The Supreme Court is set to issue its opinion Thursday (June 28, 2012) on the constitutionality of Obamacare. It might uphold the entire statute, it might strike it down in part (presumably the “individual mandate” part) and uphold the rest, or it might strike the whole thing down, revivifying the archaic constitutional principle that the federal government is limited somehow by the commerce clause.
If the Court upholds the statute, Mitt Romney’s electoral chances would vastly improve.
If it strikes the statute down in its entirety, Obama’s chances for reelection would vastly improve.
If it upholds the statute except for the individual mandate, the effect on the election will probably be a wash.
It may seem counterintuitive to say that Romney wins if the Republican stand on the issue fails, and vice versa for Obama, but it really isn’t that hard to see. Whichever candidate is victorious will lose a compelling argument for why they should be elected or reelected. And if some of the statute stands, but one of its most important directives fails, then Romney’s lukewarm Tea Party Republican supporters haven’t fully completed their goal of having Obamacare thrown out, thus giving them a reason to hold their noses and vote for him, but Obama hasn’t been clearly victorious either, energizing his base to get out and support him.
Romney will stand to lose more than Obama if the statute is thrown out as unconstitutional, since the Supreme Court will have done for him a goodly portion of the work, at least initially, he and the Republicans had hoped to accomplish with his election. Since Romney is the challenger, trying to overcome the ordinary political inertia protecting incumbency, a Republican victory at court might doom his chances for election. Voters generally prefer the devil they know to the one they don’t know, and particularly so if the one they don’t know has really nothing new to sell except the pallor of his skin.
If the statute is upheld in its entirety, Obama may have won the battle of expanding the power and reach of the federal government beyond the electorate’s wishes, but at the cost of losing the war to retain power for himself.
My guess is that the Supreme Court jurists, who follow public opinion polls a great deal more than they’d ever care to admit, will reach a compromise solution, throwing out the individual mandate while retaining the balance of the Act. Nothing of what they decide will have much of anything to do with the actual text of the Constitution, or even of constitutional legal principles derived to justify previous decisions, but will have everything to do with their estimation of which way the political winds are blowing. As the Court is still smarting a bit over the criticism it took after deciding the 2000 election in favor of George W Bush, it won’t want to be seen as swaying the election too heavily, thus the compromise.
So, to reiterate: If the statute is upheld, mark it a big political win for Romney that won’t necessarily ensure his election, but will help tremendously. If it is thrown out in its entirety, mark it a big political win for Obama, which will probably ensure his reelection. If neither obtain–the most likely outcome–consider it a wash.
If there is anything I learned from studying constitutional law it’s that knowing the law and knowing the facts is completely useless without also knowing the politics, and the politics include what the Court thinks it can reasonably get away with when issuing a ruling. But imagine the irony if the Court’s Republican wing delivers a decision the Republicans hoped for. It would prevent them obtaining the very thing–power–which is their true animating and organizing principle (just, I should add, like the Democrats).