The Supreme Court will decide in the midst of the 2012 presidential election campaign if the government for the first time in U.S. history can force Americans under penalty of law to buy a product they may not want, need or be able to afford.
That product is a health insurance policy that virtually every American family must buy or else pay a nearly $700 annual penalty, or 2.5 percent of its income once President Obama’s Patient Protection and Affordable Care Act is fully implemented in 2016.
The Congressional Budget Office estimates that a policy for a family of four would cost $20,000 a year.
In an exquisite example of judicial timing, the high court threw a political hand grenade into the elections that could go off just when Mr. Obama will be running for re-election in a mediocre economy that he has failed to fix.
With high unemployment likely to persist through next year and beyond, and a turbulent economy that has sent poverty to unprecedented new heights, the very last thing Mr. Obama needs is to reignite and further inflame the battle over the most unpopular legislation of his presidency.
But the court, looking over its calendar for 2012, said it will hear arguments in the case in March and hand down its ruling sometime in June on the constitutionality of the law that has been derisively named Obamacare.
Whichever way the court rules, the result will present Mr. Obama with a larger and far more intense set of problems that will further threaten his bid for a second term.
If the court rules the law’s mandate is unconstitutional, it will be an embarrassing political defeat for the president, who has made health care reform his signature issue. It’s one thing to lose a vote in Congress but quite another for a president to be told by the Supreme Court that the bill he signed violates the highest laws in the land.
If the court upholds the legislation - which I think is very unlikely - it will add further political fuel in the campaign to defeat the president to prevent him from implementing the new law and all its mandates, penalties, taxes and costly regulations. The Obama administration already has issued 10,000 pages of regulations, with a lot more on the way.
Though it hasn’t received much attention in the national news media, the campaign against Obamacare has won a number of legal, legislative and election battles in states that will be pivotal to the president’s re-election bid.
Let’s start with 26 states whose governments have been challenging the law’s imperious mandates. They lost some suits in the lower courts and won others, including in the 11th Circuit Court of Appeals, which struck down the mandate in a 2-1 decision. In that ruling, a Republican-appointed judge joined with a Clinton-appointed judge, calling the mandate “unprecedented” and unlawful.
Two pivotal electoral states have voted overwhelmingly against the health care mandate. In Ohio last week, voters approved a constitutional amendment that disapproved the health insurance mandate by a crushing margin of 66 percent to 34 percent - comfortably winning all of the state’s 88 counties.
In Missouri last year, a swing state Republicans carried by a razor-thin one-tenth of 1 percent, 71 percent of the voters rejected the mandate. That message was not lost on Democratic Attorney General Chris Koster, who broke with his party in April to urge a federal court to strike down the mandate.
Notably, support for Obamacare drops when the polling question mentions that people will be fined if they do not obey the new law’s mandate. A Kaiser Family Foundation poll earlier this year found that two-thirds of respondents called for repealing the mandate, while just 27 percent supported it.
Last month, Kaiser’s tracking polls found a seven-point drop in support for Obamacare, falling to 34 percent.
In a warning flag for the White House, Kaiser reported that the recent decline was due largely to “waning enthusiasm” for the health care plan among Democrats. Their favorable views dropped from 65 percent in September to 52 percent in October.
But Mr. Obama’s health care reforms already have begun falling apart in advance of the Supreme Court’s action.
In a stunning story that received relatively little attention in the nightly network news, the White House pulled the plug on the law’s long-term care program - the Community Living Assistance Services and Support Act - because the financial numbers didn’t work.
In an embarrassing admission that the administration and congressional Democrats had not thought through the bill’s shaky finances, it was discovered that the financial estimates wouldn’t pay the bills. Not “without mandating that everyone purchase the coverage and with employers compelled to collect premiums,” explains health care analyst Grace-Marie Turner at the Galen Institute.
Meantime, Democrats are worried about the looming political fallout among a number of Senate Democrats who walked the plank and voted for Obamacare but must now face the voters in contests that are “up for grabs” at best.
Democrats such as Missouri Sen. Claire McCaskill, who cast the pivotal 60th vote to pass Obamacare and said, “I don’t think there would be any constitutional challenge to the government intervening in health care.”
Sen. Jon Tester of Montana, Sen. Ben Nelson of Nebraska and Sen. Sherrod Brown of Ohio are also on the Democrats’ endangered species list.
There may be some other Democratic casualties before Obamacare has run its course. The mandate likely will be struck down in a 5-4 decision, and a number of Democrats are going down with it.
Donald Lambro is a syndicated columnist and former chief political correspondent for The Washington Times.