Last week I participated in a roundtable that on these issues, along with other GW faculty from public health and law—Sara Rosenbaum, Peter Smith, and Katherine Hayes—as well as former U.S. Senate Finance Committee staffer Mark Hayes and former House Commerce Committee Health Subcommittee Counsel Andy Schneider. You can find a synopsis here and the video here.
My remarks centered on implications of health care reform for the 2012 election (as I previously wrote about here). How might the Court’s decision affect the politics of the issue for the election?
First, it’s likely that the Court’s decision—no matter what it is—won’t much affect overall public support or opposition to the Affordable Care Act. Court decisions often simply polarize approval—as in this study of Roe v. Wade. There are already early indicators that this will happen. In a March 2012 Kaiser Family Foundation poll, respondents were asked how they would feel if the court rules the individual mandate unconstitutional. A large majority (69 percent) of Democrats will be disappointed or angry while 79 percent of Republicans will be enthusiastic or satisfied. When asked how they would feel if the Court rules it constitutional, the results flip, naturally.
So if the Court does uphold the ACA, is this likely to put an end to partisan conflict? Hardly, except perhaps under the unlikely circumstance that the Court were unanimous. (It might get a little harder to attack the ACA if even Clarence Thomas supports it.) But again, that’s not likely. If you assume a 5-4 decision, then Republicans will continue to attack health care reform. This won’t be hard: they’ve been mad at Anthony Kennedy before.
What if the Court strikes down the ACA? This depends a bit on severability and what exactly the Court rules—does it strike down the individual mandate and leave other parts of the bill standing? Does it issue a broader ruling? Although a ruling that strikes down the individual mandate and/or other portions of the act, would likely ratchet down activism by opponents of the ACA, the broader debate might continue. Obama could defend other aspects of law—e.g., lifetime limits—and GOP could criticize it on other grounds or point to it as an example of the sort of government overreach that would be expected if Obama were reelected.
As I said in my earlier piece, I don’t necessarily think health care will be the defining or even a very consequential issue for voters in 2012. That said, I don’t expect the Supreme Court’s decision to defuse the issue very much.