The federal government’s shutdown at midnight on October 1, 2013 was a long time in the making. The seeds were planted back in 2009 with the divisive passage of the Affordable Care Act. Since then, the entire United States government has been grinding to a slow, painful halt over this law. To understand the current shutdown, we must recall that Obamacare has been mired in a political grudge match on both sides of the aisle from its very conception.
Following huge electoral victories for Democrats in 2008, the president decided — against the pleadings of his closest advisers — to make healthcare his first priority. Almost immediately, the president was met with massive opposition, as this increasingly unpopular law was not supported by Republicans and the growing Tea Party. Counting his 60-vote bloc in the Senate, and a huge margin in the House, the president and Senate Democrats pushed on, deeming it unnecessary to have any bipartisan support.
Never before was such a monumental piece of legislation passed on a straight-party line vote, with zero support from the opposing party. In August 2009, former Democratic National Committee chairman Howard Dean attempted to justify the “pass it at any cost” approach: “All the really great programs in American history, Social Security, [were] done without Republicans. Medicare was done without Republican support until the last vote where they realized they had to get on board.” He was wrong. The Social Security Act, the Civil Rights Act of 1965, The Social Security Amendments of 1965, which created Medicaid and Medicare, the Civil Rights Act of 1968, the Voting Rights Act, and the Americans with Disabilities Act, were all passed with bipartisan support in both houses of Congress.
In stark contrast, the Affordable Care Act passed out of the Senate on straight party-line vote, 60-39, on December 24, 2009. But the filibuster-proof majority was not to last. Supported by the Tea Party, Scott Brown was elected Senator in Massachusetts for the purpose of stopping Obamacare. This election gave the GOP their 41st vote — and enough to mount a filibuster.
The Democrats were faced with a dilemma. Speaker Pelosi had just enough votes to pass Obamacare in the House, but the original plan was to then send the bill back to the Senate to iron out kinks during the reconciliation process. This was no longer an option, as the Senate would wage a successful filibuster.
Rather than withdraw the bill, or attempt to negotiate on the terms, the President and House Democrats decided to press on, once again, knowing that the version of the law that would be enacted was full of “bugs,” without any chance to fix it during conference. Further debate in the Senate, which would have reflected the surging unpopularity of the law, as evidenced by the Brown election, was shut down. Senate Republicans to this day feel slighted that the reconciliation process deprived them out of their filibuster. In fact, many still refer to the Affordable Care Act as a bill and not a law, doubting its legitimacy.
On March 22, 2010, with tens of thousands of Tea Partiers chanting “Kill the Bill” outside, and several Democrats crossing the aisle to vote “Nay” with the Republicans, the ACA narrowly passed the House.
Perhaps the lack of bipartisanship was an indictment on the Republicans, who refused to negotiate at any cost. Or, it may have reflected Obamacare’s wild unpopularity at the time of its passage — over 50 percent of Americans — and virtually all of their constituents opposed it. But the abandonment of any concern about bipartisanship, by both the Republicans and Democrats has permeated the entire clash over Obamacare. Since 2009, both sides have consistently taken a my way or the highway position.
After congressional defeat, the same Republicans who opposed the law turned to the courts and backed a coordinated legal attack. Minutes after the President signed the bill, Republican State Attorneys General from a dozen states filed a lawsuit, challenging the constitutionality of Obamacare. This unprecedented constitutional challenge over Obamacare spent the next two years racing towards the United States Supreme Court.
Even while the case was pending before the High Court, the politicking did not end, as Republicans and Democrats in Washington waged a proxy battle over the case. Days after the case was argued, President Obama urged the Court to “exercise its jurisprudence carefully” and said it would be “unprecedented” for the Justices to strike down the law. Senate Minority Leader Mitch McConnell shot back: “Only someone who would browbeat the Court during the State of the Union … would try to intimidate the Court while it’s deliberating one of the most consequential cases of our time.” Upping the ante, Senator Patrick Leahy gave a speech on the Senate floor pointing right at the pivotal vote. “I trust that he will be a chief justice for all of us.” In the end, Roberts, rewrote the Affordable Care Act to save its constitutionality.
Beaming after the Supreme Court’s decision, the President triumphantly proclaimed, “it’s time for us to move forward,” and we can’t “go back to the way things were.” That was also not to be the case, as the Republicans advanced on another front — the 2012 election. Mitt Romney’s attempts to challenge the president on health care proved to be ill-fated — Obama accurately called him the “godfather” of Obamacare for creating Romneycare. But the Republicans continued to chip away at the Democrats’ electoral victories from 2008, largely on the back of opposing Obamacare, and with the goal of repealing the law. The 2014 election looks to be a repeat of this single issue.
For four years straight, the President has done everything in his power, and perhaps some things beyond his power, to fight against widespread popular opposition and make Obamacare the law. And for four years straight, Republicans have done everything possible to delay, defund, and stop the law. Dysfunction and inaction have defined Washington these past four years, as other legislative priorities were put on the backburner while Obamacare has continued to consume much of the oxygen in Washington. The fixation on this single law is unprecedented in recent memory. Yet, this unpopular law has persevered, against all odds — from legislative, constitutional, and electoral challenges — despite never once gaining ratification from even a plurality of Republicans.
Critics may argue that the time to stop the ACA was in 2008. Or 2010. Or 2012. There were three elections that could have stopped the law. If the Republicans had one more vote in the Senate in 2009, they could have filibustered the law, and stopped it dead in its tracks. If the GOP had taken over the Senate and the House in 2010, they could have delayed, or perhaps halted implementation of the parts until after the 2012 election. Had Mitt Romney won the presidency in 2012, along with a Republican Congress, he could have signed into law a repeal of Obamacare, before it was implemented.
No doubt Obamacare remains wildly unpopular, but the majority of Americans voted for a President committed to implementing the law that now bears his name. But that has not deterred Republicans that still view this law as illegitimate, and taking the country down the wrong path.
In the current government shutdown, the Republicans are playing hardball to kickstart a debate that they don’t believe ever ended. This battle is far from over, as the budget shutdown crashes into the debt ceiling. If we are doomed to repeat history, the divisiveness seeded in 2009 over Obamacare will continue, with little hope of compromise on either side.
Josh Blackman is a Law Professor at the South Texas College of Law in Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare.