What will remain of ObamaCare?

The residents of Guam, American Samoa, Puerto Rico, the U.S. Virgin Islands, and the Northern Mariana Islands just won the lottery, because the royal Obama court hath decreed that they shall be free from the seething morass of suck known as ObamaCare.  

The Washington Post says the territories “have been warning for years” that ObamaCare would “destroy their insurance markets.”  Well, the rest of us have been warning the same damn thing, so how did the territories get a waiver that the fifty states can only dream of?

It turns out His Majesty’s Department of Health and Human Services originally told the territories they were stuck in the suck with the rest of us, but then after thorough examination of the actual written law…

I know, I know, you probably just got dizzy and needed to step away from your computer for a moment.  Take a few deep breaths.

… anyway, they actually read the Affordable Care Act and its regulatory appendages, and discovered that it specifically refers to “states” in the major regulatory controls – mandated benefits, compulsory coverage for people with pre-existing conditions, etc.  The territories are not “states,” and they’re already immune to the individual mandate requiring people to buy insurance, as well as the network of subsidies propping up ObamaCare purchases.  There are a few ACA tentacles still wrapped around the territories, such as “the ban on lifetime and annual limits, a ban on rescission, and a coverage of preventative benefits (which includes contraception coverage)” but it looks like the rest of ObamaCare is kaput out there.

This is interesting for several reasons, beyond the amusing possibility of people scrambling to relocate to the ObamaCare-free territories.  The individual and employer mandates are actually in big trouble within the United States, too.  They’ve already been delayed, waived, and mutated through His Majesty’s royal powers, and there’s bipartisan talk of scuttling both.  As for the subsidies, there’s that pesky little lawsuit that keeps rolling forward into destiny, and which Harvard legal analyst Laurence Tribe speculated just yesterday might be “a death blow for ObamaCare” at the Boston Globe:

The ACA required each state to “establish” an “American Health Benefit Exchange” by Jan. 1. If a state didn’t do so, the Department of Health and Human Services would step in to set up and run the exchange on the state’s behalf. The ACA treats exchanges run by HHS the same as those run by the states themselves. That’s crucial, because 36 states have deferred to HHS to set up their exchanges.

Opponents claim that the 36 states where HHS has set up and operated an exchange don’t have “state-established exchanges” at all. They argue that those states instead have “federally established” exchanges, even though that language appears nowhere in the law.

What’s in a name? Everything, say the challengers. They point to one sub-sub-section of the ACA that refers to an “exchange established by a state” to argue that people buying insurance on federally-administered exchanges are ineligible for the tax credits the ACA provides to make insurance affordable for millions of lower-income Americans.

If the challengers prevail, people of modest means in 36 states would be doubly damned. Besides being deprived of affordable care, they would also be subject to a tax penalty for not complying with the ACA’s requirement that they buy insurance. That penalty was designed to work in tandem with the tax credit: a penalty if you don’t buy insurance, but financial assistance to help you afford it. The challengers are trying to eliminate the carrot while keeping the stick.

Tribe goes on to breezily assume that “Congress almost certainly didn’t intend this harsh result,” which I guess is supposed to be good enough in this post-Constitutional age, where it no longer matters what laws actually say, only what the Ruling Class “intended.”  Of course, they reserve the right to retroactively change their “intentions” as needed.  

But there has long been a school of thought that some of the con artists who drafted the Affordable Care Act did intend exactly this result, because it was supposed to intimidate the states into setting up their own exchanges.  That’s the problem with passing titanic laws nobody has actually read.  You never know what might be lurking in Paragraph 3567(c)138, or what the faction leaders who penciled it in were thinking at the time.

At any rate, whatever he might think of the ACA or the motives of its legal challengers, Tribe seems to think the legal challenge is significant, and if it gets past the Supreme Court, it could bring the entire ObamaCare edifice tumbling down.  Without a hearty helping of wealth redistribution, this thing would turn into a haunted house, occupied by the very few people who could afford to pay the soaring “Affordable” Care Act premiums without big wads of other peoples’ money.  (Tribe’s certainly right that the four liberal Supreme Court justices will vote in an iron bloc to protect ObamaCare, so it’ll probably all come down to whether Chief Justice John Roberts wants to undo the ridiculous perversion of the Constitution he employed to save ObamaCare from the individual mandate challenge that should have killed it, or -much more likely – double down and rewrite the law on the fly to save it again.  In other words, it’s a significant legal challenge that doesn’t have very good odds of getting past the Court for purely political reasons.)

Assume the subsidies survive.  What will be left of ObamaCare, by the time this process of cutting and trimming it to keep the American people from revolting against it is done?  A network of wealth-redistribution subsidies, a massive expansion of Medicaid that American voters never would have approved willingly, a pile of new regulations that make health insurance more expensive while creating painful friction with individual rights of conscience… a health care system more complicated and inscrutable than ever, plus a half-assed website that cost a billion dollars and still doesn’t really work right… and what else?  How many core elements of this turkey must be compromised before our Ruling Class makes the rational concession that it’s a busted plan, and starts over at the drawing board, hopefully with something far more efficient?

And where do we go for a refund of the billions that were taken from us to finance a scheme that didn’t work?