Tag: Obamacare

What If Cuccinelli Had Sent that Letter to Planned Parenthood?

The following analogy may help to explain why everyone should be troubled by HHS Secretary Kathleen Sebelius’ efforts to intimidate insurance companies who say unflattering things about ObamaCare.

Last month, Virginia Attorney General Ken Cuccinelli (R), issued an opinion that state regulatory boards already have the authority to impose additional regulations on abortion clinics.  Critics pounced, claiming that the measure could shut down 17 of the state’s 21 clinics. What if Cuccinelli responded with a letter threatening to investigate clinics that “misinform” the public about the costs of such regulation?

Sebelius’ Prior Restraint on Speech

Here’s something else to consider about HHS Secretary Kathleen Sebelius’ threatening letter to health insurers who dare to tell their enrollees about how much ObamaCare is costing them.

Sebelius threatened insurers for claiming ObamaCare will increase premiums by as much as 9 percent.  Yet there were no threats issued against the RAND Corporation when it estimated ObamaCare will increase premiums for young adults by an average of 17 percent beginning in 2014, or against Milliman Inc. when it likewise estimated premium increases of 10-30 percent for young adults.  The reasons for the disparate treatment are fairly obvious. Sebelius has less power over RAND or Milliman, and bullies always find it easier to pick on the unpopular kid.

But an equally important implication is that Sebelius knows that ObamaCare’s largest premium increases are yet to come.  Sebelius may be intimidating insurers now to prevent them from blaming those much larger premium increases on ObamaCare.

ObamaCare’s Threat to Free Speech

On Friday, I blogged about HHS Secretary Kathleen Sebelius’ letter to the health insurance lobby, in which she attempts to stifle political speech by using the new powers that ObamaCare grants her to threaten health insurance companies that claim ObamaCare’s coverage mandates are one cause behind rising premiums.  (Never mind that the insurers’ estimates – which project that ObamaCare will increase premiums in 2011 by as much as 9 percent – are in line with those put forward by HHS.)

Here’s a smattering of reactions from others.

  • The Wall Street Journal: “The Health and Human Services secretary…warned that ‘there will be zero tolerance for this type of misinformation and unjustified rate increases.’   Zero tolerance for expressing an opinion, or offering an explanation to policyholders? They’re more subtle than this in Caracas.”
  • Chicago Tribune: “President Obama’s health care reform plan, enacted in March, is not terribly popular with the American people…The administration can’t tell the public to stop grousing. It can, however, try to silence health insurers who have the nerve to say out loud what basic economic theory indicates…Apparently, harsh punishment is in store for anyone who refuses to parrot the administration line. But there is every reason to think this alleged libel is true.”
  • Tyler Cowen: “Nowhere is it stated that these rate hikes are against the law (even if you think they should be), nor can this ‘misinformation’ be against the law…[The letter] is worse than I had been expecting.”
  • Ed Morrissey: “Rarely have we heard a Cabinet official tell Americans to stay out of political debates at the risk of losing their businesses. It points out the danger in having government run industries and holding a position where politicians can actually destroy a business out of spite.”
  • Michael Barone: “Sebelius is threatening to put health insurers out of business in a substantial portion of the market if they state that Obamacare is boosting their costs…The threat to use government regulation to destroy or harm someone’s business because they disagree with government officials is thuggery. Like the Obama administration’s transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.”
  • Eugene Volokh: “even if such action would be constitutionally permissible, it would be quite troubling, as would threats that seem to hint as such action: It would involve the Administration’s deliberately trying to suppress criticism of its policies, under a ‘misinformation’ standard that sounds highly subjective and politically contestable. (Consider [Sebelius’] reference ‘to our analysis and those of some industry and academic experts’ — what about the analysis of other industry and academic experts?) Perhaps I’m missing some important context here. But my first reaction is that this is ominous behavior on the Administration’s part, and seems to have both the intent and effect of suppressing criticism of the Administration’s policies — including criticism that simply expresses opinions the Administration dislikes, and makes estimates that it disagrees with, and not just criticism that contains objectively demonstrable ‘misinformation.’”

In The Wall Street Journal, economist Russ Roberts recently explained one of the main themes of Friedrich Hayek’s The Road to Serfdom:

When the state has the final say on the economy, the political opposition needs the permission of the state to act, speak, and write. Economic control becomes political control.

