A long while ago I expressed that Obama lost the Obamacare litigation politically the moment the Supreme Court decided to take the case on a track to render a decision before the election. (Can’t find the post, help!)[see Update]
My view was that a total legal victory would motivate Republicans and center-right independents much as in 2010. A total loss would render much of Obama’s first term at best a waste of time. A split decision has a little of both bads.
David Dayen at the liberal Firedoglake sees it the same way in a post today, The Health Care Lose-Lose Scenario Facing Democrats:
With the Supreme Court ruling on the Affordable Care Act only days away, I have tried to play out all the potential ways the Court could rule and what they would mean on a purely political level this election. As best as I can tell, any Court decision is likely to be either a political wash for Democrats or a net loser. It is hard to make a case that any of the three most likely outcomes would really help Democrats or Obama this November….
While I don’t see how the Court deciding to leave the law in place would rally the Democratic base, there is a very good chance it could rally the Republican base. 2010 showed that Obamacare didn’t rally Democrats, but the desire to repeal it was able to energize Republicans. If the court upholds the law, Republicans’ only chance of getting rid of it will be to elect Mitt Romney, so the Romney campaign should be able to use it to build enthusiasm for his campaign….
The Court striking down the whole law would be devastating for President Obama and declared a huge loss for him by the media. Republicans would have bragging rights and “proof” that Obama overreached….
Even a limited ruling against the law would be a validation for Republicans and “proof” that Obama overreached. The validation of the Republican argument against the health care law might make the law even less popular and get the GOP base enthusiastic to finish the entire job of repealing it by electing Romney.
Under what decision scenario could Obama benefit?
Update: Thanks to commenter tomg for finding the lost post, Politically, Republicans cannot lose a 2012 Supreme Court ruling on Obamacare, September 29, 2011:
If the Supreme Court finds the mandate to be unconstitutional, it will deflate Obama’s presidency. In one fell swoop, the entirety of Obama’s agenda will come crashing down. It will be a political and personal humiliation.
If the Supreme Court upholds the mandate, Obama will be able to crow a little, but such a decision will leave the majority of people who hate the law with but one alternative: Throw Obama and Senate Democrats out in November 2012.
A pro-Obamacare ruling prior to the election will motivate the Republican base like nothing else, and will bring the independents along. If you thought the summer of 2009 was hot, just wait until the summer of 2012 if the only way for the nation to get out from under Obamacare is at the ballot box in November.
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Comments
Under the scenario that that obstructionist republicans refused to allow him to do the right thing-single payer
…and displayed how bi-partisan Obama is, by going along with the republicans-even to a fault.
Striking down Obamacare just proves how wrong the republicans are.
Now, they need to get out of Obama’s way–and let him do it right this time!
Hi, I’m sorry – how does the Supreme Court ruling on the constitutionality of a law make either political party look more (or less) bipartisan? The two are independent – two completely different sets of individuals making decisions years apart. I’m just not following – could you explain?
The professor asked:
Under what decision scenario could Obama benefit?
Since I know of no conservative that would say it could benefit Obama one way or the other, I assumed he was asking how the left would/could frame it to use to his advantage.
Hence, I gave the Ed Schultz talking points.
Kinda puzzled that so many could possibly think that’s what I actually believe.
One thing is for sure–the readers at this site are horrible at identifying snark/sarcasm.
I noticed about 18 years ago when I first began commenting on the Internet (it was Usenet back in those days, but the principle remains the same) that sarcasm, parody, and farce don’t work as comments on the ‘net unless you set it up in a very detailed way or explain it fully in advance, otherwise most people WON’T get your point. Something about the forum…
Did you leave off the sarc tag? Surely, you aren’t serious?
He’s not… and don’t call him Surely (Shirley).
😎
No, I won’t! I thought of that right as I hit the submit button.
I saw his reply too late : )
In one of the early healthcare debates, I recall Obama telling McCain and the Republicans that they lost in 2008 and that, “…elections have consequences.” In his own little Omega-dog way, that’s him saying, “Get outta my way! I got this!”
Yes, it is yours, indeed. All. Yours.
FTW: Hoisted. Petard.
I just have to ask … what color is the sky in your Bizzaro world?
Bipartisan???? Cooperating to a fault???? This the same party and people who wouldn’t even allow amendments and used legislative tricks and bribes to force through a bill that was considered doubtful even by many in his OWN PARTY?
