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For Congressional Democrats anticipating the Supreme Court’s health care decision, the question is this: Why rush?
Republicans are quick to highlight their preparations for the court’s decision. They have promised immediate action to repeal what is left of the law if it’s not completely struck down, and they have said they will hold individual votes on the law’s more popular elements.
But in facing the public, many Democrats downplay the possibility that the court could strike down President Barack Obama’s signature legislative achievement.
“We’re confident that the law’s going to be upheld,” said Rep. Debbie Wasserman Schultz (Fla.), chairwoman of the Democratic National Committee. “It would be a dramatic narrowing of the jurisprudence of 70 years on the Supreme Court that gives Congress the ability to regulate commerce” if the court strikes it down.
Behind the scenes, some Members and aides are broaching the possibility. Nevertheless, House and Senate Democrats are not expecting a flurry of legislative activity once the Supreme Court rules.
Instead, a Senate Democratic leadership aide said, they are taking their cues on how to respond from the White House.
“It’s unlikely that Congress would take up the health care bill again before the election,” the aide said, adding that any efforts by Senate Democrats would not be embraced by the Republican-led House. “To the extent that those discussions are taking place, they are being led by the White House.”
Health and Human Services Secretary Kathleen Sebelius said last week at a White House forum on the law and women’s health issues that the administration remains “confident and optimistic” the law will be upheld.
But if the ruling proves unfavorable, she added, “We’ll be ready for court contingencies.” However, she offered no details about how the administration would respond.
One House Democratic leadership aide said any response will likely be measured.
“I don’t think you’re going to see the day the court decides a unified, ‘This is what we’re going to do today,’” the aide said. “There’s no immediate rush. It becomes a message point. It’s going to become a campaign issue.”
House Minority Leader Nancy Pelosi (D-Calif.) indicated at her Thursday press conference that she plans to defend the law. “I’m very proud of the Affordable Care Act,” she said. “I think the understanding of it has been jeopardized by misrepresentations that have been out there relentlessly.”
Indeed, Democrats acknowledge they fudged the messaging war: “Republicans did a very good job of vilifying the idea of health care reform. But then you get into the pieces of health care reform, Americans like it,” the House aide said.
As a result, the Democratic response will focus on the popular parts of the law, such as allowing people to stay on their parents’ health insurance plans until age 26 and requiring insurance companies to cover those with pre-existing conditions. Pelosi’s office has been circulating talking points for months highlighting how many millions of Americans those provisions have helped.
Republicans plan to bring such proposals to a vote in the House. “We welcome that,” said House Democratic Caucus Chairman John Larson (Conn.), because he wants to highlight that the GOP will have a hard time paying for the measures if the Supreme Court strikes down the individual mandate that all Americans buy insurance, which provides much of the funding for the other, more popular, parts of the law.
“We want them to answer how they’re going to pay for that,” he said. “The mandate, if it’s struck down, pretty much guts the bill.”
While a decision against the law would likely be read as a blow to Obama, a decision by the court — regardless of the outcome — could help Congressional Democrats politically by taking away the issue from Republicans, who have used it as campaign fodder.
“The saliency for voters is reduced after a decision,” the aide said, adding that if the law or parts of it are struck down, it is no longer a threat.
The case has also increased the tension between the court and the legislative branch, with some Democrats frustrated by an appearance that the Supreme Court is playing politics.
“Democrats have a sense that the Supreme Court has weighed into the political sphere and are frustrated because they are not allowed to argue back” for fear of threatening the independence of the court, a Senate Democratic aide said.
The issue has also taken a toll on how the court is viewed. More than one-third of Americans, or 36 percent, disapprove of the way the Supreme Court is handling its job, according to a New York Times/CBS poll released Thursday.
Some Republicans have charged that Democrats and the president have crossed the line with their attacks. In a floor speech on Thursday, Sen. Jeff Sessions (R-Ala.) admonished them.
“I sense — and a lot of my colleagues share this view — that the president himself, his Democrat colleagues in the House and the Senate, their friends in the media, and liberal government, pro-health-care advocates have stepped up undignified, not justified attacks on the court,” Sessions said.
“The court’s reputation will be damaged if it bows to this political bullying, but not if it follows the Constitution,” Sessions continued. “I think it’s wrong to disparage and threaten the court during the pendency of a case in order to influence the outcome. These are important questions of law. I have an opinion, but the court has a duty. And that duty is for them to decide the case before them impartially, as a neutral umpire, without counting the crowd noise.”