COULD A COMING HIGH COURT DECISION BE A WIN-WIN FOR OBAMA?

November 15, 2011

This is a very big deal, and not just for the legal beagles who typically engage in court watching.  The inevitable Obamacare showdown is officially on the docket:

The U.S. Supreme Court will hear a challenge to President Barack Obama's sweeping health care reform law, the court announced Monday. Oral arguments will likely be held in late February or March, with a ruling by June.

A key issue to be considered by the high court's nine justices is whether the "individual mandate" section of the law -- requiring nearly all Americans to buy health insurance by 2014 or face financial penalties -- is an improper exercise of federal authority. Various states have argued that if that linchpin provision is found unconstitutional, the entire law will have to be scrapped.

Health care reform, a top Democratic priority since the Truman administration, was passed by the previous Congress in a series of virtually party-line votes. Obama signed the act into law in March 2010. The law is widely considered to be the signature legislative accomplishment of the president's first two years in office.

The decision could very well hinge on the vote of Justice Anthony Kennedy, whose ideology and judicial philosophy is, shall we say, enigmatic.  Neither Justice Kagan nor Justice Thomas recused themselves from the decision to grant this case a hearing, so neither one is likely to step back from the final decision. 

Some conservatives have called on Kagan to recuse herself because of her role as the Obama administration's Solicitor General.  Recently released emails indicate that Kagan was quite pleased when Obamacare passed in March of 2010 ("I hear they have the votes!! Simply amazing"). 

Liberal activist groups have pushed for Thomas to recuse himself from the case over his wife's ties to conservative activist groups who have worked to oppose the law. 

The Examiner's Philip Klein, who's established himself as something of an Obamacare maven, calls today's developments "great news" for the law's foes. The reason, he says, is because the case, which comes out of the 11th Circuit of Appeals, is the best briefed and best argued of all of the various legal challenges to the health care law. It's the case that opponents of the law won at both the district court and appellate level.  

Former solicitor general Paul Clement and Michael Carvin of Jones Day (who also has lots of experience  before the Supreme Court) did a masterful job arguing the case before the 11th circuit.

Georgetown Law Professor and constitutional law whiz Randy Barnett is also an advisor to the NFIB on the suit. Until we have an actual decision by early next summer, legal experts will spend months speculating on how the the court will ultimately rule.

But opponents of the law should be heartened that they'll at least have their A-team handling the case.

Here is my take which may be deemed a more dyspeptic prediction, arguing that Obamacare opponents' failure to convince conservative judicial icon Laurence Silberman of the individual mandate's unconstitutionality does not augur well. 

The White House, predictably, is expressing confidence that the high court will uphold the president's signature accomplishment; Communications Director Dan Pfeiffer says the administration "knows" the law passes muster and expects the court to codify it.

The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.   The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments.

Also, the court will weigh four major issues -- the Constitutionality of the individual mandate, whether the mandate can be "severed" from the rest of the law if it's nullified, jurisdictional questions, and whether the law's Medicaid expansion places an undue and unconstitutional burden on the states:

Here, in summary, is what the Court’s orders on Monday did:

* Granted, the issue of “severability” of the insurance mandate from the other provisions of the law, if the mandate is nullified (the only question in National Federation of Independent Business v. Sebelius [docket 11-393] and question 3 in Florida, et al., v. Health & Human Services Department [11-400]), cases consolidated for 90 minutes of oral argument.

* Granted, the constitutionality of the insurance mandate (question 1 in the government case, Health & Human Services Department v. Florida, et al.), two hours of oral argument.

* Parties directed to brief and argue whether the lawsuit brought by the states to the insurance mandate is barred by the Anti-Injunction Act (an added question in the government case, 11-398); one hour of oral argument. (That order appeared to be limited to whether that Act only bars states from challenging the mandate; the question of whether that Act bars private entities from challenging the mandate was raised in the Liberty University case, and the Court did not grant that petition.)

* Granted, the constitutionality of the Medicaid expansion (question 1 in the Florida, et al., case, 11-400, one hour of oral argument.

Here are a few political observations:

The court's final decision is due in the early summer of 2012, just as the general election campaign is ramping up to full-blown fever pitch mode.  As Fox News Analyst Carl Cameron suggests, a decisive legal blow to Obamacare could put the president on the defensive ahead of his re-election push.  A win, conversely, would be touted as a vindication. 

Paradoxically, Republican turnout might actually get a boost if the court upholds Obamacare. 

But consider this: If the Supreme Court wipes the law away, it will allow Obama to rally his base, much of which found his accommodation of pharmaceutical and insurance interests in the final law distasteful. Obama will say he needs four more years to remake the Supreme Court so the left can finally have the kind of public-sector, centralized health program it has long coveted.

But more importantly, Obama will be able to simultaneously offer a different message to skeptical moderates: There’s nothing to worry about on the health care front. He tried, got knocked down by GOP jerks, learned his lesson and will do better next time – which neatly synchs up with the overall campaign message.

He would get a week of stories in June about the embarrassment of seeing the law struck down followed by weeks of vague promises from Obama about what he’ll do differently next time.

Plus, if the court strikes down only the mandatory insurance provision, it would leave Obama lots of goodies to tout: keeping 26 year olds on their parents insurance, no dropping of sick customers, etc. Wonks will point out that those benefits were to be financed by having the federal government force more Americans to patronize insurance companies, but try to put that in a campaign ad.

The law remains very unpopular with the public, and the GOP nominee could parlay a legal defeat into a compelling electoral argument: The only remaining chance we have to scrap this monstrosity to is to replace the president who championed it.

The potential defeat would also remind conservatives about the importance of judicial appointments, which can be a powerful motivator for conservatives who may not be especially thrilled with the party's nominee. 

That would be the silver lining to a very dark cloud, however.  With Ruth Bader Ginsberg is questionable health and the aging of two of the court's conservative block, the next administration stands to appoint as many as three justices and thus shape the court's ideology for at least another fifteen years.

Most conservatives will be rooting hard for a judicial rebuke of the law -- and would be content for the political chips to fall as they may.


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