2012 Tuesday: A Supreme (Court) moment for the election

A key moment in the 2012 presidential campaign happened yesterday. If you blinked, you may have missed it.

Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals, based in Atlanta, struck down Obamacare’s individual mandate as unconstitutional. Yesterday was the deadline for the Obama administration to ask the entire appeals court to rehear the case, which comes from a lawsuit filed by Florida and joined by Georgia and 24 other states. The administration did not do so.

Instead, the administration will almost certainly appeal the ruling to the U.S. Supreme Court — which most likely would take the case, hear it and issue a ruling by the end of the court’s term, around late June or early July.

As in, roughly four months before the general election.

Whoa, Nellie.

Whatever the outcome — and the Supreme Court could uphold the law entirely (as some other federal courts have done), strike it down entirely (as the District Court did in the Florida case) or strike down part(s) of it (as the 11th Circuit did) — it’s bound to have an effect on President Obama’s re-election bid.

But what kind of effect? If the justices strike down all of the law, or even just key parts of it like the individual mandate, I have a hard time imagining that being positive for Obama. It’s not as if Democrats are positioned anytime soon to recapture a majority in the House and a super-majority in the Senate (60 seats). So, passing a modified version of Obamacare to put the law back on the books is pretty much out of the question. And I don’t think he’ll be able to convince his base otherwise.

Republicans and Republican-leaners — especially the tea-party faction — might suffer a little deflation from seeing one of their main objectives achieved. But the argument over the size and scope of government will continue and, unlike Democrats, the GOP would get momentum from a court victory and might be able to build upon it.

If the court upholds Obamacare, I could see the effects reversed, up to a point. Democrats would likely get an enthusiasm boost from seeing one of the president’s signature legislative achievements confirmed by the high court. Republicans might slump somewhat, but a GOP president could still do a lot to halt, slow down or modify implementation of the law — that’s one of the problems congressional Democrats created for themselves by leaving so much of the rule-making and final shape of the law in the hands of the secretary of Health and Human Services, and putting off so much of that activity until after the 2012 elections. Plus, the GOP could still campaign on “repeal and replace” more credibly than Democrats could campaign on “pass it again.”

A more open question, however, may be the effect this judicial process will have on the Republican nomination.

Mitt Romney has survived Rick Perry’s entry into the race in part because of Perry’s debate stumbles. But he’s also benefited from the inability of Perry and other Republican candidates to make Romney pay a political price for Romneycare law in Massachusetts.  I’ve been amazed that Romney has been able to get by so far with his nuanced — some would say empty — defense of the distinctions between his law and Obama’s.

Say the Supreme Court holds arguments for the Obamacare lawsuits (it’s probable that they’ll merge the 11th Circuit case with those from elsewhere around the country) in February. How could it possibly help Romney to have health reform back at the forefront of the national political dialogue right when the primaries are heating up?

On the other hand, there’s a chance the nomination fight drags on inconclusively well into the spring. And the 2012 GOP Convention isn’t until late August…which is well after the Supreme Court likely will have rendered its decision. If the law is struck down entirely or in large part, might that remove a big cloud hanging over Romney? I don’t think the nomination will still be in doubt by late June/early July. But you never know.

My bet would be that the court case will help a non-Romney Republican both get the nomination and defeat Obama. In any case, yesterday’s decision to tee up a Supreme Court ruling before the election added more drama to what’s shaping up as an all-timer in American politics.

– By Kyle Wingfield

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109 comments Add your comment

commoncents

September 27th, 2011
10:59 am

ElephantWhip

September 27th, 2011
11:00 am

The only matter that will go before the Supreme Court will be the requirement to buy. One of three things will happen:

(1) The Supreme Court will hold that the case is moot because no one can show harm because no one has been forced to buy yet.

(2) The Supreme Court will find the whole law constitutional due to the recent broad readings of the Commerce Clause.

(3) The Supreme Court will find the mandatory purchase part is unconstitutional but leave the rest intact, leading to new legislation (or legislative attempts) at universal healthcare through the government without required purchase from a private entity.

I am betting on the first. Appellate courts love to punt.

