Seven Consequences of the Health Care Ruling

“I have had some bitter disappointments as president,” Harry S. Truman wrote in his memoirs, “but the one that has troubled me most, in a personal way, has been the failure to defeat the organized opposition to a national compulsory health insurance program.” He was just the first in a long line of presidents stymied by health reform. Now Barack Obama has succeeded where his predecessors failed. Or has he?

The Supreme Court’s blockbuster decision on Thursday has consequences that will reverberate for years. Here are seven big ones.

Passing health reform has always been hard, but now it’s gotten a lot harder. The United States does not have national health insurance for a not-so-simple reason: Congress. The people elect presidential candidates who promise the reform. Congress, through the years, has said, no thanks. It is so difficult because it takes 60 votes in the Senate and tight discipline in the House. By climbing so visibly into the fray, the court served notice that it would become an active part of the process. Yes, the Democrats won — this time. But the decision was close, technical and studded with new barriers to Congressional action on profound challenges that remain. More than 15 million Americans are still uninsured, even with the health reform; the cost of drugs, devices and procedures continues to spiral; worsening inequality has exacerbated enormous differences in health outcomes. Future health reforms will take 60 votes in the Senate and 5 on the bench.

The biggest winner is the Roberts court. The court was drifting into perilous territory. A polite fiction long justified the idea of nine unelected justices overruling Congress and the states: They merely interpret the law. That fiction had been slipping badly ever since Bush v. Gore in 2000. A recent New York Times survey found that three-quarters of the public believed that politics was a frequent factor in court decisions. Political scientists have lots of studies showing just that. Striking down the signal achievement of this administration on a straight party-line vote would have put the court deeper into dangerous territory, with liberals gradually signing up for the longstanding conservative effort to curb the Supreme Court’s powers — perhaps by limiting terms to 15 years, for example. With his exquisitely complicated ruling — siding with the liberals on taxing powers, not on the interstate commerce clause — the chief justice restored the idea that the court is wrestling with the complicated tangle of law — not punching in a partisan vote. In the process, he slipped the health care issue right back to where it belongs: before the voters.

The biggest losers are Medicaid and the poor. Very quietly, the Affordable Care Act introduced a revolutionary change: All poor people in America would get Medicaid. The new law would have extended Medicaid to everyone with incomes up to 133 percent of the federal poverty line ($23,050 a year for a family of four). Aren’t the poor already covered? That depends on where they live. In New York, most adults up to 150 percent of the poverty line are covered; in Texas, Medicaid reaches only to 26 percent of the poverty line — a family of four is not eligible if they earn, say, $9,000 a year. The court ruled that Congress may not require states to expand Medicaid. States can stick to their old Medicaid programs. Stingy states may choose to stay stingy. That part of the decision flew under the media radar. But it is a significant blow to liberals who had a simple way to grow benefits by expanding programs.

For the Obama administration, the hard job begins now. When Truman put national health insurance in play, he did something bizarre. He refused to argue for it. While opponents cried “socialism,” Truman remained mum. That silence became a not so proud Democratic legacy. As soon as Mr. Obama proposed the legislation, opponents began repeating “death panels,” “taxes” and “government takeover”; the Democrats responded by getting down into the policy weeds of their complicated law. The president’s statement on Thursday was a case in point. Down the checklist he went: policy details, moving story, pivot to the economy. When you say health reform, my summer neighbors in New Hampshire all nod their heads and say “death panels.” The question for Obama and the Democrats: What do you have that will match that? If they don’t come up with something stirring, the reform that survived the court could be lost in the election.

Big changes are ahead for health care. When the Clinton health reform went down to defeat in 1994, something curious happened. The health care system ran with many of the reforms that the Clintons had recommended. The managed-care revolution sprang from the failed reform. The Obama reform promises even greater changes: new incentives for hospitals to deliver more efficient care, new incentives to nudge physicians into primary care, and powerful new rules to stop insurance companies from cherry-picking the people they cover. The court gave the hospitals, doctors and insurance companies a green light to run with these changes. In many cases, they will. The medical system is going to change regardless of what Mitt Romney might do in his first week in office.

For the Republicans, “no” is not enough. Republicans have their campaign slogan: Repeal and replace! But history has a funny lesson for them. Every Republican administration in the past 60 years has proposed health care reform. There is no escaping it. What is the next Republican administration’s health care policy going to look like? There are plenty of popular provisions in the Affordable Care Act. The party of “hell, no” might be wise to think of ways to remake the law in its own image. Repeal may sound good now, but history is unambiguous. An administration without a health policy will soon be vulnerable to attacks. Cruel! Unfeeling! Out of touch! A quiet Republican conversation about what to cut, what to keep, and what to change will pay big dividends in the future.

But Democrats can’t rest easy. The Supreme Court weakened a major prop of classical liberalism: the interstate commerce clause. When Congress passed the blockbuster Civil Rights Act of 1964, it relied on its interstate commerce powers. Even an Alabama barbecue shack with a local clientele could not discriminate against blacks; after all, it served food that came from out of state. The Supreme Court this week backed way off from that expansive reading of the commerce clause. Mainstream Democrats looking to expand social welfare policies have gotten lazy: they’ve recycled Republican ideas — Bill Clinton borrowed from Richard M. Nixon the idea of building on employer-based private insurance to achieve national coverage, and Barack Obama borrowed from Republicans like Senator John Chafee of Rhode Island the idea of mandating individual coverage to broaden the private insurance pool. It’s high time for the Democrats to get more creative.

