The Corner

Law & the Courts

Why Democrats Need to Turn the Barrett Conversation to Obamacare

A sign on an insurance store advertises Obamacare in San Ysidro, San Diego, California, October 26, 2017. (Mike Blake/Reuters)

Democrats, in the process of grasping at straws to oppose the Amy Coney Barrett nomination, have tried to make a major push about a case the Supreme Court will hear shortly after the election (California v. Texas) challenging, yet again, the constitutionality of Obamacare. I’ll have more later this week on that case and Judge Barrett, but first consider why the Democrats want to make this the center of the conversation.

The Democrats’ focus on health care in the Barrett nomination fight is driven by four factors. One, there is a strong and perhaps irresistible temptation on the left to attack Barrett on culture-war issues around her Catholic faith, her seven children, and her adoption of two Haitian children. We have already seen this happen among progressive activists and advocates, and it is consistent with how Barrett and other Catholic nominees were questioned by the Senate Judiciary Committee over the past four years. Some members of the Judiciary Committee have hinted they may do it again. But Democrats are at least self-aware enough to see that this could backfire spectacularly with the sorts of voters they need in the Midwest, Florida, Arizona, and North Carolina, and so they have tried to talk themselves into changing the subject.

Two, while the Affordable Care Act remains deeply controversial with the voters, it is no longer as resoundingly unpopular as it was during Obama’s presidency. There are a variety of reasons for this: the natural bias in favor of the status quo, Congress’ repeal of some of the most unpopular ACA provisions (including the individual mandate “tax” and the medical device tax), the absence of presidential conflicts with Congress and the states to keep the issue alive, and — to the extent that policy is tied to personalities — the contrast between Trump’s divisive persona and Barack Obama gaining the ‘halo effect’ of an ex-president. Many Democrats ran heavily on health-care issues and won in 2018, while Joe Biden’s embrace of Obamacare during the Democratic primary proved more popular than opponents who openly called for tearing it down in favor of the even more radical “Medicare for All.” The most recent Kaiser Family Foundation tracking polls have typically found that Obamacare’s approval ratings — under water throughout his presidency — have been positive since Trump’s election, though its approval among registered voters has been sliding again in 2020 and is below 50 percent.

Three, more generally, Democrats are just always more comfortable arguing about health care than just about any other issue. While this blew up in their faces in 2010, it is typically the case that moving the discussion to health care usually gives an advantage to Democrats. In 2020, that also lets them tie their long-term agenda to the pandemic. It beats talking about crime, taxes, national defense, or social issues.

Four, while it is not true that Republicans or the Trump administration have no health-care plans, it is absolutely the case that the administration is unprepared for what to do immediately if the Supreme Court were to throw out significant parts of the statute (as it is extremely unlikely to do). Republicans should have repealed the whole thing at the start of 2017 and forced Democrats to the negotiating table to work out a more sustainable, bipartisan plan when they held both Houses of Congress, but that moment has long since passed.

Expect the Democrats to try it. We shall see if they have the discipline to stick to it.

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