However Justice Kennedy votes, the Supreme Court's action will not end the health care debate. A partial (seems likely) or complete (possible) overturning of Obamacare will leave a large mess to be cleaned up. Likewise, affirmation would leave a large mess and a central election issue.
There is more than a little truth to Rick Santorum's claim that nominating Mitt Romney puts at risk a major issue on which the voters side 56 to 39% with the Republicans - but only if Romney plays defense and does not follow "Repeal" with "Replace". This is one subject about which Mitt Romney has a deep understanding, and one which plays more easily in the election than in the primaries. Lets hope that by summer he plays offense with a proposal about like this:
1. Obamacare has shown the dangers of a government take-over of health care in terms of intrusion into individual liberties, real financial costs, and an unacceptable burden on businesses and jobs. We need to start over, regardless of the Supreme Court's decision. But we will start over.
2. RomneyCare 3.0 (probably not a term that he will use) will be based on several realistic principles:
a. The demand for health care is infinite. The question is whether it is rationed by the government ("death panels") , by private entities (employers; insurance companies); or by the individual (health saving accounts; choices on scope/cost of insurance purchased; co-pays). Republicans favor more decisions by the individual and fewer by the government.
b. Our society can afford a minimum level of medical care for all citizens. It is best to not have this occur in the emergency room. A voucher or tax credit system would cover all citizens and leave decisions in their hands. Citizens who wish to should be able to pay more for greater coverage as with Medicare.
c. Our current system is unnecessarily expensive. Medicaid should be structured as block grants to the states who would set their own parameters. Insurance should be purchased across state lines. Tort reform is needed to limit the cost of lawsuits and unnecessary tests. Federal agencies should be allowed to negotiate with pharmaceutical companies. Employer plans should be voluntary. In short, all of the special interest compromises to buy support for Obamacare should be voided.
The Democrats are hoping that the public is tired of this discussion, that the amount of confusing detail and conflicting claims will prevent voters from re-thinking the controversy of 2009 - and that the simple alternative is "Medicare for All". What is needed by the Republican candidate is not cautious abandonment of the issue in the election - what is needed is a set of clear principles and good speechwriters. It would also help if there were a specific bill for John Boehner and Mitch McConnell to pass and President Romney to sign early in 2013.
This week's "bonus" is the brief section of Justice Anthony Kennedy's discussion of the "individual mandate" in which the swing vote seems to lean heavily against the Obama administration's lawyer - who incorrectly calls him the Chief Justice.