An earlier version of this article misstated the location of a barbecue
shack that was barred, by the Supreme Court, from discriminating against black customers following the passage of the Civil Rights Act of 1964. It was in Alabama, not Atlanta.

James A. Morone, a professor of political science at Brown, is the co-author of “The Heart of Power: Health and Politics in the Oval Office.”

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In Health Ruling, Relief for Obama but a Blow to Conventional Wisdom

The Supreme Court’s 5-to-4 decision on Thursday to uphold most of President Obama’s health care law represents a hurdle cleared for Mr. Obama. He had been at risk of seeing his most ambitious policy initiative — and most expensive, in terms of the political capital it required — neutered or
overturned by the court.

If Mr. Obama is the victor from the standpoint of public policy, however, some observers have claimed that the decision could help Mitt Romney in terms of electoral politics.

With due respect, I think this counterintuitive conclusion is too cute by half. It may involve the same sort of wishful thinking that liberals were guilty of when some began to argue that the court striking the health care bill would actually help Mr. Obama politically.

Other analyses issued before the decision had implausibly argued that both Mr. Romney and Mr. Obama could benefit from the law being upheld. They seem to forget that in contrast to public policy, electoral politics is largely a zero-sum game.

The health care law is likely to remain fairly unpopular; opinions about it have been essentially unchanged for most of the last two years. The bill was probably partially responsible for the significant losses that Democrats endured in the 2010 midterm elections.

But continued dissatisfaction over the health care bill was presumably already priced into the polls. A decision that upholds the status quo is not likely to change that much.

To the extent there are marginal effects of the court’s decision, they would seem to be positive for Mr. Obama. The framework of the bill has now been endorsed by the court, including by John G. Roberts Jr., the relatively conservative and relatively well-respected Chief Justice who wrote the majority opinion.

To be clear, the risks to Mr. Obama may have been somewhat asymmetric. A decision to strike the law might have harmed him more than the decision to uphold it will help.

And be wary of whatever the polls say for the next week or two — the short-term reaction to the news of the ruling may not match its long-term political effects. As before, the presidential election is mostly likely to be contested mainly on economic grounds. Next week’s jobs report is likely to have a larger effect on the election than what the Supreme Court ruled on Thursday.

But particularly given the public’s confusion over the health care law, my view has been to keep it simple: Mr. Obama got the good headline here, and that is likely to be most of what the public reacts to.

It is not as though, if the law had been struck down, Republicans would have stopped talking about the folly of the legislation. Members of the public, in mostly opposing the law, had not been objecting to its technical details, some of which they actually supported when quizzed about the specific aspects of the health care overhaul.

Instead, it was to the impression that it represented an overreach on behalf of Mr. Obama — at a time when there is profound skepticism about the direction of government and the efficacy of its policy — that left him vulnerable.

When the dust settles, it seems implausible that Mr. Obama would have been better off politically had his signature reform been nullified by the court. Then Mr. Obama’s perceived overreach would have had the stench of being unconstitutional.

Some of the analyses that claim the law could help Mr. Romney instead argue that Thursday’s decision could motivate the Republican base. But the Republican base was already reasonably well motivated for the election. A decision to strike down the law, meanwhile, would have represented a victory for movement conservatism — and victory can be its own motivating force.

Although some liberals had claimed that a decision to strike the law could have motivated Democratic turnout in anger against the Supreme Court’s decision, it can likewise be argued that it would have left Democrats despondent, particularly given that any efforts to replace an overturned law would have faced huge political obstacles in the near term. The effects on the party bases are hard to sort out.

It is what passes for conventional wisdom that may have been the clearest loser with the court’s decision. Sentiment in prediction markets and among pundits had been that the law was more likely than not to be overturned.

As I wrote on Wednesday, some of these analysis may have gotten ahead of themselves in trying to read the tea leaves.

Statistical methods to predict the court’s decision, which have been more reliable than expert judgment in the past, had pointed to a case that was too close to call.

In another blow to conventional wisdom, the decision to uphold the law came in a 5-to-4 vote, but with Chief Justice Roberts voting with the four liberals on the court while Justice Anthony M. Kennedy voted with the conservatives — and he signed a strongly worded dissenting opinion that claimed the entire law should have been struck down.

This permutation had been considered unlikely by experts, most of whom had predicted a 6-to-3 ruling for the law, or a 5-to-4 ruling against it, with Justice Roberts and Justice Kennedy voting together in either case. And if the decision had been 5 to 4 in favor of the law, it was thought that Justice Kennedy and not Chief Justice Roberts would have been more likely to join the majority.

Who came out looking better than the pundits? Interestingly, it may be high school students.

High school students participating in a Supreme Court “fantasy league” sponsored by the nonprofit Harlan Institute had been about evenly divided in predicting the court’s decision, with 57 percent thinking the mandate would be overturned and 43 percent saying it would be upheld.

Nor did the oral arguments in the case, which substantially affected the conventional wisdom, alter the students’ opinions much. Instead, they had seen the case as a tossup from the beginning.

I suspect these students would have been wise enough to avoid some of the counterintuitive speculation about the decision’s political effects that you will now be seeing on television.

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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.

Michael D. Shear contributed reporting.

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