What Will the Supreme Court Decision Mean For the November Election?

Thursday, when Chief Justice Roberts explained that the Affordable Care Act (ACA) is constitutional because the “penalty” that some Americans will have to pay is, for all practical purposes, a “tax,” you could hear tea cups shattering from Billings to Boca Raton. In conservative and libertarian circles, the initial reaction was shock, but it didn’t take long for President Obama’s opponents to rally.

The word “tax” might as well have been a pistol shot at a horse race. In the blink of an eye, Obama’s opponents were off and running, megaphones in hand, blasting the president for lying to the American people while hiking taxes under the guise of healthcare reform. Presidential candidate Mitt Romney’s campaign then began providing regular Twitter updates on the campaign contributions it was raking in following the decision. Friday, it announced that it had collected $5.5 million.

Will Republicans suceed in turning defeat into victory?

Sarah Palin is convinced that they will. On her Facebook page, she celebrated: “Thank you, SCOTUS. This Obamacare ruling fires up the troops as America’s eyes are opened.”   Palin, like Republican leader Mitch McConnell, believed that the Court’s ruling would galvanize Republic voters, sealing Romney’s victory in November.

This might be true if conservatives were not already so ardently committed to what McConnell has called his party’s “single most important” goal: “for President Obama to be a one-term president.”  As Democratic pollster Celinda Lake noted, “Republicans are already as energized as they can get.” It would be hard to turn up the dial on their passion. Opinion surveys have shown that Republican voters already were more motivated than Democrats to go to the polls this fall.   (In November, Obama’s challenge will be to get his supporters out, including those who are disillusioned that the president hasn’t done more to help the poor and the unemployed. )

What the Polls Say

Sunday, a new poll released by Reuters/Ipsos indicates that Republicans have miscalculated: the Court’s decision has actually lifted support for health reform. In particular, it appears that the ruling has changed the minds of many Independents. Among those swing voters, an online survey conducted after the ruling reveals that 38 percent support the healthcare overhaul–up from 27 percent in a Reuters/Ipsos poll taken days before the justices’ ruling. Among all registered voters, support for the law rose from 43 percent to 48 percent. A CNN poll released the next day confirmed Reuter’s findings, showing 52% of Americans favoring “all or most” of the health-care law, compared to 45% who said that in January 2011.

As for Republicans, the Reuters survey suggested that if anything, the Court’s decision has dampened their enthusiasm, if only by a thin margin: 81% opposed the legislation, down from 86% in the poll conducted June 19-23. Meanwhile, three-quarters of Democrats backed the bill, just as they had a week earlier.

Other polls indicate that the ruling that the mandate’s “penalty” is actually a “tax” has not hurt President Obama, or his signature legislation. A  USA Today/Gallup snapshot survey of 1,012 Americans, taken right after the court’s ruling, showed the country evenly split on the decision, 46%-46%,with independents marginally favoring it. .

But what  about the charge that when voters find out that when  health care reformers called the mandate’s fine a “penalty” rather than a “tax,” they will realize that the administration was deceiving the American people?  I suspect that few feel duped. Most of us understand that when the government insists that you fork over money, this is a “tax”– whether it’s called a “duty,” a “surcharge,” a “toll” or a “tariff.”  A tax by any other name . . .

Swing Voters & Roberts

The polls suggest that those who hated Obamacare in 2010 will continue to loathe it; those who embrace it will continue to look forward to 2014, when the law is slated to be fully implemented.

By contrast, many Independents were uncertain–or simply confused –by the din of conflicting arguments regarding “death panels,” “broccoli,” and so on. They didn’t know whom to believe.

Most didn’t trust the Supreme Court to clarify the issues.  Before the ruling was announced, polls showed that nearly three-quarters of the public assumed that the Court would vote along party lines. Since five of the nine judges are conservatives, this suggested that that the mandate would be struck down.

But Justice Roberts didn’t let his politics determine his decision, and his unexpected vote may well have boosted faith in the Court–while simultaneously undermining the credibility of Tea Party claims about “Obamacare.” (According to a CNN poll conducted from Thursday through Sunday, the number of Independents who approved of the Supreme Court “has edged up five points, to 53%.”)

