RobertsCare: How the chief justice redefined the Affordable Care Act just for the GOP

Chief Justice John Roberts. (AP)

ObamaCare is dead. What we have now is RobertsCare. And if you’re a Republican, and if you’ll take the time to read Chief Justice John Roberts’ majority decisions on NIFB v Sebelius in 2012 and on King v Burwell last week, you’ll know he just gave you a perfectly wrapped Christmas gift in June.

It’s time to stop complaining about the Affordable Care Act and talking about repealing it, because in siding with the liberal wing of the Supreme Court, the chief justice has effectively rewritten the law. And the rewrite is just what the GOP needed, because it puts the future of RobertsCare squarely in the hands of the Republicans who control Congress.

The GOP owes Roberts a thank-you note. Here’s why:

*  Three years ago, in his first opinion, Roberts redefined the ACA’s individual mandate as a tax – something the Obama administration had adamantly maintained it wasn’t, because the bill never would have made it through Congress if it had. But by redefining the mandate as a tax, Roberts left open the opportunity for Congress to decide how to apply it, repeal it or change how it is calculated. That’s because those decisions are within the jurisdiction of the legislative branch of our government, and both branches of our legislative branch are controlled by the GOP.

It’s time to stop complaining about the Affordable Care Act and talking about repealing it, because in siding with the liberal wing of the Supreme Court, the chief justice has effectively rewritten the law.

*  Also in the 2012 ruling, Roberts ruled that it was unconstitutional to compel the states to expand their Medicaid programs in order to continue to receive funding for them, as the ACA had intended. By making expansion optional, Roberts gave governors the flexibility to decide the best ways to create solvent Medicaid programs that didn’t bankrupt their states. Now, as baby boomers increasingly become senior citizens, the risk pools for Medicaid are increasing – just as they are for Medicare – and the funds to pay for them just aren’t there. Fixing that, too, falls to the legislative branch of government.

*  Last Thursday, Roberts ruled that federal subsidies for health insurance must be made available not only to people in the states that created their own health exchanges, but also to people who signed up for the federal exchange in states that didn’t create them. The Republicans were up in arms, but they should have been grateful – because now Congress can take a hard look at the funding for the subsidies to ensure that the program is solvent. If the subsidies had been struck down instead, the Republicans in Congress wouldn’t have been able to maneuver a quick fix for them. More than 6 million people might have been suddenly stripped of their health insurance, and the Republican governors in their states would have shouldered the blame.

That’s why what Roberts has done is brilliant. He’s put three key components of the ACA – a tax (not an “individual mandate”) on people who don’t buy insurance; the ability of the states to regulate their Medicaid programs; and the funding of subsidies – back into the hands of a Republican Congress. It’s up to the Republicans in the House and Senate – not the Democrat in the White House – to look at the funding of these three components and to determine how to make RobertsCare – not ObamaCare – economically sustainable. The math still doesn’t add up, so here’s the chance to play the hero.

Our elected representatives need to look specifically at:

*  The enforceability of the tax and the fact that the penalties kick in full-force next year. Congress has to put in place not only the measures by which the IRS will enforce the tax, but also a way to ensure that the penalties and the subsidies are adequately calculated for people’s incomes. This problem still needs to be fixed for the program to be solvent.

*  Whether expanded state Medicaid programs are actually meeting the needs of individuals, or if the federal government is just writing blank checks to support programs that will never become solvent. This will require establishing ways to measure Medicaid performance in every state.

*  Keeping insurance costs under control, so that subsidies remain reasonable. If the insurance companies continue to dictate market pricing, as they already are in terms of reducing competition and buying up provider systems, it will be increasingly challenging to give people the choices they need, even with subsidies.

These challenges are squarely in the hands of the Republicans in Congress, not the Obama White House. We’re dealing with RobertsCare now, and it’s a good thing. Let’s get to work and make it work.