What FDR could teach Obama about a Supreme Court loss

Matt K. Lewis Senior Contributor
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The Supreme Court will rule (soonish) on the constitutionality of the Affordable Care Act, known colloquially as ObamaCare. This dense and wide-ranging bill is especially controversial for its individual mandate to purchase health insurance.

That may well be struck down — and with it, the entire bill.

But Republicans shouldn’t get too excited. There’s historical precedent to suggest their desired goal to “repeal and replace” ObamaCare might be harder than they think.

In 1935, the Supreme Court unanimously struck down Franklin Roosevelt’s National Industrial Recovery Act (NIRA), which contained numerous provisions deemed odious by conservatives of the day. (As a result, FDR would later attempt his infamous “court-packing” scheme to stack the court with friendly justices — but that’s another story.)

NIRA was a central part of FDR’s New Deal package, and as such, one might think having it ruled unconstitutional would have been disastrous for his programs — and his political future. Yet FDR was elected three more times, and many of the policies and programs in the NIRA would go on to become law.

This, of course, is largely because the public grew used to these programs in the interim between passage and the Supreme Court’s decision to strike them down.

A similar thing could happen with ObamaCare. Even if the Supreme Court strikes down the entire law, it’s possible that some of the programs — such as the requirement to cover pre-existing conditions, people being covered under their parent’s insurance until age 26, health care exchanges and the dramatic expansion of Medicaid — may be with us to stay. Already, many private insurance companies have signaled they plan on retaining certain elements of ObamaCare even if it is invalidated.

And you can bet large chunks of the public — especially those benefit most from ObamaCare — will demand their preferred programs be retained or reinstated. (Note: For this reason, Obama to design a system where many of the benefits don’t kick in until 2014 might have been a major tactical mistake.)

If the Supreme Court overturns ObamaCare in toto, Republicans will face a difficult, if ironic, conundrum: Do they keep some of the most popular elements of ObamaCare, thereby angering their base — or do they risk upsetting people who would be happier if they just fixed the “bad” parts.)

And then there’s this: Even if Obama’s signature legislation is deemed unconstitutional, don’t assume it will hurt his chances in November. FDR survived a similar fate.

In politics, sometimes losing is winning and winning is losing.


H/t: Bill Scher (The idea for this post originated over a dinner discussion with him.)

Matt K. Lewis