Could a Republican president gut ObamaCare without action from Congress or the Supreme Court?

posted at 8:01 pm on July 23, 2014 by Allahpundit

Why not? If President Obama can declare without statutory support that the employer mandate won’t be enforced for a few years, why couldn’t President Cruz declare that the individual mandate won’t be enforced? Why couldn’t he promulgate a rule, a la Obama did last fall when his “if you like your plan” lie was exposed, that allowed insurers to revive pre-ObamaCare health plans that had been rendered illegal by the new law? Those plans would have lower premiums than ObamaCare exchange plans do, which would entice healthy customers to drop their O-Care coverage and sign up for an old plan instead. Result: Two separate risk pools, one for healthy people and one very unsustainable one composed mostly of the sick. Once the latter pool collapses, poof — no more ObamaCare. The law has survived through dubious unilateral executive action; it’s only fitting that dubious unilateral executive action brings it down.

That’s the quick and dirty solution. Patterico has a more elegant plan, one based on yesterday’s appellate court rulings. The Fourth Circuit, you’ll recall, held that the federal ObamaCare exchange (Healthcare.gov) does qualify as “an exchange established by the State” under the statute — not because Congress necessarily intended it to but because that’s how the IRS is interpreting the law. And under Supreme Court precedent, if an agency’s interpretation of a law is reasonable, courts are supposed to defer it. Patterico’s point is simple, then: Does that mean that if President Cruz’s IRS decided to interpret the rule differently, so that the federal exchange doesn’t qualify as “an exchange established by the State,” courts would be bound by that interpretation too?

The U.S. Supreme Court’s Chevron case that created “Chevron deference” said:

“The fact that the agency has from time to time changed its interpretation . . . does not . . . lead us to conclude that no deference should be accorded the agency’s interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.”

In other words: agencies can change their minds, and we will continue to defer to them.

So, applying the Fourth Circuit’s reasoning, an IRS under Obama can say that an exchange “established by the state” can mean “established by the federal government.” But an IRS under Ted Cruz, applying the classic formulation of Monty Python’s argument sketch, could say: “No it doesn’t.”

President Cruz’s IRS could pull the plug and there’s nothing that a divided Congress could do to stop him. But that assumes two things: (1) that the Supreme Court will follow the Fourth Circuit’s lead and allow courts to be guided by the IRS’s interpretation of the law, and (2) that the politics of ObamaCare circa 2017 would allow Cruz or any other Republican to cancel subsidies for federal exchange consumers en masse. Avik Roy, while celebrating the Halbig ruling as a victory for the rule of law, thinks it’s a speed bump for ObamaCare and little more:

In this context, Ezra Klein makes a relevant point. “By the time [the Supreme Court] even could rule on Halbig the law will have been in place for years. The Court simply isn’t going to rip insurance from tens of millions of people due to an uncharitable interpretation of congressional grammar.” Ezra unfairly derides the legal issues at play, and exaggerates the policy implications, but he asks the right political question.

Chief Justice Roberts, you may recall, was the justice who singlehandedly re-wrote Obamacare in order to justify the legality of the law’s individual mandate. He did so, it appears, because he was more worried about left-wing criticism of the Court than he was about constitutional precision. It’s hard to believe he wouldn’t act the same way here.

I agree. His ruling on the mandate was based on the Constitution whereas his ruling on the Halbig appeal would be based on a statute, which might encourage him to be bolder this time. But it’s hard to believe Roberts would have waved ObamaCare through when he had a shot to kill the law before it began only to blow it up five years later, after the country’s insurance system has been overhauled. Even the D.C. Circuit, despite having mustered the courage to rule as it did yesterday, said that it issued its ruling “reluctantly,” knowing that it would mean pulling the rug out from under millions of people who were counting on subsidies to reduce the cost of their new insurance. If the politics of undoing subsidies are that hot now, just nine months after ObamaCare went into effect, how much hotter will they be three years from now, when people have grown dependent on them? That was Ted Cruz’s whole point in pushing “defund,” in fact — that the law had to be stopped before it took effect because dependency would prevent it from being undone afterward. Does that mean President Cruz would refuse to instruct his IRS to interpret the law as Patterico suggests?

