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The Moment of Truth Has Arrived

After months of speculation, we will all know how the Supreme Court will rule on the ACA this morning. Every conceivable scenario has been offered so far, from Chief Justice Roberts wanting to secure his legacy by voting to uphold the entire law to the five conservative justices foisting their political opinions on the country to the dismay of the four liberal justices. Only the Court knows what they will do until midmorning. Everything else is just wild guessing.

What is not wild guessing is the history of the attempts to provide universal health care in the United States. President Harry Truman tried and failed in 1945. President Lyndon Johnson, the master of the Senate, twisted enough arms and other body parts to get Medicare through Congress in 1965. While it didn't provide universal health care, it did provide care for seniors. Johnson, the consummate politician, apparently thought this was the best he could do.

The next major attempt was from President Richard Nixon, who issued a proposal in 1974. The core of the proposal was an employer mandate, requiring nearly all businesses to offer health insurance to their employees. He didn't get it passed.

In 1989, the very conservative Heritage Foundation took up the problem and looked for a conservative solution. What they came up with was a plan to have everyone covered by making them buy insurance from a private insurance company. It was obvious to them that this was constitutional since big insurance companies all engage in interstate commerce. This plan had the huge advantage from their point of view that it left the entire health care system in the private sector, with no government involvement. It also meant big profits for the insurance companies. What else could you ask for? Sen. Don Nickles (R-OK), a very conservative senator, introduced a bill with the Heritage Foundation plan in 1993. It didn't pass.

In 2006, then-governor Mitt Romney of Massachusetts advocated passing a modified version of the Heritage Foundation plan in Massachusetts. The state legislature tweaked it a bit, but it passed in 2006.

In 2009, President Obama thought the easiest way to get the Republicans to support a health-care plan was to use theirs, so he proposed Romney's plan on a national scale. By doing this, he demonstrated that he was no Lyndon Johnson. The Republicans closed ranks to oppose their own plan, just to avoid giving Obama a big victory. None of the opposition at the time had anything to do with its constitutionality. Even the most conservative legal scholars agreed with the Heritage Foundation that regulating the massive insurance industry fell under the interstate commerce clause. Only after the bill passed and Republicans began looking for a way to get rid of it, did the constitutionality come up as a possible angle.

One of the reasons that conservative legal scholars didn't think a case could be made on constitutional grounds is the 2005 Gonzales v. Raich case. In this case, the Court ruled that Angel Raich's growing medicinal marijuana for his own personal use under his doctor's instructions constituted interstate commerce and Congress had the power to overrule the California law allowing cultivation of marijuana for personal medical use. At the time of the decision, many legal scholars were surprised at the concept that growing your own (legal) marijuana with no intention of selling it at all, let alone interstate, somehow constituted interstate commerce. But that is how the court ruled. This led most Court observers to believe that the Court had a very expansive definition of interstate commerce and if growing your own marijuana was interstate commerce, then certainly something that affected 18% of GDP was going to be interstate commerce. We will find out if that is true later today. If the Court rules against the ACA, it will especially interesting to see how the majority reconciles the decision with Gonzales v. Raich..

In summary, the Republican opposition to ObamaCare (a.k.a. RomneyCase a.k.a HeritageCare) is purely political since it was their plan to start with. If a Republican senator had introduced it during either Bush administration it would have sailed through Congress with a huge bipartisan majorities. After all, 40% of the Republican senators voted for Medicare, which is essentially socialized insurance and goes much further than ObamaCare.

One of the many things that Obama did wrong in this whole matter is fail to emphasize that the ACA was rooted in a long-standing conservative plan that Republicans had supported for years. Only after his election did they begin to oppose it. That alone might well turned the tide on public opinion, which now opposes the plan by roughly 15%, although 15% of the people who oppose it do so because they want a Canadian-style single-payer system.

Please note: I will NOT update this page today after the decision. It will take time to digest the decision and the reactions. Please come back tomorrow.

Today's Presidential Polls

State Obama Romney   Start End Pollster
Arizona 41% 54%   Jun 26 Jun 26 Rasmussen
Florida 45% 41%   Jun 19 Jun 25 Quinnipiac U.
Massachusetts 55% 39%   Jun 22 Jun 24 PPP
Ohio 47% 38%   Jun 19 Jun 25 Quinnipiac U.
Pennsylvania 45% 39%   Jun 19 Jun 25 Quinnipiac U.

Today's Senate Polls

State Democrat D % Republican R % I I % Start End Pollster
Florida Bill Nelson 41% Connie McGillicuddy 40%     Jun 19 Jun 25 Quinnipiac U.
Ohio Sherrod Brown 46% Josh Mandel 39%     Jun 21 Jun 24 PPP
Ohio Sherrod Brown 50% Josh Mandel 34%     Jun 19 Jun 25 Quinnipiac U.
Pennsylvania Bob Casey 49% Tom Smith 32%     Jun 19 Jun 25 Quinnipiac U.