Tuesday, November 11, 2014

Can Obamacare be Saved from the Supreme Court?

So, granted that the Supreme Court will probably cut off the subsidies for anyone buying health insurance on a federal exchange, the question is, can anything be done about this.  I am assuming that the Supreme Court decision is a foregone conclusion and nothing will change their minds.  What other alternative are there?

The one that gets mentioned most often is for states that don’t have exchanges to start them.  At the national level, low information voters will no doubt blame Obama for their loss of health insurance.  But at the state level, and among people in the know, there will start to be pressure to build state exchanges.  News on that front is revealing.  The states of Illinois and Delaware are frantically attempting to cobble together something that looks like a state exchange.  This will no doubt lead to further disputes and litigation over what is and is not a state exchange.  The best account I have seen on the subject says that to be considered a state exchange,the state must:
  • Enact authorizing legislation or a have a properly issued executive order establishing the exchange;
  • If the exchange is operated by an independent agency or non-profit, establish a properly constituted governing board;
  • Have in place exchange governing principles;
  • Fulfill all exchange functions, either itself or by contract with a private entity or under arrangement with HHS
  • Provide funding for the exchange, which must be self-sufficient for 2015.
So far as I can tell, this means the state need not build the actual website, but must have the exchange authorized by the legislature or governor, put regulations in place, and provide funding (which necessarily must be approved by the legislature).  I have no idea whether this is doable by next June, and, if so, how many states are willing to do so.

Sixteen states (including Mississippi!) have submitted briefs to the effect that they relied on the federal exchange on the understanding that their citizens would be able to receive subsidies through it. But the states of Oklahoma, Alabama, Georgia, West Virginia, Nebraska and South Carolina have filed briefs urging the courts not to allow people buying insurance on federal exchanges to receive subsidies.  Apparently these six states are willing, not only to deny their citizens health insurance, but to actually strip it away rather than submit to the horrors of Obamacare.  It seems a safe assumption that these states will do nothing to protect their citizens' subsidies.  Other states that refused Medicaid may follow their example. But in any event, this time the Supreme Court does not have the option of allowing states to opt out of letting their citizens receive subsidies to purchase health insurance. Either all citizens buying insurance on federal exchanges may receive subsidies, or none may.

There is one other possibility.  Congress could insert the words “or the federal government” to the phrase exchange "established by the state."  Yes, I know.  Most people will now fall out of their chairs laughing, saying that after a Republican blowout, what are the changes of Congress actually making Obamacare work?  My answer to that is two-fold.  The first is that voting against a law as an abstract proposition is one thing.  Actually seeking to strip people of their health insurance is quite another.  Another answer is that, while Republicans can hardly be expected to fix a law they hate and bitterly opposed, fixing this one part could be made part of a larger compromise.  Since it involves expenditure, one way to do it would be to pass a Republican-friendly budget giving them a number of things they want (and face it; with Republicans controlling both houses of Congress, they are going to get a budget that goes mostly their way), and in exchange inserting the four magic words that will prevent people from being stripped of their health insurance.  The advantage of doing this as a budget measure is that it can be passed by a simple majority in the Senate, so only five Republicans (assuming a 55-45 majority) will have to defect.  (A larger number will have to defect in the House).  Or, Democrats can agree to repeal the employer mandate and the medical devices tax in exchange for inserting those four magic words.  But that would require 15 Republicans to defect; a much harder thing to do.  And it would require John Boehner and Mitch McConnell to risk their perches by actually bringing such a measure to the floor, where it will probably pass with mostly Democratic votes.

Does that seem impossible?  Well, here is my answer.  It is impossible if we don’t bring about serious political pressure.  Republicans can rejoice in millions of Americans losing their health insurance, confident that Obama will be blamed.  It is up to us to see to it that Republicans get blamed.  I have already seen a few comments that there should be a lot of heartbreak stories hitting the news soon, about people with serious medical problems who were finally able to get coverage through the exchanges thanks to subsidies and now are in danger of losing them.  And we can urge all these people, and their families, and their friends, to call their Congressman demanding that he save their subsidies.  We can organize people whose subsidies are threatened to throng town halls, demanding to know why their Congressman isn’t protecting their coverage.  But won’t Democrats be blamed as well?  At least Democratic representatives have an easy answer – I do support that measure.  It’s the Republicans you need to work on.

So here is my advice.  Get such a movement going right away.  Don’t bring in any extraneous issues.  Don’t talk about same sex marriage or immigration or annoying cultural cues; focus exclusively on Save Our Subsidies (SOS).*  Don’t mention Obamacare.  Don’t mention exchanges or subsidies.  Don’t mention Democrats or Republicans.  Just say that the Supreme Court is threatening to take away people’s health insurance and Congress can stop them any time its wants, so why isn’t Congress acting. Don’t worry about fine-tuned policy details, and don’t be afraid do demagogue the issue.  Let Republicans besieged by people fearing the loss of their insurance do the explaining for a change.  (Because once you have to explain, you have lost).  Democrats can simply assure people that they do support that measure.  Republicans will have to do the explaining.  Blanket the airwaves in Republican districts with ads sayings, “By June, the Supreme Court could hand down a decision stripping _______ citizens of our state of their health insurance.  Congressman X  won’t vote to stop them.”  (The healthcare and insurance industries should be happy to pay for them).  Will this get such a measure passed?  I have no idea.  My hope would be to generate enough pressure to get enough Republicans to defect to pass it as a compromise.  And at the same time, we should step up the pressure on states to establish their own exchanges.

We only have until June!  The time to act is now!  I personally vow to find some sort of group dedicated to pressuring Congress and/or the states to act ahead of this decision and start devoting time and effort to it.  The insurance coverage of millions hangs in the balance!

*Actually, subsidy is usually seen as a bad word, so something else will have to be used.

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