Call me crazy, but I think it's just a matter of time until Obamacare dies. I'm sure there are many who disagree with me. Why anyone thinks this enormously complicated Rube Goldberg contraption is worth preserving is another question, but it certainly has its fierce defenders. As with any socialist scheme, it is plagued with rapidly increasing costs and benefits that somehow don't materialize. The believers believe that this time that cycle can be broken, but it's never happened with prior socialist schemes. Sooner or later the death spiral ends in death.
But how? And when? A potential trigger is the King v. Burwell case, now fully briefed and argued before the Supreme Court with a decision expected within weeks at most. The petitioners in that case challenge the legality under the Act of subsidies going to those who purchase policies on the federally-established exchange. Some 34 states did not establish their own exchanges, and therefore a victory for petitioners will mean that federal subsidies go away for the majority of those now receiving them. That could be a serious blow to Obamacare. But will it be fatal?
Don't underestimate the creativity of the bureaucrats and their academic facilitators in coming up with ways to continue to spend billions not authorized by Congress. In the current issue of Engage, Josh Blackman of South Texas Law School considers some schemes that have already been proposed to keep Obamacare going after a defeat in King. First among these is something called the "administrative fix," an idea attributed by Blackman to Nicholas Bagley and David Jones in a Yale Law Journal forum:
HHS could revise its regulations and the Blueprint to provide that some states should be understood as having established an exchange, even if they never formally elected to do so. . . . In other words, HHS would look to past actions as tacit evidence that the state in fact established an exchange, even in states that did not submit the declaration and application. Bagley and Jones query whether "the regular performance of essential and substantial exchange functions, over time, [could] constitute the establishment of an exchange."
The basic idea here is that some of the 34 states without exchanges have co-operated with the feds to some degree in the operation of the federal exchange, and that would then be deemed by regulation to be the equivalent of "establishing" an exchange under the words of the statute.
Then there's another idea, suggested by law professor William Baude of the University of Chicago in a New York Times op-ed and picked up by the Justice Department in a letter submitted to the D.C. Circuit. This idea is that every recipient of subsidies under Obamacare has a due process right to a hearing before his/her benefits can be cut off. And therefore any ruling by the Supreme Court should be limited to only the four plaintiffs in the King case itself:
The week before oral arguments in Halbig v. Burwell ”which raises the same issues as King” the Justice Department submitted a letter to the D.C. Circuit Court of Appeals, taking the position that the government was constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a due-process right to be heard before their subsidies were extinguished.
Blackman presents some rather cogent reasons why neither of these gambits would be likely to succeed after the King case has been lost. Still, they could require another round of litigation, which could take years. If a lower court ruled against the government, would it grant a stay pending appeals all the way to the top this time around? Personally I find it hard to believe that the government would try either of these gambits; but I have been repeatedly surprised by the chutzpah of this administration.
Meanwhile, should we check in on how it is going on the overall Obamacare death spiral front? Data are trickling out with frustrating slowness, which I take as a sure indication that the government doesn't want us to know how bad it is. A website called Obamacarefacts.com, which claims no affiliation with the government, is nevertheless the site with the official best administration spin on any and all Obamacare data. They report that as of the end of Q1 2015 the percent "uninsured" in the U.S. was down to 11.9% from 15.7% at the time Obamacare was enacted in 2009. By the way, they use Gallup data for the 11.9%. Isn't the government collecting this information? OK, that's about a 4% "improvement," which is about 12 million people. But it still leaves close to 40 million in the "uninsured" category. Somehow, I was remembering that the whole idea here is that everyone was going to get "covered." Five years ago it was the world's greatest crisis that 48 million or so were uninsured. Today it's no crisis at all and indeed a great triumph that 38 million or so are still uninsured. Go figure.
And of the 12 million or so newly "insured," how many are as a result of all the mandates and the exchanges, and how many are just the Medicaid expansion? The answer from Obamacarefacts is: 10.8 million as of March 31, and estimated at 11.7 million by May 31 are new Medicaid enrollees. In other words, almost all of the 12 million are from the Medicaid expansion. So essentially all of the enrollment through the exchanges has been equally offset by the decline in employer-based insurance. Why again did they bother with this enormously complicated Rube Goldberg thing?
And finally, how is the idea faring that you could greatly increase the demand for medical care while at the same time the cost would go down? Really, did anyone believe that? In just the past few days many insurers have announced their premiums for the 2016 year, and the picture is not pretty. Here's an article from today in Forbes by Robert Laszewski. Average proposed premium increases are well in the double digits, and Laszewski cites numerous examples in the 30 - 50% and even higher. Here's his take:
You might recall that I have said we wouldn’t see the real Obamacare rates until the 2017 prices are published in mid-2016. By then health plans will finally have had a couple of years of credible claim data and two of the three “3 Rs” reinsurance provisions subsidizing the insurance companies will have gone away. . . . Instead of moderate rate increases for one more year, the big rate increases have begun. They are particularly large among the health insurers with the most enrollment—the carriers with the most data.
So they put in a lot of subsidies to hide the obvious problems for a couple of years, but the disaster is making itself apparent already. There are a lot of ways that Obamacare can die.