Tag: Welfare & Entitlements

Ask Kagan about ObamaCare

Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law.  If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides.

Though the Solicitor General deals with appellate matters, it is certainly possible that Kagan was consulted during the drafting of the law or the administration’s legal strategy for defending it.

The Senate Democrats who drafted ObamaCare took pains to protect it from a constitutional challenge.  The law contains several pages of findings designed to show that the Constitution’s commerce clause authorizes Congress to force Americans to purchase health insurance.  It would have been prudent for Senate Democrats to ask the government’s top appellate lawyer, who belongs to the same political party, whether they had done all they could to protect the “individual mandate” from a constitutional challenge.

Opponents began filing legal challenges to ObamaCare just minutes after President Obama signed it into law, and seven weeks before he announced Kagan’s nomination.  On Tuesday, the Obama administration filed its first response, to a private lawsuit.  According to the Associated Press, that filing “is to be followed in coming weeks and months by federal government court responses to lawsuits filed by many states.”  Regarding the case filed by 13 (soon to be 20) state attorneys general, The New York Times reports, “Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.”  It is not certain, but it is certainly possible that the Office of the Solicitor General was consulted on the government’s response to lawsuits that would likely reach the Supreme Court.

If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court.  Supporters and opponents alike should be interested to know whether the Court will judge ObamaCare with nine justices on the bench, or eight.

The Faux Compassion of Club Sarkozy

Shortly after President Obama signed his health care law, French president Nicolas Sarkozy offered this backhanded compliment to the United States: “Welcome to the club of countries that does not dump its sick people.

In this month’s Diplomat magazine (U.K.), I explain pourquoi c’est fou:

Every member of Sarkozy’s “club” has its stories of sick people who have been “dumped,” in one manner or another, despite laws that officially preclude such things from ever happening. In 2005, Canada’s Supreme Court wrote of its country’s Medicare system: “Access to a waiting list is not access to healthcare…[T]here is unchallenged evidence that in some serious cases, patients die as a result of waiting lists for public health care.” The British, meanwhile, often seem more content to let the National Health Service shortchange its patients than to let an American lecture them about how often it happens.

The checkered history of government guarantees is why so many Americans – a majority, in fact – oppose President Obama’s new law, which they believe will move the United States even further from Sarkozy’s ideal world than it is now.

Presidents Obama and Sarkozy may prefer the false compassion of a government guarantee.  I’ll take the real thing.

Repeal the bill.

The Case for Auditing the Fed

Recently, the Federal Reserve has significantly altered the procedures and goals that it had followed for decades. Rep. Ron Paul (R-TX) has introduced a bill calling for an audit of the Fed.

Remarkably, there is significant opposition to such oversight, and the political prospects for undertaking such an audit are relatively bleak. In a new paper, Cato scholar Arnold Kling examines the processes and outcomes on which an audit should focus, and looks at opposition to the audit:

We should document why the Fed took each step, what the expected results were, and whether those results were achieved. …The profit or loss of the Fed’s investments would provide a very helpful indicator of whether the Fed’s actions served the economy as a whole or merely transferred wealth from ordinary taxpayers to bank shareholders.

Read the whole thing.

1994 Watch

The CBS News Poll reports that President Obama’s approval rating has dropped to its lowest point (of that poll) of 44 percent. Also, his work on the health care law might be a contributing factor. Onlly 34 percent approved of his performance on health care while 55 percent disapproved.

At the end of March 1994, Bill Clinton enjoyed a 51 percent approval rating.

Two caveats: First, other factors besides presidential approval affect the outcomes of mid-term congressional elections. Second, Clinton’s approval rating dropped like a stone in September and October of 1994. He ended up in the mid-40s by election day. In other words, Clinton ended up where Obama is now. Obama’s approval rating could rise between now and November.

ObamaCare’s New Entitlement Spending “Sows the Seeds” of a Budget Crisis

From Robert J. Samuelson’s column in today’s Washington Post:

When historians recount the momentous events of recent weeks, they will note a curious coincidence. On March 15, Moody’s Investors Service – the bond rating agency – published a paper warning that the exploding U.S. government debt could cause a downgrade of Treasury bonds. Just six days later, the House of Representatives passed President Obama’s health-care legislation costing $900 billion or so over a decade and worsening an already-bleak budget outlook.