That’s not the only political deterrent for Republicans in canceling the subsidies later, in 2017 or beyond. Lefty Brian Beutler is right that Halbig is a win for ObamaCare opponents generally but a huge headache potentially for Republican governors. Most of the states that refused to build their own state exchanges are red states; their citizens are the ones who are buying most of the plans sold on the federal exchange, Healthcare.gov — which means it’s their citizens, by and large, who’ve now had their subsidies yanked away. Since Congress isn’t going to restore those subsidies, those O-Care customers are going to demand that their state governments fill the gap and build their own state exchanges instead. Someone like Scott Walker will thus be caught in a bind, pressured from the right by conservatives who don’t want him to validate ObamaCare by building an exchange and pressured from the left by O-Care customers (some of them Republicans) who want him to build an exchange so they can get their subsidies back. If President Cruz told his IRS to follow the Patterico approach, he’d essentially be punting this problem to Republican governors, some of whom could suffer politically from it. Would he do that, or would he stick with the subsidies to keep the heat off state-level Republicans? Maybe we’ll find out.

But let’s not think about that right now. Let’s enjoy a rare judicial rebuke to executive power.



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Could a Republican president gut ObamaCare without action from Congress or the Supreme Court?

Absolutely.

V7_Sport on July 23, 2014 at 8:04 PM

Apparently the President has many heretofore unknown powers.

faraway on July 23, 2014 at 8:09 PM

Would he / she really want the IRS to audit him / her ?

Amerika abandoned that mere 3 branches of gummint thingy about 1935.

viking01 on July 23, 2014 at 8:09 PM

…only if we nominate a conservative with some balls.

bitsy on July 23, 2014 at 8:10 PM

Nope..once an entitlement program is started it’s impossible to remove since those receiving the $$$ vote.

Thanks John Roberts!

Healthcare will be an entitlement forever..just like food, housing, EBT and cell phones for an ever expanding population of deadbeat voters.

Nobody in political office will have the guts to end it assuming they hope to be re-elected.

celt on July 23, 2014 at 8:10 PM

I’m afraid it’s going to take a strong president doing things on his own to unravel the disaster the current president did on his own.

crankyoldlady on July 23, 2014 at 8:11 PM

Could a Republican president gut ObamaCare without action from Congress or the Supreme Court?

Anyone in the White House could do anything he wants. We threw away the notion of the Rule of Law a few years ago – formally! The nomination and confirmation fo the empathetic wise Latina was based on the anti-Western notion that empathy is a legitimate main criterion for a judge or judicial decision. Rule by Arbitrary Whim is where we’re at, now. And Benedict Roberts helped do away with any shred of Constitutionality that was left. That’s all gone, now, too.

In the AMerican Socialist Superstate, the dictator at Pennsylvania Avenue can do anything he wants. That’s the faux nation we are all subjects of, now.

ThePrimordialOrderedPair on July 23, 2014 at 8:12 PM

Why stop at ZeroCare? I’d like to see means testing for social security and medicare, as well as alternative private retirement accounts. Executive Orders, baby! Goose, gander.

MTF on July 23, 2014 at 8:13 PM

Are you saying SCOTUS decisions are politicized…? Shocked!

d1carter on July 23, 2014 at 8:14 PM

The liberal justices on the Supreme Court (and other courts) must be mulling over the outfall of their rulings during the Obama regime, and how their precedents (or refusal to hear cases) will be used by the next conservative POTUS.

In the freakish world of politics and jurisprudence, I’m betting that courts will begin striking down actions taken by Obama only to prevent the next conservative POTUS from using it against the liberal ideology.

My score for Halbig at SCOTUS: 6-3 for the plaintiff.

BobMbx on July 23, 2014 at 8:15 PM

President Cruz

President Cruz

President Cruz

President Cruz

President Cruz

President Cruz

President Cruz

SUCH A BEAUTIFUL PAIR OF WORDS

Sachiko on July 23, 2014 at 8:15 PM

Cruz should pull the plug on the IRS,EPA,HHS,DHS and education, if elected President.

tim c on July 23, 2014 at 8:16 PM

Can you imagine the wild eyed State Run Media’s response to a Conservative POTUS making such unilateral decisions..?

d1carter on July 23, 2014 at 8:16 PM

I’d like to see means testing for social security and medicare, as well as alternative private retirement accounts.

Private retirement accounts, sure. No means testing, though. People are forced to pay and then they are assessed being too wealthy to get the benefits? Not for me.

Executive Orders, baby! Goose, gander.

MTF on July 23, 2014 at 8:13 PM

This is called “the race to the bottom” and it’s why I keep saying that the AMerican Constitutional Republic is long dead and buried. We now have a free-for-all with no law and no tradition for guidance. This is like Jakarta in the 1960s … strange, huh? It certainly ain’t America and stomping all over the Constitution in a tit-for-tat doesn’t bring America back but only increases the hold of the American Socialist Superstate.

