest CBS/New York Times poll shows that only 26 percent of the American people support Obamacare.

The fundamental problem with Obamacare is that it’s too light on reform and cost containment, and too heavy everywhere else. More importantly, it raises profound constitutional issues.

American history teaches us that major social legislation cannot be successfully implemented in the absence of at least a modicum of bipartisan support. In case you’ve forgotten, 97 Republicans voted for Social Security in 1935, and 83 Republicans voted for Medicare in 1965. Thus, it’s no surprise that the constitutionality of Obamacare was immediately challenged in court.

And now the Supreme Court has concluded an unprecedented three days of oral arguments on the constitutionality of the law. Now the nation will hold its collective breath until the High Court renders judgment this summer. The stakes, political and constitutional, could not be higher. The high court’s ruling will not only significantly influence the outcome of the 2012 election, it may also create the conditions that force painful, yet urgently necessary, decisions to rein in skyrocketing health care costs. But most importantly, the court’s rulings may set limits on the federal government’s authority to regulate individual behavior through the Constitution’s commerce clause.

Three blockbuster issues are at the heart of this dispute. The first is whether the individual mandate in the law that would force individuals to purchase health insurance is or is not permissible under the Congress’ authority to regulate interstate commerce. The second is whether the court will strike down all of Obamacare if it finds the individual mandate unconstitutional. And the third issue is whether the gigantic expansion of Medicaid that Obamacare imposes on the states is or is not consistent with the Constitution’s concept of federalism.

Prior to the oral arguments this past week, most constitutional scholars had anticipated that the law would be upheld. But now that appears to be in doubt. Justice Anthony Kennedy has been the swing vote on numerous cases before the high court. His questioning of Solicitor General Donald Verrilli, whose job it was to defend Obamacare, suggests that Kennedy may be poised to strike down the individual mandate.

Kennedy’s questions suggest that he believes the individual mandate “changes the relationship of the federal government to the individual in a very fundamental way,” thus giving Congress with what amounts to unlimited power.

Chief Justice Roberts echoed this same concern when he said, “Once we accept the principle, I don’t see why Congress’ power is limited.”

If the Supreme Court strikes down Obamacare this June, it will trigger a political earthquake across the landscape of the 2012 election.

If Republicans have any sense at all, they will keep their options open between now and then. It’s essential for the GOP to get beyond the conclusion of their primaries in early June without allowing any candidate to amass the 1,144 delegates needed to wrap up the nomination.

Even if you discount all of Mitt Romney’s flaws, and I don’t, there is no doubt that he’s joined at the hip to the individual mandate because of Romneycare in Massachusetts. That makes him damaged goods.

The GOP needs to let the court reach its decision, and then pick a fresh face in Tampa.

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