The sinking ship of Obamacare

By Kathleen Parker

Saturday, November 16, 2013

Let’s recap: If you like your insurance policy, you can keep it. No, wait. If you liked your policy, it was probably worthless anyway. Scratch that. If your junk policy was canceled and you still want it, you can keep it. Er, get it back.

Whatever.

So now President Obama has apologized for real. On Thursday, he told Americans, “I hear you loud and clear” (Do I hear an echo?) and announced that insurance companies can ignore the law for a year. The several million Americans whose policies were canceled, or were scheduled to be canceled, can keep them — or get them back — assuming state regulators and insurance companies comply.

It isn’t clear whether insurers can, or will, based on the assurances of someone whose credibility isn’t exactly soaring. Meanwhile, the newest promise dovetails with another earlier delay granted to businesses with at least 50 employees (just 3.6 percent of employers), which were given another year to comply with the Affordable Care Act (ACA).

With the computer-crash rollout preventing people from signing up, businesses temporarily exempted from compliance and policyholders either reinstated or facing yet another broken promise (for which the insurance companies will be blamed), is there anyone left to love Obamacare?

In the wake of Obama’s latest tweak, two salient questions have emerged: Can the ACA survive? Can the president even do what he just did, legally?

Though brilliant minds may differ, the president is probably within bounds, according to a compelling argument by Simon Lazarus, senior counsel at the Constitutional Accountability Center. The relevant constitutional text, he writes for the Atlantic, requires that the president “take care that the laws be faithfully executed,” a broad-enough concept to allow for judgment in the execution.

The only prohibition is that the president not fail to execute the law owing to his opposition to a policy. Obviously, this is not the case here. As a political matter, it is also obvious that Obama is merely trying to right his own sinking ship, especially after Bill Clinton’s undoubtedly heartfelt advice (you just know), as well as to preempt a new House bill to aid canceled policyholders that passed Friday with bipartisan support, including 39 Democrats.

Cynics on the left insist that Republicans have no real interest in helping Obamacare. And, of course, they are correct. Do Republicans just want to make sure Obama fails? Yes, but not for reasons sometimes suggested. Oprah recently intoned that many Americans disrespect Obama because he is African American. Even if that were remotely true, it is not the reason half the country opposes Obamacare and many more now doubt its efficacy.

Similarly, when Senate Minority Leader Mitch McConnell of Kentucky notoriously said that his job was to make sure Obama was a one-term president, it wasn’t because of race, nor was it immediate to the president’s election. McConnell made his remark in October 2010, on the eve of the midterm elections, and after Obamacare passed without a single Republican vote.

In other words, Republicans oppose Obama’s policies, not the man, because they believe the president will so inexorably change the structure of our social and economic system by mandating and punishing human behavior that nothing less than individual freedom is at stake. Under present circumstances, this hardly seems delusional. Does anyone really believe that subsidized policyholders with preexisting conditions won’t eventually face other mandates and penalties related to their lifestyle choices?

Finally, Democrats incessantly seize upon their prize trophy: The U.S. Supreme Court validated Obamacare. True-ish. The high court didn’t endorse Obamacare as a good idea. It didn’t even find the individual mandate constitutional. It ruled that the mandate/penalty is constitutional only if the penalty is viewed as a “tax.” If one were to examine this gift horse’s mouth, one would have to note that, funny, but throughout the health-care debate and oral arguments, and even now, Democrats have insisted that the penalty is not a tax. Paging George Orwell.

Whether the ACA survives the new timetable remains an open question. The plan sinks or swims on the basis of young, healthy people signing up, which, for now, they cannot do except in dribs and drabs. Further, the ACA clearly needed the canceled policyholders to buy new, more expensive policies to underwrite subsidies and preexisting conditions.

Given the season, the timing of these un-glad tidings could not be worse. Soon enough, Americans will figure out whether Obamacare is the gift Democrats promised — or if Obama is the Grinch who stole, you know, the holiday season.