The Magazine

A Slight Case of Bastardy

The curious and irregular conception of Obamacare

Mar 3, 2014, Vol. 19, No. 24 • By NOEMIE EMERY
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Whenever it could, the public went out of its way to express its displeasure: voting for Republican governors in Virginia and New Jersey, states won by Obama, a “go slow” sign which was wholly ignored by the president’s party, as it plunged ahead, pushing the bill through the Senate the day before Christmas, after the last two reluctant red-state dissenters had been showered with millions of dollars in favors. This wasn’t what voters wanted to find under the tree, but Democrats still had their 60 votes in the Senate, or would have again in January when Martha Coakley won the special election in Massachusetts to fill the seat of Edward M. Kennedy, who had died in August. Massachusetts would never send a non-Democrat to fill “the Kennedy seat,” as David Gergen had put it. But then Massachusetts did.

The gubernatorial elections in November 2009 had been taken as proxies for health care reform, but the December special election in Massachusetts was the third kick of the mule, and by far the most telling. Symbolically, it was held for the seat of the Father of Health Care, and one of the bill’s most conspicuous backers. The governors of two big states couldn’t do much to stop health care reform, but a single vote in the Senate was critical. Newly elected Senator Scott Brown had run as the “41st vote” against Obamacare. There were many reasons for people in Virginia and New Jersey to vote for (or against) their new governors. There was only one reason for people in Massachusetts to be voting for Brown.

“Elections have consequences” is a prime rule in politics, but Democrats went out of their way to make sure that this one would be the exception, as their first move after the results in Massachusetts became evident was not to rework the bill to bring it in line with the will of the public, but to game the system to close off the need for a second vote in the Senate, the will of the public be damned.

Medicare, Social Security, and the Civil Rights Act all passed by huge and bipartisan margins, with public opinion strongly in favor. Health care reform passed by 7 votes in the House, losing the votes of 34 Democrats (and all the Republicans), with a strong tide of public opinion running against it. Had there been a Senator Coakley, Republicans would have groaned, but accepted the bill as having been passed by the regular order of business. As it was, they loathed it almost as much for the way it was passed as for what was in it, and never accepted its moral authority. A Gallup poll taken on March 30, 2010, found that 53 percent of Americans considered the way the bill passed an “abuse of power” by Democrats as against 40 percent who found it “appropriate,” with 86 percent of Republicans and 58 percent of independents concurring in this negative judgment. Time has done nothing to soften these views.

Ultimately, acts of Congress gain their legitimacy in the way they win or reflect the will of the public, as expressed in the way they are passed. The Civil Rights Act, as Michael Barone reminds us, took place against a background of violence, but the careful and orderly way it was passed helped defuse opposition, and the much-feared resistance to it would never materialize. Full compliance, he notes, was not immediate, “[b]ut after Congress acted in such a deliberate fashion .  .  . white southerners largely acquiesced.” No such deliberation was ever to be seen in the passage of the Affordable Care Act, and acquiescence eludes it, as does the conviction that it is legitimate. It isn’t—and never will be.

Noemie Emery is a contributing editor to The Weekly Standard and a columnist for the Washington Examiner.

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