One of the most interesting aspects of the litigation over health care has been the Obama Administration’s push for review in the Supreme Court. Rather than slow walking the case, the Administration facilitated a review that will result in a ruling before the election. As on many other decisions by this White House, the political calculation seems counterintuitive. I have said in interviews that I do not know which will be worse politically: for the Administration to lose before the Court or to win. Now a poll suggests it might be the latter. Gallop found this week that 47 percent of Americans want to see the law repealed. Only 43 percent favor the law. Fifty-six percent still prefer the use of private insurance over a federal insurance program. This poll joins the sobering fact that a majority of states are now in court in an unprecedented opposition to the federal law. Regardless of how you feel about health care, this is not how you pass a major new program and is the result of the decision by the White House and Democratic leaders to muscle through this vote on the thinnest of margins.
When I spoke to members and staff about the then proposed legislation, I warned that there would be significant problems over federalism — concerns that I share with critics. While I predicted that the Administration would have the advantage in the lower courts due to existing case law, it would trigger a historic fight over the scope of federal jurisdiction. I strongly encouraged a change in the law that would have defused the federalism issue by allowing the states to opt in or opt out of the programs (though at the risk of losing federal health care funds). I heard from both Democratic members and staff that they agreed with the change. However, when Kennedy died, neither the White House nor the Democratic leaders were willing to return to the Senate with changes. Instead, they forced through the vote and barely secured passage. While it would have been a bruising fight, I am convinced that critical parts of the law would have passed in better shape. More importantly, correcting the individual mandate provision would have avoided a serious court challenge.
FDR refused to ask for a declaration of war in World War II until he secured an overwhelming level of support from the public and Congress. He knew that any great venture required such support. The same is true with the largest social program in the history of this country. It is not something that you muscle through Congress on a thin vote. The Administration not only effectively doomed some members in their failed reelection, but it created the perfect wedge issue for the GOP. It is now in court fighting a majority of states and, according to this poll, almost a majority of citizens Moreover, there is general agreement that the law was badly written and rushed through with few members actually reading it. Many of these problems were apparent before passage, particularly the poor crafting of provisions. What is so maddening is that Obama and Pelosi knew that this bill was not ready in either drafting or in the level of support needed for a sustainable campaign among the states and ultimately in the courts.
None of this concerns the merits of national health care. I support national health care. It is a question of how not what we do. If Democrats wanted to make this the defining issue, they should have insisted on a better vehicle and handling of the issue in Congress. Both President Obama and then Speaker Nancy Pelosi share in this ill-conceived strategy.
The court strategy appears a continuation of the same political calculus. It is like a variation of the Strangelove strategy, or “How I Learned to Stop Worrying and Love Health Care.” It does not appear to be working. It is the culmination of one of the least logical political and legal strategies that I have seen emerge from a White House . . . (due to the instigation of the White House itself) it will ultimately culminate right before the election.