On the day that President Obama’s “historic” achievement, arguably the only achievement of his presidency, goes to the Supreme Court, the New York Times reports that in a new poll “36 percent of Americans approve of the health care law, while 47 percent are opposed. By nearly 2 to 1, those who say they strongly disapprove of the law outnumber those who strongly approve of the legislation. Sixteen percent have no opinion.” From a political standpoint, it is significant that “intensity of sentiment is much stronger on the other side of the political divide, with most Republicans not only opposed to the law’s provisions, but strongly so.”
To be blunt, the Obama campaign had better hope the feds lose at the Supreme Court. Sure, it would be an embarrassment to have spent the entire term on an unconstitutional measure, but Obama’s campaign is essentially about scaring the public about Mitt Romney (the least scary Republican of the bunch), so it’s not as if Obama won’t have things to talk about.
If, however, the Supreme Court upholds the whole thing, then the Republicans will rally like nobody’s business, and independents (51 percent of whom agree with Republicans in disapproving of the law) will have one more reason to vote against the president.
Even worse for the administration would be one very likely outcome: The Supreme Court strikes down the individual mandate and upholds the rest. Then Romney has drawn an inside straight. (This is one reason why Rick Santorum’s claim that the GOP would “give away” the Obamacare issue with a Romney nominee is so dumb.) The individual mandate is off the table (Romney argued that it was a 10th Amendment violation), and Romney can attack on the whole host of infirmities that go beyond the mandates: the rationing board (the Individual Payment Advisory Board), the tax hikes (especially on medical devices, which is perhaps the most regressive tax one could cook up) and the impact on small businesses.
The Justice Department lawyers will strive with every fiber of their being to win the entire case and especially on the mandate, for Obamacare is the door that opens the barn to any and every exercise of federal power. The left will throw ticker-tape parades for the lawyers who could make that happen. But because Obamacare is such a political loser, the Republicans are now in an enviable position: If they lose at the court, they win with the public, and if they win at the court, the left is demoralized. So conservatives can just sit back and enjoy the arguments. It’s the ultimate “heads I win, tails you lose” sort of case.