On March 23, 2010, Barack Obama signed the Affordable Care Act, and as he did so, then Vice President Joe Biden whispered loudly that the law was a “big f—ing deal.” He was right, though perhaps not in the way either he or Obama intended. The ACA did not, as promised, transform our health-care system or bend the cost curve down. But it was a big deal because the way it was passed has transformed our political system. A decade and a half on, we are still trying to recover from the partisan mischief and altered norms that its poison has injected into our national political bloodstream.

Passing Obamacare was the main priority of the Obama administration in its first two years, and the Obamans were confident they could succeed because he had won in a landslide in which his party had strengthened its control of both houses of Congress. Over the course of the year it took to achieve his aim, Obama and his team sold Obamacare with great fanfare and adopted innovative and politically tough-minded tactics—but had little or no realistic understanding about what their policy prescriptions could or would do once the bill became law.

Instead, he made wild promises based on his stated determination “to finally challenge the special interests and provide universal health care for all.” Obamacare would make access universal, lower costs substantially over time, rein in the pharmaceutical and insurance companies, and do all this while still allowing people who liked their health-care plan to keep their health-care plan. The magical thinking behind all these promises proved to be just that—magical. 

But the political game the Obamans played was canny, and that was due in part to rueful lessons learned from the failure of an earlier Democratic administration. The Obama team understood early on that HillaryCare—the Clinton administration’s failed national HMO initiative that came a cropper in 1994 and was largely responsible for an election in which Republicans took control of the House of Representatives for the first time in 40 years—had run aground because of an arrogant insistence that the entire process be run from the White House. The Clinton approach had cut out key congressional stakeholders, who resented being left on the sidelines.¹

Obama was far more deferential to Capitol Hill. He brought House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid into the process from the beginning. After some initial negotiating sessions, they all decided to pursue passage of the legislation without seeking Republican votes—a decision that seemed especially propitious in the summer of 2009 after the Democrats gained a 60th seat and a filibuster-proof Senate when Al Franken was declared the winner in a closely contested Minnesota election.

This was the original sin of the Affordable Care Act, the change in approach that led us down the calamitous road we are now traveling on. To be fair, Obama and the Democrats are not the only guilty party here. Republicans decided not to cooperate with Democrats on the passage of the bill, following the advice of many on the right (led by Rush Limbaugh) who explicitly said any dealmaking should be rejected. But we will never know what might have been had some of them been wooed and negotiated with; the objections of several moderate Republicans in the Senate could potentially have been addressed to some degree.

There was recent precedent for just such a thing. In the George W. Bush administration, Bush took great pains to make sure that he had bipartisan buy-in for his major pieces of legislation—especially the No Child Left Behind education reform. Bush assiduously courted more than 150 members of Congress, including Senator Ted Kennedy, a harsh critic of Bush’s. As part of his charm offensive, Bush had Kennedy come to the White House for a screening of Thirteen Days, a movie about Kennedy’s brother JFK. And Bush made it clear in conversations with Kennedy and John Boehner, then the Republican chairman of the House Education Committee, that Bush would insist on any bill being bipartisan. This forced both sides to recognize that compromise was going to be necessary. In addition to No Child Left Behind, Bush also passed the 2003 Medicare Modernization Act in a bipartisan fashion.

But starting from Day One, owing in large mea-sure to the size of his victory and the comfortable ma-jorities Democrats held on Capitol Hill, Obama was stunningly dismissive of GOP members of Congress. In late January 2009, Obama invited Republicans to the White House for discussions about how to work together. In that meeting, he rebuked House Minority Whip Eric Cantor, telling him, “Elections have consequences, and at the end of the day, I won. So I think on that one I trump you.” This attitude and the behavior that followed from it exacerbated partisan differences and mistrust. It also revealed Obama’s profound misunderstanding of the American constitutional order. He was president, not prime minister. In a parliamentary system, the governing party passes legislation at will. Our system is designed to slow down and thwart ambitious change in favor of incremental alterations agreed to across the political spectrum.

