The Shutdown's Only Winner: Ill-Starred Obamacare Survives Again

Republicans wrestled Washington to closure in a push to stop the health-care law. As Tuesday dawns, the government is closed, but the law is intact.
Kevin Lamarque/Reuters

One could easily lose track of why precisely the government is shut down today and think of it as just a proxy battle in the midst of partisan trench warfare. So here's a reminder: This was a battle over whether the government ought to try to guarantee that all Americans have health insurance, as Democrats believe, or whether that's a dangerous overreach, as Republicans do.

As Tuesday dawns, the government is closed for the first time in 17 years, but Obamacare remains in place, and takes a leap toward implementation today as online exchanges launch. Whatever happens in the coming days, the fact that the Affordable Care Act survives is a defeat for the GOP -- and the latest in a string of victories, for a law that has been repeatedly bloodied but somehow still stands.

Beginning in summer, conservative activists hatched a plan to kill the law by defunding it when Congress moved to fund the government in fall. The idea started on the fringe and seemed like fantasy. But a small band of Republicans in both the House and Senate decided in late summer to take up the cause, and with the help of conservative activists and powerful groups like the Heritage Foundation, they gradually convinced a substantial portion of the Republican caucus to go along with them, against the wishes of party leaders. Eventually, the rebel group -- led by Senator Ted Cruz -- managed to derail the continuing resolution on the budget needed to keep the government open. By midnight Monday, the hardliners had the strength to prevent the budget resolution, but they never had enough to muscle major cuts to Obamacare through the Senate and on to President Obama -- who had vowed to veto them anyway.

This is the pattern of Obamacare, which has repeatedly seemed close to death only to limp on. It happened when Ted Kennedy, the Massachusetts senator and longtime universal-health-care advocate, died as the bill was in progress, and Democrats unexpectedly surrendered his seat to Republican Scott Brown. Yet the Democrats managed to resuscitate the bill with wily use of procedural rules, eventually getting a bill to the president's desk. It wasn't the law liberals had dreamed of, but it was a sweeping, progressive law and the biggest change to the American health system since Lyndon Johnson's presidency.

A similar pattern played out in 2012 with the legal challenge to the law. At first, experts derided lawsuits against the ACA as a fringe idea premised on shaky jurisprudential foundations that would never work -- about as likely as Massachusetts electing a Republican to replace Teddy Kennedy. Yet it climbed through the courts, eventually reaching the Supreme Court for a triumphant hearing. The justices were plainly skeptical of the law's constitutionality; worse, Solicitor General Donald Verrilli's performance in oral arguments was so weak that CNN's Jeffrey Toobin likened it to a train wreck mixed with a plane crash. Yet when the decision arrived, it preserved most of the law, albeit stripping out one key element -- the requirement that states expand Medicaid. The law was injured but unquestionably alive.

And now the latest effort has failed, a mirror image of the Supreme Court fight, just as the exchanges go up.

Presented by

David A. Graham is a senior associate editor at The Atlantic, where he oversees the Politics Channel. He previously reported for Newsweek, The Wall Street Journal, and The National.

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