In 2009, the president sold Obamacare to the American people on three promises made in response to concerns about health care reform. First, people were worried that they would lose their health insurance policies; the president promised that they could keep their policies. Second, people were worried that Obamacare would raise premiums; the president promised that premiums of those with insurance would go down. Third, people did not want a tax increase; the president promised that there would be no new taxes under Obamacare.
These three promises were instrumental in selling the law to Americans, many of whom voted for the president. Now, we are coming to realize that these promises have all been broken. And most troubling, the President knew these were promises that would not be kept. Only now are we beginning to realize the full impact of Obamacare, and it differs substantially from how the law was sold. The legitimacy of the Affordable Care Act in the marketplace of ideas is more in question than ever.
A leading concern of Americans for any healthcare reform was a fear of losing their policy and doctors. As leading Obamacare booster Ezra Klein noted in a 2008 NetRoots talk, one of the key reasons First Lady Clinton’s health care reform failed was because people did not want to change their health insurance. Remember the “Harry and Louise” commercials? Klein admitted, quite candidly, that in order to reform the health care system, people would have to leave their inefficient plans, and move onto something new. This was widely understood among supporters of the plan. In fact, the Obama Administration knew that millions, and perhaps as many as 93 million Americans would be unable to keep their policies.
Yet, to sell the law, and avoid the mistakes Clinton made before him, the president repeated over and over and over again the refrain that “if you like your insurance, you can keep your insurance.” This was impossible. The Wall Street Journal reports that internally, the Administration debated whether to explain to the American people “the nuances” of the promise. They decided against it, as those who were concerned about the “breadth” of this promise were “overruled.”
An administration official attempted to spin it. “You try to talk about health care in broad, intelligible points that cut through, and you inevitably lose some accuracy when you do that.” This wasn’t simply losing accuracy. It was lying. As millions of Americans are being kicked off their plans — theAdministration knew this would happen — this promise has fallen flat. The Washington Post gave Obama’s initial whopper four Pinocchios and PolitiFact said his pants were on fire.
The second promise made in selling Obamacare was that the reform would lower health insurance premiums. This promise is tougher to assess, but at best, it was incomplete. Politifact rated the President’s statement that the ACA would reduce the cost of health care “half true.” For some Americans, premiums will go down, and for others the premiums will go up. Ezra Klein labels this paradox a “trilemma.” In efforts to balance affordability, comprehensiveness, and accessibility, Klein admits there will be “winners and losers. Put bluntly, the Affordable Care Act’s changes are raising insurance premiums for some people who did well under the old system and lowering them for many of the people who were locked out or discriminated against.” Who are these losers? The 15 million Americans who are on the individual market, many of whom are small business owners, and will now have to pay more. Further, the young and healthy who wanted minimal coverage before, will be forced to pay higher premiums to subsidize the cost of the expanded insurance pool with older and sicker patients.
When selling the law, the President never made such important caveats. As Megan McCardle points out, in 2008 the President said that his plan would save $2,500 annually for families through a “combination of developing efficiencies in the system, expanding coverage to all Americans, and picking up the cost of some high-cost cases.” On December 15, 2009, The president said, “Families will save on their premiums,” and added that if the law is not passed, “premiums are guaranteed to go up.” There was no mention of lowering the rates of some on the backs of the young and small-business owners on the self-insurance market. Even in 2009, policy analysts recognized that there would be winners and losers of the law. But there was a total lack of a discourse on who would be worse off. No time for “nuance” when selling this law.
The third main promise, repeated many times, was that the Affordable Care Act would not impose a tax increase. Remember, in 2009, the president emphatically denied to George Stephanopoulos that the Affordable Care Act imposed a tax increase. Had the law been called a tax, the president could never have mustered the votes to pass it. Senate Minority Leader Mitch McConnell stated the politically obvious: the tax-free ACA “was one of the Democrats’ top selling points — because they knew it would have never passed if they said it was [a tax increase].”
It didn’t take long for the administration to break this promise. Within months of passing the law, in court the Department of Justice took the opposite position, and insisted that the law was constitutional because it was a tax increase. And it was on that basis that Chief Justice Roberts upheld the law. Even to this day, the Obama administration maintains in court that Obamacare is a tax.
As I argued in an editorial with Professor Randy Barnett, the administration should finally offer “truth in labeling,” and call the tax increase he passed a tax increase, in violation of his campaign pledge of no tax increases. Any effort to delay the mandate Obamacare should demand labeling it a tax increase, accompanied by a rescoring of the law by the Congressional Budget Office.
Supporters of the ACA may view the millions of cases of dropped coverage as mere resettling of the market. And in the end, many of those resettled may be better off with better coverage, whether they want it or not. (Of course, under the ethos of Obamacare, these are decisions for the experts, and not ignorant individuals to make). But to the people who voted for representatives who backed this law, there was no meaningful discussion by the president about these losers, the forgotten men and women of Obamacare.
These three promises were made and broken. Jim Messina, a media adviser to the President said “With 20/20 hindsight, maybe [these promises] should have been parsed more carefully.” That doesn’t cut it. This leviathan of a law, that transforms 1/6 of the American economy, should not have been sold on whopping lies, half truths, and intentional misstatements.
Instead, it should have been presented with full and honest debate. Everyone can appreciate some benefits of this law, such as eliminating discrimination against those with preexisting conditions, or expanding access to those without means. But the costs of this law were knowingly withheld. In a national debate, perhaps the American people would have accepted these benefits, along with the costs. But they didn’t. Obamacare was a much worse deal than we bargained for — and those selling the law knew it well.
For these reasons, Obamacare cannot be viewed as a sacrosanct, untouchable settled law. In the eyes of the American people, its validity is now in even further doubt.
Josh Blackman is a Constitutional Law Professor at the South Texas College of Law in Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare.