Well, I think we are going to be stuck with this benighted law, thanks to a cowardly judge who realized it was unconstitutional under the commerce clause but wanted to save it anyway.

Going forward, I think opponents need to pursue two tracks. First, continued implacable and unremitting opposition through every legal method: In the election, to be sure.  Suing to enjoin current autocratic abuses of power (with more to come, no doubt)—as in the Free Birth Control Rule as it applies to Catholic institutions. (Will Roberts say that violates the constitution! But, it’s okay. It’s really just a tax?) Defunding the cost-benefit boards and the bureaucracy’s ability to promulgate and enforce regulations would also achieve much.

I also think the states could steal a march on the Left and simply refuse to comply with Obamacare, along the same lines as sanctuary cities defy immigration law.  Soft power, baby!  I mean, since the rule of law is so meaningless to this crowd, that can be a two-way street, right?  Wrong. Principles matter more than by-any-means-necessary outcomes.  The left may care little for the rule of law, but if none of us do, liberty will be destroyed.

Second, amend the law to make it less objectionable: If we are stuck with Obamacare—and I think that at least to some degree we are—we can make it less objectionable. For example, the Independent Payment Advisory Board must be made truly “advisory” rather than an unaccountable power unto itself. We also must ensure that cost-benefit boards have no power to ration.   (More on how to defang IPAB later.)

Astonishingly enough, Joe Klein has some good ideas in this regard.  From, “And Now, How to Improve Obamacare:”

Enact medical-malpractice reform...An incalculable, perhaps huge, cause of wasteful medical spending is the extra tests and -procedures that doctors perform to protect themselves from lawsuits. It should still be possible to sue a doctor who has been grossly negligent, but the standards for such suits should be tightened mightily.

I believe in torts as a market remedy for a market (still, sort of) system, so “grossly negligent” is too high a bar.  This should be a matter of state law, not federal, so I don’t know how—or if—it could be made uniform.  But the John Edwardses of the world must be throttled down.
Make it a real market. Only dedicated policy wonks know what the health care exchanges—the central market mechanism in the act—actually do. Perhaps we should rename them health care supermarkets. Their purpose is to lower premiums by giving individuals and small employers the same market clout that General Motors and Time Warner have. For these supermarkets to actually work, though, they need to offer a range of competitive products...We should scrap the state exchanges and make it one big national Walmart of health. Republicans should love this. It’s all about more competitive markets.

Obama will never go along.  He is hostile toward free enterprise and wants his ”singular achievement” to become single payer eventually because that is where the real power is and offers the best way to equalize outcomes (and, to be fair, thinks the most good can be done to help the most people). Indeed, something like this might have been fashioned from the get-go had O been willing to work with Republicans instead of simply dictating to them.  But, it would be a good Romney proposal for with what to “replace” Obamacare should he be elected.

Klein also wants to see doctors on salary rather than paid by patients/government/insurance companies.  Bad idea. People would think—rightly or wrongly—that their physician’s loyalty was to their bosses rather than their patients—as sometimes now happens with hospitalists and doctors who work for certain HMOs.  Moreover, that could also lead to doctor’s unions, a terrible idea. Indeed, in the UK now, there is a threatened doctors’ strike.

Articles by Wesley J. Smith

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