The Supreme Court has been at center stage of presidential politics before (cue the ominous music for Democrats as Bush v. Gore flashes on the screen). But it is hard to conjure a precedent for the situation right now, with everyone looking to the wings for the court to make its dramatic entrance into Campaign 2012. By the end of next week—and maybe sooner—the Supreme Court will rule on the constitutionality of President Barack Obama’s prized domestic achievement, the 2010 health care reform legislation.
The health care law was a good chunk of what Obama was referring to when he crowed during a TV interview last December, “I would put our legislative and foreign policy accomplishments in our first two years against any president—with the possible exceptions of Johnson, FDR and Lincoln." (Yes, I have referred to this quote from “60 Minutes” before, but I still marvel at its hubris).
If health care reform were eviscerated by the Supreme Court, it would not only tarnish Obama’s legacy but might also jeopardize his reelection. The political message embedded in the legal analysis would be stark: The president wasted a year of his White House tenure—at a time of deep economic misery—on something that wasn’t even legal. Presidents rarely win reelection running on this Oscar Hammerstein lyric from “The King and I”: “This is a man who stumbles and falls. But this is a man who tries.”
A thumbs-down verdict from the Supremes on the mandate, the legal requirement that all Americans obtain health insurance, would also complicate life for Mitt Romney. As governor of Massachusetts, Romney’s signature accomplishment was the 2006 passage of a landmark health care bill that featured (isn’t political irony wonderful?) a statewide insurance mandate. While the Massachusetts law, enacted under the state constitution, would not be affected by a Supreme Court ruling, it would leave Romney in the awkward position of trying to explain yet again the difference between his mandate (good) and Obama’s mandate (bad).
[Related: Experts predict individual mandate will be struck down]
The Supreme Court will also rule this month on another political hand-grenade—a challenge to Arizona’s harsh anti-illegal-immigrant legislation that gives police officers broad powers to detain and potentially arrest anyone they suspect to be in this country illegally. The core issue is the power of states to enact, in effect, their own immigration policies. But as liberal constitutional scholar Garrett Epps writes, the legal doctrine at stake (“federal preemption”) is “a subject so abstruse and technical that it induces coma in even the hardiest law-review editors.”
No matter how the court rules in Arizona v. United States, the short-term political fallout is apt to be a light dusting. Immigration is already such a major issue in this campaign that even catching Hugo Chavez trying to sneak across the border illegally would be unlikely to change things. But the Arizona case—like the health-care decision—holds implications far beyond November. These are both potentially important decisions for whoever is in the Oval Office next year.
Upholding the health-care law and striking down the Arizona legislation would trigger the fewest long-term policy reverberations. In that case, health care would be back in the political arena where it belongs. And next year, either President Obama would be implementing the legislation or President Romney would be dismantling it. In similar fashion, if the Arizona law fails to pass constitutional muster, then immigration policy will be back on the federal level where it too belongs.
But what if health-reform dies or is mangled beyond recognition at the hands of the Supreme Court?
If Obama is reelected, there is a larger lesson, if he can accept it. Simplicity trumps Rube Goldberg-like legislative constructs with levers and pulleys and wheels within wheels. For Obama and health care, the simpler remedy (which would not have had anyone running to the Supreme Court) would have been to reduce the pool of uninsured Americans through incremental approaches like lowering the age for Medicare and raising the income ceiling to qualify for Medicaid.
[Related: Romney pushed for individual mandate in Mass.]
A President Romney would still have a health care problem (46 million uninsured Americans) even though he could, with the Supreme Court’s help, retire his “end Obamacare” applause line. The problem facing Romney would be the conundrum facing all victorious politicians: “What do we do now?” Romney, as the candidate, has been extremely vague about what would come next. His campaign website merely says, “In place of Obamacare, Mitt will pursue policies that give each state the power to craft a health care reform plan that is best for its own citizens.” Given the fiscal crisis facing the states, that language seems a euphemism for doing nothing.
It is harder to game plan the larger political meaning of a court decision upholding the draconian Arizona immigration legislation. In all probability, no matter who is in the White House in 2013, there would be renewed pressure for major federal immigration legislation. A green light for Arizona from the Supreme Court would encourage all 50 states to go in contradictory directions on immigration enforcement. Regardless of one’s position on the subject, there should be little sentiment for returning to chaos of the Articles of Confederation.
More than a century ago, the humorist Finley Peter Dunne, writing in a broad Irish dialect, declared, “Th’ supreme coort follows th’ illiction returns.” Ah, for the good days. This time around, there is a danger that the Supreme Court will shape the election returns rather than follow them.