international analysis and commentary

Obamacare, the November election and beyond


Having now passed muster by the US Supreme Court, President Barack Obama’s signature healthcare law stands, albeit on narrower judicial grounds than the government had hoped for, and will continue on the road to implementation. But the hyper-partisan battle over the dysfunctional American healthcare system doesn’t stop here. Rather, it returns to where it first began, to the political arena, and much is at stake in this year’s elections with regard to Obamacare. However, a few factors suggest that, as the echo of the Supreme Court’s decision begins to fade in the next few weeks, so too will the vitriolic debate over healthcare.

The outcome of the justices’ deliberations surprised many observers, throwing forecasters off balance and proving once again how difficult it is to guess what really goes on behind the scene of the Court. Chief Justice John Roberts, a conservative-leaning George W. Bush appointee, sided with his four liberal colleagues to uphold the law. Among other things, Roberts’s decision was an attempt to prevent the institution he presides over from being dragged through the proverbial Washington mud. “He did not want to be seen as the head of a court that struck down something that we have not be able to achieve in over 60 years, that was adopted by 59 votes in the Senate and another strong majority in the House,” says Herman Schwartz, a professor at the American University Washington College of Law. “His concern about the Court’s standing would be very real because he is the Chief Justice and this will be known as the Roberts Court. If he had been an associate justice, he might not have done this.”

Nevertheless, thanks to remarkable judicial acrobatics, while upholding the Affordable Care Act (ACA) and, in so doing, safeguarding the name of the Court, Roberts also managed to remain faithful to his more conservative constitutional philosophy. He did not buy the argument that, under the Constitution’s Commerce Clause that grants it the power to regulate commerce, the federal government can interfere in both economic “activity” and “inactivity” (forcing someone to buy something, in this case health insurance, that they don’t want to buy.) Rather, he chose a different rationale to sustain the law, namely that the ACA falls under Congress’s legitimate power to levy taxes.

Some on the right take comfort in this view. They hope that Roberts’s majority opinion, although it failed to strike down the heathcare law, will nonetheless sow the seeds for more judicial conservatism in the future. “The legal challenge to the ACA […] was about two huge things: saving the country from Obamacare and saving the Constitution for the country,” Randy Barnett, a law professor at Georgetown University and the mind behind the lawsuit against Obama’s reform, commented in the Washington Post. “[W]e lost the first point […] But to my enormous relief, we won the second […] Those who value our republican system of limited federal powers should put their disappointment with the decision aside and breathe a sigh of relief about the bullet we dodged and the good legal precedent we set.”

However, most conservatives are deeply upset, enraged at what they perceive as Roberts’s betrayal and determined to take the fight all the way to the ballot box. “This law is very flawed and it’s going to do a great deal of damage to the quality of the healthcare system in America and to the functioning of our democracy,” says James Capretta, a scholar at the American Enterprise Institute in Washington, D.C. “The last front of this battle is the 2012 election: if President Obama is reelected, the law will almost certainly go into effect in some form, but if Mitt Romney wins, there is still a good chance that the ACA would be removed and changed.”

A GOP-engineered repeal of Obamacare is not an outlandish scenario. Republicans would probably have to retain control of the House, win the Senate and put Romney in the White House in November. A long shot, but in this year’s tight election race nothing is out of the realm of possibility. If they succeed, they would have the means to at least redesign the healthcare law in 2013, even without a filibuster-proof majority.

Some studies suggest that repeal is an argument that continues to resonate with voters, who were never truly enamored of Obamacare. In a recent USA Today/Gallup poll, 31% of people said they favored a full repeal of the law and 21% said they wanted at least some parts of it thrown out. Only 38% appeared to support it in full. However, even in the face of the high level of outrage felt in particular by conservative Republicans, the healthcare fire that is ravaging Washington might be put out come November – for several reasons.

First of all, the Supreme Court verdict might have similar if opposite impacts on conservative and liberal voters, canceling one another out. “This decision energizes both party bases, but there is no crucial effect on November that wasn’t already present,” says Larry J. Sabato, Director of the Center for Politics at the University of Virginia. “Democrats got something to brag about to their troops, and Republicans got a renewed reason to work to install a GOP president and Congress.”

Secondly, even if more voters continue to dislike the current healthcare law, the GOP is far from controlling the debate on the issue. In the last couple of years, Republicans have built their healthcare platform on the absolute opposition to the ACA, but they have not yet offered a credible alternative. Now that Obamacare has been declared the law of the land, voters might want to know what exactly will replace it if Republicans win the election. And time to come up with convincing policy proposals is running out. Additionally, Romney has long been considered weak on this particular issue. As the governor of Massachusetts, he passed a similar law to the ACA, which in fact became the basis for it, and his criticisms of Obama’s approach to health reform don’t always come across as honest. 

It should also be self-evident to any Republican strategist that the anemic economic recovery represents a much better terrain upon which to attack the president than healthcare. Therefore it’s hard to see why Romney would take time away from that to focus voters’ attention on an issue on which he is not notably stronger than Obama.

Finally, we must not forget that the 24-hour news cycle moves without pause and that American voters have a short attention span. “What seems like a huge story today probably won’t be as important as the election draws nearer,” says Professor Sabato. “This election is still about the economy. Although healthcare will be discussed, how the economy is faring as we get closer to the election will be the biggest factor in determining the result in November.”

Already, a Kaiser Family Foundation survey found that 56% of people interviewed wanted the opponents of Obamacare to “stop their efforts to block the law and move on to other national problems.” Barring exceptional turns of events, most voters might just start taking the ACA for granted and divert their focus to other, still unresolved questions.