Friday, 4 Dec 2020

We need to burn the Affordable Care Act and rebuild it piece by piece

The Supreme Court probably is not going to nullify ObamaCare. Congress should — one piece at a time.

Democrats opposed to the nomination of Amy Coney Barrett to the Supreme Court were very worried — or at least pretended to be worried — about the upcoming case challenging the constitutionality of the so-called Affordable Care Act. The case is based on a legal theory considered pretty shaky on both sides of the aisle — many conservative legal analysts who would like to see the ACA repealed believe that the Court is extremely unlikely to throw it out. Some have gone as far as to predict a 9-0 ruling against the challenge.

But, in one meaningful sense, the ACA already has been nullified — the law never has been fully implemented as it was designed, and it is almost certain at this point that it never will be. Republicans opposed some key features — the mandates and the exchanges — while Democrats opposed others, such as the “Cadillac” tax on generous private health-care plans and a tax on those medical-device manufacturers who are so generous to Sen. Elizabeth Warren.

And what was implemented did not work as intended: One in ten Americans, 32 million in all, still go without health insurance. And while President Barack Obama promised Americans a $2,500-a-year reduction in insurance premiums, premiums were increasing at an average of 22 percent a year by the end of his presidency, according to US government figures.

Republicans tried — or pretended to try — to repeal the ACA in one go. But, somehow, in spite of controlling both the White House and both houses of Congress, they never quite got it done. A total repeal would provide a cathartic political victory, but Republicans have denied themselves that big win because of two words: “Then what?”

They don’t have a good answer.

Americans have not embraced a larger government role in health care because they are socialistic but because they are risk-averse where health care is concerned. Conservatives too often ignore that or fail to understand it. They spent the ACA debate mulishly insisting that we have “the best health-care system in the world,” while many millions of Americans disagreed. Millions still disagree.

So, how do we fix it? Sometimes, it is better to think small. Health care is too complex to be “fixed” once and for all by a single piece of legislation, no matter how well-crafted the legislation or generously funded the program. Instead of a sweeping but ultimately futile grand legislative gesture, the GOP should focus on discrete, narrow reforms that link conservatives’ market-oriented model with Americans’ workaday anxieties regarding health care. Work to make prices lower, work to make coverage more predictable, work to make health insurance work more like any other product — but don’t try to do everything at once.

Congress could give families more control over their health spending by passing Sen. Ben Sasse’s Health Savings Account Expansion Act and Qualified Health Savings Account Distribution Act, which together would make HSAs available to more families, allow them to put more pre-tax money into them, and keep them from losing their saved funds at the end of the year or when changing jobs. HSAs are a great benefit for those in high-deductible plans. Sasse’s proposals may not satisfy the crusading zealots, but they represent real reforms that would make life better for real people. Surely that would count for something.

Because most Americans depend on their employers for health insurance, losing a job is a double catastrophe. Making insurance more portable from job to job would require significant changes to the federal tax code and to the way insurance is regulated.

One possible reform would be to allow all Americans to pay their insurance premiums with pretax dollars, which would eliminate the tax advantage for employer-based plans. Allowing insurance purchases across state lines would be a bigger legislative lift, but it is far from impossible.

Together, those two reforms would go a long way toward the creation of a robust and competitive market in health insurance rather than the fragmented and less competitive one we have now. And markets work wonders: Nobody loves his cellular provider, but if it were possible and as inexpensive to join or change a health-insurance plan as easily as a mobile-phone plan, many Americans would be relieved. And greater portability would eliminate coverage interruptions caused by job changes or unemployment — relieving the main source of the preexisting-conditions problem.

Because the health insurance market is complex, it is very difficult to say with any accuracy how effective any given policy initiative will be in the long term. The truth is, we just don’t know. We don’t have to. We can’t fix it all at once, and should stop pretending that we can. At the same time, working to bring down prices and improve portability and flexibility are self-reinforcing reforms: an improvement in one reinforces the others.

Democrats failed to implement the ACA. Republicans failed to repeal it. The Supreme Court probably won’t throw it out. But we can build a better health-care system the way Johnny Cash built his Cadillac: one piece at a time.

Kevin D. Williamson is the author of the upcoming “Big White Ghetto: Dead Broke, Stone-Cold Stupid, and High on Rage in the Dank Woolly Wilds of the ‘Real America’” (Regnery).

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