Obamacare

How the White House's Politically Motivated Obamacare Delays Undermine the Health Law's Stability

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Most of the criticism of President Obama's numerous executive tweaks to the health care law—including delays of the employer mandate and of demands that health plans comply with certain requirements—has come from people who oppose Obamacare.

But in an article for The New England Journal of Medicine, Nicholas Bagley, a professor at the University of Michigan Law School who is a supporter of the Affordable Care Act, warns that some of the administration's alterations of the law are not just legally dubious. They set a precedent that could stymie the law's larger goals in the long run:

In short, the delays appear to exceed the traditional scope of the President's enforcement discretion. To some extent, the President's willingness to press against legal boundaries is an understandable and even predictable response to the difficulties of implementing a complex statute in a toxic and highly polarized political environment. Congress's unwillingness to work constructively with the White House to tweak the ACA has increased the pressure on the administration to move assertively to manage the challenges that inevitably arise in rolling out a massive—and critically important—federal program.

The delays nonetheless set a troubling precedent. They are unlikely to be challenged in court—no one has standing to sue over the employer-mandate delays, and no insurer has thought it worthwhile to challenge the "like it, keep it" fix. But a future administration that is less sympathetic to the ACA could invoke the delays as precedent for declining to enforce other provisions that it dislikes, including provisions that are essential to the proper functioning of the law. The delays could therefore undermine the very statute they were meant to protect—and perhaps imperil the ACA's effort to extend coverage to tens of millions of people.

I have argued in the past that the administration's delays have prioritized short-term political gain at the expense of the law's policy design. Bagley's piece suggests that the delays have also made the health law more susceptible to attacks from future administrations who do not share the Obama administration's commitment to the law or its goals.  

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  1. including provisions that are essential to the proper functioning of the law

    Oh, you mean like the employer mandate.

    No shit, Sherlock. Fuck the President, fuck Congress, fuck the bureaucracy, fuck Nicholas Bagley, and fuck you.

    1. Actually they don’t really need the employer mandate at all. They could do away with it tomorrow and make everyone buy their plans on the exchanges.

      The only problem is that it would be politically dangerous, because many people would dislike losing their employer-based insurance.

      1. many people would dislike losing their employer-based insurance.

        Hazel if understatement were ever an Olympic event, even the East German judge would have to score that one a ten.

        1. To be fair the employer based system is terrible and the root of pretty much all evil in the insurance market.

          Unfortunately, the ACA basically duplicates everything that’s wrong with the employer-based system, and makes it mandatory in the individual market.

          1. I think you are mistaken about that Hazel. We have discussed this before, without employee based insurance, we would all be on the individual market. If we were all on the individual market, health insurance would be affordable right up until you got old or sick and actually needed it.

            Even pre-paying term policies wouldn’t work very well. They don’t work very well for life insurance. No term policy is affordable after a certain age.

            I am convinced the biggest reason why the US avoided the horrors of single payer and places like Canada and the UK didn’t was that our system was employment based and people didn’t fear losing their insurance when they got old. Had they had that fear, we would have been stuck with single payer long ago.

            1. People lose their jobs when they get old. They get on Medicare at that point.

              One thing people could do is save money for when they get old. And then make rational choices at the end of their lives about whether they want to leave an inheritance to their children or not.

              1. Yes Hazel and we got Medicare rather than single payer. If we didn’t have employee based health insurance, people would fear losing their insurance if they ever became a bad risk and it would quickly be Medicare for all.

                And “just save your money so you can spend it all on healthcare when you get old” is not an answer. It may be a rational answer. But it is an answer only a Libertarian would be politically tone deaf enough to think would keep people from demanding single payer.

                1. If people fear losing their medical insuance when they become a bad risk that is a market opportunity for insurers who will charge more for a policy that cannot be canceled when you become a bad risk.

                  1. If people fear losing their medical insuance when they become a bad risk

                    Then they don’t understand how insurance works. You can’t be kicked off a policy if you become a bad risk while the policy is in effect.

                2. Don’t confuse “healthcare” with “insurance”. Where I live people have insurance for catastrophic events (about $23/month), and pay cash for day-to-day health care to competitive free-enterprise doctors and clinics, (which are as low as $2 per visit). We don’t need prescriptions for any lab tests, nor for most medicines.
                  I live in Mexico

            2. We have discussed this before, without employee based insurance, we would all be on the individual market

              Not necessarily. You’d have to get rid of insurance laws in some states, at least, that prohibit or restrict non-employer associations or groups from getting insurance.

              With those out of the way, insurance would be available, with group pricing, to all kinds of associations, clubs, etc.

              1. I remember reading an article about how musicians and other artists were getting health insurance through associations and Obamacare was messing that up. Several upset NYC progressives were interviewed.

