What Obama's Attack on the Supreme Court Means

A ruling that finds the entire healthcare law to be unconstitutional means it will be incumbent on the president to roll out a new proposal.


In attacking the U.S. Supreme Court before it rules on his signature legislative achievement, President Barack Obama is telegraphing that he expects to lose.

There are lots of reason the nation's highest court may find that the Patient Protection and Affordable Care Act is unconstitutional. It may be that they find the individual mandate, which is the lynchpin of the new law, to be an overreach of federal power. They may determine the expansion of Medicaid is unconstitutional. They may even rule that that health insurance is an issue of intrastate commerce, which Congress may not regulate, rather than interstate commerce, which the U.S. Constitution says it may.

[Vote: Has Obama Gone Too Far in His Rhetoric About the Supreme Court?]

Regardless of the reason, Obama's attack on "unelected judges" is a political ploy designed to rally his base and prepare them to engage in the upcoming election. What he has not yet realized, apparently, is that a defeat by the judicial branch puts the ball firmly back in his court, to his profound disadvantage.

There are a number of commentators who have opined that an unfavorable ruling by the Supreme Court would be to the president's political advantage, but they are whistling past the graveyard. There are lots of ideas out there about how best to "fix" the nation's healthcare system, but relatively few of them are coming from the Obama administration. A ruling that finds the entire law to be unconstitutional takes everything back to "square one," meaning it will be incumbent on the president—not Congress and not the Republican running against him for the nation's highest office—to roll out a new proposal.

[See a collection of political cartoons on healthcare.]

Recall how contentious the debate over the law currently before the court was in the first place. The president managed to bob and weave, dodge the tough questions, and placate a substantial portion of the electorate with political slogans and platitudes that underscored the need for reform but were preciously short on details. He can't get away with that again. He is going to have to come up with specific proposals, possibly including how to pay for everything without an individual mandate.

The bottom line is that nothing Obama is likely to propose—and again the burden will be on him no matter how much his allies try to place it elsewhere—will be any more popular than the law now in place. In fact it's almost certain to be less popular. And that won't help the president win re-election one bit.

  • Read the U.S. News debate: Should the Supreme Court Overturn Obama's Healthcare Law?
  • Check out U.S. News Weekly: an insiders guide to politics and policy.
  • Follow the Thomas Jefferson Street blog on Twitter at @TJSBlog.