by Michael Cannon, originally published at Forbes.com and reprinted here with permission of the author. Add your voice to the comments on this article at Forbes.com here.
So, a band of tea-party Republicans led by Senators Ted Cruz (TX) and Mike Lee (UT) โ and backed by groups like FreedomWorks, Heritage Action, and Club for Growth โ pushed a risky strategy to defund ObamaCare that led to a partial government shutdown. As a logical matter, President Obama and Senate Democrats were equally culpable for the shutdown; they could have avoided it by approving one of the House-passed bills that funded the government while amending the presidentโs health care law. But that was unlikely. The media and public saw the GOP as more culpable, and the GOP caved. ObamaCare glided awayย unscathed.
Then came the inevitable recriminations between โdefundersโ and their detractors. If I may paraphrase and/or embellish:ย The shutdown was a failure!ย No it wasnโt!ย Youโre stupid!ย You voted for ObamaCare!ย Each camp blames the other for the outcome, and for not being sufficiently devoted to fighting ObamaCare.
Oy.
To put my cards on the table, as aย median-voter-theorem enthusiastย who opposed the defund strategy before I supported it, I think itโs too soon to judge whether it was a failure. As of today, it has produced no gains, and ObamaCare opponents saw their poll numbers slip.
On the other hand, ObamaCare justifies drastic measures. Opponents spent political capital taking a principled stand against a law whose roll-out has been aย two-week-longย train wreck. Even die-hard supporters like Ezra Klein have called it aย โdisaster.โ Former Obama press secretary Robert Gibbs has saidheads should roll, andย nobodyย knowsย whether the administration can get its act together before the health insurance โExchangesโ crater. If it canโt, the defund strategy will makeย allย ObamaCare opponents appear prescient.
Finally, no one has focused on an undeniable success of the shutdown: for one brief, shining moment, my paycheck was larger than my wifeโs.
In the end, the defund strategy may prove to be a disaster. Or helpful. As the Zen master said, weโll see.
Whatโs clear is that the recriminations are unwisely distracting ObamaCare opponents from adding momentum to strategies that areย alreadyย defunding the law. Here are four things opponents would be better off doing than fighting among themselves:
1. Stop Medicaid expansion in the states.
As a result, those states have already defunded almost a quarter of ObamaCareโs new entitlement spending. They are also helping to increase dissatisfaction with the law among hospitals and other providers, who now wonโt be receiving the subsidies they were promised in return for their support.
If Cruz, Lee, FreedomWorks, Heritage Action, Club for Growth and the rest really want to defund ObamaCare, they should beย fighting to block the Medicaid expansionย in the 25 states that have already authorized it. Wanna squash Republicans who are soft on ObamaCare? Come visit Ohio, where Gov. John Kasich (R) has all but claimed thatย Godย wantsย Ohio to expand Medicaid, and is literallyย tryingย to do itย without the support, and over the objections, of the legislature.
2. Get states, employers, and citizens to challenge the IRSโs illegal ObamaCare taxes.
ObamaCare authorizes Exchange subsidiesย only through state-established Exchanges, not the 34 Exchanges created by the federal government. As a result, those 34 states that refused to establish Exchanges by law have defunded a further one-third of that $2 trillion dollars. Since those subsidies trigger penalties under both the employer mandate and individual mandate, those states have by law also exempted all of their employers and aboutย 8 million individual residentsย from those penalties.
Unbelievably, contrary to the clear language of the statute and congressional intent, the IRS is trying impose those taxes and issue those subsidies in those 34 states anyway. The IRS is literally trying to tax, borrow, and spendย more than $700 billion without congressional authorizationย โ a more egregious example of taxation without representation than the Stamp Act.
State attorneys general, employers, and individual taxpayers have so far filed four lawsuits challenging those illegal taxes. A federal judge hasย rejectedย the Obama administrationโs attempt to dismiss the challenge filed by Oklahoma attorney general Scott Pruitt. More than a dozen Indiana school districtsย filed suitย alongside that stateโs attorney general Greg Zoeller. A federal court in Washington, D.C., will hear oral arguments onย another challengeย on Monday.
Asย National Reviewย editorializes:
Republicans may not have a great deal of power in Washington, where they control, in John Boehnerโs words, one half of one third of the federal government; but we have 50 states for a reason, and Republican governors lead 30 of them. Republican governors, attorneys general, and state legislators looking to use their offices to the significant benefit of the nation as a whole should be lining up to create a 30-state united front with Oklahoma. Scott Pruitt is fighting for the rule of law, and Republican governors might trouble themselves to give him a hand.
If anti-ObamaCare groups really want to defund the law, they should get governors, attorneys general, employers, and their own members to file additional challenges.
3. Educate states about how to block the IRSโs illegal taxes legislatively.
The 34 states that have refused to establish Exchanges can actually block the IRSโs illegal ObamaCare taxes legislatively byย suspending the licensesย of insurers that accept the illegal subsidies. Since no insurer would then accept one, not a single employer in the state could be hit with the employer-mandate penalties those subsidies trigger.
Legislators inย Ohio and Missouriย have already introduced legislation based on draft language I offered in my Cato study โ50 Vetoes.โ The American Legislative Exchange Council has given this โHealth Care Freedom Act 2.0โ its seal of approval and offersย its own model legislation.
4. Urge House investigators to subpoena all materials related to the IRSโs illegal taxes.
The House Committees onย Oversight & Government Reformย andย Ways & Meansย have been investigating the IRSโs illegal taxes forย more than a year. This August, House Oversight committee chairman Darrell Issa (R-CA) asked an IRS witness:
Where the hell is the paper on that?โฆWhereโs the analysis? Congress doesnโt agree with you, at least the House of Representatives, that your rule is consistent with the law. We asked for the analysis. Youโve stonewalled usโฆWhere are the notes, recommendations, [and] analysis that we asked for?
Issa called the IRS representative โpretty close to a useless witnessโ andthreatenedย that if the agency is not forthcoming, โNot only will I issue a subpoena, but Iโm going to have to do a lot more.โ Hereโs theย video:
Yet the Treasury department has still refused to hand over many emails and other communications that, according to my source, show the IRS did almost no analysis of the law before deciding to tax, borrow, and spend $700 billion without congressional authorization. If ObamaCare opponents want to defund the law, they should urge Issa to follow through on his threat to issue a subpoena, and โdo a lot more.โ
A good test of whether defunders orย detractors areย more committed to stopping ObamaCare willย be which side is the first to put away the knives and get to work.