Democratic pollster Celinda Lake advises Democrats not to bother defending Obamacare. (“Say it was flawed from the beginning, and we’re going to fix it.”) That raises some interesting problems for Democrats.
First, why did they vote for this mess, and why have they been resisting fixing it so far? There is quite a credibility problem for people who jammed through the law based on a host of misrepresentations (keep your doctor, keep your plan, create jobs, etc.). Why entrust these same people to fix it?
More problematic for Democrats is how to describe the needed fixes or even to identify the flaws in the law they all supported. There sure are a lot of problems.
To begin with, not enough people want to sign up, especially young people. So, don’t be shocked, but the sign-up deadline is being unilaterally extended. Again. Sure the administration swore up and down it wouldn’t do that, but then it also promised you could keep your doctor and your insurance plan. The postponement of course reaffirms the lack of urgency for the stragglers. And like students given infinite time to finish a term paper, the so-called young invincibles aren’t going to be conned into signing up for a plan with no hard deadline. How do the Democrats propose to fix that one?
Then there are the ongoing legal fights. Say the Supreme Court decides as a statutory matter that for-profit employers don’t get an exemption from the Obamacare contraception mandate. Would Democrats be willing to fix that one by adding it in? It is worth pressing the issue of proposed fixes with those who now style themselves as Obamacare repairmen. Repeal the medical-device tax? Rework the subsidies so as not to impose a stiff marginal tax for working more hours? Allow everyone to keep their own plan? Raise the definition of a full-time worker to 40 hours? I suspect the answer to all these is no; otherwise they would have proposed and voted for fixes a long time ago.
Even more daunting is another legal problem, which has gotten less attention but may be the most troublesome. The New York Times reports: “Two of the three federal judges hearing a challenge to the Affordable Care Act appeared open on Tuesday to the argument that people buying health insurance in the federal marketplace should not be eligible for tax subsidies, the first indication that the White House could be facing another potentially serious legal challenge to a central part of President Obama’s health care law.” We are talking about ending the subsidies for exchanges in 36 states. “Of the 4.2 million people who selected private health plans from October through February, 2.6 million obtained coverage through the federal exchange, and four-fifths of them qualified for subsidies that reduce their premiums. Without subsidies, many would have been unable to afford insurance.” It would be a fitting end for the law that was crammed through, unread and poorly understood by its own supporters:
[Stuart] Delery, the Obama administration lawyer, said that the federal secretary of health and human services “stands in the shoes” of a state when she establishes exchanges for states that are unwilling or unable to do so.
Moreover, Mr. Delery said, the purpose of the law is clear: to provide affordable health care to all Americans, wherever they live.
But Judge Griffith asked, “If we know a clear purpose of Congress and yet they don’t legislate clearly enough to achieve that purpose, is it our job to fix the problem?”
In one sense, the individual mandate has been the Achilles heel of Obamacare. As we’ve seen, without sufficient sign-ups the exchanges go into a so-called death spiral of ever-increasing premium hikes, begetting fewer sign-ups, which force premiums still higher. But if the mandate’s collapse would send Obamacare into cardiac arrest, pulling the plug on subsidies would shut down the system. With no subsidies, those already signed up would bug out and few if any newcomers would enroll. The entire Ponzi scheme of young people subsidizing older and sicker people would end, at least in 36 states. And with 36 states out of the picture, the state exchanges in the 14 remaining states would be unsustainable (imagine the magnet for the poorer, sicker and uninsured).
Getting back to the dilemma for Democrats, what happens if the subsidies are struck down? Are they going to vote to put those back in, in essence to vote solely on the single most inequitable aspect of a flawed statutory scheme? It would be interesting to see at that point how many red-state Democrats throw up their hands.
In fact, when voters tell pollsters that they would like the law fixed, or liberal pundits insist we should keep it because it is basically working except for some minor glitches, they have no idea what fixes are possible or sustainable, in large part because Democrats won’t fess up as to what they have in mind. Republicans want to “fix it” also – keep the protection for people with preexisting conditions and allow young people to stay on their parents’ policies (something insurance companies will undoubtedly allow so long as there is demand) and change the rest.
Frankly, as Obamacare comes apart at the seams both sides in a general sense will be offering to fix it. (This is one of the reasons why Republicans should come up with their own plan and dare Democrats to try to fix the unwieldy Obamacare.) Then it will come down to who voters trust to fix it — the GOP or the people who created the current mess and misled them for four years.