By Nancy Thorner and Ed Ingold –
King vs. Burwell is the latest legal challenge to ObamaCare (Affordable Care Act) before the U.S. Supreme Court.The group behind the suit is the Competitive Enterprise Institution, an advocate for limited government and individual liberty. Represented by the institute are four Virginia resident who say they don’t want to buy the insurance required under Obamacare.Because haste and carelessness ensued in writing and passing Obama Care, federal agencies must now step outside their legal authority to clarify some of the words used in the convoluted bill.
At issue in King vs. Burwell is the legality of the billions of dollars in subsidies being doled our though federal exchanges in about 35 states who refused to set up their own exchanges. It is these four words, “established by the state” that could either make or break Obamacare. The statute does say that people qualify for credits when buying insurance on an exchange. Challengers contend, however, that the four words under scrutiny establish that subsidies for insurance can only flow though exchanges “established by the State”, and that federal subsides given to individuals in states without state exchange are illegal.
It’s a toss up which way the Supreme Court will rule on the Obamacare subsidy issue. If they decide the wording prevails, then subsidies are gone and with it the basis for insurance exchanges. What do the Republicans do?
The Obama administration is confident the worst will not come to pass: it contends that the phrase is a “term of art,” and that other parts of the law show that there is no distinction between federal and state run exchanges. So confident it the Obama administration that it has no back up plan ready if the Supreme Courts rules against it. As Obama recently said:
“If they rule against us, we’ll have to take a look at what our options are, but I”m not going to anticipate that. I’m not going to anticipate bad law.”
With this in mind Democrats will most likely sit tight and demand that the Republicans pass a “clean” bill which reverses the questioned wording in the ACA, restoring the status quo. This is notwithstanding that limiting subsidies to state established exchanges was deliberately inserted by the Democrats to dangle a carrot encouraging the states to accept responsibility for the exchanges and doubling Medicaid in the process. The ACA was passed by the Senate, completely rewritten by the Democratically controlled house, returned to the Senate and “deemed” acceptable by Harry Reid without debating the changes on the Senate floor. This was done in the middle of the night on Christmas Eve, because the new Republican Senator from Massachusetts, Brown, broke the Democrats’ hold on the Senate.
The Democrats will, of course, blame Republicans for the loss of the ACA sugar, and refuse to consider any changes to ACA. Unless McConnell uses the “nuclear option”, anything other than a “clean” bill will never even be debated in the Senate. Even so, Obama will certainly veto anything which diminishes his “legacy” health care bill.
Why does Obamacare suddenly become too expensive for 11 million citizens in the exchanges? Mainly because the ten coverage mandates double the cost of health insurance, in particular, coverage for pre-existing conditions and eliminating lifetime caps on payouts.
The real debacle starts in 2016, with implementation of employer mandates, which will affect between 70 and 80 million citizens who currently have employee benefits. The ACA defines “full time employment” at 30 hours/week or more, instead of the current 40 hours. This means millions of part-time workers will be fired or their hours cut back 25% or more. The coverage mandates will increase the cost to employers (except for the self-insured, like Abbott), resulting in cutbacks in coverage, increase in co-pay costs and doubling (or more) of annual deductables. Furthermore a 40% “Cadillac tax” will apply to nearly every benefit package, prompting further cutbacks.
One of the goals established for ACA was to cover the 30 million citizens without insurance. There are still $30 million without insurance, perhaps more.
Despite the cockiness of the Obama administration in having no Plan B ready to implement, and in further believing that the Supreme Court will look beyond the “established by the state” wording to the rest of the act and its broad purpose of providing coverage to tens of millions of uninsured Americans, both sides can find reasons for hope. The four liberal ideologues on the court have already decided that way, leaving Justices Kennedy and Roberts to go either way. Chief Justice Roberts remains the trump card. Will Roberts base his vote on maintaining the court’s institutional integrity out of concern that striking down the law would be seen as a political decision, or will Roberts adhere to the statue’s wording in a non-constitutional case?
Democrats are counting on a political rather than a legalistic decision from the Court
Should the Supreme Court rule against the subsidies, the Democrats probably feel they have a strong hand to insist that the Republican Congress simply “repair” the defective language because most of the 36 affected states are “Red” states. This could be illusory. At least one justice mused that giving subsidies to only part of the country would render the subsidies unconstitutional under the equal protection principle. This is the same logic by which the Supreme Court struck down the ACA provisions to withhold Medicaid payments to states which declined expansion of that costly program,
Meanwhile, Republicans are eager to show they have a Plan B. Republican governors are scrambling to come up with a response should the Supreme Court invalidates subsides that help millions of their states’ citizens buy health insurance ObamaCare, perhaps making it more difficult for the GOP to rally around a single solution.Reps. Paul Ryan, John Kline and Fred Upton wrote an op-ed in the “Wall Street Journal” on March 2 in which they proposed an “off-ramp out of Obamacare,” that would allow states to opt-out of insurance mandates and offer options for those who can’t otherwise afford insurance. Sens. Orrin Hatch, Lamar Alexander and John Barrasso wrote in the “Washington Post”, they too would help those who can’t afford coverage during a “transitional period” and let states create alternative marketplaces.
Thorner and Ingold can think of a few changes the Republicans can propose and defend, if they have the backbone to do so and make a real case to the public.
- Hold fast on elimination of subsidies based solely on income in Federally run exchanges. Alternately, issue a temporary continuance so that people are not penalized for Obama’s mistakes.
- Eliminate the costly Obama mandates which are the reason insurance is so costly and so many people were cancelled. Replace them with a high risk pool for those with pre-existing conditions and major medical for those with catastrophic illness. Help the needy, not punish the successful
- Redefine full time work as 40 hours
- Eliminate the barriers to multi-state exchanges. The current practice panders to nanny states like New York and California who think they know best.
- Eliminate the employer mandate before it takes effect and drives unemployment through the roof. The 50 employee threshold will “Francify” the U.S. and create a nation of small employers (like France) who can’t afford to grow, against a background of super-corporations who have the resources to flourish under government control.
- Eliminate the automatic filibuster threshold of 60 votes. If Democrats want to filibuster, let them stand and talk until they drop, then take a vote, or simply vote for cloture. Let Obama take the heat for vetoes, not Congress for inaction.
In the recent past, Republican leaders have withered against a unified Democratic minority. We can’t let the Democrats win victory after victory.