Yesterday’s Supreme Court ruling will long be parsed for its constitutional significance. Certainly, the nation is better served by a Chief Justice who understands he must mind the Court’s place in our political and constitutional system, and not let the Court become yet another institution overwhelmed by partisanship, than it would be by a Chief Justice who was willing to run roughshod over the other branches. Certainly, yesterday was not a good day for the Commerce Clause: The decision was not, as most observers have it, really a 5-4 decision so much as it was a 4-1-4 decision, with Chief Justice Roberts siding with the conservatives on the principle and with the liberals on the application. Roberts played the role of Casuist-in-Chief, and in a polarized political and legal climate, three cheers for the casuistic temperament.
The politics of the decision are at once more simple and more complicated. Simple because we can imagine what yesterday would have been like if the Court had overturned the Affordable Care Act. All the political capital spent by the Obama administration would have been for naught. The man who once taught constitutional law would have seen his signature accomplishment ruled unconstitutional. This would have fed the narrative that Gov. Romney likes to repeat that Mr. Obama is simply not up to the job, and while pollsters who focus on issues tend to forget it, issues are not on the ballot in a presidential year. A person is. Any narrative that makes a candidate look incompetent is a very difficult narrative to combat.
But, the politics are also more complicated. Had the Court overturned the law, the Democratic base would have been riled up. Now, it is the Republican base that is riled up. Of course, they were already pretty riled up, and there principal argument against the ACA was that it was unconstitutional. Sen. Rand Paul (R-KY) continued to insist that, notwithstanding the court’s ruling to the contrary, the law was still unconstitutional. Activist Brent Bozell called Roberts a “traitor.” And Cong. Louis Gohmert (R-TX) talked openly of impeaching the Chief Justice. Here is the Romney campaign’s major dilemma: They can fire up the base with this sort of red meat, but they then risk looking like extremists. Better to say, and more worryingly for him, Romney risks looking like he lacks the fortitude to stand up to the extremists in his own camp.
Romney faces a further hurdle. Just as President Obama would have looked foolish had the former constitutional law professor’s principal legislative achievement been ruled unconstitutional, the focus on the individual mandate entails a renewed focus on Mr. Romney’s own effort to reform health care in Massachusetts. A video clip of Romney praising the Massachusetts legislature for including an individual mandate in that state’s overhaul of the health care system quickly surfaced and reminded Americans that what Romney now condemns he once embraced. Rick Santorum and Newt Gingrich were right last winter when they warned that Romney would sound an uncertain trumpet in the campaign against the ACA.
On the other hand, Romney’s general theme, that Obama’s regulatory impulses are holding back the economic recovery, now has a renewed Exhibit A. We will hear lots about the ACA being so long and so complicated, the burden it places on small business, etc. There is little to no hard evidence that the ACA will curtail employment, although there is something to the idea that uncertainty about the ACA has had a dampening effect on an already soggy economy. But, it is a simple case to make, true or not, and Romney will be making it from here to November.
The President and congressional Democrats also need to make a decision: Will they defend their own handiwork or permit Republicans to continue to mischaracterize it? The risk is that they will look like getting health care for poor people matters more to them than creating jobs. That is a political risk, not a moral one, to be sure. And complex laws are harder to defend even though any health care reform law is necessarily going to be complex except for a single payer system, and that option, sadly, does not have a lot of political currency in the U.S. The reason the ACA is so complicated is precisely because the Obama administration and congressional Democrats did NOT propose a “government takeover” of health care as is often charged but, instead, kept the private insurance market system we have and found admittedly complicated ways to make it more inclusive.
So, the politics will remain murky until the White House does the one thing it should have done long ago: Find a five year old, a really cute one, with a pre-existing condition who had been denied insurance previously but who has such insurance now and is looking at a long and healthy life. That five year old must become the face of the ACA and become as well known as Ryan White was in the debate over AIDS funding. Then, those who denounce the ACA will be seen to be arguing for killing little Betty or little Johnnie. In the end, this is what the debate about universal health care has always been about, the fact that the previous system could not find a way to care for many millions of our fellow citizens, and that inability was a moral scandal. But, an argument is not a person, and the only way for the Democrats to turn yesterday’s Court decision into a political windfall is to personalize the debate, move it beyond a cloudy discussion of complicated policies, and remind all Americans that the ACA, at long last, will bring almost all Americans within reach of the care that they need at a cost they can afford.
