Tuesday, September 27, 2011

So Crazy It Just Might Work...

President Obama's health care reform law is going before the Supreme Court soon, and there are already fireworks on both sides of the debate. There are a number of questions swirling about how the High Court will rule, who will be allowed to have a say in the verdict, and why Obama would push for it now, among others.

One question that seems to have a simple answer is how the Obama Administration hopes the USSC will rule on the law's constitutionality. The easy answer is they hope the health care reform law will be upheld. However, I'm not too sure that would be the best possible outcome as far as the Administration is concerned. After all, a victory in the High Court will give Republicans an issue they can use in the 2012 election, and with polling data mixed on whether the law is good for America, it's one that could sway voters to vote for the Republicans.

A loss in front of the USSC would be a public relations nightmare. After months of debate, harsh rhetoric, and growing public discontent, the Administration cannot afford to have their crowning achievement (and, arguably, their only achievement) taken from them. This would certainly give them ammunition and another target to attack, but it wouldn't sway more conservative voters, who aren't thrilled with the President at the moment.

So, what does that leave? A tie.

As odd as it sounds, I feel the Obama Administration is hoping the health care reform bill gets deadlocked at the Supreme Court, and there's a good chance it could happen.

As much as the Left loves to point out there's a 5-4 conservative edge to the High Court, that isn't quite the way it is. There are four known conservative Justices (Roberts, Scalia, Thomas, and Alito), and four known liberal Justices (Bader Ginsburg, Sotomayor, Breyer, and Kagan). That leaves Justice Anthony Kennedy as the swing vote. That would normally swing the vote in one direction or other, but not this time because of Justice Kagan's work as Solicitor General while the health care reform bill was being devised. That would be a conflict of interest, one that can't be overlooked or dismissed as insignificant.

In order to prevent a PR backlash, the Obama Administration might urge Kagan to recuse herself, leaving only 8 Justices to vote on the constitutionality of the health care reform law. Since the Left couldn't get Clarence Thomas to recuse himself because of his wife's lobbying against Obama's reform law, they can't let Kagan slide for something more directly in conflict with the spirit of the law.

Kennedy is known for being more of a centrist, which means his vote could easily swing towards the left, thus creating a 4-4 deadlock. This leads to the question of how a tie helps Obama more than a victory. Let me count the ways.

1) It doesn't go down as a loss. With Obama's poll numbers slipping, a defeat would lead to at least a short term loss of popularity, and at a crucial time in his reelection campaign. Yet, if he gets the win, Republicans have a ready-made platform that will garner a lot of support from the center. A tie keeps Obama without a costly defeat while not giving Republicans the health care reform law as an issue. It's a win-win.

2) He can use it as a reelection theme. With a 4-4 tie, Obama can go back to his base and tell them, "I tried to get health care reformed, but the Supreme Court stopped me. I need another 4 years to get another reform-minded Justice on the Supreme Court." And his base (as well as those who were counting on the reform law being upheld) will eat it up.

3) It gives Obama another "target" for campaign rhetoric. It's clear Obama has no love lost for the Supreme Court. A 4-4 tie would allow Obama to attack the Supreme Court, something he has done in the past and would have no problem doing again. This, in turn, would fire up his Leftist base, as they see the USSC the same way he does. Plus, it would help diffuse notions Obama isn't as passionate as he was in 2008.

4) It creates a Constitutional question that could take years to untangle. What happens when there's a deadlock on the Supreme Court? Neither side has the advantage, and neither side loses. That alone would keep the health care reform bill on the books and legally enforceable while the matter gets resolved. Inevitably, the resolution wouldn't be something that could be decided over coffee. It has the potential to go on for years, years where the law would officially take effect (and continue to be funded in the meantime).

There are likely more reasons, but you get the idea. This may be a time when Obama plays to tie, not to win.

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