If the Supreme Court knocks out the guts of the Affordable Care Act — the individual mandate requiring people to purchase health insurance or pay a fine — the battle within the Obama campaign will be fierce. The president will be faced with two stark alternatives: launch the political equivalent of a drone strike on the Supreme Court and use the ruling to energize his base, or accept the decision and move on, hoping to neutralize the divisive law in the general election.
In the first scenario, President Obama would double down rather than back down. So far, he has shown no willingness to compromise on the individual mandate despite massive public opposition to the measure. In the face of a Supreme Court ruling against the law, a defiant president may seek to make an even more strident case for his vision for health care in America.
Already, the talking points for a war on the high court are being put in place by organizations such as the Center for American Progress. The story line is simple and potentially effective: From Bush v. Gore in 2000 to the Citizens United decision in 2010 to the possible Obamacare ruling, the Supreme Court puts politics above the people in the name of the Constitution.
This argument could play among an electorate predisposed to suspect the worst. A Bloomberg News survey taken shortly before the oral arguments found that 75 percent of Americans believe that politics will influence the justices’ decision on the health-care law. If the court kills the act, then Washington is reduced to a triple play of gridlock — between the president, Congress and the Supreme Court, nothing gets done.
The Obama campaign could paint the court as out of step with the modern world, in which the state needs to help redress the inadequacies of global and national markets. After all, the mandate is about everyone paying their fair share toward health care; it eliminates free-riders from the system.
Obama, like President Franklin Roosevelt in 1936, could bring enormous pressure to bear on the court and use a decision against the health-care law as a rallying cry for change. He could suggest that Supreme Court justices’ terms be limited to 10 years and staggered across presidencies, a popular idea I tested with voters two years ago. He could even propose a constitutional amendment to overturn the health-care decision — and why not throw in the Citizens United ruling as well?
Campaign operatives might conclude that Obama finally has an issue that could rally the base around him and bring back the enthusiasm and turnout of 2008. Even better, a Supreme Court ruling against the Affordable Care Act might boomerang against the Republicans, who will be gulping champagne and looking like they would rather do nothing to help people who need vital health insurance.
It’s tempting, but this approach plays mainly to the base that Obama already has. I’m not sure I buy it, and I’m not sure the president would choose such a course. In the 2008 presidential campaign, during which I served as Hillary Rodham Clinton’s chief strategist, Obama actually campaigned against the mandate in Clinton’s health-care plan, sending out millions of mailers to try to scare people about the unexpected bills they might have to bear. (You may recall that this led to one of the few times Clinton went after Obama at a news conference, holding a stack of the mailers, exasperated at his under-the-radar negative campaigning.)