Construction Literary Magazine

Fall 2020

Politics and the Affordable Care Act

Politics and the Affordable Care Act

Photograph via Buzz About Politics

Sometime before the end of June, the Supreme Court will issue its decision on the constitutionality of the Affordable Care Act, and specifically on the constitutionality of the individual mandate. When the decision is announced, Sam Ennis and I will be engaging in an email exchange for Construction breaking down the decision and looking at its policy, legal, and political implications. Sam has already previewed the stakes of the decision from a policy standpoint and for the Court. In this post, I’m going to preview the impact the decision is likely to have on the presidential campaign.

There are three possible ways the Court could come down. It could uphold the entire law, it could strike down the entire law, or it could rule the individual mandate unconstitutional but uphold the remainder of the law. In looking at what these outcomes would mean politically, it’s important to note that while the Affordable Care Act as a whole has become unpopular, nearly all of its provisions on their own have broad support. In March, the Kaiser Family Foundation conducted a poll on people’s attitudes about the Act and the Supreme Court, including asking people whether they favored specific provisions of the Act. Of the twelve specific provisions included in the poll, only the individual mandate was favored by less than a majority of those surveyed, with support for other provisions ranging as high as 80%. Unfortunately for the president, the individual mandate is also the provision that the highest number of people are able to recognize as being a part of the law.

The broad takeaway is that President Obama has little to gain from a favorable decision but a great deal to lose from an unfavorable decision. (Again, I’m focusing only from a political standpoint—Sam has already done an excellent job showing what we all stand to lose if the Act is struck down.) If the Act is upheld, it won’t suddenly switch from being unpopular to popular. Several commentators have noted that questions over the Act’s constitutionality did not rise to prominence until fairly late in the debate. By that point, Republicans had already waged an effective—though morally bankrupt and terribly dishonest—public relations campaign against the proposed law. The Kaiser poll shows that whether one believes the Act is constitutional is highly correlated with whether one favors the law overall, but the timing of when arguments were made and when public opinion became polarized suggests that opinion on the policy drives opinion on constitutionality, not vice-versa. A decision affirming the Act’s constitutionality is unlikely to change any minds about the policy. Given that it will almost certainly come from a closely divided Court with a scathing dissent, a favorable decision probably won’t even change many minds on whether the Act is in fact constitutional.

Indeed, a decision affirming the Act’s constitutionality likely will not even attempt to change minds on the policy contained in the Act. More likely, the majority opinion will be full of language to the effect that important policy decisions should be left to the political process rather than the courts, with Congress and the president being held accountable by voters rather than judges. Even with a favorable decision, President Obama and Congressional Democrats still have a hell of a fight on their hands on the political front. The Kaiser poll shows that the president has a strong case to make to improve public opinion on the Act, but a favorable Court decision only makes that possible, not easier.

The Court striking down the individual mandate but upholding the remainder of the law would be, perhaps, the best result politically for President Obama. From a policy standpoint, it would create chaos: allowing people to take advantage of the Act’s reforms if they get sick with no requirement that they buy insurance when healthy would drive up premiums for everyone and leave us far short of the Act’s goal of universal coverage. But this is an election year, no time for difficult questions of public policy! Taking the individual mandate off the table would allow the Obama campaign to refocus the health care debate on the more popular provisions of the law. Republicans would no doubt attempt to keep the individual mandate in the spotlight, attacking the president for attempting to unconstitutionally intrude on individual freedom. But the law on the books would be a very popular one, and we could deal with the thorny question of how to actually make the health care system work after November.

Finally, despite James Carville’s optimism, a ruling striking down the entire Affordable Care Act would be a political disaster for the president. He would be stuck with all the negatives—all the ill will created in the long and ugly process of passing the bill, all the misconceptions about what it would and would not do—without any of the positives. Sure, he could still argue that the Act’s critics have got it all wrong, but he would be doing so entirely from a defensive position— “What I was trying to do is actually pretty good!” hardly screams “four more years!” Carville may be right that it converts health care into a winning issue for Democrats in the long term, but in the short-term it damages the president, and, given how difficult it was to pass this bill through a heavily Democratic congress, it’s hard to imagine Democrats getting the stomach for another health care fight any time soon if the efforts of 2009-10 end up being for naught.

The Supreme Court striking down the Act would also take away the strongest argument Democrats have against Republicans on the issue—that “repealing Obamacare“ necessarily requires repealing the Act’s popular as well as its unpopular provisions. Republicans have already signaled that, if the Supreme Court does the dirty work of wiping the Act off the books, they will take the cynical tack of pretending like they were for the Act’s more popular provisions all along, even though these provisions without the mandate make no policy sense.

The importance of the Affordable Care Act and the coming Supreme Court decision extends far beyond this election. Turning what should be the strongest reason for re-electing President Obama into (even more of) an electoral liability would be just one of the many tragic outcomes of the Court striking down the Act. Having the Act repudiated would be a bad outcome regardless of how it happens, but the president at least deserves the opportunity to put the case to the entire country, rather than the nine members of the Supreme Court.