Michael D. Shear contributed reporting.
Tuesday, April 10, 2012
Whatever the Ruling in Health Case, Bipartisan Fallout
The political side of the president may need to draw upon his judicial patience as he awaits a ruling that will help shape the final stages of the presidential race. For all of the fretting by liberals and the tea-leaf reading by legal analysts about the pointed questioning from the justices about the health law, there is but one certainty: There will be substantial political fallout no matter how the court rules. Successful political races, particularly presidential campaigns, are built on planning for every likely outcome. Mitt Romney, should he secure the Republican nomination, would confront tricky political calculations regardless of the ruling, given his role in enacting a health care law in Massachusetts built around the same type of mandate at the heart of the Supreme Court case. But for the White House and the president’s re-election team, the challenge begins immediately. They must publicly defend the law’s constitutionality and push back against suggestions that the battle is already lost, even as they privately piece together a contingency plan if the law — or part of it — is overturned. The early outlines of the plan came into view on Wednesday as the administration aggressively promoted the more popular provisions of the health care law. That offered a glimpse of the next three months, as the court wrestles with its ruling on the most sweeping piece of domestic legislation since Medicare was created in 1965. “It’s foolhardy to try to predict the outcome of this decision based solely on the questions of the judges,” said Josh Earnest, a White House spokesman. He added, “If there is a reason or a need for us to consider some contingencies down the line, then we’ll do it then.” It was two years ago that Mr. Obama stood in the East Room of the White House and signed the health care bill, pausing as his supporters in the crowd sounded the old rallying cry of his presidential race: “Fired up! Ready to go!” Health care had been an important issue in his campaign, but hardly the central thrust. If the Supreme Court strikes down the health care law, Republicans hope to make it a prominent element of their effort to deny him a second term. “It would be a tremendous validation,” Gov. Bob McDonnell of Virginia, a Republican, said in an interview. “A victory in court would say that a trend toward big government solutions out of Washington has a limit and the biggest accomplishment of the Obama administration is unconstitutional.” If the administration loses its argument, one early strategy is to run squarely against the Supreme Court. Democrats believe that Mr. Obama could fashion himself as a modern-day Franklin D. Roosevelt, trying to convince voters that a majority of the justices are in the pocket of the Republicans. A Democratic senator on Wednesday referred to that as the “martyr strategy.” That approach, while galvanizing for Democrats, could also unify conservatives who have been slow to embrace Mr. Romney, in part because of his record on health care. If he becomes the nominee, Mr. Romney would confront an uncertain dynamic with any of the potential outcomes from the Supreme Court. He told Wisconsin voters on Wednesday that he was closely following the legal arguments. “If they find it unconstitutional and strike down the legislation, why, they would have done us all a great service,” Mr. Romney said, speaking on a conference call from Texas, where he was attending fund-raisers. “If for some reason it survives the Supreme Court or if it’s only struck down in certain provisions and not very broadly, we’ll have to deal with Obamacare in the other branches of the government.” For the last year, Mr. Romney has spoken out against the Obama administration’s health care overhaul and has pledged to repeal it. But Mr. Romney continues to face skepticism among conservatives over the Massachusetts law that he championed, which, like its federal counterpart, is built around a requirement that everyone purchase health insurance. But both sides, even as they quietly make contingency plans in their respective campaign headquarters, in Chicago and Boston, acknowledge that they must wait until the court rules, most likely at the end of June, to grasp fully the way forward. Despite suggestions from some Democratic activists that a ruling against the administration could energize the party and place the burden of finding a national health care solution on the Republicans, a loss at the Supreme Court would undoubtedly be significant for Mr. Obama. A decision to strike down the mandate or the entire bill would give greater legitimacy to the broader conservative argument that Mr. Obama has been expanding the size and reach of the federal government beyond what the Constitution allows. One Democratic adviser compared it to “a bad bloody nose” that would bleed for days or weeks. The television advertising, particularly in an era of unlimited donations to “super PACs” lining up against Mr. Obama, would be “a disaster,” another Democratic aide said, with an endless loop of headlines about the president’s signature accomplishment being rejected. Yet several other Democrats, even as they maintained their belief that the law would be found constitutional, said the Supreme Court could become a central issue in the fall campaign. “If this court overturns the individual mandate, it will galvanize Democrats to use the courts as a campaign issue,” said Neera Tanden, president of the Center for American Progress, a liberal research organization. “The idea that we would have gone through Bush v. Gore, Citizens United and now this.” Mr. Obama, who has signaled his intention to run against Congress in the mold of Harry S. Truman, could add the Supreme Court to his list of antagonists. It remains an open question whether the argument will resonate as it did in 1936 for Roosevelt.
