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What GOP must do if health care law overturned

By Ford C. O'Connell, Special to CNN
updated 9:19 AM EDT, Fri April 6, 2012
Tea Party members protesting President Obama's health care law outside the Supreme Court on March 27.
Tea Party members protesting President Obama's health care law outside the Supreme Court on March 27.
STORY HIGHLIGHTS
  • The Supreme Court is deliberating on President Obama's Affordable Care Act
  • Ford C. O'Connell: If the law is struck down, GOP must be ready to present an alternative
  • He says there is no doubt that health care will be a highly volatile issue in this election year
  • O'Connell: Republicans should offer a free-market approach to health care reform

Editor's note: Ford C. O'Connell, a Republican strategist who worked on the 2008 McCain-Palin presidential campaign, is chairman of CivicForumPAC, an organization that promotes conservative activism. He has appeared as a guest commentator on CNN, Fox News and other TV networks.

(CNN) -- No one will know until June how the Supreme Court will rule on President Obama's Affordable Care Act. What we do know is there are three possible outcomes -- the law is upheld, struck down or struck down in part -- and Republicans must be prepared for each.

If the law, also known as "ObamaCare," is struck down -- in whole or in part -- and the GOP is not prepared, it could find itself on the losing end of a vicious battle that could lead to four more years of Democratic control of the White House and perhaps Congress as well.

On Monday, the president for the first time commented publicly on the Supreme Court's deliberations. He warned the court about "judicial activism" and "a lack of judicial restraint" -- something Republicans have said they abhor. And he cautioned the "unelected group of people" -- the justices on the court -- against "overturn[ing] a duly constituted and passed law."

Ford C. O\'Connell
Ford C. O'Connell

He walked back those comments after critics, including even liberal columnist Ruth Marcus, took issue with them.

But the message was clear. The president may say he is confident the court will uphold the law, but it seems he's not entirely optimistic.

CNN Explains: Health care reform

And if the law is overturned, we can count on the president to raise the issue on the campaign trail. It's a reasonable strategy.

Plus, "relitigating" the court decision would be better for him than to run on issues such as unemployment rate, the state of the economy or the price of gas, which he hasn't handled well. That leaves the Supreme Court.

Although it may be hard to rouse conservatives to action right now since they don't know how the court will rule, it's better to be ready than not. If the law is overturned, they will need to come up with a comprehensive alternative. They can take some time to hash out the details by engaging the public on the issue. They can start by telling voters, in the words of the Cato scholar Doug Bandow, that "ObamaCare represents extraordinary federal overreach, a bid to legislate well beyond Congress' constitutional powers."

Republicans should offer a free-market approach that ends tax-favored treatment of workplace coverage; encourages competition, even across state lines; promotes consumer choice; and somehow addresses those with pre-existing conditions. In many ways, it would mirror portions of what Mitt Romney began to outline in a recent USA Today op-ed.

The Republican plan should seek to repair what is wrong with the health care law but deal respectfully with popular provisions, such as the one that allows young adults to stay on their parents' plans into their mid-20s.

They also must force insurance companies to explain why they are hesitant to provide coverage for those with pre-existing conditions without an individual mandate. Voters will want to hear something from Republicans that indicates they know, care and want to deal with this problem.

For most Americans, health care is like plumbing: They know they need it; they don't truly know how it works, but they definitely know when it's not working. And they sense now health care is not working, and the health care law -- flawed though it may be -- represents a legitimate attempt to fix it.

There is no doubt health care will remain a highly volatile issue in this election year. If ObamaCare is rejected by the court, it would present a huge opportunity for Republicans. They could look like problem-solvers by coming up with a smart proposal that takes the best ideas from the other side. And if they can message it properly, they'll be in a sweet spot.

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The opinions expressed in this commentary are solely those of Ford C. O'Connell.

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