One need not agree with all of Hayek’s conclusions to see how ObamaCare is threatening political freedom.

Slouching Towards a New Supreme Court Term

We’re now three weeks away from the new Supreme Court term – I know you’re as excited as I am – and after a summer that included big opinions from The Nine, more confirmation hearings, and front-page district court decisions (on ObamaCare, immigration, and gay marriage), we roll into a fall full of even more legal intrigue.  Indeed, the first Monday of October that marks the first high court arguments of the new season is pretty much the first day of school for us Court-watchers.  And what better way to go back to school than to attend Cato’s ninth annual Constitution Day symposium this coming Thursday?

But don’t think that Constitution Day marks my re-emergence into the public sphere after a long six weeks slaving away at the Cato Supreme Court Review.  No, that moment, when I opened my office door, shook off the cobwebs, and went forward into our glorious future came last week, with panels on ObamaCare and immigration reform at the University of Virginia and Liberty University, respectively.  Those two law schools did a wonderful job in organizing and publicizing their events.  And here’s the rest of my schedule through the end of October, many of which continue my ObamaCare debate challenge (events sponsored by the Federalist Society are asterisked):

  • Sept. 13 at 1pm at Boston University Law School - Preview of the New Supreme Court Term*
  • Sept. 14 at noon at Harvard Law School - Debate on the Constitutionality of Obamacare against Prof. Mark Tushnet*
  • Sept. 17 at noon at Rayburn House Office Building B-340 - Capitol Hill Briefing on the Supreme Court and Economic Liberty
  • Sept. 20 at 5pm at Loyola University Law School (Chicago) - Panel on the Constitutionality of Obamacare*
  • Sept. 21 at noon at Northwestern University Law School (Chicago) - Preview of the New Supreme Court Term*
  • Sept. 22 at noon at University of Illinois at Urbana-Champaign - Debate on the Constitutionality of ObamaCare*
  • Sept. 25 - George Mason law professor and Cato adjunct scholar Ilya Somin’s wedding - Please do congratulate him!
  • Sept. 28 at 12:30 - University of Kansas Law School - Debate on the Constitutionality of ObamaCare*
  • Sept. 29 at lunch - Kansas City Federalist Society Lawyers Chapter - ObamaCare and Missouri’s Prop C*
  • Sept. 30 at 8:30 - Missouri Bar Association Annual Meeting - Panel on the Supreme Court
  • Sept. 30 at 1pm - University of Missouri Law School - The Constitutionality of Obamacare*
  • Oct. 4 at 10am - U.S. Supreme Court - First Monday!
  • Oct. 5 at 5pm - Widener University Law School (Delaware) - The Constitutionality of Obamacare*
  • Oct. 9 at 7pm - Washington Capitals home opener against the New Jersey Devils (I’m a season-ticket holder)
  • Oct. 12 at noon - Lewis & Clark University Law School (Portland, OR) - TBD*
  • Oct. 12 in the evening - Portland Federalist Society Lawyers Chapter - TBD*
  • Oct. 13 at noon - Willamette University Law School - TBD*
  • Oct. 16 at 6pm - University of Toronto Schools Centennial Gala (Go Blues!)
  • Oct. 19 at noon - University of Southern California Law School (L.A.) - Immigration*
  • Oct. 20 at noon - Chapman University Law School - Immigration*
  • Oct. 21 at noon - Orange County Federalist Society Lawyers Chapter - TBD*
  • Oct. 22 all day - Chapman University Law School Nexus Journal of Law & Policy Symposium - “Citizens Divided on Citizens United: Campaign Finance Reform and the First Amendment”
  • Oct. 26 at lunch - Stanford University Law School - TBD*
  • Oct. 27 at noon - University of the Pacific Law School (Stockton, CA) - Debate on the Constitutionality of Obamacare*
  • Oct. 28 at 12:45 - University of California at Berkeley Law School - Debate on Judicial Activism*

If you come out to any of these events, please do come up and introduce yourself.

Secretary Sebelius Slips on the Brass Knuckles

This week saw more bad news for ObamaCare.  So the Obama administration slipped on the brass knuckles.

Last week brought news that health insurance premiums grew by a smaller increment in 2010 than in any of the past 10 years.  On Tuesday, The Wall Street Journal reported that ObamaCare appears to be turning that around:

Health insurers say they plan to raise premiums for some Americans as a direct result of the health overhaul in coming weeks, complicating Democrats’ efforts to trumpet their signature achievement before the midterm elections. Aetna Inc., some BlueCross BlueShield plans and other smaller carriers have asked for premium increases of between 1% and 9% to pay for extra benefits required under the law, according to filings with state regulators.

