Obamacare became law in 2010 with no Republican votes. It is the most comprehensive piece of social legislation ever passed in the United States along strict party lines. The Left continues to ignore this fact, while it rails against the partisan nature of repeal attempts.

Instead of focusing on:

• the partisan nature of the law,
•  the millions of Americans who were forced to find new health insurance,
• the astronomical cost of Obamacare,
• the 30 million Americans who still don’t have health insurance,
• and the huge regulatory burden of the ACA,

supporters of Obamacare have banded together to focus on one specific aspect of the law – the pre-existing condition mandate. National polling finds that over the past few years, this is the one part of the law that the majority of Americans like.

Consequently, the Left has made the pre-existing clause their argument against repeal, regardless of whether Obamacare is constitutional or not.

The latest attempt at repeal of the Affordable Care Act is now being played out in a U.S. District Court in Fort Worth, Texas. Twenty attorney’s general from conservative states are suing the federal government on the constitutionality of Obamacare. (here)

In a landmark U.S. Supreme Court case in 2012 testing the constitutionality of the ACA, Chief Justice Roberts ruled that the penalty for not owning health insurance under the law’s individual mandate was a “tax.” Since Congress has the ability to tax Americans, the Court, in a 5 to 4 vote, ruled the ACA was indeed constitutional, regardless of any interstate commerce issues.

In 2017, as part of the major tax reform bill, Congress eliminated the individual mandate “tax” starting in 2019. The 20 AGs are now suing, stating that since the tax has been eliminated, the law is no longer constitutional. Also, and this is critical, the ACA has no severability clause. In other words, if any part of the law is found to be unconstitutional, the entire law becomes unconstitutional.

Although the definition of a pre-existing condition varies by who is writing the report, everyone can agree that at a minimum those patients with high-costs and high health care utilization should be included in this group. The challenge is how to financially cover these costs, while not burdening healthy individuals.

The lesson with Obamacare, however, is that not enough healthy people have enrolled in the exchanges to offset the costs of those with illnesses. High-risk pools offer a much better method of compassionately covering these high-cost, high-utilization patients with pre-existing conditions.

High-risk pools can be structured in several different ways. One option would be to isolate high-cost patients. They would be taken out of the insurance market and placed in their own program, something like Medicaid. Funding would be directly through taxes, with an undetermined impact on government spending and the national debt.

Another option would be to have everyone pay a little. For example, this could be a small (several dollar) excise fee on everyone’s health insurance premiums. The high-cost patients would remain in their original risk pool and would not necessarily pay higher premiums.

High risk pools have a poor reputation, mainly because of unreliable and insufficient funding. If structured properly, high-risk pools can be effective at providing for high-cost and high-users of health care, without causing them financial hardship. (here) The pools can satisfy the pre-existing mandate that Americans like.

Focusing on the pre-existing condition mandate is essentially a scare tactic to gain support for an unconstitutional, partisan law.