The Supreme Court may set to rest the legal issues, but a political fight will live on. | John Shinkle/POLITICO Health law faces its biggest test

In two weeks, the U.S. Supreme Court takes up the case that could lead to the biggest “I told you so” of 2012.

The challenge to President Barack Obama’s health care reform law will result in the court either upholding it — giving bragging rights to Obama and congressional Democrats — or finding major pieces of it unconstitutional, setting off a political earthquake that would vindicate Republicans and conservative groups.


(Timeline: Health Reform and its Legal Challenges)

Both sides will start to lay the groundwork for that ruling during six hours of oral arguments, which will spread over three days beginning March 26. And when that ruling comes down, probably in June, the winners will try to make it sound like the final word.

But everyone knows that’s a fantasy. The Supreme Court will have the last word on the legal issues, at least the major ones. The political fight will go on for years — if it ever really ends.

The lawsuit brought by 26 states and the National Federation of Independent Business is shaping up to be the most high-profile Supreme Court case since Bush v. Gore — complete with rallies and protests, just like the ones that surrounded that case.

The Tea Party Patriots will be there, with a rally on Capitol Hill the weekend before the arguments. And Americans for Prosperity is having a “Hands Off My Health Care” rally at the Supreme Court on March 27 — the day the court is supposed to hear arguments on the individual mandate. The list is likely to grow.

For Republicans, a ruling striking the individual mandate would validate their two-year drumbeat against “Obamacare” and allow them to charge Obama — a former constitutional law professor — with pushing his policies through unconstitutional means.

For Democrats, a ruling upholding the law would serve as the ultimate stamp of approval on their landmark health reform law and allow them to accuse Republicans of wasting two years fighting a law that is constitutional.

For the public, it’s a question about who had the right leadership judgment, said Robert Blendon, a Harvard School of Public Health expert on public opinion and health policy.

“It’s become a huge symbolic issue of [whether] the president pushed legislation that is constitutional or not,” Blendon said in an interview. “It will have a significant impact on the election in that it will really affect, to some degree, how people see the president and Republican leadership.”

That doesn’t mean the public will put a huge amount of trust in the Supreme Court’s decision. A Kaiser Family Foundation poll in January found that 59 percent of respondents think the justices will be swayed by their ideological views. Only 28 percent thought they’d actually decide based on straight, unbiased legal analysis.

But no matter which way the decision comes down, the opponents may have won a victory already because the case will shine massive media attention on the complaints about the law, both during the oral arguments and when a decision comes down.

“The challengers have already succeeded in one of their major goals: visibility on these issues,” said Kevin Walsh, a University of Richmond law professor and a former law clerk to Justice Antonin Scalia.

The 2012 election only increases the stakes for the Obama administration. And so far, the law isn’t helping Obama in the states where he needs help the most.

A USA Today/Gallup Poll conducted last month showed that 53 percent of voters in swing states say the law is a “bad thing.” Nationwide, 50 percent of respondents said the same. Only 38 percent of respondents in swing states — and 42 percent of people nationwide — said the law is a positive.

The same poll found that health care is the No. 3 issue on voters’ minds, behind the economy and the deficit.

Congressional Republicans — who rode a wave of opposition to the law to overtake the House in 2010 — hope that a ruling against the mandate will energize voters to elect a Republican president and Republican majorities in the House and Senate to take apart the rest of the law.

“It’s a very, very earthshaking, pivotal decision that has to come down,” Utah Sen. Orrin Hatch, the top Republican on the Senate Finance Committee, told POLITICO. “I’m hopeful they’ll find it unconstitutional and send us back to the drawing table to come up with a better bill without all the controversy.”

Rep. Henry Waxman (D-Calif.), who helped draft the House version of the health reform bill as Energy and Commerce Committee chairman in 2009 and 2010, said the law isn’t the only thing at stake at the Supreme Court.

