During the Presidential debate of 29 September 2020,  Obamacare^[1] came up in the context of the Supreme Court.  The case of Texas v. California, No. 19-1019 &  19-840 is on appeal. A district court judge ruled the Affordable care act unenforceable,^[2] because an integral part of the law had failed when the ‘tax’^[3] was repealed and which tax could not be severed from the rest of the law.  

The following are a list of problems with the ACA.

The ACA

1. increased demand without increasing supply.  The new demand was to cover tens of millions of ‘uninsured’ patients. The supply was the physicians, nurses, pathologists, health workers. No new medical schools, no expansion of seats.
2. Was a step toward single payer.  Obama said the goal was single payer, and ACA  was an intermediate step to disrupt health insurers, with a goal to have a single insurer in half of the counties of the U.S.^[4]
3. Is contrary to the anti monopoly tradition. The single payer concept, or socialized medicine, is contrary to the anti trust tradition in America that competition is the best business model to improve any business, including health care.
4. means rationed health care, and barter under Single payer.
5. had a tax called  Individual Mandate. Despite the claim the mandate was not a tax,  it was a tax. Justice Roberts was correct.  There is no limit to taxation in America since the passage of the 16^th amendment.
6. opposed the history of economics in the U.S. The Sherman, Clayton, Robinson Patman anti trust acts recognized you can’t be all powerful without the temptation to wield control.  Other nations, England, Europe, set up monopolies with a few, with great short term advantage, but long term loss.
7. came off as  a power grab. It was proposed by Hillary Clinton in 1993, went no where, and when the Dems got the 3 seats of government, house, Senate and Presidency, Katie bar the door.  The Dems in Congress made no effort to make it bi partisan.  What did they expect?
8. covered pre existing conditions.  But health care already accommodated these. If you could not get insurance, the Hospitals still had to treat you by Federal law – if the hospital took federal payments – and they all do. The new coverage was with insurance, not with health providers.  The importance of taking care of all the sick and maimed is that it provides practice and training for the industry – hospitals, physicians,  residents, interns, fellows, nurses.
9. expanded Government.  The government already is in charge of health for 40% of the population, 45 million on Medicare, 10 million veterans, 3 million civil servants,  75 million on Medicaid and CHIP.  ACA did nothing to push physicians or hospitals into Rural America, with whole counties without hospitals.
10.  was 2500 pages. Loading down the health system with more regulations.^[5]
11.  did not lower health costs, but doubled the insurance costs.
12.  Required coverage of health issues (contraception, abortion), which was rude and offensive to religious groups.
13.  Was passed without reading. “We have to pass it to see what is in it “– Speaker Pelosi. Wow. 

‘’We have to pass the bill so that you can find out what is in it, away from the fog of the controversy.”  National Association of Counties’ annual Legislative Conference on 9 March 2010, in Washington D.C. ‘’That means a dramatic expansion in the number of patients community health centers can see and ultimately healthier communities. Our bill will significantly reduce uncompensated care for hospitals.’’

14)            Was a scam. ‘The Stupidity Of The American Voter’ Led Us To Hide Obamacare’s True Costs From The Public, Nov 10, 2014,

You’ve got to hand it to MIT economist Jonathan Gruber. The guy dubbed the “Obamacare architect” is a viral YouTube sensation. A few months back, he was  caught on tape admitting that Obamacare doesn’t provide subsidies for federally-run insurance exchanges; it’s now the topic of a case before the Supreme Court.  *** Gruber said that “the stupidity of the American voter” made it important for him and Democrats to hide Obamacare’s true costs from the public. “That was really, really critical for the thing to pass,” said Gruber. “But I’d rather have this law than not.” 

Representatives of the Leonard Davis Institute tried to pull the video of Gruber’s remarks, but they were too late. Phil Kerpen and others had already clipped them for public consumption.

https://www.forbes.com/sites/theapothecary/2014/11/10/aca-architect-the-stupidity-of-the-american-voter-led-us-to-hide-obamacares-tax-hikes-and-subsidies-from-the-public/#3fee9f957c05

1.  Ignored price opaqueness – did nothing for transparency of pricing of health care. 
2.  set a national standard for minimum health care, but not  tailored to specific needs.^[6]
3.  Was backed by industries and groups with agendas, see the list of amici in the Supreme Court  Texas v. California case.. Little indication those groups had the public welfare at the top of their list of wants and needs.
4. Risks boycotts, social issues,  ‘death boards’.  
5.  is anti competitive.  

