Well … sorta yes, sorta no. What they repealed is the individual mandate, the bete noire of small-government conservatives everywhere. The mandate is just one cog in a very complicated machine but it’s a crucially important one. Remember, in the landmark SCOTUS ObamaCare case of 2012, the conservative minority was prepared to throw out the entire law because it had deemed the two most critical parts of it, the mandate and the Medicaid expansion, unconstitutional. That’s the guts of the policy, Anthony Kennedy argued in dissent. Tear those two things out, as he, Scalia, Alito, and Thomas were prepared to do, and the whole organism necessarily dies. And he may have been right: When CBO runs its projections on ObamaCare without the mandate, it typically estimates 13 million people giving up coverage once they’re no longer required to have it. That’s a lotta lost revenue. When Trump says that killing the mandate means killing ObamaCare, he may not be wrong.
And ironically, the only reason the GOP was able to do it in a tax bill, with 51 votes under the Senate’s rules of reconciliation, is because John Roberts deemed it a tax. It’s a cold, cold, cold comfort to Republicans to be able to jettison the mandate five years later because of that, but there you go. A silver lining in a disastrous judicial ruling.
So, yes, sort of, the GOP has repealed ObamaCare. But also no, sort of. A momentous question lies at the heart of the mandate: How important is it really in getting people to sign up for ObamaCare? Are Americans enrolling because they fear a penalty at tax time or are they enrolling either because (a) they’re very poor and the greater availability of Medicaid has given them a health-care option or (b) the taxpayer sugar being doled out by Uncle Sam in the form of ObamaCare subsidies is making it worth their while financially to pick up coverage? There are wonks on both the left and the right who have come around to the idea that the mandate actually isn’t all that essential to ObamaCare’s functioning. It may be less like the heart or brain of the organism than it is a limb. Functioning will be impaired by its loss, potentially significantly, but the injury is survivable.
In fact, by repealing the mandate and nothing else, the GOP may end up with a new mess, an ObamaCare with enough revenue from taxes and existing premiums to limp on but with enough of a hit to revenue from the now-repealed mandate to force insurers to jack up rates or to bail out of the exchanges entirely, pissing off existing enrollees. Trump’s betting that Democrats, not Republicans, will bear the brunt of the public backlash from that. Errrrrr, let’s hope, but voters don’t typically blame the out-party when the president and his party are in total control of the government. Lefty Jonathan Chait foresees another potential problem:
What’s more, the elimination of the individual mandate closes off any chance Republicans had to replace or even scale back Obamacare. Repealing the mandate was the linchpin of the overall repeal effort. The mandate is the law’s most unpopular element, and repealing it saves a lot of money (because, the Congressional Budget Office assumes, it encouraged people to sign up for coverage, which is subsidized by the government). Republicans had used the savings to help finance their replacement plans for Obamacare.
Now that they’ve instead used those savings to finance tax cuts for corporations, they can’t use it again for a replacement. That makes designing a replacement all the more difficult.
The GOP’s “replacement” for ObamaCare may end up being nothing more or less than ObamaCare minus the mandate. You can call that “repeal” if you like — it’s good messaging for a president and a party that are desperate to convince their base that they kept their promise to get rid of Obama’s signature program. But it’s like predicting a man’s demise because he’s just lost a leg. There are a lot of things that can be done to save him before he turns critical, and in fact there are already things that are being done to save ObamaCare post-mandate. Some states are preparing to reimpose the mandate as a state law, which will mitigate the problem of lost revenue to insurers, and Trump himself is nudging Congress to pass a pair of bills that would “stabilize” ObamaCare next month. Having just amputated, the GOP is preparing to fit the patient with crutches. It’s not dead. Yet.