Tag: aca

Ohio’s 2-1 Vote against the Individual Mandate Is a Wholesale Rejection of ObamaCare

Yesterday, Ohio voters approved by 66-34 percent an amendment to the state constitution blocking any sort of individual mandate in the state.  The Cleveland Plain Dealer reported that this “strike at President Barack Obama’s health care plan…was ahead by a wide margin even in Cuyahoga County – a traditional Democratic stronghold.” A little over a year ago, Missouri voters likewise rejected ObamaCare’s individual mandate by 71-29 percent.

Supporters typically dismiss such setbacks, including two years of solid public hostility to ObamaCare, by claiming that voters don’t hate the entire law.  In fact, they actually like specific provisions.  A year ago this month, The Washington Post’s Greg Sargent quoted approvingly a McClatchy-Marist poll:

Almost six in ten voters – 59% – report the part of the health care law that prevents insurance companies from denying coverage due to pre-existing conditions should remain law while 36% want it repealed.

Supporters are in serious denial if they still cling to this theory. These overwhelming rejections of the individual mandate are indeed a rejection of the entire law.

Asking people whether they support the law’s pre-existing conditions provisions is like asking whether they want sick people to pay less for medical care.  Of course they will say yes.  If anything, it’s amazing that as many as 36 percent of the public are so economically literate as to know that these government price controls will actually harm people with pre-existing conditions.  Also amazing is that among people with pre-existing conditions, equal numbers believe these provisions will be useless or harmful as think they will help.

But as the collapse of the CLASS Act and private markets for child-only health insurance have shown, and as the Obama administration has argued in federal court, the pre-existing conditions provisions cannot exist without the wildly unpopular individual mandate because on their own, the pre-existing conditions provisions would cause the entire health insurance market to implode.

If the pre-existing conditions provisions are a (supposed) benefit of the law, then the individual mandate is the cost of those provisions. If voters don’t like the individual mandate–if they aren’t willing to pay the cost of the law’s purported benefits–then the “popular” provisions aren’t popular, either.

Or, as Firedoglake’s Jon Walker puts it, ObamaCare is about as popular as pepperoni and broken glass pizza.

D.C. Circuit Paves Way for Supreme Court Consideration of Obamacare

Today the D.C. Circuit ruled that the individual mandate is a constitutional exercise of federal power under the Commerce Clause.  Senior Judge Laurence Silberman (Reagan appointee) wrote the opinion, which was joined by Senior Judge  Harry Edwards (Carter appointee).  Judge Brett Kavanaugh (George W. Bush appointee) dissented on jurisdictional grounds without reaching the merits, finding that the Anti-Injunction Act barred the suit until the individual mandate/penalty/tax goes into effect.  (The case is Seven-Sky v. Holder; see Cato’s amicus brief and a quick breakdown by Tim Sandefur.)

Sure, this is a loss for our side but it’s not a big deal. Every development in the Obamacare litigation has been anticlimactic since the Eleventh Circuit split with the Sixth, guaranteeing that the Supreme Court would take the case.  Today’s ruling, therefore, is notable not so much for its result – upholding the individual mandate – as for the reluctance with which it reached it.  

After acknowledging the novelty of the power Congress is asserting, the court expressed concern at “the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.”  In other words, the majority saw itself bound by the Supreme Court’s broad reading of federal power under the Commerce Clause but felt “discomfort” at reaching a result that seemingly had no bounds.  

Indeed, the government has yet to tell any court in any of the cases what it cannot do under the guise of regulating interstate commerce.  But rest assured that the Supreme Court will ask again, and soon – it considers the myriad cert petitions later this week.  And if the high court is as unsatisfied with the government’s jurisprudential non-theory as the D.C. Circuit was, it will not hesitate to strike down this expansion of federal power. 

“Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,” wrote Justice Kennedy for a unanimous Court last term (United States v. Bond).  “Federalism secures the freedom of the individual.” 

I am confident that the Supreme Court will not allow this unprecedented invasion of individual liberty.

Yes, ObamaCare Will Eliminate Some 800,000 Jobs

From my article “ObamaCare–The Way of the Dodo” in Virtual Mentor, a journal of the American Medical Association:

The CBO projects the law will eliminate an estimated 800,000 jobs. The fashionable retort is to note that this effect “primarily comes from workers who choose not to work because they no longer have to work at jobs just for the health insurance.” That defense fails for two reasons. First, a “job” is when Smith and Jones exchange labor for money. It doesn’t matter whether Jones withdraws the money or Smith withdraws the labor. Either act eliminates a job. Second, it’s an odd defense of a law to say it encourages people to consume without producing.

Emphasis added; citations embedded as hyperlinks.

Put differently: why should we care only about someone not getting a paycheck and not at all about a job left undone?

Update: When he’s talking about something other than ObamaCare, President Obama himself acknowledges that suppressing the labor supply is as harmful as suppressing demand. Obama laments how government policies “cost[] us hundreds of billions of dollars in wages that will not be earned, jobs that will not be done, and purchases that will not be made.”