There is no real solution but a national divorce. This nation is toast and will never return to being an American Constitutional Republic again. The trust in any and all institutions has been totally obliterated. A government, once gone feral, can never be domesticated again. It must be put down and a new nation formed.

ThePrimordialOrderedPair on July 23, 2014 at 8:19 PM

Can you imagine the wild eyed State Run Media’s response to a Conservative POTUS making such unilateral decisions..?

d1carter on July 23, 2014 at 8:16 PM

I can imagine how I’d feel with a Republican using the same political games to bring down the unconstitutional BS that is obcare.

It would rhyme with duck less.

hawkdriver on July 23, 2014 at 8:21 PM

Exactly, “Why not?”. It could be a republican or a democrat, though. Obama’s been setting a lot of useful precedents for any future, potential dictator.

Ruckus_Tom on July 23, 2014 at 8:23 PM

ThePrimordialOrderedPair on July 23, 2014 at 8:19 PM

I hear you and you are a serious and respected commenter here. But. How much precedent is established though just using the same tactics to kill this one travesty of American Liberty?

hawkdriver on July 23, 2014 at 8:23 PM

The agencies full of lib beaurocrats would never cooperate in reducing their own power.

Think Lois Lerner writ large.

The 4th branch of gubmint exist for itself,, and it(s a bohemoth.

wolly4321 on July 23, 2014 at 8:24 PM

hawkdriver on July 23, 2014 at 8:21 PM

Heh….

d1carter on July 23, 2014 at 8:24 PM

The agencies full of lib beaurocrats would never cooperate in reducing their own power.

Think Lois Lerner writ large.

wolly4321 on July 23, 2014 at 8:24 PM

The Purge: Tea Party style.

faraway on July 23, 2014 at 8:26 PM

What it boils down to is that the Lefties who love Choomie’s pen and phone may find they have sown the wind.

The agencies full of lib beaurocrats would never cooperate in reducing their own power.

Think Lois Lerner writ large.

wolly4321 on July 23, 2014 at 8:24 PM

Air traffic controllers.

Reagan.

Do the math.

formwiz on July 23, 2014 at 8:28 PM

If he is a gay black muslim maybe…..nahhhh.

jukin3 on July 23, 2014 at 8:29 PM

Dems., unlike testicle free and clueless Pubs. would raise so much hell and would have the state run media backing them the moment Cruz even hinted at undoing any of their communist programs through executive action that Pubs. and Cruz would fold like a cheap lawn chair.

ACA is here to stay. Full blown Socialism/Communism is not far behind.

they lie on July 23, 2014 at 8:32 PM

Phase out\- yr 1 50% subsidy reduction. Yr 2 25%, Yr 3 off the teat. Yr 4 Vote Dem.

hillsoftx on July 23, 2014 at 8:34 PM

No. Reagan tried to gut Education Department…he got nowhere

Once it’s law…it’s law. Yes, it can be reformed or changed, but you will need congressional support.

Redford on July 23, 2014 at 8:34 PM

Ahhhh, AP… you’re looking at it all wrong…

(2) that the politics of ObamaCare circa 2017 would allow Cruz or any other Republican to cancel subsidies for federal exchange consumers en masse.

Just because there’s resistance due to dependency doesn’t mean that all conservative plans are automatically cancelled. After all, what’s more conservative than a balanced budget, and pulling out of the UN, and gutting the Dept of Education and DHS, and EPA, and TSA, and…

Just imagine…

“It would be considered unfair to our fellow Americans suffering through a healthcare crisis to simply pull out the rug illegally thrown down by Democrats, and so on this day, it is by Executive Order that instead of funding illegal organizations and departments, that money will be diverted to subsidies to our new HSA plans. We will be immediately defunding the UN, Dept of Education, DHS, EPA, TSA…”

“We thank those organizations for sacrificing themselves on the alter of Obamacare! I can think of no greater gift than to remove these destructive obstacles to the American Spirit in order to care for Americans that make our country great. I salute you dead departments! (Oh, and your severance was also donated.)”

“God bless America!”

Ahhh… brings a tear to your eye…

dominigan on July 23, 2014 at 8:35 PM

Sure!

Just say you can’t faithfully execute the law based on the capricious way it has been executed. There is no way to properly execute Obamacare based on the pure whimsy that Obama has given it and the law, itself, has so many internal problems that it is beyond the scope and power of the Executive to make the decisions necessary to run it because Congress was unclear on what it wanted.

