Health Care Ruling: WTF?

Before he can win the future, Obama may have to deal with the past.

President Obama

President Obama has been on tour to promote his investment agenda with photo-ops (light fixtures!) and new slogans (“Startup America“). But last year’s health care legislation is getting in his way. A federal district court judge declared the law unconstitutional on Monday, and Senate Republicans are pushing for a repeal vote. How do you win the future when you’re stuck in the past?

White House aides tried to dispatch the ruling with two arguments: First, this was just one of many rulings, and not all of them have been unfavorable. Second, the judge’s weak ruling was politically motivated. The latter charge was based on what senior White House officials called his “unconventional” reasoning that relied as much on Tea Party propaganda as it did legal precedent. “This much more politicized rhetoric takes up more space than you’d expect,” said a senior White House official, which “points to the weaknesses” in the argument. The Justice Department will appeal the ruling and implementation of the law will continue. Next?

This is a pretty standard response—nothing to see here—but it comes at a time when the White House is trying afresh to not let unplanned events knock it off its intended path. “We were too prosaic,” David Axelrod told Maureen Dowd as he reflected on the last two years. “We all got sort of dragged down, you know; we were a triage unit. I think all of us have been guilty of neglecting that really important part of the presidency, where you’re operating in the world of ideals and values and vision.”

It’s an open question whether the new approach Axelrod and other White House aides offer is even possible in the modern age. The in-box presidency has changed. Distractions are a constant. The twists and turns of health care in 2011 may offer the first challenge to this attempt at streamlining. The president says he doesn’t want to relitigate the past, but he knows the health care issue must be managed, and in his State of the Union address he told Republicans he was open to tweaking the bill. It all sounds very prosaic.

The issue might consume more of the president’s time than he’d like because there are vulnerable Democrats in the Senate for whom the health care issue could be an ongoing source of heartburn. Within minutes after the ruling was announced, the National Republican Senatorial Committee issued press releases targeted at vulnerable Democrats Claire McCaskill of Missouri and Bill Nelson of Florida, who supported the constitutionality of the law. (Possible 2012 candidates were also trying to grab the moment. Mike Huckabee sent out an appeal with the subject line: “Help Me Pressure the Senate to Repeal Obamacare.”)

On the day of the ruling, Sen. Jim DeMint, the South Carolina Republican, announced that all 47 Republican senators had signed on to his bill to repeal the health care law. Could he get any Democrats to sign on with him? Twenty-three Democrats face re-election in 2012. Five of those races are rated toss-ups which means control of the Senate is in play. One from that group, Joe Manchin of West Virginia, has said he would have voted against the bill.

Mitch McConnell, the Republican leader in the Senate, thinks the political environment might win him a few votes, perhaps on health care repeal. “How many of the 23 Democrats who are up in ‘12 are going to start voting with us?” he asked last week in an interview with Politico’s Mike Allen. “And maybe my number is not 47. Maybe it’s 51. Or maybe it’s 60. How many of the Democrats in the Senate who are up in ‘12 are still comfortable with all of the ways they voted in the previous Congress and may want to go in a different direction this Congress?”

McConnell might be delusional about the number of Democrats he can pressure into coming his way. Even if he does win a few converts, he isn’t going to win a repeal fight. If the Senate does pass a repeal, the president will veto it. Then McConnell would have to find 67 votes. McConnell also knows, of course, that it’s not strictly necessary to repeal the law to use it against vulnerable Democrats.

To avoid the use of health care as a constant irritant against his fellow Democrats, the president might have to get working a little faster on those fixes he talked about in the State of the Union. By showing flexibility to tinker, Obama would help himself and vulnerable Democrats show that they are not blind to the law’s flaws while allowing them to argue that there’s much in the law worth saving. Tweak and keep rather than repeal and replace.

If the president were to actively engage in making this case, it would distract from his “new investment in the future” message and ruin the White House’s new plan not to get dragged into tactical fights. But it would also secure Democratic allies he’ll need for other fights, such as on budget cuts and investments. To make his vision of the future a reality, Obama may have to spend some of the present dealing with his past.

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