One of the common refrains during the never-ending battle against Obamacare is that it has to be stopped before it begins. Once it begins, the argument goes, and people come to rely on it, repealing it back becomes impossible. This is the conventional narrative. But is it? The Monkey Cage blog addresses “Five myths about the future of Obamacare.”
It would not be unprecedented (see what I did there) for a massive entitlement to end. Though, not a sudden demise. More like death by a thousand cuts.
Given how difficult it is to revise an existing law, it might seem that a program’s entrenchment is assured once it has been enacted. In his 1976 book “Are Government Organizations Immortal?” political scientist Herman Kaufman argued that “government activities tend to go on indefinitely.” More recent research demonstrates, however, that policy entrenchment has limits. According to a study by Christopher R. Berry, Barry C. Burden and William G. Howell, a spending program has a 1 percent chance of death every year in its first 10 years of life, after which the probability of termination slowly begins to decline. New policies are trial and error affairs, and they don’t always pan out. Programs can be killed. An example is the Medicare Catastrophic Coverage Act of 1988, which Congress terminated in 1989 when senior citizens soured on the measure. Short of formal repeal, programs can simply fade away, as did Lyndon Johnson’s Model Cities initiative and Richard Nixon’s revenue-sharing program. The main danger the ACA faces is not outright repeal, but the gradual whittling away of its subsidies, regulations and tax provisions.
Also, the authors echo a point Gerard Magliocca made about the law being settled, based on the fact that it was enacted on a straight partyline vote.
Political conflict over a program can last for decades. Congress passed the Voting Rights Act in 1965, and opponents continued to attack the legislation through 2013, when the Supreme Court invalidated one of its central components. The potential for conflicts over existing laws to persist has only increased as a result of partisan polarization. While both the Social Security Act of 1935 and the Medicare Act of 1965 had some bipartisan support on final passage, the ACA was passed on a party-line vote.Forrest Maltzman of George Washington University and Charles Shipan of University of Michigan have shown that the greater the roll call opposition when a bill is passed, the more likely the law is to be amended by a future Congress. An open question is whether partisanship exacerbates the problem of divisive enactment. While systematic research has not been done, there are good reasons to think it might. AsDavid R. Mayhew of Yale argues, while a cross-party opposition to a policy might fade, “a party that loses on a congressional issue and stays angry may have an incentive to keep the conflict going.”
At a book talk this semester, a professor said I was “bordering on irresponsible” for suggesting that the finality of the law is unsettled. The fact that half of America didn’t buy into this law, and another huge chunk will be worse off, makes the stability of this leviathan unsteady. Maybe Judges Sutton and Kavanaugh were right in one sense. Let the law unravel, so the political branches repeal this law.