Monday, November 14, 2011

Who’s Breathing Easier Today?

So now it’s official. The Supreme Court is going to rule on the constitutionality of ObamaCare’s individual insurance mandate in late June, just when the presidential general election campaign is kicking off. If it finds that the mandate exceeds Congress’s power under the commerce clause, the Court might even strike down the rest of ObamaCare on grounds of inseverability.

Is this good or bad news for Obama? Well it depends on how the Court rules. On the face of things, you’d think getting the Supreme Court’s imprimatur on ObamaCare would be a feather in Obama’s cap, especially inasmuch as it would help dissipate the odor of illegitimacy raised by the unceremonious way it was rammed through Congress in March 2010. And you’d expect, by the same token, that having his principal legislative achievement declared lawless by the Supreme Court would be a political calamity.

Ann Althouse (see here and here), who knows a thing or two about constitutional law and the Supreme Court's sensitivity to political pressures, thinks those appearances are deceptive. The Court would be doing Obama a huge favor, she argues, by taking all of ObamaCare off the political table:
“I'm thinking Obama's best hope for reelection is for the Supreme Court to strike down ObamaCare — find the individual mandate unconstitutional and the remainder of the law inseverable. Take the whole thing down. Let Obama rhapsodize about the beautiful future that might have been — it's very pretty when it's not real — and blast away at that terrible Supreme Court that reaches beyond the realm of the law. Ironically, Obama would be publicly denouncing the Court for getting political and secretly grateful that the political benefit came to him.

“Think about it. Obamacare is the nonviable fetus that we continue to carry to term, agonizing in anticipation of a stillborn. It's very sad. But there is the possibility of ending the existence of that misbegotten child. Do you like my metaphor? Within it, the Supreme Court is the abortionist. It can intervene right now and end the suffering.”
As improbable as it sounds on first hearing, Althouse’s argument make sense. Recent election returns from Ohio underscore ObamaCare’s astonishing unpopularity. The Supreme Court’s upholding ObamaCare would therefore leave Obama with an unenviable choice. He'd be expected to give it a full-throated defense that would give otherwise persuadable independent voters another reason for voting against him. Yet anything less will invite the contempt of the Democratic base Obama needs to energize his reelection campaign. Were the Supreme Court to strike down ObamaCare in its entirety, however, Obama could change the subject with independent voters while the specter of more judicial usurpations by a Supreme Court with more Republican appointees stokes up his Democratic base. Paradoxically, Althouse contends, Obama wins politically by losing legally.

Can she be right? Here’s a test. Right now it’s looking like the Republican nominee will be Mitt Romney. How must the prospect of the Supreme Court’s ruling on ObamaCare next June look to him?

Again, it obviously depends on how the Court rules. The prospect of it upholding ObamaCare’s constitutionality presents Romney with an unenviable choice of his own. He’d have to reaffirm his promise to Republican primary voters to repeal it and therefore explain to independent voters why what he once insisted was good for Massachusetts is bad for the nation. I suppose, if you set your mind to it, you could come up with a campaign pitch that more effectively cemented Romney’s reputation for unprincipled opportunism, but it wouldn’t be easy.

Were the Supreme Court to strike ObamaCare down, however, an argument that sounds ludicrously self-serving coming from Romney would suddenly command the authority of constitutional law. Improbably enough, Romney might even end up looking to suddenly attentive independents like he knew what he was talking about all along.  But, in any event, his equivocations respecting health care would at least seem relatively harmless in the grand scheme of things. And Romney would be well-positioned to make political hay by reminding independent voters that Obama’s principal legislative “achievement” was an act undertaken in reckless disregard of the Constitution. It's hard to see how Romney wouldn't win big politically by winning legally.  Indeed, having the Supreme Court strike down all of ObamaCare next June looks to me like the answer to his political prayers.

General presidential elections are zero-sum games between the major party candidates.  So the one thing we know for sure is that Althouse and I can't both be right.


Anonymous said...

Interesting points you make.

I agree that if the Supreme Court strikes down Obamacare, it will be good for Obama and Romney, but better for Obama. It is an albatross around his neck and the Supreme Court finding it unconstitutional will free him of it, as all the pundits suggest.

Romney can use it in his campaign too, but it will not be front and center, unless the Supreme Court upholds it.

We will have to wait and see, of course, but my bet is that it is a goner. Kagan will likely recuse and then the conservative majority will rule it unconstitutional.

Dave said...

I'm afraid I have to side with Althouse on this. I don't believe RomneyCare, or Romney's slipperiness on his health care, is a significant problem for him, and here's why: The electorate understands (correctly) that (1) Romney will try to repeal ObamaCare, and (2) Obama will not. And that's all that voters care about when it comes to this issue. Sure, Romney may be a weathervane politician, but since the winds are blowing quite strongly against ObamaCare, that'll just makes voters all the more certain that Romney will act against it.

I believe the GOP could successfully remove Obama by doing nothing more than making this election a referendum on ObamaCare. If the Supremes take that issue off the table, Republicans have to build energy around a far less tangible message.

Anonymous said...

What's Obama going to run on if he won't take credit for PPACA, 9% unemployment?

Pop said...

Obama can tout the fact that he kills people: Bin Laden, Ghaddafi, etc. All terrorists will die if you elect Obama.

Mean Voter said...

Dave's got a good point. If Supremes take Obamacare off the table, Republicans have a lot more work to do.

Anonymous said...

Question to RR: Doesn't Kagan have to recuse herself???

Anonymous said...

Doesn't Thomas?

Anonymous said...

I would think Thomas would be able to reach an opinion on constitutionality of ObamaCare without the appearance of influence by whatever his wife does. As to Kagan, she was involved in the administration and the legislation itself. Big difference.

Has anyone ever heard of a Supreme court Justice recusing himself or herself because of the actions of a spouse? I'd like to know if there is any precedent.

Anonymous said...

No justice is recusing himself/herself. If one was going to do so, it would have been announced yesterday.

Anonymous said...

The crack about Thomas was just snark, but I never cease to be amazed at the ability of the ideological to find fault only with the other side.

In point of fact, more than a quarter of the Thomas household's income comes from Ginny's political role as an opponent of Obamacare.

And that idea that Kagan should recuse herself because she was marginally involved with the administration (including rending some opinions about healthcare) stretches the boundaries of "conflict of interest" to surreal dimensions.

How about Roberts recuse himself because he is known to have been to a doctor's office?

Anonymous said...

To Anon at 7:30 pm:

What if 99.9% of the Thomas family income came from his wife? What does that have to do with his beliefs? Do stay-at-home spouses always agree with the working spouse in their household?

Your argument is silly. In fact, it is as silly as the Roberts' remark.

If Kagan actually worked on advising the administration about the very legislation she is asked to rule on, that is different. Can't you see that? If you can't see the distinction, it doesn't matter. Kagan apparently thinks it won't cloud her judgment.

Here's my prediction for the outcome -- and you heard it here first. I predict a unanimous decision tossing out the mandate of ObamaCare.

Anonymous said...

Yeah, thanks for the prediction.