What Will Republicans Do about Obamacare Now?

For the past six years, Republicans — across Washington, and across the country — have virtually to a person run against Obamacare. Their campaign has helped them win numerous House and Senate seats, a majority of governorships, and now has given them unified control of Washington for the first time in 15 years. Like the dog that finally caught the proverbial car, Republicans will wake up Wednesday morning asking themselves — on Obamacare, as on many other issues — “What now?”

The answer might be less obvious than it first appears. Democrats used the decade and a half between the defeat of Hillary Clinton’s health plan in 1993–94 and the 2008 election to develop a consensus architecture about what their ideal health-care plan would look like. In the Democratic primaries that year, Senators Clinton and Obama disagreed strongly on the necessity of an individual mandate to purchase coverage — a difference they litigated very publicly, and at great length, during the primary campaign — but agreed on virtually everything else.

By contrast, Republicans spent comparatively little time debating the finer points of an Obamacare alternative during the presidential cycle just concluded. Donald Trump promised “something terrific” that would tear down “the lines around the states,” but details were few and far between (and occasionally self-contradictory). Speaker Ryan’s House Republican task force produced a plan, but one with few fiscal details attached, and one that few in Washington — whether media analysts or policy-makers themselves — spent time dissecting or debating.

As a result, Republicans differ on some fundamental issues — chief of which is whether an alternative to Obamacare should focus on lowering costs or expanding coverage. While conservatives have historically focused on reducing costs, some on the right have argued that any alternative to Obamacare must provide a landing point for the individuals who gained health coverage under the law. Others have dubbed any alternative plan including mechanisms such as refundable tax credits to expand coverage “Obamacare Lite” — a term likely to resurface with a vengeance in the coming days and weeks.

Speaker Ryan and Mr. Trump thus face a potential squeeze between a Republican political base adamantly opposed to Obamacare, which wants the law repealed — in its entirety, immediately — and the ramifications of doing just that. Would Republicans who passed a repeal bill through Congress last fall, only to see it vetoed by President Obama, do so again knowing it would actually get signed into law? Some lawmakers likely supported repeal in theory — not expecting it would ever get put into practice. They will face no such “easy” votes in 2017.

It remains an open question whether a bill that repealed Obamacare without a “replace” plan attached could receive enough votes from Republican lawmakers to reach a President Trump’s desk. It likewise remains an open question whether Republicans can coalesce around the details of an alternative to place on the statute books. Anyone who believes that debate or discussion will be easy, or quick, did not spend time covering the circular firing squad that enveloped congressional Democrats in both 1993–94 and 2009–10.

A major initial test for Mr. Trump: What to do about Obamacare’s cost-sharing subsidies — funds that the Obama administration has provided to insurers, even though the text of the law itself nowhere provides an explicit appropriation for such spending. As I previously noted, Mr. Trump could immediately cut off these funds to insurers upon taking office. Such an action would be entirely consistent with House Republicans’ lawsuit against the administration for spending money not appropriated — and the initial legal victory they received from the courts in May.

But others have reported that the Obama administration has negotiated language in insurers’ contracts for next year allowing them to cancel plans immediately should a future Trump administration cut off insurers’ access to the cost-sharing subsidies during the middle of the 2017 plan year. So what does a President Trump do? Block the subsidies — and potentially get blamed for chaos if millions of people lose their plans overnight? Or continue spending on subsidies that House Republicans have called unconstitutional, and face a federal lawsuit from members of his own party? Neither answer presents an appetizing option for the incoming administration.

After the battle of El Alamein changed the tide of World War II, Churchill remarked that the Allied victory marked not the end, nor the beginning of the end, but perhaps the end of the beginning. In the fight against Obamacare, Tuesday likewise marked not the fulfillment of a Republican campaign promise, but merely the initial prerequisite necessary to reach that goal. The goal is in sight, but farther away than some might believe. Having spent years running against Obamacare, it is now up to Republicans to determine what to do about it — an outcome that few would have dreamed of even 24 short hours ago.

