Charles Lane is right: federal judge Marcia Morales Howard should lift the 33-year old court order that prevents scrutiny of how health care providers bill Medicare.

Providers claim they have a right to privacy when it comes to how they spend your money and mine. That’s about as absurd as asking for privacy in front of 20 million viewers at the Golden Globes.

There have been several developments with respect to the Obama administration’s attempt to impose the Patient Protection and Affordable Care Act’s employer-mandate penalties and individual-mandate penalties where it has no authority to do so.

My coauthor Jonathan Adler and I have posted an updated and final draft of our forthcoming Health Matrix article, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA,” to the Social Sciences Research Network web site. This draft contains additional evidence that Congress did indeed intend to restrict the Act’s tax credits, cost-sharing subsidies, employer mandate penalties, and (to a certain extent) individual mandate penalties to states that establish their own health insurance Exchanges. It also shows how recent arguments advanced by defenders of the rule cannot be reconciled with the statute or the legislative history. If you’re interested in this issue, you’ll want to read this draft, even if you’ve already read previous versions.

In the Winter issue of Regulation magazine, University of Missouri law professor Thomas Lambert shows how this feature of the Act, combined with the Supreme Court’s ruling in NFIB v. Sebelius and other features, make the law so dangerously unstable that repeal remains a distinct possibility. I plan to blog more about this article soon.

A private employer has petitioned a federal court in Oklahoma to be added as a plaintiff in that state’s lawsuit against the IRS rule.

The December 2012 Harvard Law Review notes that the IRS rule “may provide a useful opportunity for a reviewing court to clarify the major questions exception to Chevron. In several cases since 2000, the Supreme Court has refused to defer to an agency interpretation on politically or economically significant questions.” The rule certainly seems to be economically significant. Given that 32 states accounting for two-thirds of the U.S. population have refused to establish Exchanges, the rule would result in more than a half-trillion dollars in unauthorized tax credits, subsidies, and penalties against employers and individuals. 

On December 6, the Congressional Budget Office issued a letter that devastates the Obama administration’s defense of the IRS rule. Most media outlets misinterpreted the letter’s significance. I clarified the matter in this oped for Reuters.

On December 13, the chairmen of the House committees on Ways & Means and Oversight & Government Reform, who have held hearings on the IRS rule, sent a letter to Treasury Secretary Timothy Geithner requesting unredacted versions of documents relating to the development of the rule. The House Oversight committee has previously threatened to subpoena the documents if the agency is not forthcoming.

Blog posts do not necessarily do justice to a thinker. But trying to shrink your thoughts in a limited space is a good exercise for a thinker indeed: synthesis forces you to select, cut, and clarify.

Bruce Bartlett now blogs at the New York Times Economix blog. One of his latest pieces is “A Conservative Case for the Welfare State”. Such a case has been made in the past too: most prominently, by the intellectual leader of neo-conservatives, Irving Kristol, who wanted the welfare state to be put at the service of conservatives “principles.”

Bartlett’s endorsement of the welfare state is quite different. He doesn’t attempt to steer welfare paternalism in a conservative direction. He defends the welfare state qua the welfare state and maintains that Conservatives—or better to say: Republicans—should do likewise because “Republican presidents from Dwight D. Eisenhower through George H.W. Bush accepted the legitimacy of the welfare state and sought to manage it properly and fund it adequately”. Conservatism has often been described as politics without a theory, but arguments ex authoritate making an appeal to politicians rather than to philosophers are somewhat novel, particularly when the names named are those of Eisenhower and of Bush Sr., neither of whom appeared to have a particularly coherent political vision.

Bartlett comes out against policies that, following the late Milton Friedman, are not trying to remove the welfare state from the political scene, but rather trying to reshape it to make it more effective. Neither social security “privatization” nor “school vouchers” would override compulsory savings or compulsory education. They would just introduce some competitive elements in the system, bringing us back to a point that wasn’t made by any arch-conservative Republican but by the common patron saint of all families of contemporary liberalism: John Stuart Mill.

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