Was the Republican Attempt to Repeal Obamacare a Sham?

This article first appeared on the Dorf on Law site.

In an episode of Seinfeld, Elaine buys a dress that looks good on her in the store, only to find that when she tries it on at home, it is unflattering. Outraged, she concludes that the store's dressing room was outfitted with "skinny mirrors."

The episode seems an apt metaphor for the bit of theater that transpired in the Senate late last week. Say what you will about Mitch McConnell's appalling record; the man is a master magician. His so-called "skinny repeal" bill was a deeply layered trick.

We may never know whether its narrow defeat at the hands of a battered-but-not-beaten John McCain was itself part of the illusion. I suspect not, but focusing too much attention on McCain simply legitimates McConnell's legislative legerdemain.

Like any skilled magician, McConnell sought to distract the audience from the real action with shiny objects. Wittingly or not, McCain played the role of shiny object—but only at the denouement.

The real distractor was Paul Ryan. As the vote whipping and counter-whipping proceeded late Thursday night and into Friday morning, the home audience was told that the sticking point was the House of Representatives.

GettyImages-533965252 (Left to right) U.S. Sen. John Barrasso (R-WY), Sen. John Thune (R-SD), Sen. John McCain (R-AZ), Senate Majority Whip Sen. John Cornyn (R-TX), and Senate Majority Leader Sen. Mitch McConnell (R-KY) May 24, 2016 on Capitol Hill in Washington, DC. Alex Wong/Getty

Would the House take the skinny repeal bill to the joint House-Senate conference committee as a mere placeholder to begin negotiations on a new bill—as McConnell assured wavering Senators—or would the House double-cross those Senators by simply enacting the skinny bill into law?

Paul Ryan's eleventh-hour assurances that the skinny bill would serve only as a vehicle to get to conference satisfied McCain BFF Lindsey Graham and other reluctant GOP Senators but not Susan Collins, Lisa Murkowski (despite the horse head Trump stashed under her covers), or the old Arizona warrior himself.

Collins, Murkowski, and McCain were, of course, right not to trust Ryan. He vowed to take the skinny repeal to conference, but he did not say that if no bill emerging from conference secured passage from both the House and Senate, the House would not at that point vote for the skinny repeal and thus enact it into law following what would no doubt be described by the POTUS as the most beautiful Rose Garden signing ceremony ever.

Yet Ryan was at best a MacGuffin in this episode of the long-running GOP Obamacare repeal telenovela.

The reason the House posed a threat in the first place was because of the content of the skinny repeal—which was McConnell's doing. If the true purpose of the skinny repeal bill were merely to get to conference, it would have been a lot skinnier . McConnell could have offered a bill that cut Obamacare taxes and subsidies by 0.000001 percent or something equally harmless.

Yet as Eric Levitz insightfully noted in New York Magazine, the actual skinny bill that McConnell put forward "was adorned with sections transparently designed to enhance the legislation’s chances of passing the House. Beyond killing the mandates so loathed by conservatives, the 'skinny' bill also defunded Planned Parenthood and subtly undermined Obamacare’s regulations of the insurance market."

Note the layers of deception. Before capitulating in light of Ryan's empty promise, Graham called the skinny bill a "fraud"—ostensibly because it was not meant to be enacted at all.

But the fraud, it turned out, was the very idea that the skinny repeal bill was a fraud. Collins, Murkowski, and McCain voted no, it appears, because the fraud was not a fraud at all but the genuine "disaster" that Graham also said it was.

Was there a still deeper level? What if McConnell's true aim all along was failure?

The GOP rhetoric on the Affordable Care Act has long been self-contradictory: Obamacare, we are told, is a disaster because of high premiums, high deductibles, and large numbers of people left without health insurance; yet the Republican "solution" is to cut support for it so that premiums, deductibles, and the number of uninsured all go up .

Perhaps the GOP would like to appear to be making every effort to repeal Obamacare and replace it with something "terrific," but knowing that whatever legislation passes would makes things demonstrably worse, the appearance is only for show. Better, in this view, to let (i.e., try to make) the ACA "implode," as the president intermittently tweets and says, and let Democrats take the blame.

Yet the foregoing seems highly implausible and not just because Trump and his Senate GOP frenemies still haven't given up on quickly passing a repeal-and-replace bill.

I do not discount the possibility that some Republican legislators secretly hope to fail in their quest to repeal the ACA. However, I am not enough of a conspiracy theorist to think that this is the actual plan.

Republican House members in safe districts are more vulnerable to primary challenges from Tea Party types than are Republican Senators, but Senators are not invulnerable, and they worry a great deal about angering the base—which really does believe the self-contradictory anti-Obamacare GOP rhetoric.

Thus, I am left to conclude that McConnell's skinny-bill deception was "only" two levels deep: a fake bill that was secretly a real bill. The real question, then, is how all but three Republican Senators could have fallen for it.

Or, if one thinks that the other 49 were in on the trick, one wonders how even a sizable minority of the American People could have fallen for it.

A recent episode of This American Life about magic may offer a clue. Ira Glass and David Kestenbaum (each of whom was a child magician) explain that although many magic tricks are demystified when one learns how they are done, some illusions are all the more impressive when one learns the secret—because even armed with that knowledge, the illusion persists.

A truly elegant trick, they say, fools the magician himself as he performs it. Thus, for example, Penn informs the audience that a segment with a ball is performed by Teller "with just a piece of thread." It's true. You watch, knowing that a piece of thread connects the ball to Teller in some way, and that knowledge makes the trick all the more impressive because you still can't figure out how he's doing it.

Not everyone enjoys a magic show, but for those who do, what makes it work is the fact that even as part of your mind wants to know how the trick is done, another part of your mind wants to be fooled. If you are not fooled, it's no fun. A successful magic show requires both a skilled magician and an audience that, at some level, wants to believe the illusion.

A magic show, of course, is just harmless fun. Legislation that would take away health insurance from tens of millions of people is deadly serious.

To their credit, the vast majority of Americans oppose the GOP efforts to repeal the ACA. By making their voices heard, they were able to halt those efforts—at least for now.

But the fact that Congress came as close as it did, and may yet succeed in this horrible endeavor, should give us pause. Clearly there are tens of millions of Americans—many of whom would lose their own health insurance—who want to believe the Republican illusion. Why?

Much of it no doubt is explained by partisanship. GOP base voters may have other reasons for supporting the Republican party, and implacable opposition to Obamacare simply comes as part of the package.

But I suspect that there is also something else at work here.

The people who want Obamacare repealed even against their own interest (people who are, again, a minority of the public, but a substantial minority) want to believe in McConnell's self-contradictory magic because they find the alternative too awful to contemplate: the possibility that the entire leadership of the major American party with which they identify—and not just our alternative-reality-tv president—are not magicians after all but simply con men.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

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