The Affordable Care Act From the 2009 Town Halls to a Zero-Dollar Penalty

Here is a law that was passed on Christmas Eve, signed in a ceremony, upheld by calling its central penalty something its sponsors swore it was not, launched on a website that would not load, and finally defeated by being reduced to zero. If you wrote that as fiction, an editor would send it back and say nobody would believe it.

It happened, and it happened in order. I want to walk through it the way a historian would, date by date, because the dates tell you something the slogans never do. This law was never sold to a country that wanted it. It was pushed through a country that kept telling Washington it did not. Every step below shows what Washington did next, and why each step mattered.

Why a timeline

A timeline strips out the spin. You cannot say a law was popular, or beloved, or settled, once the dates are laid out in a row. You see the votes, the court cases, the rewrites and the retreats. You also see something that deserves more attention than it gets, which is that the law's defenders and its critics are both telling a partly true story. The critics are right that promises were broken. The defenders are right that a good deal of the structure survived every challenge. The honest account has to hold both facts.

The record, in order

August 2009: the town halls

Congress went home for its August recess in 2009 with health legislation pending, and members held public meetings in their districts. Many of those meetings were packed with constituents who had read as much as they could of bills running over a thousand pages, and who had questions.

Why it mattered: the ordinary citizen turned up in a school gym and asked his congressman what was in the bill, and the coverage of that moment was a study in framing. People who asked questions were described as a mob. People who had read the text were described as misinformed. A free republic is supposed to treat a constituent's question as the point of the exercise, not as a disturbance of it. The town halls showed the limits of the case for the bill before a single vote was cast.

December 24, 2009: the Senate passes its bill

The Senate passed its version of the health bill on Christmas Eve, by a vote of 60 to 39, with every Democrat and both independents in favor and every Republican who voted opposed. Sixty was the exact number needed to end a filibuster. Nobody had a vote to spare.

Why it mattered: a law remaking one-sixth of the economy passed without a single vote from the minority party. That was legal. It was also a warning. A law carried by one party's votes can be undone by the other party's votes, and the law's long political life from here on shows how right the warning was. Passing it on Christmas Eve also gave the late-night comedians a gift they could not have written themselves.

January 19, 2010, and the House's March vote

On January 19, 2010, Massachusetts voters elected Scott Brown to the Senate seat long held by Edward Kennedy, and that gave the Republican minority the forty-first vote needed to sustain a filibuster. The Senate bill could no longer survive another round in the Senate if the House changed it. So the House took a different road. On March 21, 2010, it passed the Senate's bill unchanged, by a vote of 219 to 212, and sent a separate package of fixes through the budget reconciliation process, which needs only a simple majority in the Senate.

Why it mattered: this was the legislative equivalent of buying a house and negotiating the price afterward. The House accepted a bill many of its members disliked on the promise that a second bill would fix it.

March 23, 2010: the signing

President Obama signed the Patient Protection and Affordable Care Act on March 23, 2010. The headline promises were these: if you like your plan, you can keep it; family premiums would fall; the law would not add to the deficit; and the mandate to buy insurance was not a tax.

Why it mattered: remember those four promises. Every one of them gets tested later in this timeline, and I take them apart in order in Seven Promises Made for the Affordable Care Act, Tested Against the Record.

March 30, 2010: the reconciliation act

The Health Care and Education Reconciliation Act of 2010 became law on March 30, a week after the main bill. It changed pieces of the main law, including some of its subsidies, taxes and the schedule of a tax on high-cost plans. It also bundled in an overhaul of the student loan system, which is a delightful feature of reconciliation: one bill for two different problems, joined only by the fact that both could pass.

Why it mattered: it showed the cost of the process. When a law has to be fixed by a second law immediately, the first one was not finished.

June 28, 2012: NFIB v. Sebelius

The Supreme Court decided National Federation of Independent Business v. Sebelius by a vote of 5 to 4 on the mandate. Chief Justice Roberts wrote that the individual mandate could not be sustained under the Commerce Clause, because the power to regulate commerce presupposes commercial activity to regulate, and the Constitution does not let Congress compel citizens to become participants in a market in order to regulate them. But, he held, the mandate's penalty could be read as a tax, and Congress has the power to tax. The Court also held, by a vote of 7 to 2 on that issue, that Congress could not threaten states with the loss of all their existing Medicaid funds to force them to expand the program, which made the expansion optional.

Why it mattered: two things at once. The Court limited Congress's Commerce power in a way conservatives had argued for years. And the law survived by being called what its sponsors had said it was not. I give the opinion a close reading in John Roberts Called the Mandate a Tax, and Conservatives Still Argue About Why. The government's own lawyers had argued the tax power in the alternative, and the President had earlier rejected the label on television. The ruling made the label official.

October 1, 2013: the launch of HealthCare.gov

The federal exchange website opened for enrollment on October 1, 2013, and it did not work. People could not create accounts, could not log in, could not see plans. Administration officials apologized and engineers worked through the autumn to rebuild it.

Why it mattered: the government had asked the country to trust it with a sixth of the economy, and its first act was a website that could not process a form. In the same weeks, insurers sent cancellation notices to people whose plans did not meet the law's new standards, notices that contradicted the promise that you could keep what you liked. The President then announced that insurers could extend those plans for a year, and the arrangement became a patchwork of waivers, delays and extensions. A statute that had to be amended by press conference was telling you something about how it had been drafted.

