Supreme Court Healthcare Hearing a Political Storm for Obama

Obamacare is the gift that just keeps giving to Republicans.

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Within a matter of days, the U.S. Supreme Court will hear arguments regarding the constitutionality of President Obama's massive healthcare legislation. Word is that the Obama administration purposefully asked the court to accelerate consideration of the law. While the significance of the legal issues at stake is signaled by the historic allotment of time allowed for argument--three days--my guess is that the Obama camp is more focused on the potential negative political consequences of the court's decision. They, of course, would prefer such fall-out occur as far from the November election as possible. Republicans, however, stand to benefit politically almost regardless of what the court decides. 

Constitutionally, the court will consider whether the law's individual mandate passes muster, whether the entire law falls if the mandate is stripped out (known as "severability" in legal jargon), and finally, whether states can in effect be forced to pay for an extraordinary expansion of Medicaid. (For those who missed that part of the debate, Medicaid's mandate under Obamacare metastasized from applying to the very poor in this country to approximately 1 in 4 Americans. The cost of the program will rise at the rate of almost 8 percent per year—an increase of more than $430 billion by the end of this decade. Any "non compliant" state forfeits all federal support for the program, regardless of the tax revenues flowing into federal coffers from residents of those states.)

[ See a collection of political cartoons on healthcare.]

It should be no surprise to Americans that this new law potentially violated our fundamental rights—after all, virtually no one voting on it knew what was in the 2,500 page document. A majority of states are suing the federal government over the coercive nature of the Medicaid expansion and two lower courts have already struck down the individual mandate. With this track record, the odds are fairly good that the Supreme Court will strike some portion of the law.

Smart money is on invalidation of the mandate since, if the provision remains in place, it will be the first time legal residents of this country would be required to purchase a specific good or service, heavily regulated by the government and face taxes or penalties if they do not. And this product isn't cheap: we are talking about a compulsory purchase of health insurance that will cost the average American family up to $15,000 annually.

As Randy Barnett, Nathaniel Stewart, and Todd Gaziano so eloquently put it in their comprehensive analysis of Obamacare for the Heritage Foundation,

The purpose of this compulsory contract (with insurance companies), coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize coverage for others as well as an industry saddled with other government costs and regulations … This ‘personal responsibility' provision of the legislation, more accurately known as the individual mandate, … takes congressional power and control to a striking new level.

[ See photos of healthcare reform protests.]

Small wonder, then, that the American people still don't like this law. In a devastating collection of recent data points, Ammon Simon notes that a USA Today/Gallup Poll taken at the end of February shows that 72 percent of Americans and 56 percent of self-identified Democrats believe the individual mandate is unconstitutional. A Harris Interactive poll taken a month earlier calls the mandate "widely unpopular, with only 19 percent of those polled supporting it, regardless of political party affiliation."

Perhaps because the poll numbers are consistently devastating, proponents of the law have organized three days of street theater at the Supreme Court from March 26-28 as oral arguments are heard. While everyone living and working in D.C. makes a mental note to avoid the Senate side of the Capitol during that time frame, the rest of us will be treated to fawning press coverage of the "progressivity community show[ing] its strength through visibility outside the court each day."

Luckily, Supreme Court justices are fairly inured to such tactics. Moreover, I'm guessing these individuals have succeeded spectacularly in their chosen field primarily because of their analytical abilities. Somehow, I don't think a "Women, Small Biz and Young Adult" press conference will trump a lack of legal precedent.

[ Peter Roff: Pat Boone Blasts Obamacare's IPAB]

If the Supreme Court upholds these controversial provisions, the Republicans have a made-for-election-year issue. If the Supreme Court strikes these provisions and potentially declares the law itself fatally flawed, it is "game on" again in a battle that was instrumental in delivering a defeat of shocking proportions to the Democrats in 2010. For example, rumors abound that PhRMA (the trade association for large pharmaceutical companies) is already making their case in the White House and Congress for quick action to reverse potential Supreme Court fall-out. Yes, lobbyists are primed and ready to reverse the Supreme Court reversal—otherwise known as "Washington Whip Lash."

From a political perspective, this issue is the gift that just keeps giving to Republicans. From a policy perspective, it is a terrible law that midwived what some experts believe to be the largest expansion of government since the so-called "Great Society." As such, it will be no surprise when the Supreme Court determines that this power grab tramples on a document President Lincoln called "the only safeguard of our liberties" and Americans of all political stripes hold dear:  our Constitution.