Monday, July 9, 2012

Killing ObamaCare From the Inside

Sometimes, evil can’t be killed. It can just be buried somewhere until the next generation of teenagers stumbles across it. Some suggest that’s the case with ObamaCare. Frankly, I see no reason why it can’t be killed with reconciliation, but let’s assume arguendo that the Republicans somehow don’t capture the Senate or can’t get it through reconciliation. Is there another way to drive a stake through this unearthly terror? Actually, yes.

There are four or five ideas being battered around right now on how to kill ObamaCare without a full repeal. I think a couple of these are excellent temporary measures, but a couple others would be disastrous. Here are my thoughts.

Method One: Starve It. Most federal laws require funding to function. Without funding, they cannot hand out cash, award contracts or even assign government workers to perform tasks. In some instances, this won’t matter because the law is enforced by private individuals who can bring suit to make it happen or, in the case of criminal law, it can be used by DOJ without specific funding. But ObamacCare isn’t that kind of law.

ObamaCare requires the creation of federal exchanges, requires enforcement officials, workers to process paperwork, inspectors, etc. It requires the payment of money to insurance companies and states, funding for the creation of demonstration projects, etc. It even requires money for IRS agents to be able to pursue the penalties. Without money, none of that can happen.

Usually, when laws like ObamaCare get passed, the Congress appropriates (assigns) money in advance to make the law happen. Those appropriations then become line items in the federal budget and take on a life of their own because they become part of each subsequent budget unless they are specifically voted down.

But in this case, the Democrats got careless (or more accurately tried to hide the price) and didn’t appropriate any money. To make up for this, Obama has been funding the law from an HHS slush fund meant to pay for the Federal government’s general health care expenses. Romney can stop this on day one and effectively kill the implementation of the bill. And unless the Congress decides to force funding on Romney, the bill will be dead until Romney is out of the White House.

This could kill about 90% of the bill for up to 8 years.

Method Two: Ignore It. An offshoot of the first method would be that Romney could simply tell his agencies not to enforce the law. Thus, the IRS would not collect the tax, HHS and Medicare would do nothing to implement the law, etc. Obama has done this with laws he doesn’t like, like many related to immigration.

The problem with this approach is that once money is obligated by Congress for a specific purpose, the President must do that. Until Nixon, Presidents often impounded such money rather than spend it, but a weakened Nixon administration gave up this power. So while Romney could ignore the law for a little, the courts would eventually force him to act. Although, that could take a couple years.

This could kill about 90% of the bill for up to two/three years.

Method Three: A World Without Rules. To implement a law, the Executive Branch issues rules which tell everyone how the government will enforce the laws. In most cases, these rules are written by the agencies on behalf of the White House -- though a few are handled independently. A new President has the power to re-write any regulations which prior Presidents have issued. Thus, in theory, Romney can wipe out or re-write all the rules related to ObamaCare to neuter it.

But there’s a catch with this method: wiping out rules isn’t as easy as it sounds. For one thing, once rules are promulgated, the agency must go through the whole rulemaking process to change them. That means the rules must be issued in proposed form, the public must be allowed to comment, the rules must be issued in final form, and then dozens of lawsuits will be filed before the rules go into effect. Until that point, Obama’s rules would still apply. This wouldn’t apply to any rules Obama hasn’t finalized yet, but it would apply to all the rules he has finalized. Thus, most of his rules could stay in effect for two to three years.

The other problem is the legal review. As unbelievable as it sounds after Obama’s term, the Executive is required to enforce the laws as reasonably written. So it would be nearly impossible for Romney to just change the rule to “just kidding.” He could cleverly sabotage much of it, but not all of it. Also, the next administration could simply redo his rules.

This could eventually wipe out most of the law, but it would take time and it would only last until the next administration changed the rules.

Method Four: Misimplementation. Because the law was written with the idea that Democratic administrations would handle all the dirty details away from the sight of the voters, the law gives HHS a lot of discretion in terms of how to implement the law. Romney could exploit this by certifying that people, businesses and states are in compliance when they aren’t really. This could defang the law.

Personally, however, I don’t like this option at all. This wouldn’t wipe out any of the law and it runs the risk of turning into cronyism. It also wouldn’t stop liberal states from taking advantage of the law to demand massive federal subsidies.

That leads me to another method of misimplementation. When the Democrats drafted ObamaCare, they made an interesting mistake. The way the law is written, it doesn’t allow the Federal government to give subsidies for buying insurance except through state insurance exchanges. Thus, if states refuse to set those up, the federal government can set up alternate exchanges but it can’t provide subsidies.

Some conservatives are saying this would be a good move. I completely disagree. This does nothing to kill the bill. It also allows the establishment of federal control, which can become rather oppressive, especially if the Democrats manage to sneak funding into a bill somehow. In effect, this would be like letting a robber hold a gun to your head just because you think it’s not currently loaded. Moreover, this would allow liberal states to implement the law and get subsidies from taxpayers all across the country, while people living in conservative states would not get the subsidies. In effect, conservatives states would be subsidizing big rich liberal states, and the bill would appear much cheaper. This is a bad solution.


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