Topic: Health Care & Welfare

On Health Care, Walker and Rubio Offer ObamaCare-Lite

In today’s Manchester Union-Leader, I explain the eerie resemblance that the health care plans advanced by presidential candidates Gov. Scott Walker (R-WI) and Sen. Marco Rubio (R-FL) bear to ObamaCare:

The centerpiece of both “replace” plans is a refundable tax credit for health insurance. Yet such tax credits already exist, in Obamacare. Also like Obamacare, the Walker/Rubio tax credits would allow Washington to decide how much coverage you purchase, penalize you if you don’t buy that government-defined plan, and conceal massive redistribution of income under the rubric of tax cuts…

How would Walker and Rubio pay for their new spending? Would they keep Obamacare’s tax increases? Raise taxes elsewhere? Would they finance new health care spending by cutting existing health care programs? If so, chalk up yet another way their plans would resemble Obamacare.

I also provide an alternative for reformers who actually want better, more affordable, more secure health care.

Conservatives can offer a better “replace” plan that is politically feasible by expanding a bedrock conservative initiative: health savings accounts, or HSAs, which have already enabled 14.5 million Americans to save more than $28.4 billion for their medical expenses tax-free.

Expanding HSAs would give workers a $9 trillion effective tax cut, without cutting spending or increasing the deficit, and would drastically reduce government control over Americans’ health decisions. Most important, “large” HSAs would spur innovations that make health care better, cheaper, and more secure — particularly for the most vulnerable.

Conservatives need to get this right, lest they repeat the same mistake they made in 1993-94.

For decades, prominent conservatives advocated an individual mandate. The left then picked up the idea and gave us Obamacare. Before they once again fall into the same trap, conservatives should drop any support for the implicit mandate of health-insurance tax credits. Expanding HSAs is more compassionate and provides a direct route toward freedom and better health care.

For more on Large HSAs, see here, here, and here.

Regulatory Incompetence (and King v. Burwell) Could Save the Nuns

Obamacare imposes a requirement that employers provide insurance that covers “preventive care” for women, but does not specify what that entails. The Department of Health & Human Services (HHS) determined that “preventive care” includes all FDA-approved contraceptives, from condoms to the morning-after pill.

While houses of worship were exempted outright from the mandate, other religious orders were not. (And, as we know from the Hobby Lobby case, for-profit employers who object to certain forms of contraceptive don’t have to pay to cover them.) Instead, under an “accommodation” created by HHS and the Departments of Labor and Treasury, an objecting religious organization isn’t required to pay for the offending contraceptives, but they do have to notify HHS, which then modifies their insurance contracts so their insurers cover the objected-to items.

Even though the religious organizations are not paying for the contraceptives, groups like the Little Sisters of the Poor—an order of nuns who provide various kinds of social services—still feel complicit in sin and claim that their free exercise of religion has been burdened.

Cato and law professor Josh Blackman (who recently became a Cato adjunct scholar) have filed an amicus brief supporting the Little Sisters’ request that the Supreme Court hear their case. The Little Sisters raise claims under the First Amendment and the Religious Freedom Restoration Act. Our brief asks the Court to consider a supplemental question: Whether the Departments have the interpretive authority and “expertise” to resolve this “major question” of profound social, “economic and political significance”—to quote Chief Justice Roberts’s majority opinion in King v. Burwell (where he said that courts couldn’t simply defer to the IRS on the important question presented there).

Congress gave absolutely no indication that it delegated to federal agencies the authority to decide which religious groups would be exempted and which could have their religious liberty burdened under an accommodation, or for that matter, how agencies were to design any accommodations. To quote another recent case where the Court refused to defer to an administrative agency, UARG v. EPA (2014), here the agencies are “laying claim to an extravagant statutory power” affecting fundamental religious liberty interests—a power that the ACA “is not designed to grant.”

If the Departments lack the interpretive authority to craft accommodations, then Hobby Lobby provides the rule of decision and the Little Sisters must be exempted from the mandate. Accordingly, the Supreme Court should consider this additional question and conclude that the Departments’ regulatory incompetence prevents them from forcing the Little Sisters to be complicit in what they view as sin.

Can Alaska’s Governor Implement ObamaCare’s Medicaid Expansion without the Legislature?

Alaska Gov. Bill Walker (I) initially asked the legislature to approve the state’s participation in ObamaCare’s Medicaid expansion. The legislature has thus far declined. Now, Walker is trying to implement it anyway, and the legislature appears to be taking him to court. According to Alaska Dispatch News:

The Alaska Legislature on Tuesday said it will sue Gov. Bill Walker to block his move last month to expand the public Medicaid health care program without lawmakers’ approval.

Following a private discussion Tuesday morning, a Republican-controlled House-Senate committee voted 10-1 to spend up to $450,000 on two law firms to represent the Legislature in a suit against the governor.

One, Bancroft PLLC, is based in Washington, D.C., and represented more than two dozen states in their U.S. Supreme Court challenge to the Affordable Care Act, or “Obamacare.” The second, Holmes, Weddle & Barcott, is based in Anchorage.

In a news conference after the committee vote, Republican leaders framed their decision to challenge the governor as a constitutional one. They’re seeking an injunction to stop Medicaid expansion from going into effect Sept. 1.

