Airing Grievances with ObamaCare

Thank you very much, Grace-Marie, Jim, Bob, and all the other folks at our respective institutions and to HarperCollins for making this wonderful book project possible. I'd like to thank the Obama Administration and the last Congress for making this necessary, but I don't want to. So let's just continue our collective Heimlich maneuver to dislodge what's stuck in our throats. Our book's written to provide you with a firm foundation and understanding of the serious consequences of the un-Affordable Care Act, or aka-ACA, for Americans in various slices of life.

I think we do that in a clear and accessible manner, at least my co-authors did. But there's always a bit of the Bill Murray "Groundhog Day" experience in wondering how we can keep repeating so many of the same basic health policy mistakes year after year, although this law has tried hard to expand the scope of the likely failures to come.

However, I think the better metaphor of the moment comes from the December 1997 episode of the "Seinfeld Show" involving the celebration of Festivus, the holiday alternative to the over-commercialized and high pressure Christmas season. "Festivus for the rest of us," was the refrain. It was highlighted--this is important--by the Airing of Grievances, in which each person tells everyone else all the ways they've disappointed him or her over the past year.

Now, you can review our book chapters in terms of categories of Americans to find your favorite grievances involving President Obama and the last Congress. They'd promised great gifts and delivered either empty boxes, product defects or the proverbial lumps of coal (so much for clean energy) in this new healthcare law. Now, to be fair, the broader airing of health policy and healthcare grievances in this nation's political discourse is rather inconsistent, contradictory and blinkered, with the common-denominator, consensus position being that it's always someone else's fault. We do keep stepping on the gas pedal, and then hitting the brakes, and wondering why there are so many collisions, despite the air bags on board in high political office. An important part of what we're saying in this book is we have to shift gears and move in another direction.

Now, the final tradition of Festivus is that it cannot conclude without the head of the household being pinned to the mat by another challenger in a wrestling match. And we're moving in that direction on Capitol Hill and in the 2012 campaign season ahead, within the appropriate limits of Secret Service protection and federal law. I don't want to get arrested here.

In looking back over the last year and some of what preceded final enactment of this public nuisance, we see various acts in a five-ring circus, including lots of political clowns, contortionists, dare devils and aspiring lion tamers. In the political arena, public opinion has remained skeptical about the overall virtues and benefits to this law. A consistent plurality, and sometimes a majority, has refused to buy what the law's proponents have tried to sell for many months. The whole has been much less than the sum of its parts--and it's a pretty deep hole when you stare down into the abyss.

In the legislative ring, we've seen many of those in the previous majority in Congress given the hook. Next cast, please step up. The reviews are not in yet on whether repeal and replace, or defund and disembowel, will get to the final act, but it will; hopefully sooner rather than later.

Over in the cloudier economic ring, the ACA continues to flounder in the face of slow job growth and massive government debt. The health law's flight from double-entry bookkeeping, evidence-based assumptions, and effective incentives leaves even more Americans anxious, insecure, and uncertain that it offers any feasible path toward higher value and more productive healthcare. Meanwhile, we're running just a little bit short of resources to invest in other important priorities not called "more healthcare spending."

The new health law's temporary truce with the employer-based core of private insurance is contradicted by its steady drip by drop political water torture of plan sponsors, disincentives to job growth, wage growth and job creation, disruption in churning of coverage arrangements, and unpredictable regulatory schemes.

The only certainty is the ACA has produced, and will continue to produce, massive uncertainty for firms, which delays and distorts their important business decisions.

In the next circus ring nearby, we find promises of amazing feats of administration and implementation, many of which have never been witnessed before. When first unwrapped in Congress, the ACA's gifts should have carried the warning, "Some assembly is required." The law did seem to rely too heavily on a toolbox full of hammers designed to pound round human pegs into regulatory square holes. A lot of pounding and a lot of yelping from some of the folks doing the early implementation, when they hit their fingers.

Remember that items like the medical loss ratio rules, phasing out annual limits on insurance plans, and protecting existing employer plans from disruptive regulation, those were supposed to be the easy, early tasks. The wires not only don't connect in the ACA's overly ambitious scheme of even more centralized regulation, welfare state redistribution, and real-time data flows. They can create a more explosive fireball that spreads throughout the healthcare system, government budgets, and the economy.

And it seems that federal planners assume that state governments would fall into line without a whimper, as junior associates in branch offices assigned the messier jobs of making health exchanges, Medicaid expansion, dual insurance regulation, and coverage mandates work better in local practice than they were designed in Washington theory.

In the last circus ring, the courts, we might have a real show-stopper. Although almost the entire cohort of constitutional law cognoscenti reflexively dismissed any basis for a challenge to the new health law a year ago, two federal district court judges have dusted off an older vintage of the US Constitution that's been in exile for the last half-century, and declared the individual mandate beyond the powers of Congress under the Commerce Clause. The Constitution--don't leave home without it.

You know, we're in the First Amendment lounge, that begins, "Congress shall make no law"--that's always a good start as a presumption. The final opinions in the court cases I mentioned of Judge Hudson and Judge Vinson, respectively, which we discuss in our book. They're serious, substantive, well-reasoned and carefully written. Of course, several other lower courts have disagreed in another round of appeals. After another round of appeals, we may see a far-reaching final decision by the Supreme Court in the early summer of 2012--or we may not. We'll have to see what Justice Kennedy has for breakfast that day.

But the initial litigation has fleshed out important insights on how the ACA reached far beyond fundamental American principles of limited government and the federalist structure of the Constitution.

So to learn more, read the book. And since we're working on sales royalties as part-time writers, buy one if you can. The big message is not just how bad this health law is, why it can't work, and must not be implemented in whole--it's hard to do in part. Yes, we've overloaded the circuits of our political system, stressed our struggling economy, and misdirected the future of healthcare decision-making. But what really is no longer believable is that the future implementation of ObamaCare and the ACA is inevitable. Instead, our political discourse in health policy has been revitalized with millions of grassroots Americans more engaged and informed, though still a bit confused, than ever before.

Repeal is not enough. But it will provide a mighty good start. We have to clear a heaping pile of recent and older health policy debris before moving in a careful and determined manner to the "replace" side of long overdue solutions to chronic, preexisting U.S. healthcare conditions. The clock's running, but we can and we will do this much better, and we have to. Thank you.

Thomas P. Miller is a resident fellow at AEI.


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