June 25, 2015: King v. Burwell

In King v. Burwell, the Court ruled 6 to 3 that the law's tax credits were available to buyers on the federal exchange, even though the statute's subsidy provision spoke of exchanges "established by the State." Chief Justice Roberts wrote the opinion and Justice Scalia wrote a sharp dissent.

Why it mattered: the law's financial structure survived, but the means mattered. The Court read the statute against its natural meaning to preserve the scheme. King v. Burwell and the Four Words the Supreme Court Chose to Rewrite tells that story in full.

The retreat, 2017 to 2021

July 28, 2017: the Senate repeal fails

After years of promising repeal, a Republican Senate came to the floor in the early hours of July 28, 2017 with a slimmed-down repeal measure. It failed, 49 to 51. Senators John McCain, Susan Collins and Lisa Murkowski joined every Democrat in voting no, and Senator McCain's thumbs-down gesture on the floor became the picture of the night.

Why it mattered: it showed that repeal is harder than opposition. When the House passed the American Health Care Act in May of that year, and the Senate could not pass anything, the broader lesson was that a program, once it has beneficiaries, gains a constituency. Conservatives who promised repeal for seven years had not written a replacement that all of them could vote for. That is a hard thing to say, and it is true. The various proposals are compared in Four Conservative Health Plans Side by Side, From Tax Credits to Block Grants.

December 22, 2017: the penalty goes to zero

The Tax Cuts and Jobs Act, signed on December 22, 2017, did not repeal the Affordable Care Act. It did something more elegant. It set the individual mandate's penalty to zero, beginning in 2019. The mandate remained on the books as a sentence in the statute. It simply cost you nothing to ignore it.

Why it mattered: this is the quiet retreat the title promises. The mandate was the keystone of the law, the provision its defenders said it could not live without, and the Court had upheld it only as a tax. A tax set to zero is a tax repealed in everything but name. It confirmed the argument conservatives had made from the start, that a government cannot make people buy a product, and that the country would rather pay nothing than be compelled to buy.

June 17, 2021: California v. Texas

A group of states and individuals then argued that, with the penalty at zero, the mandate was unconstitutional because it could no longer be justified as a tax, and that the rest of the law had to fall with it. In California v. Texas, the Court held 7 to 2 that the challengers had no standing, because a mandate with no penalty injured no one. It never reached the merits.

Why it mattered: the law survived another challenge, this time on a technicality, and the decision showed how much of the law's staying power came from procedure and not from the country's embrace of it.

What the record teaches

Walk back through that list and four lessons come out of it, which I will number for easy checking.

1. A law passed on one party's votes is a law on probation. The Christmas Eve vote, the reconciliation patch and the repeal attempts all follow from the way the bill passed.
2. Promises are the weakest part of a statute. Every one of the four headline promises was tested by events, and the record of that testing is the central fact about the law.
3. The courts moved the law's edges and kept its core. NFIB limited the Commerce power and the Medicaid coercion. King and California v. Texas kept the law standing. Anyone who tells you the courts either gutted it or saved it is simplifying.
4. The retreat was quiet because the argument was lost. When Congress set the penalty to zero, it did not need a repeal vote. The thing everyone said was essential turned out to be optional.

Now the fair counterpoint. The law's defenders say that tens of millions of people gained coverage, that people with preexisting conditions could no longer be turned away, and that young adults could stay on a parent's plan until 26. Those are real features, and many of them are popular. Conservatives who dismiss them lose the argument. The right answer is that those goals could be met without a mandate and without a tower of subsidies, which is why the high-risk pool idea in High-Risk Pools Covered the Sick Before 2014, and They Could Do It Again belongs in any serious replacement. Wanting to protect a sick person is not the same as wanting this particular law.

The Founders' yardstick

Now the Founding. James Madison wrote in Federalist No. 45 that the powers delegated to the federal government are "few and defined," while those that remain with the states are "numerous and indefinite." Hold that sentence next to the history above. The Affordable Care Act asked Congress to do something no earlier Congress had claimed it could: to compel every American to buy a particular product, and to make the states administer a vast expansion of a shared program under threat of losing what they already had. The Court said no to both of those claims, at least in the form Congress made them. That is the Founders' structure working as designed, imperfectly and a little late.

The deeper point is about self-government. The Founders wanted the big decisions made by people who answer to voters, through laws that the voters can understand. A thousand-page bill that nobody had time to read, fixed by a second bill and then by agency guidance, is the opposite of that ideal.

The case in brief

1. The Affordable Care Act passed the Senate 60 to 39 on December 24, 2009, and was signed on March 23, 2010, without a single vote from the minority party, which left it politically exposed from the first day.
2. NFIB v. Sebelius (2012) held that the mandate could not rest on the Commerce Clause and made the Medicaid expansion optional, but it kept the law alive by calling the penalty a tax.
3. HealthCare.gov's failed launch on October 1, 2013 and the cancellation notices broke the promise that you could keep what you liked.
4. Repeal failed in the Senate on July 28, 2017 by a vote of 49 to 51, but the 2017 tax law set the mandate penalty to zero from 2019, and the Court in California v. Texas (2021) left the law standing on standing grounds.
5. The record shows conservatives won the argument about compulsion and lost the vote on repeal, which is a reason to write a replacement worth voting for.

What you can do: read the one-page summary of NFIB v. Sebelius on the Supreme Court's website, then write to your two senators and ask what replacement, if any, they would support.