As election looms, policymakers work overtime to finish killing ObamaCare

As the battle over the Affordable Care Act (ACA), commonly called ObamaCare, shifts to the states, there are movements afoot at both the federal and state levels that skeptical conservatives are keeping their eyes on.

The first is the growing belief that in the absence of the individual mandate penalty, which was eliminated as part of federal tax reform legislation that passed in December 2017, the entire law is now unconstitutional, because without the mandate’s fine — or “tax,” as Chief Justice John Roberts declared in the 2012 case upholding the ACA — Roberts’ entire justification for defending the legislation has disappeared. President Trump could simply issue an executive order saying as much, and so long ObamaCare.

{mosads}The second movement, working in tandem with the first, is a recent lawsuit brought by 20 states that alleges Obamacare is unconstitutional for the reasons stated above, and as such, states should be free to explore other health care insurance options.

If one or both these movements are successful, what’s next for health care at the federal level?

Turns out there’s already an effort to revamp an amendment to the health care law that was introduced in 2017 but never went to the Senate floor for a vote. It may soon end up being the replacement for Obamacare if Republicans finally get their wish and the ACA is declared dead.

Remember the Graham-Cassidy amendment?

Introduced in late 2017 by Sens. Lindsey Graham (R-S.C.) and Bill Cassidy (R-La.), the amendment sought to restructure or eliminate large swaths of the health care law, including its subsidized insurance coverage and Medicaid expansion. Instead of being forced to take part in a national-government-driven health care scheme, the states would be given block grants to use at their discretion.

Democrats and some Republicans criticized the plan because they said it would penalize states that had already expanded Medicaid. Expansion has been pushed heavily by the Obama administration and Democrats since ObamaCare enrollment numbers dropped and consumer insurance prices soared.

The new iteration — backed by numerous free-market think tanks and adopted by Rick Santorum, a former Republican senator from Pennsylvania — would phase in block grants so Medicaid-expansion states won’t experience what might to some feel like a funding cut. It would also significantly expand access to health savings accounts and make it easier for states to eliminate ObamaCare insurance regulations, freeing up health insurers to offer cheaper catastrophic coverage policies to a much wider audience. 

Grace-Marie Turner, president of the Galen Institute, said in an interview she’s optimistic the new version will have support from federal legislators. The Galen Institute was one of the few organizations that continued to work on a plan to replace ObamaCare as soon as the Senate failed to bring the Graham-Cassidy bill to a vote in September of 2017.

“We believe the voters will insist that Congress return to health reform, and we have been working since October to develop policy proposals that we believe will help lower costs and give people more choices over their health insurance. Santorum continues to be a leader in this effort,” Turner said. “The Heritage Foundation, the Ethics and Public Policy Center, the American Enterprise Institute, the American Action Forum, and a number of state-based think tanks have participated in these conversations. We also have consulted with many experts from around the country to put together recommendations for reform that we believe can get majority support in the Congress and majority support with the American people to give them relief from the extraordinary costs and restrictions of ObamaCare.”

Santorum has told us it is a myth that grassroots conservatives have stopped trying to fight for better health care insurance options, and he and his allies are seeking guidance from legislators as they attempt to assemble the ideal policy prescriptions for a replacement health care bill.

“Legislators and politicians working in Washington, D.C. walked away from the health care fight. They said it was done and nothing could be done to fix it, at least in the short term,” Santorum said. “And remember: They initially wanted to bail out ObamaCare, which would have been more of the same high premiums and lack of access to quality care. We’re focused on fixing the health care system for the individual in the market, including everything from Medicaid expansion, to the tax credit system, to rolling back burdensome ObamaCare regulations.

“We’re vetting those ideas now with legislators and with the White House,” he continued. “It will be up to them, particularly the Senate because that’s where this bill will face the toughest challenge, to provide leadership.”

They may already have the support of the two other major players in the game.

Texas Attorney General Ken Paxton, who is the leader of the coalition of state AGs now battling in court to stop the ACA, said while filing the lawsuit (one that could soon put the ObamaCare fight back on the doorstep of the Supreme Court) that “when Congress enacted President Trump’s tax overhaul, it rendered all of ObamaCare unconstitutional by doing away with the tax penalty in ObamaCare’s individual mandate … [this] would give President Trump and Congress an opportunity to replace that failed experiment with a plan that ensures Texans and all Americans have better choices for health coverage at more affordable prices.”

There are also reports the White House is on board with the Graham-Cassidy plan, with Vice President Mike Pence taking a strong interest in the effort, and that it may even be ready to offer strategic and communications support.

Whatever Republicans do, they better act quickly if they hope to finally make repeal and replace happen. There are credible reports that a “blue wave” of Democratic Party wins is coming in the midterm elections, and should the GOP lose one or both houses of Congress, no matter what happens in the states, ObamaCare — toothless as it has become without the mandate — may never go away. 

Sarah Lee is a health care policy research fellow at The Heartland Institute, a nonprofit group dedicated to limiting the scope of government. Justin Haskins is executive editor of The Heartland Institute.