The political sidebar to the three days of Supreme Court arguments over the Affordable Healthcare Act suggests that even if the law is overturned– partially or totally– President Obama may well emerge the winner. The fall election will feature extensive debate over the law and the Court opinion, but what politically will count is whether the President or his opponent are best able to develop a catchy ad or phrase which will grab the public. One ought not to assume that the President needs to have the Court uphold the law for him to be gain the upper political hand in the fall debate.
Court observers are spending their time trying to psyche-out the Justices positions based on their questions, but, over the years, it frequently has been demonstrated that questions during oral argument are as much to prod or confront the attorneys as well as their colleagues on the bench. It is great fun and makes wonderful copy but it is strictly gamesmanship. This is especially true because the corpus of cases that these Justices have decided as a group is so small.
Ironically, Romney carries on his back the fact it was the Massachusetts healthcare law, passed in his Administration, that was the model for much of the federal law. Romney, assuming he is the nominee, may be best served if the Court upholds Obamacare. It will enable him to avoid the issue much more easily than if they declare it to be unconstitutional, when he will hard pressed to disassociate himself from the law.
For the President, if the law is upheld, he will be running as the person who gave 35 million uninsured Americans healthcare. Together with killing bin-Laden and turning around the economy he should be able—despite his demonstrated managerial incompetence—to get re-elected. If the law goes down, he will use bin-Laden and the economy, while attacking his opponent and his opponent’s Party for delighting in the damage done to trying to fix the American healthcare system.
As a further aside, to the hullabaloo that has been running around Washington, probably the most maddening was the self-righteousness of Republicans who championed individual mandates long before Obama was even a member of the Senate, let alone President. In addition, that the opponents of the existing law—which admittedly has serious flaws and problems to be corrected—can actually blithely suggest that no one ought to be concerned if the Court strikes down the law because Congress could pass a series of six or eight bills which would quickly put in place the important constitutional portions of the law. This is being said in a period in which the House and the Senate are at persistent loggerheads over debt ceiling extensions, sequestration, and tax cuts; in which the blame game is the only legislative contest in town; and in which Democrats and Republicans are concerned only about winning in November. If the law is stuck down, it could be ten months—at a minimum–or even ten years before many of the provisions that might be struck down would be re-visited by any Congress.