Transcript^[7] comments –

Vice President Joe Biden: (06:12)
Now, what’s at stake here is the President’s made it clear, he wants to get rid of the Affordable Care Act. He’s been running on that, he ran on that and he’s been governing on that. He’s in the Supreme Court right now trying to get rid of the Affordable Care Act, which will strip 20 million people from having health insurance now, if it goes into court. And the justice, I’m not opposed to the justice, she seems like a very fine person. But she’s written, before she went in the bench, which is her right, that she thinks that the Affordable Care Act is not Constitutional. The other thing that’s on the court, and if it’s struck down, what happens? Women’s rights are fundamentally changed. Once again, a woman could pay more money because she has a pre-existing condition of pregnancy. They’re able to charge women more for the same exact procedure a man gets.

Vice President Joe Biden: (07:08)
And that ended when we, in fact, passed the Affordable Care Act, and there’s a hundred million people who have pre-existing conditions and they’ll be taken away as well. Those pre-existing conditions, insurance companies are going to love this. And so it’s just not appropriate to do this before this election. If he wins the election and the Senate is Republican, then he goes forward. If not, we should wait until February.

President Donald J. Trump: (07:34)
There aren’t a hundred million people with pre-existing conditions. 

President Donald J. Trump: (08:02)
During that period of time, during that period of time, we have an opening. I’m not elected for three years. I’m elected for four years. Joe, the hundred million people is totally wrong. I don’t know where you got that number. The bigger problem that you have is that you’re going to extinguish 180 million people with their private health care, that they’re very happy this.

Vice President Joe Biden: (08:24)
That’s simply not true.

President Donald J. Trump: (08:25)
Well, you’re certainly going to socialist. You’re going to socialist-

 Joe Biden. What I proposed is that we expand Obamacare and we increase it.

President Donald J. Trump: (09:02)
Your party doesn’t say it. Your party wants to go socialist medicine and socialist healthcare.

Vice President Joe Biden: (09:05)
The party is me. Right now, I am the Democratic Party.

Vice President Joe Biden: (09:09)
I am the Democratic Party right now.

Vice President Joe Biden: (09:12)
The platform of the Democratic Party is what I, in fact, approved of, what I approved of. Now, here’s the deal. The deal is that it’s going to wipe out pre-existing conditions.

Chris Wallace: (10:51)
Mr. President, the Supreme Court will hear a case a week after the election in which the Trump Administration, along with 18 state Attorney Generals are seeking to overturn Obamacare, to end Obamacare.

President Donald J. Trump: (11:05)
That’s right.

Chris Wallace: (11:11)
Over the last four years, you have promised to repeal and replace Obamacare, but you have never in these four years come up with a plan, a comprehensive plan, to replace Obamacare.

President Donald J. Trump: (11:25)
Yes, I have. Of course, I have. The individual mandate.

Chris Wallace: (11:26)
[crosstalk 00:11:26] when I finish I’m going to give an opportunity-

President Donald J. Trump: (11:28)
Excuse me. I got rid of the individual mandate, which was a big chunk of Obamacare.

Chris Wallace: (11:31)
That’s not a comprehensive place.

President Donald J. Trump: (11:32)
That is absolutely a big thing. That was the worst part of Obamacare.

President Donald J. Trump: (11:38)
Well, I’ll ask Joe. The individual mandate was the most unpopular aspect of Obamacare.

Chris Wallace: (11:44)
Mr. President.

President Donald J. Trump: (11:44)
I got rid of it. And we will protect people.

Chris Wallace: (11:53)
You, in the course of these four years, have never come up with a comprehensive plan to replace Obamacare, and just this last Thursday you signed a largely symbolic Executive Order to protect people with pre-existing conditions five days before this debate. So my question, sir, is what is the Trump healthcare plan?

President Donald J. Trump: (12:16)
Well, first of all, I guess I’m debating you, not him, but that’s okay. I’m not surprised. Let me just tell you something. There’s nothing symbolic. I’m cutting drug prices. I’m going with Favored Nations, which no President has the courage to do because you’re going against big pharma. Drug prices will be coming down 80 or 90%. You could have done it during your 47 year period in government, but you didn’t do it. Nobody’s done it. So we’re cutting healthcare.

President Donald J. Trump: (12:42)
I’ll give you an example. Insulin, it was destroying families, destroying people, the cost. I’m getting it for so cheap it’s like water, you want to know the truth. So cheap. Take a look at all of the drugs that what we’re doing. Prescription drug prices, we’re going to allow our Governors now to go to other countries to buy drugs because when they paid just a tiny fraction of what we do.

