CHICAGO — The Supreme Court’s skeptical consideration of President Obama’s landmark health-care legislation this week has forced his supporters to contemplate the unthinkable: that the justices could throw out the law and destroy the most far-reaching accomplishment of the Obama presidency.
The fate of the Patient Protection and Affordable Care Act is uncertain. A ruling is not expected until June. White House officials are refusing publicly to consider that the law might be struck down or to discuss contingency plans, insisting that they do not address hypothetical questions.
Other Democrats have begun assessing how such an outcome could affect the political landscape of 2012, with some surmising that a backlash against Republicans could follow a ruling against the law. But supporters argue that on a substantive level, the results would be devastating.
“This would be a great loss, obviously, to the American people,” said Rep. Chris Van Hollen (D-Md.) “The status quo with respect to the health insurance system was unacceptable to the American people. This was an answer to a very real problem.”
By the time oral arguments ended this week, supporters were rattled by the tough questions, with legal scholars and others observing that a majority of the justices seemed inclined to strike down the law’s key provision, an individual mandate to obtain health insurance.
That has prompted a larger conversation about what happens if they do.
The court will effectively render judgment on the leadership of the president. It was Obama who, at every turn during the original health-care debate, pressed for a more ambitious package that required Americans to purchase insurance.
A nullification would serve as a dramatic rebuke of that decision as well as the judgments Obama and his advisers made about the legality of the law.
“He’s mortgaged his presidency, at least his first term, on health care,” said George C. Edwards, the author of a new book on Obama called “Overreach” and a historian at Texas A&M University. The law “would have restructured a major aspect of life in America. It would have been a major, major legacy for the president. If that is thrown out, he has much less to show for it.”
Less clear are the short-term political implications of a Supreme Court decision to throw out the law. A number of allies of the measure, including Senate Majority Leader Harry M. Reid (D-Nev.), said it’s possible that such a ruling could help Obama’s reelection campaign by galvanizing Democratic voters.
These Democrats did not think the oral arguments went well for the president. But they see an opportunity to rally voters who are passionate about health-care reform — and to portray the Supreme Court as a partisan body.
“If they overturn the individual mandate and undermine the central element of this bill a few months before the election, it will anger Democrats and rile up the base,” said Neera Tanden, president of the left-leaning policy group Center for American Progress and a policy adviser to Obama’s 2008 campaign. “People will see it for what it is: an activist court rendering a partisan decision.”
One liberal group formed to build public support for the law, Protect Your Care, plans to throw out its playbook if the justices rule against the administration. Instead of promoting the popular provisions in the law, the group would devote its time in the fall to going negative on the court itself — painting the conservative justices as partisan ideologues who robbed Americans of needed benefits. The messages would be aimed at seniors who might lose prescription drug benefits and young people who might lose access to their parents’ health insurance plans.
“Since Bush v. Gore, from the progressive side, it would be the most galvanizing Supreme Court ruling ever,” said Eddie Vale, a spokesman for the group. “You’d have a 5-4 court, in clearly a partisan political decision, striking down not just President Obama’s biggest legislative accomplishment but also the biggest progressive legislation since LBJ.”
Romney’s role
Supporters of the law also think that Republican presidential front-runner Mitt Romney is in no position, because of his support as Massachusetts governor of a state-level individual mandate, to take political advantage if the statute is thrown out. If anything, they argue, such a ruling could prompt a discussion about whether Romney’s health-care overhaul, upon which Obama’s law was largely modeled, is unconstitutional.
“Romney does not have clean hands here,” said Rep. Gerald E. Connolly (D-Va.). “Saying that we stretched the commerce clause too much, and therefore it’s not constitutional — well, what about the law in Massachusetts that Mitt Romney signed? It has exactly the same premise.”
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