The series of retreats by the Obama administration on ObamaCare continues this week with the delay of the out-of-pocket caps on insurers, noted earlier today.  Once again, the White House has chosen businesses over consumers and workers, in large part driven by the economic implications of the law it champions.  So far, the White House refuses to budge on the individual mandate, even though the exchanges won’t be able to verify income levels to prevent fraudulent subsidy requests, nor secure the personal data needed for submission in the exchanges, putting consumers at risk for identity theft.

Republicans on Capitol Hill are debating the best strategy to oppose ObamaCare, with Marco Rubio and Ted Cruz arguing for a showdown on defunding everything.  Rubio continued to push that line today at a media availability in Gainesville, transcribed by his office:

“The President himself has already admitted that a significant portion of the law isn’t working, and that’s why he’s delayed portions of it for a year. That’s why the administration has given all kinds of waivers to allies of the administration through its regulatory system. At the same time, I don’t think he can ignore that he has strong allies of his who supported him in his campaign, who are asking him to delay and repeal significant portions of the bill.

“Look when the Teamsters union, not exactly a bastion of pro-conservative Republicanism, when the Teamsters union is issuing letters saying this law is breaking its promises and undermining the 40 hour work week, I just don’t know how he can ignore that. And all I would say is, let’s take a time-out here. Let’s not fund this thing. Let’s suspend this thing at a minimum. I would like to see it repealed, but at a minimum let’s suspend it. But let’s use this short term budget as a way to keep the government open, fund the government moving forward, but not fund this law that is hurting real people in such dramatic ways.”

Unfortunately, this is a losing strategy for a couple of reasons.  Democrats are simply not going to agree to separate ObamaCare funding from the rest of the budget, nor do they need to do so in the Senate.  They have the votes to pass a budget or a CR without Rubio or any of the rest of the Republicans, since filibusters cannot apply to budgetary bills according to Senate rules.  Rubio’s remarks are aimed more at the House, and both he and Cruz want to draw a line in the sand that will lead to a shutdown when Senate Democrats refuse to adopt any bills defunding ObamaCare.

Ramesh Ponnuru reminds us of how well a shutdown played in the past for Republicans:

Democrats thought that they had won the battle over the shutdowns, and that the agreement to end them was a Republican surrender. Clinton made a point, in his next State of the Union address, to criticize Republicans for their strategy. It was an applause line. Clinton’s job-approval numbers started to rise as soon as the shutdown fight was over, and they never really sank again.

Republicans thought they had lost, too. A minority of them thought that they should have kept the government shuttered longer, and that Gingrich and Senate Republican leader Bob Dolehad caved. (Gingrich was widely reported at the time to have told unhappy colleagues, “I melt when I’m around him,” referring to Clinton.) Most of them decided that bringing on a shutdown at all was a mistake.

It’s true, as Gingrich now says, that Republicans lost only a few House seats in the next election. But it’s also true that the shutdowns ended what had been called the “Republican revolution” of the mid-1990s. Before the shutdowns, the Republicans had talked about eliminating four cabinet departments. Afterward, they quit.

The view that Republicans had been routed was so widely accepted that some of them proposed legislation to prevent a shutdown from ever taking place again. The idea was that if no budget were enacted, the government would just keep going on the previous year’s funding levels. The legislation never went anywhere because Democrats thought the possibility of a repeat performance of the 1995-96 shutdowns gave them leverage.

Gingrich himself accepted the conventional wisdom that his party had lost. That’s what associates of his told me (among others) at the time, and that’s how they recollect it now. The “balanced budget deal” of 1997 included the creation of a new health-care entitlement for children, something the Republicans of 1995 would never have accepted but the post-shutdown Republicans were too beat down to resist. The conservative end of the party hated the deal.

The better opportunity here is to push a full-spectrum delay on ObamaCare.  One essential element of jujitsu is using an opponent’s strength and energy against him as a means of defeat.  Taking on Democrats on the entire federal budget doesn’t focus the energy clearly enough on the damage being done by ObamaCare’s delays and waivers.  Instead of playing a game of chicken that Republicans can’t win, the GOP should use the delays and waivers to press Obama and Democrats to stop favoring insurers and employers, and to give regular Americans the same breaks Obama wants to give everyone else in the equation, as I argue in my column for The Week:

This brings us back to McConnell. He signaled this week that he will pursue the alternate strategy of demanding delays in the key mandates of the ACA rather than defunding it. After Obama unilaterally postponed enforcing the statutory deadline for the employer mandate, Republicans have argued that the individual mandate should also be delayed. The Washington Post‘s Jennifer Rubin reported on McConnell’s demand to the CMS administrator for a delay, based on the inability of the selected contractor to ensure data security in the exchanges on time for the ACA’s October 1 rollout. “[J]ust last year,” McConnell wrote, “it was disclosed that more than 120,000 enrollees in the federal Thrift Savings Plan had their personal information, including Social Security numbers, stolen from your contractor’s computers in 2011.” McConnell closed with an argument for delay that will be powerful to contradict:

“Americans should not be forced into the exchanges, and certainly not without these assurances. If you rush to go forward without adequate safeguards in place, any theft of personal information from constituents will be the result of your rush to implement a law to meet the agency’s political needs and not the operational needs of the people it is supposed to serve.”

The delay provides much better fighting ground for Republicans. First, it doesn’t hold up the rest of the budget over the latest pitched battle over ObamaCare. After three years of “cliffs,” Americans have tired of budget brinksmanship, and even in last year’s election didn’t do much for Republican electoral efforts when fought over broader issues of budget deficits, tax rates, and national debt. Second, a delay in the exchanges also means a delay in the payment of subsidies, which for the moment will be paid on the honor system, since the delayed employer mandate and a lack of coordination between the IRS and HHS makes it impossible to check income levels for 2014.

Finally, if the Republicans can’t win a delay even with the exchanges wide open to fraud and identity theft, they certainly won’t be able to win a budget showdown with Democrats over opposition to the whole ObamaCare package. But that may not be the worst outcome, either, especially if the rollout even comes close to the disaster that Republicans predict. Any disaster will help Republicans build support for later efforts to dismantle ObamaCare, and will prove most helpful in 2014. Instead of trying to defend a government shutdown that they can’t win, Republicans can instead remind voters that they tried to delay and amend the ACA. That could give Republicans a lot more leverage in the next session of Congress by taking control of both chambers and forcing Obama to defend a train wreck.

I wrote this before the latest delay from the White House became widely known.  The ground is even better for this strategy than it was 24 hours ago.  Force Democrats to either pass a delay on the individual mandates — which would also suspend the exchanges and subsidies — or to defend imposing a mandate on them while giving businesses and insurers a one-year holiday from their obligations under ObamaCare.  Rather than creating a budget cliff that Republicans can’t win, this strategy gives them a fight they can’t lose.  Let’s see which strategy House Republicans take.