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Five Different Scenarios For Obamacare Delay

FILE – In this March 23, 2010, file photo, participants applaud in the East Room of the White House in Washington, Tuesday, March 23, 2010, as President Barack Obama, flanked by Macelas Owens of Seattle, left, and Rep. John Dingell, D-Mich., right, signs the health care bill. Americans may not be all that crazy about President Barack Obama’s health care law, but a new poll shows they don’t see it going away. The Associated Press-GfK poll finds that about 7 in 10 Americans think the overhaul law will go into effect fully, with some changes, ranging from minor to major alterations. Behind the president, from left are, Senate Majority Whip Richard Durbin of Ill., Vice President Joe Biden, Vicki Kennedy, widow of Sen. Ted Kennedy, Rep. Sander Levin, D-Mich., Ryan Smith of Turlock, Calif., Health and Human Services Kathleen Sebelius, House Speaker Nancy Pelosi of Calif., House Majority Leader Steny Hoyer of Md., Senate Majority Leader Harry Reid of Nev., Rep. Patrick Kennedy, D-R.I., House Majority Whip James Clyburn of S.C., and Rep. Henry Waxman, D-Calif. (AP Photo/J. Scott Applewhite, File)

Obamacare isn’t working, and the administration and its allies know it. The possibility of delay is now very real. Here’s how it could happen.

The flood of news stories over the past two days about the problems with Obamacare’s exchanges, and the companion opinion pieces – some even from the left – calling for the administration to delay the individual mandate and fix the exchanges all seem to indicate a trend that I expect to accelerate rapidly over the coming month. Yuval Levin outlines the issues:

Sarah Kliff echoes this today at the Washington Post. Most on the left would prefer an extended open enrollment period, or some kind of exemption application, as opposed to a real unilateral delay:

Phil Klein has more on how this could play out. From talking to people within the IT space, it really seems that the problems are more fundamental than anyone thought at first: the latest round of glitches involve flawed data, duplicate enrollments, spouses categorized as children, and more. Front end problems and load-related issues are one thing, but the data is the exchange, really – if it’s not right, they don’t work. And fixing it may require taking the whole enterprise down for an extended period, perhaps months.

Keeping in mind that the pressure for delay will be intense from the states where exchanges are not functioning a month or more from now – which would likely include every state in the federal exchange – and that insurers will insist that they can’t delay the mandate without also delaying the goodies (pre-existing, community rating, etc.), there are a couple of things that I think could come next. Here are, broadly speaking, five different scenarios:

1. The White House could call for/implement via executive order or some other unilateral step a real delay of the individual mandate, just owning the problem or framing it as “we won’t enforce the penalty for 2014” (likely bringing on a lawsuit from insurers, unless you find a way to make them whole).

2. The White House could call for an expansion of the open enrollment period (but that wouldn’t solve the problem of a ton of people getting dinged with penalties after the Feb 15th date we – and the admin! – apparently just learned about; it doesn’t really matter that they’re pro-rated, you’d have millions getting hit by it).

3. With the White House’s blessing, Harry Reid could advance a “carveout” measure of some kind – exempting certain states from having to abide by the mandate – i.e., if your system can’t enroll most people, we won’t ding you (obvious problem: huge legal issues, hard to see how you could advance this through the Congress, though it would exempt mostly red states). One alternate way to do this would be to increase Medicaid eligibility temporarily, to cover anyone not able to get insurance for a calendar year. But states with strained Medicaid programs would push back hard against that.

4. With the White House’s blessing, a Gang of Insert Number Here with some vulnerable/moderate Dems (Manchin, Landrieu, Pryor, Begich, Heitkamp, Warner… maybe Baucus?) could press for a package of “fix the exchanges” legislation, which could conceivably offer Republicans a chance to pass delay while appropriating more funding for the exchanges – something like: delay the mandate, delay some of the goodies, and take the exchanges offline and give them more money to fix them.

5. POTUS, convinced that he’s in a powerful position in the wake of the shutdown, could refuse any and all delays and privately threaten any Democrats who consider proposing them. Obamacare is the law of the land.

Which of these are we likeliest to see? I expect options 1 and 5.

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