Many Americans checking the news for the first time following the weekend will learn that a federal judge in Texas, in a lawsuit that few were watching, declared Obamacare unconstitutional in its entirety. The question now becomes what happens next, legally and politically.
Judge Reed O’Connor, one of America’s most formidable legal minds, ruled (as predicted) that the individual mandate, originally justified as a tax, could no longer be since the penalty was set at zero. And by the words of Obamacare’s own architects, the individual mandate was essential to the law’s overall success. The whole thing came down along with the mandate.
Yet, Judge O’Connor’s ruling did not put his ruling into effect with an injunction. It is therefore essential that the ruling be reviewed as quickly as possible by the next reviewing court, affirmed, and put into effect for the entire country. The underlying logic of Obamacare was that health care was so interconnected that the federal government needed to commandeer 1/6 of the U.S. economy, create a vast new regulatory scheme, exercise the power to force Americans to purchase a product when they do not want it, and cover every square inch of America. Given that structure, how can only part of Obamacare be removed for only part of the country?
Obamacare was intentionally made clunky and convoluted so as to disguise the true costs from Americans who the law’s author figured were too stupid to recognize the law for what it is – a tax and spend welfare program that would have looked quite at home during the New Deal but for its dishonest packaging.
Employers all across the country who have been hard hit by the “employer mandate” are finding it increasingly difficult to comply. With its hallmark leaden touch, Obamacare forced all large employers across the country and in different industries to provide the health insurance it mandated. As with any closed system, the market suffered.
The rate of the increasing cost of insurance will continue to accelerate as fewer healthy individuals purchase insurance, particularly if only part of the country needs to participate. With people waiting until they need care to buy insurance, the market will be less actuarially sound and the costs will increase further.
That makes it harder and harder for employers to provide insurance to their employees. Insuring Americans was supposed to be what Obamacare was all about. The longer it takes to review this ruling, the more Americans will see their health insurance options suffer.
Quickway is a trucking company in Nashville that, like many across America, needs a resolution as quickly as possible. Even though Quickway is based in Tennessee, not Texas, it filed an intervention motion in this Obamacare lawsuit precisely because what happens in Texas affects their ability to provide health insurance in Tennessee.
Quickway is 100 percent employee owned. It was providing health insurance benefits before Obamacare and wants to do so always. Ironically, Obamacare is the biggest threat to its employees’ insurance. According to Quickway CEO Bill Prevost, “Since 2011, when Obamacare came into effect, our health care costs have skyrocketed by 139 percent, and it’s only getting worse. Eventually, those costs will be unsustainable unless we get a ruling that gives us relief. We would like to have the freedom to offer our employees insurance they want and we can afford before the health insurance market is too far gone.”
Of course, this need not be left to the courts. There’s good reason for those who favor consumer choice to start envisioning a post-Obamacare reality. Commentators who have somehow concluded that the problem with Obamacare is that it didn’t give enough money and power to federal bureaucrats have looked at Judge O’Connor’s ruling and decided it’s time for Medicare-for-all. It would be wise to have an alternative on deck. Even now in the lame duck session, Congress could take up “skinny repeal.”
Otherwise, if the Supreme Court upholds this ruling — and it is, after all, premised on things the Supreme Court has already said – then the effects may be impossible to imagine. Gridlock promises to be the order of the day in politics for the foreseeable future. So it is hard to imagine anything other than finger-pointing coming out of Washington, D.C. But the absence of a comprehensive federal scheme may actually hold opportunities for creative lawmakers at the state level.
Many states have incoming governors right now. They have fresh perspective to bring to bear into a debate that had gone stale. In a future when the health insurance market may, for the first time since WWII, not have to orbit around a federal dead star, state lawmakers will be free to innovate like never before. Innovation, consumer choice, and an open market may finally have the opportunity to flourish.
Those states that did not shackle themselves with Medicaid expansion have even greater freedom to experiment. And even those states that remain infatuated with central planning should have the chance to put their schemes into practice. Let us see the results of these competing philosophical models.
In this rare window, states should think bold. Rob Henneke, the victorious attorney for the plaintiffs, described a future where states are finally free to “restore the relationship between the doctor and patient, unencumbered by government and insurance company red tape.”
There’s probably less of a reason why health care isn’t more like the market for phones or cars than people commonly suspect. If you think “health care is just different” from other consumer goods, then check out what’s happened to laser vision eye care over the last decade. Unlike most health care products, it is generally severed from the third party-payer model. With consumers and doctors in charge, laser vision eye care has dramatically gone up in quality and down in cost. In other words, it has behaved unlike other health care products and exactly like a healthy market.
There’s a good bit of denialism going on here about the consequence of the latest Obamacare decision. But Judge O’Connor’s ruling deserves to be taken seriously. The reviewing Fifth Circuit will almost certainly affirm. When it does, it needs to put an injunction into effect. And that means Obamacare will go to the Supremes for a third rematch.
As soon as possible, we need to end the calamitous effects of Obamacare on Americans and America’s jobs providers. The future is out there for lawmakers interested in embracing it. Lawmakers may not be interested in touching the health care debate, but the health care debate is interested in touching them.
Braden H. Boucek is the Vice President of Legal Affairs at the Beacon Center of Tennessee. He filed a motion to intervene on behalf of Quickway and Atwork in this case, arguing that their interests were at stake and needed to be protected. He can be reached at [email protected]