ObamaCare—The Way of the Dodo

In the latest issue of Virtual Mentor, a journal of the American Medical Association, I try to capture the multiple absurdities that make up ObamaCare. An encapsulation:

During the initial debate over ObamaCare, House Speaker Nancy Pelosi (D-CA) famously said, “We have to pass [it] so you can find out what’s in it.” One irreverent heir to Hippocrates quipped, “That’s what I tell my patients when I ask them for a stool sample.” The similarities scarcely end there…

ObamaCare supporters are ignoring the federal government’s dire fiscal situation; ignoring the law’s impact on premiums, jobs, and access to health insurance; ignoring that a strikingly similar law has sent health care costs higher in Massachusetts; ignoring public opinion, which has been solidly against the law for more than 2 years; ignoring the law’s failures (when they’re not declaring them successes); and ignoring that the law was so incompetently drafted that it cannot be implemented without shredding the separation of powers, the rule of law, and the U.S. Constitution itself. Rather than confront their own errors of judgment, they self-soothe: The public just doesn’t understand the law. The more they learn about it, the more they’ll like it…

This denial takes its most sophisticated form in the periodic surveys that purport to show how those silly voters still don’t understand the law. (In the mind of the ObamaCare zombie, no one really understands the law until they support it.) A prominent health care journalist had just filed her umpteenth story on such surveys when I asked her, “At what point do you start to question whether ObamaCare supporters are just kidding themselves?”

Her response? “Soon…”

(For more proof that ObamaCare supporters can draw from an apparently bottomless well of denial, see this article by Politico.)

The CLASS Act: This Is Confidence-Inspiring?

In the Daily Caller, I explain how the failure of ObamaCare’s “CLASS Act” highlights the fatal flaws in the rest of the law:

As it turns out, CLASS collapsed even before its 2012 start date. The same thing happened when Obamacare imposed the same sort of price controls on health insurance for children in September 2010: the markets for child-only coverage collapsed in a total of 17 states, and are slowly collapsing in even more…

In the face of this setback, Obamacare supporters are naturally declaring victory. Jonathan Cohn of The New Republic sees “vindication.” Kevin Drum of Mother Jones proudly announces, “What happened here is that government worked exactly the way it ought to.” The Washington Post’s Ezra Klein instructs, “The CLASS experience should, if anything, make us more confident in the underlying law.” It’s hard to argue with such logic, but let’s try…

Obamacare inspires confidence in its supporters, then, because one part of the law throws a Hail Mary pass to prevent another part of the law from stripping Americans of the insurance that currently protects them from illness and impoverishment. Feel safer?

So if you’d like secure protection from illness and impoverishment, repeal ObamaCare. Or say your prayers.

Obamacare Litigation Update: All the Briefs the Supreme Court Needs to Take the Case Are In

In the last week, we’ve seen another slew of Supreme Court filings regarding the various Obamacare lawsuits.  Most notably, the private plaintiffs in the Florida/Eleventh Circuit case (the NFIB and two individuals)—represented by Mike Carvin and Randy Barnett, among others—filed their response to the government’s cert petition last Friday, two weeks before it was due! 

So, as with the cert petitions themselves at the end of September, the private plaintiffs initiated a “filing cascade” (my phrase, not a legal term of art) and forced the government’s hand.  The government then filed its consolidated response (to both the private and state plaintiff petitions) on Wednesday, and the (26) state plaintiffs—represented by former solicitor general Paul Clement—also filed their response to the government’s petition.

Got all that?  It basically means that all the necessary filings are in and the case is “ready for distribution” to the justices’ chambers for consideration of the cert petitions, which could happen as early as the Court’s November 10 conference. That means we could see an order about which case(s)/issue(s) the Court is taking as early as November 14.

So that’s the timing.  A brief note on substance: As you may recall, the Eleventh Circuit plaintiffs want the Court to review the following issues: whether the individual mandate exceeds federal power, the new Medicaid regulations/expansion as coercing the states, the mandate that states provide health insurance in their roles as employers, and severability.  The government, for its part, wants the Court to review the individual mandate, whether the Anti-Injunction Act makes the suits unripe (it argues that the AIA doesn’t apply but still, oddly, wants the Court to weigh in), and severability.  On this last point, the government has reiterated its position that if the individual mandate falls, the guaranteed-issue and community-rating provisions must fall with it—a position that garnered some media attention but is both consistent with its previous arguments and honest lawyering.  (It’s disingenuous as a matter of basic economics to argue that the overall reform can survive without the individual mandate, even if that’s the incongruous position that the Eleventh Circuit took rejecting the government’s “concession” on severability.)  Of course, the government is also hoping that the idea that striking the individual mandate also means striking the provision requiring coverage of pre-existing conditions will make the Court hesitant to do so.

Note that the government also filed its response to the Liberty University petition and still has time to file a response to Virginia’s cert petition (on the state standing issue), both out of the Fourth Circuit.  It argues, as do the Eleventh Circuit plaintiffs, that the Court should hold these petitions (as well as the Thomas More Legal Center’s out of the Sixth Circuit) pending resolution of the Eleventh Circuit case.   Finally, the D.C. Circuit has yet to issue its opinion in the Obamacare case argued there a month ago.

For more on both the timing and which issues the Court is likely to take, see Lyle Denniston’s excellent analysis at SCOTUSblog.