This post was originally published at National Review.

House Democrats Endorse a President Trump Power Grab

Last week, eleven leading House Democrats released a brief in a lawsuit regarding Obamacare, but one that could have implications far beyond this President’s health care law. Essentially, the Democratic leaders argued that courts had no power to intervene where a President spends money not appropriated by Congress—a position that the Democrats may endorse when the President in question is one of their own party, but one they will live to regret when the executive holds differing political views.

The brief in question was an amicus curiae filing in House v. Burwell, a case involving the legality of Obamacare’s cost-sharing subsidies. The text of the law nowhere provides an explicit appropriation for such subsidies—but the Obama Administration has disbursed funds to insurers regardless. In May, United States District Court Judge Rosemary Collyer ruled for the House of Representatives, ordering the Administration to stop the subsidy payments. House Minority Leader Nancy Pelosi and several of her Democratic colleagues filed the brief with the U.S. Court of Appeals for the District of Columbia, currently considering the Administration’s appeal of the District Court ruling.

The Democrats’ brief argues that the text of the law implies a subsidy for the cost-sharing subsidies, even if it did not say so outright. But more troublingly, the amicus filing discourages the Court of Appeals from even considering the merits of the case—encouraging the court instead to dismiss the case for lack of standing.

To read the lawmakers’ brief, Congress would have little recourse to the courts for relief should the executive spend money not appropriated. So long as a President at least makes an attempt to argue the existence of some appropriation, then the matter becomes what the Democrat lawmakers call “a quintessential disagreement about the proper interpretation of” statutes, one that the judicial branch should leave to the political branches. To Pelosi and her colleagues, the President violates the Constitution “any time the executive branch takes some affirmative action based on a misinterpretation of a federal statute,” since such actions involve spending money—but few if any of these violations warrant judicial intervention.

Surprisingly for a brief filed by a group of legislators, the amicus does not even articulate a clear set of circumstances when the legislature could legitimately sue the executive, other than to argue that House v. Burwell does not warrant such action. The Pelosi brief argues that not just one, but both Houses of Congress, must authorize such a suit—in other words, a Democratic-controlled Senate could block a Republican-led House from suing the President, and vice versa. It claims that a Congress injured by the President should use non-judicial means to remedy disputes, by passing corrective legislation—even though the President could veto such legislation, allowing his violations to stand unless 2/3rds of Congress agrees to rebuke him—or conducting Congressional oversight. As comforting as these remedies might sound in theory, few would likely prove effective in practice.

In an Obamacare context, House Democrats may consider complaints about the Constitution and the “power of the purse” mere trifling inconveniences. But they have just as much reason to be concerned as Republicans, for a future Administration could use the Obamacare precedents as grounds to make policy decisions few Democrats would favor.

To use a totally hypothetical example, suppose that a future President believed that—as this Administration has argued in court—that the context and structure of our nation’s immigration laws give the executive unlimited funding to build a big, beautiful wall—a yuuuuge wall, even—without Congress’ consent. Suppose also that said future President argued—as the House Democrats argued in their brief, and an Obama Administration official testified with a straight face before the House Ways and Means Committee in July—that because Congress didn’t pass legislation explicitly prohibiting it from doing so, it could spend unlimited funds on a deportation force to remove undocumented immigrants? Would Democrats value their constitutional prerogatives so lightly under those circumstances?

Call this a hunch, but I doubt that, under the immigration scenarios outlined above, the Democratic lawmakers would content themselves with the remedies they have laid forth in their brief about Obamacare’s cost-sharing subsidies. Faced with a President spending billions of dollars on a deportation force never appropriated by Congress, would Nancy Pelosi merely content herself with conducting hearings and “appeal[ing] to the public,” as her brief argues in the Obamacare context? Hardly.

