Tag: Obamacare

Is It ‘Weird’ for Congress to Consider the Constitutionality of Legislation Before Voting on It?

Slate columnist Dahlia Lithwick seems to think so (h/t David Bernstein).  So I’m not accused of taking Lithwick’s words out of context, here’s the relevant passage, discussing Senate nominee Christine O’Donnell (R-DE):

O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution? In 2003, O’Donnell said of the Supreme Court that “it’s kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system.” So I do wonder a little whether she’s claiming that her view of what’s constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

Apparently Lithwick doesn’t know that senators and congressmen (and a whole host of other officials – including federal law clerks of the kind both she and I were at some point) swear an oath to uphold the Constitution.  It seems that it would be hard to fulfill that oath if you don’t in good faith and to the best of your ability consider the constitutional dimension of whatever you’re voting on.  Yes of course not all congressmen are lawyers – though it’s unclear whether being one and even chairing the judiciary committee helps one think through constitutional issues – but you shouldn’t have to be a constitutional scholar to see that, for example, Congress cannot force everyone to eat three servings of fruits and vegetables daily.  (Though now-Justice Elena Kagan refused to say that.)

Indeed, the Constitution is silent as to which branch of government is to review the constitutionality of legislation.  Moreover, as we know from the foundational case of Marbury v. Madison, the judiciary’s role in doing so is merely (but rightly) implied, not explicit, in constitutional text.  There is no “weirdness” in courts exercising their constitutional powers by ruling on constitutional issues brought before them in lawsuits even as the other branches make constitutionality determinations in carrying out their own duties.  After all, isn’t a president who does something he consciously knows is beyond his lawfully vested Article II authority violating his own oath of office and potentially subjecting himself to impeachment for that very reason?

Yes, long gone, unfortunately, are the days when congressional debates focused on the constitutionality of proposed bills rather than their desirability, but shouldn’t Congress at least pay lip service to the idea that it needs a constitutional warrant for everything it does?

In any event, I’ll be on a panel with Dahlia this Thursday at the Missouri Bar Association’s annual meeting and will raise this issue to her.  (May also take on her bizarre accusation that Iowa Senator Chuck Grassley was appealing sub rosa to “Christian Reconstructionists” in asking at Kagan’s confirmation hearings whether the right to keep and bear arms pre-existed the Constitution – see David Bernstein’s simple rebuttal at the Volokh Conspiracy.)

‘Democrats Guess Wrong on Health Care’

That’s the headline of an article posted this week in Politico:

Rarely have so many political strategists been so wrong about something so big.

But when it comes to the health care bill, everyone from former President Bill Clinton on down whiffed on some of the more significant predictions.

Democrats would run aggressively on the legislation? Nope. Voters would forget about the sausage-making aspects of the legislative process? Doesn’t seem that way, as the process contributed to the sense that the bill was deeply flawed.

And Clinton’s own promise to jittery Democrats that their poll numbers would skyrocket after the bill finally passed also didn’t pan out, as the party is fighting for its life in the midterms.

What can explain the miscalculation?  Maybe religious fervor?

ObamaCare Leads Minnesota Insurers to Suspend Sales

From the Minneapolis Star-Tribune:

Two of Minnesota’s biggest health plans said Thursday they have temporarily suspended sales of individual health insurance policies because of uncertainty related to the new federal health reform law.

The moves by Blue Cross and Blue Shield of Minnesota and HealthPartners came on the same day some of the federal government’s most-heralded consumer protections came into effect…

The insurers that have suspended individual sales say they are awaiting guidance on new rules, including those around coverage of kids with pre-existing conditions…

Pam Lux, a spokeswoman for Eagan-based Blue Cross, said she expects the suspension of individual sales to be brief but could not say if it would be days or weeks.

Many Supporters Not Willing to Trumpet ObamaCare’s Achievements

An interesting update on the politics of ObamaCare appears in CongressDailyPM (subscription required):

The marking of six months since the signing of the healthcare law should be a moment of celebration by Democrats, especially as several popular provisions go into effect today. But the political realities of the midterm elections have made trumpeting the law, which remains unpopular with large swaths of the electorate, a delicate balancing act for Democrats…

House leaders tell their members to address the healthcare law in a way that best suits their districts…

some Democratic members in the House and Senate instruct staff not to write talking points on the law’s six-month provisions…

a former administration official questions if Democrats’ efforts to sell the bill are making any significant headway…

It’s little wonder, really.

But still.  Wow.

Is ObamaCare Pushing Rope?

