The White House’s decision last week to delay part of its health care overhaul illustrates six truths about the law that its supporters can’t easily acknowledge.
First, important parts of it are badly designed. President Obama’s administration has pulled back on the employer mandate – the part of the law that fines large businesses that don’t offer health insurance – because, among other things, it threatened to depress full-time employment before the next congressional elections.
The mandate is not an incidental feature of the law. It’s there because without it some of those large employers would drop coverage and leave their employees to get heavily subsidized policies on the insurance exchanges the law creates. More people on the exchanges would mean higher federal spending – and more disruption to people’s existing coverage – than supporters of the law promised when they were trying to pass it.
Second, the Affordable Care Act is a standing affront to the rule of law. Unlike past expansions of government assistance – think of Social Security or Medicare – much of the health care law consists of granting discretionary power to the executive branch. That’s how the administration was able to impose the rule that almost all employers have to cover the morning-after pill, for example, even though the law doesn’t explicitly include that rule.
Yet even this vast discretion hasn’t been enough for the administration, which has had to act on the outer limits of its authority – and beyond those limits – to rescue the legislation from its flaws. Last week’s decision was an example. It isn’t clear that the administration really has the authority to delay the employer fines. Similarly, Obama’s Internal Revenue Service plans to offer tax credits and impose penalties in states that haven’t set up exchanges, another thing the law doesn’t provide for.
Third, the law is struggling politically. During the debate before Obamacare was enacted, supporters said it would become popular once it passed, or once its early benefits started flowing. Yet the Kaiser Health Tracking Poll shows that only 35 percent of the public has a favorable view of it. That’s why the administration is so nervous about implementing the law.
Fourth, the administration is not following previous norms about how to build public support for a new program. Instead, it has adopted a whatever-it-takes mentality to overcome the opposition. It will use force or stealth as needed to get its way. The delay in the employer mandate should quiet business opposition until after the 2014 election; the IRS decision should keep non-cooperating states from opting out of exchanges.
Unlike most previous social-policy milestones, this law was jammed through Congress over the opposition of all Republicans, some Democrats and most of the public. The financial crisis had delivered the Democrats such large majorities in 2008 that they could accomplish long-standing ideological goals that had nothing to do with that crisis. Nor did Obama himself have a mandate for the law, having campaigned against some of its most controversial features – for instance, the individual mandate and the new taxes on health insurance – during his 2008 presidential run.
Fifth, the law’s problems aren’t simply the result of Republican sabotage, as many of its supporters say. It is an odd defense of a law – especially one that most people oppose – to say that it would work well if only the country were uniformly behind it. And last week’s delay undermines this defense. The administration simply flinched from the economic consequences of the law; Republicans had nothing to do with it.
Sixth, opposition to Obamacare is reasonable. Democrats have been portraying any disagreement with the law as pathological, a break from the standard practice in which the losing side of a legislative debate reconciles itself to defeat and works with the winners. But the law is itself a break from standard practices in several respects, it remains unpopular, and the administration has now effectively conceded that it’s seriously flawed and not set in stone.
There is no reason, then, to give up on replacing this law with something better.