IN THE weeks leading up to the Supreme Court hearings on President Obama’s health care law, which concluded on Wednesday, a view emerged among court watchers and political insiders of both parties that the law would likely be upheld. A survey of Supreme Court lawyers and former clerks gave only a 35 percent probability that the mandate for people to purchase health insurance - the linchpin of the law - would be struck down. The provocative view in Washington when oral arguments began on Monday was that the vote to uphold could be lopsided.
By Tuesday afternoon, no one was espousing that view. The court’s five conservative justices, including Anthony Kennedy, the presumed swing vote, expressed powerful reservations about the mandate’s constitutionality, and the solicitor general, Donald Verrilli Jr., did a notably poor job of defending it. The justices appeared to take the view that Congress had improperly attempted to regulate “inactivity’’ - not buying health insurance - under the Commerce Clause. “A train wreck for the Obama administration,’’ was how CNN’s legal analyst, Jeffrey Toobin, characterized it. “This law looks like it’s going to be struck down.’’ The court is expected to issue its decision by the end of June.
A negative ruling would be a crushing blow to the administration and a serious setback to the cause of expanding health insurance coverage to all Americans. But assuming that only the mandate, and not the whole thing, was struck down - as is considered the likelier scenario - the law would be weakened, but not necessarily destroyed.
There are several options for replacing the mandate. One is to automatically enroll people in insurance programs, the way some companies auto-enroll employees in a 401(k), allowing them to opt out if they wish. Another option would be to adopt the voluntary enrollment model of the Medicare Part B federal health plan for the elderly, which imposes a 10 percent premium penalty for those who delay. Responsibility for getting people covered could also be passed to the states. Other options, compiled by the Government Accountability Office at the behest of Congress, include imposing a tax on uncompensated care; conditioning the receipt of some government services on proof of coverage; and having credit ratings agencies factor insurance status into personal credit ratings.
The problem with these alternatives is that they’d cover far fewer people - the best would probably only cover about two-thirds as many as a mandate - at close to the same cost. And, just as important, they would require Congress to pass new legislation, which is impossible to imagine in the near term. As Senator Mitch McConnell, the Republican minority leader, told Bloomberg View columnist Romesh Ponnuru last week, the GOP’s overriding goal is eliminating Obamacare, not improving it. “[It is] the single worst legislation that’s been passed in the time I’ve been here,’’ McConnell said.
What effect a negative ruling might have on the presidential election is hard to predict. Public opinion about the law has been fairly stable, with slightly more people disapproving than approving, and those categories break down along partisan lines. The court’s decision probably won’t change this, although a negative ruling could conceivably catalyze liberals already angry about the court decisions in Bush v. Gore and Citizens United v. Federal Election Commission.
It seems much more likely, though, that such a ruling would hurt Obama, possibly quite badly. It would undermine his primary domestic policy achievement. And it would fortify presidential rival Mitt Romney’s central critique of him as a well-intentioned man simply not up to the job of being president. So far, that criticism has been directed mainly at Obama’s stewardship of the economy. But were the court to strike down the health care law, it would resonate more widely - including, perhaps, with people who wish to expand health insurance coverage and become disillusioned with Obama’s botching a historic opportunity to achieve this.
Ultimately, Obama’s reelection will probably hinge on the state of the economy. But the court’s ruling could color what he has done here too. If the law is struck down, his decision to devote so much time to health care reform, rather than measures to help the economy, would suddenly look much worse because it would not have gained him the new entitlement program that Democrats had been seeking for generations.
His judgment would be called into question, and not only by Republicans. In the run-up to Election Day, that’s the last thing the president can afford.Joshua Green is national correspondent at Bloomberg Businessweek. Follow him on Twitter @JoshuaGreen.