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After the ObamaCare Verdict: Who Gets the Blame?

By the time you read this, Washington will have ruled on the Affordable Care Act.

Oh, you may still have hours before the Supreme Court hands down its verdict, expected at 10 a.m. on Thursday. But policymakers and pundits have been crafting, drafting and even recording their statements for weeks, in anticipation of hitting “send” when the decision is announced.

(One lawmaker accidentally posted four different videos, each offering his reaction to a unique scenario, a few days early — which probably wasn’t a scenario he planned for.) There’s practically no outcome that will leave D.C. at a loss for words, or judgments.

The ACA ruling will impact millions of Americans and have drastic consequences for the health care industry. Yet for the immediate future, this week’s events will be interpreted through a simple lens: who underprepared and who overreached in the long-running battle over the Affordable Care Act.

If the Law Gets Struck

With expectations swirling that part or all of the ACA will be overturned, some lawyers are already assigning retroactive blame to Democrats, Forbes contributor Avik Roy wryly notes.

Most of the criticism centers on the controversial individual mandate, and whether Democrats were on solid legal ground in pushing the provision. But one Washington Post piece, according to Roy, “contained some hilarious complaints from prominent law professors who ought to know better.” For example, a Yale professor suggested that the Obama administration erred by not citing the Militia Acts of 1792, which requires able-bodied men to purchase a musket. That case could have been an “ace in the hole,” professor Akhil Amar told the Post, because “you’ve got George Washington signing a bill that helps you.”

Writing in the New York Times, Peter Baker similarly chronicles the Obama administration officials’ confidence that the law was constitutional. But in retrospect, “they underestimated the chances that conservative judges might … radically reinterpret or discard those precedents,” Baker writes. And although lawyers repeatedly assured the White House that the Supreme Court should rule in their favor, “Democrats have been confusing ‘should’ odds and ‘will’ odds all along,” Times bureau chief David Leonhardt told “Road to Reform” over the weekend.

But these arguments smack of revisionism. Where were these lawyers in 2009 and 2010, when the overwhelming legal consensus was that the mandate was clearly constitutional?

Only one prominent scholar — Georgetown University law professor Randy Barnett — stepped forward to repeat, again and again, that the ACA was an unprecedented abuse of congressional powers. And Barnett’s “pet cause” only became a cause célèbre for ObamaCare opponents relatively late in the process; as the ACA continued to steam ahead, Republican leaders sought new ways to delay or stop the effort, alighting on constitutionality as a last-ditch tactic.

Democrats surely deserve some blame if the law is struck; after all, it was their law. But if the ACA falls, “Road to Reform” proposes another way to zing Democrats: Once the bill became the law, did they do enough to protect it?

Previous columns have reviewed some of the options that Democrats could have deployed: They could have passed mandate-like responsibilities to the states or used a combination of alternative tactics, like modifying enrollment periods, that ultimately would have been coercive. Heck, they could have used their lame-duck Congress in 2010 to work up a potential patch, once it became clear that the ACA was a legal liability.

If the Law Stands

The end of the ObamaCare legal battle could be the beginning of a whole new saga, of course.

Some think the ACA will be re-litigated ad infinitum; one “Road to Reform” reader suggested that Florida v. HHS would become a new generation’s Roe v. Wade — a litmus test on politics, personal health and the role of the federal government. Several D.C. political staffers tell “Road to Reform” that they firmly expect a pro-ObamaCare verdict to remain in the news cycle ahead of this fall’s elections; it could be used to burnish the president’s credentials or serve as a GOP rallying point.

But it’s impossible to know what a Republican president and Congress would do if the court says the law is legal. Debating President Obama on health reform hasn’t been a winning issue for Mitt Romney, for clear reasons, so the ACA’s prominence could recede in Romney’s campaign. Republican governors may be less interested in repealing the law as state-level implementation — and new funds — continues to flow.

And a decision to uphold the law could backfire for the GOP. If most Americans feel that the verdict puts the ACA debate to rest, Republicans could be punished at the ballot box for continuing to harp on the law. And in the long eye of history, the quixotic quest to derail federal health coverage expansion may be viewed as backward-thinking as efforts to deprive some U.S. citizens of voting rights and other protections.

After the Final Verdict

With most observers anticipating a ruling against at least part of the ACA, National Journal recently polled the public on how their attitudes would change if the law gets struck down. Obama would be relatively unaffected; about two-thirds of respondents said it wouldn’t change their opinion of the president. But nearly one in three respondents would lose respect for Congress — and the Supreme Court, too.

“Road to Reform” is planning a special edition for Friday, once the Supreme Court’s decision is in hand. Won’t you join us then?

In the meantime, here’s a look at what else is happening around the nation.

