Compromise and Conceit

In the wake of the Republicans’ catastrophic inability to repeal Obamacare, many people have begun to accept that the Patient Protection and Affordable Care Act is the new basis on which the US health system will be built. This means that for the foreseeable future, assuming the Republicans are not able to suddenly develop a competent and coherent health financing agenda, progress towards universal health coverage (UHC) in the USA will depend upon improvements of and reform to the free market system as it is regulated by Obamacare. Obamacare is unusual among developing nation health financing systems for its heavy reliance on private insurers as the fundamental providers of risk pooling, as opposed to most other health financing systems where some form of government insurer provides the overwhelming majority of national health financing. For a lot of critics of Obama and Clinton from the left this is seen as a failure, and a sign that they are neoliberal sellouts: under this view of health financing reform, no market-based system will work and Obama sold out his own supporters when he put forward a plan that did not include single payer or a public option. For conservative policy makers in non-crazy countries – for example the UK[1] or Canada – and also in developing countries moving towards UHC, this offers an opportunity to see whether a free market approach to health financing can deliver the key goals of universal coverage and financial risk protection. The problem for conservative thinkers on health care is that there seems to be very little evidence that free market systems work, and the problem for left wing critics of Obamacare is that there is no evidence single payer could have been delivered in the modern US political environment. So for both far left critics and moderate right wing admirers of Obamacare the obvious question is: can UHC be achieved without a single payer system?

This week’s issue of the Journal of the American Medical Association has published an opinion piece addressing this issue. Entitled Achieving universal health coverage without a single payer: Lessons from 3 countries, it gives a brief overview of how Singapore, Germany and Switzerland have achieved UHC with at least nominally non single-payer systems. It attempts to address some of the key differences between these systems and the USA, and some ways in which the health market in those countries is different. Since JAMA is behind a pay wall, I thought I would give a brief summary of a few of these points.

First the article opens with a clanger, asserting that “Universal coverage is a top priority not only for Democrats but also for President Trump,” which does lead one to wonder how critical the authors are. It then goes on to dismiss summarily one of the key ideas raised by Republicans for making private health coverage more affordable in the US: high risk pools. The intention of a high risk pool is that patients with high cost or pre-existing conditions be offered insurance from a special fund financed by the government, thus removing them from the main private insurance risk pool and enabling insurance companies to reduce the cost of mainstream health insurance products. The problem with this model is that it is enormously expensive and there is no evidence that it works. The article points out that no US government will be able to justify the amount of money required to properly finance high risk pools, and that it probably costs upwards of 8 billion US$ a year to do this. It also notes that – contra Paul Ryan’s assertion that pre-ACA high risk pools worked great – most of the state-based high risk pools in the pre-ACA era were hideously expensive and did not work. The article also points out that a preferred strategy of some left-wing critics of Obamacare – shifting high risk patients onto Medicare – may also not work, since Medicare is already a high risk pool and expanding it by dumping in the highest cost patients will be impossible without increased funding (the article uses the language of sustainability, about which I’m suspicious because of its origins, but it cites well-respected sources on the challenges of continuing to finance Medicare if it is treated as a high risk pool).

So given this, the only way that a private system will be able to achieve universal coverage is if everyone is enrolled in insurance, and insurance is properly financed. The article describes the systems in Singapore, Germany and Switzerland, and how each of them force all their citizens into insurance coverage. For example, about Singapore it says:

Singapore institutes compulsory contributions from employers on behalf of their employees to create medical savings accounts. Employees maintain these accounts for health care expenses such as health and disability insurance premiums, hospitalization, surgery, rehabilitation, end-of-life care, and outpatient services. Those failing to pay their premiums are subject to garnished wages and other legal actions that can force payment of back premiums, penalties, and interest. Unemployed or low-income individuals are eligible for government subsidies that enable them to pay for the premiums.

and it points out that Germans are enrolled automatically in “private” funds that take a guaranteed 7.3% of their income. It’s hard to imagine any such plan being popular in the modern US, where the individual mandate has been subjected to years of withering don’t-tread-on-me type criticism and the idea of paying an income-based premium is terrifying to the GOP’s donors. In Switzerland and Singapore, where the systems do not use tax-based payments, they have government subsidies for (according to the article) up to a quarter of their population. So these systems – which by all accounts are functioning, affordable and tolerated by their citizens – share Obamacare’s key tactics of means-tested subsidies and individual mandates.

