With help from Renuka Rayasam WHAT WE’LL TALK ABOUT WHEN WE DON’T TALK ABOUT OBAMACARE — Obamacare isn’t dead — again. The 11-year-old Affordable Care Act survived its third and probably final existential Supreme Court challenge today. But that doesn’t mean the law’s story is over. Obamacare will evolve in the coming years and decades — our entitlements always do. It’s just hard to know how it will change, how quickly and at what political cost. I’ll leave the court commentary to legal reporters but I want to make two quick points. This was a 7-2 ruling — and yes, Amy Coney Barrett and Sonia Sotomayor were on the same side. But don’t mistake this for a sign that this Supreme Court will be more centrist than widely anticipated. In this case, the plaintiffs were making a pretty big stretch of a legal argument, that a mandate that doesn’t really exist anymore is somehow harming them. The justice rejected that notion and upheld a statute that had already been upheld twice by the Roberts Court in less than a decade. I can’t help but wonder, though, if this particular court, if these nine justices, had ruled on the original Obamacare challenge back in 2012 — would it have survived? But it did survive. Obamacare is now deeply entrenched in America’s health care system. It covers some 31 million Americans directly, and it gives additional protections to people who get their health insurance outside the Obamacare markets — including from their employers. It touches on everything from menu calorie labels to the rights of nursing moms to free preventive care to lower drug costs for seniors. It protects people with pre-existing conditions. It helps disabled kids and their families. It has changed payment incentives (which ordinary people might not notice but the huge health sector most certainly does) to try to reward the quality of care, not just the quantity of care. It’s also an unfinished story and will be for some time to come. The individual mandate fueled much of the political controversy around the law — and two of the three Supreme Court challenges. Republicans detested the mandate, but Democrats weren’t exactly crazy about it, either. You may remember that Barack Obama, in his 2008 primary campaign against Hillary Clinton, said he didn’t want an individual health care mandate. Once in office, Obama was persuaded by his advisers that the law that would become known as Obamacare wouldn’t work without it. If you made the system more generous, if you covered pre-existing conditions and the like, you needed to get healthy people into the system — or else premiums could soar and it would all implode. There was some discussion at the time about other ways of nudging people toward coverage, but the mandate, similar to a provision in the bipartisan “Romneycare” law already in effect in Massachusetts, won out. Policywise, it may have been smart (though not all health experts agreed.) Politically, it was a mess. More than any other provision of the massive law, it made people mad. Tea Party mad. Town hall mad. Vote’em out in 2010 congressional elections mad. But when the Republicans — who tried and failed for years to repeal Obamacare, including when they had Donald Trump in the White House and controlled both the House and the Senate — finally neutered the mandate, they also muted opposition to the law. They zeroed out the penalty for not having insurance in the 2017 tax law. The mandate existed on paper but it had no effect on our wallets. After that, Republicans kept railing against Obamacare but without the most detested piece, a lot of the intensity even among the base faded. Trump even tried to move attention away from his failure to repeal Obamacare, by saying that by ending the mandate penalty, he had in fact gotten the job done. Democrats are divided over the law’s future. Some, like President Joe Biden, want to build on it, arguing that it is a clear path to universal coverage. Many want to add the public option that Joe Lieberman rejected in 2009. Biden’s first stimulus package enlarged and restructured the subsidies for Obamacare, making coverage more affordable for more people — although only for two years, almost guaranteeing another political showdown with Republicans before the 2022 midterm elections. And while the Obamacare vs. Medicare-for-all split inside the Democratic Party will probably play out for some time to come, it’s still largely a disagreement in the family, not an unbridgeable rift. Obamacare isn’t perfect, but today’s court ruling was, as White house chief of staff Ron Klain tweeted, in a cleaned-up version of his boss’s memorable hot-mic moment, still a “BFD.” Welcome to POLITICO Nightly. Reach out with news, tips and ideas for us at jkenen@politico.com, or on Twitter at @joannekenen. Programming note: Nightly won’t be publishing Friday, June 18. We’ll be back and better than ever on Monday, June 21.
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