With the backing of the the overwhelming consensus of legal scholars regarding the constitutionality of the Affordable Care Act, the United States Supreme Court on Thursday largely upheld President Obama's signature health care reform law.
June 28, 2012

With the backing of the the overwhelming consensus of legal scholars regarding the constitutionality of the Affordable Care Act, the United States Supreme Court on Thursday largely upheld President Obama's signature health care reform law. And with that stroke of a pen, Justice Roberts and the Court’s majority prevented the culmination of a decades-long conservative campaign to stop universal coverage at all costs.

For GOP leaders like Mitch McConnell the battle to "kill it and start over" wasn't merely about ensuring that "the single most important thing we want to achieve is for President Obama to be a one-term president." For twenty years, Republicans have feared not that health care reform would fail the American people, but that it would succeed. To put it another way, the GOP was never really concerned about a "government takeover of health care", "rationing", "the doctor-patient relationship" or mythical "death panels," but that an American public grateful for access to health care could provide Democrats with an enduring majority for years to come.

But what Utah Senator Orrin Hatch called a "holy war" to block health care reform didn't start when Barack Obama took the oath of office in January 2009, but instead when Bill Clinton was inaugurated in 1993. It was then that former Quayle chief of staff and Republican strategist William Kristol warned his GOP allies that a Clinton victory on health care could guarantee Democratic majorities for the foreseeable future. "The Clinton proposal is also a serious political threat to the Republican Party," Kristol wrote in his infamous December 3, 1993 memo titled "Defeating President Clinton's Health Care Proposal," adding:

"Its passage in the short run will do nothing to hurt (and everything to help) Democratic electoral prospects in 1996. But the long-term political effects of a successful Clinton health care bill will be even worse--much worse. It will relegitimize middle-class dependence for 'security' on government spending and regulation. It will revive the reputation of the party that spends and regulates, the Democrats, as the generous protector of middle-class interests. And it will at the same time strike a punishing blow against Republican claims to defend the middle class by restraining government."

And that, for Kristol, meant it had to be stopped at all costs:

"The first step in that process must be the unqualified political defeat of the Clinton health care proposal. Its rejection by Congress and the public would be a monumental setback for the president; and an incontestable piece of evidence that Democratic welfare-state liberalism remains firmly in retreat."

As the American Prospect recalled, Kristol's war plan:

Darkly warned that a Democratic victory would save Clinton's political career, revive the politics of the welfare state, and ensure Democratic majorities far into the future. "Any Republican urge to negotiate a 'least bad' compromise with the Democrats, and thereby gain momentary public credit for helping the president 'do something' about health care, should be resisted," wrote Kristol. Republican pollster Bill McInturff advised Congressional Republicans that success in the 1994 midterm elections required "not having health care pass."

So, Republicans and their media water carriers followed Kristol's advice to the letter. In the Senate, long-time health care reform supporter Bob Dole adopted Kristol's mantra, declaring "Our country has health care problems, but no health care crisis." Long before she introduced the easily debunked "death panels" fraud, Betsy McCaughey almost single-handedly undid the Clinton health care reform effort with the false claim that "the law will prevent you from going outside the system to buy basic health coverage you think is better." In 1993, GOP Senators Hatch and Chuck Grassley, among those who would 16 years later call the ACA's individual mandate unconstitutional, joined 19 other Republican Senators in proposing their own bill that "would have required everyone to buy coverage, capped awards for medical malpractice lawsuits, established minimum benefit packages and invested in comparative effectiveness research." (As Hatch later justified his turnabout, "We were fighting Hillarycare at that time.")

The rest, as they say, was history. At least, that is, until history began repeating itself with the election of Barack Obama.

The dire warnings from the right began within days of Obama's election. Michael Cannon of the Cato Institute parroted the think-tank's claim that Obama's health care proposal is "socialized medicine" and sounded Kristol's old clarion call:

"Blocking Obama's health plan is key to GOP's survival. Ditto Baucus' health plan. And Kennedy's. And Wyden's."

Approvingly citing Norman Markowitz' assertion at PoliticalAffairs.net that "national health care [and other measures] will bring reluctant voters into the Obama coalition," Cannon fretted that "making citizens dependent on the government for their medical care can change the fates of political parties." For arch conservatives, that formula spells trouble for the GOP.

James Pethokoukis of the American Enterprise Institute also picked up Kristol's baton. Concerned that "creating the Obamacare Class would pull America to the left," Pethokoukis echoed Cannon's obstructionist line. Writing in US News, he recounted the grim warning from a Republican strategist who told him:

"Let me tell you something, if Democrats take the White House and pass a big-government healthcare plan, that's it."

Just two weeks after Barack Obama was sworn in, Kristol left no doubt that he believed the Republican Party should repeat the obstructionism that destroyed the Clinton health care plan in 1993 and 1994. GOP leaders in Congress, Kristol told Fox News' Neil Cavuto, should emulate the roadblock Republicans of the 1990's to halt Obama's economic recovery package now and everything else - including health care reform - later:

"But the loss of credibility, even if they jam it through, really hurts them on the next, on the next piece of legislation. Clinton got through his tax increases in '93, it was such a labor and he had to twist so many arms to do it and he became so unpopular...

