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Authors of Affordable Care law astounded by its trials

bill greene/globe staff

JONATHAN GRUBER

After countless hours crafting the universal health care law in Massachusetts as an adviser to Governor Mitt Romney and then on the national level for the Obama administration, MIT economics professor Jonathan Gruber couldn’t believe that any judge would seriously entertain arguments against the central plank of both plans.

“I remember a few meetings where someone raised the question of a constitutional challenge,” he said of his time in Washington helping to create the Affordable Care Act, with its requirement that people have health insurance or pay a penalty. “Everyone would say that expert lawyers had been consulted, and that there was no issue.”

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Similarly, when he was helping to draft the US Senate’s health bill, John McDonough, who also played a major role in shaping the state health law, never imagined that the insurance mandate could be found unconstitutional. “We were confident that it was legal in every respect,” said McDonough, now a professor at the Harvard School of Public Health. “The [government] can require you to do all kinds of things. It wasn’t a question of can we use a mandate; it was whether we should.”

A day after the Supreme Court upheld President Obama’s health care law by one vote, the local advocates — perhaps the two nonpoliticians from Massachusetts most responsible for transforming the state’s health overhaul into national legislation — expressed incredulity at how close the law came to being overturned and elation that all their work had not been for naught.

It didn’t dawn on Gruber that there was any legal jeopardy until a federal judge in Florida early last year ruled that the health care law was unconstitutional on the grounds that the mandate to buy insurance exceeded the authority of Congress to regulate interstate commerce, a position eventually supported by a majority of Supreme Court justices. The judge ruled that the entire law should be struck down.

MATTHEW J. LEE/GLOBE STAFF

JOHN MCDONOUGH

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“I thought it was ludicrous, a transparently political opinion,” Gruber said. “I realized at that point that it had become political at the judicial level, in a way that I didn’t think was possible. That’s when it became worrisome.”

By the time he heard the oral arguments before the Supreme Court in March, Gruber began to question whether the law would survive.

‘We were confident that it was legal in every respect. ’

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“The oral arguments were like living in an Ayn Randian nightmare,” he said, referring to the late author revered by conservatives. “They were taking these wacky theories seriously.”

He added: “I was right to be worried. We were very close to losing everything, which is insane. It was close to being a very scary moment for American democracy.”

For McDonough, a former aide to Senator Edward M. Kennedy who previously served as executive director for Health Care for All, one of the leading advocacy groups that pushed for universal health care in Massachusetts, he thought language in the Affordable Care Act would inoculate the law from challenges.

He pointed to a section of the law that explained why Congress had the power under the Commerce Clause of the Constitution to require Americans to have health insurance, or face a penalty if they declined to pay for it.

“The belief was the Commerce Clause precedent was robust and provided ample justification for what was being done,” McDonough said. “We were advised by constitutional lawyers to make clear why we were doing what we were doing, and what our justification was. The bill presented the rationale for why were acting rationally.”

He said administration lawyers and constitutional scholars argued that while there would probably be legal challenges, it was laughable to think that the Supreme Court would take seriously any challenge to Congress’s authority to regulate commerce.

He watched with growing dread as different courts called for the law to be overturned and the Supreme Court took the case.

“It wasn’t until the oral arguments went so atrociously that I started to get concerned that this might go very badly,” he said. “I think the court is a reflection of the intense hyper-partisan nature of our political culture.”

In the end, McDonough and Gruber were delighted that Justice John G. Roberts Jr. joined the four more liberal justices to uphold the law. Still, Gruber said he was surprised that a majority of the court “disagreed with so many constitutional experts” on the Commerce Clause. “I was quite frankly stunned that what were considered nuisance arguments got as far they did.”

Gruber said the law has now reached the halfway mark on its journey to transforming the country’s health care system. He said it will have to survive this fall’s presidential election and then overcome the complexities and politics of being fully implemented by all the states. “I think the main threat now is a lack of leadership and financial support,” Gruber said. “This law requires a committed White House to be successful.”

He added: “It’s going to be very hard to repeal but not hard to kill. You can kill it from the inside, by not enforcing it.”

David Abel can be reached at dabel@globe.com. Follow him on Twitter @davabel.
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