Earlier this month, supporters and opponents of the 2010 Patient Protection and Affordable Care Act (PPACA, also known as “Obamacare”) once again appeared before the U.S. Supreme Court to argue over the law. This time, the opponents demanded the federal government follow a PPACA provision that, strictly read, limits the law’s reach. Supporters claimed the provision conflicts with other parts of the law, which would mean the Obama administration is free to “interpret” the provision—and thus ignore it.

This column isn’t about the case. Whatever the merits on each side, PPACA’s supporters will almost certainly be victorious when the Court announces its decision late this spring. The Supremes seem determined to preserve the health care law and will use whatever tortured legal reasoning is necessary to do so.

That’s too bad because PPACA would benefit from its supporters losing this case. A victory by the opponents would change how the law works in some states but not in others, creating a test of some of the law’s positive and negative effects. That, in turn, would force politicians in Washington and state capitals to reconsider the law, opening it and other federal and state health care laws and regulations to debate and amendment. That could yield a legitimate improvement of American health care and perhaps even earn PPACA the approval of a majority of Americans—something it hasn’t had so far.[1]

How did such flawed legislation become law? Back in 2009, Democrats held the presidency and overwhelming majorities in the House and Senate. That gave them the opportunity to do something they had long desired: reengineer an American health care system that was (and still is[2]) in desperate need of change.

Americans, justifiably concerned about their health care, wanted to know what the Democrats were drafting behind closed doors. But the Democrats were not very forthcoming about what would ultimately become a 906-page bill. As Democratic House leader Nancy Pelosi said when the legislation moved toward final passage, people could find out what’s in it after Congress passed it.[3]

That obstinacy gave birth to the Tea Party movement, reviving the then-moribund Republican Party. Through the summer and fall of 2009, Democratic lawmakers received earfuls of criticism from their constituents. That uproar should have prompted more transparent, deliberative, modest and bipartisan policymaking. Instead, the lawmakers responded with deception (“if you like your doctor or health care plan, you can keep it”[4]) and a determination to pass whatever they drafted, regardless of public opinion.

Using a series of unorthodox legislative maneuvers, the bill was introduced in Congress in the fall of 2009 and gained final passage in the spring of 2010. Following its signing, supporters confidently predicted that Americans would quickly come to love the law.

So far, that love hasn’t blossomed. It’s been hindered by the Obama administration’s fumbled implementation, similar incompetency by several Democratic governors,[5] millions of people discovering they couldn’t keep their insurance[6] or doctors,[7] a majority of states refusing to change their laws as PPACA envisioned, and the Supreme Court’s pretzel-logic efforts to preserve the law. The latest polls indicate a (bare) majority of Americans oppose PPACA while less than 40 percent support it.[8]

That support will wane further as Americans discover how little PPACA does to address their biggest concerns about health care. Medical costs will keep rising, the health care system will still seem monolithic and imposing, Medicare and Medicaid’s long-term fiscal woes remain unchanged, and problems that bedeviled state-regulated health insurance are now migrating to the federal level.

In fairness, PPACA does try to do some good things—specifically, expand health care coverage for low-income households and people with existing medical problems. But it uses questionable, costly and regressive mechanisms to provide those benefits, and it leaves many other problems untouched, creates new ones, and makes a number of tradeoffs that many Americans will consider unacceptable.

Much political heartache would have been avoided if the 2009–2010 Congress had assembled, debated and amended PPACA openly and inclusively, responding to Americans’ concerns. Yes, the process would have been long and painful, and it would have yielded less radical legislation, but it would have improved the public’s understanding of the bill, allowed for the inclusion of many good policy ideas and the removal of bad ones, and—most importantly—it would have encouraged politicians and the public to buy in to PPACA. Instead, the legislation’s supporters chose to “ramrod it through.” Half a decade later, we’re still dealing with that bad choice.

A Supreme Court defeat would give policymakers an invaluable do-over. Crafting good policy for an incredibly diverse nation of 320 million people requires considerable modesty, debate, flexibility and compromise. That’s especially true for an issue as vital and personal as health care. Hopefully, the Supreme Court will force that process to finally take place.

Thomas A. Firey is a senior fellow at the Maryland Public Policy Institute and a Washington County native.