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Let’s Be Honest: ACA Repeal Died in 2012

Notwithstanding cynical and/or stupid Republican campaign promises to the contrary, ACA repeal–in the absence of a good replacement plan–died on the vine in 2012. Here’s why.

First, ACA was cleverly constructed to co-opt numerous potential well-funded opponents. Democratic negotiators got the buy-in of the pharmaceutical industry by preserving Medicare’s inability to negotiate drug prices. They got the buy-in of insurance companies by creating a mandate for consumers to buy their product. Hospital lobbyists participated heavily in the negotiations as well. In doing so, the Obama administration created a set of well-funded stakeholders to oppose changes to the plan. Politically, it was a real accomplishment, and made repeal a challenging proposition–many Republican elected officials count those industries as substantial donors.

Second, people are generally loss averse, and once implementation began in earnest after the 2012 election, there were real beneficiaries with gains to protect. For example, most people who are now eligible for Medicaid assuredly appreciate their new health coverage. Individuals who want to strike out on their own can get health coverage through heavily-subsidized individual markets. We should expect them to protect their gains at the ballot box aggressively, in the absence of a replacement plan that protects their interests. Republicans who rescind those benefits without offering something comparable will face their electoral wrath.

More generally, loss aversion has contributed to the ACA’s growing popularity in 2017. As half-baked Republican repeal-and-replace plans make their way into the public consciousness, people are concerned about the impact those plans will have on their health coverage. The predictability of the status quo seems better and better in that context.

Third, the parts of the ACA most vulnerable to tinkering and conservative reform–the essential services and such–passed the Senate with 60 votes, not 51. To repeal those without a comparable majority would require an extremely favorable ruling from the Senate parliamentarian over reconciliation rules, or the destruction of the filibuster.

Fourth, the GOP squandered several very winnable Senate seats in 2010 and 2012, giving them a razor-thin margin vulnerable to the whims of heterodox conservatives like Susan Collins, Lisa Murkowski, and John McCain, and windmill-tilting libertarians like Rand Paul. Solid Republican nominees were defeated in primary contests in several states.

– Mike Castle, a surefire winner in Delaware, lost in a primary contest to Christine O’Donnell.
– Sharron Angle in Nevada lost a highly winnable seat to the extremely unpopular Harry Reid.
– Ken Buck lost Colorado by a razor-thin margin while inching past Jane Norton in the primary.
– Sarah Steelman, a strong candidate in Missouri, lost the nomination to Todd Akin, in part because Missouri Republican primary voters were influenced by an ad campaign mounted by Claire McCaskill.
– Richard Mourdock successfully primaried Senate institution Richard Lugar in Indiana, and lost the general election to Joe Donnelly.

Having Mike Castle, Dick Lugar, Sarah Steelman, Jane Norton, and Sue Lowden in the Senate would have made the reconciliation-based pieces of ACA repeal much more feasible. Oops!

Fifth, the Supreme Court upheld the ACA in 2012 as constitutional, while simultaneously granting relief to states that did not accept the Medicaid expansion, thus neutralizing one source of energy for repeal.

And finally, the GOP could not find a nominee for president in 2012 that was a good match for ACA repeal. Not only was the ACA essentially warmed-over Romneycare (which made sense in Massachusetts in the context of a dysfunctional federal health care system), but Mitt Romney himself was also extremely vulnerable in crucial states because of his wealth and patrician air. He simply did not play well in parts of the country that have proved critical to GOP majorities in the 2010s: specifically, the Rust Belt and Inland North. If the GOP had nominated a candidate in 2012 who was both philosophically opposed to Obamacare and more amenable to swing voters, the outcome may well have been different. And every day that the ACA was law was another day harder for it to be repealed root-and-branch.

In short, ACA repeal died the night that Obama won in 2012. If the GOP wants to replace the ACA, it must craft a plan that protects the gains of the beneficiaries of the ACA and gets Democratic votes to compensate for their thin majority. The sooner the GOP accepts that reality, the better.

Alternately, we can muddle through with an incompetent president and dysfunctional Republican majority until the voters, out of immense frustration, reinstate full Democratic control of the government and expand the role of the federal government in health care ever further. I know which I expect to happen.

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Dan Scotto lives and works in Oregon. He has a master's degree in history, with a focus on the history of disease and the history of technology.

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31 thoughts on “Let’s Be Honest: ACA Repeal Died in 2012

  1. Let’s be honester: ACA repeal is dead because it already is the conservative version of mass health care, so anything to its right won’t work.

