![\"Chief](\"https:\/\/i0.wp.com\/www.dougsbriefcase.com\/blog\/wp-content\/uploads\/2015\/07\/credit-human-events.jpg\")
<\/a>Chief Jus\u00adtice John Roberts \u2019 opin\u00adion in King v. Bur\u00adwell repeat\u00aded wide\u00adly-held mis\u00adcon\u00adcep\u00adtions about health insur\u00adance mar\u00adkets. Con\u00adser\u00adv\u00ada\u00adtives should take note. [Cred\u00adit: Human Events]<\/p><\/div>\u201cThe Patient Pro\u00adtec\u00adtion and Afford\u00adable Care Act grew out of a long his\u00adto\u00adry of failed health insur\u00adance reform.\u201d<\/em> Chief Jus\u00adtice John Roberts, in uphold\u00ading Oba\u00admacare subsidies.\n Oba\u00admacare is the newest chap\u00adter in that long his\u00adto\u00adry of failed health insur\u00adance reform. Con\u00adser\u00adv\u00ada\u00adtives who hope one day to replace it would do well to learn from its errors and conceits.<\/p>\n The prospects for replac\u00ading Oba\u00admacare, which have nev\u00ader been good, grew more remote with Roberts\u2019 rul\u00ading in King v. Bur\u00adwell<\/a><\/em>. The Chief Jus\u00adtice imag\u00adines that the law rep\u00adre\u00adsents an exquis\u00adite ecol\u00ado\u00adgy of \u201cinter\u00adlock\u00ading reforms\u201d that the Court could not dis\u00adturb with\u00adout invit\u00ading \u201ccalami\u00adtous results.\u201d The entire opin\u00adion rests, not on the text of the statute itself (which is plain enough), but on Roberts\u2019 sopho\u00admoric mus\u00adings about the nature of health insur\u00adance mar\u00adkets, lead\u00ading him to con\u00adclude that the law Con\u00adgress wrote means the oppo\u00adsite of what it says.<\/p>\n But while Roberts\u2019 \u201csom\u00ader\u00adsaults of statu\u00adto\u00adry inter\u00adpre\u00adta\u00adtion,\u201d as Jus\u00adtice Scalia described them, will long induce deri\u00adsion, he can be for\u00adgiv\u00aden his hal\u00adlu\u00adci\u00adna\u00adtion that Oba\u00admacare is fine\u00adly cal\u00adi\u00adbrat\u00aded reg\u00adu\u00adla\u00adto\u00adry clock\u00adwork. He was mere\u00adly lip-sync\u00ading the Administration\u2019s legal briefs, which were them\u00adselves a rep\u00ade\u00adti\u00adtion of the the\u00ado\u00adries real\u00adly smart Wash\u00ading\u00adton pol\u00adi\u00adcy experts have prop\u00ada\u00adgat\u00aded for years in their Pow\u00ader\u00adPoint presentations.<\/p>\n Health pol\u00adi\u00adcy ortho\u00addoxy has long held that if the fed\u00ader\u00adal gov\u00adern\u00adment required insur\u00aders to charge pre\u00admi\u00adums unre\u00adlat\u00aded to risk, sub\u00adsi\u00addized those pre\u00admi\u00adums, and taxed the unin\u00adsured for refus\u00ading to pay them, con\u00adsumers by the tens of mil\u00adlions would line up for cov\u00ader\u00adage. They haven\u2019t.<\/p>\n Oba\u00admacare has proven to be large\u00adly a glo\u00adri\u00adfied Med\u00adic\u00adaid expan\u00adsion<\/a>,<\/span> with low-income peo\u00adple sign\u00ading up for cov\u00ader\u00adage because it is either free or steeply dis\u00adcount\u00aded. Most of the eight mil\u00adlion<\/a> net reduc\u00adtion in the num\u00adber of unin\u00adsured peo\u00adple is attrib\u00adut\u00adable to growth in the Med\u00adic\u00adaid<\/a> rolls. Enroll\u00adment in plans sold through the exchanges is dom\u00adi\u00adnat\u00aded<\/a> by those with incomes below 200 per\u00adcent of the fed\u00ader\u00adal pover\u00adty lev\u00adel and by those who expect to incur med\u00adical claims far in excess<\/a> of the pre\u00admi\u00adums they pay.