Despite the handwringing, neither president suffered a huge political blow at the hands of the Supreme Court.

There is no question that the Supreme Court’s decision to uphold the Patient Protection and Affordable Health Care Act represents a major victory for Barak Obama’s presidency. Struggling in the polls thanks to the continued sluggish performance of the economy, a defeat on the constitutionality of this signature piece of legislation had led many analysts to predict that, had the decision gone the other way, President Obama’s ability to effect further change would be finished. Others argued that a ruling striking down the health care law would have meant the end of President Obama’s political career. But if history is any guide, these dire predictions may have been too severe.

Roughly 75 years ago, when Franklin Roosevelt was engaged in his own struggle with the Supreme Court, it appeared for a time as if the fate of his presidency—and the New Deal—also hung in the balance. In May of 1935, for example, the Court struck down the National Industrial Recovery Act and the Agricultural Adjustment Act, two key provisions of the New Deal. FDR was livid and, fearing for the fate of such landmark pieces of legislation as the 1935 National Labor Relations Act and Social Security Act, he eventually decided to take on the Supreme Court by unleashing his famous “Court Packing Plan” in February 1937. The plan argued that the president should be allowed to add up to six new judges to the bench in cases where a sitting justice who had served at least ten years on the bench refused to retire after reaching his seventieth birthday.

The president was perfectly within his legal bounds to request a change in the make-up of the Court, and he certainly was not alone in his call for judicial reform. But given the widespread support for the make-up at the time and the means by which the president unveiled his proposal—it was launched without warning and without any effort to secure congressional support before it was put forward—the plan soon ran into fierce opposition, even from some members of Roosevelt’s own party. As time went on, what congressional support there was for the plan eroded, and after some months the bill was quietly allowed to die in the Senate before it ever came to a vote.

Most historians agree that the launch and demise of FDR’s court packing scheme was a major political blow which, when coupled with the Roosevelt recession of 1937, resulted in the strengthening of the anti-New Deal coalition in Congress in the midterm elections of 1938. This certainly made it harder for FDR to push further New Deal reforms in the coming years, but it did not bring about the judicial reversals that FDR feared. On the contrary, from that moment forward the Court upheld every New Deal statute that came before it, launching a new era of jurisprudence that fundamentally altered its character and the nature of its decisions.

The setbacks that President Roosevelt experienced at the hands of the Court in the mid 1930s, then, did not result in the undermining of the New Deal. Thanks to a shift in attitude in the Court about the role of government in the maintenance of the social and economic health of the nation, we still enjoy Social Security, unemployment insurance, a federal minimum wage, and a host of other New Deal provisions. Nor did the Court’s action’s result in the political demise of Franklin Roosevelt, who would go on to win reelection to an unprecedented third and fourth terms.

In the decades since Roosevelt’s showdown with the Supreme Court, a debate has raged about how much his decision to confront the Court may have led to the change in attitude among the justices regarding the constitutionality of the New Deal. A number of historians—and Roosevelt himself—have claimed that the president may have lost the battle but won the war. In other words, it was the pressure from the president that led to the shift in the Court’s outlook.

But more recent scholarship tends to support the idea that the Court’s about-face reflects the slow evolution of 20^th century constitutional law that predates the New Deal. The court, in essence, was heading toward supporting greater federal intervention in the economy, but had not quite reached this point when FDR launched his flurry of programs and reforms. One strong argument in favor of this view stems from the fact that in early 1937—before FDR announced his court reform proposal—the court reversed itself and ruled in favor of two other New Deal provisions that had been brought before it. Ironically, one of the justices who changed his position was Owen Roberts, a conservative Hoover appointee who would continue to serve on the court until 1945. Given his change in attitude, it is Associate Justice Owen Roberts—a man whom the current chief Justice John G. Roberts (no relation) apparently admires—who is most often credited with saving the New Deal or, as was said at the time, carrying out “the switch in time that saved nine.” Today, it appears that it was Chief Justice Roberts, who cast the decisive vote in favor of the Patient Protection and Affordable Health Care Act, who will make it possible for millions of uninsured Americans to finally gain access to what many consider a fundamental human right: affordable health care. 

David Woolner is a Senior Fellow and Hyde Park Resident Historian for the Roosevelt Institute. He is currently writing a book entitled Cordell Hull, Anthony Eden and the Search for Anglo-American Cooperation, 1933-1938.

The Obama administration's neglect did not cause this constitutional challenge to the individual mandate. Republican strategy did.

On the eve of the Supreme Court's decision, after numerous lower court opinions and treacherous questioning by conservative justices, the overwhelming consensus in the legal community remains that the requirement in the Affordable Care Act to buy health insurance is unquestionably constitutional. As recently as mid-June, Bloomberg News asked law professors at the nation's top law schools whether they thought there was any question that the Affordable Care Act’s individual mandate requiring the purchase of health insurance was constitutional; 19 of the 21 who responded replied that it was. They were only confirming the opinions of two very conservative appeals court judges, who upheld the provision last year.

