If Supreme Court Nixes Health Care Reform Will It Doom Obama’s Re-election?

Nate Beeler, The Washington Examiner

Today the focus turns to the Supreme Court as it begins a challenge to President Barack Obama’s signature health care reform act. Few pundits are willing to predict what will happen but it’s clear some Supreme Court members will not be fans of the act. The question then becomes: if the court nixes health care reform how will it impact Obama’s re-election? CNN’s Jeffrey Tobin believes it would put Obama’s re-election peril:

When the Supreme Court hears an extraordinary three days of arguments this week about the constitutionality of the Affordable Care Act, thousands of words will pass between the justices and the lawyers appearing before them. Still, it’s likely that the single most important word in the case will never be uttered in the courtroom:

Obama.

The Supreme Court can make or break presidencies. Almost dozen years ago, five justices thrust George W. Bush into the Oval Office. A generation earlier, in United States v. Nixon, a unanimous court effectively ended the presidency of Richard M. Nixon by ordering him to provide the Watergate special prosecutor with the White House tapes. Now, to a great extent, the court will render a verdict on the current president’s first term.

The stakes for Barack Obama can hardly be overstated, both substantively and politically.

Health insurance for 30 million citizens hang in the balance in this case. Obama took on the challenge that had defeated every Democratic president since Lyndon Johnson — how to expand access to health care for millions of citizens who didn’t have it. Obama won a brutal battle to get the Patient Protection and Affordable Care Act through Congress, but it will matter little if the court invalidates the law.

Obama is also, of course, a candidate for re-election, and a defeat in the Supreme Court would be a disaster for his chances to win again.

If the court strikes down the law, the Republican candidate, presumably Mitt Romney, could say that the Supreme Court proved his own point — that the incumbent is an out-of-the-mainstream liberal. And Romney could add that his own health care plan, for all its similarities to Obamacare, passed muster in the courts.

For any president or any politician, losing is never good politics — and a Supreme Court defeat would mark Obama as a loser in a significant and dramatic way.

Tobin notes that a defeat would signal something more than just a defeat of one law — but of a kind of law that marked the mid to late 20th century:

But the larger issue in the case reflects a fundamental division in American politics that has persisted for generations: What is the role of the federal government?

Obama is heir to a political tradition of activist government, which asserts that the people can rely on programs that protect them from life’s misfortunes. The alternative tradition is based on libertarian principles, which hold that government interference in private markets generally does more harm than good.

What makes this case so extraordinary is that this debate, as a constitutional matter, looked settled for decades. After Franklin D. Roosevelt made nine appointments to the court during his long tenure in the White House, the Supreme Court embraced a broad conception of government power, especially when it comes to regulating the national economy. Constitutional challenges to government power became rare, and successful ones rarer still. The commerce clause became, in effect, a blank check for Congress.

But elections have consequences, and conservative presidents have appointed conservative judges, especially to the Supreme Court. Throughout the’70s, ’80s and ’90s, moderate Republicans such as Lewis Powell and Sandra Day O’Connor reflected the modern consensus that allowed a vibrant government role in the national economy.

But moderate Republicans are disappearing, including on the Supreme Court. Chief Justice John Roberts and Samuel Alito reflect the modern conservatism of the man who appointed them, George W. Bush.

Yes, indeed, elections have consequences. This is one reason why it has been almost stunning over the years listening to some Democrats talk about how they’d stay home during elections to teach their party a lesson because they didn’t like a policy or they felt a candidate was not liberal enough. This helped Republicans get into power and do what any responsible, competent political party would do: use its power and try to consolidate it. The Democratic New Deal/New Frontier/Great Society unraveling that began with the election of Richard Nixon in 1968 and continued in 2000 when some Dems felt they would send their party a message and vote for Ralph Nader could not have been sustained without some Democrats losing sight of that reality:

Elections. Have. Consquences.

The Politico offers six ways the court could rule.

And the fact that the court could go either way on this is a continued reminder not just of the GOP’s skill in various election cycles but near political negligence on the part of some short-sighted Democratic voters. Just listen to any liberal talk show to the inevitable caller saying how he/she would not vote for Obama because he didn’t get “the option” in the health care reform law, and it’s clear a big historical lesson has not been learned….

yet…

UPDATE: Time Magazine:

Listening to the heated rhetoric coming out of Washington, you may think the three days of health care arguments at the Supreme Court that begin Monday morning are about whether President Obama should have the power to force Americans to buy health insurance and order states to double the size of Medicaid through his 2010 overhaul of the health care industry. They’re not.

For all the focus on the Obama in “Obamacare,” the constitutional question before the court is not whether the executive branch has the power to remake the health care market in the United States, but whether Congress does. It was, after all, Congress that passed the law with a supermajority, enacting provisions that will eventually penalize Americans who don’t buy insurance and inThat’s why many conservative jurists find it difficult to challenge the health care reform law’s constitutionality. On paper, Congress has a lot of power when it comes to controlling commerce in America, and Republican appointees from the D.C. circuit’s Laurence Silberman to former clerk to Justice Antonin Scalia and 5th Circuit conservative Jeffrey Sutton have argued powerfully that Congress is well within its bounds in regulating health care, which represents 1/6th of the national economy.

