Tag: Welfare & Entitlements

ObamaCare After Judge Vinson’s Ruling

Judge Roger Vinson’s decision on Monday that ObamaCare is unconstitutional in its entirety has sparked a lively debate at Cato and in the country as well about precisely what the practical effect of the decision is, pending a final ruling by the U.S. Supreme Court, which may be a year or more in the offing.

Obviously, the Obama administration and the states have already begun implementing parts of the law. Yet the Washington Post reports this morning that Wisconsin Attorney General J.B. Van Hollen, one of the parties to the suit, “issued a stern statement” following the decision:

“This means that, for Wisconsin, the federal health care law is dead,” and his state “was relieved of any obligations or duties” to carry out the statute.

Other attorneys general and governors have taken a variety of positions about the decision’s effect. Meanwhile, the Obama administration is proceeding with its implementation plans, and has indicated that it will seek a stay of Judge Vinson’s decision.

The problem that my colleague Bob Levy and I see with seeking a stay, however, is that Judge Vinson’s ruling declared ObamaCare unconstitutional; but the judge did not issue a formal injunction. Our colleagues Michael Cannon and Ilya Shapiro have endorsed one plausible reading of that ruling — i.e., absent a court-issued stay, ObamaCare cannot be further implemented. That interpretation may be correct, but the administration and others disagree, and the issues are murky.

What would the remedy be if the federal Department of Health and Human Services were to continue implementing ObamaCare? If an injunction had been issued, HHS officials might be found in contempt of court. But without an injunction, there is no obvious remedy.

Moreover, a single district court in a single state might not be empowered to foreclose nationwide implementation of a federal statute. After all, two other district courts have upheld ObamaCare’s constitutionality. Suppose each of the 26 states in the Florida case had filed separate suits. Suppose further that 25 of the 26 suits had been dismissed, but one outlier court had held that ObamaCare was unconstitutional. Would that court’s order effectively require HHS to abandon the legislation? Surely, proponents of ObamaCare would have a valid argument that start-and-stop implementation might be chaotic.

Because the issues are complex and unclear, the better outcome would be for the 11th Circuit Court of Appeals to clarify the effect of Judge Vinson’s ruling. And given the manifold implementation uncertainties surrounding the serious constitutional questions, affecting so many people and institutions, private and public, Judge Vinson’s decision should be put on a fast track to the Supreme Court.

Addendum: Further on the practical effect of Judge Vinson’s declaring ObamaCare unconstitutional – whatever it may be – it is reasonable to argue that the 26 plaintiff states in the Florida case need not, for now, take any action mandated by the statute. Any attempt by the federal government to force compliance by one of the recalcitrant states would likely result in further litigation that might have the salutary effect, at least, of clarifying this confusing situation.

Is Congress Above the Law?

The first item on this election campaign’s Contract with America was that, if elected (as they have been), the House Republicans would require that all laws that apply to the rest of the country also apply to Congress.  We’ll see if that and the other promised reforms materialize, but it does raise yet another issue in the context of Obamacare.

As my colleague Michael Cannon pointed out to me, the new health care law kicks congressmen out of the Federal Employees Health Benefits Program.  (The current FEHB is no different from the health coverage provided by any private employer -– federal employees choose from a series of private plan options (none of which is run by the government), and receive a subsidy from the federal government acting in its role as an employer.)

My first reaction to hearing this was:  Good – if the rest of us lose our health care freedom, so should those who forced this new atrocity on us.  But apparently this result was not intended, so the Obama administration has decided to ignore that part of the law.

No joke.  Here is the Congressional Research Service report on the provisions that oust members of Congress from their health insurance.  And here is the letter in which an Obama appointee announces that the administration will ignore the law.  These two articles also provide important information.

Now, assuming that something constitutionally problematic is going on here, what can anyone do about it?  To put it in legal terms, who has standing to sue for this apparent constitutional violation?  It’s a tough row to hoe – taxpayers cannot bring suit based on generalized grievances – but off the top of my head, I can think of two possibilities: (1) members of Congress suing the president or the Department of Health and Human Services for essentially passing new law and therefore infringing on congressional prerogatives (thereby violating the separation of powers); or (2) an insurance broker or carrier who would otherwise be signing up new clients.

And there are two additional related questions:

1. Why did Congress expand Medicaid while refusing to participate in it themselves?  Obamacare expanded Medicaid to an estimated 18 million new Americans, none of whom will have a choice of private plans, instead being dumped into Medicaid, a program notorious for access problems (and which in Arizona now doesn’t cover organ transplants).  Yet all Senate Democrats voted against an amendment enrolling members of Congress in the new Medicaid program (all Republicans voted for it, except one who was absent).