The article also makes the point that these systems have a very healthy free market structure, with much more vibrant private markets than the USA:

Germany in 2015, for example, had 124 sickness funds and 42 private health insurance companies, and the average resident of Switzerland in 2011 could choose from 59 health insurers offering coverage, with the 5 largest insurers covering 43% of the population. By comparison, in California, a state with approximately half Germany’s population, only 7 firms covered more than 95% of privately insured individuals in 2011, with the 3 largest firms covering 75%. In Massachusetts, with a population slightly smaller than Switzerland’s, 3 insurance companies enrolled 79% of individuals with private insurance.

I think this might be pushing the comparison a little bit, because many of the “sickness funds” in Germany are likely union-run or industry-based mutual associations with very strict management criteria, non-profit structures and guaranteed membership, and they may be regionally based so not actually directly competing with each other[2]. Also, I’m very confident that all three countries studied have rigorous price regulation and strict government oversight of providers (hospitals and clinics), so that they cannot for example price gouge the insurance provider for an infamous $500 band aid as they can in the USA. It’s much easier for private insurers to compete with each other for market share when they know what the cost of the insurance payout is likely to be, and can be confident that the provider won’t charge them arbitrary amounts, and I suspect that this certainty also removes a whole layer of administrative staff at both provider and insurer, for which the US system is infamous.

Having given an overview of these systems the article draws a simple conclusion and gives a firm recommendation: Obamacare needs tougher enforcement of a more punishing individual mandate. I think this conclusion is only partially correct, missing the role of price regulation and cross-subsidization from general taxation that protects these private markets.  So I think that the article is a little strong in concluding that the USA can definitely achieve universal health coverage without at least, for example, introducing a public option to every market place (or at least the rural areas). But it does make the point that a better regulated insurance market with better subsidies and a much tougher mandate would likely encourage competition, and achieve universal health coverage (or close to it) without driving up costs. It certainly seems that the architects of Obamacare knew this and had a long term plan for its expansion and improvement, and assuming the world survives Kim Jong Il’s birthday this weekend, hopefully the Democrats will be back in power in the USA soon enough to begin taking the next steps along that road. I’m not convinced yet, but it is still possible that Obamacare could show the way to a genuinely private, free market alternative to achieving UHC without single payer. In my view, however, if Obamacare (and human civilization!) does survive the Trump presidency, it is likely to become an increasingly state-regulated and state run system, rather than a robust private market place, because introducing a public option, slowly squeezing out private provides, and then making health insurance premiums fully means-tested and tax-based, is a much more reliable way to make everyone happy.

Still, for genuinely interested conservative policy-makers outside of America (whose “conservatives” have no interest in anything resembling policy), the next few years of Obamacare offers an exciting opportunity to develop new pathways to UHC. Given the complexity of movement towards UHC in some low income countries, and the very limited government finances in many of them, it would be interesting to see whether Obamacare’s roll out, expansion and improvement offers a new and more viable pathway to UHC than those currently on offer. I’m not holding my breath, but it will be interesting to see what lessons we can learn from this new and quite unique approach to one of America’s (and the developing world’s) big remaining problems.

First we have to survive the Trump presidency, though.

fn1: Caveats on the use of “non-crazy” should be inserted here, especially after Brexit

fn2: Interestingly, these sickness funds sound a lot like the non-profit mutuals that Obamacare was supposed to encourage, and which US “conservative” critics of Obamacare constantly sneer at and declare completely unviable.

