Back in October, I debated ObamaCare with former Secretary of the U.S. Department of Health and Human Services Kathleen Sebelius. Kansas City Public Television recently aired a package featuring the debate.
Complete footage of the debate is available here: Part 1, Part 2, Part 3, Part 4, Part 5, and Part 6.
One memorable moment came after I told the story of Deamonte Driver, a boy from Prince George's County, Maryland, who died at age 12 because his mother was unable to find a dentist who would accept their Medicaid coverage. An infection that began in an abscessed tooth spread to Deamonte's brain and ultimately killed him. A dentist could have prevented Deamonte's death with a simple $80 extraction. But Medicaid pays dentists so little, that only one in six Maryland dentists accepts Medicaid patients. Deamonte's mother and employees at a local non-profit called dozens of dentists to no avail.
Sebelius responded that Deamonte would have died with or without Medicaid, and besides there is no alternative because "I don't know any dentists who take uninsured people at all." This from, as KCPT describes her, "the woman once charged with leading the nation's health care system."
Also on the panel were Tarren Bragdon of the Foundation for Government Accountability and Daniel Landon of the Missouri Hospital Association.
Yes, deadliness. That was the original headline for this exclusive Washington Post interview with the Empress of ObamaCare. It's still in the URL. All parties now swear it was a typo. We report, you decide.
In that interview, Sebelius admits they're not going about this whole ObamaCare implementation thing the best way:
Ideally what you would do if you were building a data hub that needs this kind of information, you’d put a piece together and test that. You test it, if you will, sequentially. We have to build and test simultaneously.
We always knew that the federal government clearly cannot do this alone. We never anticipated that we would.
And still Sebelius admits she isn't doing ObamaCare full-time.
The IRS has announced it will postpone the start date of Obamacare's "employer mandate" from 2014 to 2015. Most of the reaction has focused on how this move is an implicit acknowledgement that Obamacare is harmful, cannot work, and will prove a liability for Democrats going into the November 2014 elections. The Washington Post called the decision a "fresh setback" and a "significant interruption" to the law's implementation. John McDonough, a prominent supporter of the law, observes, "You’ve given the employer community a sense of confidence that maybe they can kill this. If I were an employer, I would smell blood in the water." When a die-hard Obamacare supporter like Ezra Klein says the employer mandate should be repealed, clearly things are not going well.
While all of this is true, it misses the two most significant implications of this momentous development:
First, the IRS's unilateral decision to delay the employer mandate is the latest indication that we do not live under a Rule of Law, but under a Rule of Rulers who write and rewrite laws at whim, without legitimate authority, and otherwise compel behavior to suit their ends. Congress gave neither the IRS nor the president any authority to delay the imposition of the Patient Protection and Affordable Care Act's employer mandate. In the section of the law creating that mandate, Congress included several provisions indicating the mandate will take effect in 2014. In case those provisions were not clear enough, Section 4980H further clarifies:
(d) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2013.
It is hard to see how the will of the people's elected representatives -- including President Obama, who signed that effective date into law -- could have been expressed more clearly, or how it could be clearer that the IRS has no legitimate power to delay the mandate. Again, Ezra Klein: "This is a regulatory end-run of the legislative process. The law says the mandate goes into effect in 2014, but the administration has decided to give it until 2015 by simply refusing to enforce the penalties."
This matters because the Obama administration has abused nearly every power it possesses--and asserted powers it clearly does not possess--to protect Obamacare. A partial list of abuses:
- Obamacare, which Congress passed and President Obama signed, literally and immediately forbade the administration to provide health insurance to members of Congress and their staffs through the Federal Employees Health Benefits Program. That is, federal law required the Obama administration to throw nearly all members of Congress and congressional staff out of their health plans. But because that might lead Congress to reopen the statute, the Obama administration decided to keep providing that coverage to members and staff in violation of federal law, and has been doing so for three years.
