Presidential campaigns are not unlike the arena competitions of Suzanne Collins’ novel “The Hunger Games,” in which children must fight each other to the death and survive by any means necessary.
It is a world in which the one who survives the longest is crowned the winner. Sometimes it means going on the offense, but defending yourself against the other contestants is more important. While in “The Hunger Games,” contestants face the threat of arrows and poisonous berries, presidential candidates face the threat of damning personal history and broken teleprompters.
Traditionally, Supreme Court justices have been mostly sheltered from this brutal political world, but if they decide to strike down the Affordable Care Act — also known as Obamacare — then those justices better prepare to face some arrows.
Based on the known ideologies of those on the court and their oral arguments on the subject, it is very possible and maybe even likely that the individual mandate portion of Obamacare will be struck down. This individual mandate holds most of Obamacare together. Without the added revenue supplied by previously uninsured healthy people mandated to buy coverage, insurers would be forced to raise costs to make up for the other portions of the law. For example, the act would eliminate the ability of insurers to deny coverage based on pre-existing medical conditions. If you noticed, the Affordable Care Act includes the word “affordable” in it, so if insurers raise costs because of the law, Obamacare becomes pointless.
Now consider the fact that Obamacare is one of the crowning achievements of President Barack Obama’s first term. If the court strikes the mandate down — a decision is expected in June — then I highly doubt Obama will come out with a statement that the court was correct, Obamacare is done, and we can call get on to debating other issues.
When you are in a presidential campaign, any and every statement you make can be used against you. So wihtout a doubt, Mitt Romney and the rest of the Republican machine will be all over the Supreme Court’s rejection of one of the few legislative achievements of Obama’s presidency.
For a campaign, rejection of Obamacare could be construed as an attack on the campaign, and every attack must be responded to. However, attacking the Supreme court is not very common, due to the long-held viewpoint by the public that the Supreme Court is impartial and never gets into politics. The Supreme Court has historically been the most trusted branch of government, so not many campaigns have gone there.
Obama did make a few comments not long ago that may preview his strategy. On April 2, Obama said, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Even if Obama was not once a lecturer on constitutional law, this seems to be a pretty naïve statement.
But historical accuracy aside, statement gives us a possible premonition of a campaign strategy taking the form of a populist argument, in which the Supreme Court is attacked for ignoring the will of the majority and for being undemocratic.
This is a strategy that may work on the many progressive small “d” democrats who are already on Obama’s side, but Romney’s campaign will likely respond by supporting the Supreme Court as an institution that defends the constitution against the abuse of power by the other branches. In this scenario, Romney would have most of history and the facts on his side.
What Obama should do instead is look toward the future. If the Supreme Court knocks out Obamacare, the debate on healthcare reform begins once again, and Republicans will not be able to come up with a realistic plan. Obama should come out and make healthcare a campaign issue once again, and ask Republicans to come up with a better plan than Obamacare.
I suspect they will not be able to, because truth be told, Obamacare was the most Republican-friendly healthcare reform plan that has been up for debate in recent memory. All other possible plans increase the size and power of government much more than Obamacare does. Obamacare was a compromise with Republicans, and if it is no longer an option then the only alternatives lie even more to the left.
Healthcare is a major problem in this country. If Obamacare is rejected, we will soon hear a lot more about it. Fortunately for Obama, the Republicans will have no way to solve the problem. If Obama can get this message across then he will be able to avoid the risky strategy of politicizing the Supreme Court. But more importantly, he will reinvigorate his base and catch the Republicans with their mouths wide open and an arrow in the head.