When the United States Supreme Court examines the individual mandate provision of the Affordable Care Act sometime next spring, it will undoubtedly give great weight to the text of the United States Constitution and relevant Commerce Clause case law.
But some on the court may be hesitant to invalidate the new law due to the significant strain it would place on an already divided Congress. These worries are misplaced. Obamacare is already a very sick patient whose symptoms will inevitably require major action by Congress.
Signs that Obamacare needs intensive therapy appeared soon after the bill became law last spring. Reports began leaking about large employers securing waivers from the Department of Health and Human Services.
Seems many firms were considering dropping their insurance plans since their policies didn’t meet the new law’s minimum annual benefit requirements. Almost 1,500 waivers have been granted since then, covering more than 3.2 million Americans.
Obamacare’s next blow came in December when Congress needed money to prevent Medicare reimbursement rates for doctors from falling by almost 30 percent.
Earlier versions of Obamacare had included a permanent fix for the doctor-reimbursement issue, but that provision was stricken from the final bill because Democrats were unwilling to reduce spending elsewhere in the federal budget to pay for it. The $19 billion Congress used to pay for a one-year fix in December came from increased penalties on consumers whose eligibility for Obamacare health insurance subsidies decreases midyear due to income fluctuations.
Then in May this year, Congress increased the Obamacare health-exchange subsidy penalties by another $19 billion. This time Congress had to pay for repeal of the law’s 1099 provision, which would have required small-business owners to file tax-reporting documents for almost all of their vendors.
Fast forward to Aug. 12, when the 11th Circuit Court of Appeals found Obamacare’s individual mandate unconstitutional. That same day, the Treasury Department issued new regulations rendering millions of Americans ineligible for health insurance subsidies based on a technical definition “affordable.”
Judy Solomon of the liberal Center for Budget Priorities think tank said, “the proposed rule would mean that many spouses and dependents who are uninsured today because they can’t afford family coverage would remain uninsured in 2014.”
Treasury promised to mitigate the problem by exempting affected families from the law’s insurance mandate. But while these families might not have to pay penalties for violating the mandate, they still have to cope with an insurance market where premiums will be much higher due to other Obamacare insurance regulations.
Congress will have to find some way to help these families. Congress must also find a long-term solution to the Medicare reimbursement problem. Not to mention the impending backlash from the millions of Americans who will be forced to pay $38 billion in health exchange fines just because they managed to get a raise.
And we haven’t even touched on the inevitable controversy and litigation that will come when the Independent Payment Advisory Board begins cutting Medicare and refusing to reimburse providers for selected procedures.
Obamacare has never been popular. It debuted with a barely 50 percent favorable rating, which sunk to the low 40s by the time it passed, and stands in the high 30s today.
The law is unmanageable, unsustainable, unpopular and, according to the 11th Circuit, unconstitutional. And more problems keep turning up.
Conn Carroll is associate editorial page editor of The Washington Examiner.