Very likely some Independents concluded that if a conservative justice ruled that the law is constitutional, it is—which means that Tea Partiers were simply blowing smoke. This could help explain why more Independents now appear to support Affordable Care.

As for Roberts, I believe he ruled as he did because he was concerned about protecting the court’s standing as an impartial institution that stands above the fray of beltway politics.

The vast majority of constitutional scholars (including conservatives) had publicly declared that the Affordable Care Act was constitutional. But while a June Bloomberg survey of professors who teach constitutional law at top-rated laws schools revealed than over 85% said that if the justices followed legal precedent, they would uphold the legislation, nearly two-thirds feared that the Supremes would let ideology trump the issues: “politics would play too big a role in their decision.”

“The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”

Yale Law School professor Charles Fried, who represented Republican President Ronald Reagan’s administration at the Supreme Court as U.S. solicitor general from 1985 to 1989, agreed: “It’s become just a very partisan battle cry on behalf of an argument which a few years ago was thought to be completely bogus. For objective observers on all sides, this was thought to be a lousy argument and the only people who were making it were sort of the wing nuts.”

The fact is that this is “a high-profile, enormously controversial and politically salient case — to have it decided by the narrowest majority with a party-line split looks very bad, it looks like the court is simply an arm of one political party,”  University of Chicago Law Professor Dennis Hutchinson told Bloomberg. “We believe in something called the rule of law,” he added. “That’s why we have faith in courts, that they’re not just another arm of a political party.”

The bottom line: if five justices had struck down President Obama’s signature achievement, just a few months before a close presidential election, liberals would not have been the only ones to cry “Foul!” Both the public and constitutional experts would have seen the decision as blatantly political.

In that case, Roberts’ court would have gone down in history as nine politicians masquerading in black robes who were, in truth, old-fashioned “Pols” wielding their power with impunity, safe in the knowledge that could never be voted out of office. Supreme Court judges do not have to answer to the American people.

What would this mean for the integrity of the court, not to mention the political stability of the nation? If Justice Roberts had joined the four justices who wanted to repeal the entire Affordable Care Act, he could have taken us to the brink of a constitutional crisis. New York’s Jonathan Chait summed up the Chief Justice’s moment of truth: “Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled.”

A reader commenting on Freethoughtsblog.com put it another way: “I think Roberts stared into the abyss, took a small step to the left and said to Scalia ‘After you…’

Obama vs. Romney: The Bigger Picture

Roberts’ ruling helps the president, but it is important to note that Obama already had been gaining on Romney, largely by appealing to what The Hill callsthe Rising American Electorate” (youth, unmarried women, African Americans and Latinos) — the broad coalition of voters who supported him enthusiastically in 2008.”

These voters are beginning to come back. “Obama has moved his vote up from 60 to 63 percent with the Rising American Electorate and Romney has slipped a like amount,” the Democracy Corp. a non-profit, progressive polling organization, announced Friday, adding that “in the nation as a whole, the president now leads Romney by a 49-46 percent margin. That’s a 3-point improvement for the president since the end of May, when the two candidates were deadlocked.”

The survey found that the president has boosted his numbers by paying attention to his original base, “pushing student loan reform, expanding access to contraception and halting the deportation of illegal immigrants who grew up in the United States.” They observed that “the president has also edged marginally ahead with independents — 46 to 44 percent — and Romney continues to struggle with a high negative favorability rating, hovering around 45 percent.”

Growing support for Obama has translated into “a more favorable view of the Affordable Care Act,” they added.”Voters now give the law its highest positive rating since our tracking began in the summer of 2010, led by women and young voters,” pollsters observed. “Negative judgments are at 44 percent — down from earlier periods.”

