Big Trouble for Obama if Court Creates Zombie Health Law

Big Trouble for Obama if Court Creates Zombie Health Law

“And here, the government is saying that the federal government has a duty to tell an individual citizen that it must act, and that is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way.”

-- Supreme Court Justice Anthony Kennedy questioning Solicitor General Donald Verrilli.

The justices of the Supreme Court will today hear arguments on the question of whether they could strike down the central provision of President Obama’s health law – a requirement that all Americans either purchase private insurance or be enrolled in a government program – and allow the rest of the law to stand.

After a day of arguments in which the mandatory insurance requirement was under fire from the bench, today’s hearing is even more crucial. With the Obama insurance mandate now looking very vulnerable, the question of whether it can be severed from the rest of the law matters a great deal to the case. If it can be split out, the chances are higher that the key provision can be stuck down. If justices decide that the law must stand or fall altogether, the stakes go way up for the litigants.

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    But the question of severability is even more important for the fall elections.

    The court has three main avenues it could follow in a decision: uphold the law in full, strike it down in full or strike down the mandatory insurance provision and allow the rest to stand. The great peril for Obama comes if the law is allowed to stand but justices rip out its heart.

    To understand why, consider the three most likely scenarios:

    Health Law Struck Down

    As Power Play has been explaining since August, a clear loss at the Supreme Court would carry lots of political advantages for the president. Obama would be able to rally his base with another tirade about the radical Republicanism of the Supreme Court, and, more importantly, he would get a court-ordered do-over on the consistently unpopular law.

    For a president who likes to ponder his place in history, having one’s signature achievement tossed out would be a big embarrassment, especially if that pondering president happens to have taught constitutional law. It would also go the argument of Obama’s likely Republican adversary, Mitt Romney, that the president is bad at his job.

    But, having tried and failed to create a new middle-class heath entitlement, Obama could promise a better process for the future that would produce a happier result. Obama could bury the issue under a pile of promises, knowing that Romney would have his own reasons for not wanting to press too hard on the topic.

    The public dread at the contents of the legislation voters saw crafted in such slipshod fashion would abate and the discussion on health insurance would shift from specifics to generalities, always Obama’s best subject.

    Health Law Upheld

    In politics, winning is almost always better than losing. But this is one of those very rare cases in which winning could be worse.

    Having been unable to convince voters that the massive law crammed through Congress with procedural shenanigans on party-line votes is really in their best interest, Obama would be helped if the justices got him off the health-law hook.

    A victory for Obama’s health care law would be a boon to Democrats who are eager to move the U.S. in the direction of centralized health care. The justices would be affirming the central claim of the left: that health care is a human right and that the federal government is obliged to take whatever necessary steps to provide it.

    But this would leave Obama to continue to defend his unpopular law and galvanize conservatives behind Romney as he leads the charge for its repeal.

    A big part of the Obama campaign strategy is to undermine Romney with conservative voters, those holdouts whom Rick Santorum is currently asking to help him at least to block the moderate frontrunner. If the health law looms, even the die-hard Santoristas will have to get on board Romney’s bid to defeat Obama. If Republicans held the Senate and the House but Obama remained in office, the law would still be defended by a veto pen and a phalanx of administration bureaucrats and lawyers.

    A victory at the court this summer increases Obama’s chances of defeat in the fall. And if he loses in the fall, Obama will get to watch his law dismantled anyway.

    The Mandate Dies, But The Law Lives

    If the court opts to cull the mandate from the rest of the legislation and then strike it dead, Obama would be in a world of trouble.

    Obama embraced the mandate when he could not find enough support in the Democrat-dominated Congress for what he called the “public option,” a government-run insurance program like Medicare and Medicaid, but one that would be open to all Americans, regardless of age or income.

    Jaw-dropping cost estimates for the program squelched Obama’s plan, so he shifted over to the mandate. The point of the mandate is to compensate private insurance companies for covering undesirable customers by forcing the most desirable customers, healthy, young adults, to purchase their product.

    Take out the mandate, and the law becomes utterly unworkable. The private insurance market would be shattered by the new obligations under the law, especially insuring those who don’t seek coverage until after they are sick. But the law doesn’t have a government backstop, so tens of millions of working Americans would be careening toward catastrophe – huge premium increases followed by loss of coverage.

    Having this zombie law terrorizing the populace would be very bad for Obama, so he would have to quickly come up with an alternative. A hugely expensive government-run national insurance program? An additional round of tax increases to finance insurance subsidies? Woof. Try selling either of those in the Columbus suburbs this fall.

    Instead of either defending a law that was already passed or being able to promise future wonders of health transformation, Obama would have to re-litigate the issue of government-run insurance with the left and make a specific policy prescription before the election.

    Worst for Obama, having the law still alive but in need of a massive overhaul sounds exactly like the kind of job for a turnaround artist like…. Willard Mitt Romney.

    While liberals care a great deal about the constitutionality of the law and the creation of new government authorities vis-à-vis individual health, it is the severability issue before the court today that matters the most at Obama campaign headquarters.

    A clear win or a clear loss can be dealt with, but nobody wants to deal with a zombie attack.

    And Now, A Word From Charles

    “If you had left after the first hour when the Obama solicitor general was being whipsawed and didn't have very good answers, you would have thought it was all over but the shouting, and that Obamacare was not going to survive. It was a rough hour for Obama's side.

    But I think it was somewhat of a change in tone at the end of the second hour from Justice [Anthony] Kennedy, who essentially is the reigning monarch of the United States. He'll decide one way or the other what our future is going to be and what our Constitution is going to look like.”

    -- 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