What does Obama’s reelection mean for Obamacare?

Republican candidate Mitt Romney claimed that his first act as president would have been to repeal Obamacare, but that was always at best an unrealistic aspiration, particularly for a candidate who more or less invented Obamacare. A more likely outcome would have been some moderate tweaking with the basic structure of the PPACA. True, one way that  Republican victory at the national level might have brought real change to Obamacare is that it might have given state officials a stronger political will to resist the implementation of the Act—and particularly to resist the establishment of so-called “exchanges,” the government-operated faux markets on which citizens will be forced to choose between government-mandated options for health insurance. These exchanges are designed to look enough like actual markets that people will be fooled into thinking they have a choice, and the state involvement in these exchanges is meant to look as though they’re good for federalism and local control. In fact, states lose more control if they participate than if they refuse. If states had the will to stand aloof, the federal government would have to establish exchanges of its own—which it probably lacks the ability to do—and that would likely buy time for real change. That’s still a possibility, but given a second Obama term, the states are now much more likely to collaborate in these steps toward government-operated health care.

Of course, the longer Obamcare remains on the books, the more entrenched it becomes, and the harder it will be to liberate the health care market and to empower consumers. As more people become dependent on government programs, they become a natural constituency for the status quo. And as the insurance industry and government become further entangled, it becomes harder for real reformers to get past the coalition of politically influential insurance companies and government officials who are buddy-buddy with insurance tycoons. All entitlement reforms face these kinds of problems: too many people benefit from the unjust and economically inefficient current regime, and anyone who proposes a new idea is shouted down by cynical advertisements that trot out sympathetic sick people and say “they’re trying to kill grandma!”

That said, here are some reasons for optimism. As my colleague Christina Martin reminded us yesterday, ours is not a winner-take-all democracy, but a constitutional system of separated powers. A Republican House and a closely divided Senate can help resist efforts to expand programs further, and the judiciary still stands as a check against legal abuses. The Constitution was written to serve as a shield for those who lose at the polls, and the courts are there to make that shield effective. Now, more than ever, our efforts in the courts must go forward.

The worst thing that conservatives and libertarians could do at this point is to continue the self-defeating and constitutionally ignorant rhetoric of “judicial restraint” or “judicial modesty” that has allowed the left to evade, ignore, and violate the Constitution for decades now. In the Obamacare cases earlier this year, that rhetoric played a central role in undermining constitutional challenges to the PPACA—and resulted in a decision that nobody, not the losers or the winners, accepts. If libertarians and conservatives choose instead to respect the role of courts as active participants in our constitutional system, we can help force the Administration to stay within its constitutional boundaries.

But in the end, there is only one kind of change that really matters, and that is cultural, philosophical change. The Constitution will not work if people do not believe in its principles and cherish its protections. As a wise person once said, the only day on which an election is not decided is election day—the election is decided in the weeks, months, and years before then, when people choose their political values. If we hope for real reform and if we want to realize the Constitution’s promises, the real work must be done not in political campaigns in four-year cycles, but in classrooms, in churches, in businesses, in libraries every day—wherever and whenever citizens assemble to discuss the foundations of our Constitution: equality, liberty, and the right to run our own lives. Our work in the courts must go hand in hand with your work as a citizen to articulate and defend constitutional values. That is the only real source of reform, and the only real foundation for our law.

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