Obama's Campaign for Re-Election Embraces US Supreme Court Healthcare Hearings

Healthy Competition

United States President Barack Obama's Republican opponents are trying to convince the mostly Republican-appointed Supreme Court that the Democrats' landmark Affordable Care Act violates the US constitution (see United States: 27 March 2012: US Healthcare Law Faces Supreme Court). This week's hearings have not gone well for the Democrats. Yesterday (28 March), the Obama administration felt obliged to issue a statement of support for Solicitor General Donald Verrilli, whose efforts to defend the law in oral argument have attracted widespread criticism from both supporters and detractors of the law. Critics pointed out Verrilli's coughing, stammering, and incoherence when answering hostile questions from the court's conservative justices. These hostile questions have led some Democrats to assume that the court will strike down not only the individual mandate but the Act in its entirety, stripping the president of the major policy achievement of his first term. One reason for this assumption is that the questions from the justices suggest an ideological split.

The 2010 Act, widely known as "Obamacare", requires Americans to purchase health insurance. The Republicans argue that Obamacare's "individual mandate" forces Americans to buy services from private companies as a "condition for breathing" and that this violates the US Constitution, which the Supreme Court justices interpret per their own, personal philosophy. At a political level, the Republicans argue that the law represents a radical socialisation of US society, and that it forces younger people to buy health insurance in order to subsidise retirees. Obama's Democrats maintain that the individual mandate is little different from the penalties paid by uninsured drivers, and that it is constitutional under the powers afforded to congress by the constitution's Commerce Clause. This week the court's Republican-appointed justices have questioned whether the constitutional notion of a government with "limited powers" can survive if the state is able to force individuals to enter a particular market, whether for healthcare or any other product. Questions from the court's liberal justices, by contrast, have suggested that they assume all citizens participate in the healthcare market by default.

White House Response

The hearings dominated yesterday's White House press briefing, fielded by Deputy Press Secretary Josh Earnest. His responses suggested an evolution of Obama's re-election strategy. Obama will probably face Mitt Romney, the former Republican governor of Massachusetts, in November's presidential election. As governor, Romney authorised an individual healthcare mandate for residents of his state. Earnest began and ended his briefing by pointing out the mandate's bipartisan credentials. One of the major reasons the Obama administration is confident of the Act's constitutionality was because, he argued, it was first advocated by the Heritage Foundation, a conservative think tank and then by conservative Republicans. The mandate was "a central part of the plan" enacted by Romney in Massachusetts.

The spokesman effectively dismissed the possibility that the Supreme Court will strike down the individual mandate. He twice repeated that the law had been passed by the House and Senate and signed by the president. These are all elected offices, whereas Supreme Court justices are appointed. Earnest noted that judges in lower courts had also asked tough questions of government lawyers but then, in some cases, they had ruled in favour of the Act. The presidency was so confident of the law's constitutionality, he said, that the Obama administration was not even considering contingency plans for if the justices decided otherwise. Earnest also defended Verrilli from multiple questions that challenged the advocate's performance in court, and he recited statistics illustrating the entitlements which the law has already conferred upon tens of millions of Americans.

A Teachable Moment

Despite these benefits, polls suggest the individual mandate remains unpopular among voters. Obama has therefore tended to avoid the issue in his public rhetoric, a tactic that has itself become the subject of criticism. The same, however, can also be said of Romney. The healthcare debate has been absent from his campaign literature over the past week, reflecting Republican unease over Romney's support for the individual mandate in Massachusetts. By contrast, his main competitor for the Republican presidential nomination, former senator Rick Santorum, has talked of little else. Santorum's campaign is now devoted to highlighting Romney's healthcare record. His attacks have contributed to perceptions among conservative Republicans that Romney is insufficiently right-wing.

Outlook and Implications

The Supreme Court process has given Obama's re-election campaign a means to talk about the healthcare law in a way that links it to Romney, to the Republican's detriment. If the law was constitutional in Massachusetts, they will argue, it is constitutional elsewhere—Romney is poorly placed to argue otherwise. Were the Supreme Court to strike down Obamacare in June, the decision would transform November's presidential and congressional election. The Democrats would portray the conservative justices as "legislating from the bench" and overriding the decisions of elected officials. Such a move would divert media attention towards the benefits of the legislation and away from its costs, potentially transforming voter perceptions of the individual mandate to the Democrats' advantage. The institution of the Supreme Court would come under a great deal of pressure, as was the case when it ruled in favour of the Republicans to decide the contested 2000 presidential election. Given the flexibility the Supreme Court justices have demonstrated in the past in their interpretations of the constitution, the balance of probabilities suggests that the Obama administration is correct to assume that the justices will defer Obamacare's ultimate fate to elected representatives, rather than striking it down themselves.