November 14, 2011

IMPACT: Pre-election Supreme Court decision on Obamacare

The Supreme Court has agreed to rule on the Obamacare case brought against the federal government by 26 of the 50 states.  It will impact the 2012 elections because it's fair to expect a ruling before the 2012 presidential election.

The decision had been widely expected since late September, when the Obama administration asked the nation's highest court to uphold the centerpiece insurance provision and 26 states and a business group separately asked that the entire law be struck down.

The justices in a brief order agreed to hear the appeals.

At the heart of the legal battle is whether Congress overstepped its powers by requiring that all Americans buy health insurance by 2014 or pay a penalty, a provision known as the individual mandate.
This is the same court that the president imperiously took upon himself to criticize merely two years ago for making what he considered a bad decision.

While the lower court decisions have seemed non-partisan in different decisions on the law (a Democrat judge striking it down and a conservative judge seemingly saying there's not a reason to strike it down), don't expect the Supreme Court to be obliging for the president. As inappropriate as the president's comments were, you can still expect that the Supreme Court will take the merits of the case seriously on their own validity.

But partisanship ultimately will play a role because as dispassionate as one can be about the Constitution and the law in general, your interpretation of the law is colored by your own persuasions. The court, stacked with two uber-liberals under Obama is a divided court.  The decision will ultimately likely turn out to be a 5-4 decision either way, with most votes coming down on the issue as expected.  What may turn out to be the most political aspect of the case is when the decision gets made.  Does it get made prior to the 2012 election, or does the decision quickly follow the March hearing.  Given that the court has decided to hear it in March, I don't think the decision could be dragged out into November.  Having agreed to hear it, putting off a decision for more than 7 months does not seems feasible.

Assuming a decision happens prior to the 2013 election we start getting into game theory about the impact.

I'm going to take a slightly different approach however.

The result is likely to hinge on Justice Kennedy who according to the CNBC story, is leaning towards agreeing with court's liberal justices on the individual mandate being legal under some twisted interpretation of the commerce clause.


If the decision is made that Obamacare is legal, it may energize its supporters to vote in 2012, but it will certainly energize the Tea Party opposition to the mandate to get out to reverse the decision via the electoral process, since the legal process clearly did not work.  The impact will be two-pronged; we need to repeal Obamacare and we clearly need better justices.  In other words politically the most positive impact will be for the GOP, and the candidate, regardless of support will be helped.  That said, the candidates' prospective handling of Supreme Court Justice nominations will get a higher profile.  If Romney were to be the nominee he would be helped by the anger of the decision but if his potential to nominate Harriet Myers is a concern, he may net out even, and indeed it might even hurt his chances to be the nominee.

Conversely if the decision were overturned, the president's based would be the ones most energized by the SCOTUS decision.  That helps the Obama re-election effort, probably to a significant degree.  It certainly plays into the meme of him having a lot of work to still do, and the conservatives simply being obstructionist.  It also raises the specter of his non-involvement in the process and his outsourcing of the details of the law to Pelosi/Reid.  It raises the specter of him not being so legislatively brilliant as everyone claimed.  So too, is the prospect of an anti-Obamacare decision a double-edged sword for Obama.  While it will likely play into his re-election effort, it could also play into liberal anger with and disillusion in the sitting president.

Legal Implications

Interestingly, the Roberts court is considered on the numbers alone to be a slightly conservative-leaning court.  For them to bring this forward now has not only political implications but legal ones as well.  If you overlay the conservative legal opinion that the ruling must be overturned because it is Constitutionally invalid, it likely plays into liberal political objectives - an energized liberal base.  That too therefore is a double edged sword.  
On the other hand, if the court is to re-enforce the legality of it, it serves to energize the conservative base for 2012 by making us re-live 2009-2010 all over again.  But it sets a bad legal precedent in that it codifies the legality of the federal government requiring citizens to purchase something.  There is nothing originalist, conservative or Constitutionally logical in that position.  Legal precedent is a big, big deal, particularly in this instance.

To sum up: Legal - good politically for the GOP bad for the Constitution.  Not legal - bad politically for the GOP but good for the Constitution.  There's no easy out of that dilemma if you had your choice as a conservative as to which is your preferred outcome.  Ideally, the court would take it up, but just like Obama, punt the decision until after the election.  That would keep conservatives from being out-energized by liberals but still afford the opportunity to negate the legislation after the election.  The court it would seem, is more willing to take a stand and let the pieces fall where they may.  I think that seems to bode well for the Constitution and not so well for defeating Obama. At least for now.

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