Article 1, Section 8, Clause 3 of the Constitution, commonly known as the Commerce Clause, gives Congress the power “…to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” and over the years that power has been found to be very broad. The two most significant precedents for congressional commerce clause power are Wickard v. Filburn (1942) and Gonzales v. Raich (2005).

In Filburn, the New Deal court unanimously found that the government could penalize even the most private economic behavior. The court ruled that an Ohio farmer had to pay a penalty for growing wheat for his own use because not buying on the open market could affect grain prices nationwide. In Raich, Justice Scalia wrote as part of a 6-3 majority that Congress needed the expansive power to ensure that its regulation of drugs nationally wasn’t undermined by California’s permissive dope laws.

But Congress can’t control every aspect of American life through its power over the economy……….

         

20 Comments

  1. Of course the spam filter is eating my comments. Here I’ll try to break them up:

    I fear that, no matter what the ruling, it will be assumed to be politically motivated and will add to the divisiveness of our political dialogue, much like the Citizens United case. I think this is damaging, and since I think the constitutionality of the law is not clear, I’ll make this commitment: I’ll accept the ruling of the court, no matter what the decision, and will urge others to do likewise, whether they be on the left or the right.

    With that said, I’ll take issue with a few things:

    I don’t accept the conventional wisdom that democrats punish their own party by staying home. Democrats lose for the same reason anyone loses: they don’t motivate moderates/independently/indifferents to vote for their cause.

  2. Long term, I don’t think “the question” is how this affects Obama’s re-election. As you later quoted, this is about the larger and more important issue of the role of government. I welcome that debate.

    I don’t agree, however, with the implied assumption that this law is not much different than others that have been enacted, in terms of the role of government. It is unique in that it is the first that requires the purchase of a private good at the federal level. The court can strike that down without setting a precedent that will change the course of government.

  3. “The alternative tradition is based on libertarian principles, which hold that government interference in private markets generally does more harm than good.”

    This is not the primary libertarian argument. The fact that it is often portrayed as such reflects how much utilitarianism has crept into our dialogue, even though most of us would reject it if challenged. Libertarians aren’t libertarians because they think it will lead to better outcomes, or at least that isn’t the primary reason. Unless you defined “better outcomes” as “fewer instances of rights being violated”, but that is not what is meant when policies are described this way.

  4. Lastly, a minor quibble:

    “The alternative tradition is based on libertarian principles, which hold that government interference in private markets generally does more harm than good.”

  5. This is not the primary libertarian argument. The fact that it is often portrayed as such reflects how much utilitarianism has crept into our dialogue.

  6. Its not going to ruin Obama’s run for office if the ruling goes against him. Quite the opposite I would imagine. People are slowly starting to notice the pervasive hold big companies have on the govt, medical costs are rising well past inflation, and people are getting screwed. The GOP wishes to cement their position as coddlers of the rich and screwers of the poor, and this will go a long way. I don’t think there is a positive outcome here for the GOP. Either its gets thrown out and tens of millions are denied health care and the dems get really motivated, or it goes thru and Obama is hailed as a victor even though he has just waited for the results.

  7. “Health insurance for 30 million citizens hang in the balance in this case.”

    Are you sure? I would say more like 60 million as many employers will pay the penalties and shift employees to the state exchanges.

    And how they will love those. Based on Medicaid, reimbursement will be lower than they get with todays insurance, so find a doctor that will accept payments less than the cost of an oil change for your car.

    Once “people read the bill and know whats in it” then they will really begin to understand the problems this bill causes.

    healthcare payment reforms were needed, but not one that throws millions into a reimbursement system many doctors will not participate in. Just call a few in your home town and see how many accept medicaid now.

  8. Americans denying each other health care is just too funny.

  9. “Government interference in private markets” is inevitable. It’s one of the reasons we have government in the first place. We’ve learned enough about human nature over the past several centuries to realize the honor system requires checks, balances, oversight and regulation. Would that this were not so, but reality intrudes. I hope the USSC really steps up the plate on this and makes a sane ruling. I wish I had more faith in their ability to make sound judgements.

  10. That the phrase “government interference in private markets” can get by without a pass is a sign of just how much libertarian and/or Ayn Randian logic has crept into our discourse.

    There has been no time in history, anywhere, any era, which did not feature government. Markets require government to function at all. It is a prime function of government to regulate markets. There is a strong case to be made that the only good reason to HAVE a government is to regulate commerce (which is what we mean when we say “government interferes with private commerce”).

    The very existence of corporations is a government imposition on the market. So is money. So are all sorts of other things that make commerce possible at all.

