For five years, the Affordable Care Act, or “Obamacare” to use a word first coined by critics of the plan to reform health care coverage that has now been adopted by those who favor the plan, has been at the center of Republican attacks against the President. Before the ink was even dry on the law in March 2010, Republican politicians and conservative pundits set their sights on the law and used it to help fuel the political movement that vaulted the GOP in to control of the House in November of that year. Once they had control of one chamber of Congress, Republicans engaged in repeated efforts to try to repeal the law that would always end up dying the Senate. By the time the 112th Congress came to an end, in fact, the House had voted to repeal all or part of the law more than fifty times, and additional efforts would be made during the 113th Congress as well. During the 2012 campaign, Republicans were convinced that public opposition to the law would play a big role in unseating President Obama, even though they nominated the man who had signed a remarkably similar law into effect when he was Governor of Massachusetts. Even after losing the election, Republicans continued their efforts to attack the law, and in October 2013 they went as far to shut the government down in what turned out to be a doomed effort to “defund” the law. Meanwhile, the law itself went into effect and, while implementation has been rocky and their have been reports of increased costs and premiums, for the most part it appears that the forecasts of doom made by many critics have not come to pass, at least not so far.
Outside of the political world, the ACA also came under attack in the courts as numerous states and private defendants filed lawsuits alleging that the law was unconstitutional, specifically with regard to its requirement that all Americans who aren’t covered by an employer-provided plan either purchase insurance or pay a fine that was imposed via the Internal Revenue Service. Several of those lawsuits succeeded at the lower court level, including at the 11th Circuit Court of Appeals and there were many on the right who hope that the Supreme Court would follow those precedents and strike the law down. In June 2012, though, a closely divided Court upheld the law as a proper exercise of Congress’s power not under the Commerce Clause as many anticipated, but under the Taxation Clause. In later years, the law has faced challenges related to requirements that employers cover contraceptives in insurance plans provided to employees, the system used to control health care costs, and, most recently, the subsidies provided to consumers based on their income. While some of these challenges have been successful, none of them attacks the core of the law the way that the original lawsuit did.
Now, as we head into the 2016 Presidential election The Los Angeles Times’ Noam Levey notes that Republicans have largely abandoned their efforts to take the law down:
After five years and more than 50 votes in Congress, the Republican campaign to repeal the Affordable Care Act is essentially over.
GOP congressional leaders, unable to roll back the law while President Obama remains in office and unwilling to again threaten a government shutdown to pressure him, are focused on other issues, including trade and tax reform.
Less noted, senior Republican lawmakers have quietly incorporated many of the law’s key protections into their own proposals, including guaranteeing coverage and providing government assistance to help consumers purchase insurance.
And although the law remains very unpopular with GOP voters, more than 20 million Americans now depend on it for health benefits, making even some of the most conservative Republicans loath to cut off coverage.
Facing the prospect that the Supreme Court this year could strip away insurance subsidies provided through the law in most states, several GOP lawmakers have proposed extending the aid, perhaps even until a new president takes office.
At the same time, the presumed Republican presidential front-runner, former Florida Gov. Jeb Bush, has shown little enthusiasm for a new healthcare fight. Last year, he even criticized the repeal effort.
Republicans who still demand a repeal, including Sen. Ted Cruz of Texas and Louisiana Gov. Bobby Jindal, appear to be long shots for the presidential nomination.
“Only 18% of Americans want to go back to the system we had before because they do not want to go back to some of the problems we had,” Whit Ayres, a veteran Republican pollster who works for presidential candidate Sen. Marco Rubio of Florida, said at a recent breakfast hosted by the Christian Science Monitor.
“Smart Republicans in this area get that,” he added.
These developments have sapped enthusiasm among Republican leaders for “pulling out Obamacare root and branch,” as Senate Majority Leader Mitch McConnell (R-Ky.) once put it.
Instead of trying to repeal the PPACA, many of the central parts of the law are now part of health care reform ideas being put forward by Republicans on Capitol Hill:
No longer is the party proposing to overhaul the employer-based system that most Americans rely on for health benefits, as Sen. John McCain (R-Ariz.) did when he was the presidential nominee in 2008.
Nor are party leaders pushing plans that don’t meaningfully expand coverage, as House Republicans did in 2009.