...That it made, that it made it so much easier to then defeat his health care initiative. So, it's very important for Republicans who think they're going to have to fight later on on health care, fight later on maybe on some of the bank bailout legislation, fight later on on all kinds of issues. It's very important for them, I think, not just to stay united at this time, though that's important, but to make the arguments."

Of course, the arguments Republicans made during the right-wing's health care "hissy fit" of 2009 and 2010 were all specious ones. Senate Minority Leader McConnell, who previously denied that 47 million Americans "go without health care" because they can go to the emergency room, repeated his mantra that "all of us want reform, but not reform that denies, delays, or rations health care". "Death panels" became Politifact's 2009 Lie of the Year. In 2010, that bogus GOP talking point lost its title to another, "government takeover of health care."

But when they weren't inventing "facts" out of whole cloth, the GOP's best and not-so-brightest in rare moments of candor gave away the Republican game on health care reform. In November 2009, Senator Hatch confessed his darkest fear about a Democratic win on health care:

HATCH: That's their goal. Move people into government that way. Do it in increments. They've actually said it. They've said it out loud.

Q: This is a step-by-step approach --

HATCH: A step-by-step approach to socialized medicine. And if they get there, of course, you're going to have a very rough time having a two-party system in this country, because almost everybody's going to say, "All we ever were, all we ever are, all we ever hope to be depends on the Democratic Party."

Q: They'll have reduced the American people to dependency on the federal government.

HATCH: Yeah, you got that right. That's their goal. That's what keeps Democrats in power.

In August 2011, the very short-lived GOP White House frontrunner Michele Bachmann echoed the point that the successful entrenchment of health care reform would be mean a permanent Democratic majority. As CNN reported, Bachmann explained why at a campaign event in South Carolina (around the 1:41:00 mark in the video):

Bachmann stressed the need to repeal President Obama's health care reform law, or so-called Obamacare, before it "metastasizes" like a cancer and "we will not be able to get rid of it." "You can't put socialized medicine into a country and think that ever again you can elect a Republican as president - or a conservative or even a tea partier as president - and think that somehow we're going to get back to limited government," Bachmann said. "It won't happen because socialized medicine is the definition of big government."

It's no wonder that after President Obama signed the Affordable Care Act allowing adult children to join their parents' policies, ending lifetime caps, prohibiting insurers' bans on pre-existing conditions, enabling over 30 million Americans to get insurance cover and more, conservative analyst and former Bush speechwriter David Frum admitted as much, announcing "Conservatives and Republicans today suffered their most crushing legislative defeat since the 1960s."

Still, Republicans acted quickly to ensure that the Democratic victory on health care reform would only be a temporary one. As Ezra Klein detailed this week, Republicans not only turned their backs on their individual mandate they used in the 1990's to help bludgeon the Clinton health care reform, they branded it unconstitutional. Then, the entire conservative infrastructure of Fox News, right-wing radio, Republican think tanks, deep-pocketed sugar daddies and Tea Party shock troops mobilized to provide the Supreme Court with the air cover to overturn a law in the face of 75 years of legal precedent. Since the March 2010 passage of the ACA, conservative groups outspent liberal ones on health care reform advertising by $235 million to $69 million, a staggering three-to-one margin.

The result, as polling has consistently shown, is that Americans are opposed to so-called "Obamacare," even though they back almost every provision but one - the mandate - by large margins. While Reuters found this week that 61 percent oppose the individual insurance mandate (compared to 56 percent for the ACA as a whole), the rest of the bill's specific features enjoy broad support, even among Republican voters. The Republicans' triumph in sowing fear, confusion and doubt what's actually in the bill, in amplifying the few judicial wins opponents enjoyed and successfully diverting the media discussion from the substance to the politics of the law has been near-total:

During a recent visit to a Tennessee clinic, Alec MacGillis captured the dynamic when he asked one patient with serious health troubles and no health insurance about the Affordable Care Act and the looming Supreme Court decision. Her response?

"What new law?"

Barack Obama's ink wasn't even dry of the Patient Protection and Affordable Care Act when Bill Kristol made this prediction:

"People are concerned about the future of this country and they think this bill is bad for it by a majority, and I believe that will be the Republican message and the Republican message will be a responsible one to repeal this bill and replace it with better health care reforms and to get a handle on the debt, which this bill increases...The American public are going to insist on its repeal over the next three years. We are! I predict in 2013 the bulk of this will be repealed and replaced with better health care legislation."

That remains to be seen. But despite Minority Leader McConnell's refrain of "we need to start over," his Republican Party has shown no signs of coming up with a replacement. As Iowa Rep. Steve King put it, House Republicans should "resist the urge to fill a policy void."

In any event, on Thursday the most conservative Supreme Court in decades stopped short of putting President Obama's Affordable Care Act to the sword, enabling the Democratic Party to add health care to Social Security and Medicare as the third pillar of America's post-New Deal social contract.

And no doubt, Bill Kristol is not happy. After all, the dream of near universal coverage for the American people is the GOP nightmare scenario Kristol and his Republican allies have been fighting to avoid for over 20 years.

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