Obamacare: The Law of the Land, But Still Not Settled Law

Image: Supreme Court Issues Ruling In Hobby Lobby ACA Contraception Mandate Case

WASHINGTON, DC - JUNE 30: Microphones are set up in front of the U.S. Supreme Court, June 30, 2014 in Washington, DC. Today the high court is expected to give its ruling on whether a private company can be exempted on religious grounds from health care reform's requirement that employer sponsored health insurance policies cover contraception. (Photo by Mark Wilson/Getty Images) Mark Wilson / Getty Images

Obamacare -- the law of the land, but still not settled law

Tuesday was a day of whiplash for the Affordable Care Act. In the morning, National Journal reported that health-care premiums for next year -- contrary to some of the political wisdom -- are not skyrocketing, which was good news for the Obama administration. Then came the bad news: In a 2-1 ruling, the D.C. Circuit said that (due to the law’s wording), only state-based exchanges could award subsidies to low- and middle-income Americans purchasing health insurance. If that stands, such a ruling could potentially gut the health-care law, because these Americans living primarily in red states would see their health-insurance costs increase. But then came another decision: In a 3-0 ruling, the 4th Circuit Court of Appeals reached the exact opposite conclusion -- the law was always intended to provide subsidies to Americans, not matter if it was on a state-based exchange or a federal one. So what do we make of yesterday’s whiplash of news? The 2010 Affordable Care Act is still the law of the land, but more than four years later, it still isn’t SETTLED law of the land, especially with one political party trying everything it can to undermine it. Now the subsidy case will head to the full D.C. Circuit and possibly even the Supreme Court (though that isn’t a sure thing, especially if the full circuit upholds the subsidies and suddenly there isn’t a conflict between circuits for the high court to weigh in on). Yet it is possible that this case could very well be the LAST major legal challenge -- at least on the immediate horizon -- to the law’s future.

A clever GOP legal strategy, but a riskier political one

Make no mistake: The conservative legal strategy against the law (whether it was targeting the Commerce Clause or now this wording of the subsidies) has been very clever and almost effective. Politically, it’s also been VERY effective. But this legal strategy also creates a difficult longer-term political strategy for Republicans: Do they end up paying a price for wanting to take away benefits Americans are getting under the law? Yesterday, we saw Republican after Republican praise the D.C. Circuit ruling (even after the the 4th Circuit ruling came out), but it also raised a tricky follow-up question. Does that mean they support these Americans having to pay MORE for health care? All along, Republicans have charged that the law will hurt Americans’ pocketbooks. But then how do you cheer for a court ruling that would effectively increase health costs for Americans living in states that didn’t set up their own exchanges?

A reminder how political the courts are today

A final point on yesterday’s Obamacare legal rulings: They’re yet another reminder of how POLITICAL the courts are today. The two appeals judges who ruled against the Obamacare subsidies were all appointed by Republicans; the four appeals judges who ruled in favor of the subsidies were appointed by Democrats. And while the courts often have a perception of being above politics, yesterday’s back-to-back rulings certainly contradict that. And as we mentioned above, the D.C. Circuit ruling now likely will head to the full circuit, where there are more Democratic-appointed judges than GOP-appointed ones -- thanks to Harry Reid’s decision to change the filibuster rules on judges. Of course, the courts are now doing the basic “legislative” fixes that Congress used to do. But since Congress has essentially grounded to a halt, it’s now in the hands of the courts to figure out even the most basic ways for a law to be enacted.

Perdue beats Kingston in Georgia

In a bit of a surprise last night, businessman David Perdue beat Rep. Jack Kingston (R-GA) in the Senate GOP runoff for the right to face Democrat Michelle Nunn in the fall. Perdue got 51%, while Kingston got 49%. In the general election, Democrats will hope to go after Perdue’s political inexperience and his business background (trying to “Mitt Romney” him), while Republicans will want to use Georgia’s red-state nature and Obama’s unpopularity against Nunn. While you can’t say that Perdue’s last-minute negative TV ad hitting Kingston on immigration was decisive in the runoff, you CAN say a Republican has never paid a price in a GOP primary for going hard to the right on immigration. There is more reward than penalty, and it’s likely that dynamic won’t change in 2015-2016.

So many bad polls out there

One more point on the Georgia contest: Yes, Perdue’s win contradicted the existing polls, but they weren’t good polls -- which is why, for instance, you never saw us make note of them. We do try and only highlight pollsters who have good methodology and decent track records. In Georgia during this runoff campaign, that didn’t exist. Folks, we’re living in a political age where so much of the data is coming from surveys with either questionable methodology (like not reaching those with cell phones) or with partisan manipulation. And so it’s a reminder to take them with a grain of salt, especially in a low-turnout runoff. And it also means: Be very careful of these aggregation polling sites. They don’t always make the data better… there are actually polling firms out there who seem to have been created for the sole goal of influencing or balancing out these aggregation sites. To the folks who run these aggregation sites, realize that when you mix crap with sirloin, it makes the sirloin taste like &$#% too.

FL GOV sums up this election cycle

But a polling outfit with a pretty good reputation -- Quinnipiac -- has some very interesting findings on the highly competitive gubernatorial race in Florida. It shows Charlie Crist (D) narrowly ahead of incumbent Gov. Rick Scott (R) among registered voters, 45%-40%. What’s interesting is that the polling data sum up this election cycle in a nutshell: Both Crist (40%-42%) and Scott (40%-45%) have upside-down fav/unfav ratings, and when a third-party candidate is added to the mix (Libertarian Adrian Wylie), he gets 9% of the vote (versus 39% for Crist and 37% for Scott).

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