The skeptical tone of the questioning during oral arguments before the high court on Tuesday did not bode well for fans of the new healthcare law famously nicknamed "Obamacare." Chief Justice John G. RobertsJr.and the perennial swing voter, Justice Anthony Kennedy, are expected to cast the deciding votes between the liberal and conservative factions on the the court, and both seemed wary of ratifying the federal government's right to require every citizen's participation in a health plan.
An argument can be made that if the mandate is tossed out by the justices, the likely Republican presidential nominee, Mitt Romney, will no longer be able to get away with talking vaguely about getting rid of "Obamacare" on his first day in office and will have to actually produce a detailed plan for salvaging the American healthcare system. On the other hand, if the mandate is upheld by the court, Romney would continue to be stuck with his tortured explanation of why the mandate-driven Massachusetts healthcare plan -- "Romneycare," as Rick Santorum derisively terms it -- is in any significant way different from the federal plan.
Handling the healthcare issue was always going to be problematic for Romney, though. It seems the court's intrusion into the issue raises tougher issues for the president. If the mandate is scuttled, Obama's chief domestic achievement will be seriously jeopardized and the court will have ruled that he tried to do something unconstitutional. If the court decides in his favor, however, Republican voters already freaked out by the fear that Obama is a raving socialist will be even more energized, seeing a Republican victory in November as the only way to keep Obamacare from turning the USA into the USSR.
Democrats have done such a miserable job explaining and defending their healthcare scheme that a more militant right wing could dominate the general election discourse with new paranoid scenarios about "death panels" and mandates to eat broccoli (the broccoli argument having already been introduced into the high court conversation by Justice Antonin Scalia).
The fact is, there are reasonable arguments on both sides of the mandate debate. That is why Roberts and Kennedy may yet surprise the country with what they decide. Reasonable people could go either way. The court is the only place healthcare can be discussed reasonably, however. When the issue gets addressed on the campaign trail, do not expect reason to hold sway. Instead, look for a lot of red-faced people pointing fingers and shouting at each other like misfit couples on Jerry Springer.