Supporters of health reform broke out the champagne when President Obama signed the Affordable Care Act (ACA). The celebration was well justified. That legislative triumph had been many decades in the making. But the battle was—and is—far from over.
First came the litigation. Numerous state officials sued in state and federal courts to challenge the constitutionality of key provisions of the legislation. With one exception, federal courts have allowed these suits to proceed. Whatever lower courts decide, the question of whether Congress can require people to carry health insurance seems virtually certain to hinge on the vote of a closely-and rancorously-divided Supreme Court.
Next came the blue-to-red color shift in American politics. That change threatens or promises (depending on ones point of view) to shift political control of one or both houses of Congress from Democrats to Republicans. The stakes for health policy are sky high, as Republicans have promised to try to repeal many elements of the ACA. Even if Republicans were to win both houses of Congress, however, repeal is highly improbable for at least two years. A repeal bill would surely be vetoed by president Obama. For repeal to occur, two thirds of both houses of Congress would have to vote to override, an extremely remote possibility. Should Republicans win both the White House and both houses of Congress in 2012, repeal in 2013, a full year before the major provisions of the ACA take effect, would become a possibility.
But there is a more immediate threat to the ACA, as I explain in a recent Perspective article in the New England Journal of Medicine. Republican opponents have promised, if repeal efforts fail, to try to cut off funding for implementation of the ACA. Successful implementation requires sizeable appropriations to enable executive agencies, principally the Internal Revenue Service and the Department of Health and Human Services, to design the administrative systems, buy the computers, and hire the staff needed to enforce mandates, provide subsidies that will make mandates affordable and acceptable, launch the board to oversee Medicare, and implement the scores of other provisions in the ACA. Without such appropriations, those provisions may be impossible to implement or will be administered clumsily and ineffectively.
It is for this reason, that the stakes in the 2010 Congressional elections for health care policy are higher than any in U.S. history. Even some people who fought the ACA now say that a responsible government should try to make it work. Doing so would not preclude efforts to win sufficient majorities to overturn provisions of which they disapprove. Supporters of the ACA would be sorely disappointed should electoral majorities vote to undo this legislation. But they could not complain that outright repeal contravened the democratic principles. But they and all Americans should be disturbed if members of Congress try to make the government operate ineffectually in order to block a duly enacted law.