Obamacare’s failures not due to GOP refusal to ‘fix’ it

Obamacare’s failures not due to GOP refusal to ‘fix’ it

Doctor-Obama-300x245As Obamacare’s implementation went so badly that it was mocked by comedians on late-night TV, the search for excuses began. The result was the now commonplace, and false, claim that whatever has gone wrong with Obamacare, it’s the GOP’s fault, for supposedly blocking legislative fixes to the law (in reality, the GOP did not block any such fixes).

This political talking point is also used to justify the Obama administration’s repeated changes to the healthcare law, and its suspensions and waivers of key statutory provisions (such as anti-fraud rules), even though the Constitution gives only Congress — not the executive branch — the power to enact and repeal laws. By making legislative fixes impossible, the argument goes, opponents of Obamacare left Obama with no choice but to administratively fix the law himself (never mind that the Constitution does not allow the president to change or “fix” the law just because Congress declines to do so).

But the GOP did not block legislative fixes to Obamacare, and neither the Obama administration nor Senate Majority Leader Harry Reid, D-Nev., have even offered any legislative fixes. Indeed, Reid has not allowed votes even on legislative changes to Obamacare that are backed not only by all Republican Senators, but also by many Democratic Senators, as the Washington Post’s liberal-leaning fact-checker, Glenn Kessler, recently noted. The Washington Post can’t be accused of conservative bias: it endorsed Obama, and hasn’t endorsed a Republican for president since 1952.

The third-ranking Democrat in the Senate, Charles Schumer, D-N.Y., recently implied that congressional Democrats were trying to legislatively “fix” Obamacare, and that Republicans were resisting legislative fixes backed by the Senate’s Democratic Majority, saying on Meet the Press that “what most Americans want us to do is not repeal Obamacare, which is what our Republican colleagues are focused on, but fix it. The president is working to fix it; we are working to fix it; we urge our Republican colleagues to join us in fixing it.”

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But as the Washington Post‘s Kessler noted, Senator Schumer and congressional Democrats, when confronted about his inaccurate claim, did not point to any legislative “fix” blocked by Republicans, or proposed by Democrats. Instead, they claimed that the Democratic fixes they were talking about were administrative rather than legislative in nature, and that congressional Democrats had urged the administration to unilaterally make certain fixes to the Obamacare statute: “when we asked Schumer’s office of ‘fixes’ that Senate Democrats are working on, we received a list of administrative ideas and many meetings between Democrats (especially those vulnerable to a GOP challenger) and White House officials. . .A Democratic Congressional aide said it would be wrong to assume that Schumer was speaking about legislative fixes,” as opposed to administrative “fixes” made by Obama.

Moreover, conservatives have not blocked “fixes” to Obamacare in the past. As the Post’s Kessler points out, “two previous legislative fixes that cleared both chambers and were signed into law — repeal of the Community Living Assistance and Supports Act (or CLASS Act) and repeal of the 1099 reporting requirement — were spearheaded by Republicans.” Other problems with the law could be fixed as well, if only Senate Majority Leader Harry Reid, D-Nev., would let them: “Republicans have pressed for repeal” of one particularly controversial part of Obamacare, “the 2.3 percent tax on medical devices,” which critics (and even liberal Senator Al Franken, D-Minn.) say has wiped out jobs.  79 Senators, including “many Democrats,” favor repealing the tax, “but the Senate Democratic leadership has refused to schedule” a vote, “even though the measure has passed with Democratic support in the House.”

As Kessler notes, “the Senate leadership that includes Schumer” has also blocked votes on other measures to ease implementation of Obamacare, such as a measure “to delay the individual mandate for a year,” which was supported by Republicans as well as a Senate moderate Democrat, who argued that such a “transitional year” would give consumers and insurance markets more time to “adjust” to new insurance rules and policies.

Similarly, the Senate’s “Democratic leadership did not allow” a legislative fix to the problem of millions of people losing health insurance they liked, which violated the President’s campaign pledge that “if you like your health insurance, you can keep it,” and legislation backed by Senate Republicans and at least one Senate Democrat to fix that problem “was blocked” from coming to a vote by Senate leaders.

Far from being a reaction to Republican refusals to fix Obamacare, Obama’s administrative fixes are in many cases designed “simply to head off actual legislation” containing a broader legislative fix ”not to his liking,” notes Northwestern University Law Professor Eugene Kontorovich, such as where congressional Republicans are “working on legislation quite similar to the president’s fix, but with differences he considers objectionable.”

There are many things about Obamacare that need to be fixed, but which neither Obama nor Senate leaders want to fix. It contains massive marriage penalties that discriminate against married people, and huge work disincentives for some older workers. Its provisions have slashed hiring, cut economic growth, and induced employers to replace full-time workers with part-time employees, driving even unions that once backed it to seek its repeal or replacement. And Obamacare’s medical device tax has caused layoffs by medical manufacturers.

Due to the Affordable Care Act, millions of health insurance policies are being canceled, or replaced by policies with higher premiums and deductibles. In November, the president announced a supposed “fix” that was illegal, didn’t restore the canceled policies, and is designed to scapegoat insurers rather than restore lost health insurance. In December, the President announced another “fix” that made things even worse, by illegally violating property and contractual rights, in a way that will drive up insurance premiums in the future. The administration’s suspension in July 2013 of reporting requirements mandated by the healthcare law may lead to billions of dollars in fraud.

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Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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