The Senate’s new Obamacare stabilization deal faces a lot of unanswered questions

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We have an Obamacare stabilization deal. Republican Sen. Lamar Alexander, who had been working with Democratic Sen. Patty Murray for the past few months, announced it this afternoon.

This would be the gist, per they summary I obtained and conversations with lobbyists:

But that outline comes with a lot of caveats and TBDs.

1) We don’t have the fine print yet

Alexander and Murray might have a deal, but they don’t have a bill. (Murray told Kaiser Health News’s Julie Rovner they were “still ironing out a few details.)

“They merely have an agreement in concept only” is how one lobbyist put it to me.

The details are going to matter, particularly on the 1332 waivers. Obamacare created guardrails in the waiver program, which required any state plans to provide coverage that was as “comprehensive” as what the health care law offers. Alexander talked about revising that standard to “comparable affordability.”

Senators are also promising to prevent “double dipping” — which presumably means plans reaping both increased premiums after they hiked rates to account for no CSRs and then the CSRs that the bill funds.

The specifics will matter a lot for both those provisions, as well as the precise effect on the market from expanded catastrophic coverage.

2) We don’t know if it can pass Congress

Alexander and Murray are two senators. They need 49 more. The big question is whether Senate Republican leaders, who already scuttled the duo’s talks once in favor of another Obamacare repeal bill, will want a majority of their own conference on board before they bring a bill stabilizing the law to the Senate floor.

“I will not tell you that we have a majority of all the Republicans yet,” Sen. Mike Rounds, who supports the deal, told reporters. “I think we’re getting closer.”

Even if the bill gets out of the Senate, the House would have to agree to it. There are early signs of trouble.

”The GOP should focus on repealing & replacing Obamacare, not trying to save it. This bailout is unacceptable,” Rep. Mark Walker (R-NC), who leads the influential Republican Study Committee, said in a statement.

Then you have President Trump. On Tuesday, he sounded positive about a short-term stabilization plan. Will that still be true tomorrow?

3) The damage to 2018 rates is probably already done

Contracts for the federal marketplace are signed, sealed, and delivered. Insurers have already hiked their premiums for next year, after months of Trump threats to cut off the cost-sharing reductions, which he finally did last week.

We did see states and plans react quickly to Trump’s decision. It’s possible they could change course quickly again if Congress acts fast. (Also remember: Most people will be protected from higher premiums by Obamacare’s tax subsidies.)

But don’t bet on it. My sources believe the Alexander-Murray deal’s only chance of passage would be if it’s folded into a bigger government spending/debt limit package in December.

Nevertheless, this plan, if it comes to pass, isn’t nothing. It’s a sign of good-faith legislating, and by taking the CSR threats off the table for 2019, it could have a real effect on rates down the road.

But it isn’t going to fix things right away or all on its own.

Motive matters, with respect to whether the president exercises his power legally. If the president exercises his discretion to further the purpose of a statute, he complies with the take care clause. If he uses his power pretextually or unreasonably, he violates the Constitution. President Trump’s motives are unambiguous.

Yale’s Abbe Gluck on the constitutionality of Trump’s Obamacare sabotage. I feel like I get asked a few times a week how Trump can take the actions he has to undercut the health care law. Isn’t Obamacare the law of the land? I never had a good answer (and I’m not a lawyer). But in this piece for Vox, Gluck makes the case that Trump’s undermining of the ACA does in fact run afoul of the Constitution’s “take care” clause.

With research help from Caitlin Davis

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