Supreme Court Decision on Health Care Will Weigh Heavily in 2012 Elections

Nov 15, 2011 8:00am

The Supreme Court’s decision to hear arguments on one of the most important parts of the health care law could have significant political and policy implications for President Obama as he gears up for reelection.

The Obama administration took a political gamble by urging the Supreme Court to hear arguments on the individual mandate, which is perhaps the most controversial component of the health care law.

In part, it illustrates the level of confidence on the part of the administration that the mandate is constitutional. But in a bigger way, it reflects their anxiousness to put an end to the ongoing flak once and for all.

The individual mandate is to be implemented by 2014 and requires all Americans to have health insurance or pay a fine. Challengers say the mandate, which was struck down by a lower court, crosses constitutional boundaries.

“If we’re going to have a fully functional system by 2014 …  it’s important to put this to rest once and for all,” Health and Human Services Secretary Kathleen Sebelius said Monday. “We are confident that the law is constitutional, will be upheld as constitutional.”

But if the Supreme Court’s recent decisions are any indication, the Obama administration has reason to worry, experts say.

“If I were Obama, I’d be very nervous about the fate of my health care bill resting in the Supreme Court,” said Darrell M. West, vice president and director of Governance Studies at the Brookings Institution. “The court has not been friendly to the administration on many issues and it just takes a 5-4 vote to invalidate their vision.”

The arguments will take place right before the election, and the Supreme Court’s decision will undoubtedly play heavily into how Obama and his first term is perceived.

The Affordable Care Act is one of Obama’s crowning achievements, and a blow by the Supreme Court is unlikely to play well with voters.

The timing is both beneficial and hurtful for Obama. It allows him the opportunity to tout the more popular aspects of the health care legislation. At the same time, it opens the doors for his opponents to attack the law and argue that if it’s being taken up by the courts, there must be fundamental problems with it.

“What the court hearing will do is reenact the health care debate in American politics,” West said. “It will increase the scrutiny because it will allow the critics to take potshots at the legislation. Given the fact that public option is negatively against the health care law, it makes it more complicated for Obama as he gears up for reelection.”

However, the president could have an upper hand if he were to face Republican presidential candidate Mitt Romney in the next election. Romney has been blasted by many for flip-flopping on the issue. As Massachusetts governor, he signed into law health care legislation that became the model for the Affordable Care Act and in 2004, he praised the individual mandate as “the ultimate conservative idea.”

A ruling unfavorable to the Obama administration would not necessarily strike down the entire law, but it will make it difficult to implement it. The individual mandate was in many ways the backbone of the law. It was the measure that justified imposing stricter guidelines on insurance companies, lifting constraints on pre-existing conditions, and expanding parental insurance coverage to children until 26 years of age.

“It’s going to be more challenging for the insurance markets to work and that could drive some further legislative steps in terms of implementing the law,” said Mark B. McClellan, director of the Brookings’ Engelberg Center for Health Care Reform. “The implementation of the law has been a big challenge already. Lots of things have to line up. This would be a further complication.”

Taking away the insurance mandate would give healthy Americans less incentive to buy insurance if they don’t need to, increasing costs for insurance companies and in turn increasing premiums for those who do have insurance.

A negative ruling would not “derail the entire legislation, but it has definite consequences for health insurance companies, and makes it more difficult for their business model to work,” West said. “The insurance companies have much more on the line than does the Obama administration. A negative ruling could be devastating” for them.

Americans’ favorable view of the health care law has dropped to a new low not seen since the law was passed in March 2010, according to a poll by the Kaiser Family Foundation released last month. Fifty-one percent now view the law unfavorably, a new high, and the biggest decline in support is among Democrats.

The mandate is even more unpopular.

An ABC News/Washington Post poll last month showed political advantage for a presidential candidate who favors repealing the law. Forty-three percent said they’d be more likely to support such a candidate, versus 29 percent who said they are less likely to do so.

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