    Also, repeal is dead because it is good policy, so anything that isn’t good policy will make the country worse off.

    Finally, repeal is dead because the GOP has nowhere near the policy/governing chops to even make a credible attempt at overcoming either of the first two points.

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    • Agree with your first paragraph, but not the second. It’s not good policy. Clever yes, but crap policy. If you’re gotta bribe groups to join in, and you have to get the SC to re interpret black letter law, mmmm it’s not good….

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      • Millions insured. Quality of insurance up. Cost down. All in large numbers (and all artificially suppressed because GOP-run states tried to make the thing fail).

        These are the results of a good policy, even if you don’t like related court orders or that (like literally every policy passed in decades) special interests got taken care of

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        • Millions insured (via Medicaid expansion-which could have been done separately)

          Massive subsidies to make it “affordable”.

          Mandatory participation.

          Sorry, all I hear about is the reduction of suppliers and the increase in costs.

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          • Well that’s [wrong]. (redacted by Maribou, see below).

            Millions insured (via Medicaid expansion-which could have been done separately)

            There are >10 million on private ACA insurance and >15m on expanded medicaid. Which is consistent with the massive drop in uninsured rate vs. pre-passage.

            Massive subsidies to make it “affordable”.

            Those “massive subsidies”? They SAVE the government tons of money. Which is why repealing it would cost over a hundred billion dollars between 2016–2025 (and, of course, cause many of those people above to lose coverage entirely)

            Mandatory participation.

            That’s at least mostly true (in the sense that “mandatory” means “or you get fined”). It’s also necessary to a functioning insurance market.

            And you didn’t even address the fact that everyone (not just those >25M people above) also gets higher quality insurance.

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            • I am going to suggest that the next time you want to say “either uninformed or dishonest” you say “wrong,” “plain wrong,” “just wrong,” “just plain wrong,” or some other similar phrasing that gets across that you think everything in whatever comment you happen to be responding to next time is completely off, without insulting anyone.

              I get that you think those are the two options in play, but stating that those are the only two options is pretty much the same as calling him ignorant or a liar. Don’t do that.

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            • I’m not sure I want to live in a world where “mandatory” comes with a caveat. In that case, taxes aren’t mandatory, nor are speeding limits, hell, even a lot of crimes have a “get fined” component. Minimums are necessary for a functioning insurance market, but when the baseline is on par with “really good coverage”, it’s not really a minimum is it? Example: the minimum liability coverage in SC is 25k.

              And perhaps you should read up on those folks who pay more for insurance now than before because their required to have coverage for crap they don’t want or need.

              But I will give you this, Obama and the Dems managed to impose a new social program, one that likely will never be repealed. Kudos to them. I’m sure in 50 years, we’ll be talking about how it’s becoming bankrupt just like SS and Medicare.

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              • Not having insurance isn’t a crime (unlike your examples). It’s a financial decision (albeit a dumb one). I get that you don’t like any form of mandatory compulsion, but here’s the thing: we have already decided the government is on the hook for everyone’s health care, which is why anyone can get their life saved at an ER. This just provides a far-less-stupid version of that commitment by giving people access to care before they wind up in the ER. That the policy only works if health people sign up is both (1) true; and (2) nobody’s favorite fact.

                erhaps you should read up on those folks who pay more for insurance now than before because their required to have coverage for crap they don’t want or need.

                Three responses: (1) let’s absolutely talk about edge cases and how to fix them. The ACA could certainly use improvement around the edges; (2) let’s also talk about the people who were on absolutely worthless “insurance” plans because they couldn’t afford more. (For example, pre-ACA McDonalds offered its workers “insurance” with an annual benefit cap that was barely higher than the annuan premium. I suspect many employees were pretty surprised when they learned they didn’t really have insurance. I also bet the public then absorbed a lot of the financial impact of those surprises.); (3) to the extent this is a reference to birth control, as opposed to plans with no lifetime caps and a meaningful actuarial value, that stuff is a “fun” culture issue but not financially relevant.

                I’m sure in 50 years, we’ll be talking about how it’s becoming bankrupt just like SS and Medicare.