Maintaining Sanity in Today's World

September 27th, 2011
11:07 am

I see Candidate Cain supports the Chilean model for Social Security that includes a mandate to purchase disability and life insurance.

Where does he stand on the mandate in Obamacare?

commoncents

September 27th, 2011
11:08 am

Since the pres. admin. probably didn’t forget to appeal, I wonder what their strategy is? Is this lack of appeal accounted for in their “spending cuts”?

Jefferson

September 27th, 2011
11:10 am

Why not write of improvements that could be made to the health care systems instead of gutter politics? Where are the GOP ideas , other than let the costs skyrocket and too bad if you can’t afford health care. Where is the effort?

Alabama Patriot

September 27th, 2011
11:11 am

The Supremes won’t hear the case, deferring to the 11th and stating (empahtically) why should we rule on this matter again?

This takes the Supremes out of the limelight for the election cycle, and leaves the 11th ruling intact. The country walks away a winner.

ElephantWhip

September 27th, 2011
11:15 am

P.S. Obama IS appealling the 11th Circuit case to the Supreme Court. What they are not doing is asking for an en banc hearing (all the appellate circuit judges reconsidering the issue…normally only three appellate judges issue opinions, not all the appellate judges in the circuit) before they appeal to the Supreme Court.

Tiberius - Your lightning rod of hate!

September 27th, 2011
11:31 am

“I don’t think the nomination will still be in doubt by late June/early July.”

Kyle, I think this one goes to a brokered convention. Too many people in the race, and no clear winner going forward based on individual states. NH goes to Romney, SC likely goes to Perry (unless he is further marginalized), GA and FL are take six and pick ‘em, especially if Herman Cain is still in the race. Moderates are going to vote on the GOP side of the house next year in primaries, which keeps Romney in the lead, but not by much, while the rest of the more conservative candidates split the vote between two or three second tier candidates.

I think if this SCOTUS decision comes out early (and they will NOT punt this one, ElephantWhip), it might affect the primary election, but it will likely affect the general only, and the results of any potential brokered convention.

Tiberius - Your lightning rod of hate!

September 27th, 2011
11:33 am

“Where are the GOP ideas , other than let the costs skyrocket and too bad if you can’t afford health care.”

I guess you missed the whole “Senate is in Democrat hands and won’t pass anything the GOP sends over” part of class, didn’t you, Jefferson?

Tiberius - Your lightning rod of hate!

September 27th, 2011
11:35 am

“I see Candidate Cain supports the Chilean model for Social Security that includes a mandate to purchase disability and life insurance.

Where does he stand on the mandate in Obamacare?”

Nonsensical question.

Since the Chilean model is PRIVATIZED, they have every right to mandate coverage.

ByteMe

September 27th, 2011
11:37 am

I have a hard time imagining that being positive for Obama. It’s not as if Democrats are positioned anytime soon to recapture a majority in the House and a super-majority in the Senate (60 seats).

So imagine this: the SC strikes down the law. And Obama campaigns on universal single-payer health care and puts the GOP strongly on the other side of the equation. This is a net positive with Obama’s constituents from last election. It’s like the GOP relitigating gay marriage… it brings out the strongly motivated, which is what he needs to be re-elected.

On the flip side, the SC keeps the law as-is and Obama campaigns on his triumphs and warns that voting GOP is a sure way to lose the protection of the health care law.

I see it as a win either way for him, but not necessarily a win for the country if it’s struck down, being one of those millions who had a “pre-existing condition” and can now get an individual plan without hassles or excessive costs.

From a political perspective, the SC plays along by issuing a ruling 4+ months before the election and that creates an awesome talking point.

DJ

September 27th, 2011
11:39 am

The Republicans have no plan to manage health care costs (like they have no domestic policy plans). Their plan is to “let the free market decide” (as if we have a free market – something else republicans constantly mistake). The trouble is, the “free” market has decided – it has to continue to jack up health care costs annually at a rate that will bankrupt this country regardless of any other financial improvements we make. That’s a hell of a plan.

