If Obamacare Is Overturned, Can Democrats Recover?

By Molly Ball

A Supreme Court rejection of the president's signature domestic accomplishment would deal a severe, long-lasting blow to the progressive ideal.

health care protest full.jpg

Reuters

There's a reason liberals are freaking out about the Supreme Court this week.

If part or all of the health-care reform law is thrown out, a central goal of the progressive project will have been dealt a possibly fatal setback. The dream of universal health care -- pursued for decades, frustrated again and again -- that seemed finally to have come to fruition in 2009 will have been derailed before it could even be fully implemented. For liberals and their allies, it will be a crushing blow from which there is no easily foreseeable recovery.

"It would be a particularly bitter pill to swallow to get [health-care reform] all the way through the legislative process and, because of the partisan leanings of five people who happen to be justices of the Supreme Court, not get universal health care," said Neera Tanden, president of the Center for American Progress and a former Obama administration adviser who helped see the bill through Congress.

Tanden does not believe the whole bill will be thrown out, but based on the questioning and debate in this week's oral arguments, she sees parts of the law, such as the insurance mandate, in unexpected peril from the court's conservative wing.

"If the whole thing goes down, I think it's pretty tough for the president," said Howard Dean.

If the entire law gets thrown out, she said, "I think my head would explode." But even if only the mandate is rejected, the fundamental achievement of the legislation would change, she said: "Without the mandate, I don't believe it is a universal health-care bill."

For Republicans, a court decision invalidating part or all of Obamacare would be a powerful talking point, cited as a stinging rejection of the president's agenda and proof that Obama -- a former constitutional law professor -- doesn't understand or respect the Constitution, a cherished belief of the Tea Party. In policy terms, too, the president's central domestic accomplishment would suddenly cease to exist or else limp forward in badly maimed form.

"If the whole thing goes down, I think it's pretty tough for the president," said Howard Dean, the physician and former Democratic National Committee chairman. "I think he's probably going to win reelection anyway, but does he want to start all over again?" On the heels of a court rejection, he said, "I don't think [health-care reform] could come back. Not the whole thing." (Dean, however, believes the mandate isn't necessary and could be removed from the law without consequence.)

Opponents of the law agree: This is universal health care's Waterloo.

"This was their one big shot. They certainly thought so. They pulled out all the stops," said Douglas Holtz-Eakin, a conservative economist and president of the American Action Forum, which has filed court briefs in opposition to the health-care law.

Already, he said, the law was on shaky ground. "The vast public rejection of the law, its broad unpopularity, the fact that so many Republicans were elected on it in 2010, the fact that so many states are rejecting it -- really, it wasn't looking strong," he said.

Through all that, liberals took solace in the fact that at least the legislation was on the books, moving inexorably toward implementation; eventually, they were convinced, Americans would grow used to the new system, come to depend on it, and become unable to imagine life without it.

"But it's not done yet," Holtz-Eakin said. "And if they overturn it, it will not be done. In my lifetime, it doesn't get done. Nothing like this."

Liberals were shocked by the justices' willingness to call into question the legal basis for not only the insurance mandate included in the reform law, but less controversial concepts such as the federal government's ability to dictate the terms of Medicaid grants to the states.

"I was baffled the court would even hear that argument, let alone take it seriously," said Ron Pollack, executive director of the pro-reform Families USA and a health-care activist for three decades. If that goes, federal programs to improve education, the environment, transportation. and more could suddenly be under fire, he said -- creating the potential for the wholesale gutting of the New Deal and the welfare state.

In political terms, a rejection of all or part of the Affordable Care Act would dramatically reshape the playing field for the 2012 general election. With the law in place, the health-care debate is a referendum on an existing (if not fully implemented) piece of legislation that remains marginally unpopular and poorly understood. Mitt Romney, Obama's likely Republican opponent, has vowed to repeal the law, although his argument against it is muddied by his past support of insurance mandates. Nonetheless, by keeping the focus on Obamacare's perceived shortcomings, he would be making primarily a negative argument.

With Obamacare partly or wholly out of the picture, however, the terrain would shift back to a battle of rival ideas, starting more or less from scratch. Romney has proposed a rather boilerplate array of standard GOP fixes to health care, including tax incentives, pushing responsibility to the states, and tort reform. Critics say such proposals would fall far short of covering all Americans, but Obama would have to come up with an argument for some kind of fix that wasn't the one he'd already tried to enact and seen shot down by the court.

How Obama would react to the court's rejection of his signature legislation is an open question. The official line from the White House is that there is no Plan B.

"There is no contingency plan that's in place," Josh Earnest, the deputy White House press secretary, said during Wednesday's press briefing. "We're focused on implementing the law, and we are confident that the law is constitutional."

He did, however, offer something of a foreshadowing of the political debate that might lie ahead.

"There will be a robust debate between the president's record on health-care reform and the critics who think that we should go back to a system in which insurance companies wield outsized power and can put lifetime caps on your benefits or can kick you off your health insurance coverage if you get sick, or can discriminate against you if you have a preexisting condition," Earnest said. "The president doesn't believe that we should go back to the status quo."

Karl Rove, the Republican strategist and commentator, wrote in a Wall Street Journal column Thursday that there would be two approaches available to Obama post-court rejection.

"Mr. Obama could announce he respects the court's decision and pledge to fashion a bipartisan solution to provide access to affordable health-care insurance for all Americans," Rove wrote. "This would help his re-election by repositioning him back in the political center .... But he could instead lash out against the court's majority -- as he did in the Citizens United case upholding free speech for corporations -- and insist on an even larger role in health care for Washington."

Liberals generally hope for the latter. Many are convinced that if Obamacare is thrown out, Democrats will be thrown into a fury and energized, while the electorate as a whole won't be angry at Obama -- they'll be angry at the court and Republicans.

"I fear for the court if a 5-4 decision [rejecting health care] comes in the wake of Citizens United and still reeling from Bush v. Gore," Tanden said. "People already believe the court is a political actor, and when you add to that a decision where they strike at the heart of the president's single biggest domestic-policy accomplishment a few short months before the election in what seems to be a very partisan decision, the court is undermining its own standing."

Millions of Americans are already benefiting from the law, including an estimated 2.5 million young adults who get to stay on their parents' health insurance longer and senior citizens who get subsidies to fill the "doughnut hole" Medicare coverage gap, noted Eddie Vale, a spokesman for the pro-reform Protect Your Care.

"The times that Republicans have gotten into trouble with health care are when they try to take stuff away from people. We saw it most recently with contraception," Vale said. "It will be an interesting campaign situation from June to November where instead of running a campaign to educate people about the benefits they get from the law, you're campaigning for six months on what Republicans are trying to take away from you."

Democratic strategist Karen Finney agreed: "I would run ads every day highlighting another individual, another family, another small business that's going to lose their health care," she said. "Keep the focus where it should be. This was originally about solving a problem that's a real problem in this country."

Nonetheless, for all their attempts to look on the bright side of a court rejection, proponents of reform are not eager for that outcome.

"Are there upsides, things we can do, ways we can campaign on it? Sure. But obviously, it's a huge setback to have five judges overturning years and years of health-care policy work that people put into this," Vale said.

"I've always thought this was a long fight," said Dean. "Look, this has been going on for 40 years. It's a tough issue, and the Republicans clearly outmaneuvered the Democrats in this instance. We'll see what happens."

In the battle for universal health care, Dean added, "We've had defeats before, we'll have defeats again. This may be another one."

This article available online at:

http://www.theatlantic.com/politics/archive/2012/03/if-obamacare-is-overturned-can-democrats-recover/255250/