Published June 29, 2012
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
-- Chief Justice John Roberts in the majority opinion in National Federation of Independent Business et al. v. Sebelius et al.
The Supreme Court was invariably going to reset the presidential race with its decision on the constitutionality of President Obama’s 2010 health law. The question currently being debated in Washington is which direction did the court’s majority send the contest?
Power Play has held for many months that inside the narrow confines of the presidential election, a victory was a perilous thing for the president.
Many smart people today are focusing on the psychological impact of the court victory and how a defeat would have so terribly reinforced the notion of a snakebite, directionless presidency that it might have been Obama’s Waterloo.
There is much truth in what we can call the Krauthammer/Noonan Theory: Obama needed a win, and got a big one just in time. A loss would have been humiliating.
But picture what would have happened had Chief Justice John Roberts joined the conservative wing of the court and the justices would have struck down the mandatory insurance provision at the heart of the law or, more potently, struck down the whole thing.
Unlikely that the president would have simply stepped out midday to say that he was disappointed. It would have been the full monty of Obamaian outrage.
Unelected judges, appointed by Republicans, would have just ripped health coverage and patient protections from millions of deserving Americans. It would be the perfect distillation of the president’s campaign theme: Greedy Republicans want to plunder the middle class and he is fighting to keep them from doing it.
Better still, there would be no provisions to defend except for the ones he has already touted about young people staying on their parents’ insurance or insurance companies being forbidden to drop sick customers. The Medicare cuts, the shift of costs to the states, the scarcity of doctors and other issues still two years away from full realization would not have been mentioned.
The $400 billion of new taxes in the law would have been forgotten, too.
Over in the Republican-controlled House, full repeal would have been a catastrophe. With the president hammering at the GOP for using their cronies on the Supreme Court to deny voters what Democrats say is the basic human right of insurance coverage, it would fall to Republicans to cough up some kind of “patient protection” legislation.
Imagine if you will the spectacle of Republican leaders who can barely get their caucus together for votes on extending highway funding or student loans suddenly having to cut a deal on health insurance regulations and Medicaid.
Good luck with that.
Democrats would have happily sat on their hands as Republicans gutted each other. While they can all agree on the wisdom of repealing Obama’s law, there is nothing like consensus on the red team about its replacement.
But as the establishment press rolled out story after story about the helpless victims of the decision, Republicans would have to persist in the fight to at least try to offer a solution. And there would stand Mitt Romney, forced to try to litigate a family feud and infuriating his political base by talking about all the good things that were in the president’s law that he wants to restore.
Without the threat of Obama’s overhaul dangling over the party and Romney batting doe eyes at moderate suburban moms over health coverage, it would not have taken long for a lot of conservatives to conclude that Romney was simply Obama lite.
That would have set up a November election in which Republicans were desperately divided over heath care and looking like a bunch of nincompoops. All the while, Obama could be out attacking, attacking, attacking.
Obama is trying to run for re-election as an underdog who, like voters themselves, is fighting his way into a comeback. He has never moved to the center. He has never shown any inclination toward a re-election straddle. Defending his law in the abstract and promising to restore its most popular features in a second term would have been perfect plot points in Obama’s re-election story.
But he didn’t get that story line. Instead, he got this one: The Supreme Court let the law stand, with a couple of important provisos. They made Democrats admit that what had been sold as a fine for people who selfishly failed to participate in the new system was actually a $109 billion tax increase. Then the justices made clear that states that wanted to opt out of the program couldn’t be punished.
The tax argument is pretty brutal. Democrats say: “Whatever you call it, it works the same.” But now that the law stands, the tax penalty on non-participants and all the rest of the tax increases will start to spool out.
The Medicaid provision is even bigger. Unable to get the CBO to “bend the cost curve” enough to meet the president’s demand for a program that was technically paid for, Democrats dumped huge costs on the states. Many states will now refuse to pay those costs and shift the burden back to the fiscal calamity that is the federal balance sheet.
The court upheld the law, which is already unpopular, but made it harder to sell to the public and more damaging to the deficit.
The court in this case is acting as the bad babysitter to the Obama Democrats. Not only did it not stop its charge from sliding down the banister, but loosened a couple of spindles and greased the top.
The president came out on Thursday and said that it was time to “move on.”
That argument worked for Scott Walker in Wisconsin who was defending himself in a recall election triggered by a law that dealt only with a narrow swath of the state population, government employees. It will not work, however, on an issue that touches every person in the country in the most personal way possible and has direct economic consequences at a time when the economy stinks and deficits are huge.
And because the law is going forward, news coverage won’t focus on the uninsured cast into the cold by Republican-appointed justices. The stories will be about how much the law costs, how many people will lose their private insurance, etc.
Yes, the decision proves a much-needed moral victory for Obama and his team, but they also know what Romney and the Republicans know: The final decision on the law now stands with voters. Rather than a panel of judges, it will be a jury of 130 million Americans who decide the fate of the law.
The election already shaping up as a referendum of the president’s handling of the economy is now also a referendum on his health law.
And Now, A Word From Charles
“It isn't only that it will raise your taxes. It's the bigger, the larger argument about expanding government, expanding the debt, expanding spending in a way that is unconscionable to a lot of Americans. That, I think, is going to be the central argument.”
-- Charles Krauthammer on “Special Report with Bret Baier.”
Chris Stirewalt is digital politics editor for Fox News, and his POWER PLAY column appears Monday-Friday on FoxNews.com. Catch Chris Live online daily at 11:30amET at http:live.foxnews.com.