June 25, 2012

Will a Supreme Court decision decide the election?

This week is shaping up to be a pivotal week in the Obama presidency vis-a-vis his chances to be re-elected in November.  The Supreme Court (SCOTUS) is expected this week to hand down its ruling on the constitutionality of the Affordable Care Act a.k.a. Obamacare.  While the November election seemed to be on a slow but predictable path to a specific outcome, the ruling by the SCOTUS could very well be a game changer.  What happens after the ruling will depend on what the ruling is.

As the Wall Street Journal points out, there are four potential outcomes in the ruling:
Scenario #1: The entire law is upheld.

After all is said and done, the high court may conclude—as the majority of lower courts did—that Congress was acting within its powers under the Constitution when it required most Americans to carry health insurance or pay a penalty. That provision was at the center of the two-year legal battle, and if it survives, the rest of the law is likely to stay as well...

Scenario #2: The insurance mandate is struck down, but the entire rest of law stays.

This was the ruling of a federal appeals court in Atlanta last year, and the Supreme Court may choose to uphold it. In this scenario, the high court would conclude that Congress exceeded its powers with the requirement to carry insurance or pay a penalty. But it would judge that provision separable from the rest of the law...

Scenario #3: The mandate and two related provisions are struck down but the rest of the law stays.

At Supreme Court arguments in March, the Obama administration, fearing the market chaos in scenario #2, argued that the insurance mandate was inextricably linked to two other provisions. Those provisions require insurers to accept all customers and restrict the insurers from charging more based on a person’s medical history. The administration said if the mandate were struck down, the other two provisions should go too...

Scenario #4: The entire law is struck down.

If the high court concludes that the insurance mandate is unconstitutional, it may agree with challengers that the only path is to invalidate the entire law.
How likely each outcome is is not clear, but Scenario #1 is sounding unlikely.

What happens next under any scenario is a muddled mess - the impact is on insurers, patients, doctors and of course, politics.  Under Scenarios #2, #3 and #4 there are sure to be different sorts of fallout for President Obama and his presidential challenger Mitt Romney.

If the mandate is struck down it is likely the president will do one of two things - attack what he considers an "activist court" and/or talk about the need to redouble liberal efforts to push through a cleaner version of the Act.  He'll likely claim that the mandate is not dead, just in need of some tinkering to clean things up at the margins.  What the president gains by those actions is fairly clear.

The president wants to be all things to all voters, attacking the court will be a means to firing up the progressive liberal base and maybe get them out to the polls with some if not enthusiasm, then at least some determination to get him re-elected.  Attacking the court is not likely to add too many to those who would vote against him.  Those numbers are fairly entrenched and those unhappy with him can't vote against him twice (unlike some who might vote for him...).  In effect, the attacks on the Supreme Court will be done as a Get out the Vote (GOTV) effort.

The position of wanting to re-work the law with some revisions will be done with a twofold purpose in mind. First, the president wants to come across as reasonable, that may appeal to some undecided voters.  If he attacks the Supreme Court, coming across as reasonable doesn't seem to be a plausible outcome, but that won't stop Mr. President. He and his team count on voters not catch the dichotomy and for many voters, it's managed to work for him in the past.  The president has never been reasonable with Republicans and he hasn't been verbally kind to the SCOTUS either. But he'll try.

As far as Mitt Romney is concerned, the mandate being struck down is a golden opportunity to hammer the president on two fronts.  Firstly, the president did not do due diligence on his signature piece of legislation, and that is just another indication that Obama is in over his head.  Secondly, the president in the midst of what he calls the greatest recession since the Great Depression took his eyes of the economy to focus on his wishlist, which has done nothing to stimulate the economy (we all  know it will have the opposite effect - well all of us except Nancy). It should be a win for him, but there are ways that it can backfire and Mitt Romney needs to be careful.  One obvious example is that the conversation can easily be steered towards the notion that Romney has no alternative to Obamacare.  Actually, the GOP does, Romney does, practically everyone does.  But by going there, the message of poor stewardship of the economy by Obama gets tossed aside as the Republican starts to play defense.

If the mandate plus the two other provisions get struck down, the resulting impact would be fairly similar to the mandate itself going.  However, it does provide a bit more of an opening for the president.  As the Wall Street Journal points out,
Politically, a ruling under this scenario would vindicate critics who called the Patient Protection and Affordable Care Act’s insurance mandate an unprecedented overreach of federal power. Mr. Obama would face an election in a little more than four months with the nation knowing that a core part of the law he signed in March 2010 was found to violate the Constitution.

Republicans would push ahead with plans to repeal the remainder of the law. Some Democratic supporters have argued that ways could be found to substitute for the mandate, perhaps through federal rule-making or state action. And Mr. Obama would be able to campaign on the law’s surviving consumer-friendly provisions.
While that may be true, pushing for repeal, poses particular problems for the GOP.  The strongest argument they have right now is that they can turn the economy around and focusing on health care, particularly after vast swaths of it have been declared unconstitutional seems myopic and misguided.  The right approach for Romney is to take an attitude that it was wrong, we knew it, we'll repeal the rest of it but our focus has always been and will continue to be that the economy is broken and needs to be fixed first.

For Obama he has more ammunition to say the court is being activist, and he will use it.  Where he has more room to maneuver is that he's got ammunition to say that the court is being political and politics indicates that conservatives don't care about the defenseless and weak, only about corporations.  Heck, Mitt Romney even thinks corporations are people.

That might stand a better chance of sticking on Romney and it certainly will be more likely to invite a response from the Romney campaign and divert attention away from the abysmal economy that Obama has fostered.  That as far as the president goes, can be considered a win.

If the entire law is struck down, the ball goes back into the Republican court with some Obama topspin that says the GOP don't have a plan, they don't care, and at least he and fellow Democrats tried to fix things. Most definitely that is spin, but with a compliant press, it may just work. Liberal progressives would be up in arms over the failure of the law to stick and it may turn out their base in numbers that they weren't expecting. But not in a game-changing way. &Democrats of that ilk, were going to turn out for Obama anyway.

Meanwhile Republicans were going to turn out against it.  They may be slightly less motivated to vote in November, but after 3 years of Obamanomics, I doubt it.  The one group that may be slightly changed are the middle of the road voters who were against Obamacare.  For some of them they may have addressed their single issue and they may not turn out to support Romney as a result.  Indeed, some of these voters may  agree with Obama in other areas, and with the defeat of their signature complaint, and a perception that it's over and done with, they may actually turn out to vote for Obama.  Ouch.

President Obama has a lot of upside potential with the progressive liberal wing of the Democratic party if the law is squashed.  But they were going to turn out for him anyway.  The real question that may swing the election in this scenario is how strongly the middle of the road voters feel about the president when Obamacare is taken out of the equation.  His personal likability numbers are still strong enough that those voters might feel a rebuke on Obamacare is enough and a vote for Obama in the fall on likability is enough.

Still, in my gut I think this nothing more than playing at the margins of the margins.  I don't think a Supreme Court decision will decide the presidential election.  With things going against Obama right now, I hope I'm right.  A wildcard always has more downside potential when things are going your way than when they are going against you.  And getting rid of Obama is still the number one task in  turning the country around.

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