Reforming Obamacare

In my last post, I discussed how the check of midterm elections prevented the Obama Administration and the Democrats from effecting fundamental institutional change.  In this post, I want to turn to the most important change that the Obama Administration passed – Obamacare.

While the election of a strong Republican majority in the House was important, by itself it was insufficient to repeal Obamacare.  Had the Republicans won the presidency and the Senate, that probably would have been enough to repeal significant portions of the statute through mechanisms such as reconciliation that could not be filibustered.  Even if the Republicans had simply won the presidency, the executive could have used its regulatory authority to significantly cut back on Obamacare.

But unfortunately the Republicans neither won the presidency nor the Senate.  At this point, the question arises whether Obamacare has passed enough electoral tests that the nation will be stuck with it.

One possible way that the Republicans might make inroads would be if they made significant gains in the 2014 midterm elections, increasing their majority in the House and taking over the Senate.  But that would still not allow them to override a veto by President Obama.

The only way that the Republicans could eliminate Obamacare – or make significant inroads in it – would be if the program continues to be unpopular and they secure the Presidency and both houses of Congress in 2016.  That is both a long way off and a long shot.

Instead, it seems likely that the basic structure of Obamacare will be difficult to eliminate.  If that is true, Republicans need to determine how to make changes in Obamacare that move it closer to a market system without entirely eliminating it.  This may not be easy, but it seems likely to be the only way forward.

I am no expert on Obamacare, but there are a host of changes that might make the policy more “market” oriented.  Let me just mention one.  The insurance policies that are approved by the government for provision by employers and for sale on the exchanges could be adjusted to permit (or even prefer) a low benefit policy.  For example, insurance might be allowed that provides health savings accounts for ordinary expenses and then basic insurance for higher expenses.  Moreover, the law might be modified to preempt state laws that require a host of mandated benefits that drive up the cost of insurance.  Further, the subsidies that are provided to low income people might be adjusted to provide an incentive for  people to choose these policies.  In this way, insurance policies that the law prior to Obamacare unfairly discouraged could be allowed under Obamacare.

Will such changes be politically possible?  It depends, in part on how popular Obamacare is.  But even if Obamacare is reasonably popular in 2016, changes of the above sort might be quite politically feasible.  They do not eliminate the program, they simply adjust it from within.  In the law, it is well known that some politically popular precedents, such as Miranda, are not overturned – since that would be very visibile and unpopular – but are instead cut back on and arguably gutted, which is far less visible.  The same could be done to Obamacare.

Sadly, it is time to start thinking about these strategies rather than simply repealing the law.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Comments

  1. z9z99 says

    Here is the reality of Obama care: it creates a two-tiered healthcare system– a publicly-supported, bureaucratic tier where care is rationed by necessity, and a more or less conventional sector paid for privately. The biggest effects of Obamacare will not be on healthcare; they will be on businesses and the economy.

  2. Glen says

    Because of Obamacare’s staggered implementation schedule, most voters believe that the entirety of the legislation is limited to the individual mandate, pre-existing conditions, extended coverage for children on parent’s policies and a handful of other “consumer benefits.” While they may have heard about the exchanges, the vast majority of voters have no comprehension about what Obamacare will really mean for them. So expect to see massive public unrest as implementation begins in earnest.

    The real question then will be: what’s next? The Democrats will push single-payer as “Medicare for all” as the only viable alternative to continuing “market failures.” If Republicans only offer marginal changes rather than outright repeal and a return to a truly consumer- and market-oriented system, then Obamacare’s legacy will be a fully nationalized healthcare industry indistinguishable from Europe.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>