A High Court week for Obama

Patricio Navia

Buenos Aires Herald, June 26, 2012


The Supreme Court decision on Obamacare, expected for this week, will potentially redefine the assessments of Obama’s first term in office and might have unintended consequences on the 2012 campaign. A partial rebuke of Obamacare will embolden Republicans and weaken Obama. A more comprehensive repeal will eliminate some popular provisions in the bill, complicating Romney and the Republicans. In the unlikely event that most of Obamacare is upheld by the Supreme Court, President Obama will have scored a decisive victory toward winning a second term in November.


The Supreme Court is expected to issue its decision on health care this week. Yesterday, the court upheld some key elements of the controversial Arizona anti-immigration bill. The court ruled unconstitutional some of the most controversial provisions—like the power of Arizona police officers to arrest, without a warrant, people suspected of being subjects of deportation under federal law. However, the Supreme Court upheld the central tenet of the bill that grants Arizona law enforcement officers the right to verify the legal status of people suspected of being in the country illegally. The Court’s decision on immigration reflects its conservative bias. However, the fact that the 5-4 conservative majority was split on some key issues of the Arizona legislation confirms that this year’s rulings will produce some interesting surprises in the coming days.


On healthcare, the Supreme Court is widely expected to rule against the Obama administration. When arguments in favour and against Obamacare were presented before the court this past April, questions by the justices reflected a very critical assessment on the part of a majority of the court on a central tenet of Obamacare. The universal mandate by the federal government to purchase healthcare emerged as the most controversial feature of the legislation and the most likely to be ruled unconstitutional when the court issues its ruling this week. If the court declares that provision unconstitutional, Republicans will score an important victory.


Romney will seek to transform that ruling into a rebuttal of the entire four-year Obama term. Though the ruling will further polarize Republicans and Democrats alike — rallying progressive voters and campaign contributors behind Obama — the general public will perceive that Obama was defeated by the court. Obama’s list of accomplishments in his first term will be stripped of one of his key legacies. The president will suffer a big setback in his re-election strategy.


Thus, Republicans are anxiously waiting for a decision against the White House this week. They expect the ruling to boost energy among rank-and-file Republicans who have shown little enthusiasm to work for the Mitt Romney campaign. Since Romney does not have the personality to engage Republicans, a Supreme Court decision will come in handy for a party that needs an issue to rally its supporters around.


However, if the Supreme Court deals an even bigger blow to Obamacare, eliminating provisions other than the personal mandate — or even declaring Obamacare entirely unconstitutional — the Republicans will have fewer reasons to celebrate. In fact, Obama will have a great opportunity to transform the Supreme Court decision into a powerful campaign message. Republicans, now in charge of the House and with a good chance of taking over the Senate, also have a commanding control of the Supreme Court. Americans have a special preference for divided power.


Handing over the White House to Republicans will mean that the GOP will exercise unprecedented political power. Moreover, because some of the provisions of the Affordable Health Care Act — Obamacare — are rather popular (like allowing children under the age of 26 to be on their parents’ insurance, and the prohibition to impose lifetime limits on some benefits), a rejection of the entire legislation as unconstitutional will do more damage to the Republicans than to Obama.


If, against all odds, the Supreme Court upholds most of Obamacare, including the individual mandates, the President will have scored an important victory in the road toward his re-election. Republicans have spent considerable energy and resources trying to undermine Obamacare. Despite having championed a similar healthcare reform in his own state of Massachusetts when he was governor, Mitt Romney has embraced the “repeal Obamacare” slogan, so popular with the most conservative wing of the Republican Party. Moreover, since it is widely expected that the Supreme Court will repeal at least the individual mandate component of the healthcare act, anything that looks like a victory for Obama will put the Republicans on the losing side in the eyes of public opinion.


To be sure, the November election will be decided on a multiplicity of issues, not just on healthcare. Moreover, in the next few months, both candidates will make their best effort to take the Supreme Court decision and spin it in their favour in the campaign. The health of the economy, unemployment and economic outlook in decisive states will probably have more of an effect on the November result than the decision expected for this week. Still, the Supreme Court ruling will be seen as an important step in the race toward the November election. The odds are against President Obama.