An explainer: Why it’s so hard to detangle ObamaCare

Repealing and replacing ObamaCare, or anything in-between is not an on/off light switch. Instead, any change in the light requires an entire deconstruction and reconstruction of the entire house. To make it worse there are no blueprints. The house has to be entirely reverse engineered as we’re taking it apart.

The 2,700-page health care law was ‘compexified’ (handy new word) to make defunding and dismantlement difficult. Original estimates reported that it created more than 159 new government agencies but it is impossible to get a reliable number due to the complexity of the law. The law also attempts to bypass the normal appropriations process, another feature that makes defunding more difficult. By making advance appropriations for tens of billions of dollars up to and beyond the year 2020, these provisions of ObamaCare seek to take spending decisions away from the current Congress and from future Congresses and Presidents.

Any strategy to repeal Obamacare will require lawmakers to focus on provisions that form the foundation of the new law’s architecture, so that eliminating these would topple major portions of it. Such pillar provisions, among others, include:

  • The individual and employer mandates
  • The health insurance exchange
  • The evisceration of Medicare Advantage
  • The requirement that states dramatically expand their Medicaid programs regardless of the expense and
  • The authority granted to the Office of Personnel Management to create a prototype “public option” of a government-run insurance company
  • Energy spent on dismantling lesser provisions may yield some positive peripheral benefits but will not undercut the pillars of Obamacare.

One provision is the requirement that businesses file a “1099” form with the IRS every year, detailing their financial transactions with vendors. Although this provision creates an enormous and unwarranted burden on businesses and if repealed would not strike at the heart of Obamacare.

Defunding

Congress is not required to fund Obamacare or the new programs that it spawned. As with every other federal program, the level of funding can be adjusted — even zeroed out — by the current Congress. Special provisions in the health care law will complicate the process, but the propriety of defunding as a rightful tool is unquestionable.

Congress’s standard protocol involves a two-stage process.

  1. Authorizing legislation is passed, creating a program or an agency. Then, separately…
  2. The appropriations process determines how much funding, if any, will be allocated to that purpose, which must compete against other programs that also seek funding.

If a repeal is blocked, defunding is the obvious next approach. In the case of Obamacare, that is tricky because the law is designed to be difficult to uproot. It is legislatively possible to enact a single provision that no public funds shall be used to implement any portion of this health care law. But, as is playing out right now, it is difficult, if not impossible, to convince the Senate or President to approve such a sweeping provision.

A series of defunding restrictions can be aimed at specific provisions — an approach compounded by the vast number of provisions in the law.

It may be impossible to identify each specific item that should be defunded because nobody knows just how many new bureaucracies are being created under the new law. The Congressional Research Service (CRS) reported that: “The precise number of new entities that will ultimately be created pursuant to PPACA [Obamacare] is currently unknowable, for the number of entities created by some sections is contingent upon other factors, and some new entities may satisfy more than one requirement in the legislation.”

Obamacare Tries to Strip Congress of Power to Defund

The law does this by including billions of dollars in actual appropriations of funds for future years.

Obamacare contains two types of budgetary provisions in relation to the new entities created by or through the legislation. Several of the provisions directly provide funding (“direct spending”), bypassing the annual appropriations process, through techniques such as multi-year or permanent appropriations. Some of the provisions also impose other requirements or conditions.

Even if the rest of government were shut down, Obamacare would remain active.

Good luck with turning that light on…or off!