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Obamacare Remains an Unsettled Law, and Will Continue to Be (Washington Examiner) December 18, 2018

Posted by daviddavenport in Op/Eds.

Have you noticed that some laws seem to settle the matter in question while others do not? Some expected Republican President Dwight Eisenhower to reverse Democratic President Franklin Roosevelt’s sweeping New Deal initiatives, including Social Security, but he did not. President Richard Nixon accepted his predecessor President Lyndon Johnson’s vast expansion of the welfare state with Medicare and his war on poverty.

But Obamacare? Not so much. Even though the bill came into law in 2010, Congress has held more than 70 votes to repeal it in whole or significant part, and dozens of court cases have continued to challenge it, including the recent decision by a federal judge in Texas to declare it unconstitutional as revised.

Simply passing a law and seeing it signed by the president was obviously not enough to settle Obamacare. Similarly, though the Supreme Court declared abortion legal in 1973, it has continued to be challenged in both state legislatures and courts. Meanwhile, major legislation such as the adoption of Social Security or Medicare have become settled law. What, then, contributes to an issue being settled or not settled in public policy?

One large factor that has left Obamacare unsettled is that it was enacted with no Republican support. Whereas Social Security, Medicare, and even civil rights were all adopted with bipartisan support, Obamacare was passed on a purely party line vote of Democrats. As the car mechanic in an old repair commercial used to say, “You can pay me now, or you can pay me later.” Applied here, the choice faced by presidents and legislatures is taking the time and making the compromises necessary for bipartisan support, or forcing something through on a party-line vote. The latter approach leaves the legislation with weak overall support, and an invitation for a later Congress or president to challenge or change it.

We now live in a time when Congress is sufficiently divided and weak, and little actual deliberation or action occurs there. Presidents are tempted to use executive orders or party-line votes to get things done. Courts now decide many of the important social questions of our day, such as abortion and same-sex marriage. Again, those weaker forms of action that do not build a strong, bipartisan constituency often do not settle the matter, and the war continues. The key to a strong policy is the consent of the people, and that comes through bipartisan support in the legislature, not in unilateral action by one president, nine judges, or a single political party.

The leads to a second reason why Obamacare is unsettled: We live in a time of political warfare in which everything is subject to attack. Rather than compromise, political leaders are willing to see the government shut down to get their way. Major bills are held by party leaders in secret and then sprung on the Senate for quick passage. The Senate review of Justice Brett Kavanaugh’s nomination reached a point of no-holds-barred open warfare. One can only hope that public policy as war has not become the new normal in our nation’s capital.

Yet a third reason why Obamacare is still unsettled is that it relied on the states for execution, without involving the states in the process. It imposes significant new Medicaid costs on the states, and engages them deeply in carrying out the law. Consequently, states have been major players in bringing legal challenges to Obamacare. At the same time, the individual mandate was a sweeping change that invited further challenges. Remaking the nation’s entire healthcare system in this way made it virtually certain that the field would be unsettled for years, perhaps longer.

Sweeping change demands lengthy deliberation and strong, bipartisan support. If you want to cut short the political deliberative process (relying instead on a court decision, an executive order, or a party-line vote) you may win the battle, but the war continues, with similar tactics used against the new law.

Obamacare is not settled and may not be for a good, long while.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

To read the column at the Washington Examiner:


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