President Barack Obama has had little to say about the Supreme Court deliberations over his landmark healthcare reform law. Maybe he's been busy catching up on old episodes of Mad Men. Maybe he's been stewing about his NCAA basketball bracket going bust.
Or maybe he realizes that he has somehow turned a winning issue into a major political blunder, and it would be best for him to keep mum.
When Obama was elected in 2008, support for some kind of healthcare reform was high. Nearly half of all Americans said someone in their family had cut back on medical care or forgone medication in the prior year, because of the high cost. Few may remember now, but Obama's opponent, Ariz. Sen. John McCain, had his own reform plan, which suggests that something would have changed no matter who was elected president. Mitt Romney's reform plan in Massachusetts, which went into effect in 2006, was considered a model for the nation.
Just four years later, the Patient Protection and Affordable Care Act that Obama forced through Congress is nearly as divisive as the Iraq war. The percentage of Americans who support and oppose the law is roughly equal, but the detractors have the intensity of an oppressed population determined to eject an occupying power.
Opponents may also have a valid legal objection to the law. The Supreme Court is deliberating over the constitutionality of a key provision--the individual mandate--with many analysts expecting a narrow, 5-4 vote one way or the other. If the court strikes down the mandate, the whole reform law could unravel.
What went wrong?
If Obama were cynical, he could easily conclude that Americans are too stupid to know what's good for them. The law for the most part doesn't even go into effect until 2014, and once it does, the number of people likely to be forced to buy insurance against their will, or else pay a penalty fee, is likely to be far less than 10 percent of the population. Yet opposition to the law is much higher than that. Poll results suggest that many people who might be better off under the law are opposed to it, perhaps because they don't realize how it will help them.
There's no doubt that opponents of Obamacare have invoked scare tactics to incite voter fears of a government auditor next to every hospital bed. That has left many people misinformed about the law. But something else seems to be going on as well. For one thing, Americans are sick of paternalism coming out of Washington. When the bill's architects were negotiating in 2010, the individual mandate seemed like the magical linkage that would make other pieces of the bill work. Forcing more Americans to buy insurance would bring in more revenue that could be used to offer subsidies for the needy and expand coverage to most Americans.
But while figuring out the technicalities, Obama and the bill's main backers in Congress failed to subject the mandate to a common-sense test: Would Americans accept the idea of being forced to buy health insurance? And would the penalties for not buying insurance be acceptable?
Even if the court decides that this provision is constitutional, it may still not pass the common-sense test. The timing for such a mandate, it turns out, was terrible. Trust in most institutions, including the government, has been plunging since the 2008 recession. Congress's approval rating has sunk to the lowest level on record. That probably helps explain why opposition to Obamacare isn't limited to a small, vocal minority, but extends to about 45 percent of the population—including many independents who don't tow the Republican party line.
Obama may declare victory if the Supreme Court validates the mandate, but it will be a pyrrhic victory at best. Opponents won't change their minds, they'll just become more determined to send Obama packing in November and repeal the law legislatively. That portends a long fight over the law, even if Obama wins reelection. Congressional opponents will continually try to weaken it. Some states may drag their feet on implementing reforms that they're responsible for, as happened with civil-rights legislation in the 1960s. Many more lawsuits are likely.
Obama can continue to justify the law as a technical solution to a legitimate problem, while looking down on opponents as simplistic folk who may come around to his way of thinking once they see what the law does for them. Or he can acknowledge the problem that millions of Americans have with a government that seems to be growing bigger and more authoritarian, while at the same time less effective and perhaps more corrupt. If so, Obama could use a second term (if he wins it) to clean up government, kill the parts that don't work and give Americans a better reason to believe that Washington can do something productive.
If the court strikes down the mandate, on the other hand, it will be an obvious defeat for Obama. But there could be a silver lining: Instead of defending a law that nearly half of Americans dislike, he could attempt a do-over. Voters might be relieved and amazed to discover that the government sometimes acknowledges their concerns.
Rick Newman is the author of Rebounders: How Winners Pivot From Setback To Success, to be published in May. Follow him on Twitter: @rickjnewman