What once was known as Obamacare is now indisputably Robertscare. John Roberts has twice saved the ACA by rewriting the law. The first time Roberts suggested to Donald Verrilli that Verrilli argue that instead of arguing for a personal mandate that Verrilli instead label the personal mandate a tax- despite Obama swearing repeatedly that it wasn’t a tax.
[youtube]https://youtu.be/5_-qh9XDbgE[/youtube]
Thus Roberts effectively rewrote the law. Now Roberts has again rewritten the law. Roberts bought into the argument that the phrase “established by the state” was “inartful drafting” despite the phrase appearing nine times within the law. The dim witted lawmakers who voted for the bill tried to distance themselves from the language. That is the price for voting for something you haven’t bothered to read. Roberts’ decision flies in the face of the unsolicited testimony of Jonathan Gruber, who is on record as affirming on numerous occasions that the language in the ACA was absolutely intentional. Roberts brushed all the obvious evidence aside, finding it “implausible.” John Roberts has taken ownership of the ACA.
Over at Instapundit Ann Althouse opines that Republicans might be better off with SCOTUS rewriting Obamacare than if they had ruled against the strict interpretation of the law.
I haven’t read the opinion yet (of course), but I’d just like to console Republicans with the observation that they are better off. If it had gone the other way, they’d have to scramble and do something legislatively — probably save the subsidies themselves. This way, they can stand on whatever principle they like. Also, in the run up to the 2016 presidential election, they’ll fare much better on the old question of who do you want appointing the next Supreme Court justice.
At Politico, Sarah Wheaton essentially wet herself proclaiming the birth of the Messiah Obama’s the sealing of Obama’s health care legacy. Not so fast. I would argue that however disappointing this decision is, the fat lady hasn’t yet sung. There are challenges ahead for Robertscare.
Many state exchanges are in trouble. Half of them are failing.
Five years and $5 billion later, half of the 17 state insurance exchanges are in financial trouble – so much so that many of them are considering folding and forcing their citizens to use the federal exchange healthcare.gov.
It’s so bad that states are considering merging their exchanges to prop them up:
But the real problem – the imminent lack of that sweet, sweet federal subsidy money – is not quite so hard to assess. Basically, when Obamacare was imposed on us back in Obama’s first term the understanding was that states that set up their own exchanges were expected to be self sufficient by… January of this year. This did not happen. This did not even come close to happening: the state exchanges have largely been awful in their ability to function properly, and that’s with government largess to cover up a multitude of fiscal sins. Imagine how they’ll be doing when the deadline for self-sufficiency is finally observed – and there’s a real limit to how long this can may be kicked down the road.
Hence the sudden interest in multi-state exchanges. Combine the infrastructure, cut the overhead – that translates to ‘fire some people,’ by the way – and maybe the new mega-exchanges can survive for a while longer. Especially if they raise fees in the process, which is already happening in at least some of the state exchanges. The combination won’t really do anything to fix the situation, but at least it would do something. To bureaucrats, that’s often enough.
Robertscare premiums are rising this year and are expected to rise even faster next year.
Next up? The big business mandate. The big business mandate has been delayed several times by Obama already but it is to soon take effect. Businesses have cut hours to avoid the impact of the cost of Robertscare. They’re cutting jobs as well. Robertscare will impose serious overall costs to business.
Then there’s the big kahuna- the expiration of the risk corridors. Risk corridors are Obama’s slush fund– they are designed to cover the losses insurance companies suffer under Robertscare. The risk corridors expire in 2017- they were constructed to expire after Obama is out of office, of course. Once the slush fund runs dry, it is expected that Robertscare premiums will skyrocket:
But 2017 will be the real test. The law contains two programs that will expire at the end of that year: “risk corridors” and “re-insurance.” Both programs conceal health insurance’s true costs – costs that truly have skyrocketed thanks to the ACA’s mandates and regulations.
Risk corridors and re-insurance operate in similar fashions: They subsidize insurance companies with taxpayer money. Risk corridors give insurance companies money if their customers spend more on health care than the insurer estimated; reinsurance allows insurance companies to bill the federal government for particularly expensive patients.
Both programs ultimately allow insurance companies to list artificially low premiums for their health care plans.
The Affordable Care Act’s authors created these two programs for a specific reason: They would ease the transition from the pre- to the post-ACA health care system. In the post-ACA world, health care is more expensive – a fact borne out by 2014’s average 41 percent spike in base premiums. Reinsurance and risk corridors have largely hidden these price increases from consumers for the past year; they will continue to do so until Jan. 1, 2017.
Premiums likely will skyrocket come that date. The Medical Industry Leadership Institute’s study estimates that once the two subsidies expire, premiums for a cheap bronze plan in Wisconsin could increase by a staggering 96% for individuals and by 46% for families.
It is a vexing fact that now all three branches of the government feel free to write and rewrite law. Roberts’ put his own bald hypocrisy on display:
Perhaps the least credible part of the Chief’s opinion is the false judicial modesty in his closing. “In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—‘to say what the law is,’” he writes, citing Marbury v. Madison. “That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done.” By that, Chief Justice John Marshall meant interpret the law, not rewrite it.
Now Roberts has twice rewritten law. Yual Levin (via Instapundit)
In effect, this is a version of the president’s argument: Obamacare is not so much a particular law as an overarching desire “to improve health insurance markets” and so if at all possible it should be taken to mean whatever one believes would be involved in doing so. From the beginning of its implementation of this statute, that Obama administration has treated the words of the statute as far less relevant than the general aim of doing what it thinks would improve health insurance markets, and today the Supreme Court essentially endorsed this way of understanding the law and suggested it is how judges should think about laws more generally too.
This understanding of the role of the judge threatens to undermine the rule of law in the American system of government, because it undermines the central place assigned to written law, and to the legislator, in that system. Ironically, I think the Chief Justice intends his decision to be deferential to the Congress—to keep the Court’s footprint small in this arena by not reading laws in ways that require large transformations in the forms of their administration. But in effect, this is more contempt than deference. While it would seem to suggest that the will of the legislator should guide the system, in fact it means that the word of the legislator does not govern the other branches. It implies that Congress should have just passed a law that said “health insurance markets shall be improved,” and then left it to the executive agencies to decide how they wish to do that while judges nod in approval.
Chiseled into the marble ensconcing the Supreme Court is the phrase: “Equal justice under law.” In King v. Burwell, this bedrock principle was abandoned. As Justice Antonin Scalia laments in his dissent, the normal rule of law now yields to the “overriding principle of the present Court: The Affordable Care Act must be saved.”
There are a sufficient number of things that can yet cause the collapse of Robertscare- chief among them dissatisfaction with rising premiums and deductibles. People still don’t get it. They still do not understand the difference between care and coverage but they will learn- the hard way. The problem is that since John Roberts is now Obama’s boy he may jump in and continue to rewrite and invent law to continue to prop up what is now his baby. The SCOTUS shark has been jumped.
DrJohn has been a health care professional for more than 30 years. In addition to clinical practice he has done extensive research and has published widely with over 70 original articles and abstracts in the peer-reviewed literature. DrJohn is well known in his field and has lectured on every continent except for Antarctica. He has been married to the same wonderful lady for over 30 years and has three kids- two sons, both of whom are attorneys and one daughter on her way into the field of education.
DrJohn was brought up with the concept that one can do well if one is prepared to work hard but nothing in life is guaranteed.
Except for liberals being foolish.