“Tying Obamacare in knots”
Bill Wilson, Americans for Limited Government:
The Supreme Court ruling on Obamacare found that the law’s mandatory Medicaid expansion was unconstitutional, effectively giving states an opt-out provision that many now plan to take.
In short, if states refuse to expand Medicaid, and there is no funding for the insurance exchanges, Obamacare will effectively be defunded.
To deal with this flaw, the Internal Revenue Service (IRS) on May 24 simply issued a regulation effectively rewriting the law that would allow the federal government to fund the exchanges. Per Cannon, “With the stroke of [a] pen, the IRS (1) stripped states of the power Congress gave them to shield employers from that $2,000 per-worker tax, (2) imposed that illegal tax on employers whom Congress exempted, and (3) issued up to $800 billion of tax credits and direct subsidies to private health insurance companies — without any congressional authorization whatsoever.”
– If I may interject here, rewriting of laws after the fact is now perfectly acceptable — particularly if we all know that the previous incarnation of the law was poorly drafted, and what the government really meant to do was not fuck up and give an out to the states, even if part of the selling point was that this out existed as part of the law voted on.
Now harm no foul, in essence.
Which, thanks, Chief Justice Roberts!
Such an arbitrary move on the Obama Administration’s part is hardly surprising. It comes atop a litany of usurpations including making recess appointments when Congress was not in a recess, forcing religious-affiliated institutions to fund contraceptives in violation of their teachings, and allowing for mortgage refinancing up to 125 percent of loan-to-value when the law placing Fannie Mae and Freddie Mac into conservatorship never allowed it.
But that does not mean the House of Representatives, under the leadership of Speaker John Boehner, has to stand by idly while the Obama Administration rewrites the law at will.
The government will run out of money come Sep. 30. Congress must pass a continuing resolution funding the government as of Oct. 1. In that resolution come up, the House should attach a budget rider that states the IRS cannot implement its regulation funding the federally operated insurance exchanges because it is contrary to congressional intent.
This is by far the most effective thing that Congress can do to help defund Obamacare this year. States already possess the option to opt out of Medicaid expansion. Giving them the power to gut the insurance exchanges as well could be the tipping point that kills the law.
Such a measure might not pass the Senate or be signed into law by Obama, but it sets the stage for what is to come. It also makes Mitt Romney’s position on funding for federally operated exchanges a critical issue on the campaign trail. Should he be elected, his administration could undo the IRS regulation via the regulatory process or executive order.
Immediate action by the House could help reaffirm the states’ power to defund Obamacare almost in full. Per Cato’s Cannon, “If enough states refuse to establish an Exchange, they can effectively force Congress to repeal much or all of the law.” All of which depends on Speaker Boehner’s willingness to make Romney’s job as easy as possible in 2013.
Here’s the problem, though: with an election coming up, the GOP House under Boehner will simply not risk a showdown over government shutdown. Boehner, who once called the HHS attack on the Catholic Church “an unambiguous attack on religious freedom,” will rollover, because that’s what Boehner does. It is as natural to him as breathing. So get your asses in line.
More, even conservatives in the Senate like Jim DeMint are advising an extension of the funding mechanism for six months in order to carry over into a (hopefully) Romney presidency — and in so doing avoiding what would undoubtedly be the excesses of a lame duck administration and its Congressional cohort.
Here, Boehner is right in his comfort zone: he can cave on funding just as he always has, and this time it might actually cost us only 3 months of agony in the service of a repeal down the road — with that repeal possible only if the GOP (they believe) avoids a fight right before the election in which TEA Party conservatives will be painted as wanting to shut down the government.
So bitch and complain for a bit, Speaker Boehner, maybe squirt a few orange-tinged tears, but in the end, just follow your instincts and cave. Unlike 2010 and 2011, politically here your instincts might not be far off — though for you its less about political instinct as it is about political reflex.