And I also didn’t see his later response. YOu really need to put in the sarc tags, man …
I remember that post, so it does exist (just can’t find it at the moment).
But no, I don’t think any ruling will help Obama; the FDL analysis seems cogent. Frankly, whatever happens with 0Care, we’re fed up. That isn’t our only motivator, though it’s a big one, there’s everything else, long long lists of horrors.
But that’s us.
Lefties won’t budge, either (though either way many will stay home. They either don’t think he went far enough or think that 0Care is horrible. Notice how no one defends it on its supposed merits anymore, I mean no one. –as an aside: I hope the weather is awful. I’d walk in the snow in my bare feet to vote; they won’t).
That leaves Indies. Hmm, well, the thing is so unpopular that it’s hard to imagine them shrieking while pulling out their hair and rending their clothes should it be struck down in whole or in part. I have a hard time understanding most indies (the “I don’t have any principles or stand by any ideology” ones), to be honest, they’re not really engaged and, as hard as it is for us to believe, may not even know about it at all. I can’t see them caring either way, though they probably prefer it gone (if they know about it) judging from the polls. As for the other indies (those who’ve left whatever party they were affiliated with out of disgust for that or both parties), I suspect that they are mostly horrified by 0Care. It seems they tend to be fed-up generally with politics and big government, so landing a giant government debacle like 0Care can’t make them happy.
Besides, more people self-identify as conservative now than did even in 2008 or 2010. That’s good news for our side. 🙂
I’ve never understood how any outcome benefits Obama. If its upheld, its still the most unpopular piece of legislation since the Kansas-Nebraska Act of 1854, and will just make his opponents work that much harder to defeat him. If its struck down, it proves his critics right, disheartens his base, and makes him look like a fool.
The whole plan was that they’d get it passed, and once accomplished, peoples’ tempers would settle after a bit and 55% of the people would just come to accept it. That hasn’t happened. In fact, its less popular now than when it was passed. I don’t care how the cards get played, I’m not seeing a way that this isn’t an albatross chained to democrats’ necks.
Is this the post you were looking for, Mr. Jacobson? https://legalinsurrection.com/2011/09/politically-republicans-cannot-lose-a-2012-supreme-court-ruling-on-obamacare/
Yes, thank you!
I cant imagine any real positive that Obama gains by any sort of rejection by SCOTUS…even if its just the individual mandate. It will still require Congress to correct any flaws SCOTUS decides.
The only possible victory I can imagine…and it would be phyric at best is the economy or at least unemployment umproving as outlined here
http://news.investors.com/article/615646/201206211729/court-rejection-of-obamacare-good-for-economy.htm
Now that would be a bitter pill for the Administration. Obamacare is knocked down in Court and employers are so relieved they begin hiring again.
What I think all the distractions are about…gay marriage, immigration policy change etc is preperation for a bad day when SCOTUS releases the decisions. They are somethinng of a Hail Mary pass that perhaps …the administration reasons, might soften the blow.
In any event…the “spin” will be interesting to observe.
If any administration can spin a turd on a wagon into caviar…its this one.
What would be cool is if the Supremes upheld SB1070 (the Arizona immigration law) on Monday, Holder gets whacked with a contempt citation on Wednesday, and the Supremes whack Obamacare on Thursday.
What a week that would be, eh?
I can see one way in which striking down Obamacare could benefit the Democrats over the longer-term: it turns the health care system into a Republican problem. Obamacare becomes the martyr, the miracle law that would have fixed everything if only the evil Republican Supreme Court hadn’t struck it down in a malicious fit of judicial activism. Any problem that can be even tangentially connected to health care will be framed as a result of the Republican elimination of Obama’s signature accomplishment.
This wouldn’t be too bad if the Republicans had the brains and willpower to actually fix the health care system — but they don’t. They’ll make a few tweaks around the edges, and when the system craters anyhow it’ll all be their fault. The kind of fundamental reform needed to really put the health care system on a free and solid footing would never make it out of Congress. The Democrats will never allow it. Their short-term political interests will be better served by blocking effective reform and letting the media blame the Republicans for the consequences.
You are also right based on political & GOP reality. Good post.
