Who Really Won? The Political Impact of the Supreme’s Health Care Decision

            Last week’s Supreme Court decision affirming the constitutionality of the Affordable Care Act (the Act) has been widely hailed as a victory for President Obama, and in terms of validating the tremendous expenditure of time and political good will it took to get the bill passed into law, it certainly was.

            But a win from the Supreme Court can be read in different ways by those schooled in the law and can have still other, less predictable, repercussions in the world of electoral politics.  And in both areas—the legal and the political—arguments can be made that Obama won the battle but may end up losing the war.

            Regarding the legal effects of the Court’s decision, no small amount of intrigue exists regarding the authorship of the Court’s opinion in the case.  Chief Justice John Roberts was certain to be a solid vote against the Act, the thinking went.  Indeed, if the Act was to be upheld, the expectation was that Anthony Kennedy, the normal “swing vote” on tough 5-4 decisions, would be the Justice to side with the administration.

            Instead, it was the Chief Justice who took that role, leading many to wonder why he did so (and causing some on the right to regard him with immediate disdain).

            Whatever his reasons, Mr. Roberts crafted an opinion that may not set as well with Obama and his Democratic colleagues after the dust has settled.  Yes, he affirmed the Act’s constitutionality, but in doing so he also rejected the administration’s main argument, and that part of the opinion is now as much the law of the land as is the health care reform law itself.

            What the administration had argued was that a law could be enacted that required an individual to make purchases against the individual’s wishes.  That argument rested on the power granted to Congress to enact laws that affect the nation’s commerce (the Commerce Clause).  That provision in the Constitution was used to uphold the constitutionality of much of the legislation that came out of the New Deal in the 1930s.  It also supported the constitutionality of the Civil Rights Act of 1964.  (If you own a local coffee shop, you can’t discriminate against anyone based on racial grounds, because your business activities affect the nation’s commerce.)

            But those laws dealt with requirements placed on businesses or individuals engaged in actual commercial activity.  They did not involve non-activity, such as not buying health insurance. 

            The individual mandate, the centerpiece of Obama’s health reform law, would have been unconstitutional under the Commerce Clause in Chief Justice Roberts’ opinion.  He found a different reason (the power of Congress to tax) that led to his decision to uphold the law.

             And so, while the Obama administration won the battle over health care reform, it may have lost the ability to enact other reforms down the road.  Just to note one hypothetical example, a bill to require the use of solar energy—something that may someday be a desirable law for the country in the eyes of some legislators—would not be constitutional if it were based on the Commerce Clause.  Many other efforts to transform the country could similarly be forestalled because of the Chief Justice’s opinion on the Act.

            Politically, the Obama administration may have been initially pleased with the Court’s decision, but it was the Republicans who appeared energized by it.  And it remains to be seen how the decision will play in the coming presidential campaign.

            The Court’s decision was most assuredly a serious defeat for opponents of the Act, but sometimes defeats give rise to new ways to fight, and that might be the case for the Republicans now that the Court has spoken.

            Whichever way the decision came down, it was bound to have this kind of potential impact, giving the losing side a rallying cry for its troops: the importance of winning the presidency so as to control the selection of Supreme Court nominees.

            As a campaign issue, in most presidential elections the composition of the Court has never registered all that much with the electorate.  Richard Nixon made much of the need to choose “strict constructionists” for the Court in his 1968 presidential campaign.  It may have had some effect, but the public’s distaste for the war in Viet Nam and Nixon’s promise to end it (via a “secret plan” he claimed to have) was more likely the decisive factor in that election.

            Since then, few campaigns have made much of the Court’s work or of the president’s role in nominating justices to serve on it.  In most instances, the usefulness of this issue is limited by the public’s lack of understanding of how important Supreme Court decisions can be.

            But that factor doesn’t figure to be a problem this year, provided the Republicans decide to remind the public of the Court’s decision on the Act.  If they do, and if the Obama campaign doesn’t counter the public antipathy for the Act’s individual mandate, the Supreme Court could well serve as a positive issue for candidate Romney.

            Of course, Mr. Romney may not want to make it an issue, since he would then be open to attack as the architect of the very similar health care reform that he brought to Massachusetts when he was that state’s governor.  And if the Act isn’t made an issue by the Republican nominee, the Democrats will also probably leave it alone, since it is still polling as a negative for them, albeit not as badly as it was before the Court declared it constitutional.

            But if nothing else, the Court’s decision will have a positive short term impact for the Republicans in the form of fund raising.  And with the Obama campaign already lagging in that area (with much more Citizen’s United-inspired money pouring into anti-Obama Super-PACs), the likelihood is that even in the political realm, team Obama will end up having won the battle over health care reform to the detriment of its ability to win the war in its re-election effort.