If Supreme Court scraps health-care law, who wins politically?

Harsh questioning from the Supreme Court majority has touched off new political calibrations over President Obama's health-care law. In some ways, Democrats could be the winners. 

Charles Dharapak/AP
Supporters of health-care reform rally in front of the Supreme Court in Washington on Wednesday.

After a rare three days of argument at the Supreme Court, President Obama’s health-care reform sits in limbo – and will stay there until June, when the court is expected to rule on its constitutionality.

Until then, at least, the Affordable Care Act remains the law of the land. But the tenor of the questioning at the high court has led many analysts to suggest that the law could be struck down in whole or in part.

The political stakes are clear, and the Obama White House and reelection campaign are already calibrating their talking points. At a breakfast Thursday with reporters, the Obama campaign’s pollster, Joel Benenson, declined to speculate on whether a defeat in the Supreme Court would hurt or help Mr. Obama – or both. Instead, he sought to portray the president’s effort to reform the American health-care system as rooted in principle.

“The president said at the outset of his term he wasn’t doing health care for anything to do with politics, he was doing it because he believed it was the right thing we needed to do in this country,” said Mr. Benenson, speaking at Third Way, a centrist Democratic think tank.

Benenson cited the high cost of health care to families and businesses, “discriminatory” premiums for women who pay more than men, and insurance company practices that left sick people without coverage.  

Still, with the Supreme Court ruling expected in the heat of the presidential campaign, politics are unavoidable. If some or all of the law is struck down, it will be an embarrassing repudiation of the signature achievement of Obama’s presidency. Democrats could be demoralized, Republicans energized.

Some Democrats suggest that a loss could benefit the president by energizing an angry base.

James Carville, adviser to former President Bill Clinton, says a ruling against the law puts the Republicans in an awkward position – which benefits the Democrats.

“Just as a professional Democrat, there’s nothing better to me than overturning this thing 5 to 4, and then the Republican Party will own the health-care system for the foreseeable future,” Mr. Carville said March 27 on CNN. “I really believe that. That is not spin.”

Indeed, if the Supreme Court does in “Obamacare,” as critics call it, then the GOP mantra of “repeal and replace” will be obsolete.

If the entire law is struck down, the heat will be on to present an alternative that includes the elements the public likes. If only the mandate is struck down, and the popular parts remain law, they will face the question of how to fund a reform that will have lost the premiums of people no longer required to purchase insurance. The insurance industry maintains it needs full participation to afford lifting lifetime caps on coverage and other restrictions.

Obama, too, would face those questions. But he may at least benefit from having succeeded in passing a reform, after presidents of both parties tried and failed for decades to enact anything close to universal coverage.

A complicating factor for the Republicans is that their likely nominee is Mitt Romney, who as governor of Massachusetts, enacted health-care reform with an individual mandate. Mr. Romney has stood by his reform, explaining that a statewide mandate is permissible under the 10th Amendment to the Constitution, and thus wholly different from a federal mandate.

But to some conservatives, a mandate from any level of government is unacceptable – and he has struggled to generate enthusiasm from the party’s conservative base.

The White House, meanwhile, has been calibrating its rhetoric as the questioning from the conservative justices – particularly swing justice Anthony Kennedy –has led many observers to believe the individual mandate may be doing down, if not the whole law.

This week White House spokesmen have been talking up popular aspects of the law, such as the ban on excluding patients with preexisting conditions and the provision that allows adult children up to age 26 to remain on their parents’ plan.

And on the most controversial aspect of the plan – the mandate to purchase insurance – White House deputy press secretary Josh Earnest talked about the “individual responsibility portion” of the law (and not the “mandate”) more than once at Wednesday’s briefing. He also highlighted that the concept originated at the conservative Heritage Foundation.

Mr. Earnest maintains that the administration has been using the term “individual responsibility” instead of “mandate” all along, but some reporters were skeptical.

For Obama, one question will be whether he runs against the Supreme Court, in the event some or all of the law goes down. In his first State of the Union address in January 2010, he took the unusual step of criticizing a court ruling – Citizens United, which opened the floodgates of individual and corporate money into campaigns – right to the justices’ faces, and took flack for it.

Ever since the Bush v. Gore ruling of 2000, which put George W. Bush in the White House, liberals have been highly critical of the court’s conservatives.  One more landmark ruling that goes against the liberal position – especially a 5 to 4 ruling – will only stoke their anger.

The Republican National Committee (RNC) sought to make political hay out of this week’s Supreme Court argument in a web ad that portrayed Solicitor General Donald Verrilli as halting and struggling to make his case in defending the health-care law.

The ad is called “Obamacare: It’s a tough sell.”

The only problem is that the audio from the Supreme Court argument is altered, according to Bloomberg News. Bloomberg sought comment from the RNC, but had not received a reply.

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