2. Will members of Congress use their own salaries to pay any fines assessed because their employees have “unaffordable” health coverage?  Obamacare includes a $2,000 per worker penalty for any employer that does not provide “affordable” coverage, beginning in 2014.  Many junior staffers have incomes below 400 percent of the federal poverty level ($43,320 for a single person, or $88,200 for a family of four), and thus could be subject to the new statutory test of whether their health insurance options are “affordable.”  While it’s unclear how this particular provision will be implemented for Hill staff – due to the “significant unintended consequences” of sloppy drafting – it’s entirely possible that member offices could be assessed a $2,000 penalty for every worker needing insurance subsidies because they have no “affordable” alternative.  If that scenario happens, will the members of Congress who voted for the law pay the penalty out of their own salaries or will they rely on taxpayer funds to finance an obligation they imposed on themselves?

Bending the Cost Curve: Ryan’s Roadmap Would Succeed Where ObamaCare Fails

From my oped in today’s Investors Business Daily:

Rep. Paul Ryan’s (R-Wis.) “Roadmap for America’s Future” proposes even tighter limits on Medicare’s growth, leading columnist Bruce Bartlett to opine, “the Medicare actuaries have shown the absurdity of the Ryan plan by denying that Medicare cuts already enacted into law are even worthy of projecting into the future.”

On the contrary, experience and public choice theory suggest that the Ryan plan has a better shot at reducing future Medicare outlays than past efforts, because the Roadmap would change the lobbying game that fuels Medicare’s growth.

For more on Ryan’s Roadmap, click here.  For more on Medicare, read David Hyman’s Medicare Meets Mephistopheles.  For more on public choice economics, click here.

Great Moments in Government-Run Healthcare

Somebody sent me this story from the Drudge Report and I can’t resist the temptation to share. What really astounds me is not that a Swedish man sewed up his own leg after waiting for a long time in a hospital. Heck, I wouldn’t be surprised if things like that happened in all nations. The really disturbing part of the story is that the hospital then reported the man to the police. A classic case of “blaming the victim.” The bureaucrats in Sweden’s government-run healthcare system obviously were not pleased that he called attention to their failure.

A 32-year-old took the needle into his hands when he tired of the wait at Sundsvall hospital in northern Sweden and sewed up the cut in his leg himself. The man was later reported to the police for his impromptu handiwork. “It took such a long time,” the man told the local Sundsvall Tidning daily. The man incurred the deep cut when he sliced his leg on the sharp edge of a kitchen stove while he was renovating at home. “I first went to the health clinic, but it was closed. So I rang the medical help line and they told me that it shouldn’t be closed, so I went to emergency and sat there,” the man named only as Jonas told the newspaper. After an hour-long wait in a treatment room, he lost patience and proceeded to sew up his own wound. “They had set out a needle and thread and so I decided to take the matter into my hands,” he said. But hospital staff were not as impressed by his initiative and have reported the man on suspicion of arbitrary conduct for having used hospital equipment without authorization.

Taking the Constitution Seriously

Today Politico Arena Asks:

Is Health Care Repeal Gaining Steam?

My Response:

It’s striking how POLITICO Arena contributors on the left like Professors Skocpol and Jost blithely dismiss the idea that the Constitution could actually limit what Congress may do in the area of “social welfare” – including such monstrosities as ObamaCare. It’s as if they had no conception, despite their years of schooling, of what the Constitution is all about. It’s not a document that authorizes the federal government to do whatever may be in “the public interest,” as conceived by those in power at any moment. It’s a carefully crafted plan for government that both grants and limits power, so that individuals may plan and live their own lives.

Judge Henry Hudson got it exactly right when he wrote: “While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate – and tax – a citizen’s decision not to participate in interstate commerce.” The left may ridicule the suits that have been brought against ObamaCare by more than 20 states and others, but in doing so they ridicule nothing less than the American heritage of limited constitutional government. If ObamaCare revives that heritage, it will all have been worth it.

Obamacare Complexity vs Free Market Simplicity

Free markets are characterized by voluntary exchange between buyers and sellers. Mapping that relationship is absurdly simply, as this image indicates.

Indeed, the only reason I even bothered to include that image was for purposes of comparison. Here is a new flowchart prepared for the Joint Economic Committee showing the healthcare system under Obamacare.

It’s worth noting, by the way, that the system already was a disaster even before Obamacare was enacted. In the health care sector, free markets are only allowed to operate in very rare cases, such as cosmetic surgery, laser eye surgery, and (for better or worse) abortion. The rest of the sector was heavily distorted by government intervention. Obamacare simply makes a bad situation worse.

ObamaCare Remains Unpopular, or Round Two of My Exchange with Maggie Mahar

Maggie Mahar responds to my response to her critique of Michael Tanner’s claim that ObamaCare is deeply unpopular.  Mahar’s alternative narrative, espoused by many on the Left, is that “the more voters learn more about the reform legislation, the more they seem to like it.”

