Santorum at the Supreme Court: The Election Meets the Health-Care Fight

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On the steps of the nation's highest court, he argued the Affordable Care Act was central to the election. Surprisingly, his rivals are doing the same.

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Reuters

As the Supreme Court heard its first oral arguments on the Affordable Care Act Monday, the atmosphere outside on the sidewalk was, if not quite circus-like, unpredictable and freewheeling. On a sunny but windy day, scores of activists on either side of the debate over President Obama's health-care overhaul chanted and waved flags and signs. A squadron of Republican state attorney generals discussed the finer points of Supreme Court case law, serving up a mind-numbing alphabet soup of AIA and ACA (that's the Anti-Injunction Act of 1867 and Affordable Care Act, for those following along at home) to reporters, passersby, and anyone else willing to listen. A few feet away, a man blew noisily away on a shofar. Earlier, there was a brass band.

The odd scene mirrored the national political debate over health-care reform, which has been similarly noisy and unpredictable. By all rights, it ought to be something the major candidates want to sweep under the rug: For President Obama, it's an unpopular albatross of a policy, with a sizable plurality of Americans disapproving of the law in a CBS/New York Times poll released Monday. For Mitt Romney, it's not much of an asset either, since -- as Democrats rarely miss an opportunity to point out -- he passed a similar law in Massachusetts. And yet with the Supreme Court hearing oral arguments on the law's constitutionality this week, Obama and his Republican rivals alike are pushing Obamacare back into the national spotlight.

"There's some great stuff in this law. The problem is no matter how good it is, or what you're trying to accomplish, you have to be in the Constitution."

The politics of the issue are a bit easier for Rick Santorum, who has made the existence of "Romneycare" central to the case for his nomination over GOP presidential primary front-runner Romney. And so it wasn't a total surprise to see the former Pennsylvania senator put in a brief appearance on the Supreme Court steps just after noon on Monday, where he quickly was surrounded by a crush of reporters but also was frequently drowned out by chants and counterchants. Backers of the law insisted, "The ACA is here to stay!" Opponents responding with "Rick! Rick! Rick!" and "Repeal the bill!" (Say it with a southern drawl and it almost rhymes.) During his brief remarks, Santorum spent less time sermonizing on the evils of the law itself and more on how only he, and not Romney, can fight against it in a general election.

"There's one candidate who's uniquely disqualified to make the case," Santorum said. "[Romney's] not here, he's not making the argument. He just says, 'I'll repeal Obamacare,' and in the same breath he defends Obamacare at the state level. It won't wash in the general election."

But while Romney and Obama may not have been present, they've both moved to make Obamacare a central issue in the last few days. On Friday, the Obama reelection team marked the law's second anniversary with a new push to reclaim the name "Obamacare" -- originally intended as a pejorative -- and turn the word into something positive. Top campaign advisers even emphasized the point on the Sunday shows. Though the sudden embrace generated lots of buzz, it's worth noting that The Road We've Traveled, the 17-minute Davis Guggenheim docu-advertisement released two weeks ago also celebrated "the Affordable Care Act" -- though not "Obamacare" -- as one of the president's major achievements. While the law's consistently bad polling shows Chicago still has a lot of work to do, the campaign hopes to awaken enthusiasm for it among in the Democratic base, for whom universal health care was a longstanding goal. It's a fine needle to thread.

Romney, too, is refusing to roll over on the issue, despite Santorum's dire warnings. On Friday, he delivered a major speech on health reform in Louisiana. "Everyone can agree that health care is broken," he said. "So the last thing we should do is allow Obamacare to freeze the current system in place. Instead, we need to encourage innovation at every level." His proposals were mostly recycled, if popular in the GOP: block grants to states for Medicaid, capping medical malpractice claims, and allowing the sale of health insurance across state lines.

But neither Romney nor Santorum has offered many specifics on how they'd fix the problems the ACA was intended to fix, should it be repealed, including the ballooning costs of health care in the country, and the tens of millions of Americans without insurance. While Santorum and crowds of Tea Party supporters with "Don't Tread on Me" flags bashed the law's mandate, others on both sides of the Supreme Court lawsuit had some common ground. Dr. Manisha Sharma, sporting a white coat, stethoscope, and pager, was demonstrating with a group called Doctors for America. The Bronx family physician spoke about patients of hers -- Medicare recipients and poor families -- who were already being helped by provisions of the law. Not far away, Utah Attorney General Mark Shurtleff -- one of the Republican attorneys general who brought the suit against the ACA -- spoke favorably about some of the same reforms, especially requiring coverage for preexisting conditions and efforts to control the cost of Medicare. "There's some great stuff in this law," he said. "The problem is no matter how good it is, or what you're trying to accomplish, you have to be in the Constitution."

On Monday, the justices listened to an argument that under the aforementioned AIA, the plaintiffs don't have standing to sue (you can listen here), but both sides came out expecting the Court to reject that tack. And if the justices rule to uphold the ACA, the favored but by no means certain outcome, the broad agreement on right and left that the health system is badly flawed and unsustainable means the issue will remain important throughout the general election.

But what if the justices defy conventional wisdom and strike down the law? There's been plenty of discussion of whether that would help Democrats more, by rousing their base to anger while placating the Republicans, or be a boon to Republicans, by validating their attacks on the president and robbing him of what his campaign sees as both a crowning achievement and an election asset. It's all just speculation, though. The aftermath of such a decision would surely be as unpredictable as the lead-up has been.

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David A. Graham

David Graham is a senior associate editor at The Atlantic, where he oversees the Politics Channel. He previously reported for Newsweek, The Wall Street Journal, and The National.

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