In fact, the most fully developed GOP healthcare plan at the moment not only preserves the employer system, it essentially keeps many provisions of the Affordable Care Act, though sometimes in a different form.
The proposal — by Sen. Richard M. Burr (R-N.C.), Senate Finance Committee Chairman Orrin G. Hatch (R-Utah) and House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) — would guarantee coverage to Americans even if they are sick, a protection that was a watershed when it was enacted in the 2010 law.
The Republican outline would ban insurance companies from imposing lifetime limits on coverage, allow young adults up to age 26 to remain on their parents’ health plans, and create a system of tax subsidies to help Americans buy coverage. All are pillars of the current law.Like the current law, the proposal includes a system for penalizing people who don’t have health insurance, although the mechanism is different than the current tax penalty.
And the Republican plan, like the current law, relies on cuts in Medicare spending and a new tax on employer-provided health plans with particularly rich benefits.
“This acknowledges that the ACA is the law and … you have to start with what is there and build on it,” said former Utah Gov. Mike Leavitt, who served as Health and Human Services secretary in the last Bush administration. “The recipe is to begin pushing it philosophically to the right.”
One indication of how things have changed inside the GOP regarding the law can be seen in how many Republicans are reacting to the possibility of a Supreme Court decision later this year in a case that could cause serious problems for many of the Americans who have purchased insurance under the law. In that case, King v. Burwell, the Court is being asked to determine whether the language in the law allows for subsidies to be paid to consumers regardless of whether they purchase insurance on an exchange established by the Federal Government, or one established by individual states. The Plaintiffs in that case, of course, have argued that the language of the law, as written, only authorizes subsidies for insurance purchased on state exchanges and, as I’ve noted, it is a persuasive argument. If the Court rules for the Plaintiffs, then it would potentially mean that millions of people who have purchased insurance on the federal exchange would suddenly lose their subsidies and be forced to either pay substantially higher premiums, or lose their insurance. In response, several Republicans on Capitol Hill are proposing legislation that would allow the subsidies to continue for 18 months or more to give Congress time to come up with a solution. This is markedly different from attitudes expressed by politicians on the right in the past, which can essentially be summed up by the phrase “let it burn.”
Part of what’s happening here, of course, is a recognition of political reality. Even with Republicans controlling both the House and the Senate, a bill to repeal the Affordable Care Act would never become law as long as Barack Obama is President. Even if the GOP wins the White House in 2016 and holds on to to Congress, Democrats in the Senate would be able to use the filibuster and other parliamentary procedures to block efforts to repeal the law. Additionally, even taking into account the fact that the Affordable Care Act remains unpopular according to the polls, there seems to be little support for repealing the law in its entirety and returning to the status quo that existed before 2009. This seems to be especially true regarding aspects of the law that are popular on their own, such as the bar on denying coverage for pre-existing conditions, the elimination of the lifetime cap on coverage, and the rules that allow parents to keep their children on their policies until they are as old as 26. Additionally, as I noted prior to the 2014 elections, while the initial roll out of the law was nothing short of a disaster, the news since then regarding the law has been generally positive. For example, recently Gallup reported that the percentage of Americans who were uninsured had fallen to its lowest level since they began tracking that statistic in 2008. To supporters of the law, of course, this is an indication that the law is working. For the average Americans, news like this likely tends to reduce some of the doubts about the law that were allowed to fester during the three year period before it actually went into effect. Given all of this, it isn’t entirely surprising that Republicans are, for the most part, scaling back on their rhetoric regarding the law and looking at ways to reform the law through the legislative process rather than repealing it completely as they tried many, many times after taking control of Congress.
None of this is to suggest, of course, that Republicans have suddenly become fans of the Affordable Care Act. You’re still going to hear candidates for Presidents criticizing the law on the campaign trail, for example, and some of them will still be talking about wholesale repeal. Additionally, the political battles over some of the reform ideas being batted around by Congressional Republicans are likely to be just as contentious as the battle over the Affordable Care Act itself. At the same time, though, it’s rather clear that the GOP has changed its tune on the Affordable Care Act and that, while there will be efforts to reform the law, in some cases in fundamental ways, the basic structure of the law has become so embedded in the economy now that the chances it will ever be repealed in toto are fairly low.