But if those who support health reform–or President Obama himself—become at all complacent, they will wreck his chances of re-election.  An Obama victory in November will turn on whether the Rising American Electorate votes; and bringing people to the polls is a labor-intensive business.  Keep in mind that in 2008, Obama won just 43% of the white vote. Pew Research reports that among white voters only 41% of men cast their ballots for Obama ,last time around, although 46% of women supported him, along with 54% of white voters under 30. Meanwhile “just 31% of southern whites” chose Obama over McCain, although “he garnered the support of about half of white voters living in other regions.”

Those older men who didn’t vote for Obama in 2008 probably won’t vote for him this fall. The lines that divided liberals and conservatives four years ago have hardened. Meanwhile some who viewed Obama as a super-hero in 2007 (I recall young pundits who described the lanky candidate as “the Black Spiderman”), are now disappointed that the president didn’t deliver all that they expected. They have become “undecided” or “swing voters.” They could simply stay home.

Yet there are signs that the Court ruling is invigorating Obama’s base. A Kaiser Family Foundation survey released yesterday reports that the Supreme Court decision inspired “a newfound wave of enthusiasm” among Democrats, with 47 percent saying they take a “very favorable” view of the law compared with just 31 percent a month earlier.”

“It’s a win on the leadership side; voters admire people who get things done,” Robert Blendon, a professor of health policy and political analysis at Harvard explained to Bloomberg.   Thanks to the decision, some disenchanted former supporters are more likely to see Obama as a successful, effective president.  The president took on a challenge that has defeated decades of leaders who preceded him– and he won.

Myths vs. Facts about the Mandate’s “Tax”

Meanwhile, conservatives continue to fear-monger. Last week, a well-funded conservative group called “Americans for Prosperity” began pouring $9 million into an ad campaign charging that Obama’s health care law is actually “one of the largest tax increases in history.”

I would suggest that they are putting a match to their money. It is not at all clear that most Americans want to hear more about healthcare reform– or that swing voters will believe conservatives canards.The court challenge focused attention on the mandate and in the wake of the decision, more and more Americans are learning that it does not represent a “big” tax increase, let alone “one of the largest in history.” In 2014, an individual who decides not to purchase insurance would have to pay only $95. Even in 2016, when the penalty peaks, he would be taxed just $695 for not buying coverage.

“The individual mandate penalty is expected to produce less than 5% of the new revenue in the law after it’s phased in;” Doyle McMaus explained in Sunday’s Los Angeles Times. “The biggest new taxes, which will fall on high-income taxpayers [individuals in the top 3%, earning over $200,000] and insurance providers, were labeled as taxes all along.”

Most importantly, as I pointed out in my last post, only those Americans who don’t have employer-based insurance, and don’t qualify for Medicaid or Medicare will be subject to the mandate. And within that small pool, a great many low-income and middle-income Americans will qualify for subsides, making insurance far more affordable.  The Kaiser Family Foundation (KFF)  offers an excellent “subsidy calculator,” which estimates how much government assistance you can expect, based on your income, age, family size, and the average cost of care in your region.

Finally, a poll released Monday by KFF indicates that56 percent of all Americans — including more than four in five Democrats and 51 percent of independents with no party leanings”–say that they are weary of healthcare and “would like to move into other issues”– further proof that Republicans are squandering those corporate campaign contributions as they continue to hammer “Obamacare.”

Insofar as voters are interested the subject, Republicans might better spend their money on a positive message, spelling out their candidate’s plans for making medical care affordable. That, however, would mean admitting that the centerpiece of Romneycare is to do away with employer-based health insurance.

Many American workers enjoy generous health benefits, with their employers paying more than half of their premiums.  President Obama has told them that “if they like the insurance they have, they can keep it.”  But if Romney’s dreams come true, they would lose it.

In upcoming posts, I’ll write about “Who Wins and Who Loses” if Obamacare is replaced by Romneycare.

Maggie Mahar is an author and financial journalist who has written extensively about the American health care system. Her book, Money-Driven Medicine: The Real Reason Health Care Costs So Much, was the inspiration for the documentary, Money Driven Medicine. She is a prolific blogger, writing most recently for TIME’s Moneyland. Previously she wrote and edited the Health Beat blog for the progressive think tank, The Century Foundation. Previous work for the Health Insurance Resource Center includes Can states thwart Affordable Care Act by refusing to build state health insurance exchanges? She also provides background on Congressional health care legislation for HealthReformVotes.org, a special project of the Health Insurance Resource Center. This article first appeared on healthbeatblog.org

10 replies »

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  3. Peter

    I agree.