With the decision made to pursue legislation—from Obamacare to economic and fiscal stimulus—in a partisan manner, the stage was set for a host of legislative gimmicks that broke Washington norms. Since the 1960s, self-consciously major pieces of legislation—watershed events like the passage of the civil-rights and Great Society laws—had also been the products of a moment in time when Democrats enjoyed massive majorities in Congress. Even so, the process in Lyndon Johnson’s time was not characterized by a pass-it-at-all-costs approach that excluded the minority party and ignored key objections emerging from the body politic. Such behavior was not merely cosmetic on Johnson’s part; it reflected complex political realities in which some Democrats were never going to support his progressive ideas while some Republicans were their greatest advocates.

But in 2009, the parties were much more unified ideologically, and Democrats fell prey to the temptation of exercising power without regard to the interests of the minority. They abandoned a commitment to “regular order,” which is the term used to describe the passage of legislation through traditional means.

Democrats wanted to move quickly. They were able to do so once Franken was sworn in on July 9 because they achieved “filibuster-proof” control of the Senate. If all their members simply showed up in the Senate chamber, they could pass legislation without needing a single Republican vote. They were all set to muscle things through until fate intervened. Six weeks later, Senator Ted Kennedy unexpectedly passed away. He was temporarily replaced by a Democratic seat-filler named Paul Kirk until a special election could be held in January. And in that special election, an unknown Republican named Scott Brown shocked the political world by winning the race in Massachusetts and reducing the Democratic majority in the Senate to 59. Brown’s victory was correctly understood as a message from American citizens, even those in a very liberal state, that they had broad concerns with both the trajectory of the Obama administration and of the Affordable Care Act.

The Obama team held a series of internal meetings to discuss what to do after the loss of the Senate supermajority. Most aides, including Chief of Staff Rahm Emanuel, suggested that they work with Republicans at this point on a compromise “skinny” plan that Pelosi derisively called “kiddiecare.” Pelosi told Obama, “We’re in the majority. We’ll never have a better majority in your presidency in numbers than we’ve got right now. We can make this work.”

Obama sided with Pelosi. He told his team, “We are this close to the summit of the mountain. We need to try one more time.” Democrats redoubled their commitment to the partisan approach—and began the process of crippling the effectiveness of Washington governance for a generation.

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Obama opened the Pandora’s box by fully embracing “reconciliation” as a tactic. Reconciliation is a process designed to harmonize House and Senate efforts to pass the budget legislation that funds government operations. It was designed as an exception to ordinary Senate rules by allowing this one kind of bill—a bill that had specific budgetary implications—to move to the floor of the Senate for passage by a simple majority vote. Reconciliation was considered an emergency measure, necessary at times to avert crises, since the failure to pass a budget bill in good order can result in the government being literally unable to spend any money, from the issuing of Social Security checks to paying public-sector workers. 

At the time, the argument made to defend the reconciliation play was that the Obamacare bill was a “budget” bill because it involved spending some money. But since you could say that about almost any piece of legislation, that case was patently sophistic. Nonetheless, as Republicans had the means to block an Obamacare bill through the use of the filibuster after Scott Brown’s victory, it was a move of fiendish brilliance to adopt this mechanism to get around GOP resistance.

The Senate passed an Obamacare bill under reconciliation rules. But Democrats still faced a logistical hurdle when it came to the House of Representatives. All previous pieces of legislation involved the House crafting its own version of an Obamacare bill (and being the House and not the Senate, passing it with a simple majority). At that point, the House and Senate would then convene a conference committee made up of members of each chamber who would pick and choose which bits and pieces of the legislation they could all agree to—at which point the combined bill would again have to go back to both chambers for passage.

The innovative jam-it-through approach put a few powerful leaders and committee staffers at the center of the policymaking process instead of rank-and-file members of Congress. It yielded a bill that lacked transparency and contained unpleasant surprises. This was immortalized by Speaker Pelosi’s statement in March 2010 in which she stated that House members had “to pass the bill so you can find out what’s in it.” She then put up the Senate version of the bill without giving House members the opportunity to study it or offer up their own version. Take it or leave it, Pelosi told her conference. Pelosi’s gambit worked to get the bill passed, and without a single Republican vote.

