Reward for GOP on Health Care - but Risk, Too

Yesterday's ruling by a Virginia federal district court judge that a portion of the health care law is unconstitutional was undeniably good news for Republicans, who got at least some cover for their longstanding claims that the overhaul reflects government overreach.

Opposition to the law has been a boon to the party: The GOP's victories in the midterm elections were driven in large part by opposition to the law among older Americans concerned with what it will mean for their care. Despite an aggressive sales job, the Obama administration has yet to see its prediction that Americans will warm to the reforms.

Republicans are now calling for the matter to be fast-tracked to the Supreme Court. That's not likely to happen, but the question of its constitutionality is almost sure to eventually make it there. When it does, it will be a pivotal moment for the country: A debate and decision in America's highest court over whether to turn back one of the defining policy initiatives of the Obama presidency.

The issue decided yesterday involved not the overall law but rather the part of it that mandates that all Americans have health insurance, known as the individual mandate. If the Supreme Court agrees with the Virginia judge that that tenet of the law cannot stand, it destroys a crucial plank of the overall legislation.

But what it does not do is invalidate the entire law - and therein lies a problem for Republicans, as Jonathan Chait notes. That's because the individual mandate is actually the health care industry's favorite part of the bill. The reason? If you tell health care companies they can't discriminate against people with pre-existing conditions, the industry needs some mechanism to make sure people don't simply decide not to buy health insurance until they get sick. That's what the individual mandate was designed to do - to eliminate the so-called "free rider problem" that arises when health care companies are no longer allowed to deny coverage to certain Americans.

A striking down of the individual mandate is thus a nightmare scenario for the health care industry, which would have to contend with the economic downside of the new law without the associated protections. The industry, which in the past year has put its money behind the GOP, would immediately pressure Congressional Republicans to act to remedy the situation.

But what could the GOP do? One option would be to allow consumers to opt-out of the mandate on the condition that they cannot opt back in for a set amount of time - but that would essentially mean lawmakers would have to maintain the structure of a law they have railed against.

Another alternative would be to move forward with their vow to repeal the law legislatively and replace it with something else. But that effort would come with a whole host of headaches. For starters, overcoming a Senate filibuster and potential presidential veto of a repeal bill would be a tall order, to say the least.

And even putting that aside, does the GOP really want to have the health care fight all over again - with Republicans now the ones with the targets on their backs? The issue is a political minefield: For starters, would they come out against the popular provision prohibiting discrimination against people with preexisting conditions? And if they don't, how will they placate a health care industry that has been denied the individual mandate thanks to Republican legal appeals?

Ultimately, the GOP may not have to deal with all this. The ruling from Republican judge Henry Hudson that the individual mandate is unconstitutional is coming under criticism from even conservative legal scholars, and two other judges have already found the mandate constitutional under the commerce clause.

From a political perspective, the best-case scenario for Republicans may be to keep fighting this issue all the way to the Supreme Court - and then lose. That would allow them to say they fought the good fight against the Obama administration's overreach without dealing with the messy reality that would come with having to craft an alternative solution.