Delaying From Beind

Delaying From Behind

Bowing to the inevitable, Democrats think the unthinkable.

By

James Taranto

October 25, 2013

Our younger readers--those who were born yesterday--may not remember when delaying ObamaCare was considered a wild idea, its exponents limited to crazy right-wing terrorists. Times have certainly changed since--oh, the beginning of this week.

Obama and Shaheen in 2010. Associated Press

"Democrats facing difficult reelection campaigns in 2014--Sens. Mark Pryor of Arkansas, Mary Landrieu of Louisiana, Kay Hagan of North Carolina and Mark Begich of Alaska--came out on Wednesday evening in support of extending the open enrollment period of the law, as first proposed by Sen. Jeanne Shaheen of New Hampshire, who is also up for reelection in 2014," Politico reports. All these senators were elected or re-elected in 2008, when Barack Obama topped the ticket.
Sen. Joe Manchin of West Virginia isn't up for re-election until 2018, but he is proposing a bill "to delay for a year the individual mandate's enforcement mechanism--a $95 fine for anyone who doesn't enroll in health insurance by March 31." (That's an incomplete description, for reasons we'll get to below.)
The Obama administration itself "confirmed to The Washington Post a little bit ago that it is indeed tweaking the way the individual mandate works," writes Sarah Kliff of the Post's Wonkblog. This change amounts to a six-week delay: People who've enrolled in a health-insurance plan by March 31 won't be subject to the mandate tax. The previous requirement was that one had to be covered by March 31, which as a practical matter meant the deadline for enrollment was Feb. 15.
"It's not quite right to describe this as a delay of the individual mandate, or an extension of open enrollment," Kliff writes. She's correct on the latter point--enrollment still ends March 31--but mistaken on the former. Because of Chief Justice John Roberts's convoluted construction of the law, the "mandate" is nothing more than the tax on noncompliance--a tax that will now be imposed six weeks later than had been the administration's intent.
A six-week delay, or even a year's delay, isn't much. But it is something, which makes it a significant change from the Democrats' previous position, which was to insist that no concessions were acceptable. Of course it's easier to hold out when the party demanding concessions is a political adversary as opposed to reality itself.
But it's also easy to lose sight of reality when focused on political adversity. A quote in today's New York Times illustrates that point beautifully. It seems that in the days immediately before HealthCare.gov's disastrous launch, "top White House officials were excitedly briefing lawmakers, reporters, Capitol Hill staff members and Washington pundits" about the "shiny new Web site that was elegantly designed, simple to use and ready."
Even now, the Times reports, "some Democrats said that, given the Republican assault on the measure, the White House was right to deliver upbeat presentations promoting it":

"To downplay expectations would have fed into the Republican narrative," said Jim Manley, a former top aide to Senator Harry Reid of Nevada, the Democratic leader, who attended a session in the Roosevelt Room of the White House with other allies of the administration.

"The White House was right" is the Times reporter's phrase, so it's possible Manley meant his comment as an explanation rather than a justification. In any case, there is no sense in which the White House could have been "right" to put on deceptive presentations. The understandable desire to undercut a political adversary's "narrative" does not relieve one of the moral obligation to be truthful. And even if you think it does--if you imagine the Republicans to be so evil that deception is morally justified in the service of defeating them--the deceptions here were bound to be quickly and embarrassingly revealed. They were self-defeating.
So now Democrats--and even the administration itself, ever so incrementally, are embracing the idea of saving ObamaCare by delaying the individual mandate. But that is unlikely to be sufficient, and could even make matters worse. Bloomberg's Megan McArdle argues that it "solves a problem for individuals but destabilizes the insurance market as a whole":

If it's a tedious pain to buy insurance, the only thing standing between us and a death spiral is the fairly hefty penalty that folks who don't buy it may have to pay. Delaying the individual mandate makes the problems created by the malfunctioning exchanges worse--which, I reiterate, will ultimately mean more uninsured people, not fewer. This is a terrible idea, which is being seized upon by the administration and Republicans not because it makes any sense, but because it is politically expedient.

The individual mandate tax can indeed be a "fairly hefty penalty." It isn't just $95, as that Politico piece asserted, but $95 or 1% of income, whichever is higher. (Both the minimum and the rate are set to rise, reaching $695 or 2.5% in 2016.) McArdle concludes: "If we're going to delay, then we need to delay the whole thing--guaranteed issue, community rating and so forth. Otherwise, we're just asking for, well, a quagmire." Hey, Megan, your lips to Obama's ears.
Whether not delaying the mandate will be sufficient to avert a quagmire is a different question, and color us skeptical on that one. For one thing, for political reasons the authors of the ObamaCare law made the mandate less than fully enforceable, as Avik Roy explained in an August Forbes piece:

Section 1501(g)(2) of the Affordable Care Act specifies that the IRS cannot subject taxpayers to "any criminal prosecution or penalty" for refusing to pay the mandate fine. Also, in contrast to normal tax levies, the IRS cannot "file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section."

