Health Care

Obamacare Needs an Out-of-Court Settlement

A woman reads a leaflet at a health insurance enrollment event in Cudahy, Calif., in 2014. (Lucy Nicholson/Reuters)

Obamacare was a misbegotten law. It addressed real, if sometimes exaggerated, problems, but did so at an unnecessarily high cost. Some of that cost was economic: A large and arbitrary subset of the population has had to pay higher premiums, deductibles, and copayments, and enjoy reduced access to medical providers. Some of it was lost freedom, as Obamacare curtailed the space for voluntary transactions and expanded the field of required ones.

Congress should not have enacted the law over public opposition in 2010; the Supreme Court should have struck it down in 2012; the Court should have stopped the Obama administration from rewriting the law to give it a broader reach in 2015; and Congress should have replaced the law in 2017.

A new district-court decision striking down the law appears to give Congress an opportunity to start over. Yet we cannot applaud Judge Reed O’Connor’s decision. Indeed, we deplore it. It will not lead to the replacement of Obamacare, as much as we desire that outcome. It will instead give Republicans another opportunity to dodge their responsibility to advance legislation toward that end.

It will not lead to the replacement of Obamacare because it is very likely to be overturned on appeal; and it is very likely to be overturned on appeal because it deserves to be.

The law Congress enacted in 2010 included a command that Americans buy health insurance, and not just any health insurance but insurance that met congressional specifications. At the time, there was a broad consensus among health-care experts that without this “individual mandate,” the rest of Obamacare would cause health markets to unravel.

In 2012, the Supreme Court was asked to strike the law down because that command exceeded the legitimate powers of Congress. The Court instead split the difference. It said that the Congress could not issue that command. But it could, the Court said, tax people for not buying health insurance; and so it said that the law should go forward as though Congress had done that.

By 2017, however, the old consensus about the necessity of the mandate to buy insurance had weakened substantially. As part of its 2017 tax-reform law, the Republican Congress, which had failed to replace Obamacare as a whole, set the tax at zero.

That’s where Judge O’Connor comes in. His ruling holds that the individual mandate can no longer be constitutionally justified as a tax now that it is set at zero, and that since Congress considered the mandate central to Obamacare when it enacted that law in 2010, the whole thing has to go. Neither half of this argument is valid.

There is, in the first place, no longer any individual mandate to justify. The Supreme Court in 2012 eliminated it as a legal requirement on individuals to buy insurance, and the Congress eliminated it as a tax in 2017. The government is no longer taking any unconstitutional action via this spectral, zero-dollar tax.

The deliberate decision by Congress to eliminate the tax without eliminating the rest of Obamacare, meanwhile, shows that Congress in 2017 no longer considered it essential to the law. (O’Connor claims that the Congress wanted to repeal Obamacare but could not reach the required supermajority in the Senate. That a majority of both chambers would have agreed on a way to repeal Obamacare is not at all clear, and not a proper subject for speculation by a court; and in any case Congress knew that a very likely outcome of passing the tax-reform bill was that most of the law would stay, but the tax would go.)

The Supreme Court has preserved Obamacare, as it has been implemented, even against meritorious legal challenges. It seems highly likely to preserve it against a much weaker one. Republican politicians have repeatedly counted on the courts to deliver them from Obamacare without their having to take any heat for abolishing its popular elements, to come up with workable alternatives, or to accommodate the interests of people who rely on the law while pleasing those who oppose it. O’Connor’s decision is giving them a new dodge: As it winds its way through the courts, they can continue telling the opponents of the law that victory is at hand, continue telling those who benefit from the law that they will protect them whatever happens, and — continue not working on health care.

But the courts will almost certainly not, as they should not, deliver Republicans from their duties.


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