Tag: ppaca

Two Reasons Governors Should Stop Implementing ObamaCare

The Washington Post reports:

Practically every week, a Republican governor or lawmaker announces a new effort to kill the health-care law or undercut its implementation.

Unfortunately, many of those same governors are still implementing the law when they should be outright refusing to do so.

In my Kaiser Health News column today, I offer two reasons why (at least) Republican governors should stop implementing ObamaCare:

Swearing an oath to support the Constitution also obligates governors to use lawful means to prevent its unlawful abuse. Governors who believe ObamaCare to be unconstitutional are as duty-bound to stop implementing the law as they are to challenge it in court…

It is the height of fiscal irresponsibility to be making new spending commitments (1) when the federal deficit is $1.5 trillion and state budget deficits are a cumulative $175 billion, (2) when those new commitments create a framework for a massive new entitlement program, and (3) when that new spending comes under the auspices of a law that has been invalidated by one federal court and may be invalidated by the nation’s highest court.

So far, the only governors I’ve seen take a firm stand against implementing the law are Rick Scott (R-FL) and Sean Parnell (R-AK), who respectively govern the fourth-largest and the fourth-smallest states.  (Disclosure: I served on Rick Scott’s transition team.)

ObamaCare Falls

Federal Judge Roger Vinson has struck down the entire so-called Patient Protection and Affordable Care Act as unconstitutional.  Excerpts from the opinion:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place…

The individual mandate is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional.

[O]n the unique facts of this particular case, the record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate. This is because the individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health reform effort…

Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.

What’s more, it appears that the Obama administration must seek intervention from a higher court if it wants to keep implementing ObamaCare.  Even though Vinson declined to issue an injunction forbidding the administration to implement the law, he did so because of:

a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction”…”declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction”…Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

In other words, absent intervention from a higher court, HHS must now sit on its hands.

Talk of Replacing ObamaCare Is a Bit Premature

Now that a bipartisan coalition in the House has voted to repeal ObamaCare, an even larger bipartisan coalition has approved a Republican resolution directing four House committees to “replace” that ill-fated law.  House Resolution 9 instructs the committees to “propos[e] changes to existing law” with the following goals:

  1. “Foster economic growth and private sector job creation by eliminating job-killing policies and regulations.”
  2. “Lower health care premiums through increased competition and choice.”
  3. “Preserve a patient’s ability to keep his or her health plan if he or she likes it.”
  4. “Provide people with pre-existing conditions access to affordable health coverage.”
  5. “Reform the medical liability system to reduce unnecessary and wasteful health care spending.”
  6. “Increase the number of insured Americans.”
  7. “Protect the doctor-patient relationship.”
  8. “Provide the States greater flexibility to administer Medicaid programs.”
  9. “Expand incentives to encourage personal responsibility for health care coverage and costs.”
  10. “Prohibit taxpayer funding of abortions and provide conscience protections for health care providers.”
  11. “Eliminate duplicative government programs and wasteful spending.”
  12. “Do not accelerate the insolvency of entitlement programs or increase the tax burden on Americans;” or
  13. “Enact a permanent fix to the flawed Medicare sustainable growth rate formula used to determine physician payments under title XVIII of the Social Security Act to preserve health care for the nation’s seniors and to provide a stable environment for physicians.”

Three things about the Republicans’ “replace” effort:

First, America’s health care sector has historically been handicapped by one political party committed to a policy of (mostly) benign neglect, and another party committed to degrading that sector’s performance through government subsidies, mandates, price controls, and other exchange controls.  Republicans now appear to be taking a different posture, and that’s encouraging — but not entirely.  When Republicans set their minds to reforming health care, they are often as bad as Democrats.  (See the Republican “alternatives” to ClintonCare.  Or Medicare Part D.  Or #4-#7 above.)  Exactly how House Republicans plan to deliver on the above goals remains to be seen.

Second, no matter how House Republicans plan to deliver on the above goals, their proposals will be preferable to ObamaCare.  Republicans quite literally could not do worse if they tried.

Third, no matter how good the Republicans’ proposals are, they will be utterly ineffective so long as ObamaCare remains on the books.  ObamaCare’s influence is so pervasive and harmful that it makes real health care reform all but impossible.

So it’s a bit premature to be talking about replacing ObamaCare.

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.)

Yes, Madam Speaker, We’re Serious

During the initial legislative debate over ObamaCare, a reporter asked (now-outgoing) House Speaker Nancy Pelosi (D-CA) whether the U.S. Constitution grants Congress the power to compel Americans to purchase health insurance. Pelosi responded, “Are you serious? Are you serious?