Be faithful to the office and suspend the enforcement and execution of the law and say that you will not prosecute anyone who doesn’t follow it as you, as President, cannot make heads nor tails of the way it has been executed in the past. The citizens are guaranteed equal protection and that has not happened and now cannot happen based on the roll-out and slip-shod enforcement.

ajacksonian on July 23, 2014 at 8:37 PM

Why stop at ZeroCare? I’d like to see means testing for social security and medicare, as well as alternative private retirement accounts. Executive Orders, baby! Goose, gander.

MTF on July 23, 2014 at 8:13 PM

W tried to reform medicare…he got nowhere

Obamcare was passed legislation by congress therefore it is stupid ass law. Reagan tried to gut education department…nothing. President can’t do it alone…oh wait…we have one now that does ‘change things’ at will, but he did not create ‘obamacare’ the democrat congress did.

Redford on July 23, 2014 at 8:38 PM

But. How much precedent is established though just using the same tactics to kill this one travesty of American Liberty?

hawkdriver on July 23, 2014 at 8:23 PM

The precedent has already been set – not just on BarkyCare but on a whole host of Oval Office dictats. That same sort of move by a conservative (as much as I’d like the results) would be to further regularize the lawlessness and keep the Presidency as something of a Sukarno type of position. There would be no restraining of the Presidency and it would just continue on as it is and get worse and worse, even.

You can’t fight domestic lawlessness by using the same lawlessness. You can only fight domestic lawlessness with the law. The GOP House has the power and responsibility to impeach Barky and his junta. They’ve had this task for years but have refused to even contemplate it. They wouldn’t even contemplate attaching a repeal of barkyCare to one of the many “must-pass” bills (like the handful of CRs and debt-limit raises). They let the law be trampled and didn’t even try to stop barkyCare – the lawful, Constituional ways. To place any hope that another lawless Presidency can be used to take BarkyCare, since the Vichy GOP House has refused to even try to do that or stop Barky or his junta, is a desperate measure the results of which are not something most people really want to see … though the Presidency is a dictatorship, now, no matter whether a GOP President uses those powers of rule by whim or not. At worsst, those powers just sit and wait for the next leftist President to really push them again and put a real end to anyone’s illusion that this nation maintains any resemblance to the USA or to a civilized Western society of any sort.

It’s not pretty, but that is the position that the House has allowed barky and his gang of America-hating traitors to take us to. It’s a done deal, now.

ThePrimordialOrderedPair on July 23, 2014 at 8:38 PM

For the uninitiated, Monty Python’s argument sketch:

http://www.montypython.net/scripts/argument.php

:-)

VastRightWingConspirator on July 23, 2014 at 8:39 PM

Take the EPA, HUD, IRS, and many other alphabet named federal boondoogles down by 80%. Put that saved money to pay down debt and fund the VA.

Also cram through a NO UNION public employee bill that outlaws PUEs.

jukin3 on July 23, 2014 at 8:41 PM

The agencies full of lib beaurocrats would never cooperate in reducing their own power.

Think Lois Lerner writ large.

wolly4321 on July 23, 2014 at 8:24 PM

Since the Executive branch is in charge of administering the departments, you don’t have to actually “fire” fire… just downsize through attrition!

For example, to better enable the EPA to monitor global warming change, simply relocate all EPA offices to Prudhoe Bay, Alaska with no moving allowance. How long do you think the EPA would survive without Congress Dems trying to illegally meddle in the Constitutional authority of the Executive Branch to administer its own departments?

We need to start playing for keeps like the lib Dems do.

dominigan on July 23, 2014 at 8:42 PM

You can’t fight domestic lawlessness by using the same lawlessness. You can only fight domestic lawlessness with the law.

This is war and we are losing so yes we bring guns to knife fights too. Then we can change it back.

jukin3 on July 23, 2014 at 8:42 PM

The Edjumication Department remains because Ronaldus Magnus took a gamble on Bill Bennett.

So to speak.

viking01 on July 23, 2014 at 8:43 PM

Also cram through a NO UNION public employee bill that outlaws PUEs.

jukin3 on July 23, 2014 at 8:41 PM

Actually, the only reason that there are public employee unions is because of an EXECUTIVE ORDER allowing it. Just rescind the Executive Order. Why don’t we do that more often? I’d like to see a whole slew of EOs rescinded!

dominigan on July 23, 2014 at 8:44 PM

air traffic controllers. Reagan. Do the math. formwiz on July 23, 2014 at 8:28 PM

I did the math and the IRS>ATC’s 30 years ago.

It won’t be that simple. Fed agencies have accumulated power 100 fold since then. They act independant. Protecting themselves now.

They are their own branch of gubmint and they aren’t going to cooperate with the other 3 to diminish their own power.

