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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