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Outside editorial: Supreme Court may offer lawmakers a second chance to get health reform right

America deserves better than partisan squabbling

Posted: April 2, 2012 - 12:00am

The following editorial appeared in the Chicago Tribune:

For three days this week, the U.S. Supreme Court has slapped on the table a serious possibility that defenders of the Patient Protection and Affordable Care Act never envisioned: A ruling that the heart of the law — a mandate that all Americans buy health coverage — is flatly unconstitutional.

Judging from the line of skeptical questions fired by the justices, we can count as many as six potential votes to kill the mandate.

The court may go much further. On Wednesday, several of the court’s conservative justices suggested that they are willing to strike down the law entirely, including its massive Medicaid expansion.

“One way or another, Congress will have to revisit it in toto,” Justice Antonin Scalia said of the health law.

One way or another.

That should be a clarion call in Washington. The prospect that the court will strike down all or part of the law known as Obamacare hands political leaders of both parties a formidable challenge — and a vast opportunity: a second chance to get health care reform right.

The law isn’t scheduled to fully kick in until 2014. Plenty of time for a reset — a reset that both major parties have an obligation to deliver.

Democrats have been assuming that the law would be upheld by the court and that the American people would come to love it as they learned about it. Neither seems likely now.

Republicans have been chanting, “Repeal and replace.” But now there’s more urgency behind the question: With what? Republican pols came up with several smart ideas during congressional tussles before passage of this bill two years ago, but those never gelled into a coherent, compelling and competing bill.

The court is expected to rule in June. Between now and then — and possibly after the justices rule as well — Democrats and Republicans have a choice: They can continue to cast blame on one another but otherwise dodge this issue until after November’s election. Or they can dwell on the millions of Americans who need health care coverage.

Politicians of the first persuasion, who see the upcoming ruling as nothing more than ammunition for election-year attacks, invite voters to show them the door. What problems are they solving?

We instead hope that lawmakers — Democrats chastened by the court’s skepticism, Republicans who now have to deliver an alternative to Obamacare — will work together toward a bipartisan health care reform law. A law that carefully and affordably expands care.

Obamacare failed to do that. Instead, Americans got a law shoved through Congress by Democrats. A law that required an array of especially noxious backroom deals — Remember the “Cornhusker Kickback” to bribe a Nebraska senator? — to gain the required votes. A law whose unaffordable price tag was intentionally disguised by the sponsors’ accounting gimmicks and smoke-and-mirrors projections.

That’s a big reason why many Americans still don’t like the law.

Every politician in America — President Barack Obama and the Republicans campaigning to replace him included — should be ready for this question: The Supreme Court — or the next Congress — could kill Obamacare. What are your ideas for a better way to expand coverage without breaking the bank?

Republicans: “Told you so” isn’t an answer. You need an understandable and solutions-oriented explanation of the “replace” in “Repeal and replace.”

Democrats: “Obamacare minus the mandate is just fine” isn’t a solution. The mandate was part of the law’s central bargain: Everyone would buy coverage, and in exchange, insurance companies would cover all Americans, regardless of pre-existing conditions. Without the mandate, health premiums soar or insurance companies collapse. That’s unhealthy for all Americans.

Our goal here isn’t to predict the court’s decision. It’s to assure that whatever the health reform law’s fate, political leaders of both parties promptly respond with the best possible plan.

It will be hugely embarrassing to Obama and his party if the court strikes down the signature achievement of his presidency. But if that happens, he should respond with Plan B — and this time, don’t trust the law-drafting entirely to Congress.

Remember how Obama gathered Republican and Democratic leaders for a televised health care summit in 2010, in what he billed as an attempt to share the best ideas for reform? In the end, the Republican ideas wound up on the cutting-room floor. Democrats didn’t just squander many good proposals. They turned health reform into a purely partisan exercise.

That said, Obama’s Republican challenger will need more than slogans to convince voters. He’ll need a realistic rationale for why his alternative plan will attract Republican and Democratic votes on Capitol Hill.

Lawmakers, candidates: Don’t wait to see if the court really does hit the reset button. Start the debate now.

Americans are listening. And expecting you to perform better than you have in the past.

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