Shortly after the Supreme Court announced its ruling rejecting the latest legal challenge to his signature legislative achievement, President Obama triumphantly declared, "The Affordable Care Act is here to stay." He is right that the structure of the law is likely to endure — no matter who the next president is. But any prediction that the law will stand without substantial change beyond his presidency is likely to be proven wrong – no matter who the next president is.
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President Barack Obama, flanked by Vice President Joe Biden, gives a statement on the Supreme Court health care decision in the Rose Garden at the White House on June 25, 2015 in Washington.
Let's start with where the president is right. The basic structure of the law is now safe from further legal and political attacks. The Supreme Court rejected a challenge to one of the ACA's three key reforms. The particular reform at issue in the case just decided provides refundable tax credits to low-income individuals who purchase insurance through a marketplace, or exchange, "established by the state" in which they live. If that reform had been ruled unavailable in the 36 states that did not adopt their own exchanges but whose exchanges were established by the federal government instead, a high percentage of low-income individuals would have been exempt from a second of the act's reforms requiring all individuals to purchase insurance or pay a penalty to the Internal Revenue Service unless the cost of insurance exceeded 8 percent of their income. The structural integrity of the act would have been compromised and may have collapsed. Now it won't.
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Three years ago, the high court said the ACA was not an unconstitutional exercise of congressional power; the court now has said that the language of the act is not self-destructive. Other pending legal challenges — even one brought by the House of Representatives — do not pose the mortal threat to the law that those two lawsuits did.
The ACA will not be dismantled politically no matter who is elected president in 2016. There are two reasons for that. The first is that, come 2017, the law will have been in operation for the better part of five years. Consumers, insurers, employers, and government officials at all levels will have developed practices, policies, and expectations based on the law that will be hard to undo root and branch, even if it were it to become politically possible to do so.
And there is a one-word answer for why it won't become politically possible to do so: filibuster. Even if the Republicans win the presidency and maintain their current majorities in both houses of Congress, no credible political analyst expects the GOP to capture a 60-seat filibuster-proof majority in the U.S. Senate. It is hard to see enough of 41+ Democratic senators allowing evisceration of this law.
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But that is not to say that Obamacare is likely to withstand fundamental change. Congress could use its funding power to limit key parts of the law, such as enforcement of the individual mandate penalty. And bipartisan majorities may reform those parts of the law that remain unpopular or prove unworkable over time. In addition, federal agency officials may issue rules that alter the way the act functions, subject to the power of the courts, affirmed in Chief Justice Roberts's opinion, to rein in bureaucrats who confuse making rules with making law.
The Social Security Act withstood legal challenges almost 80 years ago. Its essential structure is unassailable today. Yet even that landmark law has undergone significant reform in the intervening years and new reforms are an ongoing part of the political dialogue. In the years after President Obama leaves office, Congress, the courts, federal agencies, the states, and the marketplace will have more to say about how much of its father's DNA the Obamacare law reflects as it matures.
Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.