US & Canada

Scotus v Potus

US Supreme Court, Washington DC 27 June 2012
The Supreme Court is expected to rule on the healthcare bill on Thursday

The US Supreme Court is set to make its most politically significant ruling for many years.

It could humiliate the president, eviscerate his most important domestic achievement and change the dynamics of the election campaign.

Or, the judges could simply say that Obamacare, as its opponents call it, is perfectly constitutional and will stand. But not many expect that.

The blame game has already begun.

Some argue President Barack Obama's legal team made a mistake and should have acknowledged the conservative court's predilections and made arguments in tune with "originalism" - appealing to those who think what really matters is what the founding fathers had in mind.

You might have thought if they were going to enthusiastically swallow constitutional idolatry, they might not need to dwell on an 18th Century requirement to purchase muskets, but could go the whole hog and simply argue the constitution itself clearly did not apply in the founding fathers' minds to women or ethnic minorities.

But few seem tempted to go down this road.

'Intolerant and intolerable'

Liberals certainly are not keeping their powder dry when it comes to firing pre-emptive pot shots against the conservative nature of the court.

Justice Antonin Scalia is particularly peppered with buckshot. A law professor called him a ranting, "intolerant and intolerable blowhard".

There were suggestions he should resign and get a spot on conservative talk radio after his direct assault on Obama's policies when dissenting from Monday's judgment on Arizona's immigration law.

This is small-bore stuff. The bigger target in the blame game is President Obama himself.

Of course, the political right will take an adverse ruling as confirmation that the president has been trying to bend America into shape unknown to the constitution.

US President Barack Obama
Some of the president's supporters wonder if he has spent too much political capital on healthcare

Perhaps more damaging are the Democrats who will criticise his judgment in spending so much political energy on pursuing healthcare, rather than concentrating on the economy.

Certainly the messy, painful birthing of the law undermined his credibility as a reformer who came to office refusing to do business the old Washington way.

The outcome was a series of complex compromises, which robbed the plan of any clarity and made it difficult to explain and sell.

Many Americans think it is a "government take-over" of healthcare, (which it is not) and many more still do not know what it means for them, partly because it is not yet knowable.

Fury at what was seen as an expansion of state power breathed life into a new movement - the Tea Party - which became President Obama's nemesis. It put paid to any hope that he could act as a bridge into a new bipartisan politics.

'Very brave'

President Obama's supporters can still argue for the moment that paying this high political price was worth it in return for protecting previously uninsured Americans.

But they will not be able to do so if the judges kill it off. Then all that sacrifice will have been for nothing.

If the Supreme Court strikes down healthcare it will be a huge setback for President Obama, the worst shellacking since the mid-term elections. How he responds could be critical and might change the way the election campaign is fought.

His priority would have to be to rally supporters, harness their disappointment and fight back. It is just not easy to see how he does that.

If he attacks the court, it would sound petulant. Calling on Congress to act in some non-specific way is getting a bit thin, not least because we all know it is not a plan but a tired taunt.

It is also a strategy from La La Land. Even if he wins re-election, he would still face an intransigent Republican House. And it is not clear how he could salvage universal healthcare without the option of forcing people to buy insurance.

The Act minus this provision equals rocketing costs. Radical supporters will urge him to go for what is called here "a single-payer scheme", which means an NHS-type system, funded out of general taxation.

This surely is constitutional - taxes are allowed - and has a certain logic. It would also be what they used to call in Yes, Minister "very brave", in other words, politically suicidal.

The judgment itself, so eagerly awaited, will only be Act One, the premise of the play. Act Two, President Obama's response, is much more important and will dictate how the drama unfolds.

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