      2. Related:
        “Roberts Gibbs, a former top adviser to President Obama, said in a speech this week that he expects the Obama administration to abandon the employer mandate portion of Obamacare, according to a report.”

  2. Haha nope. Any problems or ill effects of Obamacare are obviously attributable to racist obstrublicans, and not the poor design of a law meant to command a system it doesn’t understand.

  3. And fuck John Roberts

  4. He claims that Congress has been unwilling to work with the President except that every time Congress proposes passing these same changes that the President has or ends up implementing, Obama says he will veto it.

    1. Yeah, he really shows his partisan ass on that one.

  5. Was the law ever really intended to be implemented? The conspiracy theorist in me wants to believe it wasn’t. *lights Jesse symbol*

    1. phew. for a second there i was expecting Alfred Molina from Boogie Nights.

    2. “ERROR 1101
      Hotlinking Not Allowed”

      GODDAMNIT! Now I’m getting PISSED!

  6. no one has standing to sue over the employer-mandate delays

    I’m confident Nicholas Bagley will reconsider and reverse this position once President [Republican] is in office.

  7. Doesn’t the Health Law undermine its own stability?

    1. feature or bug?

      1. If you’re pushing for single-payer: Feature.

  8. Proggies are short sighted, all unintended consequences of their policies and actions are ‘unexpected’?

    Obama is an expert at stepping on his own dick?

    Color me shocked.

    Also, what Almanian! said…and Leigh.

  9. Congress’s unwillingness to work constructively with the White House to tweak the ACA has increased the pressure on the administration to move assertively

    So, let’s see if I follow this:

    1. It’s Congress’s (i.e. the Republicans) fault that the bill isn’t working properly because they won’t “tweak” it.

    2. Because of this intransigence on the part of Congress, there is pressure from some unidentified group to get the administration to move “assertively.”

    3. Because of the obstructionist Republican Congress and the unidentified pressure exerters, poor President Obama really has no choice but to violate the constitutional limits on his power. Because, you know, he’s really a weak person who can’t stand up for principles and nothing bad that happens in his presidency is really his fault.

    Let’s try it this way: Congress’s unwillingness to work constructively with the White House to tweak the ACA Academic Censorship Act has increased the pressure on the administration to move assertively to restrict academic freedom for professors of law.

    That work for you Professor Bagley?

    1. When Congress tried to delay this thing, they were called terrorists. Maybe Bagley missed it but the Chocolate Nixon was on TV yesterday declaring victory.

      Maybe the reason Congress hasn’t “worked constructively” with the Administration is because the administration is completely insane and refuses to admit there is a problem with the bill?

      1. Even if they weren’t completely insane, it’s the mono-ocular approach that kills me i.e. no Republican voted for this bill & there was widespread criticism based on the idea that it wouldn’t work, it was unconstitutional (yes, I know the court said otherwise), and they didn’t support it’s goals. But now it’s not working they’re supposed to get on board.

        I guess like Harry Reid and Joe Biden et al got on board with the Iraq war to offer Bush constructive suggestions?

        1. I guess so. And what “fixes” are they supposed to get on board with? I haven’t heard any coming from the Democrats. Are the Republicans supposed to come up with fixes and somehow ensure only Democrats get credit for them?

          1. Are the Republicans supposed to come up with fixes and somehow ensure only Democrats get credit for them?

            Well, duh, of course they are. Anything else is “terrorism.”

            “Those Rethugikkkan terrorists won’t fix our mess for us!” – Dems

          2. “Copper plan”

            They want to put in place a even more minimal tier for insurance than the bronze plan.

            What they should really do is allow one with a reduced essential benefits list.
            Allow insurers to sell policies that don’t cover maternity, pediatric, substance abuse, mental health, or prescription drugs. But let them vary the deductible as much as they like.

            1. Allow insurers to sell policies that don’t cover maternity, pediatric, substance abuse, mental health, or prescription drugs. But let them vary the deductible as much as they like

              Shush Hazel!

              That was almost the exact INDIVIDUAL health plan I had in 2011. I was a 48 yr old smoker and it had a $5K deductible. I paid $152/mo.

              And it also had a $6 million “lifetime limit”.

              Because the fact that I will only earn ~$2 million during my entire life makes that policy “bad”- because it limited the lifetime payout.

              Meanwhile, the cheapest policy available to me now is $347/mo- with a 6K deductible- with outrageous co-pays.

              Fuck you, Nancy Pelosi!

  10. Perhaps President Jeb will someday skim some of the tax revenue from the ACA to fund a covert war in the Middle East.

    1. Why wouldn’t he use the funds Obama is currently using for that?

    2. Perhaps yer momma should have gone to a better doctor.

  11. You mean Obama is handing us a roadmap for the undoing of this atrocity? How about that! I guess I can never again say that the man has done nothing good.