                As to the ACA, how do you foresee it “going bankrupt”?
                As to social security, it’s in no danger of “bankruptcy” whatsoever. SS taxes may just not cover SS outlays (assuming no change in law) while the boomers slowly die off, which makes it a budget drag we can easliy afford. That drag could easily be prevented either by reducing benefits (if you’re a Republican) or uncapping SS taxes (if you’re a Democrat).
                As to medicare, (1) “bankruptcy” is a highly misleading term. We’re talking about similar issues as SS, though with added uncertainty about the broader shape of healthcare, plus long-term projections. And, as you’ll see in that link, the ACA has already solved most of the problem.

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            • Nevermoor: Those “massive subsidies”? They SAVE the government tons of money. Which is why repealing it would cost over a hundred billion dollars between 2016–2025 (and, of course, cause many of those people above to lose coverage entirely)

              You might want to take a quick look at the report you cited. The reason repealing the “A”CA would increase the budget deficit is that it consists of a combination of subsidies, tax hikes, and fines. The actual prediction given in the report is that a repeal would decrease spending by $812 billion over 2016-2025, and reduce revenues by $949 billion over the same period.

              Edit: Specifically, it estimates a cost of around $800B for the exchange subsidies, another $800B for the Medicaid expansion, and then claws back $800B or so from changes to Medicare reimbursement rates. This is for keeping ACA.

              My understanding is that, historically, reductions in Medicare payments have tended not to stick, so the ACA may well be even more expensive than implied by this analysis.

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              • Two reactions:

                (1) historical data on medicare payment reduction would seem a bad lens for evaluating the most significant departure from historical healthcare practices in decades.

                (2) Of course there are costs and revenues associated with the ACA. I’m not making the inverse of the GOP argument that reducing taxes directly increases revenues (though there is some early evidence that the ACA is succeeding at bending the cost-curve–even without implementation of its two most powerful cost-containment policies–which hopefully bears out as we move forward).

                What my comment said, and the report shows, is the ACA achieved improved healthcare for everyone, massive increases in healthcare coverage, and reduction in healthcare payments (relative to expected trends, as in both this world and the but-for world healthcare costs were going to increase annually, the only question is “by how much”) while being revenue-positive for the government. Which is good policy.

                That it is good policy created using a conservative policy framework is the real reason the GOP’s attempts to repeal it have all fallen comically short (particularly given their current control of DC). Perhaps one conclusion should be that the GOP was wrong to demonize the thing for so long, since they now very clearly have no ideas that even the GOP itself thinks are better.

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                • Nevermoor:
                  What my comment said, and the report shows, is the ACA achieved improved healthcare for everyone, massive increases in healthcare coverage, and reduction in healthcare payments (relative to expected trends, as in both this world and the but-for world healthcare costs were going to increase annually, the only question is “by how much”) while being revenue-positive for the government. Which is good policy.

                  What amazes me the most about this whole debate is how many opponents of the ACA have their heads in the sand when it comes to how it has drastically transformed the delivery of healthcare in this country…for the better…in more ways than I care to count.

                  I see healthcare delivery now acting more in a free-market framework than it ever did in the fee-for-service model of old.

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    • And wouldn’t it be great if they brought beer?

      Seriously, anyone working with Ds is going to be primaried. The only R votes against R&R are those uniquely safe from primaries for reasons that don’t generalize (Collins, Murkowski, McCain) or (last round) knowing a vote for R&R would be Jets-level tanking in the general (Heller).

      I expect reaching across the aisle to continue to generate Very Serious articles in our paper of record but no actual legislation that would result in official votes.

      Bipartisanship is dead. It was on life support before Garland. Now it’s all about end zone celebrations.

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    • Absolutely. For both political and policy reasons, I think we’ll end up with superior outcomes if we reform Obamacare with real input from the center-right [1] than if we get what comes out of the leftmost half of the Democratic Party without moderates thinking we need to compromise. My reasons are mostly disjoint from Dan’s, and I don’t think Medicare for All (or the like) would be a bad result, but better options, which are a better fit for American culture and institutions, are out there.

      [1] Which, for reasons outlined effectively by Dan above, hasn’t been available for half a decade.

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    • El Muneco has it right below. Any elected Republican, save a few, is going to find themselves quickly primaried on the right.

      The problem for the GOP is the problem that lead to Trump here. Politicians generally like to keep their promises, GOP politicians have spent nearly the last decade promising a repeal of the ACA and now they have to make good. A big enough chunk of the GOP base and/or the GOP donor class is really for repeal even if everyone else is not.

      So now they are stuck between a rock and a hard place.

