The US Supreme Court may issue its much-anticipated decision on the constitutionality of Obamacare this morning. Regardless of outcome, the ruling will attain instant landmark status, and will make an indelible mark on the 2012 presidential race. Nearly three in four Americans would like to see the High Court invalidate at least the central pillar of the generally unpopular law. As we noted during oral arguments, there is a decent chance that the justices may go even further -- but who really knows? After months of speculation, the public will finally hear the verdict, either in the 10:00 am (ET) hour today, or on Thursday. Washington feels like a ticking time bomb this morning, as players on all sides prepare to react to the black-robed nuclear detination. Stay glued to the Tipsheet for updates. As you wait, take a moment to consider all four contingency scenarios, via the Wall Street Journal:
Scenario #1: The entire law is upheld - After all is said and done, the high court may conclude—as the majority of lower courts did—that Congress was acting within its powers under the Constitution when it required most Americans to carry health insurance or pay a penalty. That provision was at the center of the two-year legal battle, and if it survives, the rest of the law is likely to stay as well. Such a ruling would be a victory for Democrats and President Barack Obama, who had passed the biggest reworking to the health system since the creation of Medicare in the 1960s and faced the prospect of the court nullifying their effort. It would also avert disruption for hospitals, doctors and employers who have spent more than two years preparing for changes in the law. Even in this case, however, the law would face an uncertain future.
Scenario #2: The insurance mandate is struck down, but the entire rest of law stays - This was the ruling of a federal appeals court in Atlanta last year, and the Supreme Court may choose to uphold it. In thisscenario, the high court would conclude that Congress exceeded its powers with the requirement to carry insurance or pay a penalty. But it would judge that provision separable from the rest of the law. This would be the worst-case scenario for insurance companies and set off a scramble for the Obama administration and supporters of the law to prove that it could still work...Politically, a ruling under this scenario would vindicate critics who called the Patient Protection and Affordable Care Act’s insurance mandate an unprecedented overreach of federal power. Mr. Obama would face an election in a little more than four months with the nation knowing that a core part of the law he signed in March 2010 was found to violate the Constitution. Republicans would push ahead with plans to repeal the remainder of the law.
Scenario #3: The mandate and two related provisions are struck down but the rest of the law stays - At Supreme Court arguments in March, the Obama administration, fearing the market chaos in scenario #2, argued that the insurance mandate was inextricably linked to two other provisions. Those provisions require insurers to accept all customers and restrict the insurers from charging more based on a person’s medical history. The administration said if the mandate were struck down, the other two provisions should go too. If the court adopts that position, it would mean that the principal aim of the law—expanding coverage to tens of millions of Americans—would be unlikely to be achieved. Republicans would feel vindicated and push to repeal the rest of the law.
Scenario #4: The entire law is struck down - If the high court concludes that the insurance mandate is unconstitutional, it may agree with challengers that the only path is to invalidate the entire law. Such a ruling would unravel all the work by the health industry and local governments preparing for the law. It would be a painful blow to Mr. Obama and Democrats who spent so much time and political capital on their health-care overhaul. Yet it would also put pressure on Republicans. They could no longer talk about repealing what they term ObamaCare but would have to figure out what, if anything, to bring before Congress to replace it.
Door number one would be a boon to the White House, and a blow to Republicans -- whose 'repeal and replace' mission would be dealt a major setback. Any of the other options would be a clear-cut victory for Obamacare opponents, and would likely touch off an unprecedented maelstrom of court-bashing on the Left. How should conservatives respond to any of those four contingencies? Click through to review healthcare expert James Capretta's excellent road map. One other docket note: Even if today isn't Obamacare day, there's a also chance that the Supremes will drop their ruling on Arizona's "controversial" immigration law this morning. Why the scare quotes? Because despite endless, brow-furrowed prating from the media, Americans don't find SB 1070 to be especially problematic:
As for immigration, the new survey indicates three-quarters of Americans support the contentious Arizona law that allows police to arrest or detain suspected illegal immigrants during the enforcement of other laws. Asked if they support the measure, 75% of respondents say they are in favor of it, while 24% say they are against it, the poll shows. Arguing that the state was overreaching, the federal government challenged the law in a suit, which made its way to the Supreme Court this spring. During oral arguments in April, however, justices appeared to be leaning in favor of the law.
As is always the case, public polls will not -- and certainly should not -- play a role in the Court's application of the Constitution. It's just an interesting factor to consider, especially because on both Obamacare and immigration, public opinion cuts against the Beltway's insular conventional wisdom.
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