<\/p>\n Most unin\u00adsured peo\u00adple in bet\u00adter health and with incomes above 200 per\u00adcent of FPL<\/span> have cho\u00adsen to remain unin\u00adsured<\/a>. The IRS<\/span> esti\u00admates that it required 6.6 mil\u00adlion<\/a> of these refuseniks <\/em>to pay Obamacare\u2019s tax on the unin\u00adsured when they filed their tax\u00ades last spring. The IRS<\/span> exac\u00adtions were cou\u00adpled with a CMS<\/span> offer the unin\u00adsured couldn\u2019t refuse: sign up for cov\u00ader\u00adage dur\u00ading an extra-legal \u201cspe\u00adcial enroll\u00adment peri\u00adod<\/a>\u201d (which end\u00aded April 30) or pay a tax next year that will be twice this year\u2019s rate. Only 250,000<\/a> peo\u00adple took CMS<\/span> up on the offer. Most of the rest pre\u00adfer a puni\u00adtive tax to gov\u00adern\u00adment-pre\u00adscribed insur\u00adance cov\u00ader\u00adage, pro\u00advid\u00ading fur\u00adther evi\u00addence that health insur\u00adance mar\u00adkets don\u2019t work the way health econ\u00ado\u00admists or Supreme Court jus\u00adtices imagined.<\/p>\n Con\u00adser\u00adv\u00ada\u00adtives who hope to replace Oba\u00admacare with some\u00adthing bet\u00adter should take note. The Right, no less than the Left, is sus\u00adcep\u00adti\u00adble to Washington\u2019s seduc\u00adtions. Some con\u00adser\u00adv\u00ada\u00adtives believe all that\u2019s need\u00aded to put things right is a regime of tax cred\u00adits and fed\u00ader\u00adal reg\u00adu\u00adla\u00adtion more in tune with con\u00adser\u00adv\u00ada\u00adtive sensibilities.<\/p>\n But it is rea\u00adson\u00adable to ques\u00adtion whether a well-mean\u00ading con\u00adser\u00adv\u00ada\u00adtive fed\u00ader\u00adal solu\u00adtion will fare bet\u00adter than a well-mean\u00ading pro\u00adgres\u00adsive one. It is more like\u00adly to repair some of Obamacare\u2019s dam\u00adages and inflict new ones. Per\u00adhaps it is time to rethink first principles.<\/p>\n Assur\u00ading that peo\u00adple with pre-exist\u00ading med\u00adical con\u00addi\u00adtions and those with low incomes have access to afford\u00adable cov\u00ader\u00adage while pre\u00adserv\u00ading con\u00adsumer choice for mid\u00addle income fam\u00adi\u00adlies is a tall order, one that Oba\u00admacare has failed to fill and one unlike\u00adly to yield to any one-size-fits-all solu\u00adtion. It is worth con\u00adsid\u00ader\u00ading a vari\u00adety of approach\u00ades, ones that are less Wash\u00ading\u00adton-cen\u00adtric and less reliant on the con\u00adjec\u00adtures of experts, approach\u00ades ground\u00aded in the real world, not teth\u00adered to theory.<\/p>\n The states are unique\u00adly well-suit\u00aded \u2013 both prac\u00adti\u00adcal\u00adly and con\u00adsti\u00adtu\u00adtion\u00adal\u00adly \u2013 to test such solu\u00adtions. A state-based replace\u00adment for Oba\u00admacare would return author\u00adi\u00adty to reg\u00adu\u00adlate insur\u00adance to the states, pro\u00advide them greater flex\u00adi\u00adbil\u00adi\u00adty in allo\u00adcat\u00ading resources and hold them account\u00adable for results.<\/p>\n Reg\u00adu\u00adla\u00adtion.<\/strong> Oba\u00admacare impos\u00ades a suf\u00adfo\u00adcat\u00ading fed\u00ader\u00adal reg\u00adu\u00adla\u00adto\u00adry regime on fam\u00adi\u00adlies, insur\u00aders and states. The first step would be to return reg\u00adu\u00adla\u00adtion of the indi\u00advid\u00adual and small group mar\u00adkets to the states.<\/p>\n Resources.