Administration Actions

  • The Obama administration has spent about $2.7 billion so far to implement provisions of the federal health reform law, despite calls by conservatives to halt the spending until the U.S. Supreme Court rules on the constitutionality of the law (Feder et al., Politico, 6/23). It is “unclear” what will happen to the money if the law is struck down (Abelson, New York Times, 6/21).
  • White House senior adviser Valerie Jarrett recently said the Obama administration “will be prepared” for the upcoming U.S. Supreme Court decision on the federal health reform law, noting that the administration has “done a lot more than just” enact the law (Buford/Epstein, “44,” Politico, 6/23).
  • Officials in President Obama‘s re-election campaign say their response to the U.S. Supreme Court‘s ruling on the federal health reform law will be contingent on the ruling is, but the campaign likely will continue highlighting the most popular elements of the overhaul and ramp up pressure on presumptive Republican presidential nominee Mitt Romney to explain his positions on health care reforms (Memoli, Los Angeles Times, 6/21).
  • Last week, HHS Secretary Kathleen Sebelius announced that an additional $128.6 million will be awarded to 219 community health centers nationwide for expansion and improvement projects, as part of the federal health reform law. The funds will be directed to CHCs in 41 states, the District of Columbia, the Northern Mariana Islands and Puerto Rico (AP/San Francisco Chronicle, 6/20).

Effects on Consumers

  • Although there is significant support for continuing to allow young adults to stay on their parents’ health insurance up to age 26, a decision to strike down the federal health reform law could cause tax problems for employers and parents because the child is no longer a dependent, according to James Klein, president of the American Benefits Council (Rovner, “Shots,” NPR, 6/22).
  • If the high court strikes down the health reform law, provisions that maintain insurance coverage parity for women and prohibit insurers from denying coverage for pre-existing conditions — such as pregnancy, a Caesarean-section birth, or a sexual or a domestic violence assault — could be at risk (Appleby, Kaiser Health News, 6/19).

Effects on Employers

  • Entities not normally associated with the discussion over the federal health reform law — such as Chinese restaurants, tanning salons, breast-feeding advocacy groups and others — have a lot at stake with the U.S. Supreme Court‘s decision on the overhaul, because the law reworks how they pay taxes (Adamy, Wall Street Journal, 6/20).
  • Last week, the Business Roundtable sent a letter to lawmakers asking them to establish a “cooling-off” period between the U.S. Supreme Court‘s ruling on the federal health reform law and any legislative action in response to the decision (Haberkorn, Politico, 6/19).

Eye on the Courts

  • Center for American Progress President Neera Tanden said if the high court strikes down the federal health reform law, it could make future nominations for U.S. Supreme Court justices much more political (Haberkorn, Politico, 6/20).
  • Some legal experts have suggested that President Obama‘s legal team might have insufficiently crafted its defense of the federal health reform law, which might have made the law more susceptible to being struck down by the U.S. Supreme Court‘s conservative justices (Wallsten, Washington Post, 6/23).
  • Most U.S. Supreme Court experts who responded to a recent American Action Forum survey believe it is more likely that the high court will strike down the federal health reform law’s individual mandate (Baker, “Healthwatch,” The Hill, 6/20). On average, respondents predicted a 57% chance that a majority of the justices will find the mandate unconstitutional (Peralta, “The Two-Way,” NPR, 6/20).

In the States

  • Last week, Florida Gov. Rick Scott (R) said he is optimistic that the U.S. Supreme Court will find the federal health reform law unconstitutional, but said his state would comply with the law if it is upheld (Viebeck, “Healthwatch,” The Hill, 6/20).

Public Opinion on the Overhaul

  • A combined 58% of respondents to a recent YG Network poll said they want the U.S. Supreme Court to strike down the individual mandate or repeal the entire federal health reform law, while 49% said they would be upset if the law is upheld (Catalini, “Influence Alley,” National Journal, 6/25).
  • Fifty-six percent respondents to a recent Reuters/Ipsos poll said they oppose the health reform law, but 82% said they support some of the law’s provisions that favor young adults and individuals with pre-existing conditions (Zengerle, Reuters, 6/24).
  • More than 75% of U.S. residents do not want lawmakers to continue to work on reforming the nation’s health system if the U.S. Supreme Court completely overturns the health reform law, according to a new Associated Press-GfK poll (Sherman, AP/San Francisco Chronicle, 6/20).

Rolling Out Reform

  • Last week, Medicaid officials from several states said they plan to move forward with implementing the federal health reform law’s Medicaid expansion provision regardless of the U.S. Supreme Court‘s decision on the law. The comments came during a call hosted by State Refor(u)m, a nonpartisan project that facilitates discussions between states on implementing the overhaul’s provisions (Millman, Politico, 6/21).
  • Many of the federal health reform law’s provisions, including the Medicaid expansion, will move forward even if the U.S. Supreme Court rules against the individual mandate, according to Democratic sources (Alonso-Zaldivar, AP/San Francisco Chronicle, 6/18).
  • Nearly half of all media coverage of the federal health reform law between June 2009 and March 2010 focused on the politics, strategy and the legislative process of crafting the federal health reform law, but only 23% of the coverage honed in on what the law would actually do, according to a study from the Pew Research Center Project for Excellence in Journalism (Rovner, “Shots,” NPR, 6/19).

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