As President Obama took the stage at a hotel ballroom on Tuesday to deliver his latest defense of the Affordable Care Act, you had to wonder who exactly he was trying to reach. Was it the members of the Catholic Health Association—the supportive audience in front of him? Republicans in Congress? The divided public at large?
Or perhaps, was it just the two particular Catholics—Chief Justice John Roberts and Associate Justice Anthony Kennedy—who at this moment hold the fate of Obama’s healthcare law in their hands?
In a 25-minute speech, the president never mentioned King v. Burwell, the case now before the Supreme Court in which the justices must decide the legality of federal insurance subsidies for millions of Americans. But his decision to champion his signature achievement in such pointed terms just weeks before the high court’s ruling is due raised the question of whether Obama was trying to jawbone the justices at the 11th hour.
As he has before, the president turned both to statistics (more than 16 million people covered; the lowest uninsured rate on record) and personal stories (a man whose cancer was caught and cured because of Obamacare insurance) to highlight the benefits of the Affordable Care Act. And with hundreds of Catholics in the audience, Obama made an explicitly moral argument for the law. “It seems so cynical,” he said, “to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.”
It was that final phrase—“woven into the fabric of America”—that seemed most directed at lawmakers in the Capitol and the justices on the Supreme Court. For Obama, the fight to preserve the healthcare in the face of a serious legal challenge carries a sense of deja vu. It was three years ago this month that Roberts alone, straddling the ideological poles on the court, decided to save Obamacare by declaring its requirement that Americans purchase insurance a constitutional exercise of Congress’s taxing power. The difference this time around, Obama not-so-subtly argued, is that the law is no longer “myths or rumors.” It is a reality, and so too would be the consequences of unraveling it. “This is now part of the fabric of how we care for one another,” Obama said. “This is healthcare in America.”
The speech came a day after the president, in response to a reporter’s question, commented directly on the case before the justices, which hinges on whether the law as written allows the federal government to subsidize coverage for residents of states that did not establish their own insurance exchanges. "Under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case," Obama said. "This should be an easy case. Frankly, it probably shouldn't even have been taken up," he added.
There’s a long history of presidents trying to lobby the Supreme Court to rule on their behalf, and Franklin Roosevelt famously tried—and failed—to pack the court with additional members when the original nine invalidated parts of the New Deal. Obama himself has clashed repeatedly with the Court during his tenure. In 2010, he criticized its 5-4 decision in the Citizens United campaign-finance case during the State of the Union, while the justices sat directly in front of him (prompting Samuel Alito shake his hand and mouth, “no”). Two years later, he sharply warned the Court not to rule against his healthcare law the first time around. “I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said then.
Yet there’s less evidence that even the most persuasive use of the bully pulpit can sway the justices. “Would it help or hurt? I can’t imagine it’ll make any difference, and I can’t imagine he thinks it’ll make any difference,” said Charles Fried, the Harvard law professor who argued cases before the court as Ronald Reagan’s solicitor general. (Fried has weighed in on the Obama administration’s side in King v. Burwell.)
While the Supreme Court likely won’t issue its Obamacare ruling until the end of the month, the justices often make their decision soon after the oral arguments, which for King v. Burwell occurred in March. “I would think the die is cast,” Fried said. At the same time, the convoluted opinions in the 2012 healthcare decision left the impression with some court-watchers—bolstered by reporting from Jan Crawford of CBS News— that Roberts’s decision to uphold most of the law came late in the process, or even that he changed his mind after the initial conference. It is once again Roberts, along with Kennedy, who is considered the possible swing vote in King v. Burwell.
The chief justice is seen as being uniquely sensitive to the Supreme Court’s public reputation in the polarized political environment, but he surely needs no reminder about the stakes of the latest Obamacare challenge. Obama’s speech, then, along with his comments on Monday, were more about laying the groundwork for the political fight to come if the Court does strike down the federal subsidies in 36 states. As he told reporters, “Congress could fix this whole thing with a one-sentence provision.” And as he well knows, it won’t.
Republicans aren’t about to clean up a law they have spent years trying to gut, and if the Court rules against it, the best Obama can hope for is that they’ll offer to restore the subsidies in exchange for other revisions the president won’t accept—like ending the individual or employer mandates that similarly tie the legislation together. The argument you’ll hear is the same one he made on Tuesday: The Affordable Care Act is now the reality of healthcare in America—“woven into the fabric”—and the painful disruptions and the parade of horribles that Republicans predicted five years ago will now only come to pass if they allow it to unravel. Of course, Obama could easily have waited a few weeks to deliver the speech, if he needed to give it at all. But Obama apparently wanted to begin mounting his case now—and, perhaps, sway any justice who might be having last-minute doubts.
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