By excluding the input and oversight of the vast majority of the nation’s elected representatives, the bill turned the American system inside out. The legislation would rely on the administrative state to write and execute much of the policy details of Obamacare. For instance, the law contains more than 1,000 mentions of the phrase “the secretary shall”—the secretary in this case being the unelected head of the Department of Health and Human Services. In other words, to avoid negotiation and controversy, the authors in Congress effectively took power away from Congress and gave it to the executive-branch bureaucracy. This passing of the buck from Congress to the administrative agencies would have multiple negative ramifications.

It meant that difficult decisions about the structure and implementation of the law were left to the secretary of HHS and top political appointees. As Michael O. Leavitt, who ran the department during the George W. Bush administration, complained, the “secretary shall” approach “puts more power than is prudent in the hands of one person, and it is not an answer to our national health-care crisis.”

Removing the transparency and compromise of congressional decision-making undermined critical thinking and troubleshooting. The burden was instead on HHS as it tried to implement the legislation. Implementation is a complex and often neglected element of legislation. It determines the ways in which new laws interact with the American people. HHS Secretary Kathleen Sebelius was warned that implementation would be challenging. In particular, she was warned about the challenges of creating an Obamacare website, the portal through which people would purchase insurance under the new plan. She was even explicitly warned to be wary of the IT people who would build the site, as they often tell political principals what they want to hear as opposed to what the full extent of the difficulties are.

She did not listen. In one Wall Street Journal article, it was revealed that Sebelius would get implementation updates from Centers for Medicare and Medicaid Services Director Marilyn Tavenner while she was doing workouts in the gym “between abdominal crunches and weightlifting sets”—not exactly a reassuring indication of focus on the problem at hand.

The implementation was a disaster. The website crashed and the interface was clunky. Eventually, it all got sorted out, but not before a host of stories about the two-month long failure of the website and, more important, after millions of Americans had a poor and frustrating experience trying to access the heavily hyped site. This preventable episode created yet another reason for the American people to distrust their institutions of government.

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The overreliance on the administrative state to write the details of legislation—and remember, the executive branch is not supposed to write legislation, only manage it—was particularly acute when it came to Obamacare. Every time HHS had to make any one of an enormous number of key decisions, it would create new political controversies that should have been hashed out by Congress to begin with. And because of the lack of congressional involvement, legal challenges to HHS guidelines came fast and furious.

Beyond the systemic changes, the Obamacare episode changed the Obama presidency. Obama found the democratic tug of war on Capitol Hill tiresome. He was frustrated when he couldn’t just work his will rather than viewing his job as a means of persuading others in American politics to follow his lead. He got what he wanted with Obamacare, but the cost would prove to be very high. Republicans won 63 seats in the House of Representatives in the election that followed its passage, which he called a “shellacking.” He would never again have control of both Houses of Congress.

Other presidents have passed important bills with Congress in the other party’s hands. George H.W. Bush signed the Americans with Disabilities Act into law, for example. Yet with Obama it was different. It was almost as if he felt that the legislative process was beneath him. He was skeptical even of the socializing that one would have to do in order to win over votes on the other side of the aisle. During the first White House Correspondents’ Dinner of his second term, Obama joked, “Some folks still don’t think I spend enough time with Congress. ‘Why don’t you get a drink with Mitch McConnell?’ they ask.” To this he added, “Really? Why don’t you get a drink with Mitch McConnell?” His world-weary attitude toward legislating, coupled with Republican gains in Congress, had an impact in terms of reduced legislative output. David Letterman even joked in the summer of 2014 “The doctor said Obama passed his physical. That’s the first thing he’s passed in the second term.”

This aversion to the hard work of legislating in a bipartisan way led Obama to pursue what became known as the “pen-and-phone presidency.” In his first Cabinet meeting of 2014, Obama said, “I’ve got a pen and I’ve got a phone,” meaning that was going to turn to unilateral executive action, as opposed to legislative cooperation, to shape government and cajole the nonprofit and business sectors to do his bidding. This planned circumvention of Congress understandably irked the House Republican majority, particularly House Speaker John Boehner, who said, “I would remind the president he also has a Constitution and an oath of office that he took.”