The game has changed, since the 80′s.

wolly4321 on July 23, 2014 at 8:45 PM

It’s a done deal, now.

ThePrimordialOrderedPair on July 23, 2014 at 8:38 PM

Disagree. We use the same tactics to get rid of the ACA. Once. We make the Founders roll just this once and live it down or we concede that our fellow Americans are fined for not buying a product the government is ordering us to buy.

Take the medicine fast and it doesn’t taste as bad. Don’t take the medicine at all and you stay sick.

hawkdriver on July 23, 2014 at 8:46 PM

You can’t fight domestic lawlessness by using the same lawlessness. You can only fight domestic lawlessness with the law.

Fine… THE LAW states (according to the 2nd Amendment) that Americans may keep AND BEAR arms. Simply issue an Executive Order allowing concealed carry into the halls of Congress and all Federal buildings.

THAT would put the fear of American citizens back into politicians!

An armed society is a polite society.

dominigan on July 23, 2014 at 8:47 PM

It won’t be that simple. Fed agencies have accumulated power 100 fold since then. They act independant. Protecting themselves now.

They are their own branch of gubmint and they aren’t going to cooperate with the other 3 to diminish their own power.

The game has changed, since the 80′s.

wolly4321 on July 23, 2014 at 8:45 PM

No it hasn’t. They all still have to be FUNDED.

dominigan on July 23, 2014 at 8:49 PM

You can’t fight domestic lawlessness by using the same lawlessness. You can only fight domestic lawlessness with the law.

ThePrimordialOrderedPair on July 23, 2014 at 8:38 PM

but since obamacare is something that was enacted so lawlessly, it never should have been enacted at all, so undoing it through lawless actions should not be considered “wrong.” that’s how i feel anyway. undo the thing even if it’s in a lawless way.

Sachiko on July 23, 2014 at 8:50 PM

If the politics of undoing subsidies are that hot now, just nine months after ObamaCare went into effect, how much hotter will they be three years from now, when people have grown dependent on them?


You have a serious KneePad Media Narrative addiction, AP.

You need HELP.

Don’t worry … WE will all help you to break this addiction.

Now to address the nonsense statement.

In three years, NO ONE is going to recognize the world as it exists today.

China has blown a debt/monetary bubble that is proportionally larger than America’s ( ~ $ 15 trillion USD) and cannot be paid off with their bond holdings ( ~ 4.5 trillion USD). China’s economy is just waiting to crash. The Chinese government KNOWS this and is looking to ACQUIRE assets in their immediate vicinity to improve their overall “balance sheet” (i.e. Spratly Islands, etc)

Without China or the EU (you know the place where UNEMPLOYMENT averages > 15% overall RIGHT NOW) willing to buy an unending glut of UST’s the INTEREST RATES are going to go way up and SERVICING the debt will make elimination of the Obamacare subsidies a NATIONAL PRIORITY.

Note: For simplicity’s sake, another dozen major global problems have been left out of this analysis. If you can’t see the veracity of the analysis above, medical experts can diagnose you have your head to far up the KneePad Media’s Ass to be able to see anything other than the constant shite they are peddling.

PolAgnostic on July 23, 2014 at 8:53 PM

Personally, I hope the first thing Republicans do, when they have the whole enchilada is to de-certify all government unions and not allow government employees to be unionized any more. One of the reasons people like Lerner can get things done is because of the unions. Let’s just disband all the federal government employees unions. Once you do that, things will change for the better anyway.

As far as Obamacare is concerned, why worry about that. We now know the courts, bound by precedent, will let agencies do anything so we’ll make the rules for everything from the EPA to Obamacare, to ATF and not have to worry about any legislatures. Of course the Democrats will scream but, if it weren’t for them, Republicans would feel obligated to use the legislative process to make changes and allow all the representatives, no matter which party, have a say in it. Obama, Harry Reid and the Democratic Party have set the precedent, no need to worry about what the opposition party thinks, just Rahm it through, then lie, obfuscate, and do whatever it takes to keep it going.

bflat879 on July 23, 2014 at 8:53 PM

since the Executive branch is in charge of administering the departments, you don’t have to actually “fire” fire… just downsize through attrition! For example, to better enable the EPA to monitor global warming change, simply relocate all EPA offices to Prudhoe Bay, Alaska with no moving allowance. How long do you think the EPA would survive without Congress Dems trying to illegally meddle in the Constitutional authority of the Executive Branch to administer its own departments? We need to start playing for keeps like the lib Dems do. dominigan on July 23, 2014 at 8:42 PM

When it’s a prog Executive. Otherwise they’ll tie it up in the courts.