- Shortly after its enactment, Obamacare began increasing health insurance premiums. To prevent a(n even greater) backlash, Obama's HHS Secretary Kathleen Sebelius started waiving select mandates for select companies and unions. Congress gave her no authority to issue such waivers.
- When health insurers began to inform customers how much Obamacare was increasing their premiums, Sebelius threatened to use her powers under the law to bankrupt any insurer that conveyed an unapproved message about the law. All insurers quickly complied.
- As it became clear that dozens of states would refuse to implement Obamacare's health insurance "exchanges," the IRS announced it would implement the law's tax credits, subsidies, and taxes in states with federal fallback exchanges -- even though Obamacare clearly, repeatedly, consistently, and intentionally prohibits the IRS from doing so. The IRS has literally asserted the authority to tax, borrow, and spend more than $1 trillion contrary to the express will of Congress.
- Despite the Supreme Court's ruling that the federal government cannot coerce states into implementing Obamacare's Medicaid expansion, the Obama administration continues to coerce states into implementing most of the expansion's provisions. The Court's opinion flatly contradicts the administration's claim that the ruling applied only to one part of the expansion.
- When it became clear that Congress would not fund Obamacare's implementation, Sebelius decided she would again substitute her judgment for Congress's by using money Congress had dedicated to other purposes. She has since approached companies she regulates to shake them down, tacitly, for funds to implement the law.
- And now, the IRS will delay the implementation of a central component of the law. Again, the administration is unilaterally rewriting federal law with the transparent purpose of avoiding an even greater political backlash against Obamacare.
The Obama administration's zeal to protect this never-popular law is so great, what won't they do to protect it?
Second, the employer mandate is so intimately tied to the rest of the law that the IRS cannot delay it without delaying the rest of Obamacare.
In addition to penalizing employers that fail to offer acceptable coverage, Obamacare offers tax credits and subsidies to certain workers who don't receive an offer of acceptable coverage from an employer. The law requires employers to report information to the IRS on their coverage offerings, both to determine whether the employer will be subject to penalties and whether its employees will be eligible for credits and subsidies.
The IRS both delayed the imposition of penalties and "suspend[ed] reporting for 2014." As the American Enterprise Institute's Tom Miller observes, without that information on employers' health benefits offerings, the federal government simply cannot determine who will be eligible for credits and subsidies. Without the credits and subsidies, the "rate shock" that workers experience will be much greater and/or many more workers will qualify for the unaffordability exemption from the individual mandate. Either way, fewer workers will purchase health insurance and premiums will rise further, which could ultimately end in an adverse selection death spiral. The administration can't exactly solve this problem by offering credits and subsidies to everyone who applies, either. Not only would this increase the cost of the law, but it would also lead to a backlash in 2015 when some people have their subsidies revoked.
I can't see how the IRS can delay only the employer mandate. Perhaps Congress should offer to delay the rest of the law, too.
ObamaCare's Independent Payment Advisory Board is everything its critics say and worse. It is a democracy-skirting, Congress-blocking, powers-unseparating, law-entrenching, tax-hiking, fund-appropriating, price-controlling, health-care-rationing, death-paneling, technocrat-thrilling, authoritarian, anti-constitutional super-legislature. Its very existence is testament to government incompetence. It stands as a milestone on the road to serfdom.
The Congressional Research Service has now confirmed what HHS Secretary Kathleen Sebelius pretends not to know but what Diane Cohen and I explained here:
[I]f President Obama fails to appoint any IPAB members, all these powers fall to Secretary of Health and Human Services Kathleen Sebelius.
That's an awful lot of power to give any one person, particularly someone who has shown as much willingness to abuse her power as Sebelius has.
I would also like the Congressional Research Service to address a feature of IPAB that Cohen and I first exposed. According to the statute, we write:
Congress may only stop IPAB from issuing self-executing legislative proposals if three-fifths of all sworn members of Congress pass a joint resolution to dissolve IPAB during a short window in 2017. Even then, IPAB’s enabling statute dictates the terms of its own repeal, and it continues to grant IPAB the power to legislate for six months after Congress repeals it. If Congress fails to repeal IPAB through this process, then Congress can never again alter or reject IPAB’s proposals.
