Law professor Randy Barnett, who directs Georgetown University Law School's Center for the Constitution, writes in
USA Today that "
there is now a clear path to repealing and replacing the Affordable Care Act next year."
- There is now a serious financial risk to the ACA now that the Supreme Court has agreed to hear King v. Burwell, which challenges the legality of the IRS ruling that — contrary to the law's specific language — permits federal subsidies in states that have not built their own state exchanges.
- Opponents of ACA should begin to develop — and have ready — a viable alternative law, one that has gone through the regular order legislative process.
- As a rule, Supreme Court justices are reluctant to invalidate a law on which many relied. It will be far easier for the justices to enforce the law's existing language if they know there is a viable alternative that can be enacted by both house of Congress and signed by the president within a week of their ruling.
- The alternative law should:
- completely repeal, in its first line, each and every word of the ACA;
- restore the private insurance market using actuarially-based insurance priced according to risk;
- restore consumer choice to buy true private insurance limited to the terms they want to pay for, including policies insuring only catastrophic costs, and medical savings accounts;
- increase competition among insurers by allowing state regulated policies to be sold across state lines so people don't have to change insurance when they move; and
- increase equity by extending tax benefits now available only to employer0based insurance.
By having a legislatively-vetted replacement in the pipeline and in the public discussion before oral arguments are held in March, Barnett argues, Obamacare's opponents can make a favorable ruling against the law much more likely.