I don’t think folks get what this is. Still operating under the assumption of rule of law and progs don’t infest all 4 branches of gubmint, and collude with each other.

Erase that premise, it’s false.

wolly4321 on July 23, 2014 at 8:53 PM

The problem is the law is practically lawless.

One can be forced to bake a cake celebrating judges whom gladly cancel elections and Kelo our property rights.

viking01 on July 23, 2014 at 9:00 PM

no it hasn’t. They all still have to be FUNDED. dominigan on July 23, 2014 at 8:49 PM

Like obamacare does? It’s still funded.

It all is. Every agency. Full tilt.

Besides, this was about executive power.
What I’m suggesting is there only is with a prog exec.

Otherwise the progs in the other 3 branches team up to defeat any effort against them.

You are wrong. It has changed, dramatically.

wolly4321 on July 23, 2014 at 9:06 PM

Could a Republican president gut ObamaCare without action from Congress or the Supreme Court?

Yes. To thunderous applause and repeated standing ovations.

partsnlabor on July 23, 2014 at 9:08 PM

hawkdriver on July 23, 2014 at 8:46 PM

We’ll just have to agree to disagree on this. I wish you were correct, hawk. I really do. But that’s just not how I see it.

ThePrimordialOrderedPair on July 23, 2014 at 9:13 PM

but since obamacare is something that was enacted so lawlessly, it never should have been enacted at all, so undoing it through lawless actions should not be considered “wrong.”

the GOP House never even tried to undo BarkyCare – and they had the leverage – lawfully. They never tried to impeach anyone involved in passing BarkyCare in any of the tens of criminal ways that occurred. The House had/has the Constitution on its side but refused and refuses to defend it.

that’s how i feel anyway. undo the thing even if it’s in a lawless way.

Sachiko on July 23, 2014 at 8:50 PM

Unfortunately, to my mind, that just follows the way down the chasm.

But, it doesn’t really matter, anyway, as a GOP President would never even try to kill BarkyCare – by Executive whim or by any other way. We know how scared the Vichy GOP is about even touching BarkyCare in any way. They keep hoping that someone else stops it for them … as if.

ThePrimordialOrderedPair on July 23, 2014 at 9:17 PM

Sachiko on July 23, 2014 at 8:50 PM

And I would add another example:

Barky declared the Senate out-of-session and installed his hand-picked goons to NLRB. This was so illegal and un-Constitutional that it boggles the mind. The GOP response? To give in on judicial nominations and to allow the same POS Barky installed in the NLRB to be renominated and confirmed, officially.

Even though the court eventually found that Barky had pulled a Sukarno it didn’t matter. The GOP had already surrendered and given Barky what he had already taken, but with their official confirmation on it all. There should have been impeachements from the House over all this stuff – once again – but … nothing. And the Senate GOP was happy to make it all look legal, even though nothing was even close.

You can’t pass up the legal methods for correcting situations (which have always been available) and then hope for illegal, lawless actions to make everything right. It just doesn’t work that way – not to my mind, at least.

ThePrimordialOrderedPair on July 23, 2014 at 9:23 PM

A conservative President can kill Obamacare just by appointing a HHS secretary that is conservative.

So much of that 2,000+ page monstrosity is held together by “the secretary shall determine” that a HHS secretary can destroy it.

ConstantineXI on July 23, 2014 at 9:55 PM

hawkdriver on July 23, 2014 at 8:46 PM

We’ll just have to agree to disagree on this. I wish you were correct, hawk. I really do. But that’s just not how I see it.

ThePrimordialOrderedPair on July 23, 2014 at 9:13 PM

Friends never agree on everything.

hawkdriver on July 23, 2014 at 10:00 PM

they lie on July 23, 2014 at 8:32 PM

Crouch down. Some of us may be trying to fire over your head.

8 weight on July 23, 2014 at 10:24 PM

At the risk of pointing out the obvious, either interpretation will work for conservatives.

Take the “only customers of exchanges established by the state are allowed subsidies”. That means that Obamacare is indeed dead in those states (36 of them) which do not have state-run exchanges.

Take the “customers of exchanges established either by the state or not by the state are eligible”. That means that PRIVATE exchanges, such as the ones run by your own insurance company, are eligible for subsidies too. It means that an exchange established by your religious denomination is eligible for a subsidy.

