On Monday, President Obama raised eyebrows with his assertion that the “unelected” Supreme Court would be wise to not overturn all or part of the Affordable Care Act. While some view the president’s actions as a strong, emboldening warning shot to opponents of the health care reform, others saw it as Obama tilting at windmills.
Whatever the president’s strategy in singling out the Court, it is not a strong argument for reelection. If the Supreme Court does find elements of health care reform unconstitutional, the White House could find itself in a surprisingly strong position to take political advantage of that situation. This strategy would, however, require a slight rhetorical shift on the part of the president.
The president’s attack on the Supreme Court in advance of their decision on the constitutionality of health care reform has been met with bipartisan criticism. Liberal Washington Post columnist and outspoken supporter of the individual mandate, Ruth Marcus, says the president “went too far” and did “the court a disservice.”
Conservative columnists, too, found Obama’s preemptive critique of the Supreme Court unsettling. Weekly Standard columnist Jeffrey Anderson wonders how a former constitutional law professor could display such an “apparent lack of awareness of the doctrine of judicial review?” Bloomberg columnist Ramesh Ponnuru believes that the public is likely to side with the Court in the event that they move to strike down all or part of the Affordable Care Act. “Americans express significantly more confidence in the court than in the presidency or Congress. And most Americans dislike the individual mandate and actually want it struck down,” Ponnuru writes.
It is not rare for sitting presidents to attack Supreme Court decisions with which they disagree but, as an electoral strategy, running against the court is ill-advised. The Supreme Court will only be on the ballot in November in a peripheral sense; this tactic would be further confused by the fact that two of the Court’s sitting justices are Obama appointees.
While the president appears petulant today in his preemptive critique of the Court, he could position himself as magnanimous tomorrow. In the event that the Supreme Court does strike down the individual mandate, or rules the entire Affordable Care Act unconstitutional, the president will be handed a fortunate opportunity to triangulate against his opponents and enthuse his base.
Polls have consistently shown that strong pluralities and even majorities of the electorate generally favor repealing the health care law as it is currently constituted. Progressives console themselves that many individual portions of health care reform poll well, but the public relations battle over the popularity of the law has largely been lost. A March 28 Reason-Rupe public opinion survey showed that 50 percent of pure independents feel the law should be repealed, while only one third believe the law should remain in effect.
The president suffers with independent voters who also view him as “too liberal.” A Pew Research Center poll released on March 14 showed that 45 percent of independent voters viewed President Obama as too liberal while only 14 percent said he was “not liberal enough.” This condition is no doubt compounded by the president’s bucking of public opinion in regards to his signature health care reform law.
President Obama could easily embrace the decision by the Supreme Court should they rule the mandate unconstitutional, and begin to win over those independent voters who have been leery of the health care reform law from the start.
By embracing, if not endorsing, the Supreme Court’s decision, the Obama would appear to be moderating ahead of the general election. Furthermore, Obama can intimate to the progressive base that the Supreme Court has confirmed that a middle way is unavailable to the country and the problem of free riders in the health care system and covering millions of uninsured Americans can only be addressed by pushing for something akin to a single payer system.
Of course, the Supreme Court could let the law stand – in which case there is no need for a strategic shift from the White House. But if the Court does rule against the government, the president can capture what he has thus far been unable to harness – a positive message for his reelection. In the process, he might win over a few of those critical independent voters that were alienated by the first debate over health care reform.
Watch President Obama’s veiled warning to the Supreme Court here:
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