As the Republican alternative to Obamacare winds its tortuous way through Congress, the parallels with the big mistake President Barack Obama and congressional Democrats made eight years ago are unmistakable. Such large changes to society should only be done with a broad coalition, otherwise they risk being undermined by our very system of government.
The grand bargain at the heart of America’s constitutional system is consensus yields power. After years of unfair treatment at the hands of King George III and Parliament, the young republic was understandably hesitant to centralize governing authority. It was only due to the many crises of the 1780s—unmanageable public debt, interstate rivalries, foreign interference, and civil unrest—that Americans decided to empower a national government. But there was a catch: Our government would be capable of doing many great things, but only when a broad segment of society agreed on the actions. By widely separating powers, the Framers effectively created a diverse array of veto points where social groups that felt their rights were about to be infringed could organize to stop the government in its tracks.
We have come a long way from this original vision. In many respects, power has become far more centralized in recent decades. But the centralizing tendency has been countered in other ways. For instance, the federal government regularly uses intermediaries to accomplish its purposes. Take Medicaid—a partnership between the federal government and the states, which gives the latter a role in deciding how public benefits will be distributed. Medicare, for its part, provides no direct benefits to citizens, instead relying on doctors and hospitals to voluntarily agree to the terms the government has set. There is also the filibuster—the rule in the Senate that empowers a minority of 41 members to prevent a final vote on all manner of legislation. This is not a legislative instrument the Framers created, but it is consistent with the idea that any new policy needs broad-based support.
Interestingly, President Barack Obama—who lectured on constitutional law at the University of Chicago—failed to appreciate this as he pushed the Affordable Care Act (ACA) through Congress in 2009 and 2010. Though the policy was extremely divisive, he and his congressional allies rammed it through anyway. Their insistence on reorganizing the American health care system without a broad coalition created a number of negative side effects.
When the voters of Massachusetts elected Scott Brown in 2010, they empowered Senate Republicans to filibuster the conference report that reconciled the House version of Obamacare to the Senate version. In response, House Democrats decided to approve the Senate bill as it stood. Unfortunately, that piece of legislation had a number of poorly written sections. For instance, the main point litigated all the way to the Supreme Court in King v. Burwell was that the Senate bill seemed to provide public subsidies only for states that set up their own exchanges. The Court did the Obama administration a favor by effectively looking the other way on what was, at best, a sloppily worded provision. This is the sort of error that could have been rectified in a conference between the House and Senate. But because the Democrats did not have a sufficiently broad consensus at that point, they could not finish the process properly.
Or consider the Independent Payment Advisory Board, the agency tasked with finding savings in the Medicare program. It was to be a key cost-saving provision of the ACA, but IPAB has precisely zero members. The reason? IPAB’s 15-member board is to be nominated by the president and confirmed by the Senate, which requires a degree of consensus on how to manage Medicare costs. No such consensus exists.
Additionally, the ACA assumed a wide-ranging federal-state partnership. The states would be tasked with setting up online health exchanges, and would receive money for expanding their Medicaid rolls. But many states balked at the terms of this deal. So the federal government had to build an online portal for most of the nation, which as we all remember crashed in spectacular fashion.
These are the sorts of problems that arise when one faction of society decides to force big changes on their fellow Americans. Our system of government is designed to resist such impositions, which helps explain why the ACA has fallen far short of the heady promises Obama made eight years ago.
Unfortunately, Republicans are on track to “fix” Obamacare in a similarly one-sided manner. As problematic as Obamacare is, there is no broad consensus on how to fix it, or even that it should be fixed. Republicans have majorities in both chambers of Congress, but they are relatively narrow, especially in the Senate. The GOP is eight votes short of stopping a Democratic filibuster, which means that for all intents and purposes, there is no way to get a full repeal-and-replace bill to President Donald Trump’s desk.
As a workaround to this, congressional Republicans are planning to use a process known as “budget reconciliation,” which eliminates the 60-vote Senate threshold on matters of taxes and spending. This was originally intended to make it easier for the Senate to reduce the deficit, but Congress has become increasingly bold in its use of what was once a small loophole, and the GOP is pushing the boundaries further than ever.
This is a major reason why the House bill retains so much of Obama-care’s original structure. Under the Senate’s rules for reconciliation, provisions that do not relate to spending and taxes are subject to a 60-vote threshold. So, much of the Affordable Care Act has to stay.
House speaker Paul Ryan promises that reconciliation is just the first part of a three-prong process, with the second being administrative actions by the Department of Health and Human Services to alter the implementation of Obamacare, and the third being a traditional piece of legislation to implement certain reforms, like allowing interstate competition among insurers. But it beggars belief that this final piece of the puzzle will ever come into place. If Republicans cannot meet the 60-vote Senate threshold for the relatively modest changes in their reconciliation bill, there is no reason to think they can pass a broader reform package.
So, what is to be done? The answer is: probably nothing, or at least nothing very good. The Republicans lack sufficiently broad majorities to implement a comprehensive and sensible alternative to Obama-care. Whether they can manage to get this half-a-loaf passed is in doubt, but even the best-case scenario is a final piece of legislation that mostly tinkers at the margins. There is simply no consensus to do anything more than that.
In retrospect, Republicans erred years ago, by refusing to speak plainly to voters about what they can and cannot do. Obamacare could probably have been knocked out via reconciliation before its main benefits started to be delivered in 2013. This means that the election of 2012 was the referendum on the bill. As they often do, the voters returned a split decision—reelecting Obama and House Republicans. After that, Republicans could have explained that a full replacement would henceforth require more than a simple majority, but they instead made sweeping promises that they could not possibly hope to deliver on.
As a consequence, their health care alternative is a tangle of half measures that satisfies nobody, one that doubles down on Obama’s original error of passing a major law with a narrow majority.
Jay Cost is a senior writer at The Weekly Standard.