But the widespread view that the only reason we have a question before the Supreme Court is their receptivity to right-wing political manipulation of the law was not the story told by the New York Times on Sunday, under the headline, "Supporters Slow to Grasp Health Law's Legal Risks." The Times's Peter Baker faulted the Obama administration and Congressional Democrats for being unprepared for the legal challenge.

Some would view the fact that the Court is seriously debating a question that is so far out of the political mainstream, even among the most respected conservative jurists, as a testament to the groundbreaking work of a small set of conservative lawyers to change jurisprudence. They would compare their work to the careful strategy that led to decisions like the Warren Court's Brown v. Board of Education. I am not so generous. The legal arguments against the individual mandate remain flimsy and there is no comparable history of carefully plotted legal strategy. What has become more solid is the ground that the arguments are being made on, a Supreme Court majority whose magnet is not the Constitution or precedents, but the U.S. Chamber of Commerce.

In drafting what became The Patient Protection and Affordable Care Act, Democrats in Congress and the White House had myriad complex policy and political factors to juggle. The implication that they should have added in the minuscule chance that the mandate would be successfully challenged on its constitutionality is as silly as the opponents' legal arguments.

What might have given the law's drafters pause was the ruling on Citizens United, in which the Court majority dynamited a century of precedent to overturn the ban on corporate campaign contributions. But that decision was handed down in January of 2010, three days after Scott Brown won election to the Senate from Massachusetts, in a seeming repudiation of health care reform, which deprived Democrats of their filibuster-proof majority. At that point, there was neither the time nor the legislative maneuverability to consider changing the structure of the mandate, even if someone had raised their head and said that this Court is capable of doing anything it wants to further the corporate agenda.

In contrast with the Times article, Ezra Klein has a piece in The New Yorker titled "Unpopular Mandate: Why Do Politicians Reverse Their Positions?" Klein points out that the question of the mandate's constitutionality on the right changed when conservative politicians jettisoned their own idea, the mandate, after Obama accepted it. He describes how the Republican message machine legitimized the constitutional challenge once Republican politicians did an about-face.

Two days from now the Court will weigh in. Many of those same law professors surveyed by Bloomberg predict the Court majority will ignore precedent and overturn the mandate. The have reached the same conclusion as many Americans that the Court is driven by politics, not the Constitution. I'm hoping they will be proven wrong, and that the Court will put our founding document and two centuries of precedent before the partisan, corporate agenda. But whatever they decide, I won't blame the fact that the case has gotten this far on Democrats in the White House or Congress.

Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

Congress shouldn't make working- and middle-class families pay for the repeal of a sales tax on one of America's most profitable industries.

Last week the House voted to increase health care costs on middle-class families in order to protect one of the most profitable industries in the country. And almost nobody noticed. More than three dozen Democrats, oiled by campaign contributions, joined all 233 voting Republicans in voting for a repeal of a 2.3 percent sales tax on the medical device industry included in the Affordable Care Act. They voted to pay for the lost revenues by making families who are fortunate enough to get back on their feet pay more for health coverage.

The vote last week symbolizes most everything that is wrong about our politics, and in particular the politics around the Affordable Care Act, with one very welcome exception. The White House – not known for standing up tall – promised a veto of the legislation.  

One way that the Affordable Care Act will be paid for is by new taxes and reduced Medicare revenues from major segments of the health care industry. In return, health care providers will reap greater revenues from tens of millions newly insured people and improved health coverage for tens of millions more. Medical device manufacturers got off easy with the 2.3 percent sales tax considering that, according to Forbes, the industry is one of most profitable in the country (number one on return on assets, number four on return on sales, and number nine on return on equity).

That did not stop the medical device industry from fighting the tax with the usual cry wolf tactics, saying it will cost jobs and hurt small business. An editorial from, of all places, Bloomberg News takes the industry's arguments apart, one by one. The most glaring example is the charge by the industry’s trade association, AdvaMed, that the tax would cost 43,000 U.S. jobs as manufacturers moved offshore. But since the tax applies to all medical devices sold in the U.S., there is absolutely no advantage in moving jobs offshore. Doing so won’t reduce the tax by a nickel (or a yuan).

The members of Congress who are backing repeal of the tax, led by Minnesota Republican Erik Paulson, come from states where the medical device industry is big -- and so are its campaign contributions. Paulson raked in the third most contributions from the medical supply industry of any candidate for Congress ($64,100) this election cycle. He was topped by two senators from other states with big medical device industries: Utah’s Orin Hatch ($88,399) and Massachusetts’s Scott Brown ($82,150). But it’s not just Republicans. Democratic Minnesota Senator Amy Klobuchar ($63,650) ranks just after Paulson and she opposes the tax too. All together, the industry has contributed $2.9 million to congressional candidates this year. On top of that, the industry reported $31.7 million in lobbying in 2011.

So far, this is a pretty typical story of money and politics. What makes it more reprehensible – and increasingly typical – is that in the bill the House passed last week, the industry tax break would be directly paid for by struggling working- and middle-class families.

