President Obama talks on the phone with Solicitor General Donald Verrilli… (Pete Souza / The White House…)
"In my first term, we passed healthcare reform," President Obama joked this spring. "In my second term, I guess I'll pass it again."
Thanks to the Supreme Court, Obama can take that item off his agenda. But Chief JusticeJohn G. Roberts Jr.guaranteed Thursday that healthcare will still be at the center of this year's presidential race.
Republicans, who know the issue resonates with voters, can't be too sorry about that. Nothing produces cheers from the GOP faithful like the promise to "repeal, dismantle and defund Obamacare," to quote House Speaker John A. Boehner (R-Ohio). So while many in the GOP had hoped the law would be found unconstitutional, having it to kick around through the fall may have its advantages. As Sarah Palin posted on her Facebook page after the decision, "Thank you, SCOTUS. This Obamacare ruling fires up the troops as America's eyes are opened."
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Although Americans like many of the Affordable Care Act's individual pieces, polls show that most voters are understandably skeptical that the law will do everything Obama has promised — improve medical care, slow the growth of costs and cut the federal deficit all at the same time.
Capitalizing on that skepticism, Republicans have waged an effective and well-funded campaign to raise fears about everything that could go wrong. So far, more than $235 million has been spent on television advertising alone. That has brought us ads like the one a conservative group aired last month featuring Dr. Ami Siems, an appealing family doctor from Oklahoma, who frets on camera: "I don't want anything to come between my patients and me — especially Washington bureaucrats."
Now the court, by ruling that the law's penalty for not purchasing insurance is actually a tax, has given the GOP a new line of attack: the charge that the healthcare law was actually a stealthy way of pushing through a tax increase. (In fact, the individual mandate penalty is expected to produce less than 5% of the new revenue in the law after it's phased in; the biggest new taxes, which will fall on high-income taxpayers and insurance providers, were labeled as taxes all along.)
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The battle for public opinion isn't over, though. Despite the concentrated assaults and a decidedly weak defense by Democrats, attitudes about the law, while negative, aren't overwhelmingly so. In an NBC News-Wall Street Journal Poll last month, the law was on the losing side of popular support, 41% to 35%, with 24% undecided — hardly a landslide.
The law's future now depends almost completely on the November election. Romney has promised to work for its repeal on his first day in office if he wins. A Romney victory would probably also produce Republican majorities in both the Senate and the House, making repeal possible, although the Senate's rules that require 60 votes for major action would make it difficult.
Even if the GOP wins only 50 seats in the Senate, a President Romney could try to defund and dismantle key parts of the law through the legislative device known as budget reconciliation. It would require some creativity; a reconciliation bill can deal only with budget measures, and only if it cuts the federal deficit. But GOP aides are already working on such a measure.
If Obama wins reelection, the Senate will still be key. Obama has already promised to veto any attempt to dismantle the law, a vow that presumably extends to a reconciliation bill. At that point, Senate leaders would need 67 votes to override a veto, almost surely an insuperable barrier.
But Republicans have another front they will pursue if Obama wins in November. Some GOP governors, including Bobby Jindal of Louisiana and Scott Walker of Wisconsin, are already waging guerrilla warfare, refusing to set up the state-administered insurance exchanges that are a key part of the law, which means the federal government will have to run the exchanges directly. Texas Gov. Rick Perry and Mississippi Gov. Phil Bryant have said they may boycott the new law's expansion of Medicaid, the combined state and federal insurance plan for the poor — something the Supreme Court ruling allows them to do. If resistance at the state level becomes widespread, it could create chaos and undermine the new system before it gets started.
Wilbur J. Cohen, the scholar and federal bureaucrat who helped write both the Social Security Act of 1935 and the Medicare law of 1965, often said: "Social policy is 1% inspiration and 99% implementation." The only way Obama's healthcare law will survive to become a durable part of the nation's social fabric will be through its full implementation beginning in 2014 — if it survives the warfare of the next two years.
If the law doesn't work, it will get reexamined. If costs grow faster than promised, if new patients swamp the healthcare system, if revenues prove inadequate, if employers flee — all dangers that critics have warned about — the law will be imperiled.
So Democrats just won an important legal case, but it was only one battle in a very long war.