Bloomberg News

Health-Care Case Injects High Court Into Election Debate

March 29, 2012

President Barack Obama, center, with health care professionals after speaking about health care reform on March 3, 2010, in the East Room of the White House. Photographer: Alex Brandon/AP Photo

President Barack Obama, center, with health care professionals after speaking about health care reform on March 3, 2010, in the East Room of the White House. Photographer: Alex Brandon/AP Photo

The U.S. Supreme Court’s pending ruling on the health-care law will put a rare judicial stamp of repudiation or endorsement on an incumbent president’s most prominent achievement just as he faces re-election.

“There’s been no measure this central to an administration knocked down by a court just a few years after it passed,” including when parts of President Franklin D. Roosevelt’s New Deal were ruled unconstitutional in the 1930s, said Julian Zelizer, a presidential historian at Princeton University. On the other hand, if the court should uphold the law, “it’s significant affirmation,” he said.

Striking down the health-care overhaul that President Barack Obama pushed through Congress would be a blow to the legacy of a president who used to teach constitutional law and who pursued the health legislation at a heavy political cost -- the Democrats lost control of the House in the next election.

It also may bring into sharp relief the nation’s partisan divide. The law passed Congress on a party line vote, and the court may also divide between its Republican and Democratic appointees when it rules.

Still, in a testament to the depth of voter concern about the economy, academic experts and political strategists say they expect the decision to generate mostly short-term turmoil rather than a sea-change in the presidential race.

“Right now, the economy is pushing every other issue out of the center of the campaign,” said Bill Carrick, a Democratic political consultant.

Republican Candidates

Republicans seeking their party’s nomination to challenge Obama in November have all vowed to dismantle the law. The leading contender for the nomination, Mitt Romney, won passage when he was governor of Massachusetts of a health-care law that Obama’s aides have said was the model for their plan. Former Pennsylvania Senator Rick Santorum, his chief rival, said Romney is “the worst person” to debate Obama on the law.

A decision against the federal health care law would produce “a little turbulence for Obama,” Carrick said. “Over the long course of the campaign, I don’t think it will be a plus or minus for either one of them.”

The Republican National Committee released a video yesterday attacking the performance of Solicitor General Donald Verrilli Jr. in defending the health care plan before the Supreme Court. Titled “ObamaCare: It’s a Tough Sell,” it features Verrilli coughing and mumbling “excuse me” as he began his statement to the court.

White House Cautions

Obama advisers at the White House and on his campaign staff declined yesterday to discuss the political ramifications of potential rulings. Deputy White House Press Secretary Josh Earnest cautioned reporters against making predictions of the court’s decision “based solely on the tenor of the questions” from the justices.

He cited lower court cases in which “conservative judges, despite their tough questions, ended up ruling” in favor of the health care law.

The political split in the country that surfaced in the health care debate shows signs of spilling over into public confidence in the neutrality of the nation’s highest court.

In a Bloomberg National Poll conducted March 8-11, 75 percent of respondents said they expect politics will influence the court’s ruling while only 17 percent said they believe the case will be decided solely on its legal merits. Eight percent said they weren’t sure.

Court Legitimacy

While that may feed a negative view of the Supreme Court from supporters of the law if it’s overruled, the court’s institutional legitimacy probably is not threatened, said Michael Klarman, a Harvard Law School professor who specializes in constitutional law.

The health care law does not command majority support from the public and feeling among its backers is not as intense as was public sentiment surrounding the 2000 presidential election, Klarman said. The Supreme Court intervened in 2000 to stop a vote recount in Florida, effectively delivering the election to Republican George W. Bush over Democrat Al Gore, who won the national popular vote by more than 500,000 ballots.

“It didn’t have any ramifications for the court,” Klarman said. “If Bush versus Gore didn’t do it, this won’t do it.”

Public Skeptical of Law

Seventy-two percent of Americans said the health care law’s individual mandate to buy insurance is unconstitutional in a USA Today/Gallup Poll conducted February 20-21 that found the country evenly split on the merits of the law. Even among those who thought the law was a “good thing,” 54 percent said they thought the requirement to buy insurance is unconstitutional.

Among Democratic activists, rumblings of a political attack on the court surfaced hours after four of the Republican appointees hinted in questions during oral arguments that they might strike down the law.

James Carville, a veteran Democratic strategist and adviser to former President Bill Clinton, said on CNN March 27 that a Supreme Court ruling against the law would be perceived as political and provide Democrats a boost.

“Just as a professional Democrat, there’s nothing better to me than overturning this thing 5-4 and then the Republican Party will own the health care system for the foreseeable future,” Carville said. “I really believe that. That is not spin.”

Previous Rulings

Tad Devine, a Democratic strategist who advised the party’s 2004 presidential nominee, Senator John Kerry of Massachusetts, said a charge of partisanship might gain traction because of two prior rulings that divided the court along ideological lines: the Florida recount case and the 2010 Citizens United decision that opened the way for the use of corporate funds to influence elections.

“A lot depends on the nature of the decision, how it comes down and how it reflects the polarization of politics that people resent so much today,” Devine said.

Still, George Terwilliger III, a deputy attorney general under Republican President George H.W. Bush, said a Supreme Court ruling overturning the health law would validate Republican criticism that the Obama administration has overreached its authority.

“If it says to independents in the middle this is a president who is willing to overreach on a lot things, unbridled in the second term that may scare them,” Terwilliger said.

Conversely, a ruling that upholds the health care law would provide affirmation to Obama, even if the decision doesn’t persuade the most ardent opponents.

“If the law is upheld,” Terwilliger said, “particularly if Romney is the nominee, I think the issue will fade.”

To contact the reporter on this story: Mike Dorning in Washington at mdorning@bloomberg.net

To contact the editor responsible for this story: Steve Komarow at skomarow1@bloomberg.net


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