Tag: individual mandate

Has ObamaCare’s Unpopularity Caused ‘Abject Panic at the White House’?

Politico has obtained and published a confidential messaging-strategy presentation that essentially admits ObamaCare supporters are losing the battle for public opinion.  The presentation was delivered to professional leftists by the left-wing Herndon Alliance, based on public opinion research by Democratic pollsters John Anzalone, Celinda Lake, and Stan Greenberg, in a forum organized by the left-wing group Families USA,  “one of the central groups in the push for the initial legislation.”  It is a stark admission that the public has not warmed to the new health care law, despite predictions that they would do so. 

Here’s how Politico describes the presentation and its implications:

Key White House allies are dramatically shifting their attempts to defend health care legislation, abandoning claims that it will reduce costs and deficit, and instead stressing a promise to “improve it.”

…The confidential presentation … suggests that Democrats are acknowledging the failure of their predictions that the health care legislation would grow more popular after its passage, as its benefits became clear and rhetoric cooled. Instead, the presentation is designed to win over a skeptical public, and to defend the legislation — and in particular the individual mandate — from a push for repeal…

The presentation concedes that groups typically supportive of Democratic causes — people under 40, non-college educated women, and Hispanic voters — have not been won over by the plan. Indeed, it stresses repeatedly, many are unaware that the legislation has passed, an astonishing shortcoming in the White House’s all-out communications effort.

“Straightforward ‘policy’ defenses fail to [move] voters’ opinions about the law,” says one slide. “Women in particular are concerned that health care law will mean less provider availability – scarcity an issue.”

The presentation also concedes that the fiscal and economic arguments that were the White House’s first and most aggressive sales pitch have essentially failed.

“Many don’t believe health care reform will help the economy,” says one slide.

The presentation’s final page of “Don’ts” counsels against claiming “the law will reduce costs and deficit.”

Reason magazine’s Peter Suderman notes that ObamaCare supporters are “backing down from core arguments about cost and deficit reductions in the new health care law… It’s a frank admission that the economic argument in favor of the law has basically failed amongst voters.”

These revelations come at the same time a CNN/Opinion Research poll shows ObamaCare’s individual mandate is increasingly unpopular.  Politico reports:

Just 44 percent favor the health care mandate… Fifty-six percent oppose the mandate, up 3 percentage points from when the bill passed.

Americans still support ObamaCare’s price controls — which force insurance companies to over-charge the healthy and under-charge the sick — by 58-42 percent.  But as President Obama has himself acknowledged, those price controls don’t work without the individual mandate.  Unless a majority also supports the mandate, you don’t have majority support for either.

The Washington Examiner’s David Freddoso speculates there is “abject panic at the White House” over the unpopularity of ObamaCare.

Partnership, ObamaCare-Style: Jump, or Be Pushed

Financial Times writes:

The federal government will step in to ensure that the Obama administration’s health care reforms are implemented in every state, Kathleen Sebelius, the health secretary, said, amid growing resistance to the changes in some parts of the US and an inability to act in others.

The article quotes Health and Human Services Secretary Kathleen Sebelius:

The way the bill is written, it really is a state-based programme with the federal government providing the back-up.  So if a state opts not to set up a risk pool, we do it here at the department. If the state opts not to regulate their insurance market, we do it…

It is not a federal takeover, it’s really a partnership.

Yes, a partnership not unlike that between the Soviet Union and, say, Czechoslovakia.

The Obama administration has good reason to emphasize its conception of this “partnership:”

[S]ome big states, including California and Florida, said they did not have the legal authority to enforce the new consumer protection standards, while others face such severe budget crises that they will struggle to pay for provisions, such as the expanded Medicaid services for lower-income groups, required under the law….

Separately, more than 20 states are challenging a mandate that requires almost all Americans to have some form of insurance by 2014 as unconstitutional. A judge in Virginia has said a challenge brought by the state’s attorney-general can proceed, while Arizona, Florida and Oklahoma will soon follow in Missouri’s footsteps by holding yes-or-no referendums on the mandate….

“Federal/state relations is one of the biggest challenges to implementing healthcare reform,” said Diane Rowland, executive vice-president of the Kaiser Family Foundation, a non-partisan health policy group. “Many of the states are facing fiscal crises and they have real capacity issues.”

Sebelius is undeterred:

The legal challenges will work their way through…. It doesn’t slow anything down. This is the law of the land.

Maybe, but then again, maybe not.

Kagan’s Confirmation Could Be High-Water Mark for Big Government

Elena Kagan’s confirmation represents a victory for big government and a view of the Constitution as a document whose meaning changes with the times.  Based on what we learned the last few months, it is clear that Kagan holds an expansive view of federal power – refusing to identify, for example, any specific actions Congress cannot take under the Commerce Clause.  She will rarely be a friend of liberty on the Court.

It is thus telling that Kagan received the fewest votes of any Democratic nominee to the Supreme Court in history, beating the record set only last year by Sonia Sotomayor.  Even several senators who had voted for Sotomayor voted against Kagan, including Democrat Ben Nelson – as did Scott Brown, the darling of these high-profile Senate votes.

It was Scott Brown’s election, after all, that signaled that last year’s elections in Virginia and New Jersey were no fluke, that whether people lived in a Red, Blue, or Purple state, they were tired of bailouts, “stimulus,” re-regulation, and, especially, the government takeover of one-sixth of our economy.  This anger has only grown since then, making itself felt most recently in Missouri voters’ overwhelming (71-29) rejection of the individual health insurance mandate.

“Where does the government get the constitutional authority to do this?” the cry goes up across the land.  Elena Kagan won’t give a satisfactory answer but the American people are right to continue asking.

Federal Judge Denies Obama Administration’s Motion to Dismiss Virginia’s ObamaCare Lawsuit

From The Los Angeles Times:

RICHMOND, Va. (AP) — Virginia’s lawsuit challenging the Obama administration’s health care reform law has cleared its first legal hurdle.

U.S. District Judge Henry Hudson on Monday denied the Justice Department’s request to dismiss the lawsuit.

Virginia Attorney General Ken Cuccinelli claims that Congress does not have the authority under the Constitution’s Commerce Clause to require citizens to buy health insurance or pay a penalty.

The Virginia General Assembly passed legislation this year exempting state residents from the coverage mandate.

More than a dozen other state attorneys general have filed a separate lawsuit in Florida challenging the federal law, but Virginia’s lawsuit is the first to go before a judge.

Randy Barnett in the Wall Street Journal: “A Commandeering of the People”

Cato senior fellow Randy Barnett is the subject of the Wall Street Journal’s nearly-full-page Weekend Interview. Randy talks about interpreting the Constitution with “a presumption of liberty,” the subtitle of his book Restoring the Lost Constitution; about the Supreme Court’s expansion of government power from Wickard v. Filburn to Gonzales v. Raich; and especially about the constitutionality of the new health care bill and its individual mandate. Randy wrote an amicus brief with Cato in support of the Virginia attorney general’s challenge to the health care mandate.

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

For the full legal argument, read the brief.

RomneyCare Advocates: We Swear, This Time Centralized Planning Will Work

You know things aren’t going well in Massachusetts when supporters of RomneyCare write “there’s some evidence that the reforms signed into law by Mitt Romney in 2006 are struggling.”  That’s how The Washington Post’s Ezra Klein puts it in a post defending RomneyCare.  The New Republic’s Jonathan Cohn offers a similar defense.

Klein mentions only a few of the difficulties confronting Massachusetts.  Here are a few more:

  • The Commonwealth Fund reports that even though Massachusetts already had the highest health insurance premiums in the nation, premiums rose faster post-RomneyCare than anywhere else; 21-46 percent faster than the national average.
  • A recent study estimates that RomneyCare has so far increased employer-sponsored health-insurance premiums by an average of 6 percent.
  • The success that Klein sees in Massachusetts’ individual market – which accounts for just 4 percent of the private market – is merely the product of shifting costs to workers with job-based coverage.
  • Contrary to Klein’s post hoc spin that RomneyCare “was never an attempt to control costs,” Romney himself promised that “the costs of health care will be reduced.”
  • Aaron Yelowitz and I find evidence suggesting that uninsured Massachusetts residents are responding to the individual mandate not by obtaining coverage but by concealing their insurance status.  Coverage gains may therefore be less than official estimates suggest.
  • Evidence is mounting that, despite stiffer penalties than ObamaCare will impose, increasing numbers of people are gaming the individual mandate by only purchasing health insurance when they need medical care. Such behavior could ultimately cause the “private” insurance market to collapse.

