Now that the Supreme Court has ruled for the Obama administration in the case of King vs. Burwell, perhaps Washington can finally turn to fixing the law’s acknowledged deficiencies. Chief Justice John Roberts, despite affirming the Obama administration’s position, remained quite critical of the Affordable Care Act itself, writing that it “contains more than a few examples of inartful drafting.” He also noted that the law “does not reflect the type of care and deliberation that one might expect of such significant legislation.”
Rebukes aside, President Obama and supporters of the law were thrilled with the decision. But this is not the end of the conversation about the ACA. Overall, the law has many problems that need to be fixed, including the increasing lack of affordability for both public and private plans, limited quality and price transparency within the system, burdensome regulations and overall unsustainable coverage levels.
Amidst all of these problems, there is an additional major challenge to come. Employer sponsored health care, a system from which 169 million Americans receive coverage, is increasingly at risk due to the high cost of average family premiums and deductibles as well as the looming health care excise tax. Employers are on the front lines of solving the challenges in health care, and unlike Congress, they cannot wait until the political storms settle.
Congress should keep this population in mind when drafting health policy legislation and consider changes to ease the burden on employer-sponsored care, including repealing the excise tax, protecting wellness programs, expanding the ability to use health reimbursement arrangements, strengthening health savings accounts and simplifying the IRS reporting requirements. If Congress doesn’t make these changes, the Congressional Budget Office estimates that 8 million Americans will lose their health care by 2017.
Even with these challenges, the King decision is seen as a triumph for Obama. But Republicans may have dodged a bullet by having the Court uphold the ACA as is. As many as 12 Republicans had put forward different plans to respond to a possible ruling in favor of the plaintiffs. A problem with having 12 plans is that it is effectively equivalent to having zero plans, and Republicans would have set themselves up for a chaotic sorting out of these various options.
The court’s decision now allows the Republicans to engage in the great shifting process known as the presidential primaries, at the end of which Republicans will have a single, standard-bearer to put forward his or her health care alternative. As they go through this process, bashing the ACA will not be enough.
Republicans will have to articulate what kind of health system they want to see, and how that reformed system will help the American people. Specific examples include demonstrating that tort reform will reduce unnecessary tests, that Health Savings Accounts will allow people to save, tax-free, for their own health-care needs, and that purchasing plans across state lines will free people in New York and other mandate-heavy states from the tyranny of expensive plans forced to offer services they do not need.
Then, once the Republicans have a nominee, they will be able to coalesce and not be seen as fighting over different options. This could also silence the endless media query of “Where is the Republican alternative?”
Democrats, on the other hand, may be exultant today, but they face their own challenges as well. They will continue to have to defend the unpopular ACA’s many problematic provisions, and a referendum on the ACA itself is politically more difficult for them than just the question of preserving subsidies for individuals in certain states.
The case may also force Democrats to turn their focus to making badly needed changes to the law that they have avoided thus far in the interest of protecting the overall entity. The law’s critics and supporters alike may end up being surprised that the King vs. Burwell decision created a climate ripe for ACA changes in 2017, regardless of which party wins the White House.