I’m almost hoping the SCOTUS upholds the law in its entirety, because I think that outcome would ultimately be the worst case scenario for Obama and the Democrats. It’s such a horrible law and the consequences of fully implementing it would be so devastating, for both our health care system and our overall economy, that people would finally be forced to confront the truth about how idiotic and incompetent Obama and the Democrats who created this monstrosity really were.
And I agree with Kyle that if (when) the Supreme Court invalidates all, or even part, of the law, all we’ll be hearing for years is how much better off our health care system would have been if only the right-wing extremists on the SCOTUS hadn’t trashed Obamacare.
But we’re left relying on *Mitt Romney* to get rid of it.
Obamacare is becoming less popular because we are finding out what is in the legislation. The government is telling you to buy something from a private company or they trample on your first amendment rights.
What made the deal really bad were the backroom deals in Congress and with the private sector such as the insurance companies and the pharmacutical industry. The public didn’t like it especially when Obama promised to have a transparent administraion.
No telling what else is in there and it may be years before we find out. Which is even more reason to get rid of the whole law and start over.
Obama’s Transparency Policy
1. Give me money.
2. You get money and/or favors in return.
3. We now have something on each other.
4. Repeat.
If SCOTUS declares it unconstitutional, it could possibly energize the far left base. I can almost hear Axelrod & Wasserman-Schultz. “We’ve gotta have four more years, so we can get rid of this crazy right-wing Supreme Court.”
I think this might be the article you were looking for:
https://legalinsurrection.com/2012/03/risk-of-selecting-a-nominee-before-us-sup-ct-rules-on-obamacare-mandate/
Several of my patients (liberals/communists) have said that they are hoping the supreme court rules against the whole law, so they (the democrats) could fight for single payer healthcare.
I think their ability to do that depends on whether and how much the Supremes (hoping for Thomas to write the majority opinion!) gut/slash the commerce clause precedents that have been “found” over the last century.
lf SOTUS were to uphold it in its entirety or render a decision where it could be implemented in its essentials it is an Obama win. That was true on day 1 , its true today. Even a best case 57 GOP Senate would be hard pressed to repeal. With such a Court ruling a reverse Wisc. effect will kick in. The mushy middle has heard enough & will just want it to all go away. GOP majorities can delay by not funding but it will be slowly growing , waiting. The dems have always counted on this. The GOP must come out of its green zones & engage with the underclass. l know from personal experiance of working in the field the GOP simply will not do this.
I hate the fact that people are even considering that the Supreme Court is going to presume severability when the Congress took it out during the process. The law should be taken in its entirety or not, the Supreme Court is not a legislative body and if it can do this, why have a Congress?
The GOP can just repeal the law with reconciliation, as the rest of the law (if the Supremes find out they have magic legislative powers and just strike the mandate) should fall under the budget. The problem with this is I agree with others that the GOP is sorely lacking in testicular fortitude, especially with weepy Boehner and McConnell.
I hate it too, but it is a likely outcome. That I think it is probable does not mean I support that result. I agree, the law should be struck down.
The fact that Congress omitted the severability clause does not, I believe, automatically render the legislation either severable or unseverable. The legislation is silent on the topic, no? Hence, it’s another thing for the Court to decide.
Article today in the WSJ points to White House emails revealing Obama funneled $$ to Axelrod’s lobbyist firm.
The entire “reform” effort was huge expenditure of political capitol for Obama and all that’s come of it is Chicago-style corruption, political paybacks and healthcare industry crony capitalism that’s destroying jobs.
I can’t imagine any normal person actually defending this.
Rush said today that the House is ready to act to rescind the remaining aspects of the law should just the mandate be struck down. Doing so would give the Dems the opportunity to paint them as anti-reform, not just anti-Obamacare. The smarter thing to do would be to declare that real health care reform would be first priority (after jobs) when the new Republican House, Senate and President are sworn in in 2013.
A complete ban may energize the Dem base for the general election, but that result would still be preferred by the conservative/tea party base. That would be a huge loss for the Democrats. They would come off as dumbasses.
I suspect the result will be the mandate being struck down. That leaves everyone disappointed. No change in current status or slightly against Obama.
Obamacare being upheld would be a victory for Obama, but it would result in mobilizing the conservative base for the general election.
The only case I’ve hear articulated where Obama benefits goes like this.