“This is not a policy issue — we’re not discussing whether we should or shouldn’t expand Medicaid,” said Senate President Kevin Meyer, R-Anchorage. “This is a question of authority and process and our constitution.”

[…]

The Legislature is challenging Walker’s move based on a provision in Alaska statute that requires legislative approval before Medicaid coverage can be offered to people whose care is not required under federal law.

The version of “Obamacare” passed by Congress required states to expand Medicaid to cover low-income Americans, who can otherwise face steep health care costs without the subsidies that the legislation offers to individuals with higher incomes.

As written, the law would have revoked all federal Medicaid funding for states that didn’t go through with the expansion. But the U.S. Supreme Court said in 2012 that the threat of revoking the money was unconstitutional and coercive.

The ruling created ambiguity for Alaskan policymakers and legal experts: If Medicaid expansion is technically required under the ACA, but the Supreme Court has ruled the federal government can’t enforce the requirement by revoking money from states that don’t comply, does that make the newly eligible people under Walker’s proposed expansion an optional group that requires legislative approval?

Walker, citing a memorandum from Attorney General Craig Richards, says no. The Republican lawmakers that support the lawsuit say yes and argue the governor is circumventing their authority.

An initial filing in the Legislature’s lawsuit is expected next week.

Read the whole thing here. For more, see these posts from the Foundation for Government Accountability.

Bloomberg BNA Podcast on Legal Challenges to ObamaCare

In this Bloomberg BNA podcast, Supreme Court correspondent Kimberly Robinson and I discuss King v. BurwellSissel v. HHS (the Origination Clause case), and House of Representatives v. Burwell, (the House GOP’s lawsuit against the Obama administration’s efforts to exceed its powers under the Constitution and the Affordable Care Act).

Keep an eye out for my article on King v. Burwell with Jonathan Adler in the upcoming Cato Supreme Court Review.

Adler and I will be speaking about King at the Cato Institute’s 14th annual Constitution Day symposium on September 17, 2015. Register here.

Results from the Libertarianism vs. Conservatism Post-Debate Survey

The Cato Institute and Heritage Foundation recently co-hosted a debate in which interns from both organizations debated whether conservatism or libertarianism is the better philosophy. At the conclusion of the debate, the Cato Institute conducted a survey of debate attendees finding important similarities and striking differences between millennial conservative and libertarian attendees.

Full LvCDebate Attendee Survey results found here

The survey finds that libertarian and conservative millennial attendees were similar in skepticism of government economic intervention and regulation but were dramatically different in their stances toward immigration, LGBT inclusion, national security, privacy, foreign policy and perceptions of racial bias in the criminal justice system.

While the survey is not a representative sample, this survey offers a snapshot of engaged conservative and libertarian millennial “elites” who have higher levels of education and political information, and who chose to come to this event. To date, little information exists on young conservative and libertarian elites. Since these attendees are politically engaged millennials, their responses may provide some indication of the direction they may take both movements in the future.

Eighty-percent of millennial respondents self-identified as either conservative (41%) or libertarian (39%): This post will focus on these conservative and libertarian millennial attendees.

King v. Burwell: How the Supreme Court Helped President Obama Disenfranchise His Political Opponents

Criticizing my recent post-mortem on King v. Burwell, Scott Lemieux kindly calls me “ObamaCare’s fiercest critic” for my role in that ObamaCare case. Other words he associates with my role include “defiant,” “ludicrous,” “farcical,” “dumber,” “snake oil,” “ludicrous” (again), “irrational,” “aggressive,” “comically transparent,” and “dishonest.”

Somewhere amid the deluge, Lemieux reaches his main claim, which is that (somehow) I admitted: “the King lawsuit wasn’t designed to uphold the statute passed by Congress in 2010. It was intended to ‘enfranchise’ the people who voted against the bill.” I’m not quite sure what Lemieux means. But perhaps Lemieux doesn’t understand my point about how the Supreme Court helped President Obama disenfranchise his political opponents.

As all nine Supreme Court justices acknowledged in King, “the most natural reading of the pertinent statutory phrase” is that Congress authorized the Affordable Care Act’s premium subsidies, employer mandate, and (to a large extent) individual mandate only in states that agreed to establish a health-insurance “Exchange.” That is, all nine justices agreed that the plain meaning of the operative statutory language allows states to veto key provisions of the ACA—sort of like the Medicaid veto that has existed for 50 years and lets states destroy health insurance for millions of poor Americans. The Exchange veto includes the power to shield millions of state residents from the ACA’s least-popular provisions: the individual mandate and the employer mandate.

Obamacare’s Not-So-Hidden Tax: Thank You for Smoking

Without government interference, insurance markets will naturally charge higher premiums for riskier individuals. For example, life insurance premiums vary considerably based on factors that increase the likelihood of death, such as age, gender, smoking status, and health.

Under Obamacare, many factors that influence healthcare expenditures are excluded from premiums. For example, premiums make no distinction for obesity, likelihood of having a baby, alcoholism or pre-existing conditions. One notable exception is for smokers, where premiums may be up to 50 percent higher than that for non-smokers. I have collected data on premiums for smokers and non-smokers in 35 states, and the data shows large variation in the extent to which smokers are charged more for their choice.

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