Mitt Romney’s performed a disappearing act of sorts during three days of hearings before the Supreme Court on President Obama’s health care law, arguably the most high-profile of issues during the 2012 election, and the motivating issue for conservative primary voters.
Romney has held just one public event, a speech at a medical device company outside San Diego, over the course of three days of oral arguments before the high court.
The Republican presidential frontrunner has good reasons to be off the trail. He’s spent the past few days raising needed money to finance his campaign, and because there is no primary until April 3, Romney is able to use this week for some down time.
But as the fate of Obama’s signature health reform law is being litigated in both the court and in the national media, Romney, perhaps by coincidence, largely ducked out of public view.
Romney’s stop Monday at Nuvasive, a spinal-surgery device company less than 10 miles from Romney's La Jolla home, included only perfunctory criticism of the health care law. The ex-governor decried the law's tax implications and said as many as 30 percent of Americans would likely lose their employer-based insurance once the law were fully in effect.
But Romney, who has famously had to wrestle with the similarities between Obama’s law and the reforms Romney had signed as governor of Massachusetts, neglected to make any direct call for its repeal, or concrete mention of how it would be replaced.
In fact, Romney, who stood in front of a giant banner reading "Repeal and Replace Obamacare," and had the same printed on a podium placard, did not once make mention of the Supreme Court case being argued that very day, the outcome of which might render the law moot before a Republican nominee is even decided. Indeed, his last major health care event came on Friday, when he held a "repeal and replace Obamacare" event in Louisiana.
The court’s decision will likely come at the end of its term in June, and the combative tone of oral arguments during the last 72 hours have led court-watchers to speculate that the court is likely to strike down part, if not all, of the law.
But regardless of the decision in June, the court’s ruling is sure to re-insert Obama’s health care law into the presidential debate. And at this juncture, it appears that Romney is the Republican likely to be left standing as Obama’s challenger when the decision lands.
It’s concerns about Romney’s ability to prosecute the case against “ObamaCare” (as conservatives have derisively called it, a term the Obama campaign recently embraced) that have prompted Rick Santorum, Romney’s primary campaign rival, to ratchet up his attacks against the former Massachusetts governor.
“There's one candidate who is uniquely disqualified to make the case. It's the reason I'm here and he's not," Santorum said on the steps of the Supreme Court on Monday, looking to drive home his point in literal fashion.
The perils of discussing "Obamacare" for Mitt Romney have been well-documented. His Massachusetts health care law, and the individual mandate upon which it rests, has been widely credited as the intellectual forebear of President Obama's federal legislation, leading White House senior adviser David Plouffe to even label Romney the "godfather" of the president’s plan.
(Romney said in response yesterday to Hugh Hewitt: “I can tell you one thing. If I'm the godfather of this thing, then it gives me the right to kill it.”)
And while Romney has pledged time and again to issue waivers for states to opt out of Obamacare, and then to eventually repeal it, any mention of the law so hated by conservatives inevitably invites comparisons with Romney's law in Massachusetts, and distracts from the governor's core message of economic expertise and of the necessity of replacing President Obama.
That’s part of the reason why Romney, at his stop on Monday, focused primarily on the economy and Obama’s controversial comment to his Russian counterpart. Any day when Romney is forced to talk about health care, it’s a day when he must play defense, and is forced to pivot away from his core message about jobs and the economy.
What’s more, Romney’s prescriptions for health reform in the absence of Obamacare – either because of its Supreme Court review, or a repeal effort – can seem somewhat vague. He wrote of the "need to limit Washington's control by spurring competition, creating maximum flexibility and enhancing consumer choice" in a USA Today op-ed. The solutions are intended to be market-based, but the candidate sometimes struggles to convey his vision for national reform.
Appearing as a guest on Tuesday's Tonight Show with Jay Leno, Romney was pressed on how he might help Americans get coverage if Republicans were to achieve the repeal of the president’s law, which guarantees coverage of individuals who suffer from pre-existing conditions.
His response – including his suggestion that those who wait until they’re sick to obtain coverage might be out of luck ("Hey guys. We can't play the game like that") – drew sharp criticism from Democrats and a pointed follow-up from Leno, who said he had auto-industry friends who were very happy to finally get any kind of coverage under the president's health plan.
"We'll look at a circumstance where someone is ill and hasn't been insured so far, but people who have the chance to be insured, if you are working in the auto business for instance, the companies carry insurance, they insure their employees, you look at the circumstances that exist, but people who have done their best to get insured are going to be able to be covered," Romney offered in response. "But you don't want everyone saying I am going to sit back until I get sick and then go buy insurance, that doesn't make sense. But you get defined rules and get people in who are playing by the rules."