By now everyone has learned the news that after 17 days of massive effort to try and force it through the legislature in the dead of night the Republicans have given up on their godawful attempt to repeal and replace Obamacare, and have accepted that Obamacare is now the “law of the land.” Having made no effort at all to reach out to Democrats, and after trying to push it through the Senate using a reconciliation process that was explicitly designed (and admitted) to negate Democrat votes, Trump’s first act of contrition for his and Paul Ryan’s failure was to blame the Democrats for not working with him. He went on to repeat the lie that Obamacare is “exploding” (it’s probably not) and openly admitted that he is going to try and hasten its collapse through executive action, following the logic that a program initiated by Democrats that is screwed into the ground by a Republican government will somehow be seen to be the Democrats’ fault.

Trump initiated this process of screwing Obamacare on his first day in office, when he passed a notoriously vague executive order that instructed all responsible departments to not comply with the details of the law to the extent they could legally get away with. A lot of people were duly concerned about this, because there are a lot of aspects of Obamacare that rely on administrative guidance that can be modified by the government in power. So this week’s New England Journal of Medicine has a short editorial by Jost and Lazarus about whether Trump can actually successfully undermine the workings of the act through administrative action alone. The two authors appear to be lawyers, one with a connection to the Constitutional Accountability Center, which supports the cause of “progressive constitutionalism” (which appears to be the idea that the Constitution is a living document whose interpretation can change over time), so presumably their understanding of constitutional law is fairly good.

The authors point out that reaction to Trump’s executive order ranged from fear to snorts of derision, and proceed to show at least one way in which it has failed bigly. One of the big fears expressed in initial response to the order was that the Inland Revenue Service (IRS) would stop collecting taxes it is required to under the “mandate”, the unpopular part of the law which punishes through the tax system anyone who does not purchase insurance. This was probably Trump’s intention in passing the executive order, but it turns out the IRS ignored him: it admitted on February 15th (a month after the order was signed) that it was still collecting mandate taxes, and that it’s sole response to the order has been to shelve a planned crackdown on tax evasion related to the mandate.

The authors point out why this should be unsurprising: government agencies are required to enforce the laws of the land, and there is a long-standing history of jurisprudence forcing them to. They point out that in fact

it is one thing to delay temporarily a legal requirement or to phase in a new law to facilitate adjustments by affected people or entities; it is quite another to refuse outright to enforce a law already in force, with the aim and effect of undermining that law. The Supreme Court has said that courts may step in to correct any such “abdication” of the executive branch’s duty to faithfully execute the law.

Apparently the highest court in the land has built up a body of precedent which requires government agencies to enforce government law, and the authors seem quite confident that if agencies don’t do this, court action would likely force them to. They go further than this, though, considering the hypothetical case in which the IRS bends the definition of “financial hardship” sufficiently to enable anyone affected by the mandate to be exempted from it on the basis of “financial hardship” (apparently some devious Republicans had considered this oily move). They write:

In a critical 2015 Supreme Court case upholding nationwide availability of ACA “premium assistance” tax credits for eligible low-income insurance purchasers, Chief Justice John Roberts held that courts and agencies must interpret and apply individual provisions of a law — indeed, of the ACA in particular — so as to further its overall “legislative plan.” Roberts concluded: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. . . . [W]e must interpret the Act in a way that is consistent with the former, and avoids the latter.”

This might seem quite reasonable to outsiders, but apparently in America the idea that government agencies must act according to the legislative intention of the law of the land is novel and requires clarification from the Supreme Court.

(Also note that this statement was made by justice John Roberts, a conservative judge appointment by Bush Senior, not one of those quisling liberals who think all toilets should be unisex because they’re radical feminists!)

