A Slight Case of Bastardy
The curious and irregular conception of Obamacare
March 3, 2014, Vol. 19, No. 24
A number of apologists for the Obama administration declare themselves vexed at the ongoing hostility to the Patient Protection and Affordable Care Act (which isn't affordable, and from which many people are seeking protection), regarding resistance to its charms as a perverse and irrational gesture, uncalled for, eccentric, and strange. It's the law of the land, they tell us, passed fair
and square by both houses of Congress, crowned as constitutional by the highest court of the country, and ratified by the people in Obama's reelection. They note that other historic reforms—Medicare, Social Security—had troubled beginnings and then were embraced by the nation, and that even the Civil Rights Act of 1964, preceded by outbreaks of terrible violence, was accepted quite quickly once passed.
Not so with Obamacare, to which resistance over time has only grown stronger. "Current and former administration officials . . . have been surprised at how steadfast the opposition has remained," the Washington Post reported last summer, quoting MIT economist Jonathan Gruber saying, "It used to be you had a fight and it was over, and you moved on." But few have moved on, for reasons which are not all that hard to tease out: It's not working out, in fact it's a disaster; it's blowing holes in the federal budget; the win-to-lose balance is way out of kilter, as many more people are hurt than helped by it. Obamacare may collapse on its own for practical reasons, but there is a fourth strike against it that adds a dimension of weakness no comparable measure has faced: Much of the country believes it's a fraud, passed dishonestly, and not deserving of moral authority. In short, they find it nearly illegal, highly immoral, and possibly fattening. And their minds won't be changed.
There are written rules that make an act legal, and unwritten ones that make it legitimate, and it is the latter ones this act fails. Medicare, Social Security, and the Civil Rights Act had four things in common that made them iconic: They embodied a popular consensus that was strong if not universal; they were passed by large margins with bipartisan backing, which meant their appeal crossed many factions; they were transparent and easy to follow, so the country and Congress could make informed judgments; and they were passed by the usual order of legislative business. The Affordable Care Act, on the contrary, was passed with public opinion running strongly against it; it was passed by the minimum number of votes in the House, with no Republicans voting for it; it was passed through the Senate via a loophole, as it could not have passed through normal procedures; and it was so complex, convoluted, and incomprehensible that its contents were a mystery both to the voters and the members who passed it, and remained so until last October, three and a half years after it passed.
Medicare and Social Security were relatively simple transfers of money, paid for with taxes and given to those deemed eligible for them by virtue of circumstance, and the civil rights laws were even more simple: They gave back rights to black citizens that had been taken from them by prior government and citizen actions. Obamacare, on the other hand, was a huge, complex bill of more than 2,000 pages that aimed to remake a vast, complex health insurance system, and created large numbers of winners and losers, in ways that few understood. Much of this ignorance was created on purpose, with the full rollout suspended for years, presumably until after Obama had been reelected and the furor surrounding its passage had wound down.
"The White House systematically delayed enacting a series of rules on the environment, worker safety, and health care to prevent them from becoming points of contention before the 2012 election, according to documents and interviews with current and former administration officials," the Washington Post reported in December.
Some . . . were instructed to hold off submitting proposals to the White House for up to a year to ensure that they would not be issued before the voters went to the polls. . . . [S]talled regulations included crucial elements of the Affordable Care Act. . . . The Obama administration has repeatedly said that any delays . . . were coincidental, and that such decisions were made without regard to politics. But seven current and former administration officials told the Washington Post that the delays were clearly political.
What the administration was trying to hide became clear as the first wave of cancellations rolled through the individual health insurance market last fall, and five to eight million American citizens were told that their existing policies had been canceled, and that any new ones they might get had much higher premiums, much higher deductibles, and a much narrower selection of doctors and hospitals from which to choose.
Democrats, besieged by angry constituents, began begging Obama to issue exemptions—at least until after the midterms had passed. At first, Obamacare partisans claimed that the old plans were "crappy," and that the government had done people a favor by making insurance companies drop them, but they soon gave up on this tack in the face of derision, and began to admit that forcing people to buy narrower plans for a whole lot more money had been part of the plan from the start. "Obamacare proponents who live in the real world might admit that they planned to cancel people's individual plans all along because kicking people off individual policies is at the heart of populating the health exchanges," wrote Charles Krauthammer. "The more honest Obamacare advocates are in effect admitting that to make this omelet you have to break 8 million eggs."
The lawmakers who passed Medicare, Social Security, and the Civil Rights Act had no need to suppress or to lie about their intentions. But with the Affordable Care Act, deception clearly was key. And along with the untruths of omission, there were also a number of sins of commission, like the 29 or so times Obama personally assured the public, "If you like your plan, you can keep it. If you like your doctor, you can keep your doctor," well past the time where he ought to have known that it was a great deal more likely that you could not. But if this had been admitted at the time, the bill would never have passed Congress—and Obama by now might be an ex-president, writing his next volume of memoirs back in Hawaii, safe from the effects of the dread polar vortex, not to mention the political vortex at home.