Why don’t republicans care about spiraling health care costs? “Lower taxes” won’t help that. “Deregulation” won’t help that. “Making abortion illegal” won’t help that. And since those are the only policies the Republicans have (besides redistricting, rewriting voting rules, and eliminating all consumer protections), how do they expect to deal with the problem? At least the democrats are trying to do something.

Seriously – what is the republican plan, besides sitting sitting on their hands while their income redistribution policies continue the 30+ years campaign to gut the middle class.

Seriously – what is their plan to control health care costs? (it’s not like we can choose not to, presuming you believe the vast majority of economists. Of course, not believing the economists is no trick when you don’t believe in science in general I suppose.)

Let them all die. There’s a plan.

DebbieDoRight

September 27th, 2011
11:41 am

Since the pres. admin. probably didn’t forget to appeal, I wonder what their strategy is?

They probably didn’t appeal or go through the long process of going from District to District, so that they can go straight to the Supreme Court for it’s decision.

Donna P.

September 27th, 2011
11:43 am

ObamaCare is one of many “issues” for President Obama in the election next year. Jobs, the economy, the wars in Iraq/Afghanistan, etc. are the more pressing issues. No matter what you think of him personally, his and his administration’s policies are not working and he doesn’t know what to do about that.

DebbieDoRight

September 27th, 2011
11:43 am

guess you missed the whole “Senate is in Democrat hands and won’t pass anything the GOP sends over” part of class, didn’t you, Jefferson?

Guess you missed the whole “Must Pass House Before Moving On To Senate” lesson in Civics class. They’re having a remedial class though starting in November. Not too late to sign up. :roll:

Pete

September 27th, 2011
11:44 am

A poll in June 2011 by the Harvard School of Public Health and The Boston Globe found that 63 percent of Massachusetts residents support Romneycare. Just 21 percent said they were against the law. Romney needs to be running on the popularity of his health care program except that Republican primary voters are opposed to health care for all. We are the only first world country in the world that does not have health care for all of its citizens. In fact, some of us cheer the fact that someone who does not have health care is being allowed to die.

ElephantWhip

September 27th, 2011
11:48 am

ByteMe:

I think you’re right about the extremely strong talking point whichever way the Supreme Court goes.

Tiberius:

Although ByteMe pointed it out, his observation supports my theory that they will punt (especially if the conservative majority is as sold-out as some think). Why would they give Obama a soapbox to stand on. Romney would have trouble agreeing with the court because he supports universal healtcare in Mass. And Obama could frame Perry as a hypocrit who espouses Christian virtue but does not want to help those unable to afford healthcare.

Plain wrong

September 27th, 2011
11:54 am

In other news, Kyle placed a bet that pigs can, in fact, fly. He doubled down by placing another bet that they cannot fly if wearing lipstick. Conclusion (I’m betting): if you put lipstick on a pig, it’s stillna pig, but it can’t fly. Can’t wait for kyle’s next, bold, prognostibet.

Tiberius - Your lightning rod of hate!

September 27th, 2011
11:57 am

“Why don’t republicans care about spiraling health care costs?”

I guess you missed the 7 different bills filed in the last session by the GOP that were buried by the Democrat majority and never saw the light of day which addressed health care costs, DJ.

Jefferson

September 27th, 2011
12:01 pm

Truth is the GOP has put forward no improvements. Anywhere in congress or by the flavor of the week crowd that wants to be president. Romney’s ideas are being shuttered due to fear. Why would anyone think it would not be just like last time they had total power, run up the bills, send kids to war, kill the economy?

Just like 2000-2008.

Because they said so ? Rehab ?

How about some ideas instead of darts.

KyleKyleGoAway

September 27th, 2011
12:02 pm

O hateful one – the seven bills of which you speak consisted of the following:
1. Cut taxes
2. Cut regulations
3. Cut taxes and regulations
4. Cut taxes, then regulations
5. Cut regulations, then taxes
6. Kill poor people and blacks even if they aren’t poor
7. Make Obama fail

Steve - USA

September 27th, 2011
12:04 pm

Pete,

Go ahead and ignore the people who will die waiting for the government to OK their procedures.

Tiberius - Your lightning rod of hate!

September 27th, 2011
12:06 pm

“Guess you missed the whole “Must Pass House Before Moving On To Senate” lesson in Civics class.”

