Let the Candidates Fix What the SCOTUS Wouldn't

I suppose that by now, we all have our opinions on the Supreme Court decision last week that somehow left in place the unaffordable Affordable Care Act.  I'm not a lawyer; I don't play one on TV and only a few times played one on stage.  So I hesitate to make a blanket statement as to whether the Court acted properly in reading the Government's view in King v. Burwell and taking their side as the correct answer.

I know that I read Justice Scalia's explosive rebuttal in the form of a dissenting opinion.  In it, I found the selfsame logic that one would have reached on one's own -- that the version of Congress which shoved through Obamacare absolutely meant to punish states that did not set up insurance exchanges.  The penalty was that their citizens would not be able to get taxpayer-funded subsidies to pay for their insurance.  Its loudest architect, Jonathan Gruber stated as much.

So if Justice Scalia saw it that way, and it was the same way we saw it and interpreted it after Gruber's admission, then what are we to make of the fact that other members of the Court saw it opposite to that?  How do we decide what is "right" if part of the Court feels one way and another part feels passionately contrary?  Are we, as Justice Scalia wrote (and also Justice Thomas the next day in dissenting from the gay-marriage ruling), to be subject to nine "east and west coast lawyers all educated at Harvard and Yale, none a Protestant"?

The answer, apparently, is "yes."

We will not fix that.  We can, however, fix the law that they ruled on.  There are Republican majorities in both houses of Congress, and it is certainly possible that the White House may be occupied by a Republican as early as January 2017.

I would encourage all 14 announced Republican candidates for the presidency, and the others who may jump into the fray shortly, to declare precisely what they would have Congress do with Obamacare if elected.

Here's why: the left and the press (I repeat myself) have set the agenda and the talking points among the public as far as Obamacare.  Repeal the law, they say, and millions of people will lose health insurance, and that would be a tragedy.  Never mind that that's a fallacy, and never mind that most of those people only recently even got coverage, many did not want it, and no one was going without actual care anyway.

We on the right need to focus on the law itself.  By citing the parts of it that we would change, and how we would do it, we could move the public debate.  Instead of the left getting to say "No, you can't do that; people would lose coverage", they would be forced to defend the onerous provisions, one by one.  If we make a list of what we would change, and remove the word "repeal"from the debate, we force the left to be on the defensive.

Republican candidate: "As of now, the law requires people as old as 64 to pay for maternity coverage.  We will change that to a lower age, and we will allow couples who have undergone sterilization, such as vasectomies and hysterectomies, no longer to have to pay for such coverage.  Mr. or Mrs. Democrat, you have to agree with that, right?"

Republican candidate: "As of now, the law requires that people with no children, or with no dependent children in their household, pay for pediatric dentistry coverage.  We will change that to remove the requirement for such coverage from any adults with no children.  People should not be paying for insurance for non-existent children.  Mr. or Mrs. Democrat, you have to agree with that, right?"

Republican candidate: "As of now, the law sets mandatory minimums for coverage that forces healthy people to buy expensive plans with low deductibles.  This is silly.  Grown Americans can decide for themselves how much risk they are willing and able to take on.  If they want to get a plan with a high deductible and a much lower cost, we should let them.  After all, if they have to pay for heavy coverage, they're going to feel obliged to use it, and those increased doctor and hospital visits will drive up costs.  Mr. or Mrs. Democrat, you have to agree with that, right?"

So you get the idea.  Let's get our candidates to start addressing what they would do with Obamacare by picking off, one by one, the stupid, the pernicious, the inefficient and ineffective parts of the law.  By doing so, we stop talking about the nicey-nicey parts and can make the narrative about the stupid, pernicious and inefficient.  Let's see Hillary Clinton try to explain why I am paying dental insurance for children I don't have, but don't get dental coverage myself.

The Supreme Court didn't do the USA any favors last week.  It remains for the Republican candidates to take up the task and explain the legislative remedies that they will propose.  First, of course, they need to set the narrative.

And I just gave them the first talking points.  Available for hire, anytime.

Copyright 2015 by Robert Sutton
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