Thursday, March 29, 2012


A SCOTUS Gift To Romney?

The conventional wisdom on Mitt Romney in a general election contest is that his creation of a broad health-care program in Massachusetts makes it difficult to make the case against "ObamaCare." Indeed, Rick Santorum calls him the "worst candidate" to take that fight to the president.

But that's the case now.

What happens if -- as seems likely after arguments this week -- the individual mandate is struck down? And, with it, possibly the entire ObamaCare structure? What then?

Democrats make the case that if the entire law is struck down, it could blow up in the face of the GOP:
I’d argue, however, that on the margins at least, a decision invalidating the individual mandate would change the dynamics of the general election in ways that might prove uncomfortable to the GOP. Currently the Republicans “Repeal!” position is attractive, or at least not repellent, to a wide range of people with a wide range of concerns about ObamaCare, including those who would strongly support for more aggressive federal efforts to expand health care coverage or ban discrimination by private health insurers. If the individual mandate goes down, and with it prospective prohibitions on prexisting condition exclusions, the health care debate during the general election campaign will shift from scrutiny of ObamaCare from what, if anything, Republicans are prepared to offer. In effect, the much-dreaded and highly divisive intra-GOP debate on the “Replace” part of its “Repeal-and-Replace” agenda will be accelerated into the present tense. And at the same time, Republicans will be denied the base-energizing power of the passionate desire to repeal ObamaCare, which has become the default-drive unifying force among conservatives of every hue.
The corollary to this view is that liberals would be energized and furious at the Court for striking down the law. They'd turn out to vent their fury on the GOP.

The problem with this view, however, is that it works from a framework that the entire law is popular. It's not. Indeed, the individual mandate is the most unpopular part of the entire structure. Thus, the groundswell to "fix" it just might not be there. And, after the contentious nature of the original health care fight, there's not going to be enough will in Congress to revisit this in the middle of a presidential election year.

Conversely, a Supreme Court invalidation puts President Obama in an awkward position -- and Mitt Romney able to make an argument that he hasn't been able to clearly articulate during the GOP primary. And that may change the political "dynamics," as Ed Kilgore puts it.

Mitt Romney can say, repeatedly, "I brought broad health-care reform to the state of Massachusetts -- and I did it constitutionally. President Obama, a constitutional law professor, spent 18 months of the nation's time, while the economy was collapsing and millions were losing their job on an ideological scheme that has been proven unconstitutional. Is the economy slowly getting better? Yes, but think how much further we would have been if President Obama and Democrats in Congress hadn't been obsessed with pushing an unconstitutional agenda that the American people clearly didn't want?"

That's a powerful argument and it puts the responsibility for the uncertainty over coverage and pre-existing conditions that would follow with the loss of the individual mandate squarely on the president. The chaos wouldn't exist if he hadn't pursued, again, an unconstitutional path.

Combine that framing with conservatives energized over having won a major fight over the policy that helped bring forth the Tea Party and you have a completely transformed political framework going into the fall. The right will be just as -- if not moreso -- pumped to turn out than the left. Yes, broader factors like the overall economy and job creation will play into the election calculus, but there probably hasn't been an election upon which one major piece of legislation has played such a major role since the 1960s (Civil Rights Act) -- or perhaps the Great Depression.

It may not have seemed it at the time, but if Mitt Romney somehow squeaks out an upset win over Barack Obama in the fall, observers may look back at this week as the moment when everything changed.

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