Basically, the only thing the IRS can do to make you pay the mandate fine is to take it out of your withholding, or withhold it from your tax refund, if you're due one. So if you don't participate in the withholding process, the IRS has no way to collect the mandate fine.

To put it another way, if you owe the IRS money when you file your return, you can't be penalized if you decline to pay any amount of the debt up to the mandate tax. How much of an obstacle this is isn't clear. Presumably the IRS will develop countermeasures to increase subsequent years' withholding when a taxpayer avoids the mandate. And perhaps organizing one's finances so as to avoid the mandate will be too complicated for most taxpayers. Then again, it's not as if getting insurance from HealthCare.gov is simple.
And therein lies perhaps a greater challenge to the mandate's viability. If people can't buy insurance because the government failed to fulfill its promise of making it available, taxing them for lacking insurance violates basic fairness. If the ObamaCare website is nonfunctional in another month, calls to delay the mandate will be much harder to resist--and, as we've seen, they already aren't that easy to resist.
Further, as we've written, it seems to us there's a legal case to be made that the tax is, or soon will be, unconstitutional. A law that taxes individuals for failing to purchase an unavailable product fails even the relatively undemanding "rational basis" test.
How likely is it that the ObamaCare website will be fixed expeditiously? We know that the administration is inclined not to "downplay expectations" for fear of "feeding the Republican narrative." Keep that in mind as you read this report from the Hill:

Federal health officials said Thursday that three-and-a-half years was not enough time to assemble and fully test ObamaCare's online enrollment portal.

On a call with reporters, Centers for Medicare and Medicaid Services (CMS) spokeswoman Julie Bataille said that a "compressed timeframe" precluded sufficient end-to-end testing of the sign-up system.

Time pressure also led the CMS to abandon a website feature allowing consumers to comparison shop without creating an account, Bataille said.

If three and a half years are insufficient, why should we think three and two-thirds years--the initial period plus October and November--will be sufficient? In a Politico column, Rich Lowry notes that Health and Human Services Secretary Kathleen Sebelius "told The Wall Street Journal the website ideally needed five years of construction and one year of testing and instead had only two years of construction and almost no testing":

That means with the proper development time, HealthCare.gov would have had a flawless launch . . . on Oct 1, 2017. Needless to say, had Sen. Ted Cruz (R-Texas) suggested a four-year delay in Obamacare as his fallback in the defunding fight, he would have been scorned as an unbending fanatic, although he just might have been giving Sebelius the breathing room she needed.

As recently as Monday, the president himself was delivering a "narrative" about the wonders of ObamaCare. Now he's delaying from behind, bowing ever so slightly to reality. But the gap between the administration's narrative has continued to widen. It will keep doing so absent a sudden, and in our view wholly unexpected, display of competence.
The Buck Stops Over There
Donald Berwick, an architect of ObamaCare, is running for governor of Massachusetts. What does this "health guru"--head of CMS from July 2010 through December 2011--have to say about the debacle? Don't look at him:

Berwick is at a loss to explain the failures. He said he was not involved in crucial strategy and contracting decisions made during his tenure that dictated how his agency, the Centers for Medicare and Medicaid Services, would build the computer network. . . .

Berwick said in an interview this week that he did not see launching the marketplace computer network as a major part of his role as chief of the agency.

"Those were staff level functions," Berwick said. "My leadership investment was in the vision of CMS as a major force of improvement of care for the nation."

Berwick said he does not remember any discussion, for instance, of a decision that is the focus of intense second-guessing in Congress: having agency administrators oversee development of the online marketplace, rather than hiring an outside management company with stronger technical expertise to coordinate the complex project.

"It certainly wasn't me who made the decision. It must have been lower down in the organization. I don't recall," Berwick said.

Yet Berwick says "the decision to keep it a CMS function makes sense," because "it's a highly competent agency accustomed to managing data and data systems."
You mean it could have been worse?
Sure, We're Down 51-0, but It's Early in the Game
"Health Secretary Kathleen Sebelius is again pushing back against calls for her resignation over the rocky rollout of the Obamacare website, saying 'we are determined to make it perfect.' . . . People are going through every day,' she said. 'It's better today than it was on October 1, but it's a long way from perfect and we are determined to have it be perfect. But what we are is three weeks into a 26-week open-enrollment period, in football terminology early in the first quarter.' "--CNN.com, Oct. 24
Other Than That, the Story Was Accurate
"An Oct. 14 Style article about access to the prison camp for terrorism suspects at the U.S. naval base at Guantanamo Bay, Cuba, incorrectly referred to Navy Capt. Robert Durand as 'thickset.' He should have been described as muscular."--Washington Post, Oct. 23