Obamacare’s king and his court


Jim Waters

The Supreme Court’s King v. Burwell decision—which could be released by the time you read this column—will, whichever way it goes, provide a relevant and timely opportunity for thoughtful Obamacare critics of the “repeal-and-replace” stripe to push President Obama’s administration to return control of health-care policy to where it belongs: the states.

Both do-gooder progressives and squishy conservative-types should remember that bullying states to establish exchanges and individuals not only to purchase health care but be forced to pay for goods and services they neither want nor use—subsidies or not—is noticeably missing from the Constitution’s enumerated purview of the federal government’s power.

It’s bad enough that Obamacare unconstitutionally expands such reach with its 2,000-page bill and ensuing 11.6 million additional words regulating the policy.

Worse, when Obama’s own law proves inconvenient in his attempt to force all Americans to participate, the president’s pattern is to do what he’s consistently done with the Constitution and even the obvious wishes of the people: ignore them.

The Supreme Court will decide whether Obama can disregard his own law—which unambiguously limits federal subsidies to health-insurance policies purchased through state-run exchanges.

Obamacare’s genius designers admit they did not include subsidies for Americans purchasing insurance through exchanges established by the feds because they know the Constitution doesn’t empower Washington to force states to establish exchanges.

Instead, they made subsidies available only through state-run exchanges, believing that such a policy ploy would result in making it impossible for states to resist the easy money of subsidies dangled in front of both legislators and their constituent-recipients of those benefits.

While Kentucky was one of 13 states and the District of Columbia to take the bait, 37 states refused—an indication not only of Obamacare’s unpopularity outside the Beltway but also of just how deep state lawmakers’ concerns run over the reform’s uncontained costs, unknown consequences and uncertain future.

Obama responded by ordering the beloved IRS to issue a regulation providing subsidies for health insurance purchased on federal exchanges, notwithstanding the law that bears his own name.

The fact that the law allows mandates on employers and individuals to provide and purchase coverage only where subsidies apply means Obamacare could implode if the court rules with King, the petitioner.

“They would be pulling the fangs out of Obamacare,” David Adams, a vocal critic of the reform in Kentucky, said.

However the court rules, Obama is likely to pressure Congress to “just fix three words and millions can keep their coverage,” a Leavitt Partners report designed to assist governors and state legislators develop a productive response to the court’s ruling, states.

But the Leavitt study encourages governors and state legislators to seize the opportunity to go to Washington—literally—in bipartisan fashion to push the administration for the flexibility to “advocate solutions that enhance federalism,” noting that “the administration has not shown great flexibility on ACA implementation affecting states.”

University of Kentucky economist John Garen isn’t overly optimistic about “the present administration” granting waivers that would allow states to try some more innovative health-care and insurance policies.

“But if a group of 15-20 states presents a unified set of waivers, then who knows?” Garen, Ph.D., said.

While Kentucky, because it lawfully offers handouts to subsidize 70 percent of the 109,000 Kentuckians obtaining insurance through Kynect, the state exchange, may not initially be as directly affected by the King ruling as states with federal exchanges, the commonwealth could ultimately be impacted in both positive and detrimental ways.

Negatively, if Kentucky keeps its exchange and accompanying mandates, it will stand alone among its seven neighboring states—none of which have state exchanges but would all benefit by having the court pull the plug on Obama’s illegality and chaos.

Positively, the Bluegrass State could profit greatly from a return to federalism that allows experiments on interjecting free-market principles into health-care policies in the states, the laboratories of democracy.

More on why and how that can happen in my next column—whether the King still has his fangs or not.

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