Tag: harvard law review

Aside From That, Mrs. Lincoln, How’s ObamaCare Implementation Going?

The Washington Post has published a remarkable exposé on the Obama administration’s foundering efforts to implement ObamaCare.

The article paints a picture of a White House that did not know what it was getting into, either in terms of public opposition or the technical challenges of implementation. It likens the task of getting young adults to buy ObamaCare’s health plans to getting young adults to vote, despite a glaring difference between those challenges. (Hint: one of them requires young adults to shell out hundreds of dollars per month.) But this exposé is most remarkable for not exposing two lawsuits that by far pose the greatest challenge to ObamaCare’s survival.

One indication that implementation is not going well is what the Post quotes ObamaCare’s supporters as saying:

“In 2011, there was this ‘we’re going to save the world’ mentality. In 2013, it focuses more on how do we deliver on the requirements of the law.”

“It’s pretty much a black box.”

“They tell us, ‘It’s freakishly on schedule.’ They use those exact words. But only the people who work in this can tell you if it’s actually running on time.”

“Advocates on the ground are really struggling with that group. They want to have a positive message but don’t know what to say.”

“We’re in an environment [now] where 40 percent are against it, 35 percent are for it and neither side knows what’s actually in it.”

“How hard does the insurance department or Medicaid department in a red state [that opposes the law] make it to implement this?”

“Everybody is having sleepless nights given the magnitude of the effort and the short amount of time.”

“It’s like building a bridge from both ends and hoping, in the end, they connect.”

“I read [the delay of the employer-mandate] as an admission that not all of the components of the [data] hub are working.”

“Some of the guidance from the federal government is still coming. That means we can’t get to our wishlist.”

As bad as these evaluations are, things are actually quite a bit worse.

For one thing, the HuffingtonPost/Pollster.com polling aggregator currently shows that 52.5 percent of Americans are against ObamaCare, compared to 40.5 percent are for it. That’s a 12-point gap, not a five-point gap. It’s also the largest gap that aggregator has ever measured.

For another, the Washington Post acknowledges that if young adults don’t sign up for ObamaCare’s over-priced insurance “the law will fail,” and acknowledges the difficulty of getting young adults to over-pay for insurance. But it still downplays that challenge:

When…asked in a recent survey whether a $210 premium was affordable, only 29 percent of likely marketplace enrollees said yes. [Marketers then told] participants that, with their tax credits, they would save “$1,908 a year compared to what you would pay on your own.”

All of a sudden, 48 percent of the participants thought that insurance was affordable. But 48 percent is still less than half.

That number will turn out to be even lower when young adults realize they’re still shelling out that $210 they already said they cannot afford.

But the Post neglects to mention the greatest threat to the law’s survival: those tax credits may not even be there in two-thirds of the country.

The attorney general of Oklahoma, and a group of small employers and individuals from various states, have each filed lawsuits challenging the Obama administration’s plans to issue those tax credits in the 34 states that have opted not to establish one of ObamaCare’s health insurance “exchanges” themselves. The statute quite clearly authorizes those credits (and related subsidies) only “through an Exchange established by the State.” Nowhere, and in no way, does federal law allow the administration to issue entitlements through the 34 state-based Exchanges established and operated by the federal government. Yet the White House is trying to spend an estimated $700 billion over 10 years in those states without congressional authorization.

Both the non-partisan Congressional Research Service and Harvard Law Review have acknowledged these lawsuits are credible. Plaintiffs in one of the suits have asked the court to block that illegal spending before it begins in 2014. Supporters of the law admit that if that happens, ObamaCare doesn’t just fail, it collapses.

So the question this supposed exposé really answers is: aside from that, Mrs. Lincoln, how’s ObamaCare implementation going?

More Questions for Secretary Sebelius

Given the growing concern even among Democrats that ObamaCare will result in a “huge train wreck” later this year, I have a few questions for Health and Human Services Secretary Kathleen Sebelius to add to my previous list:

  1. What happens if a federal court (say, the Eastern District of Oklahoma) issues an injunction barring HHS from making “advance payments of tax credits” in the 33 states with federal Exchanges?
  2. Has HHS done any planning for that contingency? If so, what are those contingency plans?
  3. If HHS has not, why not? Given that the Congressional Research Service and Harvard Law Review both say there’s a credible case that the PPACA forbids tax credits in the 33 states with federal Exchanges, how could HHS not have a contingency plan ready?

For more on how HHS is violating federal law by planning to issue advance payments of tax credits through federal Exchanges, read my Cato white paper, “50 Vetoes: How States Can Stop the Obama Health Care Law,” and my Health Matrix article (with Jonathan Adler), “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.

Questions for Secretary Sebelius

Secretary of Health and Humans Services Kathleen Sebelius has been making the rounds on Capitol Hill, testifying in favor of President Obama’s proposed budget and generally trying to assure members of Congress that all is well with ObamaCare implementation. Even supporters of the law are freaking out nervous, as I discuss here.

Since everyone else is pestering Sebelius with questions, I thought I would post some questions I would like to hear her answer.