Game Almost Up for Obamacare

Remember Jenga? It’s a simple game, yet addictive.  It involves an intertwined tower of small blocks.  The players take turns removing and restacking pieces, until the tower teeters and collapses with a crash.

These days, it seems the American health care market is like a gigantic game of Jenga – a tangle of layer-upon-interlocking-layer of inconsistent and half-hearted policies and attempted reforms.

The early layers date from Teddy Roosevelt’s call for universal health insurance on grounds of industrial efficiency and social equity. Blocks were added in the 1920s by the Committee on the Costs of Medical Care, which gave us the term “socialized medicine.” In the 1940s, the War Labor Board exempted certain work benefits, including health insurance, from wartime wage and price controls, thus cementing the link between employment and health insurance.

In the 1960s, Lyndon Johnson’s signature Great Society programs, Medicare and Medicaid, expanded the entitlement state into medicine. Ronald Reagan added the Medicare Prospective Payment system, which changed how government paid for hospital stays. And Bill Clinton’s Health Security Act, though it failed, led to a continued incremental approach to “reforming” health care that resulted in the Children’s Health Insurance Program.

And now we have “Obamacare,” the Patient Protection and Affordable Care Act, which is trying to build another tangled tower atop the mess built over the last 90 years.  It’s no wonder the health care law is on shaky ground in courtrooms and in the court of public opinion – the taller it goes, the harder it falls.

President Obama has responded to Republican criticism of his health care law by pointing out the dearth of alternatives on the right. He has a point. Republican lawmakers, focused on defeating Obamacare, haven’t put much effort into arguing for genuine market-based approaches to health care reform. They should take up Obama’s challenge and focus on finding a better, more sustainable health care system for our country.

Meanwhile, those of us in the think tank and activist community can concentrate on untangling the leaning Jenga tower of Obamacare – which appears to be getting precariously close to a crashing collapse.

The Affordable Care Act is more than 1,000 pages long. Nancy Pelosi essentially admitted that nobody read it or understood it completely before passing it. That is outrageous, but should it be surprising? PPACA creates a byzantine web of regulation designed to control a sixth of our economy in unprecedented ways. With that level of complexity, there’s no one who can figure out how it all is supposed to fit together and stay within constitutional boundaries.

Now there are major issues with the healthcare.gov website and even suggestions of scandal surrounding its rollout. Guess what? People who were told they wouldn’t lose their existing health care plan quickly found out they did. Thirty-four states have opted out of parts of the law, and the White House has delayed implementation of other parts by at least a year.

In other words, the tower has been swaying and pieces have been falling out ever since it was created.  It may well collapse under its own weight.

But let’s give it the final legal push it so deserves.

There is good news on that front. Recently, two separate federal courts have green-lighted and fast-tracked legal challenges to Obamacare, over an IRS regulation that imposes a series of new tax penalties on businesses in states that have not set up their own insurance exchanges – even though Obamacare’s subsidies extend only to states that set up their own exchanges and it is employees’ application for subsidies that triggers penalties for employers.

The illegal penalties are forcing businesses to cut back hours, exacerbating unemployment when the nation can least afford it. My organization, the Competitive Enterprise Institute, is assisting with both cases.

There are other legal challenges out there to various aspects of the law.  Some are long shots; others not so much. And left-wing conspiracy theories aside, there is no single entity coordinating it all – rather, just as in a market, an invisible hand of self-interest is bringing informed plaintiffs all over the country together in district and state courts, armed with briefs that judges are actually reading.

The U.S. Constitution is based on the rule of law, especially the idea of federalism. More than half the states already thumbed their nose at part of the PPACA. As my fellow kilt wearer Michael Cannon has noted, there is much that each state can do to tumble this already disastrous law. Perhaps the third branch of government, the courts, can finish the job. And CEI will be happy to help.