So I was listening to the 1:00 PM NPR show and the host said that he had a source in the Obama White House who told him that they expect to lose a 5-4 ruling (presumably that means at least the striking down of the individual mandate), but that they expect to use the ruling to rally the public to reshape the Supreme Court. This strikes me as unlikely. There will be some people who will be upset with a Supreme Court ruling striking down Obamacare. The problem for Obama is that the people who are really supportive of Obamacare are already for Obama. An agenda of reenacting the most unpopular part of an unpopular law because Obama is less partisan than the Supreme Court and understands the Constitution better than the Supreme Court isn’t likely to appeal much to the median voter. The median voter already thinks the Obamacare individual mandate is unconstitutional and should be struck down. A Supreme Court ruling against Obamacare is unlikely to increase Obamacare’s popularity or popular legitimacy. It will also hurt public perception of Obama’s competence to have the Supreme Court strike down (in whole or in - crucial - part) his most important legislative achievement.
A Supreme Court ruling against Obamacare also helps Romney beyond the direct damage it does to Obama. Democrats like to mock Romney for the similarities between Obamacare are Romneycare. Those similarities are real and substantial. Both Romneycare and Obamacare include an individual insurance purchase mandate, insurance coverage mandates, direct subsidies for insurance purchase, guaranteed issue and community rating (Massachusetts had the last two before Romneycare , but they were retained in that law.) A Supreme Court ruling against Obamacare increases the political salience of the differences between those two laws. The two biggest differences are that Romneycare only applied to one state and that Romneycare was a use of the state government’s police power rather than an unprecedented extension of federal government power. So a Supreme Court ruling against Obamacare would allow Romney to say:
1. ”Unlike President Obama, I was never arrogant enough to believe that the federal government should impose a one size fits all plan where Washington tells every single American what kind of health insurance to buy that and then forces them to buy it.” Actually, Romney already says that, but it sounds better if the Supreme Court has struck down Obamacare and left Romneycare standing.
2. ”Unlike President Obama, I wasn’t absent the day they taught the Constitution in law school. I, like most Americans, believe that the federal government doesn’t have the power to force Americans to contract with private companies to purchase products they don’t want. Thank God the Supreme Court agrees with the American people, and as President, I’ll work for a health care law that makes health care affordable for more people while respecting the Constitution and the freedom of the American people. That’s change we can all believe in.” Romney could probably find a less jerky way to make the point, but however he phrases it, the argument works better if the Supreme Court has endorsed that interpretation of the Constitution.
This is sounding way too optimistic for me, so several caveats:
1. The economy (job creation, energy prices, disposable income) will still be a big issue and the economic numbers will have a huge impact on Obama’s job approval rating. If the economic numbers get good enough, fast enough, then Obama can probably take a Supreme Court hit on Obamacare and still win reelection. Not much that Romney or anyone else can do about that. If Obama’s job approval on the economy stays below 50% then a Supreme Court ruling against Obamacare probably reduces Obama’s reelection chances by I-don’t-know-how-much.
2. I never, ever trust Anthony Kennedy to get it right.
