Tag: ACA

Untangling the Obamacare Challenge


During the hearings on Amy Coney Barrett’s nomination to the Supreme Court, one constant theme was whether her vote would jeopardize the Affordable Care Act. From the time of its inception, the ACA was a grievous social and economic mistake. Thereafter, Chief Justice John Roberts’s decision in NFIB v. Sebelius (2012) was a constitutional train wreck. Notwithstanding this sorry history, the most recent challenge to the ACA—raised in Texas v. California—is whether neutralizing the individual mandate under Section § 5000A(c) of the GOP’s Tax Cuts and Jobs Act of 2017 (TCJA) undoes the whole statute. This new challenge to the ACA is a sure constitutional loser, no matter what view one takes of the original legislation.

To set the stage for the current dispute, it is necessary to recapitulate the two key constitutional challenges to the ACA in NFIB v. Sebelius. The first was that the ACA exceeded the scope of the Commerce Clause, which gives Congress the power to “regulate commerce among the several states.” The second was that the individual mandate counts as a “tax” that falls within Congress’s power “to lay and collect taxes.”

In the ACA, the individual mandate was artfully disguised as a “shared responsibility payment” whereby young people who failed to enroll were made to pay a levy. As the chief justice noted in his NFIB opinion, the mandate was regarded at the time as an “essential” feature of the ACA structure: the mandate was necessary to keep young adults in the pool, who in turn provided the subsidies needed to keep the rates charged to older Americans affordable. It was presumed at the time that healthy, young adults otherwise would opt out of coverage in droves because their premiums would be far in excess of their collective benefits. The penalty/tax was designed to create a Catch-22, for now in principle young people stood to lose exactly the same amount by opting out of the ACA as by staying in.

President Trump’s Pen and Phone for America First Healthcare


President TrumpPresident Trump takes all the latitude given his predecessors, by Congress and the Supreme Court, and uses it to fulfill his campaign promises. This week, a minor beer distributorship heiress used the name of the man she married, and then funded in national politics, to make her endorsement of Joe Biden seem significant. It was fitting that she and the national media thought they would help Biden or hurt Trump’s reelection by invoking the name of a Republican, whose last public act was to publicly, proudly break his and his party’s promises to repeal Obamacare. President Trump struck back against the failure of both major parties’ politicians to fulfill promises about healthcare access and affordability. He has just published a very lengthy executive order on the subject that catalogs the failures of the past and points in a new direction. You should at least skim it before the first debate on September 29.

The executive order is a fairly detailed summary of President Trump’s case for past governments’ failure and present and future improvement for Americans. Here is a quick summary of the order, the highlights, or talking points you might expect in public debate and reporting:

It has been and will continue to be the policy of the United States to give Americans seeking healthcare more choice, lower costs, and better care and to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.

Trump’s DOJ Advises Court to Invalidate Obamacare


Remember when Obama’s DOJ decided not to defend laws that they didn’t like? And how people warned of the horrible precedent they were setting? Looks like Trump remembers and his first target is Obama’s most prized accomplishment.

The Justice Department has informed a federal appeals court that it agrees with the ruling of a Texas judge who invalidated Obamacare. The administration said that the entire Affordable Care Act should be struck down.

Medicare for All Would be a Disaster for All


The Democrats running for president are at it again: they are submitting a completely unrealistic proposal for single-payer health insurance and they aren’t sharing the facts. We must get the word out to everyone that we have to stop this proposal that will take us in a catastrophic direction.

The media, of course, will tell everyone that the public loves the idea of single-payer insurance aka, Medicare for All. Although those running for President have several different plans, none of them would be good for this country. But according to one poll, the public supports the idea :

Richard Epstein describes a potentially groundbreaking healthcare case out of Idaho, where insurers are looking to give consumers more options than are currently allowed under the Affordable Care Act.

Richard Epstein explains the contents of President Trump’s new executive order on healthcare, explores the controversy around a White House proposal to cut subsidies to insurers, and explains why conservatives who fretted about President Obama’s use of executive orders shouldn’t be bothered by this exercise of executive power.

A Sellout, A Hypocrite or Worse, Part II: A Lament


In what I thought was a couple years ago, but find was nearly six years ago, I posted about my dilemma at the time: I was renting, married with four children and employed full-time, but couldn’t afford the employer-offered healthcare product(s) for my entire family. I had trouble reconciling myself as a bona fide right-winger (much farther to the right of the average Ricochetto or Ricochetta), and the idea of enrolling my children onto Wisconsin’s Badgercare program, the local Medicare services. The response was positive, agreeing with my findings that the market had been horribly affected by the continuing horrendous idea of having healthcare given by employers, rather than via private providers as we do for all other insurance products.