The core issue surrounding the cost-sharing subsidies is not Obamacare, but the rule of law—a principle that, as Churchill noted, has existed since the barons met King John at Runnymede eight centuries ago: “Rex non debet esse sub homine, sed sub Deo et lege—the king should not be below man, but below God and the law.” A President cannot assume regal powers by spending money never granted by the peoples’ tribunes, essentially daring the courts and Congress to stop him.

That’s the point of House Republicans’ suit on the cost-sharing subsidies, and Judge Collyer’s ruling in May upholding the House’s position. And it’s a point that, their amicus brief notwithstanding, House Democrats should learn to discover and embrace. Because at some point in the future—whether immediately after tomorrow’s election, or years from now—they will find reason aplenty to cling to those important constitutional principles.

The Limousine Liberals Who Won’t Join Obamacare

Even by government standards, it’s an outlandish story of wealth and hypocrisy: A bureaucrat who made more than one million dollars selling Obamacare insurance plans, but won’t buy one for himself? The sad thing is, it also happens to be true.

Meet Peter Lee, Executive Director of Covered California. In the past three years alone, Mr. Lee has made well over one million dollars running California’s Obamacare Exchange. He received massive raises the past two years, going from a salary of $262,644 in 2014 to $420,000 beginning this July. On top of that nearly $160,000 raise, Peter Lee received two other whopping bonuses of $52,258 in 2014 and $65,000 in 2015—winning more in one lump sum than many families make in an entire year. But at a September briefing, I asked Mr. Lee point blank what type of health coverage he holds, and he said he was enrolled in California’s state employee plan.

Think about that: a bureaucrat whose salary comes from selling Exchange plans—Covered California’s operating budget derives from surcharges on plans sold through the Exchange—but yet won’t buy one of the plans he sells for himself. It’s enough to make a person ask how much Mr. Lee would have to make before he would actually break down and buy one of the plans he sells—a million dollars? Two million? Five million?

Liberal One-Percenters: Good for You, Not for Me

I’ll concede right now that Obamacare’s Exchanges were designed primarily for those without employer coverage. Individuals whose employers do offer “affordable” coverage cannot receive subsidies on Exchanges, although they can enroll without a subsidy, if they so choose. Most Americans choose employer coverage, because firms heavily subsidize them—to the tune of an average of $12,865 for family coverage. For the average worker making $60,000, or even $80,000, per year, turning down the employer subsidy to purchase an unsubsidized Exchange plan represents a substantial pay cut, one many families could not afford.

But well-paid liberals like Peter Lee—who over the last two years received raises more than twelve times the average employer’s subsidy for health coverage—have no real financial excuse not to join the Exchanges—other than liberal elitism. As the owner of a new small business who likely won’t make six figures this year, I have little patience to hear supposed believers in Obamacare with far more means than I who won’t give up a few thousand dollars in employer subsidies to enroll on the Exchanges themselves. After all, aren’t liberals the ones who believe in social solidarity and “paying your fair share” anyway…?

Well-Heeled Bureaucrats and Think Tankers’ Hypocrisy

For instance, Centers for Medicare and Medicaid Services (CMS) Acting Administrator Andy Slavitt literally cashed in to the tune of over $4.8 million in stock options on joining the Administration—more than enough to forego any employer subsidy for his health coverage. He recently responded to a questioner on Twitter asking him why he wasn’t on Medicare by stating that he was only 49 years of age—too young to qualify. Within minutes, I sent Slavitt a follow-up tweet: “If Obamacare is so great, are you on the Exchange—and if not, why not?” Slavitt has yet to reply.

Both Slavitt, and Health and Human Services Secretary Sylvia Burwell (net worth: $4.6 million), have plenty of financial resources to forego an employer subsidy and purchase Exchange coverage. Even at a total premium of $15,000 for his family, one year’s insurance costs would total less than 0.3% of the stock gains Slavitt cashed in on when joining the Administration—to say nothing of the millions he likely will make when he “cashes in” on his government experience in just a few months.

