How Health Care Ruling Could Shift The GOP Debate

Massachusetts Gov. Mitt Romney signs into law a new health care reform bill during an April 12, 2006, ceremony at Faneuil Hall in Boston. The bill made Massachusetts the first state in the country to require that all residents have health insurance and has become a centerpiece of criticisms leveled by Romney's opponents in the 2012 presidential race. i i

Massachusetts Gov. Mitt Romney signs into law a new health care reform bill during an April 12, 2006, ceremony at Faneuil Hall in Boston. The bill made Massachusetts the first state in the country to require that all residents have health insurance and has become a centerpiece of criticisms leveled by Romney's opponents in the 2012 presidential race. Joe Raedle/Getty Images hide caption

itoggle caption Joe Raedle/Getty Images
Massachusetts Gov. Mitt Romney signs into law a new health care reform bill during an April 12, 2006, ceremony at Faneuil Hall in Boston. The bill made Massachusetts the first state in the country to require that all residents have health insurance and has become a centerpiece of criticisms leveled by Romney's opponents in the 2012 presidential race.

Massachusetts Gov. Mitt Romney signs into law a new health care reform bill during an April 12, 2006, ceremony at Faneuil Hall in Boston. The bill made Massachusetts the first state in the country to require that all residents have health insurance and has become a centerpiece of criticisms leveled by Romney's opponents in the 2012 presidential race.

Joe Raedle/Getty Images

As the Supreme Court gets ready to hear arguments about President Obama's health care law, supporters and opponents are planning a flurry of rallies, press conferences and phone banks to remind people why the law is so great — or so terrible. Republicans have been energized by their desire to see the law repealed, but the issue could be more complicated for the GOP than it seems.

It's hard to find any Republicans who like the health care law. Polls show that disapproval among Republican voters is close to 90 percent — with 77 percent voicing strong disapproval. In the contentious Republican primary, the candidates are as one on this subject.

"The fact is, every person up here understands Obamacare is a disaster," Newt Gingrich says. "It is wrong for health care; it's wrong for the American people; it's unconstitutional," Mitt Romney says. "But nobody talks about where the money's going to come from," Ron Paul says. "Obamacare is public enemy No. 1 against freedom in America and it must be repealed," Rick Santorum says.

More than any other Republican candidate, Santorum has tied what he calls Obamacare to the bedrock conservative issue of personal freedom. He says it's how President Obama will make every American dependent on the federal government. And he claims Romney will be unable to make this fundamental argument about the proper role of government in the fall election, because "Romneycare" was the blueprint for Obamacare.

"It's one thing to defend a mandated, top-down, government-run, health care program that you imposed on the people of your state," Santorum says. "It's another thing to recommend and encourage the president of the United States to impose the same thing on the American people."

Santorum is referring to a USA Today op-ed Romney wrote in 2009, in which he supported mandates — just like he had a year earlier in a 2008 Republican primary debate.

"I like mandates," Romney said, to the surprise of the moderator. "Oh absolutely, let me tell you what kind of mandates I like."

Many Republicans can't forgive Romney for that, and as Democratic strategist Geoff Garin points out, it's at the heart of Romney's continuing trouble with the conservative base of his party.

Dueling Rulings

Four federal appeals courts have ruled on parts of the new national health care law. In each instance, three-judge panels split 2 to 1 on their rulings. The case from the 11th Circuit is the one before the Supreme Court.

11th U.S. Circuit Court Of Appeals

On Aug. 12, 2011, the 11th Circuit in Atlanta ruled that the individual mandate requiring citizens to buy health insurance is unconstitutional, exceeding congressional power to regulate interstate commerce. It also said an invalidated individual mandate could be "severed" from the rest of the health care law, leaving other provisions in place; classified the individual mandate as a penalty and not a tax; and said the law's unilateral expansion of the federal-state Medicaid partnership is permissible.

4th U.S. Circuit Court Of Appeals

On Sept. 8, 2011, the 4th Circuit in Richmond, Va., called the individual mandate a "tax" that would not be ripe for legal review until 2015. The classification as a tax rather than a fine matters because the 19th century Anti-Injunction Act says a tax can be challenged only after it has been paid and appealed. And under the law, an American with taxable income would first be required to have health insurance in 2014 and would pay the assessment on tax returns, presumably not before 2015.

6th U.S. Circuit Court Of Appeals

On June 29, 2011, the 6th Circuit in Cincinnati upheld the individual mandate as constitutional under the Commerce Clause.

U.S. Circuit Court Of Appeals For The District Of Columbia Circuit

On Nov. 8, 2011, the D.C. Circuit in the nation's capital upheld the individual mandate as constitutional under the Commerce Clause.

— Greg Henderson

"Mitt Romney's history with health care reform is a signal to conservative Republicans that he's a person not to be trusted," Garin says.

Health care could very well end up as a net negative for President Obama in the fall, but Stephanie Cutter, the president's deputy campaign manager, says she is looking forward to the debate if Romney is the nominee.

"We'd love for him to join in talking about the incredible benefits of health care reform, both in Massachusetts, that is proving to be hugely successful, and the beginnings of the success of the president's health care reform law, which is just two years in implementation," Cutter says. "Whether it's neutralized in a general election if Mitt Romney's the nominee is not for me to say, but I will say, we'd love to have the conversation about what it means to this country to reform the health care system and the real benefits that it's having in people's lives."

And then there's the wild card of the Supreme Court. If the whole law, or just the mandate, is struck down, Republicans will rejoice at their huge victory. But then what?

Republicans used to say their goal was to repeal and replace the law, but so far there has been lots of talk about repeal, and very little about replace.

"This is where life gets complicated," explains Bill McInturff, a Republican pollster who has spent years polling the public about health care. "It's fine for a congressional majority to say they're going to repeal a piece of legislation. However, if you're running for president, you end up having to be in the world of telling what it would be replaced with. And there are popular elements of this legislation."

Elements such as the ban on discriminating against people with pre-existing conditions. Or letting kids stay on their parents' plan until they turn 26. Neither Romney nor Santorum has said what he would do about those provisions after repeal. But they might have to, if the Supreme Court puts health care back into the center of the presidential election.

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