<\/strong> The next order of busi\u00adness would be to give states more flex\u00adi\u00adbil\u00adi\u00adty in deploy\u00ading resources than fed\u00ader\u00adal law now allows. Those resources are enor\u00admous. CBO<\/span> esti\u00admates that fed\u00ader\u00adal Med\u00adic\u00adaid spend\u00ading will total $4.6 tril\u00adlion<\/a> over the next decade. Fed\u00ader\u00adal spend\u00ading on Oba\u00admacare sub\u00adsi\u00addies and the CHIP<\/span> pro\u00adgram add near\u00adly anoth\u00ader $1 tril\u00adlion in out\u00adlays, bring\u00ading the ten-year total to $5.6 tril\u00adlion. States are required by law to con\u00adtribute their own resources to the Med\u00adic\u00adaid pro\u00adgram. While I could not find ten-year esti\u00admates of state Med\u00adic\u00adaid spend\u00ading, I used data from CBO<\/span> and CMS<\/span><\/a> to approx\u00adi\u00admate the ten-year fig\u00adure at $2.6 trillion.<\/p>\n All told, that\u2019s near\u00adly $8.2 tril\u00adlion in fed\u00ader\u00adal and state funds that will be spent over the next decade to sub\u00adsi\u00addize health cov\u00ader\u00adage pri\u00admar\u00adi\u00adly for low-income peo\u00adple and, to a less\u00ader extent, peo\u00adple with pre-exist\u00ading med\u00adical con\u00addi\u00adtions. The Med\u00adic\u00adaid and Oba\u00admacare dol\u00adlars come with volu\u00admi\u00adnous and exact\u00ading reg\u00adu\u00adla\u00adto\u00adry require\u00adments that strait-jack\u00adet states, sti\u00adfle inno\u00adva\u00adtion and infest the pro\u00adgram with dis\u00adtor\u00adtions and inef\u00adfi\u00adcien\u00adcies. These restraints should be relaxed or removed entirely.<\/p>\n Results.<\/strong> The third step would be to replace this Byzan\u00adtine reg\u00adu\u00adla\u00adto\u00adry arrange\u00adment with one that would hold states account\u00adable for results, rather than demand\u00ading sub\u00adservience to the fed\u00ader\u00adal bureau\u00adcra\u00adcy. States would receive a sin\u00adgle capped allot\u00adment com\u00adpris\u00ading Med\u00adic\u00adaid, CHIP<\/span> and Oba\u00admacare pre\u00admi\u00adum and cost-shar\u00ading sub\u00adsi\u00addies. To qual\u00adi\u00adfy for an allot\u00adment, a state would be required to present a plan to make afford\u00adable cov\u00ader\u00adage avail\u00adable to low-income res\u00adi\u00addents and those with pre-exist\u00ading med\u00adical con\u00addi\u00adtions. States could accom\u00adplish this through risk pools, rein\u00adsur\u00adance arrange\u00adments, under\u00adwrit\u00ading restric\u00adtions, con\u00adtin\u00adu\u00adous cov\u00ader\u00adage pro\u00advi\u00adsions or a thou\u00adsand oth\u00ader mech\u00ada\u00adnisms that Wash\u00ading\u00adton pol\u00adi\u00adcy savants haven\u2019t thought of. Sub\u00adsi\u00addies could be admin\u00adis\u00adtered in a vari\u00adety of ways, includ\u00ading the cre\u00adation of indi\u00advid\u00adual accounts. States would also be required to license a broad range of insur\u00adance prod\u00aducts and to allow peo\u00adple to use sub\u00adsi\u00addies to help pur\u00adchase any plan avail\u00adable on the com\u00admer\u00adcial market.<\/p>\n In addi\u00adtion to free\u00ading states to try myr\u00adi\u00adad approach\u00ades, the pro\u00adpos\u00adal would reduce fed\u00ader\u00adal spend\u00ading. The allot\u00adments would be capped and indi\u00advid\u00adu\u00adals could claim no enti\u00adtle\u00adment to ben\u00ade\u00adfits, pro\u00adduc\u00ading con\u00adsid\u00ader\u00adable fed\u00ader\u00adal bud\u00adgetary savings.<\/p>\n The cre\u00adation of this allot\u00adment is not incon\u00adsis\u00adtent with pro\u00adpos\u00adals to address tax code inequities. Under cur\u00adrent law, peo\u00adple who get health insur\u00adance cov\u00ader\u00adage through their jobs get a tax break, while those who buy indi\u00advid\u00adual cov\u00ader\u00adage do not. Leg\u00adis\u00adla\u00adtion to address this inequity in a bud\u00adget neu\u00adtral way is entire\u00adly com\u00adpat\u00adi\u00adble with the allot\u00adment approach.