With only a little more than six weeks to go before the election, most consumers of political journalism have long since given up hoping major media outlets will write about anything but the horse race element of the story. The strategies, the gaffes, the attacks and, most of all the polls, are the main elements of coverage, as well as the topics for those of us who provide analysis. But every once in a while, we get a piece that reminds us of what all the shouting is actually about. Politico’s story published yesterday titled “Obamacare foes fear GOP losses,” is one such article. The headline may be fairly accused of stating the obvious but the story reminds the reader that the election this year is about something more than the egos of the politicians or their campaign gurus: if the Republicans don’t sweep Congress and the White House, the country will be irrevocably changed by the survival of the president’s signature health care legislation.
Obamacare isn’t the only important issue for voters to consider in November. Spending, taxes, the national debt and the related issue of entitlement reform are all crucial. So, too, are the foreign policy challenges that face the next president, a list that includes the deadly nuclear threat from Iran. But on no other issue is the choice so stark. It is, for example, theoretically possible that either Barack Obama or Mitt Romney will do what must be done to halt the debt crisis or to stop Iran. It is also possible that neither will do so. But there is no doubt that unless the GOP secures the presidency and majorities in both the upper and lower chambers of Congress, Obamacare will not be repealed. By the next midterm election, it will be too late to prevent the full implementation of the health care bill. Once that happens, dismantling the infrastructure of the new federal bureaucracy and entitlement will be beyond the capacity of even future conservative majorities. 2012 is simply the last chance to prevent the transformation of the nation’s health care and the massive expansion of government power. If that doesn’t concentrate the minds of an American people that polls tell us overwhelming favor repeal, nothing will.
When Scott Brown ran to fill the Massachusetts Senate seat vacated by Ted Kennedy, he had one overarching theme: he would cast what was then thought to be the deciding vote against ObamaCare. For all the liberal spin about his opponent running a clumsy campaign, the Senate election was the clearest referendum on ObamaCare yet. And in a liberal state, the Republican won the seat by winning the argument (or deploying the winning argument) against ObamaCare.
When the Senate Democrats used a procedural maneuver to get around the vote, Brown’s victory seemed to have been in vain. But now its value comes roaring back to Republicans–as a potential model for the presidential campaign of Mitt Romney. Now that the Supreme Court has ruled that the individual mandate may stand as a massive tax increase, Romney will deploy what was always going to be the strategy in this case: the claim that he is the last thing standing between ObamaCare and the people.
Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.
For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.
On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.
We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:
Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”
My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.
The nation will be holding its political breath this week when the U.S. Supreme Court spends three days hearing arguments about the constitutionality of ObamaCare. Though the issue is split into three parts, the main event will be on Tuesday, as the question of whether the Commerce clause of the Constitution can be interpreted in such a manner as to allow the government to require Americans to engage in commerce rather than to merely regulate it is debated.
For most liberals, including President Obama and the Democratic majority in Congress that rammed this law down the throats of an unwilling people two years ago, the notion that there are any such limits on the power of the federal government is laughable. To be fair to them, they do have much of the history of 20th century American politics on their side. During the last century, Washington’s power has expanded to the point where there is almost nothing that can be imagined that can’t be justified by the Commerce clause. That’s why this case is so important. Barring an electoral revolution this November in which Republicans sweep both Houses of Congress and the White House, we will have lost our last chance to preserve our freedom.
The five and a half hours of oral argument before the Supreme Court this week are probably the most anticipated since the final days of the Watergate scandal. Barring a major unanticipated event, it will utterly dominate this week’s news out of Washington. Indeed people have been camped out since Friday in order to get one of the very few seats available to the public. (For those not inclined to sit on the street for three days to hear it directly, audiotapes of the arguments will be available each afternoon). A good summary of the cases and the players can be found here.
In 1974, as the nation hung on every word, the Court heard arguments in United States v. Nixon on July 8th, 1974, and on July 24th delivered its unanimous verdict (8-0, Justice Rehnquist, later Chief Justice, having recused himself because he had worked in the Nixon Justice Department). The verdict, denying the president’s power to assert executive privilege over tapes relevant to the case, doomed the Nixon presidency and led to Nixon’s resignation on August 9th. For those of us old enough to be around in those days, now nearly forty years ago, it was the great constitutional drama of our lives. (You can hear the oral arguments and the delivery of the decision here.)
The Supreme Court will hear arguments on President Obama’s health care law next week, and still an overwhelming majority of Americans say that the court should either scrap the mandate or the entire law:
This ABC News/Washington Post poll finds that Americans oppose the law overall by 52-41 percent. And 67 percent believe the high court should either ditch the law or at least the portion that requires nearly all Americans to have coverage.
The high court opens hearings on the law’s constitutionality a week from today.
The law has never earned majority support in ABC/Post polls – and this update, produced for ABC by Langer Research Associates, finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law lately; just 19 percent say the buzz has been positive. Even among its supporters, 53 percent are hearing more negatives than positives. Among opponents this soars to 88 percent.
As Chris Cillizza reports, Americans are set in their opinions on ObamaCare, which may be the big reason why Obama rarely talks about it in the context of his reelection.