What Happens If ObamaCare Is Unconstitutional?

The right's opposition to the Brown-Wyden state flexibility concept on the grounds that basically they just want people to have less insurance coverage returns me to the question of why, exactly, conservatives think it's smart conservative policy to engage in root-and-branch opposition to the Affordable Care Act. As Jon Cohn and Kevin Drum point out, the "Bronze" plans envisioned under ACA are pretty similar what conservatives say they want. Similarly, the Obama administration's excise tax on high-cost insurance plans is pretty similar to ideas John McCain campaigned on.

I bring this up not to level an accusation of hypocrisy but just to point out the failure to bargain. If conservatives think the mandatory minimum benefits package in the Affordable Care Act is somewhat too generous, an excellent time to bring this up would have been when Max Baucus was desperately trying to scrounge up some Republican votes for the bill.

Instead, they're putting their eggs in the judicial basket hoping to get the whole thing thrown out of court. But what's the long-term game here? Obviously in the short run, that's a huge loss for progressives. But a couple of nights ago I saw Ron Bailey at a dinner and was reminded of his 2004 Reason article arguing for universal health care via an individual mandate. His key point in trying to sell this idea to libertarians was to observe that as of 2004, the US was slowly slipping down a slope to single-payer health care. That was true then, it was true when Barack Obama got elected, and if the ACA is thrown out in court it'll go back to being true. In fact, it'll be truer than ever. Lots of left-of-center people became convinced during the 2000-2008 period that it wasn't necessary to invest energy in a decades-long crusade for single-payer health care because this alternative approach to universal coverage existed. If the Supreme Court strikes it down, then we'll have been proven wrong, and the single-payer campaigning will begin.

Which is just to say that if conservatives real beef with ObamaCare is that it's a bit too expensive and the minimum benefits package is a bit too generous, then it would really be win-win for them to actually say that and then political bargaining could re-commence.