Next week, we can expect the House to take up Obamacare. House Republicans have repeatedly made clear they want to cancel the whole thing, or “permanently delay it,” but we are likely to see more narrowly focused votes.
First, in a tip of the hat to the rule of law, Congress will pass a bill to put into the statute the president’s announcement that he is not going to follow the law. This is essential, as James Capretta of the Ethics & Public Policy Center explained in testimony:
It is certainly clear that the administration’s current plan is not consistent with the intent of the statute. Congress put in place this mandate, and a reporting system to enforce it, to begin in 2014, not 2015. When the law says that the Secretary has discretion over the timing and manner of employer reporting, it’s obvious that this was not intended to mean the Secretary could decide to start employer reporting for activity occurring in 2015. That makes no sense in the context of what is required of employers under the law.
I am not a lawyer. I will leave it to others to debate whether the administration can stretch the meaning of the words in the statute to justify what they are doing. I would only note that no one has yet disputed that it is clearly inconsistent with what Congress intended.
Moreover, even if the reporting requirements are delayed and the administration looks the other way on employer penalties, the law’s requirements are not wiped away by an administrative act. Employers are still — by law — subject to the employer mandate and associated penalties in 2014, whether or not the administration collects them. A blog post, or a regulation for that matter, cannot undo the mandate in 2014. That step can only be achieved by another act of Congress.
He’s right about that.
The House will also move to suspend the individual mandate, which Democrats properly recognize is at the heart of Obamacare (e.g., by forcing young and healthy people into the exchanges, it subsidizes older and sicker people). House Democrats, as well as the White House (“A delay in the individual mandate is repeal by another name”), have repeatedly made the point that killing the individual mandate kills Obamacare. “If you take away the individual mandate, that would dismantle a core concept of universal coverage,” says Rep. Jim McDermott (D-Wa.).
This is precisely why Republicans want to drive a stake through it and Democrats are desperate to keep it, even at the price of waiving the requirement to show proof of income to get the federal subsidies.
Republicans are more than happy to force a vote on the individual mandate. Why wouldn’t they? They have both politics and policy on their side.
On the policy end, Speaker John Boehner (Ohio) and other Republicans are repeating the key point here: The administration is cutting big business a break while forcing individuals to buy insurance they don’t necessarily want. Where is the fairness in that? Moreover, without requiring proof of income, the exchanges will be inviting fraud and send cost projections soaring. Will some Democrats feel compelled to at least delay the individual mandate? If they do, Republicans will have scored a big win, and if not, they’ll use it in 2014 to bash Democrats.
But there is a much bigger problem coming down the pike Oct. 1, the date by which the exchanges must be up and running. The Government Accountability Office put out a report in June explaining that the Centers for Medicare & Medicaid Services, which will have to run 34 exchanges, might not make it:
Much progress has been made, but much remains to be accomplished within a relatively short amount of time. CMS’s timelines provide a roadmap to completion; however, factors such as the still-evolving scope of CMS’s required activities in each state and the many activities yet to be performed — some close to the start of enrollment — suggest a potential for challenges going forward. And while the missed interim deadlines may not affect implementation, additional missed deadlines closer to the start of enrollment could do so.
CMS recently completed risk assessments and plans for mitigating risks associated with the data hub, and is also working on strategies to address state preparedness contingencies. Whether these efforts will assure the timely and smooth implementation of the exchanges by October 2013 cannot yet be determined.
So, unless Congress acts, it is very possible employers will be off the hook while employees will be obligated to buy insurance from exchanges that are not fully equipped to sell it to them. The entire edifice of Obamacare thereby crumbles.
Libertarian columnist Megan McArdle argues:
For obvious reasons, the Obama administration did not want to tell folks that if they needed subsidies, they would be given access to a handful of HMOs. Nor that they would go onto the exchanges and be told to print out a paper application they could send to their state’s Medicaid office. That law would never have passed Congress, or the public. So they announced that everyone above 133% of the federal poverty line would get access to the same set of plans on a nifty exchange, with the government subsidizing the premiums to make it affordable for families making up to 400% of the FPL. The exchange would automatically calculate your subsidy based on the information you gave it, and enable you to purchase insurance at the subsidized price immediately. And the exchange would verify that you actually had the income you said you did, as well as a few other things, like whether you were a citizen or legal resident.
But without employers provide data to the exchanges and without certainty that the exchanges can get hooked up, the potential for chaos — lost coverage and massive fraud, for example — looms large. As she puts it, “The alternatives are to delay the whole bill, or resign ourselves to hemorrhaging wads of cash.”
Dems want to hemorrhage wads of cash, in keeping with their desire to transform an unworkable bill without changing the law, no matter what the impact to taxpayers and patients. It is grossly irresponsible, not to mention unlawful.
Republicans are right on the merits: The whole thing needs to be frozen and rethought. And they are right on the politics: Let Democrats defend this gargantuan mess and deal with the howls when individuals are dumped from employer plans and can’t afford or even find insurance through the hobbled exchanges.