Supreme Court to rule on health-care reform ... then what?

A blow to Obama's health-care reform law could push Democrats to choose between defining the Supreme Court ruling as a principled disagreement between coequal branches of government – or as mainly partisan.

Yuri Gripas/Reuters
A group of doctors protest against the individual mandate in President Obama's health-care reform law in front of the US Supreme Court in Washington on June 25.

When the US Supreme Court offers its ruling on President Obama’s health-care reform law Thursday, only one thing is certain: At least half of Capitol Hill is going to be ticked off.

If the law stands, Republicans will fume. If the law is curtailed or struck down, Democrats will seethe.
But what next? Republicans have vowed that, rain or shine, they’ll keep their focus on jobs and the economy – and incorporate whatever happens at the Supreme Court into that larger message. 

Democrats, on the other hand, have not even countenanced the fact that the law might fail. At least in public, they're lining up with House minority leader Nancy Pelosi’s claim that the legislation is “ironclad” from constitutional challenge. 

But if a majority of the high court proves them wrong, Democrats will have to choose between defining their loss as a principled disagreement or attacking the court for what they would see as an ideological – if not outright partisan – ruling.

The Republican stance is largely encompassed by a widely circulated memo from House Speaker John Boehner (R) of Ohio to his conservative House colleagues last week.

“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,” Mr. Boehner wrote. “Republicans are focused on the economy – and under President Obama’s policies, our economy is struggling."

If only a portion of the law survives, GOP lawmakers say they will work to repeal the remainder – an impossibility before 2013 given Democrats’ hold on the Senate – before returning with “common sense, step-by-step reforms” to fix the American health-care system.

In a practical sense, the GOP’s approach means marathon House votes on measure after measure.

As yet, those plans have remained under wraps, giving Democrats a potential window to attack the GOP over popular provisions such as allowing children to stay on their parents’ health insurance until age 26.

“Republicans are going to have to come out with a plan of their own,” says Ford O’Connell, a Republican strategist in Virginia. “Republicans is going to have to cobble something together, because [repealing popular provisions] gives the president the best path to go after them.”

For Democrats, the calculation is more complex. For months Democratic members of Congress have stressed the law’s constitutionality and rarely acknowledged that the party was making even broad contingency plans, if the court were to invalidate the law.

But should health-care reform fall in whole or in part, Democrats have two likely avenues to follow. One potential response amounts to recognizing that the court is a separate and equal branch of government – and then attempt to turn the situation around on their political opponents by arguing why the case makes their favorite legislation all the more imperative.

The first path is represented by Rep. Steny Hoyer (D) of Maryland’s response to the Supreme Court’s decision on Monday to knock down a Montana law restricting corporate donations to candidates seeking state office.

“I am very disappointed that the Supreme Court chose today to affirm its earlier Citizens United decision. The consequences of that decision have seen the voices of ordinary citizens drowned out by the unprecedented influence of political organizations wielding tens of millions of dollars from undisclosed donors with unknown agendas,” said Representative Hoyer, the Democratic whip, in a statement.

Then: “This is an issue on which Democrats and Republicans ought to stand together – and have stood together in the past – to demand fairness, accountability, and campaign finance rules that ensure every American has an equal chance to participate in our electoral process."

The practical impact of such a response to an adverse health-care decision would be for Democrats to leave the law largely for dead in pivoting to promote new legislation.

The second, more explosive, response is to challenge the court as an ideological (if not outright partisan) body that has made a significant error. That’s a tack closer to Mr. Obama’s criticism of the Supreme Court during his 2010 State of the Union message, when he took a shot at the Supreme Court’s ruling in the Citizens United v. FEC case that has come to redefine campaign finance.

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign companies – to spend without limit in our elections,” Obama said. “I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

This approach would leave legislating behind almost entirely in exchange for giving Democrats a valuable political weapon.

“[T]here is some evidence in polling data that a campaign against the Court could have some positive effect for Obama,” write Chris Cillizza and Aaron Blake for The Washington Post’s The Fix blog.

Half the country believes the court will make its decision on the basis of partisan political views, Mr. Cillizza and Mr. Blake point out, and the court’s popularity has hit a 25-year nadir of 52 percent.

But the high court remains largely unknown to much of the voting public and it approval rating towers above Congress and stands a head above the president himself. And there's the punditry blowback Obama felt after his State of the Union criticism of the justices, with some calling the move an unseemly way to express his feelings on the Citizens United ruling.

“It’s a dicey proposition for Obama to run a campaign against the Supreme Court,” says Tobe Berkovitz, a professor of political communication at Boston University and a media strategist whose clients have included a clutch of Democratic senators. “Obama is running as an unabashed liberal, and going after the Supreme Court could make him a radical liberal ... that would make him perhaps unattractive to some moderates.”

And a challenge to both parties? Whatever the message is, staying on it.

“All it takes is one live wire and you could send a shock through the system and pull what was cohesive messaging down the drain,” Mr. Berkovitz says. “That’s probably more a threat for the Republicans, but you could always get one of the mad-dog Democrats in the House to shoot off their big mouth and what sounded like a somewhat reasoned response can go haywire.”

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