In his first book on the Affordable Care Act, “Unprecedented: The Constitutional Challenge to Obamacare,” Josh Blackman offered an insider’s account of the legal battle that resulted in a controversial Supreme Court decision upholding the health care overhaul.
The Houston College of Law professor in September published a follow-up, “Unraveled: Obamacare, Religious Liberty, and Executive Power,” which argues that the health system birthed by the law is unsustainable.
“The people who designed it didn’t expect this to be a permanent solution. But what has been frankly stunning is that in less than three years, all the premises, all the assumptions, all the theories have collapsed.”
Blackman recently sat down with LifeZette and discussed why the law is failing so quickly, the legal battles that remain, and why he thinks the result ultimately will be more government intervention, not less. There is one major legal challenge still pending: Little Sisters of the Poor Home for the Aged v. Burwell. A Supreme Court robbed of its deciding vote by the death of Antonin Scalia could not settle the issue — whether the government can force the Catholic nuns to cover contraception as part of their health insurance plan — putting the case in an open-ended limbo.
Here are some excerpts from the interview with Blackman:
LifeZette: What is the most significant thing about Obamacare that most people don’t know?
Blackman: How quickly it’s falling apart. The people who designed it didn’t expect this to be a permanent solution. But what has been frankly stunning is that in less than three years, all the premises, all the assumptions, all the theories have collapsed. And it’s been, frankly, unbelievable how quickly the law has unraveled.
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LifeZette: You say that Obamacare is like a cockroach or Keith Richards. What do you mean by that?
Blackman: It can’t be defunded [as Sen. Ted Cruz (R-Texas) attempted with a partial government shutdown in 2013]. The only way to get rid of it is to repeal it in its entirety. So all these efforts to defund this, defund that — it won’t work. You actually have to repeal the bill.
LifeZette: And that’s because of the way it was written, as a “permanent appropriation”?
Blackman: That’s exactly right. It’s a permanent appropriation that can’t be defunded. That’s why the entire defund strategy would go nowhere quickly.
LifeZette: Had President Obama not told his famous “Lie of the Year” as declared by PolitiFact in 2013, you’re convinced the law never would have passed?
Blackman: No. No. If people thought that they were going to lose their insurance, this bill could not have passed in its current form. It would be simply impossible.
LifeZette: What do you think the chances are that we’re going to see significant changes in the law made by Congress, given the inertia and how difficult it always is to change the status quo?
Blackman: It’s a very sad situation, because half the country wants to repeal the bill, and the other half the county wants to make it single-payer. So there’s not much of a middle ground. So, what’s frankly going to happen is the president continues to push along, push along through executive action — executive orders — to modify the law. But you’re unlikely going to get a majority of Congress to bring about any meaningful change.
LifeZette: Which means what, exactly?
Blackman: Things are going to fall apart. And once it falls apart, you’re going to need a government option to compete. Health insurance will become unaffordable for most people. And you’re going to need some sort of government bailout to help them. And that’s, I think, what supporters wanted all along.
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LifeZette: So what are the chances of that, then, that this will just build momentum for full-scale socialized medicine?
Blackman: In five or 10 years, that’s where we’re headed. The second Obama passed this thing in 2009, on a straight party-line vote … that set in motion this new entitlement. And you don’t take away entitlements. If people want heath care, the government’s gonna have to provide it.
LifeZette: So you don’t have a lot of confidence that we’ll be able to sort of snap back and introduce more of a market-based solution?
Blackman: Anything that takes health care away from one person is a nonstarter. It’s like a third rail, right? Like Social Security. You don’t get rid of entitlements. They don’t die.
LifeZette: We’ve obviously seen a lot of these cases come back and forth to the Supreme Court in the early years. Other than the pending case still in the Little Sisters case, have we seen the last of that?
Blackman: No, it’s not over. Indeed, we still have a case involving the House of Representatives. They’ve challenged a payment of funds. Obamacare gives certain types of subsidies to insurance companies. Some of these are permanent appropriations. Some are temporary appropriations. In a case where there’s been a temporary appropriation, Obama’s said, “No, no, we don’t want this, because Congress is going to defund it. We’ve got to have a permanent appropriation.” So they’re sending money to insurance companies, bailing them out, without any appropriation. That’s illegal. And the House of Representatives filed suit, and they actually won in the trial court. It’s on appeal right now. They’re unlikely to win up there. But that will go to the Supreme Court eventually. So there’s still going to be many Obamacare cases that go all the way up.
LifeZette: To you, all of the problems that we’re seeing with the law and its implementation were predictable. I guess, indeed, you did predict it. But I think you said you were surprised that it’s unraveled as quickly as it has?
Blackman: Yeah, I wrote a piece in National Review about two weeks called “Obamacare’s unraveling ahead of schedule.” I didn’t expect it to fall apart this quick. I thought it would take, maybe, a decade. We’re [at] Year 3. This thing’s falling apart. The wheels are coming off.