In conclusion the authors are unconvinced that Obamacare can be undone by administrative action alone, though they concede it could become less generous and function less smoothly as a result of meddling. But the Republicans need to be careful here, since administrative overreach in this regard is likely to be punished by the courts, stacking further humiliations on Trump’s already woeful record of mistakes and inactions. Worse still, there is a big and growing split in the Republican movement over Obamacare, and signs that some of the 19 states that resisted the Medicaid expansion are going to cave, further entrenching Obamacare’s role. In particular Kansas, whose economy has been completely wrecked by Republican Crazy Caucus economic ideals, is desperate for money and is very close to taking the Medicaid expansion because balancing the budget will require the extra money. Virginia’s governor is also trying to get that state covered, and activists are using failure to take the expansion and its associated funds as a stick to beat Republicans locally. With Trump’s popularity nosediving, the collapse of the American Health Care Act showing the impossibility of reform through Congress, and many of the areas that voted for Trump most vulnerable to executive action, it is unlikely that vulnerable Republicans are going to want to push this issue at a local level. So the conclusion of this opinion piece in the NEJM is that while Obamacare won’t work as well under Trump, it is unlikely to be seriously damaged. And the longer it continues to function, the harder it will be for Republicans to repeal it or to continue to even talk about it. My guess is that over the next two years – and especially as the mid-term elections approach and it begins to look like a wave election is going to swamp a lot of Republican congress people – we will see more states take the Medicaid expansion, and moderate Republicans begin to talk strong talk about repairing the existing law rather than destroying it. Whether any of them survive the mid-terms will be another question entirely – but if they don’t, they will be replaced by angry Democrats, raising the possibility that after a wave election in 2019 the Dems might be able to force a veto-proof bill across Trump’s desk, requiring him to sign a public option into law.

Regardless of what happens at the next election, though, it appears that there is no easy way for the Republicans to undermine Obamacare enough to destroy it, and it would be increasingly reckless of them to try. Obama’s legacy looks to on increasingly solid ground, and I think it’s now safe to say that he was one of the greatest of the modern presidents. Who would have thought a Kenyan Muslim could go so far!?

The New England Journal of Medicine was released today, with its first assessment of the fallout of the Supreme Court’s decision not to gut Obamacare. Policy analysts writing in the NEJM have been generally supportive of Obamacare, and so of course they’re happy with the result, declaring that it has removed “the largest remaining cloud of judicial uncertainty hanging over the Affordable Care Act” and advocating that now the legislative agenda focus on real improvements to the established law.

The NEJM article also remarks on the importance of assessing the text of the legislation in its full context, not just the strict text of the specific provision. It argues that this is a well-understood principle of Supreme Court jurisprudence, and gives the following example:

An earlier example of this principle comes from the Court’s 2000 decision in FDA v. Brown and Williamson, which King cites or quotes several times. Brown and Williamson held that (before more recent legislation) the Food and Drug Administration (FDA) lacked authority to regulate cigarettes as devices that deliver the drug nicotine. Despite the FDA statute’s broad literal definitions of “drug” and “device,” the Court concluded that “considering the [statute] as a whole, it is clear that Congress intended to exclude tobacco products from the FDA’s jurisdiction.”

This past decision also makes perfect sense to me. While tobacco is clearly a drug, the FDA is not charged with monitoring recreational drugs, and tobacco products should be monitored separately or the FDA’s authority extended to them through an act of Congress.

Interestingly, this is also what the architects and defenders of the King vs. Burwell case thought, back when the FDA v. Brown and Williamson case was decided, and repeatedly since. For example, in a 2007 post the Heritage Foundation cites it as an example of an exception to the trend towards an administrative state. I can’t find any evidence that the legal experts at the Heritage Foundation have decided that this example of the Supreme Court not showing “deference to agencies” must have been wrong due to its willingness to invoke “context,” in which (to quote Scalia) “words have no meaning.” Similarly, the Cato Institute has referred positively to the appeal to context in FDA vs. Brown and Williamson in both its 2006-2007 and 2008-2009 Supreme Court Reviews (see page 201 of the 2006-2007 Review, or a footnote on page 126 of the 2008-2009 Review). The Cato Institute has also issued multiple Amicus Briefs for other court cases where they think that the FDA v. Brown and Williamson case might help to enforce the importance of context. For example, in their Amicus Brief on Texas vs. United States of America (Case 1:14-cv-254) , for example, they argue (citing the case):

The court must “fit, if possible, all parts [of the statute] into an harmonious whole” and use “common sense” to determine the scope of Congress’s delegation to an agency.