Today, a federal court answered Ms. Pelosi’s question when it declared ObamaCare’s individual mandate unconstitutional.

Here is Pelosi’s statement responding to today’s court ruling in Cuccinelli v. Sebelius:

Pelosi Statement on Affordable Care Act Ruling in Virginia District Court

WASHINGTON, Dec. 13, 2010 /PRNewswire-USNewswire/ – Speaker Nancy Pelosi issued the following statement today after a District Court judge in Virginia ruled one provision of the Affordable Care Act unconstitutional. The judge refused to freeze implementation of the law during the appeals process, meaning Americans already benefitting from health insurance reform – or set to benefit soon – will not be affected:

“Today’s court ruling stands in stark contrast to 14 similar challenges to the Affordable Care Act – in two, federal district judges strongly upheld the law; in the other 12, the challenges have been dismissed.

“Since its enactment, health insurance reform has delivered concrete benefits to millions of Americans. Among provisions already benefitting the American people, it has offered small businesses a tax break to cover their workers, allowed young adults to stay on their parents’ plans until age 26, and provided assistance to seniors struggling to pay prescription drug costs. These changes are good for our middle class, and will not be impacted by this court’s decision to overturn a single provision of the law.

“There have been and will continue to be a wide range of attempts to weaken this law. But as in previous court rulings across the country, I am confident that the Affordable Care Act will ultimately be sustained and will keep benefitting our middle class, our families, and our businesses, indeed every American. In Congress, we will stand firm against attempts to roll back the law, including the Patient’s Bill of Rights and the critical consumer protections enacted by health insurance reform.”

SOURCE Office of the Speaker of the House

Note that Pelosi does not address the constitutional issue.

How to Tell When ObamaCare Supporters Are Nervous

Supporters have gone to great lengths to make ObamaCare appear popular or to make repeal seem impossible.  But this op-ed by my friend Jonathan Cohn made my jaw drop.

First, Cohn notes that the Senate recently voted down two efforts to repeal one of ObamaCare’s more unpopular provisions: the “1099 reporting tax,” which will place an enormous burden on small businesses.  ”Neither provision,” Cohn obliquely reports, “got enough votes to pass.”  He concludes:

Critics of health care reform [sic] this week thought they would get their first win in the campaign to repeal the Patient Protection and Affordable Care Act. Instead they got a lesson in just how politically challenging a wholesale repeal might be.

If opponents can’t even repeal the unpopular parts of ObamaCare, how can they repeal the whole thing?

Cohn neglects to mention a few important details.  The reason neither amendment received “enough votes” is because, due to procedural considerations, each would have needed a 2/3 majority to pass – i.e., 67 votes.  The Republican amendment actually received 61 votes.  (The Democratic amendment received only 44 votes.)  Reading Cohn’s account, though, you might think – and Cohn might think, or just want you to think – that both failed because they lacked majority support.  In fact, the Republican amendment received a filibuster-proof majority.  Even though it included $19 billion of spending cuts.  And in a chamber with only 41 Republicans.  (Another six arrive next month.)  And the mere fact that Democrats offered an amendment to repeal part of ObamaCare is notable in itself.  Cohn’s spin aside, the skirmish over the 1099 reporting tax shows that Democrats are divided and ObamaCare supporters are on the run.

Second, Cohn writes, “advocates of repeal have one extra liability that the law’s architects did not – a lack of majority support even before the wrangling begins.”  As evidence, he cites a single Gallup  poll from July 2009 that found 50 percent of the public supported “comprehensive health care reform.”  Oy, where to begin.  First, by Cohn’s own single-poll standard, he is just flat wrong.  Advocates of repeal can point to the latest Rasmussen poll, which shows that 58 percent of adults support wholesale repeal.  (Polls have clocked support for repeal as high as 61 percent.)  Second, support for “comprehensive health care reform” is not the same thing as support for ObamaCare.  If Gallup were to ask Cato employees whether they support comprehensive health care reform, my guess is that at least 50 percent would answer yes.  (Presumably, Cohn would then write an oped titled, “Even Libertarians Support ObamaCare!”)  Advocates of repeal have something else going for them, too: 17 months of consistent public opposition to ObamaCare.

No one is saying that getting repeal through the Senate is likely in the next two years.  But the fact that supporters have to shade the truth like this suggests they are nervous.

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.