The good news is that most of the nation remains as opposed to Obamacare today as it was three years ago, when the law was enacted. Indeed, most polls show the public even more skeptical today—as the Wall Street Journal reports, “public support for the law has waned and Republican opposition has held steady.” In a Wall Street Journal/NBC News poll in July, 47 percent of respondents said the law was a bad idea, compared to 34 percent who thought it a good one. So the prospects for comprehensive repeal of this comprehensively bad law remain bright.
Unfortunately most of the nation voted to reelect President Obama last November and gave Democrats continued control of the Senate. So comprehensive repeal isn’t in the cards now. The right course for the moment is delay.
The case for delay is easy to make. President Obama, after all, has already delayed parts of Obamacare, including the employer mandate, the income and health status verification requirements for individuals in state-based exchanges, and the requirement that employer health insurance plans cap employees’ out-of-pocket deductible costs. What is the case, then, against delaying the individual mandate in tandem with the employer mandate? Such a delay would be fair—it tells you a lot about the Obama administration’s affinity for crony capitalism that the parts of the law Obama has chosen to delay have been those that big business most wanted to have delayed—and prudent. There will be no way to verify the income and health status of the individuals mandated to join the exchanges. What is the case against delaying the exchanges as a whole? They lack adequate privacy and security measures, and they are plagued by broader implementation problems that are becoming increasingly obvious across the nation. You don’t have to be a long-standing critic or die-hard opponent of Obamacare to see that its implementation looks to be a real mess.
This means the case for a year’s delay, at least of Obamacare’s individual mandate and the exchanges, can be made in a practical and relatively nonpolemical way. This is useful if you’re trying to win over undecided citizens and congressmen and senators. What’s more, delay buys time to further make the case against Obamacare as a whole, and to develop in far more detail and depth, and to build more consensus around, the conservative alternatives to Obamacare.
There are also aspects of Obamacare that can and should be overturned posthaste. For example, the Obama administration has come up with a bureaucratic dispensation to provide special treatment for senators and congressmen in the exchanges. This surely won’t be easy to defend to the American people. Congress should repeal it when it returns from recess.
One of the most important reasons to force debate and delay is to thwart the Obama administration’s desperate attempt to impose a virtual prohibition on arguments against Obamacare. At a conference of state legislators and health officials last week, Health and Human Services Secretary Kathleen Sebelius rebuked those of us who continue to oppose Obamacare. “This is no longer a political debate; this is what we call the law. It was passed and signed three years ago. It was upheld by the Supreme Court a year ago. The president was reelected. This is the law of the land.”
Sorrrry, Madame Secretary! Obamacare is the law of the land. But it’s a bad law. It deserves to be delayed and disassembled, then fully repealed and replaced. It is after all a free country. We the people are permitted to try to change “the law of the land.”
The Obama administration wants to make such efforts seem illegitimate, even while it changes the law, as passed, by administrative fiat—which is precisely what shouldn’t happen in a free country. As Peter Suderman writes,
It is the Obama administration which has chosen to ignore the law of the land by selectively enforcing provisions, encouraging government agencies and ignoring clear legislative language that conflicts with the administration’s goals. The administration’s delay of the employer mandate, for example, is not supported by statute. And when questioned about his administration’s authority to enact the delay, Obama has not even tried to claim that it is; instead he has simply asserted the authority to delay the provision, and then returned to criticizing Republican opposition.
Well, Obama’s free to criticize, and we’re free to challenge. For now, as a legislative matter, the most effective form of challenge is delay. The end of the federal fiscal year on September 30 provides an occasion to fight to delay implementation of key parts of Obamacare for at least a year. The case can be made narrowly: As Thomas Jefferson wrote to George Washington in 1792, “Delay is preferable to error.” But the narrow case buys time and lays the groundwork for continuing to make the broader argument for the error of Obamacare—that Obamacare is, to adopt a phrase used by Jefferson in a more famous place, “unfit to be the [law] of a free people.”
One day we’ll repeal this law. For now we can delay it.