Mahar shows that her narrative works if you begin looking for a trend at the high-water mark of opposition, if you look at a few select polls, if you look at not-so-straightforward poll questions, if you interpret simultaneous declines in both support and opposition as growing support, and if you devise a rationale for ignoring the views of those who most oppose ObamaCare.  Which is to say, her narrative doesn’t work.  ObamaCare remains deeply unpopular.

Mahar claims that support for repealing ObamaCare has been trending downward since reaching its high water mark of 63 percent on May 22, as measured by the polling firm Rasmussen Reports. This was shrewd; if you’re going to look for a downward trend, the high water mark is an excellent place to start. But it doesn’t paint an accurate picture of what’s been happening with public support for repeal. Starting on the enactment date, as I wrote before, “Rasmussen finds opposition to repeal hovering between 32-42 percent, and support for repeal hovering between 52-63 percent, with no clear trend on either side.” No clear trend, and a majority consistently supports repeal.  Check out Rasmussen’s data and see for yourself.

Next, Mahar selects a few polls that do support her narrative (e.g., Gallup, NBC/Wall Street Journal, Kaiser Family Foundation).  For example, in her first post, Mahar cites an NBC/Wall Street Journal poll from June that suggests voters would prefer a Democratic congressional candidate who didn’t want to repeal ObamaCare over a Republican who did. Aside from the results being barely statistically significant, the question she cites introduces confounding factors such as party affiliation. When that same poll asked a more straightforward question, it found that 47 percent of respondents would be enthusiastic about or comfortable with a candidate’s desire to repeal ObamaCare, compared to 40 percent who would have reservations or be uncomfortable.

Moreover, selecting just a few polls probably paints a less accurate picture than looking at something like Pollster.com, which aggregates all polls and therefore (presumably) cancels out the quirkiness of individual polls.

The above graph shows that opposition to ObamaCare surged after Obama’s inauguration and surpassed support just as the debate began in earnest in July 2009. (That rising opposition fueled the angry town halls of August 2009.) In other words, from the moment the public began to focus on ObamaCare, they didn’t like what they saw, and opponents have out-numbered its supporters for 12 months now.  (Note: the above graph only includes polls that ask the straightforward support/oppose question. It does not include Rasmussen’s polls showing broad and deep support for repeal, nor the NBC/Wall Street Journal and Kaiser Family Foundation polls Mahar cites, which show weaker support for repeal. It would be interesting to see Pollster.com aggregate the “repeal” polls.)

When Mahar turns her attention to all available polls, she argues, “if you’re looking for a trend, it’s only sensible to begin the day the bill was signed, March 23.” Why?

It was only after the final bill was passed, that people could begin to offer an opinion.

How true that is.  Also: mere voters can hardly be expected to offer an opinion about would-be presidents until after Inauguration Day.

One would think that Mahar would only insult the public’s intelligence, and dismiss the views that a plurality/majority of adults consistently expressed for 9 months, if it would help to bolster her argument.  But it doesn’t.  When we look at the trend in public opinion on ObamaCare since the signing ceremony, we see that opposition and support are declining:

If the trendline showing declining opposition to ObamaCare supports Mahar’s narrative (“the more voters learn…the more they seem to like it”), the trendline showing declining support for ObamaCare supports the opposite narrative (“the more voters learn, the less they like it”).

But recall that Mahar claims that voters are warming to ObamaCare.  When we look only at polls of adults who are registered to vote, there doesn’t appear to be any change since ObamaCare became law:

Looking just at voters also reveals that the opposition leads support by an even wider margin (9.5 percentage points).

(NB: These Pollster.com graphs will update automatically as new polling information becomes available, which may affect the trendlines.  My description of the trends and the numbers I cite are current as of July 26, 2010.  Also, readers using Internet Explorer have reported difficulty seeing the trendlines in user-generated graphs from Pollster.com.)

Finally, Mahar channels Marion Barry, who (in)famously claimed that if you don’t count murders, the crime rate in Washington, D.C., is really quite low.  She cites a poll that “suggests that opposition is largely confined to the one group that already has universal coverage–seniors,” and then invokes Ezra Klein’s rationale for dismissing their opinions:

[S]eniors, of course, aren’t opposed to government-run health care. They love their Medicare, and insofar as they have a policy concern here, it’s that the Affordable Care Act will interfere with the single-payer system they rely on.

It is nonsense to say that ObamaCare is popular if we just ignore the views of people who will suffer.  If ObamaCare weren’t taking the money for its insurance-company bailouts new government spending out of Medicare, it would have to take that money from somewhere else and those people would be angry.  (Actually, since those Medicare cuts probably won’t happen, we’ll get to see that scenario play out.)  Even if ObamaCare were popular among non-seniors, all Mahar and Klein would have established is that massive new government entitlement programs would be popular if we didn’t have to pay for them.

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