For nearly three years, my good friend Ilya Shapiro frequently proclaimed Obamacare Delenda Est (“Obamacare Must Die”). Even last week before the election, Ilya wrote an op-ed describing how he is still not over the Obamacare case. I gather Ilya is not alone.
After the election, I think it is safe to say that the challenge is over. Done. Finished. Kaput.
On election night, after it was clear Romney would concede, I emailed my agent, and said “Well, now I know how my book will end. Obamacare is not going anywhere. Though, I think this makes for a nice, clean ending of this story which fit snugly into Obama’s first term.”
Speaker John Boehner said so himself:
House Speaker John Boehner made it official Thursday: Obamacare isn’t going anywhere.
In an interview with ABC News, Boehner seemed to suggest the election ended any efforts to wipe out the whole law. When “World News” anchor Diane Sawyer asked if there would be any more votes to repeal the law, Boehner said “the election changes that” and “Obamacare is the law of the land.”
He said, however, that some parts of the law should still be on the table when lawmakers start negotiating a deficit deal.
Indeed, challenges remain against the ACA on religious liberty grounds, origination clause grounds, and others. And I’m sure there are ways to attack the funding of the program.
Though, I think it would be healthy for people to start bracing themselves for the fact that Obamacare is here to stay (at the least the individual mandate). To the extent that courts watch elections (a point I discuss in my book), the 2012 election does not augur in favor of successful legal challenges. Chief Justice Roberts made that point quite clear with his vote.
This program very well may become economically untenable at some point in the future, and implode on its own demerits, but the courts will not be the vehicle to opposing this law.
I think recognizing that it is over will facilitate the healing process.
Update: Peter Suderman at Reason discusses some of the fiscal problems with the now-entrenched Obamacare, and issues a similar call to get over it:
When they passed the ACA, they were highly optimistic about the timeline for states to implement exchanges.” Highly optimistic is one way to put it. Delusional might be another. Those who oppose Obamacare are going to have to learn to live with the law. But those who support it are going to have to learn to live with its inevitable failures.