Tag: Obamacare

HHS Wildly Overstates the Problem of Pre-Existing Conditions — and Ignores Its Cause

On the eve of a House vote to repeal ObamaCare, the Department of Health and Human Services has released a report claiming that if repeal succeeds, “1 in 2 non-elderly Americans could be denied coverage or charged more due to a pre-existing condition.”  A few problems with that claim:

  • An HHS survey found that in 2001, only 1 percent of Americans had ever been denied health insurance.
  • Economists Mark Pauly and Len Nichols write, “the fraction of nonelderly uninsured persons…who would be rated as actuarially uninsurable is generally estimated to be very small, less than 1 percent of the population.”
  • RAND health economist Susan Marquis and her colleagues find that in markets that do not impose ObamaCare-style government price controls on health insurance, such as California’s individual market, ‘‘a large number of people with health problems do obtain coverage…Our analysis confirms earlier studies’ findings that there is considerable risk pooling in the individual market and that high risks are not charged premiums that fully reflect their higher risk.’’
  • It is true that insurers charge higher premiums to many people with pre-existing conditions – and it is crucial that they have the freedom to do so.  Risk-based premiums create virtuous incentives for people to buy insurance while they are healthy and to be cost-conscious consumers.  They also encourage insurers to develop innovative products that protect against the risk of higher premiums.  The real problem here is that the government has created an employment-based health insurance system that denies consumers the protections that unregulated markets already provide, as well as additional protections that insurers would develop absent this government intervention.
  • ObamaCare’s health-insurance price controls will encourage insurers to deny care to the very sick people those price controls are intended to help.
  • The Obama administration projected that 375,000 people would sign up for ObamaCare’s “Pre-Existing Condition Insurance Plans” by the end of last year. But only 8,000 people enrolled in such plans by December 2010, suggesting the demand isn’t nearly as great as the administration claimed.

Upcoming Debates on Obamacare, Use of Foreign Law

Last year I hit about 35 states on various lecture/debate tours.  To round that out – and further reduce the states I’ve never visited (though Alaska, Iowa, Nebraska, and the Dakotas will stubbornly remain untrodden by my feet) – this winter I have a schedule that’s eventful but not insane like my fall was.  Here are the rest of my public events in January (all sponsored by the Federalist Society):

  • Jan. 18 at noon — Debate on the Constitutionality of Obamacare — University of Colorado-Boulder Law School 
  • Jan.19 at noon — Debate on the Constitutionality of Obamacre — University of Wyoming Law School
  • Jan.20 at 11am — Debate on the Constitutionality of Obamacare – BYU Law School 
  • Jan.24 at 12:15pm — Debate on the Use of Foreign Law in Constitutional Interpretation – University of Utah Law School 
  • Jan.26 at 5pm — Debate on the Constitutionality of Obamacare – Widener University Law School (Wilmington, DE campus) 

As always, if you attend any of these events, please do come up and introduce yourself. You can also follow me on Twitter at @ishapiro.

How the Term ‘Tax Expenditure’ Leads to Bigger Government

The Center for American Progress has a new weekly feature examining “tax expenditures” in the Internal Revenue Code.  As I’ve written before, there ain’t no such thing as a tax expenditureOr a tax subsidy.  Targeted tax breaks are bad because, on balance, they expand government’s control over the people.  But they are not “expenditures” or “subsidies.”  Using either of those terms implies that the money not collected by the IRS because of a targeted tax break actually belongs to the federal government, rather than the people who earned it.

The Left would love to convince everyone that, as the Center for American Progress writes, “Tax expenditures are really just federal spending programs administered by the Internal Revenue Service.”  If everyone believes that this is really federal spending, then when Congress eliminates those “tax expenditures” maybe no one will notice that Congress is actually extracting resources from the private sector.

