Tag: regulation

Cato Study: Heretofore Unreported ObamaCare ‘Bug’ Puts IPAB Completely beyond Congress’ Reach

Today, the Cato Institute releases a new study by Diane Cohen and me titled, “The Independent Payment Advisory Board: PPACA’s Anti-Constitutional and Authoritarian Super-Legislature.” Cohen is a senior attorney at the Goldwater Institute and lead counsel in the Coons v. Geithner lawsuit challenging IPAB and other aspects of the Patient Protection and Affordable Care Act of 2010, a.k.a. ObamaCare.

From the executive summary:

When the unelected government officials on this board submit a legislative proposal to Congress, it automatically becomes law: PPACA requires the Secretary of Health and Human Services to implement it. Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court.

Worse, PPACA forbids Congress from repealing IPAB outside of a seven-month window in the year 2017, and even then requires a three-fifths majority in both chambers…

IPAB’s unelected members will have effectively unfettered power to impose taxes and ration care for all Americans, whether the government pays their medical bills or not. In some circumstances, just one political party or even one individual would have full command of IPAB’s lawmaking powers. IPAB truly is independent, but in the worst sense of the word. It wields power independent of Congress, independent of the president, independent of the judiciary, and independent of the will of the people.

The creation of IPAB is an admission that the federal government’s efforts to plan America’s health care sector have failed. It is proof of the axiom that government control of the economy threatens democracy.

Importantly, this study reveals a heretofore unreported feature that makes this super-legislature even more authoritarian and unconstitutional:

[I]f Congress misses that repeal window, PPACA prohibits Congress from ever altering an IPAB “proposal.”

You read that right.

The Congressional Research Service and others have reported that even if Congress fails to repeal this super-legislature in 2017, Congress will still be able to use the weak tools that ObamaCare allows for restraining IPAB. Unfortunately, that interpretation rests on a misreading of a crucial part of the law. These experts thought they saw the word “or” where the statute actually says “and.”

How much difference can one little conjunction make?

Under the statute as written, if Congress fails to repeal IPAB in 2017, then as of 2020 Congress will have absolutely zero ability to block or amend the laws that IPAB writes, and zero power to affect the Secretary’s implementation of those laws. IPAB will become a permanent super-legislature, with the Secretary as its executive. And if the president fails to appoint any IPAB members, the Secretary will unilaterally wield all of IPAB’s legislative and executive powers, including the power to appropriate funds for her own department. It’s completely nutty, yet completely consistent with the desire of ObamaCare’s authors to protect IPAB from congressional interference.

It’s also completely consistent with Friedrich Hayek’s prediction that government planning of the economy paves the way for authoritarianism.

Obamacare’s Unconstitutional—-Let’s Implement! No Wait, We’re Not Implementing—-Yes We Are!

The Washington Post reports:

For 14 months, a bipartisan group of 17 states has been quietly collaborating with the Obama administration to help build a foundation for the health-care reform law’s success.

The group includes some of the law’s staunchest supporters working alongside a handful of its bigger detractors. They are backed by $3 million in funding from eight nonprofit organizations that hope to see the Affordable Care Act succeed.

Together, they have come up with a tool to help consumers navigate the health insurance exchanges—the marketplaces that each state is required to have by 2014.

In other words, at the same time Alabama, Arizona, Colorado, and Kansas are suing to overturn Obamacare as unconstitutional, officials in those states are helping to implement the same unconstitutional law.

The Post reports, without rebuttal, several myths about the states’ role under Obamacare. It refers three times to the “tight deadlines” states face under the law. (There are no deadlines. HHS has said that if states decline to create exchanges, they can change their minds later.) It claims, “If a state does not have a framework in place by 2013, the Department of Health and Human Services will come in and do the job itself.” (That’s highly questionable. Obamacare appropriates zero funds for federal exchanges and HHS has admitted it doesn’t have the money.) It quotes Kansas insurance regulator Linda Shepphard as saying, “There is no work being done to build an exchange in Kansas at this point.” (Well, which is it? Is Kansas doing “no work,” or is it “collaborating with the Obama administration”?) I’d say certain state officials got some ‘splaining to do.

In the video below the jump, I explain to state officials why flatly refusing to create an Obamacare exchange is the best thing they can do for their states.