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    • As best I can tell, R&R is again on the menu because GOP donations are drying up — not just from the big donors, but from small ones.

      Bluntly, the GOP has gotten very little done despite holding all three branches of Congress. They have not moved on any of their key platforms, neither the party’s or Trump’s specific ones.

      That doesn’t encourage people to open their wallets. Or to vote for incumbents.

      Furthermore, their number one priority remains — as it always is — tax cuts for the wealthy, and without ACA repeal they can’t pass do permanent tax reform*. They’re stuck with sunsetting cuts, or small cuts. They need that “freed up” ACA money to do so.

      *Well they can, but it requires playing “Fire the parliamentarian until we get one who agrees” or “Ditch every form of actual assessment, like CBO scores, and just flatly claim that every dollar of tax cut pays for itself in economic growth”. Both of which are incredibly dangerous games.

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      • You left out “Get rid of the filibuster.” Which is how they managed Gorsuch, their one high visibility accomplishment. Although by next election season, they’re probably going to have a significant list of rule changes and court opinions (RBG is getting quite old, even by SCOTUS standards, and there are lots of rumors about Kennedy wanting to retire back to California).

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      • I think Michael is right. We might see the biggest winners of the Trump admin be hardcore social conservatives. We can talk about their hypocrisy but they are getting the judiciary they want.

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        • This is why it is time for democrats to mentally prepare themselves to pack the court in response.

          Or should we have to live with the dictates of unelected people appointed by people elected by a minority of the electorate in direct contradiction of all principles of democratic legitimacy?

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  2. I’ll believe repeal attempts are dead when I see a wave of red states accepting the Medicaid expansion dollars. I expected it to happen this year — with Clinton in the White House blocking repeal, the rural hospitals in those states were going to lean very heavily on the state legislatures to either accept the Medicaid dollars or start hiking state taxes to bail the hospitals out. The three red states that have not taken the expansion that I pay more attention to — Idaho, Utah, and Wyoming — all have Republican governors in favor of expansion. I believe the legislatures there held on this year in hopes that Congressional Republicans would pass repeal and Trump would sign it. In 2018, I think many members of those legislatures will see themselves in the position of having to run on one of (1) let the hospitals close or (2) take the expansion, and will take the money.

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  3. I agree that ACA repeal seems to be dead, and I’d like to see ACA survive (and perhaps stengthened, as Oscar seems to state above). However, I do think the ACA is more endangered than you seem to think.

    Here are my concerns:

    They got the buy-in of insurance companies by creating a mandate for consumers to buy their product.

    Yes, but I imagine they’d like it better if they had a mandate and if guaranteed issue and local area pricing be abandoned. One anecdote: a relative of mine who works middle management for a large insurance company complains a lot about how much they want to repeal ACA. Perhaps that is so particular that it doesn’t really count as evidence.

    once implementation began in earnest after the 2012 election, there were real beneficiaries with gains to protect. For example, most people who are now eligible for Medicaid assuredly appreciate their new health coverage. Individuals who want to strike out on their own can get health coverage through heavily-subsidized individual markets. We should expect them to protect their gains at the ballot box aggressively, in the absence of a replacement plan that protects their interests. Republicans who rescind those benefits without offering something comparable will face their electoral wrath.

    I agree with your overall point from the bolded part. But we really need to keep in mind those “strike it out on their own” people who have seen their premiums increase dramatically. I agree with what I take to be your assumption that they want “something comparable [but better]” and that Republicans will fare poorly if they [the GOP] repeals. But I wouldn’t want to deny that a constituency exists which is dissatisfied with ACA as it exists. How big is that constituency? I don’t know–and only anecdata will tell me–but I can see someone rationally determining it is in their best interests to vote for politicians who promise repeal.

    the parts of the ACA most vulnerable to tinkering and conservative reform–the essential services and such–passed the Senate with 60 votes, not 51. To repeal those without a comparable majority would require an extremely favorable ruling from the Senate parliamentarian over reconciliation rules, or the destruction of the filibuster.

    I’m not so sure the filibuster is as indestructible as your OP seems to imply. Maybe the rule on “reconciliation about budget-related” issues could be expanded to include “reconciliation about budget- and healthcare-related issues.” Or….maybe the filibuster will die out completely.

    the Supreme Court upheld the ACA in 2012 as constitutional, while simultaneously granting relief to states that did not accept the Medicaid expansion, thus neutralizing one source of energy for repeal.

