If the Court Repeals Obamacare, Republicans Don’t Need to Worry Too Much About Replacing It

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SAUL LOEB / AFP / Getty Images

President Barack Obama speaks during the Asian Pacific American Institute for Congressional Studies 18th Annual Gala Dinner in Washington, May 8, 2012.

A rash of news stories have been published this week examining how the GOP will handle things if the Supreme Court votes next month to overturn the Affordable Care Act. Amazingly, they all leave out the single most important and obvious impact a court rebuke would have. Hint: It’s not about Republicans.

In two separate posts for New York magazine, Jonathan Chait calls out the GOP for having no real intention of offering anything of substance or consequence in place of Obamacare, should it be struck down by the court. Chait reminds readers that this runs counter to the “repeal and replace” rhetoric Republicans have been using for the past several years.

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Brian Beutler of TPM says that if the Supreme Court rules against the health care law, the GOP could be on the losing end:

House Republicans will find themselves on the horns of a dilemma. They will be implicitly responsible not just for the demise of the individual insurance mandate and other unpopular parts of the Affordable Care Act, but also its popular provisions and the return of some of the insurance industry’s harshest practices, like discriminating against people with pre-existing medical conditions.

In the New York Times, Robert Pear and Jonathan Weisman report on some Republicans’ plans to mitigate political risks they might face if the problem of the uninsured takes center stage again. If the law is struck down, Pear and Weisman report, Republicans say they’ll resurrect a lot of old ideas. The GOPers quoted in the article offer vague concepts like “If you get the costs down, then you get more people with coverage” and “The status quo is unacceptable.” One House Republican leader tells the Times, “Our wheels are beginning to turn.”

In Politico, Jennifer Haberkorn and Jake Sherman say the GOP strategy on how to react to a Supreme Court rejection of the Affordable Care Act “represents an aggressive posture from House Republicans. It seeks to shelter them from criticism from the left that they’re leaving uninsured Americans out to dry.”

Philip Klein, of the Washington Examiner, reports that House Budget chairman Paul Ryan says his party actually won’t propose a huge package of health care proposals at all if the health law is wiped out but will offer a “vision” for health care reform instead.

Reading these pieces together, one might conclude that if a majority of the Supreme Court decides the Affordable Care Act is unconstitutional, attention will immediately turn to Republicans and what their next move will be. Beutler even implies Republicans could find themselves on the defensive. This is hooey. Voters don’t see Washington in granular enough terms to hold members of Congress to vague catchphrases like “repeal and replace.” The overarching narrative will be something far simpler. President Obama’s signature domestic achievement will suddenly become illegitimate.

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A central part of the Republican narrative against Obama is that he’s an overreacher. (See: spending, regulation, etc.) Nothing would fit into this story line more perfectly than a Supreme Court rejection of Obama’s signature domestic achievement. You can see the attacks coming from 100 miles away: this lefty, radical President – a constitutional scholar no less! – cast aside the law in an effort to further his own dangerous ideological agenda.

Sure, Obama supporters will say that the court is partisan. Yes, there will be press releases, rallies and TV ads spotlighting sick Americans, including innocent children, who won’t be able to get health insurance without the Affordable Care Act. And, if the Supreme Court overturns Obamacare, we can absolutely expect Democrats to remind voters that Republicans never had — and still don’t have — a plan for how to rein in health care spending and expand coverage

But the American public never exactly demanded a plan for health care reform in the first place. It’s been on the list of Democratic priorities for years, of course, but Obama the candidate talked far more about ending the Iraq war and economic unfairness than fundamentally upending the U.S. health care system. Yet, shortly after taking office office, and against the advice of some leaders in his own party, Obama decided to pursue health reform. This took courage — or hubris, depending on whom you ask — but no one believes Obama did it because it was the most popular issue. And it’s hard to argue that the American public, which is still split on health care reform, will demand Republicans take up the cause in 2012.

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Plus, as Chait points out, health care is complicated. You can’t cover significantly more people without spending more money or diverting resources from other things. This is why the Affordable Care Act contains hugely popular provisions and hugely unpopular ones. The first column contains things like guaranteed coverage for people with pre-existing conditions and the elimination of gender discrimination in insurance-policy pricing; in the second column are things like the individual mandate and huge funding cuts to Medicare. No sensible Republican is going to pivot from a Supreme Court decision overturning the Affordable Care Act to a GOP-branded health care overhaul that includes such political peril. That might be the only scenario that would make a court rejection of Obamacare a win for Democrats.

Some have argued Republicans will have no choice but to try and preserve pieces of the health care law that have broad support, like the provision that allows adult children up to age 26 to get coverage on their parents’ policies. But it’s not clear that losing this piece of the health care law will have major consequences. Nothing says insurers can’t offer this coverage voluntarily – young healthy people are valued customers – and lots of states already had similar regulations even without the Affordable Care Act. Yes, losing a law forcing insurers to cover those with pre-existing conditions could present a political problem for Republicans, but this piece of the law hasn’t even kicked in yet, making the loss far less meaningful from the public’s standpoint.

Elections are about swing voters. Absent a horrible Republican misstep, does anyone really believe undecided voters won’t put a Supreme Court loss in the Romney column? Ignore those who say there’s a significant downside for Republicans in a court loss. It’s spin.

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