“It’s the whole fabric of federalism with regard to what the federal government can do in legislation promoting interstate commerce,” he said. “So it’s not just this one bill that’s going to be on the minds of the Supreme Court. It’s going to be a whole line of precedents that I think they would be upsetting if they overturn this particular part of the Affordable Care Act.”

Waxman said that if the mandate is struck, Democrats would try to repair the damage to the law.

“It would be a setback, no doubt about it, for the efforts of the Affordable Care Act to get everybody covered,” he said. “There are other ways to do it. And I guess if we had a setback, we’d have to look at that. But I feel confident that we’re going to be OK on the Supreme Court decision.”

The reality is that if the court strikes the mandate but leaves the rest of the law in place, the Supreme Court could leave policymakers with a quagmire.

The law’s costly requirements for insurance companies — namely, the requirement that they cover everyone, regardless of their medical condition — would remain in place. But the requirement that everyone buy coverage, which drives down insurers’ costs, would be gone.

“There’s nothing new in the Supreme Court making decisions that have an impact on policy. That’s why they’re called the Supreme Court,” Waxman said. “They have to balance out a lot of different considerations because so many of the members of the court have argued that they do not feel it’s appropriate for them to exercise legislative responsibility. That should be left to the Congress.”

Striking the mandate, even if the court strikes the guaranteed-issue provision with it, “will have a significant impact on implementation,” said Mark McClellan, director of the Engelberg Center for Health Care Reform at the Brookings Institution and a former administrator of the Centers for Medicare & Medicaid Services. “It would probably have a less far-reaching effect on the [law’s] reforms.”

“On the other hand, if the Supreme Court doesn’t overturn the individual mandate, I don’t think that is the end of the story, either,” McClellan said, citing the relatively weak penalty for not following the mandate and its unpopularity. “There is a lot of history [of similar provisions] being modified, delayed or not going into full effect.”

The law’s challengers argue that if the mandate is found to be unconstitutional, the entire law should be struck. But legal experts say that’s highly unlikely. If the mandate falls, the court would most likely take down only the mandate or the mandate plus a few other pieces of the law.

The federal government says only two provisions of the law should fall: the requirement that insurance companies accept all customers, regardless of pre-existing conditions, and the provision that keeps them from charging premiums based on individuals’ health status.

But a ruling against a piece of the law would undermine the rest of the legislation in the public eye — or at least the law’s opponents will try to do so.

“If anything is struck down, the Republicans are going to make it sound like the whole bill is unconstitutional,” Blendon said.

The Obama administration is going up against a court held 5-4 by conservative justices. But Obama’s lawyers will walk in on March 26 with the tally already assumed to be 4-1 in their favor, according to many legal experts.

It’s assumed that the four liberal justices will uphold the law, because they typically favor strong federal regulation, and Justice Clarence Thomas will strike it. So the task for the law’s opponents will be to seal the deal with the other four conservatives while the Obama administration tries to pick off one or two of them.

In preparation, both sides have laid the groundwork to undermine a ruling against them. The law’s supporters have gathered petitions trying to convince the public that Justice Clarence Thomas’s wife’s lobbying work against the law should require him to recuse himself.

And the law’s opponents have been arguing — often more loudly — that Justice Elena Kagan’s work in the Obama administration during the law’s passage should force her off the case.

Neither shows any sign of recusing themselves. But the whole court does have a way of putting off a ruling — if it wants to. The justices could say the penalty for not getting insurance coverage is a tax and that the arcane Anti-Injunction Act doesn’t allow them to settle the issue until after Americans begin to pay it in 2015.

While the Obama administration and the law’s opponents agree that the act doesn’t apply here and that the court can rule now, a ruling on the Anti-Injunction Act would be viewed as a win for Obama.

That’s because opponents would have to wait until 2015 — after most of the law is in effect — to refile their suits. And even if they did, it would be hard for the court to say that the penalty is a tax under the Anti-Injunction Act now — and then argue in 2015 that it doesn’t fall under Congress’s constitutional powers to tax.

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