That very deception appears to be the aim of the Center for American Progress’ new feature.  Their first “Tax Expenditure of the Week” is the exclusion for employment-based health insurance.  They use the “tax expenditure” concept to argue that ObamaCare’s 40-percent “Cadillac tax” on high-cost health plans is actually a good thing:

The tax exclusion for employer-sponsored health care benefits is the largest tax expenditure and one of the most important. The Patient Protection and Affordable Care Act takes steps to make it more targeted and cost effective in the context of overall health care reform. Other tax expenditures should be similarly evaluated and considered in the context of the policy goals they serve.

See?  ObamaCare doesn’t raise your taxes.  It reallocates a tax expenditure.  George Orwell, call your office.

(To be clear: I favor eliminating all targeted tax breaks, even the personal and dependent exemptions, and having everyone pay the same low, low, low rate.  Eliminating tax breaks for health care is essential for bringing medical care within the reach of low-income people.  But the exclusion for employer-sponsored insurance is a particularly sticky wicket, such that reform will need to happen in two steps.  Here’s the first step.)

Republican Sellout Watch

Grousing about the GOP’s timidity in the battle against big government will probably become an ongoing theme over the next few months. Two items don’t bode well for fiscal discipline.

First, it appears that Republicans didn’t really mean it when they promised to cut $100 billion of so-called discretionary spending as part of their pledge. According to the New York Times,

As they prepare to take power on Wednesday, Republican leaders are scaling back that number by as much as half, aides say, because the current fiscal year, which began Oct. 1, will be nearly half over before spending cuts could become law.

This is hardly good news, particularly since the discretionary portion of the budget contains entire departments, such as Housing and Urban Development, that should be immediately abolished.

That being said, I don’t think this necessarily means the GOP has thrown in the towel. The real key is to reverse the Bush-Obama spending binge and put the government on some sort of diet so that the federal budget grows slower than the private economy. I explain in this video, for instance, that it is simple to balance the budget and maintain tax cuts so long as government spending grows by only 2 percent each year.

It is a good idea to get as much savings as possible for the remainder of the 2011 fiscal year, to be sure, but the real key is the long-run trajectory of federal spending.

The second item is the GOP’s apparent interest in retaining Douglas Elmendorf, the current director of the Congressional Budget Office.

Many of you will remember that the CBO cooked the books last year to help ram through Obamacare. Under Elmendorf’s watch, CBO also was a relentless advocate and defender of Obama’s failed stimulus. And CBO under Elmendorf published reports saying higher taxes would improve economic performance.

But Elmendorf’s statist positions apparently are not a problem for some senior Republicans, as reported by The Hill.

The new House Budget Committee chairman, Rep. Paul Ryan (R-Wis.), gave a very public endorsement of the embattled head of the Congressional Budget Office during his first major speech as committee head Wednesday night. …“You’re doing a great job at CBO, Doug,” Ryan said after receiving the first annual Fiscy Award for his efforts at tackling the national debt. He added that he looked forward to crunching budget numbers with him in the future.

In the long run, the failure to deal with the problems at CBO (as well as the Joint Committee on Taxation) may cause even more problems than the timidity about cutting $100 billion of waste from the 2011 budget. Given the rules on Capitol Hill, it makes a huge difference whether CBO and JCT are putting out flawed numbers.

I’ve already written that fixing the mess at CBO and JCT is a critical test of GOP resolve, and I actually thought this would be a relatively easy test for them to pass. It is an ominous sign that Republicans aren’t even trying to clean house.

PAYGO, the CBO, and Repealing ObamaCare

One could argue that exempting ObamaCare from the PAYGO requirement is appropriate given the defects in current budget rules.

By law, the CBO must follow certain rules when doing cost estimates of legislation and projecting federal spending under current law. Under those rules, CBO projects ObamaCare will reduce the deficit. No question.

But Congress often defeats those budget rules by passing legislation with “pay fors” (i.e., spending cuts) that make the budget look better, yet are highly unlikely to be sustained because they are politically implausible. A good example of this is the “sustainable growth rate” formula, where Congress promises to ratchet down the government price controls that Medicare uses to pay physicians in future years. Congress has consistently reneged when those cuts come due. The pretense of future cuts that Congress writes into law makes 10-year budget projections/deficits look better than actual, unwritten policy would suggest.

