The New Congress: A Three Dimensional Chess Game Begins| Hugh Hewitt |1.5.15

The new Republican Senate and the more-Republican House take office this week. Around this town, asked in one way or another, the universal question is, what difference will it make?

Yes, long bottled up legislation will start coming to the Senate floor. After the Democrats lost the House in 2010, President Obama and Senate Majority Leader Harry Reid entered into a pact and the Senate largely ceased to function. Even when Senator Reid allowed the upper chamber to consider legislation, he shut down floor amendments. The idea was to shield Senate Democrats from difficult votes and the President from revealing vetoes.

The media went along and talked about Washington gridlock, in effect saying a pox on both your houses. The truth was that the Democratic leadership at both ends of Pennsylvania Avenue had adopted an our-way-or-the-highway stance, with the inoperative Senate as their cover. But now that the cover is blown, will remaining Senate Democrats continue this no-compromise strategy?

The first test will be in the first vote that new Senate majority leader Mitch McConnell has vowed to bring to the floor – authorization of the Keystone pipeline. Hugely popular with the public, blocking Keystone has become an emblem of virtue with environmental extremists. Will Senate Democrats go with the country or go with their base? Will they filibuster or, if a filibuster doesn’t materialize, will they sustain a presidential veto?

They might. In the Senate class up for reelection next time, all but two or three of the Democrats are from solidly blue states. Not until 2018 will many Democrats from purple or red states be on the ballot. The base of both parties has a longer memory than do swing voters.

Whatever the outcome, the vote on the Keystone pipeline will be a test for what is sure to be the defining clash of this coming year – the battle over Obamacare.

On its own the Congressional GOP has zero chance of actually repealing and replacing the unpopular legislation in the next two years. But over the last few months this particular chess game has gone three-dimensional.

The Supreme Court will be hearing another Obamacare case in March. The last time the Court took up challenges to the legislation, it split, ruling 5-4 to sustain some of it and 6-4 to overturn some of it. The overturning was more damaging than was appreciated at the time. It denied the federal government a major bludgeon for compelling states to toe the Obamacare line, the ability to deny all federal Medicaid funds to states that declined to set up exchanges.

Unable to prevent states from opting out of Obamacare, the administration simply ignored the law and had the IRS open to everyone tax breaks that Congress had reserved for residents of participating states. By universal consent, if the justices overturn this particularly naked example of executive legislating, Obamacare will be reduced to a shell and, as the phrase goes, fall of its own weight.

I have written before of my view that in 2012 what saved before the Court the sustained part of Obamacare was not the constitutional rigor of the legislation itself. Rather it was the Chief Justice’s determination not to have a left-right constitutional confrontation with the administration on its signature issue months before a presidential election. Democrats continued to nurse a partisan grudge against the Court going back to the election of 2000 and Bush v. Gore. I believe that Chief Justice Roberts was convinced that another 5-4 (conservative justices v. liberal justices) politically charged outcome that ran against the Democrats would compromise the Court’s legitimacy with a large part of the American electorate. This consideration wasn’t in play for the part of the law the Court overturned, as liberal justices broke ranks and, in any event, political passions about the Medicaid payment issue were not running high.

This year, none of those extra-judicial issues is in play and even administration defenders concede that the IRS interpretation of the Act runs directly against its plain language. The Court won’t be asked to wade into constitutional territory this time, just to abide by universally accepted rules of legislative interpretation.

But there is a catch – and here is where the new Congress comes in. Many close observers believe that the justices will be loath to overturn the national healthcare system if there is no clear replacement waiting in the wings. In other words, yes, the President is sure to veto any Obamacare alternatives that reach his desk prior to the justices handing down their ruling in, as is likely, June. But if Senator McConnell and Speaker Boehner can pull together enough votes from both sides of the aisle to demonstrate that after a ruling there will be no deluge, the Court and in particular the Chief Justice will take the plunge.

So the differences from the last Congress to this one could be huge. As I say, the game is three-dimensional chess. It begins with the swearing in of the new Congress on Tuesday.