Fred Barnes is executive editor of The Weekly Standard.
When U.S. District Court judge Roger Vinson struck down President Obama's health care program as unconstitutional, the White House declared the decision an "outlier." It was anything but that. The ruling on January 31 was in harmony with limits the Supreme Court has imposed on the use of the Constitution's commerce clause to justify far-reaching legislation by Congress. And it came as the assault on Obamacare has expanded to many fronts — the courts, Congress, statehouses, the small business community, and the grass roots, where tea parties and the small-government movement are energetic.
What began in 2009 as scattered protests against Obama's plan for overhauling America's health care system and soon became the touchstone for Republican victories in the November 2 election has now evolved into a national uprising. Last week's refusal by the Senate to ratify the House's repeal of Obamacare is unlikely to quell the uprising or even slow it down.
Look at the courts. The case before Vinson was brought by Florida and 19 other states. After the election, six more states joined as plaintiffs. In a separate lawsuit brought by Virginia, a federal judge ruled the heart of Obamacare — the mandate that every American purchase health insurance — unconstitutional.
So that's two federal courts involving 27 states. Twelve of them were won by Obama in 2008: Iowa, Maine, Ohio, Wisconsin, Colorado, Indiana, Michigan, Nevada, Pennsylvania, Washington, and Florida. Though it was mostly Republican state attorney generals who embraced the legal attack (four are Democrats), their efforts have failed to ignite significant pro-Obamacare demonstrations in their states. This should worry Obama.
Turn to Congress, where the November election has changed the balance. In 2010, Obamacare got 219 votes as it narrowly passed the House and 60 votes in the Senate. In the new Congress, 242 Republicans and 3 Democrats voted to repeal it. Another 10 Democrats voted no in 2010 but declined to support repeal. That's a total of 255 anti-Obamacare members of the House.
In the Senate, 51 Democrats voted against repeal. But several appear willing to repeal parts of Obamacare. Senator Ben Nelson of Nebraska, for example, wants to find an alternative to the individual mandate. How many Democrats might join Nelson is unclear.
But being identified with Obama-care is risky. In an analysis for the Stanford Institute for Economic Policy Research, David Brady of the Hoover Institution found Obamacare contributed significantly to the defeat of at least 20 House Democrats who had voted for it.
So Congress is on the brink. If a Republican wins the White House in 2012, a gain of three Republican senators will be enough for repeal through the reconciliation process. If Obama is reelected, it will take a gain of four. And three or four Republican pickups in 2012 are quite achievable.
Unless Vinson's decision is stayed by the 11th U.S. Circuit Court of Appeals, officials in some states are eager to stop complying with its regulations and other obligations. Wisconsin attorney general J.B. Van Hollen told the Senate Judiciary Committee last week his state considers Obama-care to be dead. Governor Rick Scott of Florida said he won't take steps to implement the health care law.
Governors are also upset by the law's "maintenance of effort" provision barring the tightening of eligibility requirements for Medicaid. Health and Human Services secretary Kathleen Sebelius last week rejected an appeal by 33 Republican governors to waive the provision, which will add billions to state budgets.
The business community is still another adversary of Obamacare. The views of CEOs for big companies are mixed, but small businesses are strongly opposed. The National Federation of Independent Business, the influential small business lobby, was part of the lawsuit before Judge Vinson and filed its own amicus brief.
But it's at the grassroots that Obama's health care program is most unpopular. Its poll numbers fell in 2009, worsened in 2010, and haven't improved in 2011. Senate majority leader Harry Reid claims that 80 percent of Americans oppose repeal, but that isn't even close to being true.
A CNN poll in January found that 50 percent favor repeal of all Obama-care's provisions. Quinnipiac put support for repeal at 48 percent, Gallup at 46 percent, both pluralities. And health care has become the issue uniting Republicans just as the party has gained, according to Gallup, a "net positive image" for the first time since 2005, 47 percent favorable to 43 percent unfavorable. A coincidence? I doubt it.
That's not all. Fifty-five percent in a Rasmussen poll in January back repeal, 54 percent would allow states to opt out of Obamacare, 60 percent said the health care law will increase the deficit, 58 percent believe it will increase the cost of health care, and 50 percent said the quality of care will decline.
Those numbers incentivize Republicans and independent conservative groups to keep the issue alive. House Republicans intend to repeal unpopular parts of Obamacare — the tax on medical devices, for example — and bombard the Senate with them. Several may pass.
But Republican senators aren't waiting on the House. Senator Richard Shelby of Alabama vowed last week to do "everything in my power to see that no taxpayer dollars are spent to fund this legislation going forward." He's the ranking member of the appropriations subcommittee dealing with health care. And Senators John Barrasso of Wyoming and Lindsey Graham of South Carolina proposed a bill to let states opt out of the individual mandate, the employer mandate, the Medicaid mandate, and the benefit mandates.
Besides the "outlier" claim, the White House accused Vinson of committing the sin of judicial "activism." That, too, wasn't true in the judge's case. Yet there's plenty of activism devoted to Obamacare. It won't stop until the president's health care law is dead or stripped of its key parts.