    Romney, for one, just doesn’t know what to say.

    Healthcare reform is not an issue that will help them in November.

    Now, if they could figure out a way to create jobs . . . .

    But that would meaning raising taxes.

  4. Whose support are Republicans trying to get by calling this a tax increase? The support of uninsured who don’t qualify for a subsidy offset and get health care for free? Now there’s a big constituency? Will the ads say, “Stop the tax that gets deadbeats paying their fair share”? How about, “Republicans for free health care”.

  5. In regard to the “biggest tax” claim, since you already made reference to “The Incidental Economist” elsewhere, I am going to give a link to Austin Frakt’s discussion of that claim, already cited and discussed by Ezra Klein on his Rachel Maddow show report.

    Frakt demonstrates that all the taxes in the entire ACA are in fact just the tenth largest tax increases since 1950, virtually tied with tax increases made by George H. W. Bush and Bill Clinton, and lower than Ronald Reagan’s tax increase of 1982. In fact, when you add the 5 tax increases passed by Reagan together, he is second in raising taxes only to Harry Truman, who was trying to pay off a World War II national debt of more than 115% of GDP.

    The link:

  6. Bobby G–

    I’m afraid you’re right.

    This money is being spent to try to undo something that is already done.
    (The Affordable Care Act is now the law of the land.)

    If Romney wins, and Republilcans take control of Congress, it could be repealed in 2013.

    And I do understand that this is what many conservative Americans hope will happen..

    But if conservatives want Romney elected, they should then spend their energy and money in a positive way–publliczing how, if Romney is elected, he would help the country,

    They need to be specific about his plans for healthcare, and most importantly, his plan for creating jobs. They need to explain to voters where Romney would find the money to create jobs.

    They need to explain why eliminating employer-based heatlhcare
    would be good for all those who now enjoy health care benefits through their jobs.

  7. So, now we’re gonna waste maybe $50 million or so in campaign ad money and legal fees arguing for the next four months over the proper definitions of “penalty” vs “tax.”

    Assume a level 99213 visit at maybe 84 bucks a pop. That’d pay for more than a half million visits (or, how many immunizations, etc?). How much money have we already wasted trying to obstruct this law post-enactment? Lots of actual health CARE foregone.

  8. Al,

    Thanks much for the comment

    I agree that I may be too kind to Roberts. I has made some dreadful
    decisions that are not in the best interest of the country.

    But I think he realized this was a bridge too far. And, as you say, since this is his court, he was concerned about his personal legacy as well as the
    integrity of the court.

    The main reason I was hopeful that he would uphold the legislation is that he both sane and pretty intelligent. The same cannot be said of all of the justices

    It will be interesting to see how he will vote in the future….Supposedly, the
    conservatives are very angry with him to the point that they are shunning him. See http://www.scotusblog.com/2012/07/the-narrative-of-judicial-intrigue/

    i wonder if Roberts will decide to take charge of the court by trying to work with the 4 liberals (since the conservatives won’t work with him.) Apparently Roberts tried very, very hard to get Kennedy to vote with him on Healthcare.
    This could lead to more moderate (rather than extremely conservative or extremely progressive) decisions– which would be an improvement. I
    suspect the liberals would be wiling to work with Roberts.

    But we’ll have to wait and see. He may, as you say, simply have been saving political capital for another fight.

  9. This is a great post — as good as any I have seen on this topic — but please expect some impolite responses from others.

    I do think Roberts was more coldly calculating than you think he is–saving the court’s “political capital” for other partisan fights. Still, like many hard decisions it was probably multifactorial, as he weighed his own various agendas.

    This is not a bad thing: Self-interest (in this case, self-interest in his own legacy) is what a capitalist democracy harnesses, and this is a case in which self-interest created what was probably the best outcome for the country.