Let’s take a moment off from baseless speculation over tomorrow’s decision on ObamaCare for less-baseless speculation as to what comes afterward. What exactly are Barack Obama’s contingency plans if the Supreme Court overturns ObamaCare, in whole or in part? On Monday, Marc Ambinder tweeted out this interesting update before it became apparent that the court would wait for Thursday to release its decision. According to Ambinder, the White House had a raft of executive orders at the ready:
The WH has exec orders RTG if ACA is struck down. Their content and timing I don’t know. But they’ve got contingency plans a-plenty.
— Marc Ambinder (@marcambinder) June 25, 2012
Over at The Corner, Avik Roy casts a skeptical eye:
It’s not clear to me exactly how much of Obamacare can be reinstated via executive order. It’s certainly conceivable that the president could issue costly mandates that affect private insurers. But the president couldn’t expand Medicaid on his own, or ration Medicare without congressional approval.
In fact, it depends on just how much of ObamaCare gets overturned, if anything at all does. If the whole bill gets overturned, then the executive authority to issue those kinds of mandates evaporates with it. That also impacts the HHS contraception mandate, in which the Supreme Court might do Obama a favor with a complete reversal, which would end the fight with Catholic bishops over religious liberty. The EOs would become moot, since insurance companies cannot issue policies across state lines at all.
A partial overturning of just the mandate and/or other subsidiary parts of the ACA might leave enough jurisdiction for the White House to issue EOs that shore up the remnants. However, while that legal opening might arguably exist, it would probably be political suicide to take advantage of it. ObamaCare remains very unpopular with the public, a status confirmed once again in the latest WaPo/ABC poll:
Fifty-six percent of Americans rate the nation’s current health care system unfavorably in a new Washington Post-ABC News poll, while 52 percent regard the “federal law making changes in the health care system” in a negative light.
The numbers are even more stark when they are broken down into those who feel strongly favorably versus strongly unfavorably about each system. In each case, the number of people who feel strongly opposed is more than twice those who feel strongly in support — a testament to the fact that all of the energy on health care is on the side opposing both the old/new system.
And perhaps most interestingly, Americans who are not happy with their current health care also give Obama’s health care law negative ratings, by a 2-to-1 margin.
With that in mind, will a President aiming for re-election in just four months use the oft-abused and unpopular EO process to reimpose parts of an already-unpopular bill that had just been shot down by the Supreme Court as an overreach on federal power? Perhaps, but they would be risking a huge amount of backlash — and for what? To force an unpopular bill down the throats of American voters, this time without the political cover of Congress? I’m not sure that even this administration is that tone-deaf.