Commentary by Susan Brinkmann, OCDS
President Barack Obama was re-elected but that’s no reason to believe the monstrosity known as ObamaCare will ever become the “law of the land” because this ill-written law will probably destroy itself in the long process of implementation.
Peter Suderman writing for Reason.com sums it up quite succinctly. “We know we’ll keep Obamacare on the books, at least for the foreseeable future. What we don’t know is whether it will work.”
It’s hardly off to a good start and is already hitting huge snags with even greater legal and logistical hurdles ahead.
For example, the state exchanges are not exactly going as planned, mostly because they mean higher taxes, fewer jobs, and less protection of religious freedom. And no one really knows what to do about the 14 states – Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Ohio, Oklahoma, Tennessee, Utah, and Virginia – in which an ObamaCare exchange is outright illegal.
They have all “enacted either statutes or constitutional amendments forbidding state employees to participate in an essential exchange function: implementing Obamacare’s individual and employer mandates,” says Michael F. Cannon, director of health policy studies at the Cato Institute
And without those mandates, ObamaCare crumbles.
But even those few states that are trying to set up exchanges are running into trouble. Delays and the likelihood of large premium hikes are already a headache for states such as the cash-strapped California. And even though these exchanges are supposed to be ready for federal certification by early 2013, officials say it’s just not going to happen.
Suderman quotes the District of Columbia’s acting director of health reform who told The Washington Post that “no state is going to be able to be fully certified on Jan. 1. When they passed the ACA [ObamaCare], they were highly optimistic about the timeline for states to implement exchanges.”
In essence, states would actually be better off defaulting to a federal exchange, but that option also has a major problem – no money was ever appropriated to create these federal exchanges.
“Perhaps the money can be found, but so far no one knows where,” Suderman writes. “One adviser charged with helping Department of Health and Human Services create those exchanges has admitted that in order for HHS to build the exchanges, the federal government will likely have to ‘get creative about the financing’.”
Thus far, implementation of these exchanges has been “secretive and shoddy,” Suderman adds. “Just this week, reports surfaced noting HHS may have improperly failed to disclose conflicts of interest in contracting with private insurers to help run the exchange.”
That sounds a lot like the legal problems the HHS is facing in the implementation of the birth control mandate. Legal experts say it’s in blatant violation of the Religious Freedom Restoration Act, something HHS Secretary Kathleen Sebelius would have known had she sought adequate legal advice before imposing this draconian rule. Dozens of lawsuits already on the books will cause innumerable delays in implementation of the rule on their way to the U.S. Supreme Court.
Another big problem for the success of the program is the costly Medicaid expansion it requires – an expansion that most states simply can’t afford. And because the Supreme Court’s ruling on the health care law gave states the option to decline implementation of this expansion, most will probably do so.
“Neither the states nor the federal government have the money to expand Medicaid,” Cannon argues. “If all states politely decline, federal deficits will shrink by another $900 billion.”
These are only a fraction of the legal and fiscal problems inherent in ObamaCare. We can only imagine what problems will arise as other areas of the law struggle to be implemented.
“Now is not the time to go wobbly,” Cannon writes. “Obamacare is still harmful and still unpopular. The presidential election was hardly a referendum, as it pitted the first person to enact Obamacare against the second person to enact it. Since the election, many state officials are reaffirming their opposition to both implementing exchanges and expanding Medicaid.”
This is why many experts believe that short of repealing or slowly defunding ObamaCare in Congress, the best way to defeat ObamaCare will be through the states.
If enough states stand in the way, “Congress will have no choice but to reopen Obamacare,” Cannon says. “With a GOP-controlled House, opponents will be in a much stronger position than they were when this harmful law was enacted.”
In other words, given enough time, ObamaCare just might destroy itself.
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