This is a recognized problem. When the CBO believes that the law and actual policy are at variance, they actually do two types of cost projections: one based on the law as written and one based on the policy they think Congress is likely to adopt, based on past performance. They call the latter their “alternate fiscal scenario.”

ObamaCare opponents submit that this law is one of those instances where law and policy are at variance. So even though ObamaCare will reduce the deficit under existing budget rules, the spending cuts (actually, reductions in future spending growth) in the law were never going to take effect anyway. The CBO, CMS, and even the IMF have all discredited the idea that ObamaCare would reduce the deficit, because they all question the sustainability of ObamaCare’s spending “cuts.” Exempting ObamaCare repeal from PAYGO rules is appropriate if those rules have failed to protect taxpayers.

Is the Administration Cooking the Books on Govt’s Share of Health Spending?

Something smells fishy here.

Today, the federal agency that runs Medicare and Medicaid released its estimates of national health expenditures in 2009.  Interestingly, the U.S. Centers for Medicare & Medicaid Services re-categorized about 6 percent of national health expenditures – well over $100 billion – from “government” to “private,” at the very moment that the government share of NHE appeared set to hit 50 percent.

Last year, CMS projected that government health spending would “account for more than half of all U.S. health care spending by 2012.”  But it looks like we were set to reach (have reached?) that milestone much sooner.  See the below table, which I made using CMS’s estimates from 2008 and Exhibit 5 (p. 16) from today’s report.

Turns out, it was the private sector spending that $100 billion each year, not the government.  Who knew?

This 6-percentage-point drop in government’s share of health spending was apparently due to “the renaming of some service and payer categories.”  A footnote leads to a page on the CMS site that isn’t active yet, so we can’t see what was recategorized from government to private spending.

Exhibit 5 of today’s report also reveals that total health care spending grew by 4 percent in 2009, while government health spending grew by 9.9 percent and private spending shrank by 0.2 percent.  Indeed, today’s report contains this money quote:

Federal health spending increased 17.9 percent between 2008 and 2009 …. In contrast, the shares of spending of households… private businesses… and state and local governments… fell by roughly one percentage point each between 2008 and 2009.
And the feds are the guys who say they’re going to control health care costs!

I can’t say for sure that there’s something fishy going on here.  But this re-categorization comes at an awfully convenient time for an administration struggling with public dissatisfaction over its, ahem, government takeover of health care.  My spidey sense is tingling.

Obamacare Reaches Its First Appellate Court

The legal battle against Obamacare has hit the appellate court level.  In October, a district court in Detroit granted the government’s motion to dismiss a lawsuit brought by the Thomas More Law Center and four individuals.  The judge there endorsed the government’s theory that federal power under the Commerce Clause could reach the decision not to buy health insurance because that decision had a substantial effect on interstate commerce.  The plaintiffs have appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, and Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief supporting that appeal.

We argue that the outermost bounds of existing Commerce Clause jurisprudence – the “substantial effects doctrine” – prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce. Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme. Even the district court recognized that “in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.” What Congress is attempting to do here is quite literally unprecedented. “The government has never required people to buy any good or service as a condition of lawful residence in the United States.” Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance 1 (1994).

Nor has it ever said that people face civil penalties for declining to participate in the marketplace. Even in the seminal New Deal case of Wickard v. Filburn, the federal government claimed “merely” the power to regulate what farmers grew, not to mandate that people become farmers, much less to force people to purchase farm products. Finally, even if not purchasing health insurance is considered an “economic activity” – which of course would mean that every aspect of human life is economic activity – there is no legal basis for Congress to require individuals to enter the marketplace to buy a particular good or service. It is no more “proper” under the Necessary and Proper Clause for the federal government to “commandeer” individuals than to “commandeer” state officials.

Just consider our brief an early Christmas present to liberty.