Should the United States someday suffer a budget crisis, it will be hard not to conclude that Obama and his allies sowed the seeds, because they ignored conspicuous warnings. A further irony will not escape historians. For two years, Obama and members of Congress have angrily blamed the shortsightedness and selfishness of bankers and rating agencies for causing the recent financial crisis. The president and his supporters, historians will note, were equally shortsighted and self-centered – though their quest was for political glory, not financial gain.

I hope Samuelson is wrong, but it’s probably a good idea to behave as if he’s right, and repeal ObamaCare’s new entitlement spending.

Medicare Fraud: 1, Anti-Fraud Measures: 0

As the nation contemplates the new health care entitlements that Congress and President Obama just created, it is worth noting an article in today’s Washington Post, which reports on the performance of past efforts to eliminate fraud in another health care entitlement:

More than a decade ago, Congress set out to squeeze the fraud out of Medicare billing at nursing homes, requiring more precise justifications for costs. It created new “ultra-high” billing categories intended to be used for only 5 percent of the patients needing highly specialized care and rehabilitation.

But within a few years, nursing homes flooded the ultra-high categories with patients, contributing to $542 million a year in potential overpayments, federal analysts found.

Since then, the numbers in the ultra-high categories have quadrupled, and the amount of waste and abuse could reach billions of dollars a year…

The article ends with the ominous implication that eliminating fraud in entitlement programs like Medicare will ultimately require government agencies to decide whether certain services are medically necessary.

Death panels, anyone?

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Your Medical Records Aren’t Secure

I have one observation about, and one minor difference with, the very good—and very concerning—Wall Street Journal opinion piece by Deborah Peel of Patient Privacy Rights. The piece announces PPR’s “Do Not Disclose” campaign around health information, which will soon be pouring into promiscuous, government-designed “electronic medical records.”

In a January 2009 speech, President Barack Obama said that his administration wants every American to have an electronic health record by 2014, and last year’s stimulus bill allocated over $36 billion to build electronic record systems. Meanwhile, the Senate health-care bill just approved by the House of Representatives on Sunday [now signed into law] requires certain kinds of research and reporting to be done using electronic health records. Electronic records, Mr. Obama said in his 2009 speech, “will cut waste, eliminate red tape and reduce the need to repeat expensive medical tests [and] save lives by reducing the deadly but preventable medical errors that pervade our health-care system.” But electronic medical records won’t accomplish any of these goals if patients fear sharing information with doctors because they know it isn’t private…

Describing how the Health Insurance Portability and Accoutability Act (HIPAA) undermined health privacy, Peel says, ”In 2002, under President George W. Bush, the right of a patient to control his most sensitive personal data—from prescriptions to DNA—was eliminated by federal regulators…” Other than the quibble about whether federal law ever gave patients anything that could be genuinely called a right, this is correct and concerning.

What’s interesting is that the policy is routinely ascribed to President Bush (not only by Peel). My suspicion is that blaming President Bush props up the dream that privacy can be maintained in a system that centralizes control of health care—if only the right party is in power.

In fact, the passage of HIPAA in 1996 (under President Bill Clinton) set the course for this outcome. The fact that HIPAA privacy was undone during the Bush administration is a coincidence convenient for his ideological and political opponents. If I’m mistaken, the proof will be the reversal of the policy during the current administration. I’m not aware of any plan for that to happen.

“Electronic record systems that don’t put patients in control of data or have inadequate security create huge opportunities for the theft, misuse and sale of personal health information,” says Peel. I agree, but more importantly, I think, public policies that don’t put patients in control create the same—or at least parallel—problems.

Transferring control of health care to the federal government transfers control of health information to the federal government. The government has interests distinct from patients, and no matter how hard one fights to protect patients’ privacy interests, the government’s interests in cost control, social engineering, and such will ineluctably win out.

Public policies that restore power to patients will restore health privacy to patients. A decade or two of exploring alternatives to patient empowerment may drive the lesson home.