Chris Wallace: (13:06)
Sir, you’ll be happy. I’m about to pick up on one of your points to ask the Vice President, which is, he points out that you would like to add a public option to Obamacare

Chris Wallace: (13:17)
And the argument that he makes and other Republicans make is that that is going to end private insurance.

Chris Wallace: (13:29)
And it will end private insurance and create a government takeover of health.

Vice President Joe Biden: (13:32)
It does not. It’s only for those people who are so poor they qualify for Medicaid they can get that free in most States, except Governors who want to deny people who are poor Medicaid. Anyone who qualifies for Medicaid would automatically be enrolled in the public option. The vast majority of the American people would still not be in that option. Number one. Number two.

Vice President Joe Biden: (15:21)
Because he, in fact, already has costs 10 million people their healthcare that they had from their employers because of his recession. Number one. Number two, there are 20 million people getting healthcare through Obamacare now that he wants to take it away. He won’t ever look you in the eye and say that’s what he wants to do. Take it away.

President Donald J. Trump: (15:41)
No, I want to give them better healthcare at a much lower price, because Obamacare is no good.

President Donald J. Trump: (15:59)
Obamacare is no good. We made it better and I had a choice to make very early on. We took away the individual mandate. We guaranteed pre-existing conditions, but took away the individual mandate. Listen, this is the way it is. And that destroyed … They shouldn’t even call it Obamacare, then I had a choice to make, do I let my people run it really well or badly? If I run it badly, they’ll probably blame him, but they’ll blame me. But more importantly, I want to help people. Okay. I said, “You’ve got to run it so well.” And I just had a meeting with them. They said the problem is, no matter how well you run Obamacare, it’s a disaster. It’s too expensive. Premiums are too high, that it doesn’t work. So we do want to get rid of it. Chris, we want to get rid of that and give something that’s cheaper and better.

^[1] Patient Protection and Affordable Care Act (ACA) 26 U.S.C. 5000A

^[2] Pub. L. No. 115-97, § 11081, 131 Stat. 2054, 2092 (2017). 

^[3] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 574 (2012) (NFIB) 

^[4] https://www.politifact.com/factchecks/2009/jul/16/barack-obama/obama-statements-single-payer-have-changed-bit/

“I happen to be a proponent of a single-payer universal health care program. I see no reason why the United States of America, the wealthiest country in the history of the world, spending 14 percent of its gross national product on health care, cannot provide basic health insurance to everybody. And that’s what Jim is talking about when he says everybody in, nobody out. A single-payer health care plan, a universal health care plan. That’s what I’d like to see. But as all of you know, we may not get there immediately. Because first we’ve got to take back the White House, we’ve got to take back the Senate, and we’ve got to take back the House.”  June 30, 2003.

^[5]  According to the petition for certiorari, California et al vs. Texas,  the ACA  ‘’ law that spans “10 titles [and] over 900 pages” and regulates a fifth of the Nation’s economy.   P. 5 

https://www.supremecourt.gov/DocketPDF/19/19-840/127463/20200103144006317_20200103-143904-95749589-00000320.pdf

^[6]  Issues listed in the Amici for 56 economic scholars at p. 23, 24 

1. Providing free preventive services in Medicare and employer sponsored insurance coverage; 
2. Offering dependent coverage for young 
3. adults; 
4. ο Requiring disclosure of payments from drug companies; 
5. ο Labeling menus with calorie counts; 
6. ο Barring annual and lifetime limits on coverage and imposing a cap on the amount of out-of- pocket costs; 
7. ο Encouraging states to cover preventive services in Medicaid; 
8. ο Preventing healthcare providers who receive federal funds from discriminating, at a minimum, against women and people with limited English proficiency; 
9. ο Mandating that insurers spend at least 80 or 85 percent (depending on the market) of premium revenues on clinical services and quality improvement; 
10. ο Requiring employers to provide new mothers with break time and private places for nursing; 
11. ο Improving patient safety at hospitals by penalizing unnecessary readmissions and avoidable hospital-acquired conditions; and 
12. ο Standardizing the income definition (to Modified Adjusted Gross Income) for Medicaid eligibility for most groups. 

^[7] https://www.rev.com/blog/transcripts/donald-trump-joe-biden-1st-presidential-debate-transcript-2020

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