Did Slavitt just not see my tweet asking him about his health coverage? Did he not reply because the person in charge of selling Exchange policies doesn’t think they’re good enough to buy one himself? Or does he believe that someone who made millions a few short years ago is too “poor” to give up a few thousand dollars in employer subsidies for his health care?

The ranks of well-paid liberals clamming up when asked about their health benefits extends beyond government, into the think-tank ranks as well. In September, the Urban Institute published a paper claiming that Exchange coverage was actually cheaper than the average employer plan. I e-mailed the papers’ authors, asking them a simple question: Had they taken steps to enroll in Exchange coverage themselves—and encouraged the Urban Institute to send all its employees to the Exchanges?

I have yet to receive a reply from the three researchers. But after doing some digging, I found the Urban Institute’s Form 990 filing with the IRS. The form reveals that one of the study’s authors, John Holahan, received a total of $313,932 in compensation in 2014—$267,051 in salary, and $46,881 in other compensation and benefits. Does Mr. Holahan therefore believe that giving up his subsidized benefits, and relying “only” upon his $267,051 salary, presents too great a sacrifice for him to bear financially? If he and his colleagues truly believe Exchange plans are more efficient than employer coverage—as opposed to just coming up with a talking point to rebut Obamacare’s massive premium increases—then shouldn’t they enroll themselves?

I Make $400,000—So Quit Whining about Your Cost Hike

Then there’s Larry Levitt, a Senior Vice President at the Kaiser Family Foundation. Last week Levitt tweeted that Exchange premium increases don’t apply to many people—a talking point that Drew Altman, Kaiser’s CEO, has also made in blog posts. I replied asking whether Levitt himself, or other people using this talking point, actually have Exchange coverage—to which Levitt gave no response.

Care to guess how much these scholars claiming Exchange premium increases are overrated make themselves? According to Kaiser’s IRS filing, Levitt received $333,048 in salary, and $48,563 in benefits, in 2014. His boss, Drew Altman, pulled down a whopping $642,927 in salary, $149,509 in retirement plan contributions, and a $13,545 expense account—nearly $806,000 in total compensation.

The contradictions from the Kaiser researchers are ironic on two levels. One could certainly argue that an executive making nearly $400,000, let alone over $800,000, doesn’t need comprehensive health insurance—except to protect from severe emergencies, like getting hit by the proverbial bus. However, both appear loathe to give up their employer-provided health coverage—and equally quick to minimize the impact of Obamacare’s premium increases nationwide. As I noted on Twitter, that’s easy for people who refuse to join the Exchanges to say.

Stupid Is What Stupid Does?

Last, but certainly not least, on the hit parade is MIT professor Jonathan “Stupidity of the American Voter” Gruber. Last week Gruber said both that the law “was working as designed” and that people who lost their coverage thanks to the law “never had real insurance to begin with.” Unfortunately, MIT’s tax filings don’t include his salary. However, given that Gruber’s infamous undisclosed contract with the Obama Administration totaled nearly $400,000, and that he literally made millions from other contracts, it’s fair to say Gruber could afford to purchase his own health insurance outside his employer—if he wanted to. So I e-mailed him, and asked him whether he gave up his employer coverage to purchase that “real insurance” that Obamacare provides. Wouldn’t you know, I have yet to receive a reply.

It’s bad enough that the individuals above apparently refuse to give up their platinum-plated health plans to join the Exchanges—even though it would cost them at most a few percentage points of their total compensation to do so. They also wish to cast stones from their ivory towers at those of us who are facing higher premiums, rising deductibles, fewer (if any) choices of insurers, and smaller doctor networks thanks to the law they claim to support.

So to all those well-heeled Obamacare supporters who can afford to enroll in Obamacare themselves, but simply won’t, I’ll make one final point: Disagree with me if you like, but I’m working my damnedest to stop Obamacare’s bailouts—even though I know that if I “win” on the policy, I could lose my health coverage. It’s called standing on principle. It’s a novel concept—you might want to try it sometime.

This post was originally published at The Federalist.