Thus, the new health care regime in all its particulars was never really debated by Congress and was not ratified by the 2012 election, as pains were taken to make sure its true features were obscured. And saying it passed Congress fair and square only seems truthful if "fair and square" serves to describe a massive defiance of public opinion, startling levels of bribes, threats, and buyoffs, and the use of dubious sleight-of-hand measures to cancel the power of public opinion in the face of inconvenient election results.
The table was set for the last development in September 2008, when the financial collapse just seven weeks before the election turned the electorate almost en masse against the party in power, and a close contest into a nationwide rout. Democrats won the House with a 76-seat majority; in the Senate they held the magic number of 60, just enough to override a filibuster by Republicans and enact pretty much whatever they wished. At once, their eyes lit on health care, almost an afterthought in the campaign, but which overnight became their preoccupation. There was no great clamor for a health care overhaul—80 percent of the country seemed pleased with their coverage—but that barely mattered. For 80-plus years, the liberal base had longed for this moment, and for two years at least had the chance to do what it wanted. Passing a health care bill became the priority. A chance such as this was a once in a lifetime development. Who knew when it might come again?
The problem was that this did not please the voters, and the moment the outlines of the bill emerged in April 2009, they made their annoyance quite clear. There were peaceful though populous protests by the Tea Party, which emerged in opposition to the stimulus and other loose-money projects, and adopted this cause as its own. Democrats from purple and red states were raked over coals in angry town halls during the late summer recess. Obama's numbers started to drop, sliding from the very high sixties into the middle, and then the low, fifties, and, as he slipped further, pressure on Democrats in the House and the Senate increased.
Whenever it could, the public went out of its way to express its displeasure: voting for Republican governors in Virginia and New Jersey, states won by Obama, a "go slow" sign which was wholly ignored by the president's party, as it plunged ahead, pushing the bill through the Senate the day before Christmas, after the last two reluctant red-state dissenters had been showered with millions of dollars in favors. This wasn't what voters wanted to find under the tree, but Democrats still had their 60 votes in the Senate, or would have again in January when Martha Coakley won the special election in Massachusetts to fill the seat of Edward M. Kennedy, who had died in August. Massachusetts would never send a non-Democrat to fill "the Kennedy seat," as David Gergen had put it. But then Massachusetts did.
The gubernatorial elections in November 2009 had been taken as proxies for health care reform, but the December special election in Massachusetts was the third kick of the mule, and by far the most telling. Symbolically, it was held for the seat of the Father of Health Care, and one of the bill's most conspicuous backers. The governors of two big states couldn't do much to stop health care reform, but a single vote in the Senate was critical. Newly elected Senator Scott Brown had run as the "41st vote" against Obamacare. There were many reasons for people in Virginia and New Jersey to vote for (or against) their new governors. There was only one reason for people in Massachusetts to be voting for Brown.
"Elections have consequences" is a prime rule in politics, but Democrats went out of their way to make sure that this one would be the exception, as their first move after the results in Massachusetts became evident was not to rework the bill to bring it in line with the will of the public, but to game the system to close off the need for a second vote in the Senate, the will of the public be damned.
Medicare, Social Security, and the Civil Rights Act all passed by huge and bipartisan margins, with public opinion strongly in favor. Health care reform passed by 7 votes in the House, losing the votes of 34 Democrats (and all the Republicans), with a strong tide of public opinion running against it. Had there been a Senator Coakley, Republicans would have groaned, but accepted the bill as having been passed by the regular order of business. As it was, they loathed it almost as much for the way it was passed as for what was in it, and never accepted its moral authority. A Gallup poll taken on March 30, 2010, found that 53 percent of Americans considered the way the bill passed an "abuse of power" by Democrats as against 40 percent who found it "appropriate," with 86 percent of Republicans and 58 percent of independents concurring in this negative judgment. Time has done nothing to soften these views.
Ultimately, acts of Congress gain their legitimacy in the way they win or reflect the will of the public, as expressed in the way they are passed. The Civil Rights Act, as Michael Barone reminds us, took place against a background of violence, but the careful and orderly way it was passed helped defuse opposition, and the much-feared resistance to it would never materialize. Full compliance, he notes, was not immediate, "[b]ut after Congress acted in such a deliberate fashion . . . white southerners largely acquiesced." No such deliberation was ever to be seen in the passage of the Affordable Care Act, and acquiescence eludes it, as does the conviction that it is legitimate. It isn't—and never will be.
Noemie Emery is a contributing editor to The Weekly Standard and a columnist for the Washington Examiner.
Copyright 2014 Weekly Standard LLC.