I’ve since moved companies twice; in 2015 I started working for a company that ultimately let me go this past August (it wasn’t a good fit from the start, and I can’t blame them too much). I start with a new company at the end of October, at a higher-than-expected (and higher-than-before) rate of pay: I don’t mind telling you, via the anonymity of Ricochet, that I’ll be making $60k, quite a good salary here in “north-east” Wisconsin (Oshkosh – Appleton) area in the Retirement Plan Administration industry (compliance testing, government reporting, ERISA expertise for 401(k)s, 403(b)s, old style “pension” plans, etc.).

Richard Epstein examines the Lefts’ push for single-payer health care and explains why such systems are destined for failure.

Richard Epstein looks at the virtues and vices of the failed congressional plans to repeal and replace Obamacare, explains what comes next, and lays out what meaningful free market reform would look like.

The Single-Payer Siren



The United States is facing another crisis in organizing its health care system. It is clear that the private exchanges concocted under the Obama administration are failing at a record rate for the simple reason that they violate all known sound principles of insurance. The planners who put these programs together unwisely thought that universal coverage would overcome the standard insurance problems of adverse selection and moral hazard.

Richard Epstein looks at the policy changes that would most effectively cure what ails American health care — and responds to progressives calling for the adoption of a single-payer system.

No Exit on Health Care


As the proposed American Health Care Act (AHCA) moves to the Senate, the Republican agenda to “repeal and replace” Obamacare faces major obstacles. Two of the knottiest provisions in the GOP’s complex legislative package deal with how insurance carriers may set premiums for their customers. As a general matter, the cost of health care rises with age: older people cost more to insure than younger people, often a lot more. Are insurance carriers entitled to take those differences into account in setting rates? The second question involves the supply of insurance for persons who have preexisting conditions—a trait that makes them more expensive to insure.

Everyone agrees that the Affordable Care Act is under stress as major insurers continue to exit the individual market because of an inability to cover their costs. But there is widespread disagreement about what, if anything, to do next. As is so often the case, it is easy for legislation to impose new regulations on the insurance markets. It is a lot harder to figure out how, if at all, to undo the mess.

The House bill faces rough sledding in the Senate, and the prognosis for sensible reform is bleak. To see why, it is necessary to go back to first principles. Under a competitive market system for individual insurance, all individuals have to pay the full freight to get coverage for their potential risks, because cross-subsidies between different classes of customers can never survive. In order to give some individuals lower rates, other individuals have to be charged amounts that exceed the accurate estimated costs of their conditions. Since other alternative insurers are by definition available, these overcharged individuals will migrate to another insurer that does not impose the subsidy surcharge. Any insurer that persists in undercharging their high-risk patients will therefore be on the rapid road to bankruptcy.

Member Post


Titled Repeal and Piecemeal: A Better Obamacare Strategy, Dan MacLaughlin’s guide at National Review for addressing the problems of Obamacare takes the basic strategy many of us have demanded for years and lays out it out in better detail.  I’m particularly fond of MacLaughlin’s call to legislative humility.  Preview Open

Join Ricochet!

This is a members-only post on Ricochet's Member Feed. Want to read it? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

Member Post


Reprinted from an email to my Congressman, Ted Poe, who broke with the Freedom Caucus (perhaps rightly) to support Speaker Ryan’s healthcare bill:  Please explain to your constituents in a public letter why you supported the AHCA. In that letter, you might address the follow points. Preview Open

Join Ricochet!

This is a members-only post on Ricochet's Member Feed. Want to read it? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

How to Fix the GOP’s Health Care Fix


In my new The Week column, I express concern that failure to reform Obamacare today may push America toward a single-payer health care system tomorrow. Given that the ACA was passed in 2010, I’m not sure how many bites at the apple remain for Republicans. FreeMarketCare when? Will we at least be headed that way directionally sometime soon?

Now if you want to read two pieces on the new House GOP health care plan, definitely read my The Week piece. But as fantastic as it is, if you are only in the mood to read one thing on the topic, let me enthusiastically recommend a new column by my AEI colleague Jim Capretta. It’s chock full of real-talk goodness. Such as this:

In combination, the policies in the House bill would lead to a very large increase in the number of Americans without health insurance. It is true that all Americans could get insurance if they wanted to, but many households will see their options get worse under this plan compared to the ACA, not better. The Congressional Budget Office (CBO) is sure to make these points when its estimate of the plan is released in the coming days.

Member Post


With President Trump and Congress gearing up to repeal the Affordable Care Act and replace it with a more market-driven alternative, we thought it’d be useful to revisit all the reasons why the law has failed — and how these problems can fixed with better, conservative and market friendly and consumer driven options. 1. It […]

Join Ricochet!

This is a members-only post on Ricochet's Member Feed. Want to read it? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

Richard Epstein looks at recent setbacks to Obamacare — including the implosion of state exchanges — and describes what Congressional Republicans can do to reform the system without compounding uncertainty.

Member Post


What parts of Republican healthcare reform can be implemented independently of others? What can be done immediately and without a comprehensive bill?  For example: Is there any reason Republicans cannot enable selling of insurance across state lines without reference to any other change?  Preview Open

Join Ricochet!

This is a members-only post on Ricochet's Member Feed. Want to read it? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.