Why Obamacare Supporters Won’t Enroll in Obamacare

Today, the beginning of Obamacare’s fourth open enrollment period, will see Obama administration officials and liberal advocates engaging in the usual publicity blitz. They’ll tell Americans how much money they can save, how affordable plans are—don’t believe the hype about premium increases, they claim—and the benefits of having health coverage.

All of this can be rebutted by one simple rejoinder: If these exchange plans are so good, why haven’t you purchased one?

It’s a question I’ve asked several Obamacare advocates, because, while they talk about Obamacare, I actually have to live it. Because Washington DC abolished its private insurance market, I as a small business owner have to buy a plan on the federal exchange. For 2017, new plan requirements by the DC exchange—insurers now have to offer eight “standardized” plans—coupled with the difficult business environment meant that my insurer, CareFirst Blue Cross, cancelled its health savings account plan.

As a result, I and 6,980 other HSA plan participants received cancellation notices in September. As you can see from the notice, the “substitute” plan I was offered has a premium of $296.40—that’s a 20.2 percent increase, for those of you keeping score at home—and a 25 percent increase in my deductible, from $1,600 to $2,000.

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The day before I received official confirmation of my plan’s cancellation, I attended a briefing on insurance exchanges. I pointed out that, to most people in Washington DC, Obamacare was an abstract idea. Policy-makers at think-tanks, lobbying firms, or in government have high-paying jobs that come with employer-based health coverage, so they really don’t have to worry about whether the exchanges succeed or fail.

I asked the panelists point-blank: You’re speaking about the state of Obamacare’s exchanges, but do you yourself receive coverage through them?

As I had suspected, most admitted they do not. Sabrina Corlette, a Georgetown University researcher, replied that she was a “spoiled academic” who received coverage through her employer. Ironically enough, Corlette’s presentation for the briefing included a slide noting that the exchanges needed to “boost enrollment.” But when asked whether she would enroll in an exchange plan—thereby boosting enrollment—she said she would not. This brings to mind St. Augustine’s famous phrase, “Grant me chastity and continence—but not yet.”

Elites Won’t Join Obamacare’s Ghettoes

One reason why Corlette, and other “spoiled academics” like her, won’t give up their existing coverage is simple: Compared to employer-based insurance, exchange plans—and this is a technical term—suck.

Thanks to Obamacare’s ability to make insurance competition disappear, nearly one in five Americans (19 percent) will have the “choice” of only one insurer on their exchange in 2017. Obamacare’s benefit mandates have forced insurers to narrow networksthree-quarters of all 2017 exchange offerings include no out-of-network coverage—and raise deductibles so high as to render insurance “all but useless” for many.

As I have previously written, Obamacare’s insurance marketplaces could be more accurately described as ghettoes, not exchanges. The median income among all healthcare.gov enrollees is 165 percent of the poverty level, or about $40,000 for a family of four, so enrollees are predominantly low-income, besides sicker than those on the average employer plan. The combination of narrow networks and tightly managed care has zero appeal to the average person with an employer plan—which explains why the liberal elites promoting Obamacare won’t actually enroll themselves.

‘I Do Try to Think about Them’

At the September briefing, Corlette claimed Obamacare was an attempt to “lift the standards for individual market products” to make them more like employer plans—just not enough for her to enroll. (As someone actually on the exchanges, I can attest to a lot of “lift” for my premiums and deductibles; standards and network access, perhaps not as much.)

If one wants to explain the reasons for the rise of Donald Trump, one could start with a group of elites who think they can determine what others want, even while deliberately segregating themselves from the effects of the policies they created.As the saying goes, actions speak louder than words. If advocates of Obamacare actually believed the law was providing insurance comparable to employer plans, they would switch to exchange coverage. That they are not speaks to the law’s fundamental problem: Liberal elites can sell the benefits of Obamacare all they want, but when it comes time to put one’s money where one’s mouth is, the American people aren’t buying—and neither are the liberals.

This post was originally published in The Federalist.