Is Obamacare Settled Now?

Four years ago, I wrote an op-ed in the Washington Post entitled “Why Obamacare Isn’t ‘Settled’.” In that piece, I said:

A statute or court opinion becomes settled law when there is a broad consensus that it is just. But a more practical rule of thumb is that both political parties must agree on its legitimacy . . . Once both parties agree that something is untouchable, however, only a truly extraordinary effort by citizens can bring about change. In this sense, the parties serve as formidable guardians for the rule of law.

I then pointed out that because Republicans denied that the Affordable Care Act was just, you could not say (as many Democrats were saying then) that the Act was settled law. Then I said:

Will they change their minds? What leads a political party to accept as settled law something it earlier contested? In the past, determined resistance to transformative statutes has shifted only when and if it became clear that standing on principle was doomed to fail. Party leaders either lost power or became very afraid of losing power.

Are we now at that point?  Probably.  The GOP Congress has by its inaction given its stamp of approval to Obamacare.  (Not every detail, of course, but to the basic structure.) Why did they do that? Because enough of them were afraid of losing their seats in the next election.


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6 Responses

  1. Brett Bellmore says:

    I think this fails to recognize what’s really going on.

    Essentially every last Republican member of Congress ran on repealing the ACA, and has voted repeatedly (When that vote didn’t matter.) to do so.

    Yet, when voting to repeal the ACA would result in the ACA actually being repealed, suddenly they are massively reluctant to do so. Why?

    One explanation is the one you give, that they fear the political consequences of doing so.

    But the fact that they found it politically useful to cast those votes, and ran on that position, is at least somewhat evidence against that proposition. Obviously they see a great deal of support for repeal in their districts.

    Here’s an alternate explanation: Republican office holders have *different policy preferences from their voters*. They have to pretend to have the same policy preferences in order to get elected, but are reluctant to actually implement their constituents’ preferences.

    They’re unfaithful agents for the people who elected them.

    This is why it was very difficult to get the leadership to schedule a vote on simply repealing the ACA, once voting to do so would actually be effective. Not because voting to repeal would lose them elections.

    Because voting AGAINST repeal would lose them elections. A straight up vote on repeal would cause those members who had lied about their policy preferences to be exposed, and voted out of office. The leadership didn’t want to lose members in the next election, but it wasn’t the members who voted for repeal they were afraid of losing.

    It was the members who were going to vote against repeal they expected to lose.

  2. Brett Bellmore says:

    So, does it make something “settled law” if the public still hate it, but the political class have agreed that, screw the public, it’s staying?

    Maybe. But that’s just to say that sometime democracy stops working.

  3. Joe says:

    The public doesn’t hate net what the actual law does and this is a major problem with the Republicans repealing and replacing (since once something is in place for years, hard to simply repeal) the actual law as compared to some phantasm that many think of when they say “Obamacare.” And, even the parts the public dislikes often is a result of confusion such as the cause of certain problems, the breadth of the problems and how certain things (like some form of mandate) is basic to the rest of the stuff.

    • Joe says:

      Trump, e.g., ran on making health care great, including retaining various things that ACA has or make them even better. Not just bring us the status quo ante. This all was vague, which is how politicians often succeed.

      Thus, e.g., if a change will in practice negatively affect Medicaid, it wasn’t what ‘they’ ran on in various respects.

    • Brett Bellmore says:

      I think it would be fair to day the public doesn’t, net, hate the ACA. They DO net hate what the law actually does.

      The problem is that the law was, with intent, designed to cause people to misattribute the blame for some of its consequences.

      If they’d created a straightforward, on budget welfare program, everybody could see the cost, and attribute it to the new law. Instead what they did was create an insurance regulation that compelled the insurance companies to operate the welfare program for them, so that the cost wouldn’t be attributed to the law, but instead the insurance companies. This makes the ACA artificially more popular that it would be if it were honestly constructed.

      But, that aside, the GOP electorate is heavily weighted towards people who hate the ACA anyway, and so publicly refusing to repeal it after running on doing so would be political poison in the primaries, and possibly the general election, too.

      • Joe says:

        They don’t hate net what it does either. Some parts of the public (though recent polls can be cited to show overall favorability) do not like some aspects of the law, but such is life — big things usually have imperfections or things some don’t like.

        As noted, some of this involves confusion, but not quite in the way you say. There was not the will, including public will, simply to pass a welfare program, and it doesn’t make sense sometimes to be “on budget” even when you aren’t the government. So, it passed — via a supermajority in fact — a more conservative program than that. Regulating the system and also expanding Medicaid some. Anyway, a “welfare program” alone isn’t what is necessary, at least, what was deemed so by the people’s representatives.

        The public has shown they overall like ACA though they are okay with editing it some around the edges. They don’t want some draconian changes. The Republican plan is very unpopular. This includes by a segment of the Republican electorate; combine this with the rest of the electorate [since you care about democracy and all, surely you aren’t just going to cite the Republican base here], long term, the professor might very well be right.