It was not just Republicans in Congress who took notice. CBS’s John Dickerson said of the “pen and phone” idea that “the MacGyver presidency is upon us.” Obama pursued a host of jerry-rigged policies without congressional buy-in, including expanding DACA (the Deferred Action to Childhood Arrivals) program; hiking the minimum wage for government contractors; and using regulatory action to impose limits on carbon emissions. One study from the American Action Forum identified nine such Obama actions that had a cumulative cost of $31 billion.

Beyond the cost in dollars was the cost to the presidency. From that 2014 day forward, the presidency increasingly became seen as a substitute for the legislature, a significant deviation from what the Framers envisioned with the separation of powers. Obama’s successors, both Donald Trump and Joe Biden, followed suit. This has manifested in two ways.

First is the reliance on reconciliation, or with trying to do away with the filibuster, to pass a few key priorities rather than trying to pass legislation in a bipartisan way. Trump used reconciliation with his tax cuts and tried to use it with Obamacare repeal. Biden used reconciliation with the $740 billion Inflation Reduction Act, a scaled-back version of his much larger Build Back Better proposal. And he further pushed for an end to the filibuster for both abortion and voting-rights legislation.

Trump and Biden both embraced the pen-and-phone approach. Trump tried it by declaring a national emergency that would enable him to build his border wall, an action that even a pliant Republican Congress saw fit to rebuke. He also used the Covid emergency declaration to impose a nationwide eviction moratorium, which Biden then pursued with even more zeal. In addition, Biden cancelled student loans via unilateral executive action, despite a warning from Nancy Pelosi that this could not be done without going through Congress. Even after Biden went ahead, only to be sty-mied by the Supreme Court, that did not stop him, as he continued to pursue the policy with some minor tweaks to circumvent the Court’s ruling.

The Obamacare episode weakened the third branch of government as well. Republicans brought a serious challenge to the ACA that appeared likely to overturn the legislation with a 5–4 majority. Yet Chief Justice John Roberts, wary of the potential impact that overturning the president’s signature legislation would have on the Court, changed his mind and decided to let the legislation stand with a majority decision that made entirely contradictory claims, on pages 12 and 25,  about its tax implications. The late Justice Antonin Scalia, commenting on the pretzel-like contortions of this opinion (and one other), joked that Obamacare could have better been rechristened “SCOTUScare.”

The effort backfired on Roberts. His gesture got no quarter from liberals, who have continued to assail the Court in an attempt to weaken it as an institution. In 2020, for example, Chuck Schumer, the Senate Democratic leader, showed no moderation in his view of the Court when he went to the steps of the Supreme Court and said, regarding an abortion case, “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” A few months later, an armed man who intended to assassinate Kavanaugh was arrested near the justice’s house.

Nor did Roberts’s action help him with Republicans. His tortured logic raised questions among conservatives about Roberts, who may be the most conservative chief justice of the last century. The feeling in some quarters that Roberts was just another RINO justice who had moved left to please the media contributed to the splintering of the GOP and the rise of Donald Trump.

Obamacare also contributed to the weakening of the GOP in another way. Even as Republicans were becoming divided on a host of issues, they did seem to be unified in opposing Obamacare. Republicans promised to repeal Obamacare, voting to repeal all or parts of it multiple times while Obama was president. But they undermined their credibility with their own voters by failing to repeal Obamacare when they had the power to do so. In the first two years of the Trump presidency, Republicans had their own trifecta of the presidency, the House, and the Senate. Donald Trump rejected Speaker Paul Ryan’s proposal to repeal Obamacare with a two-year phaseout to give Republicans time to replace it. Then Senator John McCain, the Republican maverick, single-handedly caused the failure of a slimmed-down semi-repeal effort later that year.

The passage of the law also damaged the relationship between the Republican Party and big business. For years, Republicans had defended the pharmaceutical industry from relentless Democrat attacks. The pharmaceutical and insurance industries largely supported the Obamacare legislation, leading Republicans to wonder why they had previously been safeguarding those industries at great political cost. This had a downstream impact over time, and it helps explain why the GOP is now increasingly opposed to big business, with 2024 Republican vice-presidential nominee JD Vance openly supporting the break-up of big tech and the radical policies of Biden’s anti-business FTC chair, Lina Khan.

