Last week, the U.S. Supreme Court saved Obamacare for a second time by siding with the executive branch in King v. Burwell.
The decision allows the Internal Revenue Service to distribute health insurance subsidies to about 6.4 million people in 34 states who use the federally operated Healthcare.gov exchange.
But as GOP presidential candidate Jeb Bush recently said, “This decision is not the end of the fight against Obamacare.” He vowed to “repeal and replace this flawed law” if elected president next year.
The Republican-controlled Congress need not wait until then. It can repeal Obamacare this year with the same legislative sleight of hand that the Democrats used to pass the law in the first place. Then, the GOP can prepare a market-friendly, patient-centered replacement plan that a new president can sign on his first day in office in 2017.
At issue in last week’s Supreme Court case was the meaning of the word “State.” Obamacare’s text stipulated that tax credits would be available to those who purchased coverage in an exchange “established by the State.”
The high court decided that the federal government counted as a “State” for Obamacare’s purposes. So the IRS could hand out tax credits to folks in the states that did not build their own exchanges — and thus were forced to use Healthcare.gov.
The Supreme Court has also breathed new life into Obamacare’s employer mandate, which requires employers with 100 or more workers logging 30 or more hours a week to furnish them with affordable coverage. Next year, it applies to employers with 50 or more of these full-timers.
If they refuse, they face fines of $2,000 per employee, with the first 30 exempt from the calculation. If they provide coverage that costs more than 9.5 percent of a worker’s salary, they pay the lesser of $2,000 per worker or $3,000 per employee who qualifies for subsidies through the exchanges.
If the court had invalidated the federal subsidies, then employers could have flouted the mandate, knowing that none of their workers would have received subsidies. No subsidies, no fines — and thus no employer mandate.
Eliminating the employer mandate would have boosted the job market. According to the American Action Forum, a ruling against the Obama administration in King would have added 1.2 million people to the American labor force by 2017.
Instead, the decision will continue to take money out of workers’ pockets. Some 3.3 million people who would prefer to work full time are currently punching the clock part-time.
They’ve had to do so because their employers can’t afford to provide them with health coverage. Over the last decade, employer-sponsored premiums for the average family are up nearly 70 percent.
Republicans need not stand idly by while Obamacare drives premiums up further.
The GOP holds majorities in both the House and the Senate. Ordinarily, it would take 60 Senators to avoid a filibuster by Democrats of any effort to repeal Obamacare.
But if Republican Senate leaders employ a budgetary procedure called “reconciliation” to repeal the law, they’ll only need to round up a simple majority.
Democrats used reconciliation to pass Obamacare in 2010. Republicans should use the same tactic against them this year.
President Obama will no doubt veto full-scale repeal of his eponymous law. But if congressional Republicans team repeal up with a replacement plan that actually reduces costs and expands patients’ choices, they can force the president to explain why he’s locking Americans into his brand of reform — which does just the opposite.
Congress should use Rep. Tom Price’s (R-Ga.) Empowering Patients First Act as a template for any replacement effort. The Act would rely on market forces to guarantee access to affordable, high-quality care.
It would first repeal the individual and employer mandates — and then install a system of age-based refundable tax credits that will ensure that health coverage remains affordable for all Americans. Consumers could use those credits to shop in a more competitive marketplace, as the plan would permit individuals and businesses to buy health insurance issued in other states, contrary to current law.
Dr. Price’s plan would also fund high-risk pools at the state level so that folks with pre-existing conditions can secure affordable coverage. By separating high-cost patients from the rest of the risk pool, the measure would drive premiums down for the rest of patients.
Obamacare has emerged from two near-death experiences before the Supreme Court. The 2016 election may amount to a third near-death experience. The GOP must make sure that it doesn’t survive.