Starting in 2014, the Affordable Care Act will provide subsidies to these families to buy health coverage if they don’t get coverage at work. The financial help, in the form of a tax credit given up front, will limit the amount of a family’s income it must pay for health insurance premiums. Under the House bill, if a family’s economic status improved, they would have to pay back the full portion of the subsidy that reflects their increased income.

Think of what this means for a family that has been struggling financially, maybe out of work or working at low-wage, part-time jobs. They’ve been barely getting by and using up their savings, but finally they get back to work or find a job that pays a decent wage. And promptly the government demands a payback of some of the money given to the family to pay for health insurance.

The payback requirement will mean that some 350,000 people – mostly women, whose income fluctuates the most – will decide against applying for subsidies and remain uninsured because of the fear of having to pay the health insurance premium credits back when their income changes.

Because the new system of subsidies does not start until 2014, it is tough to make them seem real and politically salient now. If Congress voted to penalize people when millions of newly insured families were getting subsidies, the harsh impact on people’s lives would be easy to see and understand. But since nobody is affected right now, it is much harder to make a powerful argument.

That is true for all of the core elements of the ACA and the provisions that will extend coverage to some 32 million uninsured people. If the law survives the Supreme Court and the presidential election and is implemented in 2014, Americans will find out that they will no longer have to worry that losing theirs jobs means losing their health care or fret about being turned down for coverage due to a pre-existing condition. Then ObamaCare will be both understandable and popular. 

The Republican move to make families pay back the subsidies is not the first of its kind. When the ACA was enacted, there was no provision to pay any of the money back. But since then, Democrats have twice agreed to some payback provisions as a way to raise money for other purposes. Of course, that’s not enough for Republicans. They want to force families to pay every dime back in the medical device bill. This shows the folly of Democrats ever agreeing to anti-consumer provisions to placate Republicans; it simply emboldens them to ask for more.

President Obama seems to have learned that lesson. On June 6th, the Office of Management and Budget released a statement harshly criticizing the House bill, saying that it would “raise taxes on middle-income and low-income families, in many cases totaling thousands of dollars, not withstanding that they followed the rules.” That’s the kind of language that fits in with the president’s campaign themes and the message he needs to continue to trumpet throughout the country if both he and the ACA are to survive past November.

Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

Flag image via Shutterstock.

Voters won't have to worry about losing their health insurance when they lose their jobs if Barack Obama is still president in 2014.

Massachusetts is the only state in the country where you don’t have to worry about losing your health insurance if you lose your job, and it will remain that way if Mitt Romney, the man who signed that Massachusetts bill into law, gets elected president. But if President Obama beats him, every state in the Union will join Massachusetts in 2014.

The number one issue in the election, the issue that will decide who will be living at 1600 Pennsylvania Avenue next January 20th, is jobs. President Obama’s reelection prospects will be determined by how many of the small percentage of voters who are up for grabs decide that they might as well give Romney a chance, since their economic prospects are just as shaky now as when President Obama took office. It might help if they could see ObamaCare as a jobs issue, which it clearly is.

Many of the independent voters who will determine the presidential election are confused by the Affordable Care Act, as its passage has offered no relief for a major worry in their lives: if they lose their job, they’ll lose their health insurance. Or maybe they’ve already been forced to take a job without health insurance, or are self-employed or out of work. In that case, they may well be among the 51 million uninsured Americans who are worried that one major illness will wipe out whatever financial security they have left. Other swing voters might like to leave their jobs and start a small business, but they are locked into their current jobs until they reach 65 and qualify for Medicare. All that will change in 2014 if they vote for President Obama – which they might be more likely to do if they knew that.

Starting in 2014, health insurance will be affordable for the great majority of people who don’t get coverage at work. Most will qualify for heavily subsidized private health insurance through the new health insurance marketplaces (exchanges) that will be set up in each state. Many others in low-wage jobs will be eligible for coverage under Medicaid, which will be expanded to cover families up to 133 percent of the poverty level, around $30,600 for a family of four.

ObamaCare is more than a health care bill; it is a major step toward addressing the gaping inequities in our economy, where incomes and wealth for the richest 1 percent keep rising while most Americans are treading water or drowning. Three decades ago, a job came with good health care, along with rising wages and a pension. Now only 56 percent of the workforce gets health care on the job. With the implementation of the Affordable Care Act’s coverage expansions in 2014, almost all workers will have access to affordable health coverage, even if they don’t get the insurance at work.

President Obama and Mitt Romney are both working hard to appeal to the hard-pressed middle class. For Democrats, ObamaCare should be a core part of this appeal and the most powerful rebuttal to attacks on the legislation. The president and Democratic candidates for Congress around the county can reach swing voters on health care if they make the stakes in the election very clear: a vote for Romney and Republicans in Congress is a vote to leave Massachusetts as the only state in the nation in which you don’t have to worry that losing your job will mean losing your health care. A vote for Obama and Democrats will mean that, come 2014, Americans will finally have the security that – job or not – they will have health coverage for themselves and their families.

Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

Medical bills image via Shutterstock.