Why ObamaCare Won’t Help the Sick

The Financial Times published my letter to the editor [$]:

Sir, “Imminent ‘ObamaCare’ ruling poses challenge for Republicans” [$] (May 25) doesn’t quite capture my views when it reports that I believe “resurrecting protections for patients with pre-existing conditions would be wrong.” ObamaCare is wrong precisely because those provisions will not protect patients with pre-existing conditions.

Those “protections” are nothing more than government price controls that force carriers to sell insurance to the sick at a premium far below the cost of the claims they incur. As a result, whichever carrier attracts the most sick patients goes out of business. The ensuing race to the bottom will even harm sick Americans who currently have secure coverage.

The debate over ObamaCare is not between people who care and people who don’t care. It is between people who know how to help the sick, and those who don’t.

Romney Etch-a-Sketches His Opposition to ObamaCare with Leavitt Pick

Mitt Romney has appointed ObamaCare profiteer and former Utah governor Mike Leavitt to head his presidential transition team. Politico reports that Leavitt has “headlined health care policy discussions at $10,000 per-person Beltway fundraisers for Romney” and may become White House chief of staff if Romney wins. ObamaCare opponents should be outraged.

Leavitt has spent the last couple of years spreading dangerous (but self-enriching!) nonsense about how states would benefit by establishing ObamaCare’s health insurance “exchanges.” He seldom mentions that his “consulting” business Leavitt Partners rakes in tons of ObamaCare cash by bidding on those contracts. Perhaps this is because reporters seldom ask.

Here’s a video Cato produced about why states should flatly refuse to create ObamaCare Exchanges:

Ben Domenech blogs about Leavitt’s ObamaCare-related iniquities here and here. Domenech writes, “Thankfully, this has been a push that Leavitt has been losing.”

But don’t count Leavitt out. Politico writes:

Leavitt has said some relatively positive things about certain elements of Obama’s health reform law…

[Leavitt’s longtime chief aide, Rich] McKeown, who still works with Leavitt at his Utah-based health care consultancy [Leavitt Partners], acknowledged that the former governor does not want to undo one key part of the controversial legislation.

“We believe that the exchanges are the solution to small business insurance market and that’s gotten us sideways with some conservatives,” he said.

The exchanges are not only a matter of principle for Leavitt — they’re also a cash cow.

The size of his firm, Leavitt Partners, doubled in the year after the bill was signed as they won contracts to help states set up the exchanges funded by the legislation.

And yet someone somehow managed to say this:

“He’s 100 percent in it for Mitt, no secret agenda for himself,” said one Romneyite.

The Romney camp still says Mitt will “repeal[] Obamacare, starting Day One.” If he were serious, he would announce that he will rescind this IRS rule on day one. But the fact that Romney picked Leavitt suggests he really doesn’t mind ObamaCare that much, and that he is just saying whatever he needs to say to get what he wants. I know. Mitt Romney. Go figure. In this case, that means assuaging all the Republicans and independents who hate ObamaCare.

Romney’s appointment of Leavitt is a first step toward flip-flopping–or Etch-a-Sketching, or Romneying(TM), or whatever–on ObamaCare repeal. But it’s hard to blame Romney for thinking Republicans won’t care. These are, after all, people who picked Mitt Romney as their presidential nominee.

States Should Flatly Refuse to Create ObamaCare Exchanges (New Cato Video)

This new Cato Institute video explains why it is in no state’s interest to create an ObamaCare Exchange.

Many thanks to Cato’s very talented Caleb O. Brown and Austin Bragg.

For the more-words-no-pictures version, click here or here. For a word about ObamaCare profiteers the pro-Exchange lobby, click here. Click here to read about what is happening in the states.

How to Tell When ObamaCare Takes a Beating in the Kaiser Poll: the Headline Is about Something Else

Consider these charts from the latest Kaiser Family Foundation tracking poll, released today.

Even when pollsters tell the public that ObamaCare is “reform,” the public still doesn’t like it.

ObamaCare’s slip in this month’s poll is the result of a simultaneous drop in support among both Democrats and Independents.

The people who hate ObamaCare are really, really angry. And they are not going away.

The following shares of voters believe ObamaCare will either be of no use or will be harmful to the following groups: children (47 percent), young adults (51 percent), women (50 percent), the country as a whole (55 percent), themselves and their families (68 percent).

Bear in mind, ObamaCare has always fared better in the Kaiser tracking poll than other polls.