GOP vulnerable to Obamacare boomerang

LeRoy Goldman, Guest columnist 12:50 p.m. EST March 6, 2015
Ashville Citizen-Times

Whether you love or hate Obamacare, there’s no denying that the process by which it was enacted and implemented has left almost everything to be desired.

President Barack Obama and his Democratic allies on Capitol Hill have paid a terrible political price for the bitterly partisan, incompetent, and deceptive manner by which this program, which proposes to reform one-sixth of the nation’s economy, was created. Contrast Obamacare with the enactment of Social Security, the Civil Rights Act, the Voting Rights Act, and Medicare and Medicaid. All of those controversial laws had significant Republican votes on final passage. All have endured for decades. But not Obamacare. It had no Republican votes on final passage. And one way or another it will not endure.

Vitriolic public opposition to Obamacare cost the Democrats control of Congress. It has neutered Obama. Amazingly, it was a self-inflicted wound. But what is not yet obvious is the clear and present danger that Obamacare’s demise poses for the Republicans if the Supreme Court invalidates its tax subsidies in the 34 states that did not establish their own exchanges.

Last Wednesday the Supreme Court heard oral arguments on King v. Burwell, the case in which the challengers argue Obamacare subsidies in the form of tax credits are impermissible in those 34 states. An IRS regulation promulgated in 2012 currently makes the subsidies available in all states.

The challengers base their argument on Section 1401 of the law, which says subsidies are to be available only to people, “which were enrolled through an Exchange established by the State.” The act makes no mention of subsidies for people who enroll in states in which the exchange was established by the federal government.

Contrary to popular belief, the central issue this case presents is not the constitutionality of Obamacare, nor whether a ruling in favor of the challengers will create the conditions that trigger a death spiral for the statute. No, the central issue before the High Court is the integrity of the Constitution’s Doctrine of Separation of Powers. The IRS regulation under assault by the challengers amounts to executive branch lawmaking and spending, powers the Constitution vests only in Congress. The Obama administration now wants the Supreme Court to legitimize its unlawful behavior, thus setting a precedent that future presidents could use to aggrandize their power.

The best and ultimate line of defense for the Constitution’s Doctrine of Separation of Powers is the Supreme Court. In 2012 Chief Justice Roberts said, “the Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits.” When the court rules on King, we will know if he meant it.

Let’s suppose he did, and the court rules in favor of King. Then the GOP will have to put up or get hammered by the voters in 2016. The Democrat’s reaction to the Obamacare death spiral that a Court ruling in favor of King will trigger will be swift, unrelenting, and merciless. They and their allies in academe and the media will blame the Republicans for abruptly terminating insurance coverage for millions who can no longer afford it without subsidies. They will portray the GOP as heartless and uncaring. Those charges, if not answered promptly and effectively, will stick.

The GOP’s defense will likely be the legislation that Sens. Hatch, Alexander and Barrasso are preparing. It won’t work. It will lack specificity, not be comprehensive and will be opposed by all Democrats. It will be filibustered in the Senate and/or vetoed by Obama.

What the GOP needs is a bipartisan solution that has a proven track record of success. How about one with 55 years of success: the Federal Employees Health Benefits Program (FEHBP)?

Prior to Obamacare it was the largest health insurance program in America. It covers about eight million people nationwide. It’s voluntary, thus no tax penalties. Its premiums are subsidized. It has comprehensive coverage, bars discrimination against pre-existing conditions, and offers multiple choices among many fee-for-service and HMO plans. It is administered by the federal government working cooperatively with private insurers. FEHBP has been an enormous success. It has no enemies.

The Republicans should propose it as their alternative to Obamacare. Most congressional Democrats will vote for it. There will be no filibuster. If a petulant Obama were to veto it, his veto would be overridden. Its enactment would demonstrate that the GOP can compromise, legislate and govern. It’s a gridlock killer.

Goldman lives in Flat Rock. He was member of the federal government’s Senior Executive Service for many years.

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