When the Supreme Court Strikes Down Obamacare, Will it Help Obama or Romney?

(Second in a series of posts interpreting momentous issues through the prism of the presidential election.)

Anthony Kennedy

The only vote that matters

At first glance, the answer seems obvious.  If the Supreme Court overturns Obama’s signature legislative “achievement,” surely that hurts Obama and helps his opponent.

But what about the fact that most Americans — 56% to 39% in a recent pollwant the legislation to go away?

James Carville today bravely argued that an overturn “will be the best thing that ever happen to the Democratic party because health care costs are gonna escalate unbelievably… and then the Republican Party will own the health care system for the foreseeable future.”  He also said, twice, “I honestly believe this, this is not spin,” leading Alana Goodman to headline her Commentary blog post, “Dems Spinning Possible Health Care Loss.” Ross Douthat has a rather unlikely theory about how an overturn could help Obama: “setting a clear limit on liberalism’s ability to micromanage Americans’ private decisions might make voters feel more comfortable voting to re-elect their micromanager-in-chief.”  Not Douthat’s best effort.

Goodman also points to a potential silver lining for Republicans the verdict goes the other way:  “if ObamaCare is upheld, the only way for Americans to get rid of the unpopular law may be to vote Republican – but it’s a stretch to say that would be the best possible scenario for the GOP.”

We’ll never know, because it seems clear that the law will be overturned.  The only vote that has ever been in doubt is that of Justice Anthony Kennedy, and I think we can discern his opinion from his remarks from the bench: “But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act… and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.”  Why yes… yes it does!

In addition to all this, I think an overturn will help Romney by neutralizing his biggest handicap as the nominee:  the fact that he signed a healthcare bill in Massachusetts that also included an individual mandate.  If the Supreme Court lets the law stand, Romney is going to have to spend a lot of time making fairly subtle distinctions between Obamacare and Romneycare.  There’s the federalism argument: it’s one thing for a state to mandate something, quite another for the federal government to do so.  But anybody who cares about federalism is already a Republican anyway.

Romney’s stronger argument is the fact that Obamacare was foisted on an unwilling public without a single Republican vote, whereas Romneycare had bipartisan support.  This argument actually gets bolstered by an overturn.  “Remember how they passed this legislation? Votes in the middle of the night on a 2,700-page bill that wasn’t even fully collated yet? Remember deem-and-pass?  Americans knew that was wrong, and they promptly swept a lot of Democrats out of office.  Now the Supreme Court has thrown it out, and all that remains is to give a new president an opportunity to reach across the aisle and find healthcare solutions that Americans can support.”

Advantage: Romney.