Healthcare

What delaying Obamacare means

What delaying Obamacare means

This article was originally published on The Heartland Institute’s website. 

The conversation in Washington, D.C. this week centers on delaying and defunding Obamacare. It focuses on these prospects because of a tactical error on the part of President Barack Obama and his administration: an assumption that they could get away with a wave-of-the-hand rewriting of his signature domestic policy without negative legal or political ramifications. Nancy Pelosi may deny it is even happening, but the ramifications are plain to see.

Within the next few weeks, the House will vote on defunding and delaying Obama’s law. These steps are part of a strategy aimed at achieving repeal, teeing up votes in the fall that will press the issue even further.

House Budget Committee chairman Paul Ryan (R., Wis.) is backing leadership’s proposal to hold votes next week on delaying the employer and individual mandates in Obamacare. Delaying the mandates will help Republicans achieve their ultimate goal of repealing the law altogether, he tells National Review Online.

“We should have these votes, and members of Congress should make their positions clear,” he says. “I think most conservatives in the House think having these delay votes are helpful to getting rid of the law entirely. These mandates are sort of the entire core of the law.”

Last week, the Obama administration announced its decision to unilaterally delay the health-care law’s employer mandate until 2015, conveniently beyond the upcoming mid-term elections. The law’s controversial individual mandate, perhaps its most central provision, remains on track to take effect in 2014. House Speaker John Boehner (R., Ohio) told reporters Thursday the House would vote next week on a one-year delay of the employer mandate – essentially providing legislative approval for the president’s unilateral decision – as well as a one-year delay of the individual mandate.

But these votes alone are not the most important result of the administration’s decisions. By choosing to delay the employer mandate alone, the administration may have given individuals the legal standing to challenge the legal basis for enforcement, as David Rivkin notes:

By suspending the Affordable Care Act’s employer insurance mandate, however, the president has potentially given millions of Americans the necessary standing to challenge his conduct. This is because the Affordable Care Act is a highly integrated law, with many of its key provisions dependent on each other. In addition to the employer mandate, the law also contains an “individual mandate,” requiring most Americans to sign up for a required level of health-insurance coverage or pay a penalty.

The individual mandate was one of the core parts of the Affordable Care Act considered by the Supreme Court in the 2012 case of NFIB v. Sebelius, where the court upheld the statute against constitutional attack. Throughout that litigation, the Obama administration portrayed the individual mandate as an “integral part of a comprehensive scheme of economic regulation” that included the employer insurance mandate, which was intended to give millions of Americans a way of meeting their new obligation to have health insurance. In other words, suspending the employer insurance mandate prevents the individual insurance mandate from working the way Congress intended.

Like the employer mandate, the individual mandate by law will take effect in January 2014 (unless the president postpones that as well). Individuals who will then have to buy their own health insurance will arguably have suffered an injury sufficient to give them standing to sue. Once in court, these litigants can argue that the very integrated nature of the Affordable Care Act would make it unlawful to apply one part against them, while suspending another section. They can also argue that only Congress can determine whether, once a statute is fundamentally changed post-enactment, it should survive or fall.

This is no small thing, as the issue of business owners battling uncertainty raised by this flagrant disregard of the law was likely to get a court’s attention. It’s possible the administration could effectively delay these penalties until after the midterms and then flip the switch, demanding retroactive reporting requirements and penalties (all the administration has really said is that they won’t enforce the reporting requirements … yet). Of course, Republicans suing to require the employer mandate’s implementation won’t exactly make business owners very happy. But the Supreme Court never explicitly ruled on the severability of the individual mandate – it ignored that issue and took a somewhat weaselly path on severability in the Medicaid case. It strikes this non-lawyer as a difficult argument that these two most recent steps are somehow severable from the rest of the enterprise.

What the White House has really handed Republicans is an opportunity to go full-on populist and beat the individual mandate, the least popular aspect of the law, with a sledgehammer. These upcoming votes will make for good public arguments. But given that none of these efforts is going to pass, the votes Republicans attempt against Obamacare should attempt to highlight its failings and respond to where the American people actually are, as opposed to where we might like them to be. A mere 12 percent of Americans back the individual mandate taking effect in 2014. Attacking major struts of the law to highlight their worst aspects and failings is the best approach. This is a matter of optics – so the more in the weeds Republicans get, the less useful their efforts are, especially when the majority of Americans now just want to return to the pre-Obamacare system. Most Americans are unsure what’s coming, worried it will make their premiums go up and force them to change doctors and plans. So Republicans should repeatedly offer votes highlighting why these fears are correct, picking targeted wedge battles that put Obamacare supporters in a bind without committing conservatives to any particular long term policy – that policy debate will happen in 2016, not now.

Benjamin Domenech (bdomenech@heartland.org) is managing editor of Health Care News and a research fellow at The Heartland Institute.

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