Congress’s Worst Nightmare: Obamacare May Be Unconstitutional

John C. Goodman,


December 19th, 2018

Odds are against it. Still, it might happen. Stock prices for hospitals and health insurance companies fell on Monday – showing the market is worried.

Here is the fear. The Supreme Court might – just might – agree with a federal district judge in Texas and find that Obamacare – not just part of Obamacare but all of Obamacare – is unconstitutional.

What would that mean? Congress would be under immense pressure to deal with a problem neither party has been willing to seriously confront for the past eight years: how to replace or at least repair Obamacare.

On the one hand, if Obamacare vanished a lot of terrible problems would potentially go away:

  • Premiums in the individual market are twice as high as they were only five years ago and in some states they have tripled.
  • Out-of-pocket exposure for the most popular plans this year averaged $4,000, more than twice the level of a typical employer plan; and for some families the deductible is as high as $14,700.
  • Access to providers is increasingly restricted – excluding the best doctors and the best hospitals almost everywhere.
  • The most successful insurers are turning out to be Medicaid contractors and the plans they offer look like Medicaid with a high deductible.
  • Instead of competition we are getting monopoly: half the counties in the country this year have only one insurer and in 82% there are no more than two.

But if the problems vanished, so would many benefits. Roughly 20 million people depend on government for their health insurance because of Obamacare — either through Medicaid or through subsidized private insurance in the exchanges. Importantly, everyone who has employer-provided insurance knows that if they retire early or become too sick to work and have to buy insurance on their own, they will not be discriminated against because of a health problem.

So how can we get rid of the problems of Obamacare while keeping the benefits people seem to like? Neither party in Congress seems to have the slightest interest in answering that question.

Not once in eight years did the Republicans hold a hearing with Obamacare victims – exploring ways of solving their problems. But Democrats also showed no real interest. When is the last time you heard a Democratic candidate promise to reform Obamacare?

Neither party has united behind a plan to solve Obamacare’s problems. Indeed, the idea that they might have to is their worst nightmare.

Instead of serious thought, what we have been getting from both sides is empty rhetoric.

On the Democrat side, “single payer insurance” is nothing more than a slogan. Once Colorado voters got the details on what that means, they rejected it by a 4 to 1 margin.

But the GOP promise to “repeal Obamacare” is also meaningless.  All Republican politicians know that repeal without replace would never be acceptable to the voters.

Surprisingly, the best reform ideas right now are coming from the White House, not Capitol Hill. The Trump administration is doing what Congress is not doing. It is proposing innovative ways of solving Obamacare’s problems.

As a result of a Trump executive order, employers will soon be able to buy employee-owned health insurance. These will be plans that employees can take with them as they go from job to job and in and out of the labor market. This will go a long way toward solving the problem of pre-existing conditions.

The Trump reforms will also make the tax treatment of health insurance fairer. For the first time in the history of the income tax law, people will be able to get the same tax relief for health insurance acquired at work as they get when they obtain their own insurance.

Right now the Trump administration is the responsible adult in the room, while Congress is paralyzed by inaction. How different that is from the daily messages we get from the mainstream media.

A version of this article first appeared on HERE