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

By David A. Graham
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.

A furious round of activity Monday night brought the House and Senate marginally closer to a deal to prevent a shutdown, but a gaping space remained between them when the clock ran out at midnight. In the early evening, House Republicans sent a bill to the Senate that delayed Obamacare's individual mandate for a year -- a resolution they knew the Senate would never accept. Rep. Pete King, a New York Republican, vowed to gather enough moderate GOP opposition to derail it. Yet instead of 25 moderate votes, he delivered two, and the bill passed. (In a twist, several hardline conservatives joined them, objecting that the bill was far too modest.) Then, as expected, the Senate tabled those conditions, taking matters right back to where they were Friday evening.

Instead of giving up and trying to pass a "clean" CR that didn't include any cuts to Obamacare, Speaker John Boehner had one last trick: He called for a budget conference between the House and Senate to hammer out spending plans. Around 11 p.m., however, Harry Reid spoke on the Senate floor and shot that down. Reid noted that Democrats had repeatedly asked to go to conference since spring, but would not do so now, "with a gun to our head." Reid insisted that he would accept only a clean CR but would happily go to conference once that was passed. Even if the Nevadan had been willing to go to conference, it's hard to see how negotiations could have reached fruition by midnight.

What remains to be seen now is how long the government will be closed. The most likely resolution still seems to be for the House to pass a clean CR. The question is, how long and how much pain will it take before House Republicans are willing to do that? Both sides could also end up agreeing on a CR that includes small tweaks to Obamacare -- such as repealing the medical-device tax -- though Democrats seemed as unified as ever against even that Monday night.

Meanwhile, every day brings the country closer to reaching the debt ceiling -- whether the government is closed or not. A failure to raise it would result not in delayed checks and closed government offices, like a shutdown, but instead in national default and potentially a catastrophic shock to world markets. Some pundits hope a shutdown could actually help pave the way for a debt-ceiling deal, though it's hard to see how.

Even with Obamacare's survival, it is clear that President Obama's second-term agenda is stalled; preserving the marquee accomplishment of his first term may be the best he can hope for. His legislative wish list -- from gun control to immigration -- is bottled up, a victim of congressional obstruction. The economic recovery, slow but steady, could easily be thrown into reverse by a government shutdown and, even worse, a default.

The president can hope that the blowback from a shutdown might bring the GOP around to compromise -- or, failing that, yield Democrats control of the House at the polls in 2014. In the meantime, the last week has shown definitively that -- contrary to Obama's confident campaign-trail prediction -- the Republican "fever" for implacably opposing him has not broken yet.

This article available online at:

http://www.theatlantic.com/politics/archive/2013/10/the-shutdowns-only-winner-ill-starred-obamacare-survives-again/280140/