Interesting how much their opinion of how the Supreme Court should interpret statutes has changed in just a short time: their amicus brief to that case was submitted in January 2015 but by July 2015 they think that reading the law in its overall context

establishes a precedent that could let any president modify, amend, or suspend any enacted law at his or her whim

What a difference 6 months makes! Apparently now “common sense” is no friend of liberty, and in following the precedent of laws that the Cato Institute relied on heavily (until this year!) the Supreme Court has made it possible for presidents to do anything they want. I guess words really do mean anything these days …

But it’s not just the Cato Institute that appears to have revolutionized its view of the role of context and common sense in the past little while. Four of the majority in King vs. Burwell were dissenters in FDA v Brown and Williamson, the common judge of the two cases being Roberts. Indeed, Scalia agreed fully with Roberts back then that common sense was important, but now appears to think it’s “applesauce” – and the Heritage Institute thinks that “liberals” were shocked then, and applauding now. About, presumably, the same thing.

Where does this leave us? Should there be a common sense test for judges to see if they all agree? Or should we perhaps just roll dice to determine the outcome of Supreme Court decisions where context and common sense are required? Or, perhaps, we could accept that the Supreme Court as it currently works is just an ideological rubber stamp, and the battles in Congress to stack it are way more important than the judges who are on it. It might be of particular value to Republicans to get some bipartisan agreement on this quickly: they’re going to lose the 2016 election after Donald Trump eats a puppy on live TV, and Hilary Clinton is going to get the chance to appoint a couple more judges, which in combination with Obama’s legacy will mean that the nation will be at the mercy of a liberal majority definition of “common sense” for the next 20 years (or 40, if Clinton can find a few young and talented female judges to nominate). Perhaps a move to introduce fixed term limits, and a more objective and less partisan nomination process, might be a good idea. How about 12 year term limits, and nominees for replacement have to be recommended by a consensus of the Supreme Court Bench itself? That would iron out both the kinks in the nomination process and the risk that a single president could dominate the court for years after he or she has gone to the Great Presidential Library in the Sky – a domination, we should note, that will grow over time as life expectancies do.

Of course it’s not going to happen, so Americans will continue to be subject to the tyranny of a system that is clearly broken, invented by a bunch of short-sighted slave-owners a couple of hundred years ago and completely unsuited to the modern world, and now used as a battleground for political retribution rather than solid constitutional decision. Still, at least the USA is on the way to universal health coverage!

Today the Supreme Court found in favour of Obamacare, as I had predicted,and the wheels fell off the Republican clowncar. This is great news for America, as it now means that the law has overcome most of its significant Supreme Court challenges and become settled fact, and the 10 million people who are benefiting from it can continue to have some faith that they can get the healthcare they need. But this is a disaster for the Republican presidential campaign, coming as it does before the primaries, because it means that all 10 riders in the clowncar will now have to rampage through the primaries promising to repeal Obamacare. Whoever wins that hilarious circus of stupidity is then going to have to go to the election with a record of promising to repeal the law – which is going to really worry 10 million people who depend on it, and force them all to vote Democrat.

My guess is it’s going to be a Clinton-Bush battle, pitting one of America’s most popular politicians (Clinton), with a record of rational policy-making in healthcare, supported by the best get-out-the-vote campaign team in American history, against a man who has to hide his last name and is starting the election with a possible 10 million vote deficit. Even putting aside the deep, cutting irony of a democracy holding an election campaign between the scions of two dynasties[1], Bush trying to worm and squirm his way out of promises to repeal this law is going to be very entertaining. Furthermore, some of the states where people are benefiting most from the Medicaid expansion and federal exchanges are conservative or swing states like Alabama, and those 10 million voters are likely to be disproportionately clustered in them.

The alternative for Republicans is to – don’t laugh – come up with an alternative health care plan, something they have signally failed to do for the past 8 years, despite repeated complaints about how terrible and ineffective and bad and fascist Obamacare is. Sure, they have a few op-eds on the matter but they haven’t done anything resembling serious policy development and they’re already in the primary stage. Contrary to journalistic silliness in the USA that the Republicans are “tripping over themselves” to make new laws (I kid you not, a journalist from Vox actually wrote that!) the Republicans are not in any way serious about health policy, and no plan they come up with will be anything except terrible, which is why they aren’t trying. Their “plan” for America’s uninsured is to leave them uninsured.

