On Monday, Senator Marco Rubio’s website reported the formal introduction of his “Delay Until Fully Functional Act” to delay the ObamaCare individual mandate:
U.S. Senator Marco Rubio (R-FL) and Representative Trey Radel (R-FL) today introduced the “Delay Until Fully Functional Act,” a bill delaying the individual mandate under ObamaCare until six months after the Government Accountability Office (GAO) certifies that the exchange website is fully functional.
The Senate bill is co-sponsored by Senators Orrin Hatch (R-UT), James Inhofe (R-OK), Jerry Moran (R-KS), Pat Roberts (R-KS), Roger Wicker (R-MS), Thad Cochran (R-MS), John Boozman (R-AR) and Mike Johanns (R-NE).
“It is unacceptable that Americans will soon be forced to pay a fine for not purchasing insurance when the very websites they are supposed to use for purchasing it have been rendered useless from numerous glitches and technical errors,” said Rubio. “Americans already have too many financial burdens for Washington to go adding another useless and unjust tax, especially when that tax punishes the American people for the government’s own errors. I believe ObamaCare must eventually be entirely repealed and replaced, but until that becomes possible we must continue to focus on protecting Americans from the law’s ongoing problems.”
“The President has given big business and corporations an exemption from his signature law, it only seems fair to give you and your family a break from the fine as well,” said Radel. “The Rubio-Radel bill ensures the ObamaCare fine will be delayed until the Administration can show Healthcare.gov and all other sign up options are fully functional.”
When Rubio first proposed this bill, I found myself wondering who, exactly, would certify the ObamaCare exchanges as “functional” and begin the six-month countdown to restoring the individual mandate. I had fears the certification might come from, shall we say, Administration officials with an unseemly enthusiasm for granting it quickly.
Rubio’s press secretary, Alex Conant, told me this judgment would be made by the Government Accountability Office. The exact criteria for functionality would have to be hammered out as the bill makes its way through Congress, but the version of the Act introduced today lays out a very specific timetable: the first study by the Comptroller General would be performed within 30 days of enacting Rubio’s bill, with another study performed every 60 days until a passing grade is awarded. A successful review would have to be certified by the Inspector General for the Department of Health and Human Services before being submitted to Congress. The Act states that all enrollment options – including website, telephone, and submission of written applications by mail – must be functional.
I asked if recent, optimistic estimates of restored Healthcare.gov functionality by the end of November would influence the wording of the Rubio-Radel bill, or lead to doubts about its necessity. ”We’ve seen those claims, but will believe it when we see it.” In fact, since the end of November is too late to avoid enrollment problems even if those promises by the Administration’s crisis managers are kept, the extra time granted by the Delay Until Fully Functional Act would be a blessing to those who are still scrambling to avoid the individual mandate penalties. Even if the Act was passed with remarkable alacrity, the first 30-day review would probably occur during the holiday season, and if it was successful, the mandate would be pushed back until June. At this point, worried citizens would take some comfort from knowing that only certified results can restart the tax/penalty clock.
There have been predictions that the absence of the individual mandate would push ObamaCare into an inescapable death spiral, as it removes the incentives – or at least the “stick” component of the traditional carrot-and-stick incentive model – for “profitable” young and healthy customers to buy into the system, socializing the costs of benefits for those with pre-existing conditions. Conant noted such concerns were beyond the scope of the very straightforward Delay Until Fully Functional Act, which in its current form is only four pages long. ”It’s no secret that Senator Rubio thinks the ACA should be repealed in its entirety. But this proposal does not seek to do that – this is just a matter of basic fairness, since we believe people should not be penalized for not signing up for something they are unable to sign up for.”
I wondered about the long-term sustainability of ObamaCare’s finances, speculating that a delay of the individual mandate might bring insurance companies to Washington in search of a bailout. That’s a purely hypothetical question at this point, although Conant told me Senator Rubio “thinks ObamaCare is destined to be a financial disaster because it is based on a flawed concept.”
The most immediate problem is the sheer lunacy of the situation Rubio and Radel’s bill is tightly crafted to address: assessing a fine against people for failing to make a purchase they can’t make, even if they want to. It’s a pity the mandate delay wasn’t accepted when Republicans put it on the table during the shutdown crisis. Just a couple of weeks later, it’s the bipartisan talk of Washington, although Democrats generally want a shorter, less subjective delay than the Delay Until Fully Functional Act envisions. I haven’t heard anyone from the other side of the aisle talk about certifying ObamaCare’s functionality before bringing the individual mandate back out of the penalty box – they’ve mostly spoken about delays for fixed periods of time, ranging from a month to a year. If they were confident that full power could swiftly be restored to the warp drives of the starship ObamaCare, you would think they would be eager for a plan like Rubio’s, which could restore the mandate by late spring or early summer if the Administration meets its current estimates. Will the Democrats be eager to take that bet?
Conversely, will Republicans be universally eager to support a measure that might save ObamaCare from itself? The GOP caucus probably feels a bit testy after the pounding they took during the shutdown crisis, during which – let us recall once again – they already offered an individual mandate delay. Democrat cries of “it’s the settled law of the land!” still ring in their ears. Alleviating the pain of ObamaCare’s failure might diminish support for full repeal, which is the only way to “fix” it once and for all. And there might be fears that a Republican bill to delay the individual mandate makes the party political co-conspirators in a program none of them voted for, when the mandate eventually comes back online.
Rubio’s bill checkmates President Obama from adjusting the individual mandate by fiat – a move of dubious legality, but with more statutory justification than his blatantly illegal delay of the employer mandate. It would be dicey for the Democrats to shoot down Rubio’s bill, then applaud when Obama imposes a delay of his own. It will also be harder for the Democrats to introduce their own bill to delay the mandate while accusing the Republicans of heartless obstructionism for standing around while people tumble helplessly into the pit of ObamaCare’s contradictions. Debate over the Delay Until Fully Functional Act is going to be unpleasant and embarrassing for the Administration, and they probably wouldn’t enjoy watching the GAO issue unsatisfactory reports every 60 days, either. No matter what Congress does, time is not on ObamaCare’s side at the moment.