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Court Can’t Kill Health Reform Without Collateral Damage: View

Oct. 4 (Bloomberg) -- The commentariat can’t decide whether to give the Obama administration points for audacity, or to question its sanity. The Justice Department has asked the Supreme Court to rule on the constitutionality of its health-care reform sooner rather than later.

If the court takes up the challenge, it could deliver a decision before the end of its current term in June. That would be just in time to assure that health care will be a major issue in the presidential campaign.

Should the Supreme Court take up health-care reform this year? So far, only one appeals court has ruled that the “individual mandate” in Obamacare -- the requirement that virtually everybody must buy insurance, with government assistance if needed -- overreaches the federal government’s powers under the commerce clause of the Constitution. It’s not a trivial argument. But an affirmative ruling would be a huge departure from our understanding of the commerce clause going back to the New Deal.

If the health-care law’s individual mandate is unconstitutional, so is much of what the government has been doing for 80 years or so, and it will be the duty of the Supreme Court to sort through the ruins of the federal government as we know it and find a few shards to start building again. We can’t help suspecting that the court will choose to avoid this opportunity, by not taking the case, by finding some other grounds for ruling, or by upholding Obamacare.

Ever since it passed in 2010, Obamacare has been attacked as a costly and possibly unconstitutional intrusion of the federal government into people’s lives. Almost the central issue in the campaign for the Republican presidential nomination has been the resemblance between Obamacare and the state health-care plan enacted in Massachusetts under then-Governor Mitt Romney. Today, most Democrats feel the less said the better. But if the new law loses in the Supreme Court, the political ramifications may look very different.

If the Supreme Court kills health-care reform, it will stay dead a long time. It took 17 years before anybody felt like scaling that mountain again after Hillary Clinton’s failure two administrations ago. The Republican who was president for almost half that time made no effort. No prominent Republican presidential candidate made it an issue, nor did Republican leaders in Congress push legislation.

If we wake up one day in June with no health-care reform and no prospect of getting it, who will cheer? Not the 40 million or so Americans who don’t have insurance now. Not the millions more with pre-existing conditions that leave them jobless or clinging to jobs they may not like. Not many of the doctors and nurses who labor in the current mess of a health-care system. Obama may figure that he’s going to pay for the real and imaginary burdens his major legislative accomplishment will impose. He might as well start people thinking about the benefits.

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