<\/p>\n But capped allot\u00adments would not be com\u00adpat\u00adi\u00adble with efforts to shoe\u00adhorn insur\u00adance mar\u00adket reforms and mas\u00adsive enti\u00adtle\u00adment spend\u00ading into the Inter\u00adnal Rev\u00adenue Code. Fed\u00ader\u00adal tax law is ill-suit\u00aded to the Rubik\u2019s cube of health reform, which involves com\u00adplex con\u00adsid\u00ader\u00ada\u00adtions of insur\u00adance risk as well as income. Nor is the IRS<\/span> the prop\u00ader agency to enforce insur\u00adance reg\u00adu\u00adla\u00adtions or dis\u00adtrib\u00adute sub\u00adsi\u00addies. Such activ\u00adi\u00adties fall square\u00adly with\u00adin the scope of pow\u00aders reserved to the states by the Tenth Amend\u00adment<\/a>.<\/p>\n For many con\u00adser\u00adv\u00ada\u00adtives, export\u00ading health pol\u00adi\u00adcy\u00admak\u00ading from Wash\u00ading\u00adton to the states would be an unsat\u00adis\u00adfy\u00ading out\u00adcome. Many regard Gov\u00ader\u00adnors and state leg\u00adis\u00adla\u00adtors as gov\u00adern\u00admen\u00adt\u2019s minor leagues, mar\u00adgin\u00adal play\u00aders suit\u00aded to pot\u00adhole repair but not to be trust\u00aded with more con\u00adse\u00adquen\u00adtial mat\u00adters, which are best left to Wash\u00ading\u00adton\u2019s heavy hit\u00adters. They are con\u00advinced that their reform ideas will suc\u00adceed uni\u00adform\u00adly across the nation and are supe\u00adri\u00ador to any\u00adthing a state might devise.<\/p>\n I\u2019ve been there. I have long advo\u00adcat\u00aded using the tax code to make health insur\u00adance more afford\u00adable for the poor and to those with pre-exist\u00ading med\u00adical con\u00addi\u00adtions. In 1993, I worked with the Her\u00aditage Foun\u00adda\u00adtion in writ\u00ading a bill that made tax cred\u00adits uni\u00adver\u00adsal\u00adly avail\u00adable and imposed fed\u00ader\u00adal reg\u00adu\u00adla\u00adtions on insur\u00adance mar\u00adkets. The mea\u00adsure<\/a> was intro\u00adduced by Sen\u00ada\u00adtor Don Nick\u00adles (R\u2011OK<\/span>), cospon\u00adsored by two dozen Repub\u00adli\u00adcans and became the lead\u00ading Sen\u00adate GOP<\/span> alter\u00adna\u00adtive to HillaryCare.<\/p>\n In the inter\u00adven\u00ading decades, numer\u00adous tax cred\u00adit pro\u00adpos\u00adals have sur\u00adfaced. These pro\u00adpos\u00adals all have mer\u00adit. But they also risk repeat\u00ading some of Oba\u00admacare\u2019s errors and intro\u00adduc\u00ading new ones. Most impor\u00adtant\u00adly, many of the pro\u00adpos\u00adals leave no room for the emer\u00adgence of fresh and var\u00adied approach\u00ades that states are best posi\u00adtioned to develop.<\/p>\n Health insur\u00adance reform is a much more com\u00adpli\u00adcat\u00aded busi\u00adness than the Chief Jus\u00adtice and many pol\u00adi\u00adcy ana\u00adlysts imag\u00adine. Which is why its next chap\u00adter should not be writ\u00adten in Washington.<\/p>\n","protected":false},"excerpt":{"rendered":" \u201c<\/span>The Patient Pro\u00adtec\u00adtion and Afford\u00adable Care Act grew out of a long his\u00adto\u00adry of failed health insur\u00adance reform.\u201d Chief Jus\u00adtice John Roberts, in uphold\u00ading Oba\u00admacare sub\u00adsi\u00addies. Oba\u00admacare is the newest chap\u00adter in that long his\u00adto\u00adry of failed health insur\u00adance reform. Con\u00adser\u00adv\u00ada\u00adtives \u2026 Con\u00adtin\u00adue read\u00ading