Not so. In fact, I know far more about that legislative body tan you could ever hope to achieve, Debbie. I also know more about electoral politics than you ever will. I also know that you must “repeal” first, before you can “replace”, and while the repeal part has been passed by the House, it is once again stalled in the Democrat-controlled Senate, therefore making any effort to pass any legislation to change health care a wasted effort.

ByteMe

September 27th, 2011
12:07 pm

Go ahead and ignore the people who will die waiting for the government to OK their procedures.

Steve, you go ahead and ignore the people who already die fighting with insurance companies to OK their procedures.

ByteMe

September 27th, 2011
12:09 pm

I also know that you must “repeal” first, before you can “replace”

Wrong. They can — and do — write a law to do anything they want. They don’t have ANY answer for “replace” other than “go back to what it was before.”

Tiberius - Your lightning rod of hate!

September 27th, 2011
12:12 pm

KyleKyle, try some facts, not rhetoric.

I’d accuse you of lying but I don’t know what you actually know. I DO know what you DON’T know, however.

DebbieDoRight

September 27th, 2011
12:13 pm

Go ahead and ignore the people who will die waiting for the government their HMO to OK their procedures.

There! Fixed it for you! Don’t thank me, I do this out of love for my fellow man! :wink:

Tiberius - Your lightning rod of hate!

September 27th, 2011
12:14 pm

“They don’t have ANY answer for “replace” other than “go back to what it was before.””

I guess you missed the 7 bills by the GOP in the last session buried by the Democrat majority that did much more than “go back to what it was before”.

Facts are such difficult things for you, aren’t they, ByteMe?

DebbieDoRight

September 27th, 2011
12:17 pm

In fact, I know far more about that legislative body tan you could ever hope to achieve, Debbie. I also know more about electoral politics than you ever will……blah, blah, blah………

Well, since this is an anonymous blog, and people can be anything their minds can dream up, I’m going to believe everything you just said! BTW I’d like to add that you’re probably as handsome as George Clooney, as built as Ahnald in his heyday, as smart as Clinton and as suave as Rico.

If you’re gonna make up a lie, it’s good to just go all out. :wink:

Ivan

September 27th, 2011
12:17 pm

KyleKyleGoAway

September 27th, 2011
12:02 pm
O hateful one – the seven bills of which you speak consisted of the following:
1. Cut taxes
2. Cut regulations
3. Cut taxes and regulations
4. Cut taxes, then regulations
5. Cut regulations, then taxes
6. Kill poor people and blacks even if they aren’t poor
7. Make Obama fail

——

Somebody call Cynthia Tucker. One of her acolytes has gone astray.

carlosgvv

September 27th, 2011
12:20 pm

So, it seems that five people could actually decide who our next president will be? Hey, is this a great Country or what!!!!!!!!!!!!!!

DebbieDoRight

September 27th, 2011
12:20 pm

I guess you missed the 7 bills by the GOP in the last session buried by the Democrat majority that did much more than “go back to what it was before”.

I did! Could you possibly LINK to the information so that I can read what those bills consisted of? I mean if they did 7 bills about “The urgency of using Tide when washing clothes in cold water”; or something similar then it would be more like “busy work” and not like actually trying to relate to the populace, fix a problem and/or have credible and reliable options to consider”, understand?

Tiberius - Your lightning rod of hate!

September 27th, 2011
12:21 pm

“A poll in June 2011 by the Harvard School of Public Health and The Boston Globe found that 63 percent of Massachusetts residents support Romneycare. Just 21 percent said they were against the law.”

Pete. Really. One, the poll was done in Massachusetts, the bluest of all blue states. What do you EXPECT them to say? Two, that 63% is DOWN from a high of 85% just 2 years ago. Three, doctors are leaving Mass. for states which do not regulate health care as much, causing a shortage of doctors, practices not accepting any new patients, and increased wait times for appointments.

And costs are STILL rising, plus the state is spending twice as much as originally planned just 6 years ago.

