Will Obama revive an overturned ObamaCare through Executive Orders?

Hotair ^ | 06/27/2012 | Ed Morrissey

[SeekAndFind]

Let's take a moment off from baseless speculation over tomorrow's decision on ObamaCare for less-baseless speculation as to what comes afterward. What exactly are Barack Obama's contingency plans if the Supreme Court overturns ObamaCare, in whole or in part? On Monday, Marc Ambinder tweeted out this interesting update before it became apparent that the court would wait for Thursday to release its decision. According to Ambinder, the White House had a raft of executive orders at the ready:

The WH has exec orders RTG if ACA is struck down. Their content and timing I don’t know. But they’ve got contingency plans a-plenty.

— Marc Ambinder (@marcambinder) June 25, 2012

Over at The Corner, Avik Roy casts a skeptical eye:

It’s not clear to me exactly how much of Obamacare can be reinstated via executive order. It’s certainly conceivable that the president could issue costly mandates that affect private insurers. But the president couldn’t expand Medicaid on his own, or ration Medicare without congressional approval.

In fact, it depends on just how much of ObamaCare gets overturned, if anything at all does. If the whole bill gets overturned, then the executive authority to issue those kinds of mandates evaporates with it. That also impacts the HHS contraception mandate, in which the Supreme Court might do Obama a favor with a complete reversal, which would end the fight with Catholic bishops over religious liberty. The EOs would become moot, since insurance companies cannot issue policies across state lines at all.

A partial overturning of just the mandate and/or other subsidiary parts of the ACA might leave enough jurisdiction for the White House to issue EOs that shore up the remnants. However, while that legal opening might arguably exist, it would probably be political suicide to take advantage of it. ObamaCare remains very unpopular with the public, a status confirmed once again in the latest WaPo/ABC poll:

Fifty-six percent of Americans rate the nation’s current health care system unfavorably in a new Washington Post-ABC News poll, while 52 percent regard the “federal law making changes in the health care system” in a negative light.

The numbers are even more stark when they are broken down into those who feel strongly favorably versus strongly unfavorably about each system. In each case, the number of people who feel strongly opposed is more than twice those who feel strongly in support — a testament to the fact that all of the energy on health care is on the side opposing both the old/new system.

And perhaps most interestingly, Americans who are not happy with their current health care also give Obama’s health care law negative ratings, by a 2-to-1 margin.

With that in mind, will a President aiming for re-election in just four months use the oft-abused and unpopular EO process to reimpose parts of an already-unpopular bill that had just been shot down by the Supreme Court as an overreach on federal power? Perhaps, but they would be risking a huge amount of backlash — and for what? To force an unpopular bill down the throats of American voters, this time without the political cover of Congress? I’m not sure that even this administration is that tone-deaf.

[Jess79]

You don’t have to obey...but your insurance carrier, Dr and hospital WILL obey...they are doing it now.

They are doing it now because there is a law on the books that says they have to. If the Court strikes it down, there will be no law. Unless Obama can find a way into intimidating them into complying (and no, I wouldn't put it past him), they can tell him to go pound sand. Likewise, the States can tell him to shove it. He may be able to get away with dictating by executive order on immigration because the enforcement agency works for him, but private insurers, hospitals,and States do not. It's time for all parties concerned to start putting their collective foot down.

[Marcella]

“Of course. There is no doubt whatsoever he will. He said he didn’t have the authority to act on the Dream Act without Congress,,,then went right ahead and did just that. He will ignore the SC also.”

You are right. When the court said Arizona could question people they suspected were illegal, Obama had an order ready to go to order ICE, Homeland Security, not to answer calls from Arizona regarding whether or not someone was illegal.

That was shocking, so I have no doubt he is ready to order something if his mandate to buy health insurance is revoked by the court.

He simply doesn’t care about the court or the consitution - he’s going to do what he wants and to hell with the people of the US.

[scram2]

With that in mind, will a President aiming for re-election in just four months use the oft-abused and unpopular EO process to reimpose parts of an already-unpopular bill that had just been shot down by the Supreme Court as an overreach on federal power? Perhaps, but they would be risking a huge amount of backlash — and for what? To force an unpopular bill down the throats of American voters, this time without the political cover of Congress? I’m not sure that even this administration is that tone-deaf.

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This makes perfect sense. Obama would be a fool to use an EO to reinstate that which the SC strikes down should they actually do that. Why alienate so many people just before an election when, if he wins he can do it immediately afterward and if loses the next president will simply unwind it anyway.

[atc23]

Of course, the confidence was quite shaken by the SB1070 vote! - the SB1070 cave by the SC, while knowing that the president would disrespect their decision, shows how complacent the justices are.

I say based on the 1070 vote, it’s a toss up tomorrow - leaning toward Obamacare being narrowly upheld.

[Servant of the Cross]

Here's analysis on why the SB1070 vote went as it did, and why my confidence in the Chief Justice is not shaken at all.

Actually it's my understanding that CJ Roberts joining the majority on Arizona was more tactical than a reflection of his actual views. If he would have joined Alito, Thomas, and Scalia. The court would have split 4-4 (Kagan recused) and the 9th circuit ruling striking down ALL of the Arizona law would have stood. So in joining with the majority he got Arizona 1/4 of a loaf, which I suppose is better than nothing.

[Crazieman]

Of course they’ll cave. They’ll punt the majority of it and only rule on the individual mandate, leaving the gigantic bureaucracy that will slowly crush us out of existence anyway.

[chris37]

Well, I don’t have an insurance carrier, I’m self pay.

I’m not certian how either of my doctors would react to such an order form the president, but they are both ex military conservatives, I expect they may both close their practices.

If worse comes to worse, I’ll stop going to the doctor and die when God calls me home.

[Adder]

Actually, right now, the law has been declared unconstitutional by a lower court. IIRC, zero said they were implementing it ANYWAY pending the SCOTUS decision...but technically they are in violation of the law.

I hope he does not pull that executive order stunt...hate to have to get irritated with my doc.

[chris_bdba]

The house will never fund his EO he can try whatever but it will end up with a fight right back at the SC where they will not look kindly upon Obama ‘s over reach.IMHO the whole thing since it has no severability clause is gone if one part is struck.

[chris_bdba]

This IMHO is going to be Obama’s very terrible week.First today a Florida court rules that Florida will proceed with the voter purge mandated by federal law.Tomorrow comes the HC decision and also the contempt vote.I bet when we see him on Friday he will be a screatching maniac!