The decision in the Halbig v. Burwell case this week was an unexpected legal boon to opponents of Obamacare. Spearheaded by the Cato Institute’s Michael Cannon and law professor Jonathan Adler, the case will almost certainly lead this debate about the text of the Affordable Care Act back to the Supreme Court. My colleague Sean Davis has written a comprehensive piece on the case, particularly on the nature of the supposed “drafting error” at its core.
But whatever the ultimate outcome for Halbig, the case serves as a reminder of the uneven ground on which Obama’s health care law is likely to be standing over the next two years. Whether facing challenges in the courts, or in implementation, as we saw in the GAO’s security report this week, or simply as a matter of political approval, Obamacare is going to be a subject of uncertainty in 2016, and its survival will depend on who wins the election, as I wrote here last month.
This raises an interesting question about how the presidential candidates will interact with the law. The law’s continued instability and problems will have to be answered – but the odd circumstance likely to result from the political frame of the issue is that Republicans will put forward a plan to replace Obamacare, but Democrats won’t.
One of the lazier memes of Democratic politicians and a few too many members of the media over the past several years has been the myth that Republicans have no alternative to Obamacare. This is the sort of thing that doesn’t pass even the most basic assessment of accuracy in reporting – here is a list of the health care reforms introduced by Republican House members in 2012, and here’s one for 2013. While their plans vary in scope, there are eight things Republicans generally agree about when it comes to health care reform:
- They want to end the tax bias in favor of employer-sponsored health insurance to create full portability, either through a tax credit, deductibility, or another method;
- They want to incentivize the reform of medical malpractice laws, likely through carrot incentives to the states;
- They want to allow for insurance purchases across state lines;
- They want to support state-level pre-existing condition pools;
- They want to fully block grant Medicaid;
- They want to shift Medicare to premium support;
- They want to speed up the FDA device and drug approval process; and
- They want to maximize the consumer driven health insurance model, making high deductible + health savings account plans larger and more attractive.
Now, some feel that none of these count as Obamacare replacements, because they aren’t aimed at doing the same things Obamacare does (namely, dramatically expanding the number of people on taxpayer-subsidized insurance or entitlement programs). But that’s how Republicans will present them. There have been a host of such plans introduced in the Congress and put forward by would-be Republican presidential nominees. And it stands to reason that in 2016, every serious candidate for the presidency in the Republican Party will put forward an alternate plan or endorse one that has already been introduced, if they haven’t already. The choice of nominee will also determine the choice of the replacement plan Republicans run on.
For the Democratic nominee, however, the challenge of running in defense of Obamacare could prove more difficult than might be anticipated. Obama’s law is sacrosanct for some factions of the Democratic Party. Many observers have cited a variety of poll data showing that Americans want to fix Obamacare as opposed to repealing it or keeping it as-is. But those “fixes” are largely vague at this juncture, thanks to the administration’s decision to enforce aspects of the law as it sees fit.
Assuming for the sake of argument that Hillary Clinton is the 2016 nominee, will she really be able to navigate the entire election without putting forward a plan on how she intends to fix Obama’s law? The likeliest scenario is that she will avoid saying anything that could cause her political difficulty – urging voters not to risk going back to a pre-Obamacare era, while acknowledging that certain aspects of the law need fixing in a general sense. But fixing Obamacare in the long term (particularly fixing the kind of problems that spawned the Halbig case) will almost certainly ultimately require legislative reform, not just administrative fixes.
If this is how the 2016 election plays out as it relates to health care policy, the amusing aspect is that – for all the talk of Republicans not having a plan to replace Obamacare – we will likely end up knowing a lot more about the plan Republicans intend to put forward after the election than the one Democrats have in mind.