For all the champagne spilled at the Heritage Foundation yesterday, the Virginia health care ruling is a fairly small setback for the Obama administration on its winding path to the Supreme Court, which will make the final call on the constitutionality of the individual mandate.
With this in mind, I think it's important for everybody who feels strongly about the health care reform law -- from Jim DeMint to President Obama -- to think through what happens if SCOTUS sides with reform opponents. If it happens -- a big if -- then, in all likelihood, the mandate's out the window along with popular provisions banning discrimination against people with pre-existing conditions, and underwriting insurance based on medical history.
It would be really, really boneheaded for the White House to react by leading the charge for restoring the mandate on constitutionally firmer grounds (though there are ways to do that).
Instead, the White House would be smart to have a piece of legislation written and ready to send to Congress, which would simply restore the discrimination bans. Decry the Court's decision, and then demand that Congress act quickly to make sure these important patient rights aren't dragged down by activist judges. Something like that.
Then sit back and let Congress sort out how to forbid discrimination against people with pre-existing discriminations in a viable way. Let the insurance industry come begging for a new mandate, and, if it's so important, let them scare up Republican votes to get it passed. If they can't, then it's up or down on the very most popular piece of health care reform, and Republicans will have to decide how much they really want to repeal "Obamacare."
The White House seems fond of falling on its face by taking ownership of things they should let their nemeses demand -- the tax cuts in the stimulus bill, the individual mandate, offshore drilling, the federal pay freeze, etc. But if SCOTUS strikes the mandate, they'll have another chance to get it right.