As the Supreme Court debated the fate of the Affordable Care Act this week, anxiety spread throughout the leftward legions. Progressives, liberal elites, those who reject labels but still love Downton Abbey -- we've all become antsy. And here's a spoiler alert: The situation is actually worse than people think. Whether Justice Kennedy wakes up on the left or the right side of his bed this summer, the Court's ruling will hurt President Obama's campaign. The reality is that the political battle over Obamacare has already been lost.
This has nothing to do with Solicitor General Verrilli's performance this week. Depending on whom you ask, Mr. Verrilli's defense of the individual mandate resembled something between a mildly alarming debacle and the causeway ambush of Sonny Corleone in The Godfather (see below for a visual approximation of Verrilli's oral argument).
The SG proved incapable of articulating a limiting principle to cabin Obamacare under the Commerce Clause, and the aggressiveness of the inquisition was disturbing, particularly to those in the room. Granted, the news sensationalizes everything, but some of the legal correspondents returned to their network studios looking like shell-shocked soldiers trying to describe the horrors of 'Nam to their families. CNN's Jeffrey Toobin wore a particularly squeamish expression as he described the events: with the sound off, he could well have just witnessed Verrilli be covered in barbeque sauce and dunked in a tank of piranhas. And the definitive evidence things didn't go smoothly? Rachel Maddow spent the first half of her show preemptively attacking the institutional integrity of the Court and ranting about Bush v. Gore; Sean Hannity spent the first half of his show laughing maniacally and tossing around his idiotic toy football, as though he'd just found tape of the president with a goat.
But however Kennedy comes out, the Court's apparent decision to reach the merits is bad news for the Administration. Let's consider the nightmare scenario first. Say Kennedy decides to shred the ACA, turn it into his own personal wallpaper, and redecorate his chambers with it. It would be catastrophic. To be a bit rude for a moment, those arguing that this would actually help Obama get re-elected are either fools or deluded contrarians. (Don't kill me in my sleep, James Carville!)
First, the holding would announce to the world that Obama is, at least by constitutional metrics, outside the mainstream (read: a radical). It would vindicate every nutty right-wing pundit who has claimed that he is not only a liberal president, but somehow an illegitimate one operating outside the bounds of the law. This would be the story, even if it's an unfair oversimplification of the truth. In reality, would invalidation be anything other than another judicial overreach by a politicized court, akin to Citizens United? No, not really. But presidential martyrdom rings hollow, and trying to sell that explanation in swing states would be like trying to teach mandarin to a badger.
Second, invalidation would wipe out the principal political achievement of Obama's first term. A year-and-a-half of his presidency, the period during which he was attacked for prioritizing his party's holy grail over the economy: gone -- as though he'd spent it playing MarioKart or devising his March Madness bracket. It would be an indictment of his stewardship and managerial competence. Say what you will about the ideological composition of the Court, but if such an outcome were so predictable from the judicial personnel, shouldn't the president's lawyers -- hell, Constitutional Law Professor Obama himself?! -- known not to prioritize such a doomed crusade?
Third, a federalism-based rejection of the ACA dovetails nicely with the Romney campaign's healthcare talking points. So far, Mr. Romney's only answer to the Romneycare-Obamacare coupling has been an unconvincing, federalist distinction: that his health law was good for Massachusetts but bad for the nation. A Commerce Clause takedown by the highest court in the land lends that response some legitimacy: The federal government isn't authorized to issue an individual mandate, whereas Massachusetts is. (Mitt's known it all along!) Romney's been searching for evidence that something insidious happens when you apply a state healthcare plan to the entire country. Even if the Court's word is based on law more than policy, it would qualify.
And what if the Court upholds the ACA? The ruling would be a rallying cry for conservatives and a boon to right-wing turnout in November. Obamacare is an unpopular piece of legislation, and has been one from the start. You wouldn't quite call it a political lemon, but it's probably fair to say it's evolved into a strain of tangerine. An ABC/Wash. Post poll from last week finds that a majority of Americans want it repealed, and two-thirds want the Court to throw out at least part of it. If you're running a re-election campaign, time spent defending something 2/3 of the country wants invalidated is dicey territory; David Axelrod would likely prefer his candidate talk about other things -- like the auto-rescue, or financial reform, or maybe the most recent Mad Men episode.
And yet, before reaching the Court, the ACA had lost resonance since the midterms. Romney's impending nomination alone is proof that the histrionic fever over Obamacare had passed into remission. A summer ruling revitalizes the debate, injecting it back into the news without Romney having to expose himself to the hypocrisy of insurance mandate attack ads. The Court will do it for him, whatever the holding. Justice Kennedy could write a glowing opinion, seal it with a kiss, and attach a 'Yes We Can!' pin; it won't matter.
The ACA has unfortunately gone from polarizing to a political liability, and the Court's ruling is going to end up damaging the president's chances in November. That much is a foregone conclusion.
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