The Democrats are arguing, as they do in the LA Times, that Congress would never have passed a law implementing a subsidy system which worked for some people but not for others. Taking that thought to its logical conclusion, we have that no matter where one buys their insuranc policy, they should be eligible.

unclesmrgol on July 23, 2014 at 10:49 PM

This is a interesting subject may be mute point in a few years. I’ve noticed more stories about bubbles china, stock market, land and student loans. I fear when one of these pop they all will and everyone will find out what a great depression really feels like. There will not be any money to fund all these federal programs and they will die from lack of funds.

wifarmboy on July 23, 2014 at 10:58 PM

As a life long conservative who marveled at the Reagan presidency , I can safely predict that Senator Cruz will never become POTUS. Period.

Donkeyhoti on July 23, 2014 at 11:01 PM

Cruz should pull the plug on the IRS,EPA,HHS,DHS and education, if elected President.

tim c on July 23, 2014 at 8:16 PM

.
Energy, too… get rid of the Dept. of Energy.

ExpressoBold on July 23, 2014 at 11:05 PM

Most every article that states obamacare will lumber on forever use as their basis that America has become a country ruled by and for entitlement junkies. These junkies get their “discount” for their incredibly bad overpriced insurance and there is nothing that can be done to pry it from them….who cares if it wipes out the middle class and destroys the country…I got mine!

Caseoftheblues on July 23, 2014 at 11:36 PM

that the law had to be stopped before it took effect because dependency would prevent it from being undone afterward

The laws of economics don’t give a sh!t about “dependency”…and they will very easily undo this law. What can’t go on indefinitely, won’t. Period.

This is just more excuse making…more abject cowardice…the kind that will see the GOP’s vote share steadily decline over the next decade as more and more of their former supporters simply stay home in disgust.

We are ONE conservative Supreme Court justice retirement away from full-metal fascism in this country. No more half-measures. No more “optics”. Someone call me when someone is willing to take the right stand…and do the right thing…simply because it’s the right thing to do.

rvastar on July 23, 2014 at 11:37 PM

Let’s get to the crux of this. If a law means only what others want it to mean and not what it actually states, then we have chaos.
It is that simple.

bigjacket on July 23, 2014 at 11:56 PM

Cruz should pull the plug on the IRS,EPA,HHS,DHS and education, if elected President.

tim c on July 23, 2014 at 8:16 PM

.
Energy, too… get rid of the Dept. of Energy.

ExpressoBold on July 23, 2014 at 11:05 PM

A good start would be to not appoint anyone to run them…

Only appoint secretaries mentioned in the Constitution.

State, War, Justice, and Treasury. That’s it.

ConstantineXI on July 23, 2014 at 11:58 PM

Since Obama can change the law’s mandates through executive actions, couldn’t a President Cruz issue an executive action to delay all the mandates of ObamaCare for the four years of his Presidency?
Obama delays action for one year, so why not a four year delay for President Cruz or Paul?

bigjacket on July 23, 2014 at 11:59 PM

If this decision is overturned it will mean our president can tax whomever he wants and give subsidies however he chooses. Even Roberts will see the folly in that as most democrats also should but won’t

NYCMike on July 23, 2014 at 11:59 PM

The “secretary shall determine” provisions included in Obamacare could be used to completely alter the trajectory of the law in such a way that it doesn’t resemble the piece of legislation that Dems passed into law under the cover of darkness.

These provisions could be used to move the law in a direction that is more free-market friendly for both the health insurance and healthcare markets, while providing more freedoms at the local and state levels, etc., etc.

Our healthcare system does need to be reformed.

If not, then they need to repeal and replace. Too much damage has been done to our healthcare system to settle for repeal alone. Replace would be necessary to get policies in place to pull the healthcare system back in a free market direction.

lineholder on July 24, 2014 at 12:01 AM

The author asks the wrong question given the precedents set by Obama.

Looking at the most recent Republican presidential candidates the question he should ask and one that troubles more than a few Republican voters is “Would a Republican president gut ObamaCare without action from Congress or the Supreme Court”.

I doubt that he would.

Nomas on July 24, 2014 at 12:08 AM

It would be almost trivially easy to do away with Obamacare. It’s on a shaky foundation, and can only be kept going by a dedicated executive who wants it to succeed.

A hostile president could easily create enough loopholes to make it unworkable. And that’s assuming there is no interest in Congress to make any reforms.

With minor changes from Congress, the Obamacare structure could be left in place and still be unusable. Just create an extra category of insurance in the exchanges for catastrophic care, and the cost would be so much lower that those with no real need for comprehensive health insurance wouldn’t care about the lack of subsidies. They would still be saving twice as much on the cost of insurance.

