This week the Supreme Court will hand down its ruling on the constitutionality of Obamacare. Speaker of the House John Boehner (R-Ohio) sent out a memo to his GOP colleagues. It read in part:
No one knows what the Court will decide, and none of us would presume to know. But if the Court strikes down all or part of the president’s health care law, there will be no spiking of the ball. Republicans are focused on the economy—and under President Obama’s policies, our economy is struggling. We will not celebrate at a time when millions of our fellow Americans remain out of work, the national debt has exceeded the size of our nation’s economy, health costs continue to rise, and small businesses are struggling to hire. ObamaCare has contributed to all of these problems. Repealing it completely is part of the solution ... but it is only one part.
Americans opposed the president’s health care law when it was enacted, and they have only grown more opposed to it since then. . . .
As I, Leader [Eric] Cantor, Whip [Kevin] McCarthy and other leaders have made clear in recent days, the House will act in the coming weeks on legislation to repeal any part of ObamaCare that is left standing by the Supreme Court. Such action is critical for jobs and our economy and for the health care of millions of American families.
From Boehner’s perspective (or Mitt Romney’s or any other conservative’s), a decision striking down the entire legislation would be a monumental achievement, an affirmation of their objections to the law and a blow to the president’s already battered record.
Jon Walker of the left-leaning Firedoglake blog summed up the potential fallout:
The Court striking down the whole law would be devastating for President Obama and declared a huge loss for him by the media. Republicans would have bragging rights and “proof” that Obama overreached.
It could have some political upsides for Democrats, but probably not enough to make up for the big downsides. The whole law being repealed could make some Republicans complacent and take away a reason for rallying around Romney. Obama could also rally his base against an out-of-control and politicized Court. It is often easier to rally people against an enemy than for something.
The big problem with this strategy, though, is that it might not play outside the base. The fact is polling shows most Americans think the law is unconstitutional.
For Romney, such an outcome would play into his argument that states should experiment with their own health-care plans and that a one-size-fits-all scheme is both unwise and outside Congress’s Commerce Clause power.
If the Supreme Court upholds the law in its entirety, Romney and Republicans will roll out the policy arguments against Obamacare (which I have urged conservatives to keep making) and capitalize on the law’s unpopularity.
It becomes a little dicey if the individual mandate is struck down, but most of the legislation survives. Republicans will rightly argue that the law becomes monstrously expensive (without healthy people there to average out the unhealthy insureds, the cost of coverage will go sky-high). The problem of patients gaming the system (not getting insurance until they are sick or hurt) becomes acute with no mandate to purchase insurance. In a larger sense, it becomes impossible to contemplate real health-care reform or work on the problems Obamacare originally aimed to solve (portability, access, cost) with the wreckage of Obamacare still littering the health-care landscape.
Republicans will attack whatever is left of the law, I strongly suspect, piece by piece, forcing votes on everything from the medical device tax to the Independent Payment Advisory Board. Purely for political purposes they may very well leave in place protection for preexisting illnesses (insurers won’t like that, but they earned no brownie points with conservatives by climbing on board with the president’s plan).
Romney has begun to sketch out his alternative health-care approach. It will be interesting to hear what Obama has to say if his signature legislation is shot down. Will he go all-in with the left-wing of his party for a single-payer plan? Maybe he’ll be nonspecific, as he has been on every item of fiscal importance (e.g. tax and entitlement reform).
Finding a replacement for his “historic legislation” is more urgent for Obama than for Romney. Romney wants to focus immediately on the economy, looking to get cracking on domestic energy development and tax and regulatory reform, for example. Obama, on the other hand, will need to show that his focus on health care was not misplaced and that it’s still at the top of his list. That clash in priorities alone should benefit Romney.
A final note: The politics should not obscure the very real and longer-lasting legal impact of the decision. It is hard to overstate the importance of the case to conservative jurists, think tankers, pundits and politicians. At issue for them is the very essence of limited government. An affirmation that ours is a government of enumerated powers will be a powerful lift to conservatives and will infuse their thinking and policy proposals for years to come.
Conversely, a decision lifting any real check on congressional power would be body blow to conservatives. It would require a reorientation away from legal and constitutional arguments and toward policy-based debates about the efficacy of congressional meddling in every facet of our lives. In short, there is a lot riding on this, especially for those who have spent decades reviving a philosophy of judicial interpretation that takes the meaning and intent of the written Constitution seriously.