For Obama the SCOTUS ruling on ObamaCare is a single-edge sword

posted at 2:23 pm on March 31, 2012 by Howard Portnoy

By the close of judicial business on Friday, the nine members of the U.S. Supreme Court knew with near certainty the fate of the Affordable Care Act. The rest of us won’t learn what the justices discussed until the end of the current court term in June, when they officially announce their decision.

That hasn’t stopped pundits on both sides of the political spectrum from predicting how a defeat of the individual mandate, which is the beating heart of the legislation, might affect President Obama’s campaign strategy.

In a Washington Post op-ed, former Clinton adviser and pollster Mark Penn lays out two scenarios following  a strike-down of the mandate that would lead to an Obama victory in 2012. “In the first scenario,” Penn writes, the president would “launch the political equivalent of a drone strike on the Supreme Court.”

The Obama campaign could paint the court as out of step with the modern world, in which the state needs to help redress the inadequacies of global and national markets. After all, the mandate is about everyone paying their fair share toward health care; it eliminates free-riders from the system.

Recognizing that this appeal would serve to energize only Obama’s extant base, Penn moves on to Plan B, which sounds a lot like the theory advanced last week by James Carville: that the defeat of the individual mandate would remove an albatross from around the administration’s neck. It would also deprive the Republicans of one of their most potent talking points.

The Weekly Standard’s Fred Barnes puts forward an argument that rains on Carville’s parade:

If Obama-care falls, it will be a devastating rebuke to the president. The crown jewel of his presidency will have been repudiated as unconstitutional. His pretensions of uniquely knowing how to get things done in Washington will be shattered. Obama will be a diminished political figure. He will become a lesser president, far from the top ranks where he has envisioned himself.

Barnes also sounds a cautionary note that a Supreme Court affirmation of the law’s constitutionality would permit Obama to “crow that he has succeeded where presidents over the past century failed.”

But there is problem with that assumption that, in fact, arches over the entire conversation. And that is that the law has already been roundly repudiated—by the American people. As Penn concedes in his column, a poll recently conducted by ABC News-Washington Post found that 67% of Americans think the court should toss at the entire law or at least the mandate. A current Real Clear Politics average shows 51% favoring repeal of the law, while only 39.5% favor retaining it.

For Team Obama to score points with voters in the event the law is struck down, they need either to invent a time machine and go back and undo the health care law or to induce mass amnesia. If the court upholds the law’s constitutionality, the Obama campaign faces the equally unpalatable task of persuading the public that the law won’t be as bad as they think once it takes effect. But that’s a public relations coup that they have failed at realizing repreatedly. Why should anyone assume it will work this time around?

If Republicans play their cards right, they will remind voters daily that the choice in November is between their candidate and an incumbent who pushed through one of the least popular law in American history.

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