The two-year “Cadillac tax” delay under consideration by Congress is the worst kind of special-interest legislation. It will enrich labor unions and big business at the expense of taxpayers. ObamaCare’s Cadillac tax is a clunky but constructive first step in reforming the employer tax exclusion. It has problems—its structure as an excise tax is punitive, and it contains carveouts for favored Democratic constituencies—but the basic idea of equalizing the tax treatment of employer- and individually-purchased health insurance is a good one.
ObamaCare plans have substantially raised the amount of cost sharing they require for drugs. Often they don’t cover any specialty drug costs until a patient has hit their deductible. There is also the issue of the dwindling number of specialty drugs that health plans include in their formularies, and provide any coverage for. Almost all of the “Silver” plans offered under ObamaCare sport closed drug formularies, where there’s no coverage for drugs not listed on the narrow formulary lists. This means when a drug doesn’t make a health plans list, consumers are completely uncovered.
Last week, the U.S. Senate approved legislation that would repeal the majority of ObamaCare. The bill will almost certainly pass the House. From there, it will go to the president’s desk, where it faces an even more certain veto. Even so, we are witnessing a historic moment. The House and Senate have held dozens of votes to repeal ObamaCare in whole or in part. Congressional Republicans have even worked with President Obama to repeal or curtail portions of the law. But while full-repeal legislation has passed the House, nothing like the bill that just passed the Senate has come anywhere near the president’s desk.
To stay on the path of repeal and replace, ObamaCare opponents need to address three critical aspects of the effort. First is the question of risk-corridor payments under ObamaCare. These are the payments made to insurers with “excessive” losses from the plans they offer on the exchanges. A second important question is the “Cadillac” tax, which imposes a 40% excise tax on plans with premiums above certain dollar thresholds, and which would be fully repealed by the bill Congress will send the president. A third important question concerns another key feature of any credible replacement plan: tax credits.
Avik Roy, who serves as GOP presidential candidate Marco Rubio’s health care advisor, suspects United may just be the first domino to fall. Other commercial insurers, such as Aetna, Anthem, and Cigna, have raised premiums by double digits and still say they can’t make the numbers work in their favor. Hence, they have withdrawn from counties where their losses were particularly acute.
Two questions will dictate not only the future of healthcare, but also the balance of power between Washington, D.C., and the states, and the separation of powers between the federal branches. One concerns state sovereignty, the other the heckler’s veto.
When justices heard arguments regarding the Affordable Care Act (ACA, or Obamacare) in King v. Burwell on March 4, Justice Anthony Kennedy and Chief Justice John Roberts suggested ways they might vote to uphold an Internal Revenue Service rule granting taxpayer subsidies to Obamacare exchange policies in states that refused to join that part of the ACA.
The ACA’s Section 1401 provides that subsidies are granted for insurance policies purchased on exchanges “established by the State under (Section) 1311.” By contrast, the federal exchange is created by Section 1321. Challengers argue this was deliberate, pressuring states to create exchanges and join Obamacare, like the provision threatening states with canceling all Medicaid funds if they did not join the ACA’s expanded Medicaid. (The court struck down that part of the ACA in 2012 for coercing the states, violating the 10th Amendment.) The now-infamous videos of Dr. Jonathan Gruber corroborate this theory.
This tax season, millions of Americans are feeling the impact of the ACA on their tax return for the first time. Those who failed to obtain minimum essential health insurance coverage last year will have had to send the Internal Revenue Service (IRS) a check for $1,130, on average.1 Setting aside the impact on these millions of people’s wallets, this figure is also worth noting because it highlights the ineffectiveness of the individual mandate. Yes, the estimated 6.3 million people paying the penalty didn’t buy health insurance, but neither did the more than 30 million who qualified for an exemption from the mandate.2 If the mandate were 100 percent effective, everyone would have health insurance. However, there were still tens of millions of people uninsured in the U.S in 2014.
Earlier this year the U.S. Supreme Court heard arguments in King v. Burwell, a case critical to the future of the Affordable Care Act (ACA, or so-called Obamacare). Readers interested in the details of the case should find them elsewhere. Suffice it to say here that the case concerns whether individuals can receive tax credits for buying health insurance on exchanges established by the federal government, though the text of the ACA indicates such subsidies are provided for those buying coverage through an “exchange established by the State.”
The case has the potential to invalidate substantial subsidies now being provided by federal taxpayers to millions of Americans using federal exchanges in 37 different states. Given the uncertainty created by the pending case, legislators on both sides of the aisle are considering how to react to various possible scenarios arising from a court decision. The House and Senate each recently passed budget resolutions allowing budget targets to be revised in the event of subsequent legislation modifying the ACA. The Senate resolution specifies that such legislation must be deficit-neutral.
Has the effort peaked to sign up uninsured Americans for coverage? The announcement that the nonprofit organization Enroll America is laying off staff and redirecting its focus in the face of funding cuts comes amid inconsistent sign-ups during the second Affordable Care Act open-enrollment period and concerns about affordability.
A recent New York Times analysis compared Kaiser Family Foundation estimates of potential enrollees with sign-up data from the Department of Health and Human Services. While some states that signed up few people in 2014 recovered during the 2015 open enrollment, other states lagged: “California, the state with the most enrollments in 2014, increased them by only one percentage point this year, despite a big investment in outreach. New York improved by only two percentage points. Washington’s rates are unchanged.”
Most states could not post consistent gains in both open-enrollment periods. An official from Avalere Health, a consulting firm, told the Times that she was “starting to wonder if we’ve overestimated the whole thing.”
It’s spring in Washington, and time to resume one of the capital’s favorite sports. No, not baseball, but throwing mud at the Supreme Court. Pending cases include the legal status of same-sex marriage and whether the IRS can provide billions of dollars in Obamacare subsidies without explicit congressional authorization. Partisans have launched a preemptive bid to undermine the legitimacy of the forthcoming decisions by accusing the court of “activism” for involving itself at all.
These increasingly transparent attempts to discredit the court should be rejected.Every case involving plausible abuses of power requires judicial engagement — conscientious, impartial truth-seeking, grounded in evidence — rather than reflexive deference to the political branches.
Take the Obamacare case. At issue in King v. Burwell is a section of the Affordable Care Act concerning tax credits for buying health insurance from government-operated healthcare exchanges. Congress wanted states to set up their own exchanges, but it lacks constitutional authority to force them. So Congress opted for a stick-and-carrot approach, authorizing tax credits for insurance policies purchased “through an Exchange established by the State.” As a backup, the ACA directed federal bureaucrats to set up federally operated exchanges in states that declined to set up their own.