Vox’s Dylan Scott offers “An oral history of Obamacare’s 7 near-death experiences.” It’s a well-balanced take on how close the Affordable Care Act and ObamaCare—they are different animals—have come to oblivion.
Scott includes an excerpt of an email I sent him on his original, planned theme of “ObamaCare’s nine lives.” But I thought it might be worthwhile to include my entire response to him. I have lightly edited my email for clarity, added two illegal acts I had forgotten (#5 and #7), and added hyperlinks to useful references.
Just nine? The premise is inapposite, though.
Jonathan Gruber was right: had the public known what the Affordable Care Act does, it never would have passed, because even more Democrats would have voted to kill it. ObamaCare keeps surviving not because it has nine lives, but because the executive and judicial branches keep rewriting the Affordable Care Act, outside the legislative process, to save it from constitutional and political accountability.
These unconstitutional and illegal actions began before the ink was dry on Obama’s signature. They include:
- Allowing Congress to remain in the FEHBP from 2010 until 2014;
- The bevy of exemptions Sebelius issued unions and other firms from various regulations;
- The threats Sebelius made to insurers who spoke publicly and truthfully about the cost of those regulations;
- Sebelius soliciting funds for Enroll America from companies she regulates;
- Sebelius raiding the Prevention and Public Health Fund to the tune of $454 million to fund federal Exchanges;
- The Supreme Court rewriting the individual mandate in 2012;
- Sebelius gutting the Supreme Court’s Medicaid ruling by coercing states to implement parts of the Medicaid expansion the Court made optional;
- Obama’s illegal “if you like your health plan” fix/grandmothered-plans exemptions;
- The IRS issuing subsidies through federal exchanges;
- The Supreme Court upholding ObamaCare’s subsidies and penalties in federal-Exchange states;
- The Obama administration making illegal CSR payments;
- The Obama administration illegally diverting reinsurance payments from the treasury to insurance companies;
- The Obama administration declaring Congress to be a small business;
- The Obama administration giving members of Congress an illegal $12,000 premium contribution to their SHOP premiums;
- The Trump administration continuing to make illegal CSR payments;
- The Trump administration continuing to give Congress an illegal exemption from the ACA…
It’s not that Obamacare has nine lives. It’s that ObamaCare has 90 or 900 or 9,000 committed ideologues who are willing to violate the law to protect it from the voters.
What we have left is no longer the law Congress enacted. The ACA was a legitimate law, duly passed by Congress. ObamaCare is an illegitimate law that no Congress ever passed or ever could have passed.
Absent these unlawful actions, Republicans’ recent attempt to repeal ObamaCare would have succeeded.