    As for government forcing people to buy things: at the state level they already do that. So the question is really whether they can use an income tax penalty against you if you don’t buy something. The idea that an income tax penalty will profoundly change the nature of government is questionable. It is an unusual use of the power of taxation, but I frankly have a hard time seeing this as the epochal change some portray it as. I remember little things like THE DRAFT wherein the Federal Government required men to go to war whether they liked it or not. I remember having to fill out my little Selective Service card (under protest mind you) back when I turned 18. The notion that the government may draft me into military service is basically A-OK but can’t assess me a tax penalty if I don’t buy medical insurance, and therefore, the new law is a dire change to everything we know about government strikes me as a stretch.

    It’s hard to say how the court will rule; my guess is the uphold it but we’ll see.

  11. For the record, I nor anyone else on this thread has used the phrase “government interference in private markets” except in (imprecisely, as I pointed out) describing the view of libertarians. Obviously, it’s not necessary to show that all interference in private markets is undesirable in order to argue that *this* interference is undesirable. And of course what “undesirable” means depends on your political ideology. But, that is a tangent.

    “As for government forcing people to buy things: at the state level they already do that.”

    I don’t see what that has to do with the question before the court.

    Dean, I also don’t see the law as a “dire change” with respect to the power of government. I don’t think the law goes way beyond what the government has done in the past. It is an incremental progression, but at some point even an incremental progression can cross a line (in my view it has, but the question is murky enough that I’ve committed to respecting the decision of the court, which I agree will probably uphold it).

  12. I agree it’s an incremental change but a significant one nonetheless. As George Will put it, the question before the court is whether we have a constitution at all.

    Not sure which way I want the court to decide. On the one hand, we need health care reform. On the other, this one is a massive giveaway to the insurance industry, further cementing their position as deciders-in-chief of everyone’s health care.

  13. “As George Will put it, the question before the court is whether we have a constitution at all.”

    George Will can be pretty melodramatic for such a low key guy. ;-)

    If the supreme court does nix HCR and the decision is 5 to 4, democrats will be greatly energized. In any case, I agree with Dean’s comment:

    “The notion that the government may draft me into military service is basically A-OK but can’t assess me a tax penalty if I don’t buy medical insurance, and therefore, the new law is a dire change to everything we know about government strikes me as a stretch.”

  14. Dr J:
    what is your opinion regarding who ought to be “decide in chief” of our healthcare resources government or market?

  15. sorry, unable to edit: “decider in chief”

  16. Zephyr, the incremental and comparative arguments (“since we allow this, we might as well allow that”) are valid. They’re also incompatible with the notion of limited government. If you’re unwilling to draw the line at some incremental mission creep, you’ll never draw the line at all.

  17. Jeff, me, obviously. At least for the treatment I receive, I should be free to choose what’s “covered,” without having to pay three times as much as insurers do.

  18. Yes sir, in theory I agree, the market works best with simple supply and demand. But who decides “what’s covered?” Is that market driven (ie health insurance committee) or decided by governmental committee? The current mandate puts it in the hands of the insurance company, or sort-of free-market.

    It’s a resource question that I’m trying to get at, I believe at the heart of health care reform.

    Or, if we mean “I choose what’s covered for me” how will that work? Would it be better for the elimination of health insurance companies alltogether to enable a true market to exist, whereby if thousands of people want MRIs for headaches they are able to develop a market for headache-MRIs drive-through centers?

    I would do better to rephrase the question of “within the confines of the structure of healthcare in America,” who should be in the position of deciding allocation of healthcare resources? Or would real healthcare reform involve a fundamental restructure of the entire system?

  19. Jeff, the financial instrument needs to change from insurance (where someone else, either a private company or government bureau, sets the terms of payouts) to something closer to a savings account (where I decide what to spend the money on). If all the money I and my employers have been spending all these years on health insurance premiums had instead gone into a savings account, I’d have well over a hundred grand saved up–plenty to cover routine medical expenses and some catastrophic insurance.

    And I’d demand a transparent, competitive market, where prices are known in advance and don’t vary wildly depending on who you know–ie, what insurance company is paying your bills. MRIs for headaches? Seems like overkill to me, but if people wanted it, why not? It might make them feel better, and that’s the whole point.

    This wouldn’t take a reboot of our system, it would primarily take phasing out the tax deduction for employer-sponsored health care plans. That’s what keeps the current power structure in place.

  20. Dr J I agree. We have a terribly complex medical economics arrangement, third-party payors, consumers largely unaware of actual costs, and so many hands into the healthcare pie that fundamentally it would be exceedingly difficult to make major changes in what exists here.

    And in the current political climate anything that resembled a threat to someone’s hand in the pie would be tantamount to soc**lism or worse.

    I think the purchasing mandate was the perfect first step to solving at least a coverage problem, the “preexisting conditions” problem, the buy-insurance-right-when-you-need-it-then-drop-it problem, the requirement of 90% expenditure of receipts on actual health care problem, and hopefully in the future it can be a stepping stone to more transparency, more open and less obstructive markets where supply and demand can be more instrumental.

    Thanks for your responses!

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