Let’s say the Court overturns the mandate by a typical 5-4 vote but leaves the rest of the law intact. What must the Democrats do? The main thing is all about tone. I can just picture already what I fear I will see: Obama coming out to a press conference with his head down, speaking in a dour monotone, still trying to point out the silver linings but in a way that sends the message to anyone listening that he’s really apologizing for them, and muttering that he is now “calling on the Congress to act” (this has become my least favorite Obama phrase) and get busy working on one of the alternative approaches that will still keep the law alive—which is nothing more than a punch line, really, because everybody knows Congress isn’t lifting a finger.
No, a thousand times no! He needs to stand up there and get mad. The law may be unpopular, but he and the Democrats are stuck with it, and being stuck with it, they need to stick by it. Almost never before in American history has a Supreme Court taken a law duly passed by the people’s representatives and in just two years’ time invalidated it. If that isn’t legislating from the bench, what is? Mr. Cool needs to get Hot. Against unanimous and ferocious opposition, and in the face of blatant lies about what this bill would and would not do, he and the Democrats came up with a way for people with cancer and diabetes and what-have-you to get the treatment they need and not be either turned away or gouged. He’s proud of that, he ought to say, and by God he’s going to fight for it. That provision of the law is wildly popular—85 percent supported that, in a late March New York Times survey. If you can’t play offense with 85 percent of the people behind you, I give up.