Well, now we know. After several months of waiting to find out when the Supreme Court would weigh in on Barack Obama's signature health-care reform legislation, the drama will end on Thursday. One way or the other, the nation will have at least some closure on the biggest political battle of the last three years.
There are three basic versions of closure possible in the decision. The court could uphold the Affordable Care Act (ACA) in its entirety, strike it down in its entirety, or overturn the individual mandate and hand the rest of the mess back to Congress to fix. Conventional wisdom earlier in the year held that an outright victory for ObamaCare would boost President Obama's re-election chances, and an outright defeat would boost the Republican nominee, while the messier mixed decision would trap everyone in a labyrinth of uncertain legal statuses and regulations. But 130 or so days from the November election, have the politics changed?
To hear the way some critics talk, Obama finds himself in a no-win position. TIME's Mark Halperin argued on Monday, before it became apparent that the Supreme Court wouldn't issue its decision until later in the week, that every outcome would be bad news for Obama. Halperin told Joe Scarborough on MSNBC's Morning Joe that "a lot of Democrats" tell him the same thing. The idea is that the bill is so unpopular, even a win at the Supreme Court can't turn it into a net positive for voters. Democrats on the campaign trail, Halperin said, "largely hide from it."
Oddly, Obama's problems are probably lessened with an outright rejection of the whole law.
Republicans had better not bet the house on that interpretation, although obviously, a large number of them believe it. It's true that the ACA has remained remarkably unpopular, with some polls showing as many as two-thirds of the country wanting the Supreme Court to overturn the mandate or the whole bill. The mandate in particular rankles Americans, most of whom are stunned to think that the federal government can order them to buy a product at all, whether it be health insurance or broccoli, the counter example that has grown inexplicably popular as the horrific reductio ad absurdum of limitless government power. (Shouldn't the worst-case scenario really be Brussels sprouts?)
But let's get real: Assuming that a positive ruling from the Supreme Court would have no impact on the ACA's popularity is quite a leap. Public opinion could easily change if the Supreme Court upholds the ACA and the mandate, especially if the vote is something other than a narrow 5-4. Such a decision won't make ObamaCare popular overnight, but it might prompt some of those who disliked the bill for its reported unconstitutionality to rethink the matter. Many voters would similarly re-evaluate the Republican lawmakers who insisted that ObamaCare could not possibly survive constitutional scrutiny.
Unfortunately for the president, a full Supreme Court endorsement of the ACA looks less and less likely — and the other two options would be political disasters for Obama. In both of the remaining outcomes, Obama would be seen as having overreached. Worse yet, Obama spent the first two years of his presidency on almost nothing other than ObamaCare, the failed stimulus, and the costly Dodd-Frank expansion of financial regulation. Little was done on jobs and the economy. Coming up empty on ObamaCare, supposedly his signature legislative achievement, would be seen as a huge blow.
Just overturning part of the law would also create a monstrous headache for Obama and his administration. If the mandate and other insurer reforms get stricken while leaving other regulations in place, insurers would balk — or go out of business. Without the revenue-generating mandate, insurers would seemingly have no way to offer insurance to all-comers, as ObamaCare demands. With some of the provisions of the ACA due to go into effect in 2014, Congress would have to work immediately on either undoing what's left of the ACA or restructuring it to make fiscal sense. In this case, the onus would remain on Democrats to fix the mess they created.
Oddly, the problems are probably lessened with an outright rejection of the whole law. First, Obama and Congress would get a clean break, with no confusion and ambiguity for insurers trapped in coverage mandates but without the guaranteed customer base to fund them. Businesses would have more certainty on costs, at least for the next few years, and no one in Congress would want to deliver a reform package proposal before the election. Democrats could spend their time challenging Republicans to come up with a better plan, and pointing out the lack of an alternative if Republicans can't deliver.
A full reversal also conveniently resolves a big political headache for Obama — his fight with religious organizations in general, and with the Catholic Church in particular. Catholic bishops launched a two-week campaign to oppose the HHS mandate on contraception, an order based on authority granted to HHS by the ACA. A decision to fully overturn the ACA would make the HHS mandate moot, get the bishops off of Obama's back, and perhaps get some moderate Catholics back in the Obama fold.
Not every option will be relentlessly negative for Obama, nor every option positive for Republicans. The only people who will have nothing but upside on Thursday are the nine men and women wearing robes — and heading for airplanes just as soon as they can after the decisions are published.
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