Supporters of the law also think that Republican presidential front-runner Mitt Romney is in no position, because of his support as Massachusetts governor of a state-level individual mandate, to take political advantage if the statute is thrown out. If anything, they argue, such a ruling could prompt a discussion about whether Romney’s health-care overhaul, upon which Obama’s law was largely modeled, is unconstitutional.
“Romney does not have clean hands here,” said Rep. Gerald E. Connolly (D-Va.). “Saying that we stretched the commerce clause too much, and therefore it’s not constitutional — well, what about the law in Massachusetts that Mitt Romney signed? It has exactly the same premise.”
Connolly said there is no Plan B — no formal discussion on Capitol Hill or elsewhere on how to fix the Affordable Care Act if it is struck down. “Plans B, C, D and E were all considered during the debate and rejected for various and sundry reasons,” he said.
But that, too, could help Democrats — by placing the burden on Republicans to fix the health-care system themselves.
Republicans have said they could keep the law’s more popular provisions, such as barring insurers from denying coverage because of preexisting conditions. But supporters say it’s not possible to pay for that provision without requiring the 30 million Americans who are currently uninsured to purchase coverage.
Romney spokesman Ryan Williams said Wednesday that if the Supreme Court throws out the Affordable Care Act, conservatives will be galvanized to support Romney and prevent Obama from passing similar measures “that would have disastrous results for our country.”
Silence from Obama
One person not engaged in the fray is Obama himself. The president returned Tuesday from a four-day trip to South Korea, and since then, White House officials and campaign advisers at the team’s Chicago headquarters have officially refused to consider the possibility that the law could be rejected.
“There is no contingency plan that’s in place,” said deputy White House press secretary Josh Earnest. “We’re focused on implementing the law, and we are confident that the law is constitutional.”
The White House did defend Solicitor General Donald B. Verrilli Jr., who has come under scrutiny for his arguments before the Supreme Court this week.
And White House and campaign advisers are promoting the Affordable Care Act itself. Surrogates have fanned out across the country to highlight the law’s more popular elements, and over the past month, the campaign has sent about 1 million pieces of mail touting the law to women in battleground states. The campaign and the White House have even begun referring to the legislation as “Obamacare,” a derisive term coined by its detractors.
Allies speculated on several reasons that officials at the White House and in Chicago are cautious about speaking publicly on the Supreme Court case. One reason could be concern that any political talk from the campaign would inject a partisan flavor into the public discourse on a case that Obama advisers want the court to decide on its legal merits.
Another could be the legal view that the president, because of the Constitution’s mandate for the separation of powers, must not be seen as trying to influence a decision of the Supreme Court. That’s one likely reason, allies said, that Obama did not hold an event last week celebrating the two-year anniversary of the law’s signing — the date fell just three days before oral arguments began.
Those concerns also help explain the reluctance of some advisers — and allies such as Democratic National Committee Chairman Debbie Wasserman Schultz (Fla.), who declined to be interviewed on the subject — to speak openly about the matter.
With the case not likely to be decided before June, the caution is likely to continue.
Staff writers Rosalind S. Helderman, Peter Wallsten and Scott Wilson and polling manager Scott Clement contributed to this report.