Today the Supreme Court will change the course of American political history.
There’s no doubt about that.
How is much less certain.
Though the substance of the Court’s decision will remain unclear until tomorrow morning, a glance back at America’s political past sheds light on what we can expect in America’s political future, whether the Affordable Care Act is upheld or struck down. If the law is upheld, will Republicans be able to repeal it? If the law is struck down, will Congress pass something similar?
The history of major federal social welfare initiatives, like Social Security, Medicare and Medicaid, and the Affordable Care Act, reveals two major points: 1) being passed requires perfect political timing; and 2) once on the books for good, serious talk of repeal quickly fizzles. If upheld, repealing the Affordable Care Act will not be as easy as opponents hope. If struck down, supporters will face tremendous obstacles in attempting to pass a similar law. History suggests that it's now or never for opponents, and now or a long wait for supporters.
Large-scare federal social welfare expansions have historically had very particular windows of opportunity to become law. If an opportunity is missed, it may be some time before another chance comes. The Roosevelt administration made an initial effort at national health insurance, but could not get anything through before a more conservative mood gripped the country. Though Presidents Truman and Kennedy also favored national health insurance, the federal government took no steps in that direction until the stars aligned almost 30 years later in 1965 with the passage of Medicare and Medicaid. Just a few years later, Congress failed to pass President Nixon's Family Assistance Plan, which promised federally guaranteed minimum incomes for the poor and unemployed. The Family Assistance Plan remains dormant, now 40 years later. The Affordable Care Act itself demonstrates that timing is crucial — it took Democrats 45 years to force through this further massive expansion of national health care, and Congress only passed the bill because the House approved a version of the bill that the Senate approved before new Senator Scott Brown joined the upper chamber. Barely two years after that historic vote, the political climate has completely changed — there can be no doubt that Congress would not pass the Affordable Care Act now. If the Court strikes down the law, its supporters may be waiting decades for another bite at the apple.
When the Roosevelt Administration instituted Social Security and the Johnson Administration established Medicare and Medicaid, the programs passed and were signed into law in the face of bitter opposition that largely vowed to pursue repeal. Yet within a few short years in both instances, serious proposals to eliminate the new programs quickly faded away. Instead, the debate changed to how Congress would tinker with and refine the programs, rather than whether the programs would continue to exist. Serious calls for repeal withered as Americans began to rely on receiving the programs’ benefits. If upheld, the Affordable Care Act will adhere to this same pattern--once it is on the books, it will be virtually impossible to remove.
FDR famously insisted in presenting Social Security to the country as a social insurance program, not a welfare program, because he knew that future voters would never favor disbanding a system that they paid into, and felt entitled to receive something from later on. As a result, in FDR’s words, "those sons of bitches up on the Hill can't ever abandon this system when I'm gone." And they haven’t — not even as the system drives toward bankruptcy. The Affordable Care Act has cleverly aligned incentives the same way.
If the federal government is permitted to get their foot this far in the door of health insurance, they will stay there, and probably move further in, for as long as the United States exists. It’s now or never for Obamacare’s opponents.
But if the law is overturned, the perfect timing that this legislation requires will probably not come again for decades.
In less than 24 hours, we will begin to see if one of these histories will repeat itself.