As all this was taking place in the institutions, Obamacare’s impact in the health-care arena also increased cynicism about American institutions. While Obamacare did reduce the number of uninsured people, it did not eliminate the problem. Furthermore, average out-of-pocket health spending rose, leaving Americans still feeling the squeeze.

At the same time, Obamacare broke Obama’s vaunted promise, “If you like your health-care plan, you can keep it.” As many as 9.3 million people lost their coverage in Obamacare’s initial open-enrollment period. When the magnitude of the lost coverages became apparent, Obama himself apologized for his broken promise, saying in January 2013, “I am sorry that they are finding themselves in this situation based on assurances they got from me.” Politifact, not known for its right-wing bias, named Obama’s promise 2013’s “Lie of the Year.”

“If you like your health-care plan, you can keep it” was the most prominent broken promise, but it was far from the only one. According to a recent report by the conservative Paragon Health Institute, there were at least a dozen broken promises, or places where the law failed to meet expectations. Life expectancy has dropped, so that the ACA did not fulfill its promise to save lives. The program was supposed to be limited to U.S. citizens, but Paragon found that subsidized ACA plans had enrolled unauthorized immigrants. Emergency-room use did not decrease, as promised, but has actually increased, including for non-emergency services. Finally, the individual market did not become a robust marketplace, with enrollment coming in significantly short of expectations. These various disconnects between what was promised and the reality further reduced trust in politicians and also in our governing institutions.

Perhaps the most significant of the broken promises for our long-term prospects as a nation was the promise to “bend the cost curve” downward. The years following the passage of Obamacare saw a significant increase in the debt and deficit. When the ACA was passed, the total public debt as a percent of GDP was about 88 percent. Now it’s approximately 120 percent, and we are seeing an increasing unwillingness from both parties to address the issue of deficit spending and debt accumulation.

There have obviously been many factors involved in the debt increase, but the ACA has certainly been one of them. Obamacare relied heavily on Medicaid to meet its coverage goals, and that program has increased its share of federal and state funding from 22.2 percent in 2010 to 26.9 percent in 2021—or an overall growth of more than 20 percent. In addition, federal spending on Obamacare subsidies is increasing. According to the House Ways and Means Committee, Obamacare subsidies—government payments to subsidize the purchase of insurance plans—amounted to $57 billion five years ago and are now projected to be $125 billion in 2025.

The health-cost problem is not abating. Health care as a percent of GDP is now about 18 percent, about where it was when Obamacare passed, but it is projected to hit 19.7 percent in 2032. This number would have been even worse without an unexpected recent dip in Medicare spending that appears to be mostly unrelated to the ACA. We as a nation are going to have to make some hard decisions about health-care spending in the years ahead, and Obamacare is not making those choices any easier.

At the same time, there is a general belief that the law was more of a gift to the health-care industry than to the American people. Pharmaceuticals, insurance companies, and hospitals have all done well in the years since Obamacare passed, despite assumptions that the law would rein in excess corporate profits. The S&P Health Care Sector index, a collection of health-care stocks, has grown from $365.16 after the law’s passage to $1,797.20 today, a staggering increase of 392 percent. Little wonder that Americans are increasingly skeptical of the entanglement of big government and big business.

Today, nearly 15 years after the passage of the ACA, the republic is in worse shape than it was at the time of its passage. Trust in institutions is down, the debt is far larger, and no serious analyst believes that we have solved our health-care challenges. So, yes, Biden was indeed correct that passage of the ACA was a “big f—ing deal.” But it was not a good deal for the American people or the constitutional order.

^{1 White House adviser Chris Jennings had warned in a 1993 White House memo that Democratic Representative Jim Cooper, the leading voice on health care in the Congress, “believes that his efforts to comply with the Administration’s wishes to not introduce [Cooper’s version of] reform legislation have been unappreciated.”}

Photo: AP Photo/Don Peterson

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