So what are the Republicans going to do? They seriously threaten their election chances with promises of repeal, but they will look like the idiots and fools they are if they release a plan (can you imagine Trump’s healthcare plan!?) If this decision happened after the primaries maybe they’d be okay – refuse to be drawn on the issue during the primaries because “there’s a court case” and then run for election with the promise of a plan (isn’t that what Obama did?) But it’s hard to win with the promise of a plan when you’ve already made it clear that you’re going to tear away the health insurance of 10 million people. Better the devil you know, and all that. And now any plan they do release will be compared with Obamacare – will it insure more people? Will it cost more? Will it cause millions to lose their insurance? Why should we risk it when we have a plan that is covering more and more people every day!?

I think the Republicans were assuming that their pet conservatives on the Supreme Court would deliver them Obamacare chaos, and they could then coast home to win the election on the basis that Obama had messed everything up, with vague promises of a plan that “serious” political journalists would pretend to believe. But Roberts was appointed to the Supreme Court by George W Bush, proponent of “compassionate conservatism,” and is probably out of step with the modern Republican movement (I have already read people at patterico claiming he is a closet homosexual who is being blackmailed by Obama![2]) They probably shouldn’t have bet their entire political strategy on the opinions of a couple of old men who might, actually, take their role in politics seriously. But then maybe the Republican political movement has forgotten what it means to take a political role seriously, since they’re mostly just grifters, failure and con artists, and couldn’t imagine that those old men might see themselves as bigger than their party allegiances.

Two minor side points of this decision are that 1) hopefully US politics will now begin to back away from the ideology of repeal-through-the-courts, which is fundamentally undemocratic (if you don’t like a law, repeal it through politics not the courts!) and 2) I think it’s well past time I retired the use of the word “conservative” when talking about the American right. There’s nothing about their politics, their attitude towards their institutions, or their public behavior that is conservative – they’re radical. The word “conservative” is not very useful in politics generally, but at least in Australia and the UK it refers to two broad streams of political thought that we all understand and (with a few notable exceptions like Tony Abbott) can accept are broadly trying to be responsible and politically rational. It’s no more or less meaningful than “radical” or “liberal” or “left-wing” in those contexts, though all these words are only of limited use. But in the American context it’s just meaningless. The Democrats are the conservatives of American politics and the other side is, broadly speaking, a convocation of clowns and radicals. So what’s an alternative word for the broad spectrum of anti-Democrat politics in the USA that is still meaningful to readers, but not an insult to actual conservatives? I am thinking “right wing” but is there something more evocative? Radical Constitutionalists? Clownsiders? The Idiot Wing? The Grifter Party?

The primary season hasn’t started properly yet and already the clowncar is overcrowded and looking pretty wobbly. The next couple of months are going to be simultaneously hilarious and deeply depressing. Strap yourselves in, folks, it’s going to be a wild ride …

—

fn1: Will Chelsea Clinton run in future?

fn2: This is interesting, right here. When the High Court of Australia ruled in favour of Aboriginal people in the Mabo dispute, there was a lot of angst but I don’t remember anyone saying that court members were being blackmailed by the government or demanding an armed insurrection (as is happening in comments at Redstate). It really seems to me like the fragmentation of US politics is complete, and there is no more common ground to be found there.

Rumour has it that the US Supreme Court will hand down its decision on Obamacare this month, with potentially far-reaching consequences for the health care system in the USA. Various supporters of Obamacare are either optimistic about the damage a decision to gut Obamacare will cause the Republicans, or pessimistic depending on how cynical they are about Republican motives. My personal opinion of Obamacare is that it is a vast improvement on the status quo, it is working to achieve its stated goals, and though it could be a lot better it is obviously an important reform to the health policy landscape in the USA that needs to be retained, so a decision to gut it by the Supreme Court would be a disaster for America. I also get the impression that a decision to gut Obamacare would have long-term negative consequences for the general political environment in the USA, since it sets a precedent in which a minor technical vagueness in a statute can be used to undo the statute even when everyone involved in framing, writing, debating, opposing and passing the statute was clearly aware of the plain meaning that the erroneous text supposedly makes unclear. This basically will lead to a long-term shift away from open political debate over policy to a process of Supreme Court gotchas, in which the opposition party finds some tiny detail in very large statutes that appears to be wrong, and uses the Supreme Court to smash them, and that doesn’t seem like a good governance outcome.

