Unraveled: Obamacare, Religious Liberty, and Executive Power, Josh Blackman. Cambridge: Cambridge University Press, 2016.
Summary: A history of the writing, passage, and defense, both in the courts, and by the executive branch of the Affordable Care Act, against those who would attempt to unravel it and prevent it from becoming part of the fabric of American society.
It could well be that this narrative of the Affordable Care Act, the ways it has been implemented and contested, could well become a matter historical interest rather than an ongoing reality in American life. Clearly, it was the centerpiece work of legislation from the Obama years, and clearly one of the benchmarks by which his presidency will be assessed. This work contends that it was a significantly flawed piece of work that was already unraveling during the Obama presidency.
This work certainly is a resource to help those who care about this issue understand both the history of the Affordable Care Act and why it faced the challenges that it has, which include but certainly extend beyond partisan warfare.
It begins with the promise made that “if you like your health care plan, you can keep your health care plan” In the end this would conflict with the realities of providing health care that was accessible, affordable, and comprehensive, as well as universal. The president promised more than could be delivered and from the start, the compromise that became the Affordable Care Act couldn’t honor that challenge. In 2013, health insurers began sending out cancellation notices on many substandard plans that didn’t live up to the key provisions of the Act.
One of the key provisions of the act was the setting up of insurance exchanges in each state, and a Federal exchange for the states that did not set up their own. Yet in how the act was written, and the pressures for passage with the election of Scott Brown in Massachusetts, a crucial piece of wording did not make clear that the tax subsidies provided to taxpayers in states that set up their own exchanges would also apply to taxpayers in states with Federal exchanges. This set up what would be one in a series of potential fatal court battles for the life of this act.
Most of the book covers these key court cases.
- NFIB v. Sebelius on the individual mandate, upholding the requirement that individuals buy health insurance if not otherwise covered as a constitutional exercise of Congress’s power of taxation.
- Burwell v. Hobby Lobby which exempted Hobby Lobby, a closely held family corporation, on religious grounds, from the contraceptive mandate.
- King v. Burwell in which the court rejected the challenge to providing tax subsidies on the Federal exchanges, which was not explicitly provided for in the wording of the law. If taxpayers in 34 states would not received tax subsidies on the cost of their health care, millions would be priced out of the market, effectively gutting the act.
- Zubik v. Burwell, where six cases that had worked their way through the appellate courts with conflicting rulings were vacated in an unusual per curiam maneuver, to be re-argued after parties worked out possible solutions to the conflict of conscience and the contraceptive mandate. Many thought the post-Scalia eight person court “punted” to avoid a deadlock, but also gave more time for parties to reach solutions.
Because much of the book concerns court cases, there is a lot of legal “inside baseball” but this comes with fascinating insights into those who argued these cases like Paul Clement, and Solicitor General Donald Verilli as well as the various justices. What is fascinating is the account of how the Roberts court ends up upholding key provisions of the act, so much so that some referred to the act as SCOTUScare.
Along the way, Blackman also covers the various roadblocks and delays for which the administration itself was responsible, including delays in the employer mandate, and the disastrous launch of Healthcare.gov, on which only six people enrolled the first day. Above all, he traces many of the struggles this act faced to the partisan character of its passage, the fact that unlike all other major pieces of social legislation this act did not enjoy any measure of partisan support.
Blackman is clear that he was not a neutral observer. He wrote amicus briefs in several of the cases against the government and advised the Cruz campaign in its opposition to the Affordable Care Act. The implication throughout is that this was a deeply flawed piece of legislation, passed by a naked act of partisanship, enforced alternately with a heavy and a clumsy and able to survive only because of deliverances from the court. He documents this well.
What I did not find in Blackman was any attempt to address the cost and consequences of not extending access to affordable health care to all our people nor any idea of how it could be done better, which it seems is one of the obligations of any public servant who would dismantle this law. The Affordable Care Act provided preventive health care and medical care to millions of Americans and Medicaid expansion extended funds and care particularly to many of our nation’s poorest children, giving them the chance to grow up to be productive citizens. For all its flaws, it far exceeds proposals to ensure that “nobody is going to be dying on the streets.” It will take more than that to make America great again.
Disclosure of Material Connection: I received this book free from the publisher via Netgalley. I was not required to write a positive review. The opinions I have expressed are my own.