Good plan to run on, right? :roll:

KyleKyleGoAway

September 27th, 2011
12:28 pm

O hateful one and his peon, Ivan the terrible – my sincerest apologies; I get my facts and news from the fox street journal and its mutant sister publication, fox news. Are they misdirecting me? I sure hope not given their ‘fair and balanced’ rhetoric.

Tiberius - Your lightning rod of hate!

September 27th, 2011
12:29 pm

“I did!”

Color me shocked.

“Could you possibly LINK to the information so that I can read what those bills consisted of?”

No, because the bills are no longer submitted. You should have been paying attention during the health care debate, but you were too busy memorizing the talking points of the DNC to learn about the GOP bills.

But to summarize, they submitted tort reform (doctors estimate 30% of all health care costs are due to defensive medical testing), increased insurance pooling, plans available across state lines, expanded pools to help small businesses, elimination of pre-existing conditional rejection and no coverage cancellation.

Good enough for ya?

HDB

September 27th, 2011
12:32 pm

Tiberius – Your lightning rod of hate!
September 27th, 2011
12:06 pm

Not quite true…..legislation CAN start in the Senate…then go to the House for passage/rejection…although it is normal for the converse to occur!!

ByteMe

September 27th, 2011
12:34 pm

Tiberius: that’s all just nonsense. Again. They’ve done studies on so-called “tort reform” (which is nothing more than “let the buyer beware, because the court can’t help you”) and found that at best it would take about 5% of the money out of the system, while further screwing individuals when doctors make a bad mistake. The insurance changes you mention won’t reign in healthcare costs at all, since that’s downstream of insurance companies and Medicare tends to be better at forcing down costs than health insurance companies. We already got elimination of pre-existing conditions and no cancellation of coverage, thanks to HCR.

So you are basically saying they got nothing significant to reign in healthcare costs.

But your arrogance is amusing.

KyleKyleGoAway

September 27th, 2011
12:37 pm

O hateful one – in the real world, litigation amounts to substantially less than 1% of our current healthcare cost structure. And if the republicants were committed to “elimination of pre-existing conditional rejection and no coverage cancellation” [sic, with a burp, grunt and hiccup thrown in for good measure], why advocate wholesale repeal when they really like some of what the law provides. Yet again, your arguments collide head first with facts and reality. Sort of like the really really ugly guy with a squashed-in Pekingese-type face who got that way ‘cos he ran a 100-yard dash in a 50-yard gym.

ragnar danneskjold

September 27th, 2011
12:37 pm

I think Alabama Patriot @ 9:11 may be right on target. Lady Kaga has a conflict problem, one that will compel he to recuse herself. If the four conservatives and Justice Kennedy then determine to not hear the case, there will not be enough votes to hear it.

ragnar danneskjold

September 27th, 2011
12:38 pm

Dear Byte @ 12:34, “they” are not very good at statistics. Tort reform made a heck of a lot of difference in Texas.

Ivan

September 27th, 2011
12:43 pm

“KyleKyleGoAway

September 27th, 2011
12:28 pm
O hateful one and his peon, Ivan the terrible – my sincerest apologies; I get my facts and news from the fox street journal and its mutant sister publication, fox news. Are they misdirecting me? I sure hope not given their ‘fair and balanced’ rhetoric.”

Not just gone astray. This is one has fallen off cliff.

and carried out to sea.

Dearie

September 27th, 2011
12:44 pm

Good column Kyle!

HDB

September 27th, 2011
12:44 pm

Tiberius – Your lightning rod of hate!
September 27th, 2011
12:29 pm

“…they submitted tort reform (doctors estimate 30% of all health care costs are due to defensive medical testing), increased insurance pooling, plans available across state lines, expanded pools to help small businesses, elimination of pre-existing conditional rejection …”

Tort reform would NOT work because it DENIES a person’s right to seek redress by a jury of his peers; the jury is the force that determines the probable judgment…and by limiting such judgments, you’re advocating the denial of due process!

Pooling would work ONLY if the pool encompasses ALL probabilities; if you focus on pooling like-minded entities, the risk won’t be evenly spread..and costs would be prohibitive for those in “high risk” illnesses!!

Plans across state lines won’t work because the insurance companies WON’T cover! Example: person in NY buys a health insurance policy in Mississippi…and discovers cancer; person goes to Sloan-Kettering in NY for treatment. MS policy would only pay MS rate…which is 30% of NY…person either goes in bankruptcy or dies. Same person purchases multiple policies to cover to cost differential; isnurance cmopanies argue as to which policy is PRIMARY…and neither pays!! Another example: person in GA gets ill in IA, sees PCP in IA which accepts GA insurance. GA insurance won’t pay!! (Has happened to ME!)!

These are problems that the GOP won’t address in their health care plans in deference to the insurance companies…….NOT good enough for me!!

BTW: Pre-existing rejection was eliminated under “ObamaCare”……

DebbieDoRight

September 27th, 2011
12:45 pm

No,

Color me shocked!! :shock:

because the bills are no longer submitted. You should have been paying attention ….blah, blah, blah…….blah,blah….blah.

Are you telling me that in this world of computers where nothing is EVAH deleted, this actually WAS?!?!? :shock:

DebbieDoRight

September 27th, 2011
12:47 pm

Lady Kaga has a conflict problem, one that will compel he to recuse herself

Clarence “Boot Straps” Thomas didn’t recuse himself when he ruled in favor of Monsanto a few years ago, (which btw I don’t recall any repubs getting all hot and bothered over that “error”in his judgement), so he in essence, has set a precedent. Deal with it.

Tiberius - Your lightning rod of hate!

September 27th, 2011
12:49 pm

“They’ve done studies on so-called “tort reform” (which is nothing more than “let the buyer beware, because the court can’t help you”) and found that at best it would take about 5% of the money out of the system, while further screwing individuals when doctors make a bad mistake.”

To ByteMe and KyleKyle, you really need to READ and UNDERSTAND more, rather than relying on talking points to make you failed replies.

The studies you’re talking about are LITIGATION costs which would go down. I am referencing a study by actual DOCTORS who make the claim that, because of litigation issues, they order many more tests than are absolutely necessary in order to AVOID litigation. 30% of the cost of health care today is because of doctors practicing defensive medicine against LAWSUITS, not defensive for the patient.

You two really need to quit while you’re behind.

Tiberius - Your lightning rod of hate!

September 27th, 2011
12:54 pm

“Are you telling me that in this world of computers where nothing is EVAH deleted, this actually WAS?”

Well, Debbie, if YOU think they still exist, feel free to find them.

Confused

September 27th, 2011
12:56 pm

…since that’s downstream of insurance companies and Medicare tends to be better at forcing down costs than health insurance companies…

Is that the same Medicare that is 1/3 fraud??

Wow.

1961_Boomer

September 27th, 2011
12:58 pm

On Romney:

Whether or not Obamacare is repealed or declared unconstitutional, the fact remains that we have a major problem with healthcare in this country. Yes, we can slam Romney for signing Romneycare into law. BUT, he did something. Which is better than any other Republican was willing to try to do.

So while you can damn Romney for RomneyCare, you can damn every other Republican for doing nothing. It was this “hear no evil, see no evil” attitude towards health care that contributed Obama to get elected in the first place. Any politician that wants to attack Romney and Obama better have a plan of their own, lest Romney trips them up in the debate.

“Yes, I signed Romney care into law. It is a flawed program and I probably wouldn’t do it again. By the way, what is YOUR plan for healthcare once ObamaCare is repealed?”

“Umm, ahh, hmmm….”

KyleKyleGoAway

September 27th, 2011
1:01 pm

O hateful one – which of these is false and which true (both spoken by a typical doctor in the USA today):
1. Insurance companies pay me by the test/procedure – therefore, I order more tests and procedures to be done.

OR

2. Even though I have (and am required by law to have) medical malpractice insurance, and even though I am a good doctor who has never committed a negligent act in my life, I order more tests/procedures because the sick/dying/in severe pain patient before me now is absolutely going to sue me and will absolutely do so if I don’t make them spend more on their healthcare than they have.

In the real world, 1 is true and 2 is false. In conservative fantasyland, 1 is false, 2 is true, no taxes and no regulations will solve all our problems, and Santa Claus is a real person.