(Supreme Court Frieze (photo: alanator)

The Supreme Court will likely rule on the Affordable Care Act in the summer of 2012, just months before the election. If they uphold the constitutionality of the law, that could be a modest political win for the Obama campaign. It would serve to undercut the Republican attack that the law was an “unconstitutional” government overreach. But I strongly disagree with Timothy Noah’s assertion that even an unfavorable Supreme Court ruling would be a political win for Obama. From The New Republic:

If the Court strikes down Obamacare then Obama’s presidency will be pretty much of an unmitigated failure (with an asterisk perhaps for the Dodd-Frank financial reform act). Which, I’ll grant you, would be a very bad outcome for the nation.

But slapping down a sitting president in a transparently partisan manner with a decision that did violence to eight decades of jurisprudence and that would literally cost American lives–yes, I think a “no” vote would be a pretty bad way for the Court to go–would be a fantastically effective way to “energize the base,” as we say in Washington, and maybe rope in some independents, too. What better way to say, “We need to give this guy four more years, never mind what you think of him personally, so we can change the composition of this reactionary and intellectually bankrupt Court”? FDR used an election victory to harass enough of the “nine old men” of the Supreme Court into retirement or submission to rescue the New Deal (even if his opening move, the court-packing scheme, was a busted play).

To begin with, the idea that independents would, for some reason, rally around a law that is all ready very unpopular with independents because it was declared unconstitutional doesn’t make sense. More likely it would just give those already skeptical of the law another reason to dislike it.

If the Court takes Judge Roger Vinson’s position and throws out the entire law, that might rally the Democratic base just because that would be a historic judicial overreach, but even that is not guaranteed. The law was contentious with the base and the offending provision, the individual mandate, wasn’t wanted by many progressives. A court loss could make the base angry with elected Democrats for so foolishly screwing up the law. Congressional Democrats have no one but themselves to blame for making the idiotic mistake of not including a severability clause in the law.

In addition, had Obama not gone with an individual mandate (like he promised on the campaign trail), but included a public option (also like he promised on the campaign), or just directly provided the uninsured with basic public insurance, the law would have passed constitutional muster. If the whole law is struck down, it will be ironic that it was not progressive enough to be constitutional.

I think the biggest fault with Noah’s analysis is that he is acting like either the whole law will be upheld or the whole law will be thrown out. I think it is far more likely the Supreme Court would find only parts of the law unconstitutional, rather than throwing out the whole law. After all, it defies logic to claim that many of the law’s provisions: money for community health centers, Medicaid expansion, allowing adults under 27 to stay on their parents plans, free preventive care for Medicare, etc… can’t be severed from the individual mandate.

The most likely unfavorable ruling from the Supreme Court would be that they follow the 11th Circuit’s lead and strike down only the individual mandate as unconstitutional and leave the rest of the law intact. This would be a real political loss for Obama. It would prove that the Republicans were right about the law being unconstitutional and it won’t be something that would rally the Democratic base. The mandate isn’t particularly popular with the base and it would be hard to paint the Supreme Court as being out of control because they simply removed a single, highly unpopular provision from the law, while leaving all the popular provisions intact.