The Shutdown and the Legal Future of Obamacare (Updated)


Here’s an angle on the late government shutdown that I haven’t seen anywhere else: it was crucial to the potential success of the ongoing lawsuits over Obamacare. I haven’t followed the lawsuits all that carefully, but I think at least the challenge to the subsidies for federal exchanges is quite serious, legally speaking.

As a political matter, though, if the GOP had taken the establishment’s advice, and treated Obamacare as “the settled law of the land,” subject to repeal only if the Republicans win back the Senate and the presidency, I think that and other lawsuits would have been doomed. If the courts were to decide that some major part of Obamacare is unconstitutional or contrary to statute, it would throw a huge program into chaos. Courts don’t like to do that, and they especially don’t like to do that with settled programs that are well-established and have bipartisan support, or even acquiescence. Put another way, if the political arm of the Republican/conservative movement wasn’t willing to expend political capital to challenge Obamacare, why in God’s name would judges be willing to stick their necks out, regardless of how they feel about the law? But the fact that the GOP was in fact willing to provoke a government shutdown–though let’s be clear that, legally speaking, only the president’s veto power can shut down the government if Congress passes a budget–and take the political heat gives the judiciary all the political cover it needs to do rule in favor of the challengers, if it is otherwise inclined to do so.

So if any of the remaining significant challenges to Obamacare succeed, you can thank (or blame) Ted Cruz.

UPDATED: Some commenters seem to be confused about my point here. I’m not (a) saying that this was Cruz’s plan, or the GOP’s plan (and indeed it likely wasn’t on their minds); (b) defending Cruz or GOP strategy on the merits; or (c) praising Cruz or defending him from his detractors in general. I’m just making the observation that strong evidence of continued GOP opposition to Obamacare makes judges more likely to be willing to rule in favor of legal challenges to the law, and the recent shutdown controversy provides such strong evidence.

Powered by WordPress. Designed by Woo Themes