Unsettled and Unsettling ObamaCare Fate: Ten “What If’s”

What has been settled by precedent cannot be unsettled overnight.

Benjamin Cardoza (1870-1938), The Paradoxes of Legal Science


In three days, November 15, ObamaCare begins its second enrollment period, scheduled to end on February 15. The Obama administration is giving signals that it will fall far short of its original goal of signing up 15 million by that time. More likely, it says that total enrollment will be 9.9 million or thereabout; that the glitches of healthcare.gov have not yet been fixed; that Hispanics and other minorities may have a hard time enrolling; and that it is going to take more time ironing out ObamaCare wrinkles.

During that time, the administration is going to have to deal with some potentially devastating political complications.

• In a surprise move, the Supreme Court announced it would hear the case of whether the government can offer subsidies on the federal exchanges. At issue is whether the Obama law writers meant what they said when they wrote in 2010 health law when they said subsidies could only be offered by exchanges “established by the state” and whether the IRS could legally assume that the law also applied to federal exchanges. How the Court will rule is very much in doubt since it takes four judges to decide if a case can be heard, and five of the nine judges are widely assumed to be conservative.

• As the second signup approaches, a video by Jonathon Gruber, one of the architects of ObamaCare, has gone viral. In that video, recorded at a 2013 academic conference, Gruber says that “voter ignorance” passed ObamaCare and that laws authors deliberately and deceptively wrote the law so as to make it “opaque” and lacking in “transparency.” In the eyes of Charles Krauthammer, this episode illustrates “liberal arrogance”, “deception,” and a way of " leadingthe masses to the promised land.” Gruber’s remarks, to say the least, are embarrassing, and perhaps even devastating.

• There is, of course, another problem – the Republicans’ wave midterm election with a new found Senate majority with 53, probably 54, Senate seats, 13 more House seats, 31 GOP governors, and a solid majority in state legislatures. The GOP won largely on the basis of a stalled economy and a defective health law. The precedent here is that the public from the beginning opposed ObamaCare by double digit margins, a margin that grew to 19 points in a recent Gallup poll. In retrospect, Nancy Pelosi’s comment that "We’ll have to pass the law to see what’s in it” is damning. She clearly meant that she and nobody in Congress had read the law, and that its contents, designed by elites, could be taken for granted. Well, as the law’s adverse consequences become evident people are reading it, and it has become clear its architects knew what was in it – that people would lose their health plans and doctors and that health benefits would be redistributed on a massive scale. ObamaCare was a political gamble, and it may be backfiring. Twenty nine of the Senators who voted for it are gone, and its most visible political driver, Senator Max Baucus of Montana, who warned of ObamaCare as a potential “train wreck,” is now in ObamaCare exile as ambassador to China.

What If’s

This situation leads to series of “What’s Ifs”

1. What if the Court rules that the 37 federal exchanges cannot offer subsidies for the uninsured and others who enrolled in 2014 and who may enroll in 2015. That would gut ObamaCare and cause its collapse.

2. What if Republicans succeed in defunding or otherwise undermining ObamaCare by defunding it, stripping it of the employer mandate for coverage of all employees working over 30 hours, or delaying or repealing the penalties for not having insurance, and ending the excise taxes on profits of medical innovation companies. It would endanger ObamaCare existence by stripping it of its funding mechanisms.

3. What if the November 15 to February signup falls far short of its goals or is glitch-ridden and proclaimed a disaster by Republicans and other critics.

4. What if the Gruber episode proves to be a political disaster, or even a joke, or a travesty of liberal promises.

5. What if the latest addition to healthcare.gov. The SHOP option that supposedly makes it easy for small businesses to push employees into health exchange plans or Medicaid, falters or proves to be unworkable.

6. What if the remaining uninsured prove too hard to reach because of language difficulties, lack of comprehension about what insurance is all about, or simply if they cannot be tracked or cannot give sufficient information about their incomes or citizenship status.

7. What if confusion and controversy about the Supreme Court’s impending or actual decision muddies the water so much that enrollment drops off dramatically.

8. What if UnitedHealthcare’s decision to enter a dozen or more health exchange markets shows that healthcare.gov is indeed marketable and offers more choices.

9. What if Republicans get their act together and offer a unified commonsensical, easily comprehensible, market-based alternative to ObamaCare that cuts federal spending by $1 trillion or more over ten years and covers just as many uninsured.

10. What if economic growth resumes and is robust, and ObamaCare fades into the background.

ObamaCare, as Winston Churchill might say, is a paradox and a puzzle, wrapped up in a conundrum. Or as other wise men of the past have said, “For all the sad words of tongue and pen, the saddest are these, it might have been.”(John Greenleaf Whittier); “O, what a tangled web we weave, when first we practice to deceive. (Sir Walter Scott); or, “Of all the horrid, hideous notes of woe, Sadder than owl-songs or the midnight blast, is that portentous phrase, ‘I told you so.”(Lord Byron).