Some Democrats have convinced themselves that the only part of the law we find offensive is the individual mandate. In fact, if that is declared unconstitutional, then Americans love the rest of it. So if that is overturned, it’s blue skies for Obama to November. Howard Dean makes this argument, and he is a contrarian who claims the individual mandate is not needed to finance all the rest of the stuff (coverage for pre-existing conditions, “children” stay on parents plan to age 26, etc.)
I don’t buy either his argument that we will fall in love with Obamacare once the mandate goes, or that it can survive financially without the mandate. But that’s the best argument I’ve heard for how it can help or be neutral for Obama.
Regardless of the decision, Obama and the democrats lose.
If the law is tossed out in total, it would be a total embarrassment to the president and party.
If only the mandate is tossed out, the law would be rendered largely useless thus yielding the same total embarrassment result.
If the law is upheld in its entirety, and given the mood of the country, great incentive exists for the GOP to go on to total victory in November and repeal it outright.
Just my 2¢ worth…
If the court rules a national emergency clause where by it would be the template eg in war , an ebola type outbreak or a mass Zombie attack.
During the AIDS epidemic we re- introduced a single payer national health system that had been put in by a Left govt & repealed by a ‘conservative’ govt. 30 years later it is still in force & working as one of the better models.
Incidentally Justice Scalia was here in Australia having a good look at it in 2010.
Another possibility s that SCOTUS finds something else entirely unforeseen by pundits that will throw a spanner in the works of both political parties. 5 days ago the Australian High Court gave a 7-1 decision that the T Party would applaud. On a ruling about State & Religion separation it said – don’t worry about the religion thing -we don’t see a problem.
However to the Federal Government it said –
There is nothing in the constitution that says you have any powers in this area (education ) nor that you can directly fund programs . We don’t see any legislation that over rides these set powers.
We are light years ahead of you guys in creeping Federal Powers & both sides of politics are now stymied.
You just never know.
I believe the Supreme Court has much more than Obamacare up its sleeve. Scalia mentioned it in his recently released book, highlighted in a post by Hot Air: http://hotair.com/archives/2012/06/18/new-scalia-book-landmark-supreme-court-decision-in-1942-expanded-commerce-clause-beyond-all-reason/.
It appears there is some momentum to revisit the Wickard v. Filburn ruling as an unintended precedent for the bastardization of the Commerce clause. Obamacare might have the unintended consequence of turning Supreme Court precedent on it ear, recasting that awful ruling as the outlier it should be.
Yes RD -thi is very similar to the bobshell delivered in my post above.
99% of all lawyers are in shock not to mention policians (who are mostly one & the same). They are thinking -hey we did not see this .
Justice Scalia spoke at Legal Exchange forums here sponsored by his former clerk -now the US Ambassador. This went under the US media radar but he prety much outlined the ideas in this book. I don’t remember the Commerce clause specifically more International Law’s Trojan Horses being let in the gates.
I definitely will try & get that book .
Bombshell but hey Im still in surprise mode.
I dont see a revisit of that ruling in the cards perse but obviously it will be revisited to some extent within the Obamacare decision. I believe either Scalia or perhaps Thomas will bring it up depending on who exactly joins the opinion.
This case will be talked about for a long time as some new “rules” will become established. Check at Volokh conspiracy and youll see a video with Randy Barnett who describes what Im getting at. The part where he brings up “fundamentally changes the relationship with citizens”. The lawyers for the government tossed that reasoning aside..didnt think it was important. And here they are. Waiting for the death certificate.
Linky to the short video
http://www.volokh.com/2012/06/22/my-politico-interview-on-the-aca-challenge/
I look at it differently.
ObamaCare has energized opposition to it.
If the SC takes it off the table, it could well lower the energy level.
OFA and the DNC have been preparing the battlefield by sending, mostly to women, cards that outline what ObamaCare will give them for “free.”
If ObamaCare is struck down or delayed, I fully expect them to send new cards telling them that the Republican & SCOTUS took these away.
Frankly, I have been convinced that Team Obama has been treading water waiting for the SCOTUS to rule because this is the best “shiny object” that they have to make people believe Obama was better.
I think the Mandate is Dead in the water, and that the Court will not try to comb through the mess of what remains; i.e., its over.
Do hope that Scalia be sure to record in his opinion for posterity what he said during oral arguments…that the process by which the legislation was passed (rammed through) violated the Constitutional proscription on Venality.