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Posted by on Mar 26, 2012 in Law, Politics | 20 comments

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:


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….


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……….

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