Nevertheless, the Klein/Cohn thesis is basically that costs have been climbing and employers have been dropping/curtailing health benefits for decades.  So you can’t blame that stuff on RomneyCare.  We should instead be thankful that Massachusetts enacted a new raft of government price controls, mandates, and subsidies to protect residents from those features of “the American health-care system.”

The only problem is that “the American health-care system” is the product of the old raft of government price & exchange controls, mandates, and subsidies.  The largest purchaser of medical care in the country (and the world) is MedicareMedicaid is second.  The Left complains so much about fee-for-service medicine fueling rising health care costs and reducing quality, you’d never know that their beloved Medicare program is the primary reason for its dominance.  Likewise, the reason why employers are dropping and curtailing coverage is that the government turned the private health insurance market into an unsustainable employment-based system that is doomed to unravel.  Cohn’s book documents the inhumanity of that system so well, you’d think it would sour him on the sort of centralized planning that created it.  I could go on…

RomneyCare and its progeny ObamaCare are attempts by the Left’s central planners to clean up their own mess.  If Klein and Cohn want to defend those laws, pointing to the damage already caused by their economic policies won’t do the trick.  They need to explain why government price & exchange controls, mandates, and subsidies will produce something other than what they have always produced.

Government Essentially Concedes Commerce Clause Challenge to Obamacare, Calls Individual Mandate a Tax

This Sunday’s New York Times had a fascinating story about how the defense of the individual mandate has shifted from the Commerce Clause – even though the law itself is replete with boilerplate about “economic activity” – to Congress’s taxing power.  Here’s the first paragraph (h/t Jonathan Adler):

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

This is huge.  After months of arguing that cases like Wickard v. Filburn (Congress can regulate the wheat farmers grow for personal consumption) and Gonzales v. Raich (Congress can regulate personal growth of state-allowed medicinal marijuana) justify the requirement that every man, woman, and child buy a health insurance policy, government lawyers (and spokesmen) now say the mandate is just a regulation accompanying a lawful tax (the penalty you pay for not buying insurance).  After I spent most of April and May criss-crossing the country debating the constitutionality of Obamacare, it turns out that my opponents were barking up the wrong tree!

But don’t just take it from me.  Here’s Georgetown law professor and Cato senior fellow Randy Barnett’s dissection of the Times story and its significance.  An excerpt:

Now there are cases that say (1) when Congress does not invoke a specific power for a claim of power, the Supreme Court will look for a basis on which to sustain the measure; (2) when Congress does invoke its Tax power, such a claim is not defeated by showing the measure would be outside its commerce power if enacted as a regulation (though there are some older, never-reversed precedents pointing the other way), and (3) the Courts will not look behind a claim by Congress that a measure is a tax with a revenue raising purpose. 

But I have so far seen no case that says (4) when a measure is expressly justified in the statute itself as a regulation of commerce (as the NYT accurately reports), the courts will look look behind that characterization during litigation to ask if it could have been justified as a tax, or (5) when Congress fails to include a penalty among all the “revenue producing” measures in a bill, the Court will nevertheless impute a revenue purpose to the measure. 

Now, of course, the Supreme Court can always adopt these two additional doctrines. It could decide that any measure passed and justified expressly as a regulation of commerce is constitutional if it could have been enacted as a tax. But if it upholds this act, it would also have to say that Congress can assert any power it wills over individuals so long as it delegates enforcement of the penalty to the IRS. Put another way since every “fine” collects money, the Tax Power gives Congress unlimited power to fine any activity or, as here, inactivity it wishes! (Do you doubt this will be a major line of questioning in oral argument?) 

Well, at least they’re not (yet) relying on Rep. John Conyers’s “Good and Welfare Clause.”  (Conyers, remember, is a lawyer and chairman of the House Judiciary Committee).

For a concise legal argument against the use of the taxing power to justify the individual mandate, see Cato’s amicus brief supporting Virginia’s challenge to the health care reform.  And for a great resource on all the state lawsuits against the new law, see this new blog/website run by Santa Clara law professor Brad Joondeph.