This is a guest post from Eric M. Patashnik and Jeffery Jenkins. Patashnik is professor of public policy and politics in the Frank Batten School of Leadership and Public Policy at the University of Virginia. Jenkins is associate professor of politics and a faculty associate of the Miller Center of Public Affairs at the University of Virginia. They are the coeditors of Living Legislation: Durability, Change and the Politics of American Lawmaking.
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The Supreme Court is expected to rule on the constitutionality of the Affordable Care Act in June. If Intrade is right, there is about a 60 percent chance that the individual mandate will be found unconstitutional. But suppose the smart money is wrong and the mandate is upheld. Will the Affordable Care Act then be completely secure?
Not necessarily. While a Supreme Court victory would be a huge legal victory for the Obama Administration, the main impact of the Court’s decision will be to shape the political ground on which the health reform struggle will continue.
One reason why the political fight over Obamacare may not end is because the law was passed narrowly, without a single Republican vote in either chamber. That’s a departure from how major social welfare legislation is usually enacted in the United States. The Social Security Act of 1935 was supported by strong majorities of Republicans in the House and Senate on final passage. The final votes on Medicare in 1965 were closer, but that law still won the support of a narrow majority of House Republicans and almost half the GOP Senators. To be sure, there were far more centrists in Congress during the New Deal and Great Society years—but this just underscores how difficult it is to enact and entrench sweeping social welfare legislation in an era of partisan polarization.
A second reason why the fight over health reform may continue is the program’s slow phase-in. The major insurance reforms, consumer subsidies, and Medicaid expansion don’t start until 2014. It may therefore take years for the legislation to build a reliable constituency.
Obamacare is hardly the first landmark law to undergo a long struggle for political acceptance following enactment. Today Social Security is dubbed the “the third rail of American politics.” But the Social Security Act of 1935 was challenged in both court and at the ballot box. Even after FDR defeated Alf Landon (who had campaigned against the program) and the Supreme Court upheld the constitutionality of old-age insurance, Social Security struggled to gain legitimacy. The conservative resistance to Social Security persisted until President Dwight Eisenhower signaled his acceptance of the program.
Washington insiders are so occupied with getting laws passed that it is easy to forget that a law’s enactment is often only the opening move of a larger political drama. Sometimes laws generate durable legacies. The Civil Rights Act of 1964 is one such example. At other times laws are reversed or fade away. (See “Medicare Catastrophic Coverage Act, humiliating repeal of”). Ultimately, what matters is not adding words to the statute books. What matters is solving national problems and changing how government operates, which usually requires laws to possess some measure of durability.
In recent years, political scientists have gained insight into why some laws and programs are vulnerable to amendment or outright repeal. One key factor is the impact of election results on the partisan composition of Congress. Christopher Berry and William Howell of the University of Chicago and Barry Burden of the University of Wisconsin have shown that programs are susceptible to termination, spending cuts, and other changes when the Congress that inherits them differs in partisan terms from the Congress that created them. The Affordable Care Act was passed under unified Democratic control but (in part due to the opposition that health reform sparked) the Democrats lost their House majority in the 2010 midterms. If President Obama wins reelection, Republicans in Congress might decide that the American public has blessed the bill and throw in the towel, but it is just as likely that rearguard conservative attacks on the program will continue. Outright repeal likely won’t occur even if Mitt Romney is elected president because Senate Democrats will be able to defend the law through the filibuster. But if Republicans win the White House and both chambers in the November elections, they may use the budget reconciliation process (which requires only 51 votes in the Senate) to strip out the measure’s funding.
The vulnerability of a law is also associated with the level of support that it had at enactment. Forrest Maltzman of George Washington University and Charles Shipan of University of Michigan have found that the greater the roll call opposition when a bill is passed, the more likely the law is to be amended by a subsequent Congress. A closely contested roll call vote (such as on Obamacare) not only indicates an initial lack of broad support but also makes it easier for opponents to say “we told you so” when problems emerge during the law’s implementation.
On the other side of the scale are factors that serve to promote a law’s durability. The most important is the inertia built into the structure of American political institutions. Once a law is passed, it becomes the new status quo ante, and people who want to amend or repeal the law have to overcome the barriers to legislative action. But a negative Supreme Court decision would reverse this situation. If the mandate is found unconstitutional, President Obama (if reelected) will need Congress to adopt a legislative fix to ensure that the program is workable. Conservatives will then be able to unravel the core of the law simply by blocking new legislation.
Another factor that can promote a law’s sustainability is the reactions it generates among key constituencies. It would be risky for conservatives to applaud the law’s collapse if Obamacare were overwhelmingly popular—but it isn’t. Public opinion about the law remains divided. The fact that the major new benefits contained in the legislation (with some key exceptions such as the provision allowing young adults under 26 to stay on their parents’ health insurance) won’t begin for two more years means that for most Americans health reform remains only an abstraction. Unlike beloved programs such as Social Security, Obamacare hasn’t yet been woven into the fabric of people’s lives or caused citizens and firms to make plans on the expectation that the program will continue. There certainly will be pressure on Republicans to address the health care system’s glaring cost and access problems if the mandate is tossed out (especially if the insurance reforms unravel too) but President Obama will be in a far weaker bargaining position after a Supreme Court defeat than he would have been if the legislation’s benefits had been front-loaded and better targeted at the majority of Americans who already have reasonable coverage.
In sum, how the Supreme Court rules will be a key factor in the Affordable Care Act’s political fate—but the partisan and ideological struggle over health reform is likely to continue under any scenario.