The Journal even included this handy chart, where the blue bars show how much ObamaCare will add to the cost of certain health plans in 2011.

Source: Wall Street Journal

In addition, a Mercer survey of employers found that 79 percent expect they will lose their “grandfathered” status by 2014, and therefore will become subject to many more of ObamaCare’s new mandates—a much higher figure than the administration had estimated.  Employers expect those additional mandates will increase premiums by 2.3 percent, on average, and boost the overall growth of premiums from 3.6 percent to 5.9 percent in 2011.

In response to the health insurers’ claims, HHS Secretary Kathleen Sebelius fired off a letter to the head of the health insurance lobby.  The news release on the HHS website makes her purpose plain:

U.S. Department of Health and Human Services Secretary Kathleen Sebelius wrote America’s Health Insurance Plans (AHIP), the national association of health insurers, calling on their members to stop using scare tactics and misinformation to falsely blame premium increases for 2011 on the patient protections in the Affordable Care Act.  Sebelius noted that the consumer protections and out-of-pocket savings provided for in the Affordable Care Act should result in a minimal impact on premiums for most Americans.  Further, she reminded health plans that states have new resources under the Affordable Care Act to crack down on unjustified premium increases.

In the letter, Sebelius cites HHS’s internal analyses and those of Mercer and other groups to support her claim that ObamaCare’s impact on premiums “will be minimal” — somewhere in the range of 1 percent to 2.3 percent, on average.  Sebelius tells insurers that she will show “zero tolerance” for insurers who “falsely” blame premium increases on ObamaCare, and promises aggressive action against those who do:


[We] will require state or federal review of all potentially unreasonable rate increases filed by health insurers… We will also keep track of insurers with a record of unjustified rate increases: those plans may be excluded from health insurance Exchanges in 2014.  Simply stated, we will not stand idly by as insurers blame their premium hikes and increased profits on the requirement that they provide consumers with basic protections.

First of all, how does Sebelius know these claims are false?  The analyses she cites project a 1-2 percent average increase in premiums. As I blogged back in June, her own agency estimated that just a couple of ObamaCare’s mandates will increase premiums for some health plans by 7 percent or more.  Is 9 percent really that far off?  Didn’t her own agency write that a “paucity of data” means there is “tremendous,” “substantial,” and “considerable” uncertainty about the reliability of their own estimates?

More important: so what if insurers believe that ObamaCare is increasing premiums by 9 percent, while Sebelius believes it only increased premiums 7 percent?  What business does she have threatening insurers because they disagree with her in public?  ObamaCare gave the HHS secretary considerable new powers.  Is one of those the power to regulate what insurers say about ObamaCare?  Excluding insurers from ObamaCare’s exchanges is not a minor threat.  Medicare’s chief actuary predicts that in the future, “essentially all” Americans will get their health insurance through those exchanges.  Does anyone seriously doubt that Sebelius’ threat is about protecting politicians rather than consumers?

When President Obama promised that he would sell ObamaCare to the American people, most people probably assumed he meant with his rhetorical skills.  But National Journal reports, “Remember how the administration was going ‘to sell’ the controversial legislation once it passed? Obama is not doing much pitching.”  He can’t even sell Jon Stewart on ObamaCare.  The administration seems to have settled on a different sales strategy: intimidate those who say unflattering things about ObamaCare.

Earlier this year, I predicted that ObamaCare would get uglier and more corrupt over time.  I didn’t know I’d be proven right so quickly.

One Signature Closer to a Vote on Obamacare Repeal

This morning, in a column for National Review Online, I criticized a number of Democrats and Republicans who voted against Obamacare but had not signed a discharge petition that would force a floor vote on repealing the new health care law. One of the Republicans I singled out was Rep. Castle of Delaware, who is now seeking the GOP nomination for US Senate. This afternoon, Rep. Castle’s staff informed me that he intends to sign that petition as soon as he returns to Washington after the recess. That leaves five Republicans who have not signed.  For the record, they are: Mark Kirk of Illinois, Joseph Cao and Charles Boustany of Louisiana, David Reichert of Washington, and Shelley Moore Capito of West Virginia.