    This seems to be at odds with your point about more people with access to medicaid advocating for ACA-enhanced medicaid’s survival. This “relief” seems to me more like something that functions to prevent a stronger constituency from forming in support of the ACA. I am hopeful that Michael Cain is right that more and more states will buy into the expansion. But unless and until that happens, the medicaid-constituency is weaker, not stronger.

    we can muddle through with an incompetent president and dysfunctional Republican majority until the voters, out of immense frustration, reinstate full Democratic control of the government and expand the role of the federal government in health care ever further. I know which I expect to happen.

    I theoretically “expect” (and hope for) the same thing you do, but it’s possible we’ll be disappointed. I’m pessimistic enough to believe that Mr. Trump will win reelection in 2020 or that Trumpista Republicans will stay in power. This isn’t so much directed at the ACA’s survival (which is, after all, what your post is about), but at the possibility that we’ve crossed some sort of Rubicon. We (or at least I) don’t know what’s going to happen.

    I should stress these are reservations about the (relative) optimism of your post. (And I am assuming you support the ACA, at least insofar as what its framers wanted it to do. If I’m wrong, please let me know!) These are not reservations about the desire to see a guarantee of some sort of access to healthcare.

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  4. I think there is broad agreement among people who think about such things that connecting health insurance to employment is madness, bad policy, and filled with the wrong incentives. The problems are:

    1. A lot of people really like their employment based healthcare.

    2. The parties are too ideologically far apart to agree on the solution to getting rid of employment based health care. The Democratic Party broadly wants some kind of universal healthcare or easy access to health care. The braver and more honest (but almost always not elected) right-leaning types will say “We don’t think health care is a right or government-based health care at least.” But notice that most of the people who can say this are not subject to the voters. They are at think tanks and can pontificate about ideas without consequence. But the elected GOP types are more right-wing than ever and more skeptical about government-provided healthcare but they are elected politicians and smart enough to know that there are some things that they can’t say if they want their day jobs.

    4. The bases are growing more strident on this. I think the GOP is to blame for the Democratic radicalization on the issue but the constant ACA repeals have led to a drumbeat of wanting more. Now anyone in the Democratic Party with Presidential nomination needs to endorse some form of single-payer or path to universal healthcare. Medicare for All was a bridge too far less than ten years ago. This has become such a necessity in the base that DLC types left in Congress who are skeptical of universal healthcare are in something approaching a state of despair over their own relevancy and influence. There was an article in TNR this week about moderate/DLC type congresscritters and they basically were reducing to saying “Please can we get back to “It’s the Economy, stupid” pretty please with chocolate sauce and a cherry on top.” So some DLC types still are hoping for jobs and growth and an end to radicalization and polarization.

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    • “I think there is broad agreement among people who think about such things that connecting health insurance to employment is madness, bad policy, and filled with the wrong incentives. ”

      I don’t think that’s true at all. Many people in Canada have employer-based supplemental health insurance, for example, and yet there is no agreement that it’s a problem. The madness lies in making health *insurance* the base for all healthcare services, rather than removing basic services (including necessary operations) from insurance’s purview.

      Not just nitpicking, I think it’s relevant to how the US ended up in this mess.

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      • My comment was American centric yes but so is Scotto’s post. Americans seemingly got employer-based health insurance from an accident of WWII. There was a wage freeze so employers began offering health insurance when they could not give raises. This continued and was fine and dandy until it wasn’t and companies found giving health insurance is a big cost.

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        • It’s only continued to be fine and dandy because health benefits are not taxed like wages.

          *Hauls out soapbox* Let’s talk again about how stupid it is to continue taxing wages on the employer side.

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          • Fair but in terms of realpolitk, who is going to change that? Or more squarely, what sequence of real world events do you think need to occur for this to change?

            There are plenty who think we should change that but none of them are elected politicians or ever have the hope of being elected to office where they can enact such policy changes. Maybe they can get elected mayor of NYC like Bloomberg (who had no power over federal tax policy).

            So you might thrill the Washington Post editorial board with this policy but you aren’t going to make it far in politics.

            I doubt there is a coalition of people large enough to change this in office (and to live very long after they do.)

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            • the main reason I don’t want to lose my employer-provided healthcare, is because that’s part of my compensation package: uni-care means that in exchange for a lower salary I get what everyone else now gets anyway. If the gov enforced a buy-out plan so that it gets transferred to dollars and cents in my paycheck, i very well might be happier about it.

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