The Nuclear Option and Political Responsibility for Obamacare

As Obamacare costs and premiums skyrocket and if the new Congress is willing to address these issues again, it is important for all of us to remember who did what. Political Accountability.

In 2013, after Reid and the Senate majority nullified the Senate cloture rule (requiring 60 members to break a filibuster), I wrote:

The Senate’s use of the nuclear option pins any defects in the Affordable Care Act (“ACA”) on the Democrats. Until the nuclear option was used, Democrats said that they had to pass an arguably defective bill because they could not get around a minority Republican-led filibuster in the Senate. In other words, although the Senate was able to invoke cloture and pass the ACA when it had Senate Ted Kennedy’s vote, once he died and was replaced by Senator Scott Brown, the Democratic majority in the Senate was unable to pass an alternative bill or substantively amend the ACA.

But the use of the nuclear option undercuts that narrative. We now know that the Democratic majority always had the ability to change the rules and to end debate on any amendment or amendments to the ACA. The Senate Democratic majority always had the power to terminate debate—it is just that the Senate Democratic majority refused to exercise that power.

If Obamacare is defective, it is not because the Republicans filibustered or threatened to filibuster any amendments, but because the Senate Democratic majority refused to terminate debate using a power which was always within their reach. It follows that political responsibility for any virtues or defects in the ACA rests entirely with the Democrats who passed it.

Randy Barnett, The Nuclear Option and Political Responsibility for Obamacare, Volokh Conspiracy (Nov. 26, 2013, 10:57 AM), http://tinyurl.com/zwh2p85

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, A Successful Tweet: over 20,000 impressions, The New Reform Club (Sept. 20, 2016, 4:18 AM). [Here]