About a Month to Obamacare Ruling

As we enter the Memorial Day weekend, the Supreme Court will be finishing its term in late June. There are still several cases to be decided, the biggest of which is the fate of Obamacare. From watching the Supreme Court for many, many years now, all I can say with certainty regarding any decision is that you really cannot tell how it will come down from the oral arguments. We can surmise certain votes, but many times there are surprises. Sometimes, the traditional conservative or liberal coalitions on the Court break down and you get some strange decisions, or plurality decisions that sometimes create more confusion than when the case reached the Court. Many times, what we conservatives or those liberals see as a slam dunk for our side turns out to be disappointment.

What makes this case more interesting than most is that it will occur in the midst of an important presidential election. A decision either way will become a campaign issue. There is no doubt that both sides have their talking points and strategy ready for any eventuality. For Obama, he stands at more of a disadvantage than Romney. After all, this is his alleged signature piece of legislation. For better or worse, the law is known as “Obamacare,” not the Affordable Care Act.

If the Court decides to uphold the law, then Obama can claim victory and adopt an “I told you so” tact towards Republicans and other detractors. That is, his signature piece of legislation stands, but at what political cost? Poll after poll have indicated that a majority of Americans do not like this law. People have seen their premiums increase and CBO estimates of the law’s final cost increase as more components kick in. It may be true that when certain aspects of the law are broken out from the whole, people are more accepting of those components. In fact, many of those components were items that Republicans had no objections to during the original debate. But, people do not view the law as the “Obama preexisting condition denial ban,” or the “Obama lets children stay on a parent’s insurance until age 26” law. They see, instead, the word “Obamacare” and they see the $1+ trillion price tag. Recently, Politico ran an article that three years later, one of the law’s purported goals- insuring more Americans- has simply not occurred. Also, they reported that many states are ill-equipped an not ready to set up insurance exchanges. Therefore, if the law is upheld, it clearly opens the law and Democratic solutions to the health care problem in America and particularly Obama to attacks by Romney. That is, Romney can exploit that general American dislike of the law to his advantage. At the very least, it would force Obama to spend more time defending the law rather than turning to economic issues and detract from his campaign strategy.

If the Court decides to strike down the law, then Republicans can claim victory…sort of. They will argue that while Obama dithered for the better part of a year on health care while the economy limped into a tepid recovery. And say what you will, despite protestations to the contrary of understanding of the nuances of Supreme Court jurisprudence, when the average Joe hears the word “unconstitutional,” they immediately think “bad.” Striking down the law would motivate Obama’s liberal base and Obama will likely then take on the decision as the action of a conservative Court. Making the Supreme Court or, more specifically, an attack on the Court is a distraction for Obama and would likely fall on deaf ears. A recent poll indicates that even before the decision is announced, close to 67% of respondents believe the decision will be politically motivated, not based on the law. Obama will simply be stating what people already believe. The result would be a collective, “So what?” And Obama will likely then trot out a shopping list of the “good parts” of the law that were struck down.

Of course, the Court can strike down the mandate, yet leave other aspects of the law intact. As many are aware, the mandate is the structure that holds the entire law together. This is the alleged aspect of the law that will lead to lower premiums by all. A decision of this ilk will create nothing but chaos. Insurance companies will argue that without the mandate and with all the other requirements placed on the insurance industry, they will have to increase rates on existing premiums. The only way around this scenario would be for the Supreme Court to strike down the mandate and the insurance guarantees which would let the insurance companies off the hook and remove an excuse to increase rates, but there would be furious debate which would refocus some of the attention on Republicans.

That is, the focus would be “What is the Romney plan?” Here, Romney has been relatively vague about what he would replace Obamacare with other than “repealing” it on his first day in office. Republican legislative solutions have been tinkering at the edges thus far. But if the Republicans have nothing to attack, they must have something to propose that will gain traction on both sides and be more acceptable to the American people. Focusing on tort reform is all well and good as a part of the total proposal, but tort reform alone will not control health care costs or insure any more Americans.

There are two interesting theories being circulated in the legal sphere right now. The first speculates that Chief Justice John Roberts may succumb to the political pressure and actually vote to uphold the law. Most of this speculation goes back to Obama chiding the Court during his State of the Union Address and the Citizen’s United decision. It is doubtful that this will happen. People already believe the decision regarding an unliked law will be politically motivated. Ironically, that frees Roberts from deciding the case based on political considerations.

The other issue is the liberal blogosphere portraying a strike down of the law as a return to the days of Lochner. No doubt, should the Court strike down the mandate or the entire law, they will portray this as returning us to the 1920s as far as economic legislation is concerned. First, that argument is so laden with legal nuance that most people would not understand, nor would they care. Secondly, Lochner restricted certain economic regulations by state and federal government. Nothing in Obamacare would disallow a state, like Massachusetts, from enacting a law that had mandates. Also, the government would still be allowed to regulate “economic activity” and thus interstate commerce, but they would be denied the power of mandates absent preexisting economic activity. The alleged connections to Lochner are vastly over-rated and, quite frankly, false.

Whatever is decided in June, the political fall out will be huge. There is greater risk for Obama than there is for Romney no matter which way the Court decides. Obamacare may survive, but Obama the candidate will suffer. Health care reform and Democratic justification for an unpopular law will become a major campaign issue yet again, much larger an issue than Obama would prefer. In effect, he would have to yet again sell the law which would detract from his attacks on Bain Capital.