The Senate should write another Obamacare repeal bill, quickly — and there’s a way to do it without having the Congressional Budget Office (CBO) offer the bizarre analysis that replacing Obamacare will result in 20 million fewer people having health insurance.
The new bill’s first provision would eliminate the entire individual mandate “tax” and replace it with a specifically defined “penalty” of an equal amount for failure to purchase health insurance — with the penalty to be collected not by the IRS but via billing from the Department of Health and Human Services. But the “penalty” in turn would be waived upon enrollment in a Health Savings Account (HSA).
Because the CBO estimates that 16 million of those who “lose” insurance will do so only because the individual mandate would no longer compel them to purchase at least a “bronze-level” health plan, then keeping the mandate nominally in place would mean CBO could no longer push this bogus statistic — and nervous senators could not have the statistic used against them.
By specifically calling it a “penalty” while explicitly re-defining it as “not a tax,” the mandate itself would be made unconstitutional according to the very terms of Chief Justice John Roberts’ tendentious decision in NFIB v. Sebelius — which found the mandate unconstitutional only because it (allegedly) was operationally a “tax” rather than a “penalty.”
But because a new constitutional challenge would take two years to wend its way through the courts, the new “penalty” should be easily voidable. To make it voidable by participation in an HSA would technically keep “coverage” in place, satisfying the CBO’s strange sensitivities. (To be certain, Congress should explicitly direct CBO to count HSAs as “coverage.”)
Because all reasonable Republicans support a vast expansion of HSAs anyway, the original House bill’s HSA-promoting provisions should be included, perhaps even enhanced, in the new Senate bill.
The bill still should include the eventual block-granting of Medicaid to the states, but — as a sop to Senate moderates — with a much slower down-ratchet of the federal contribution thereto than conservatives might otherwise like.
The size or at least speed of the tax cuts from the House bill would need to be decreased in order to “pay for” the lesser savings from Medicaid, but even smaller tax cuts will promote economic growth better than no tax cuts at all. (The job-killing, health-harming Medical Device Tax would be among those, though, to be immediately and fully eliminated.)
U.S. Rep. Gary Palmer’s “Risk Sharing Plan” should be included in the bill in order to lower premiums for the healthier among us while encouraging coverage for those otherwise less insurable. U.S. Sen. Ted Cruz’ much-discussed proposal — to let insurance companies offer a non-Obamacare-compliant plan in a state as long as it offers at least one plan that does remain compliant — should be included as a “pilot program” available to the first five states that apply if they meet certain conditions, such as having fewer health-insurance options in their state than the national average.
The refundable tax credits for individual insurance purchases should be based partly on age and partly on income.
Aside from those provisions, the Senate should include the most popular of the other facets of either the House bill or the various earlier iterations of the Senate bill, as long as they are certain the parliamentarian will allow them under “reconciliation” rules. But the bill should be as simple as humanly possible, with as many non-essential subjects as possible left out. A whole host of provisions could better be handled as stand-alone pieces of legislation, daring Democrats to oppose them on their own merits when not obscured by the smokescreen of a massively complicated bill too hard for the average American to understand.
The reality is that the Senate was closer than it seemed to finding enough agreement on a bill to reach the 50-vote threshold required for passage. Removing the stumbling block of the bad CBO “score” would ease a lot of the political pressure — and would still amount to a backdoor way to eliminate the individual mandate and effectively repeal all the budget-affecting portions of Obamacare.
And, in terms of policy, encouraging vast new numbers of Americans to use HSAs would be the single best way to return insurance to its original purpose — which is to guard against high unexpected costs, rather than to have patients pay insurance companies to pay doctors for lesser services the patients could afford less expensively themselves without the insurance middleman.
Let’s get this done.
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