Or do like Obama, and declare which parts of the law you’re not going to enforce. That wouldn’t require any input from Congress at all.

Unlike Medicare, every bit of Obamacare is implemented through private insurance companies. Remove or change mandates or create alternatives to them, privatize some government functions by awarding a contract to the lowest bidder, create a special risk pool for healthy people that allows them to abandon the standard, high-premium risk pools, etc. You can easily get businesses to compete for the prize of finding ways to cut prices while eliminating subsidies.

The question is not whether it’s possible to undo Obamacare, but whether we have the will to undo it.

There Goes the Neighborhood on July 24, 2014 at 1:30 AM

If a republican (not necessarily conservative with that definition) tried to rule by royal fiat as does Obama, the full chaotic forces of the left would be implemented in all areas of our society. Anarchy would replace civility rapidly.

The left is not nice, nor any longer hiding its evil intentions, thus it will never accept fairness or tolerance.

Don L on July 24, 2014 at 7:49 AM

The Court simply isn’t going to rip insurance from tens of millions of people due to an uncharitable interpretation of congressional grammar.”

Why not – isn’t that what Obamacare did – rip people’s existing insurance away?

The real question is whether any Republican POTUS would have the backbone to do anything amid the cries of “There will never be another Republican elected if the GOP does this.” And we all know that getting elected is a politicians main driver.

katiejane on July 24, 2014 at 7:54 AM

A couple points. First, it won’t take three years for these decisions to be appealed to the Supreme Court. Second, if the individual mandate is rescinded, there won’t be millions of people demanding that their states set up exchanges. But, yes, a Republican president could and should gut the PPACA.

Syzygy on July 24, 2014 at 8:29 AM

Assuming we got a real conservative, a lot of things would go away, like ENDA. EOs can be rescinded by the next president, and I expect lots of them would be.

Ward Cleaver on July 24, 2014 at 8:49 AM

Just as it has been implemented, Obamacare could be dismantled piecemeal in such a way as to take advantage of certain political considerations. The frog would barely notice we had stopped boiling it.

Knott Buyinit on July 24, 2014 at 9:27 AM

Yes, Roberts must be bolder this time around and truth is that he “owes” the American people from the wrong decision to have the government force us to purchase a product we did not want. Obamacare was never wanted or needed in the first place. Hope he does the right thing this time around.

Amazingoly on July 24, 2014 at 10:03 AM

If President Obama can declare without statutory support that the employer mandate won’t be enforced for a few years, why couldn’t President Cruz declare that the individual mandate won’t be enforced?

Good for the GOOSE good for the gander.

The law is written to hide whatever you want inside it. It was a vehicle from the start.

or,

The Secretary-Shall says that a “Health Plan,” now will be any plan that a citizen wants to say is a health plan, or a medical savings account with $1 in it satisfies the mandate. And the Secretary-Shall negates all the thousands of liberal pages and pages of promulgations written by Sebelius,leaving them empty.

Un “Shall” the Law, and nothing much is left except a mandate to buy a policy containing…nothing.

It isn’t a good law, exception makes horrific law, if it isn’t basic enough to transition from one party’s president to another. The mandate stands, mandating…absolutely nothing, or contorted twisting sommersaults, depending on who the president is.

Fleuries on July 24, 2014 at 11:10 AM

I strongly disagree with both Allah and Avik. Roberts set out to protect the Court’s institutional reputation and prestige. Instead, his pretzel logic on the tax issue damaged the Court enormously. It made Roberts look like he was acting in a cynically political manner. And it did nothing to stop Obama and Dems from continuing to heap obloquy on him and the Court more generally. He was badly burned by all this.

Since then, he and other members of the Court have begun to believe that Obama is wildly lawless in the exercise of his office’s powers and have acted to rein him in on several occasions. Thirteen times the Court has acted unanimously against the White House’s legal arguments. Several more times in split decisions.

Given this history are Allah and Avik still so confident in their assessment.

Esaus Message on July 24, 2014 at 11:44 AM

Most of the states that refused to build their own state exchanges are red states; their citizens are the ones who are buying most of the plans sold on the federal exchange, Healthcare.gov — which means it’s their citizens, by and large, who’ve now had their subsidies yanked away.

Lest one forget, it is also the citizens, both employees and employers, of these states that are “taxed” because of non-compliance due to their states being in the “state established” federal exchange.

These citizens BENEFIT from from a Governor refusing to establish a legitimate state exchange.

Carnac on July 24, 2014 at 2:13 PM

Sure, since the precedent has been set…all the new president would need is a phone and a pen.

ProfShadow on July 25, 2014 at 4:52 PM