Regarding ObamaCare’s first adverse-selection death spiral, Julie Rovner posts this over at Shots, the NPR health blog:

The advocacy group Health Care for America Now was the first to bring the action to widespread attention. “Even for the insurance industry this behavior is surprisingly brazen,” HCAN Executive Director Ethan Rome wrote in a blog entry for the Huffington Post. “They don’t like the rules, so they’re going to take their ball and go home.”

But the insurance industry trade group America’s Health Insurance Plans rejected HCAN’s contention that the companies’ refusal to sell to all comers is somehow a violation of a promise made earlier this year by AHIP CEO Karen Ignagni that insurance companies would comply with regulations regarding children and pre-existing conditions.

In an interview, AHIP spokesman Robert Zirkelbach said Ignagni was responding only to promises that children wouldn’t be excluded from their parents’ plans and that if the kids are covered, the policies would include treatment of their pre-existing condition.

What emerged in the regulations, however, Zirkelbach said, was, in effect, a  requirement that insurance companies accept children even if they are already sick. That, he said, would be tantamount to exactly what companies want to avoid with the adult population — letting people wait until they are sick to sign up for insurance. Which is exactly why the insurance industry is so insistent on a coverage mandate: It needs premiums of healthy people to help cover the costs of those who are not.

In effect, ObamaCare supporters said to the public, “Give the government more power over insurance companies and the government will make health insurance more accessible and secure.”  These few paragraphs capture how that strategy has turned into a cat-and-mouse game with insurers, and is turning ObamaCare’s most attractive selling point – guaranteed coverage for kids with pre-existing conditions – into an empty promise.

In stark contrast stands the individual insurance market.  Yes, insurers there generally (but not always) charge premiums that correspond to risk, and sometimes turn people down – but that market has also been remarkably innovative when it comes to protecting sick people from higher premiums.  RAND Health economist Susan Marquis and her colleagues write, “a large number of people with health problems do obtain coverage” in the individual market: “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.”  Even as Congress debated ObamaCare, UnitedHealthcare introduced an innovative new product that protects people with employer-sponsored coverage from facing sky-high premiums when they leave their company plan.  Economist John Cochrane predicts that further innovations can make health insurance more secure and improve the quality of medical care.

Which process seems more likely to improve quality and reduce costs?  The political process, where politicians and regulators try to force insurance companies to act against their financial self-interest?  Or the market process, where self-interest forces insurers to find innovative ways to give consumers more of what they want?

How ObamaCare Threw Gays, Immigrants under the Bus

In the wake of Senate Democrats’ inability to break a GOP filibuster of the defense appropriations bill, to which Democrats hoped to attach the pro-immigration Dream Act and a repeal of the military’s “don’t ask, don’t tell” policy, the Reason Foundation’s Shikha Dalmia writes in Forbes:

But if Harry Reid was the proximate cause of this bill’s demise, ObamaCare was the fundamental cause. The ugly, hardball tactics that Democrats deployed to shove this unpopular legislation down everyone’s throat have so poisoned the well on Capitol Hill that Democrats have no good will left to make strategic alliances on even reasonable legislation anymore. When a party has such huge majorities, even small gestures of reconciliation are enough to splinter the ranks of opponents and obtain cooperation. But Democrats played the game of our way or the highway with ObamaCare, ignoring warnings that this would render them completely impotent for the rest of President Obama’s term. Indeed, Republican Senator Lindsey Graham of South Carolina,who had been working with Senator Chuck Schumer of New York to craft comprehensive immigration reform, gave up in disgust in the wake of ObamaCare.

How ironic that a president who got elected on the promise of bipartisan comity has produced nothing but partisan rancor. And his signature legislation that was supposed to save America’s most vulnerable has begun by throwing them under the bus.

Dalmia assigns Republicans their (ample) share of the blame, too.  Read the whole thing.

ObamaCare’s First Adverse-Selection Death Spiral

This is what happens when government price controls limit insurance companies’ ability to set premiums according to risk:

Note that this adverse-selection death spiral happened before ObamaCare’s price controls on child-only coverage even took effect.  (Of course, President Obama never calls them price controls.  He calls them “consumer protections.”  Some protection.)

ObamaCare supporters are in full-blown denial:

“We’re just days away from a new era when insurance companies must stop denying coverage to kids just because they are sick, and now some of the biggest changed their minds,” Ethan Rome, executive director of Health Care for America Now, an advocacy group, said in a statement. “[It] is immoral, and to blame their appalling behavior on the new law is patently dishonest.”

I’d say that brave new world is already here.

ObamaCare supporters can take comfort in this: since it might take healthy people a while to figure out that they’re better off financially if they drop their coverage and pay the individual-mandate penalty, ObamaCare’s health insurance exchanges might not collapse before their January 1, 2014, launch date.  They could last until January 2.