How Obama Could Win By Losing

AP Photo, John Shinkle/POLITICO

Soon we will know the Supreme Court's decision on the constitutionality of Obamacare. The media has been all aflutter for some now and will surely be buzzing like a horde of cicadas once we know the result. Many on the Right and Left are anticipating a decision striking down all or part of the law, and unsurprisingly, many on the Left have been twisting themselves in knots trying to explain how this could actually work to Obama's advantage in this election. The spin goes something like this: It will give the president a rallying cry with which to energize a disenchanted Democratic base and motivate voters who have so far been discouraged from voting to re-elect someone who has thus far disappointed them. 

I have yet to hear anyone articulate, however, the strongest (and, really, only sound) argument for how and why Obama could parlay a loss in court into a victory at the polls. Perhaps the reason is that it would require the president's supporters to admit something that they have been unwilling to acknowledge: Obamacare is a huge drag on the economy. The new regulations are shackles around businesses large and small, and the new taxes are weights attached to those shackles. (If my metaphors sound a little vapid, then it's because I've been using the bulk of my brainpower for Big Trial prep and splitting the remainder between other coursework and trying to find a job, so bear with me.) If all those weights and shackles were suddenly removed, then the U.S. economy would take off like a rocket. Sure, there would still be other concerns--to wit, Dodd-Frank, another monstrosity that, like Obamacare, created a new bureaucratic apparatus to be staffed by unelected bureaucrats with the power to make all kinds of new rules and regulations that have the force and effect of law, and Europe, which has been teetering on the brink of a financial collapse for some time now--but the single biggest albatross around our economy's neck would suddenly be no more.

I could be wrong, of course. Politico's Josh Gerstein actually wrote yesterday that a decison ruling the entire law unconstitutional would be the worst-case scenario for President Barack Obama, explaining thusly:

It would mean he effectively wasted the bulk of his political capital, nearly a year of his presidency and good chunk of the time his party controlled both houses of Congress. Much of the rest of Obama’s agenda — including immigration reform, closing Guantanamo and climate change legislation — was sacrificed for health care reform.

Walking away from those priorities for what turned out — behind door No. 3 — to be nothing, would be portrayed as one of the greatest political miscalculations by a president in modern times.

“That’s not where you want to be. That’s not where you want your president to be,” former Attorney General and White House counsel Alberto Gonzales said Wednesday on CNN. “If I’m in the White House, [then] I want to win this case.”

Jeff Shesol, a former White House speechwriter and author of “Supreme Power: Franklin Roosevelt v. the Supreme Court,” said Roosevelt gained political leverage against unfavorable rulings by the justices because he had most Americans on his side. That’s not true for Obama. “I don’t think the public’s with him, and I don’t think any amount of effort by him is going to counter that,” Shesol said.

I don’t necessarily disagree with the above analysis; having the centerpiece of his domestic agenda--something he expended what little political capital he had left after a rough, polarizing first year in office on--ruled unconstitutional in its entirety would be a devastating blow to Obama, but once the economic consequences of such a ruling take hold, a lot of those crucial "swing voters" who will decide this election won't care. Republicans should prepare for this unlikely scenario so that, should it come to pass, they will be ready with a clear, comprehensible message and a plan to disseminate it throughout the media so that most voters, at least, will understand what's happening.