How secure is health reform?

This is a TIE-U post associated with Nick Bagley’s Health Reform and Its Legal Controversies (Michigan Law 866, Fall 2015). For related posts, see the course intro.

Class last week focused on the process, by turns ennobling and ugly, of pushing the Affordable Care Act through Congress. Five years later, President Obama has been reelected, the ACA has withstood two major challenges in the Supreme Court, and the Act has reduced the ranks of the uninsured by 16 million. Is it here to stay?

After the second Republican presidential debate, Jonathan Cohn at the Huffington Post observed that the ACA hardly came up at all. Perhaps, he suggested, we’re witnessing the end of the relentless efforts to dismantle the ACA. Too many people now have insurance to wrench it away. Republicans may hate the ACA, but they know they’re stuck with it. Ezra Klein has made a similar argument at Vox.

Maybe that’s right. But when Cohn recently moderated an ACA panel at an event here at the University of Michigan, he reminded the audience that he’s predicted several times that Republican hostility to the ACA was beginning to wane. Every time so far, he noted wryly, he’s been wrong.

One of my co-panelists, John McDonough, as astute an observer of health politics as I know, said he thought there was still substantial reason to worry about the ACA. The Republicans could win the presidency in 2016 and retain control of the House and Senate. And in the Senate, much of the ACA could be dismantled through reconciliation, neutering the Democrats’ filibuster threat. With control over the executive and legislative branches, why wouldn’t the Republicans do exactly what they’ve promised to do?

Yes, they’d pay a stiff political price for tossing millions of people off the insurance rolls. In the run-up to King v. Burwell, for example, the consensus was that a ruling in plaintiffs’ favor would be bad for the Republican party. Privately, many conservative legislators were relieved that the Court ruled for the government.

But what happens if, say, Marco Rubio wins the White House and those same Republicans are pushed to take a public vote? Almost every single Republican in Congress has already voted for repeal—most of them many, many times. Voting against repeal would look like hypocrisy. (“I only voted for repeal when I knew it was futile.”) Worse, it would guarantee a primary challenge in many districts. Even if repeal is bad for the Republican party, it may not be bad for Republican legislators.

Sober-minded Republicans would surely insist on coming up with a replacement before moving to repeal. But the repeal-and-replace strategy is only plausible if the Republicans can coalesce around an alternative. As we’ve seen time and again, they can’t.

If replacing the ACA isn’t realistic, repealing or maiming it starts to look more attractive. Indeed, Republicans are already pushing a damaging reconciliation bill through Congress. As McDonough noted yesterday, this is the first piece of anti-ACA legislation that President Obama will have to veto.

It’s too soon, I think, to be complacent about the future of the ACA. The 2016 presidential election will be critical, whether or not health reform gets much airtime. The ACA isn’t out of danger yet.


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