Conventional wisdom says that if the U.S. Supreme Court rules that it's unconstitutional for the federal government to mandate all Americans buy health insurance, it will be a huge blow to President Obama's re-election campaign.
And even though Mitt Romney—who passed a statewide health bill requiring a similar mandate during his time as Massachusetts governor—has so far successfully distanced himself from Obamacare by vowing to repeal it, there is evidence he could also suffer from such a ruling.
That's because Romney's defense of his Massachusetts health plan mirrors the main legal argument against the individual mandate – that the federal government is overreaching its constitutional authority and impugning states' rights. Romney says as governor, he was well within his rights to mandate coverage to all Massachusetts' residents. But as his presidential campaign moves on, Romney's nuanced distinction between the two laws is not likely to resonate with the American public.
Leonard Steinhorn, a public communications professor at American University, says making the differentiation between states' rights and the rights of the federal government has inoculated Romney from being buried by his GOP rivals, so far.
"He's saying, 'It's right for Massachusetts, it worked, but it may not be right for the rest of the country. That's why states took it to the Supreme Court to challenge it and I respect that,'" says Steinhorn. "To some tea party folk and conservatives, it might irritate them, but if anything it might benefit him because he isn't seen inflexible. He seems willing to experiment with his own state, but not willing to impose that on everyone."
But the argument of states' rights versus the federal government is not why Americans oppose the mandate, according to polling data collected by Kaiser Family Foundation, which provides extensive health policy analysis.
The top reasons people oppose the mandate, given in their own words, are that the government shouldn't be able to force people to do something they don't want to do, that health insurance is too expensive and complaints about the potential fine for non-compliance.
And all of those objections also apply to the mandate in Massachusetts, which will make it sticky for the expected Republican presidential nominee when he faces more pointed questions about how his healthcare reform fundamentally differs from the Affordable Care Act during the general election.
Rustin Silverstein, managing director of the legal crisis communications at Hamilton Place Strategies, says there may be a silver lining for Romney in spite of a Supreme Court rebuke of the federal mandate.
"If the Obama healthcare reform act is declared unconstitutional, Romney will be better able to pivot from awkward denunciations of 'Obamacare' to subjects more suited to his background and campaign message, such as the economy and the federal budget," Silverstein writes in an analysis posted on his firm's website.
If the court determines it is appropriate to weigh in on the case brought against the mandate, which had oral arguments this week, the ruling is expected near the end of June.
In the most recent Kaiser survery, the polling firm found that 51 percent of Americans think the Supreme Court should consider the mandate unconstitutional, compared to 28 percent who think it should be upheld and 21 percent who weren't sure or declined to say.
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