“Road to Reform” would like to make a guarantee: If the Affordable Care Act is struck down, we’ll eat our hat.
Ok — it may be too late in the game to offer bold predictions. (And we don’t really have a handy hat to eat.) But it’s telling that the early confidence of many, many legal scholars — even President Reagan’s top White House lawyer — was borne out in the end, as the Supreme Court affirmed the ACA’s constitutionality, albeit by the slimmest of margins.
How did we get here?
Two years of uncertainty, and a confluence of factors, boiled down to a frenetic final morning, where even early reports fooled the president into thinking his law was overturned.
Here’s what led us astray.
1. ACA Made an Easy Target
The White House promised that the law would grow more popular after passage. That Americans would come to know and love its many provisions.
Based on opinion polls, that clearly hasn’t happened.
That’s partly because many measures have yet to be implemented, notably the broad expansion of health coverage.
But as Duke University professorÂ Don Taylor notes, it’s also because it’s harder to play defense than offense — and defenders of the ACA have never been able to develop a sound bite that wins on cable news. As “Road to Reform” has previously discussed, how do you summarize the law’s ambitious, complex attempts to revamp health care provider payment and expand health insurance coverage in 30 seconds?
Meanwhile, opponents of the ACA have developed an array of attack lines, from criticizing the law’s overall cost to attacking provisions nestled throughout the legislation, whether the abortion-related measures of Title I or the so-called “death panels” (in actuality, the Independent Payment Advisory Board) contained in Title III.
2. We Overweighted the Wrong Judges
When the 11th Circuit Court struck down the mandate, it dominated the news cycle. And for good reason: Even though the law was clearly bound for the Supreme Court, the 11th Circuit’s ruling legitimized the effort to overturn the ACA through legal means.
But when the D.C. Circuit Court ruled to uphold ACA’s constitutionality, the decision was generally brushed aside as just a symbolic victory for the law’s backers. For good reason — the Supreme Court was about to take up health reform, and the D.C. Circuit’s ruling wasn’t going to be considered as part of its case. Yet it should have been telling that Judge Laurence Silberman — who was nominated by President Reagan, perceived as a staunch conservative and known to be an influential jurist for the Court — found that Congress was within its rights to impose a mandate.
Instead, the ruling was overlooked.
3. We Overrated Oral Arguments — When We Should Have Known Better
The Supreme Court drew many, many reporters who were new to the legal beat — and who were fooled by what they saw, rather than what they read.
Some of that was simple logistics, especially on the day that lawyers debated the individual mandate. Paul Clement, who was arguing against the ACA, spoke first and dazzled the audience; as analysts left the Court to file their early reports, the narrative was set: “the mandate is in trouble.” And when U.S. Solicitor General Donald Verrilli followed Clement — and gave a seemingly lackluster defense of the ACA — it shaped public conversation for months.
Yet lawyers with Supreme Court experience stressed that the media had gotten it wrong. “Everyone in the entire Supreme Court bar has come to [Verrilli’s] defense,” one lawyer told the New York Times. And to truly understand the government’s case, more analysts needed to focus on the briefs, and not just the overrated oral arguments, one lawyer who has argued before the Court stressed to “Road to Reform.”
4. The Supreme Court Didn’t Help Us
For weeks, speculation built that the court was about to issue its ruling on ACA. (It didn’t.)
And even on the final day of the term, when the verdict was all but assured, the court’s lack of transparency contributed to nervous tension and led to major reporting errors.
Unlike other nations’ high courts, our court didn’t televise the verdict or even allow audio recordings; instead, reporters relied on a literal game of telephone to break the news. And as you can see in this clip, CNN rushed to judgment based on an early report — as Chief Justice John Roberts began his opinion by explaining why the “mandate” was unconstitutional — when more sober analysts like SCOTUSblog knew to wait until the opinion was actually in hand.
5. We Forgot Why the Case Even Made it to the Court
As “Road to Reform” discussed on Wednesday, many anti-ACA lawsuits were an effort to use the legal system to do what politics could not. When the filibuster failed, when even Scott Brown’s election as Massachusetts senator failed to stop the law, Republican critics began seizing on legal means to halt the law in its tracks.
And that’s when law professor Randy Barnett’s argument that the ACA’s mandate was unconstitutional went from fringe to mainstream. Not because of a change in legal evidence — but because of political necessity.
Moving Forward: What Now?
As Harold Pollack writes in the New Republic, the lawsuit may be over — the ACA will live to implement its provisions for another day — but “the damage is done.” Â
“Very few states will really be ready to enact the new law; money has not been appropriated,” Pollack adds. “Much work remains to be done, and much will be done badly due to partisan acrimony, insufficient time, and insufficient capacity to address very serious implementation concerns.”
âRoad to Reformâ will return on July 11.