Articles

Obama's Health Care Opportunity

June 13, 2012

As the Supreme Court gets ready to announce whether President Barack Obama's heath-care reform is constitutional, some Democrats hope it strikes down the law. They believe bad news for ObamaCare is good political news for Mr. Obama.

Veteran Democratic strategist James Carville told CNN's Wolf Blitzer that half the voters "think the whole thing is political" so if the law is overturned, Republicans "will own" the health-care issue as costs "escalate unbelievably." Democrats can profit at the polls by saying, "We tried, we did something."

But Democrats should be careful what they wish for. ObamaCare is not popular; striking down the law in part or completely is. For example, in the June 5 Fox News poll, only 40% favor the new health-care law while 49% oppose it. Just 30% would prefer the Supreme Court to uphold it, while 21% favor the court striking down the law's individual mandate to buy health insurance at age 26, and 38% want the entire statute declared unconstitutional.

A New York Times/CBS News poll earlier this month was even worse for the law, finding that 34% of Americans support ObamaCare (18% strongly) while 48% disapprove (36% strongly). Only 24% want to keep the entire law while 27% want the individual mandate gone and 41% want the entire law struck down.

If the court moves to invalidate part or all of the Affordable Care Act, what matters most politically is Mr. Obama's response.

The president could pivot to the center and regain some of the high ground he occupied in his 2008 campaign. He could say that while he disagreed with the court's decision, the justices had the responsibility under our system to decide whether the law was constitutional. Everyone needs to respect and accept the verdict. 

He could then add that a big problem remains: Tens of millions of our fellow citizens lack affordable health insurance. Now it is the responsibility of Republicans and Democrats, liberals and conservatives to come together and provide access to coverage. And the president could offer proposals to do that.

Voters would then see Mr. Obama more as he appeared in 2008—reasonable and practical, open to dialogue and discussion, committed to bipartisan answers.

But Mr. Obama appears unlikely to take this measured approach. He foreshadowed his possible response during a Rose Garden news conference on April 2, as the court prepared for private deliberations on its decision. Mr. Obama said he was "confident" the court would not take the "unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." If "an unelected group of people . . . overturn a duly constituted and passed law," it would be evidence of "judicial activism."

Apart from the historical inaccuracy of these statements—since Marbury v. Madison in 1803, the Supreme Court has regularly held laws to be unconstitutional, and a 219-to-212 vote in the House hardly constitutes a "strong majority"—it was an insight into his mindset. The president appears willing to lacerate the court if it rules against ObamaCare, just as he did after its 2010 ruling in Citizens United that the First Amendment allowed independent political expenditures by corporations and unions. 

If the Supreme Court strikes down the president's signature domestic achievement, it will deepen the impression that the president is simply not up to the job and that the health-care debate that dominated so much of his first term was a colossal (and unconstitutional) waste of time.

Of course, Mitt Romney's response matters too. If ObamaCare is struck down, Americans will want to know what he will do.

Fortunately, Mr. Romney is offering an attractive health-care agenda. At an Orlando speech Tuesday, he touted his consumer-centered approach to replacing ObamaCare. Among his proposals are letting families buy health insurance across state lines; increasing how much Americans can save tax-free for medical expenses; making health insurance portable so Americans can take it with them from job to job; and allowing small businesses to pool risk to get discounts like big companies do.

House Republicans now plan a week-long debate on health care in July. They understand they must join the policy battle and offer serious reforms to a health-care system that is in disrepair.

June has been a bad month for Mr. Obama. But it might get worse, depending on his response to the Supreme Court.

This article originally appeared on WSJ.com on Wednesday, June 13, 2012.

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