Will Supreme Court health care case boost the GOP, or Democrats?
In an election year in which Republican voters seem less than enthused about their leaders, the GOP establishment would like nothing more than to reignite the Tea Party base that came out in force in 2010. This week's Supreme Court case reviewing President Obama's health care law could do the trick.
Alternatively, the GOP's renewed emphasis on health care could backfire, leaving Democrats motivated.
The court's rulings and the consequences are hard to know at this point. The one certainty is that the court's consideration of the case is putting Mr. Obama's controversial health care law back in the spotlight squarely in the middle of the 2012 presidential race -- a move sure to rekindle the partisan passion that in part drove Democratic voters in 2008 and Republican voters in 2010.
On Monday, the court begins three days of hearings on the law, starting with the question of whether now is even the appropriate time for the Supreme Court to take up the case.
The 1867 Anti-Injunction Act bars most lawsuits challenging a tax that hasn't been paid. The individual mandate, which requires all Americans to purchase insurance, doesn't kick in until 2014, meaning no one has paid the fine (or "tax," as some may call it) for failing to purchase insurance -- thus, as the argument goes, the current case may be invalid.
However, most parties watching the case, and even Mr. Obama's Justice Department, believe that the Anti-Injunction Act doesn't apply here. "It's pretty much a slam dunk they're going to hear the case," Robert Alt, senior legal fellow at the conservative Heritage Foundation, told Hotsheet.
Starting Tuesday, the Court gets to the real meat of the issue -- whether the so-called individual mandate is constitution
al. As many as 28 states have filed lawsuits calling the mandate unconstitutional, and one federal appellate court agreed with that assessment. Two other federal appellate courts have upheld the law.
The hearings strike at the heart of opposition to Mr. Obama's reforms: A Kaiser Family Foundation poll released earlier this month found that while every other major element of the health care law is supported by more than half of Americans, only one in three support the individual mandate, including only 45 percent of Democrats. The percentage of Americans who said they have a "very" unfavorable view of the mandate has reached 54 percent.
Joseph Antos of the conservative American Enterprise Institute said that many Americans may not fully understand the practical impacts of the provision (about 80 percent of Americans already have insurance and thus shouldn't be affected by the mandate). Politically, however, it gets to the heart of conservative fears about growing government interference.
"It's a debate between how much the government should be involved in personal decisions and what is a personal decision," Antos said.
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In 2010, when the Tea Party helped sweep Republicans back into power in the House, 48 percent of voters said Congress should repeal the health care overhaul that the president had signed into law just months before. To this day, according to the Kaiser poll, the individual mandate has remained the most recognizable element of the law, even though Democrats have tried to promote the more popular parts, like the provision allowing children up to 26 years old to remain on their parents' health insurance plan.
Since 2010, the issue of health care has fallen by the wayside as voters turned their attention back to the economy. But if the court ruled in June to uphold the health care law, "maybe that excites the right and gives them even more energy to try to repeal it through the legislative process," said Doug Thornell, a Democratic strategist at SKDKnickerbocker who has worked for the campaign arms of Congress.
On the other hand, Thornell said, "If the Supreme Court were to strike it down, that could energize progressives."
Opinions over the health care reforms fall fairly strictly down partisan lines, meaning the court case could motivate one side's base or the other -- but polls suggests Republicans are more energized over health care. A new CBS News/ New York Times poll released on Monday morning shows that while just 28 percent of Democrats "strongly" approve of the health care law, a full 62 percent of Republicans "strongly" disapprove.
That could be key for Republicans, given how unenthused their base seems so far: A recent Gallup poll showed voters are less excited about the current GOP candidates than they were about their 2008 choices. On top of that, turnout in several of this year's primary elections has been down compared to Republican turnout in 2008 contests.
Last week, on the two-year anniversary of the health care overhaul's passage into law, Republicans launched a full-scale assault on the reforms, seeking to remind voters of what they don't like about the law. Republican presidential front-runner Mitt Romney was as vigorous in his attacks as any Republican, calling the reforms "an unfolding disaster."
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Still, even if the Supreme Court's decision this summer sparked new conservative outrage over health reform, it's questionable how far the GOP could take it. For one thing, a January CBS News/ New York Times poll showed that Americans still trust Mr. Obama over congressional Republicans on the issue of health care by a 9-point margin. Furthermore, arguments against the individual mandate will be blunted if Romney leads the GOP ticket, given his Massachusetts health care reforms inspired the federal law.
"If Republicans want to make this the centerpiece of their fall campaign, they're nominating absolutely the wrong person," Thornell, the Democratic strategist, said. "Romney is the godfather of the individual mandate. Him attacking it, is like McDonald's criticizing hamburgers. I don't care how he tries to explain away what he did in Massachusetts, he passed a bill with a mandate in it."