  12. Bagley’s piece suggests that the delays have also made the health law more susceptible to attacks from future administrations who do not share the Obama administration’s commitment to the law or its goals.

    So I take it Bagley is the rare progressive who kind of groks ‘You today, me tomorrow’?

    1. I wonder if he’s troubled by Harry Reid’s changes to the Senate rules for closure?

  13. They are unlikely to be challenged in court?no one has standing to sue over the employer-mandate delays,

    Bullshit. I don’t see why any employee doesn’t have standing. They would have “benefitted” from timely implementation, and so an illegal delay harms them in an identifiable way not shared by the general population.

    Would the good professor so blithely assert that no one would have standing to sue over a delay in implementing the elevation of gays to a “protected class”? I doubt it very, very much.

    1. I don’t follow that either. What if the President stopped enforcing OSHA regulations, would Bagley claim no employee who could be harmed by an unsafe work site would have standing to sue?

  14. future administrations who do not share the Obama administration’s commitment to the law

    you gotta admit, that’s funny shit right there.

    1. It is. The plan all along was the shove the thing down the country’s throat and then filibuster any repeal attempt by a future Republican majority. Well, it looks like Obama has fucked that up too.

      1. some days I’m torn – are he and his crowd that evil or that stupid? Either way, we’re talking about an epic scale of each. Maybe both. Probably both.

        1. He is stupid. If there is one rule to live by in 21st Century America, it is always bet on stupid.

        2. Stupid. Trust me, it’s stupidity. Never attribute to malice what can be attributed to full retard.

      2. was that part of the plan when they were eliminating the filibuster?

    2. Did I dream this, or was there some talk when Obozocare was being passed of writing into the law that it cannot be repealed?

      1. Yeah, although it may have had to do with locking in the funding.

        Regardless, utterly unenforcable and of no effect. Any bill to cut funding or otherwise change the law would just have to include a section repealing the purported “you can’t touch this” clause.

    3. I actually chuckled aloud. Then I remembered he’s being serious. Yikes.

  15. Tangential thought experiment:

    What does the ACA do to incentives to marry? If you marry someone with a lower income, does that person no longer qualify for Medicaid, or subsidies?
    Would it be cheaper to stay unmarried in order to collect the subsidies, or would being a family of two lower the income threshold so you would get more subsidies?

    1. The answer to both your questions Hazel is yes. Pretty much all federal welfare programs create the incentive to avoid marriage and having to count your significant other’s income for proposes of benefit eligibility.

  16. They set a precedent that could stymie the law’s larger goals in the long ru

    I thought the larger goal was to fuck everything up so bad that we “have to” move to single payer. Didn’t Obama basically say that out loud at some point (if you put his words through a properly functioning prog-speak interpreter)?

    1. I think the goal was to create a public option and then fuck everyone into having to join it and create single payer by default. The problem was the public option couldn’t get passed through Congress. So they passed the bill without it figuring the country would love them so much for doing it they would get a huge majority and be able to put the public option back in. This, I think, is why they delayed implementing it until 2013. They knew that without the public option it was going to be a disaster so they wanted to give themselves two elections to take that huge permanent majority they thought they were going to get to fix it.

      Only problem, they got killed in 2010 and didn’t retake the House in 2012. Now they are just living day to day as the disaster unfolds.

      1. Right. They knew that premiums would skyrocket in the individual market. And then they would have the subsidized “public option” at half the price and drive the insurance companies into bankruptcy.

        But minus the public option all they have is skyrocketing premiums. And lots of people with no alternative but to pay them.

  17. Bagley’s piece suggests that the delays have also made the health law more susceptible to attacks from future administrations who do not share the Obama administration’s commitment to the law or its goals.

    Well, that just means that the proggies will have to pull out the all the stops to make sure that no dastardly TEATHUGLIKKKAN ever gets elected president. If you thought the WAR ON WYMENZ and “…put ya’ll back in chains” and other class warfare bullshit was bad this last time around, just wait until 2016. We ain’t seen nothing yet.

  18. BOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOSH!

  19. Why does no one have standing to sue over the employer mandate delays? There must be companies that made decisions based on the threat that suffered damages and could not undo the carrier and plan decisions that were made.
    What am I missing?

  20. ObamaCare is a major step in the aspirations of the left to bankrupt America! It is fundamentally flawed so that it could never work the only thing it can do is being subsidized until the crash the American dollar!
    In order to fundamentally change the United States of America the pillars that hold the society together must be uprooted.
    Notice the date for new Obama lies!!
    Wow Obama is incredible the just made it claim 7.1 million people signed up for Obama care! Then he has to nerve to continue that it was not a hard sell they did not have millions of dollars to spend He should have finished his speech telling Americans that they all kept their own doctors !!!

  21. Is undermining Obamacare a bad thing?

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