My guess [I won’t honour it with the word “prediction”] is that the Supreme Court will reject the plaintiffs’ case and keep Obamacare un-gutted, which leads to some interesting questions about the political situation as the presidential election nears:

• Will Republican states start to break with the national leadership and the tea party, and start setting up exchanges and taking the Medicaid expansions? What implications will this have for national Republican policy?
• Will the Republicans finally give up their opposition to this bill, accept that Obamacare is the law of the land, and start thinking about ways to contribute positively to health care policy?
• If they don’t, will the Republicans continue to find sneaky administrative and states’ rights workarounds, or will they try to fight openly on the politics?
• If they choose to fight openly on the politics, will they actually go to the 2016 presidential election on an explicit platform of repealing the law and taking away 6 million people’s insurance?
• How will that work out for them?

My guess is that a failure to convince the Supreme Court that a single misplaced pronoun on page 666 is the devil in the detail will leave the Republicans politically stuffed. They have made their opposition to Obamacare very clear but they don’t have the spine to make an explicit declaration of intention to repeal, and they don’t have the policy knowhow to craft an alternative. If they did, they would be running that and getting lots of help from their right-wing media friends, rather than pulling shameless stunts in the Supreme Court.

But will a Supreme Court decision in favour of the plaintiffs, which basically destroys Obamacare, be a political disaster for them? There are many questions to ask about the fallout for the Republicans in that case:

• Will the media spend months talking about the Republicans took away 6 million insurance policies? There was wall-to-wall coverage for months of Obama’s failed promise that noone would lose their plan – will we get the same coverage for the Republicans if they achieve exactly that outcome through a deliberate challenge?
• Will the media blame the Supreme Court, the people who launched the case, the people who funded it, the Republicans who supported it, the people who drafted and passed the law, or Obama?
• Will the Republicans bother to propose any solutions to the problems this decision would create, or will they literally just shrug and say it’s not their problem, as some expect them to?
• Will the Republicans then bother to go to the election with any alternative healthcare plan? They clearly don’t have one and haven’t been putting any effort into trying to prepare one, so it seems unlikely.
• Is there anything Obama can do in the current situation to fix the problem, even temporarily, through administrative means or will he have to go back to congress with a new bill?
• Is there any way that the Republicans can support any attempt to fix the problem, or are they actually seriously planning to remove 6 million people’s health insurance and then just stand back and do a golf clap?

My guess for answers to these questions is in order no, Obama, no, no, no and no. The Republicans actually believe that the situation before Obamacare was a better policy outcome, and they want to go back to that. Even if they thought otherwise, they don’t have the ability to develop nuanced policy on anything as boring and non-warlike as healthcare, so they can’t provide any alternatives anyway. Legislatively they are a joke, at which nobody is laughing.

My guess is that the next election is going to be a showdown between Jeb Bush and Hilary Clinton, which is itself such a deep and shocking indictment of American “democracy” that it’s hard not to laugh. The Republicans are going to go that election forced to make some really outrageous statements about their health policy plans, already dragging the deadweight of their “latino problem,” and after a long and bruising primary campaign in which they embarrass themselves repeatedly. Hilary Clinton is very popular and will remain popular, and it’s going to be really really hard for the Republicans to beat her. If they lose the Supreme Court case, they’re going to be fighting against her against a backdrop of this threat to remove health insurance from 6 million people. Do they have any chance of winning in 2016 if Obamacare is still in place? And how much damage can they do to the country if they do win?

These are hard times to be poor in America …