OPINION:
When the Supreme Court rules in the King v. Burwell case this summer, it will strike down Obamacare benefits in 36 states. That is because the Obama administration did not follow its own Obamacare law as passed by congressional Democrats and signed by President Obama.
That law provides for federal benefits to help pay for health insurance purchased “through an Exchange established by the State.” But only 14 states set up their own health exchange. The exchanges in the other 36 states were established by the federal Department of Health and Human Services.
The Obamacare law pointedly excludes mention of federal benefits for health insurance when discussing exchanges established by Health and Human Services. The Obamacare architects have explained that the law was written this way to provide irresistible incentives for states to establish exchanges, so their residents could get Obamacare benefits. Indeed, the Obamacare law specifically defines “State” as “each of the 50 states, plus the District of Columbia,” without mentioning Health and Human Services.
However, Mr. Obama ordered the Internal Revenue Service to issue a regulation that the Obamacare benefits, which are in the form of tax credits, would be provided for health insurance purchased on either exchanges established by states or exchanges established by Health and Human Services, the Obamacare law to the contrary notwithstanding. King v. Burwell was brought to ask federal courts to strike down that regulation as contrary to the express Obamacare law.
There are still at least five votes on the Supreme Court recognizing that the federal courts must enforce the law as written. For any changes, that is what Congress is for. So says the Constitution. Case after case is coming to the court complaining that Mr. Obama is not following the law as written. It would shatter America’s whole concept of the rule of law for the Supreme Court to start doing that now, too, effectively approving Mr. Obama’s misconduct.
Obamacare’s statute further states that where the Obamacare health insurance benefits do not apply, the counterproductive individual and employer mandates do not apply as well. So when the Supreme Court strikes down Obamacare benefits in 36 states, the individual and employer mandates will also go down in those states.
In response, Democrats and their party-controlled media will pressure Republican governors and state legislatures to establish state exchanges, so citizens in their states can get the Obamacare benefits their taxes are paying for. They will pressure congressional Republican majorities to simply re-establish Obamacare in all 50 states by enacting the IRS regulation into law. But Republicans cannot so betray their own voters.
Rather, Republicans should pressure Democratic governors and legislators to repeal their state exchanges, relieving their citizens of the job-killing and costly individual and employer mandates also. Moreover, since states without state exchanges will have opted out of Obamacare benefits, congressional Republicans should pass legislation providing that the citizens of those states have also opted out of Obamacare taxes as well as Obamacare regulations. Those states can then go back to their original state regulation of health insurance.
Without that federal overregulation, Obamacare’s increases in the cost of health insurance will be reversed as well. Without those Obamacare cost increases, the Obamacare benefits will no longer be so necessary, either.
For the poor, the legislation should further provide for block-granting Medicaid to the states exactly as the enormously successful 1996 welfare block-grant reforms. States should ideally use their resulting new control over Medicaid to provide for benefits in the form of health insurance vouchers that the poor could use to help buy the health insurance of their choice, including health savings accounts.
That would vastly improve health care for the poor, who cannot get timely, essential health care through Medicaid today because the government so badly underfunds payments to doctors and hospitals. Private insurers, by contrast, must adequately compensate doctors and hospitals to attract health insurance customers in the competitive marketplace.
Sure, Mr. Obama could still veto this King v. Burwell fix for his broken, failed Obamacare program. But he and his pajama boys would then have to live with his Obamacare disaster for another year, until another president can be elected. That veto would further clarify the stakes in the 2016 election.
• Peter Ferrara is a senior fellow at the Heartland Institute and at the National Tax Limitation Foundation. He served in the White House Office of Policy Development under President Reagan, and as associate deputy U.S. attorney general under President George H.W. Bush.
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