You read that right. For more, read our paper, especially Box 3 on page 9.
CRS, I'm interested to know what you think. Take a close look at the law and get back to me.
I blogged earlier about how HHS Secretary Kathleen Sebelius is unethically, and possibly illegally,
shaking down industries she regulates to get them to fund ObamaCare's implementation.
Sen. Lamar Alexander (R-TN), the ranking member of the Senate's Health, Education, Labor, and Pensions Committee, says this is "arguably an even bigger issue [than] Iran-Contra," and ably defends his position against the Washington Post's Sarah Kliff.
Excerpts from Alexander's comments:
[I]n Iran-Contra, you had $30 million that was spent by Oliver North through private organizations for a purpose congress refused to authorize, in support of the rebels. Here, you’re wanting to spend millions more in support of private organizations to do something that Congress has refused...
The cause in the first case was the cause of rebels in Nicaragua. And the cause here is to implement Obamacare. Congress has refused to appropriate more for that cause. The administration seems to be making a decision that’s called augmenting an appropriation. Its a constitutional offense that’s the issue...
If you read the report of the Iran-Contra select committee, it said that the executive cannot make an end run around Congress by raising money privately and spending it. That seems to be happening here. That was essentially the problem. There the money came from a different place, but if you look at my statement [the Iran-Contra report said] “a president whose appropriation requests were rejected by Congress could raise money from private sources or third countries for armies, military actions, arms systems, and even domestic programs.” [Emphasis added.] It’s the same kind of offense to the Constitution. It’s the same kind of thumbing your nose at Article 1...
If that’s what they’re saying...that Congress has refused to appropriate the money, then you can’t do it. That’s a curb on the executive.
Alexander has sent a letter to Sebelius requesting information about her extracurricular fundraising activities.
Secretary of Health and Human Services Kathleen Sebelius' latest abuse of power has strengthened the case for her removal from office. Before discussing her latest misconduct, let's review some of Sebelius' past abuses of power.
- In 2010, Sebelius described anonymous political speech as "dangerous." Ironically, Sebelius' lashing out at her political opponents' free-speech rights is dangerous because it is the sort of rhetoric that might encourage agencies like the IRS to target groups that "criticize how the country is being run." That's exactly what the IRS has admitted doing -- which in turn is a good argument for protecting anonymous political speech.
- So too is Sebelius' 2010 threat to put health insurance companies out of business. Shortly after ObamaCare became law, insurers began telling their customers how much it was going to increase their premiums. In a September 2010 letter to insurers, Sebelius shot back that premiums would rise no more than 2 percent, even as her department predicted increases as high as 7 percent. Insurers that didn't toe the party line "may be excluded from health insurance Exchanges in 2014." That was no idle threat, I wrote at the time. Since "Medicare’s chief actuary predicts that in the future, 'essentially all' Americans will get their health insurance through those exchanges," Sebelius was essentially threatening to put insurers out of business if they disagreed with her.
- In 2011, Sebelius approved her department issuing hundreds of billions of dollars in subsidies to private health insurance companies under the rubric of ObamaCare that the statute expressly forbids HHS to issue.
- In 2012, the U.S. Office of Special Counsel concluded that Sebelius violated the Hatch Act by campaigning for President Obama and other political candidates while traveling on official business, an offense for which other federal workers are fired.
- In a July 2012 letter to the nation's governors, Sebelius arbitrarily rewrote and narrowed the Supreme Court's ruling in NFIB v. Sebelius to allow HHS to continue coercing states into implementing parts of ObamaCare's Medicaid expansion.
- When it became apparent that two-thirds of states would not implement one of ObamaCare's health insurance "exchanges," Sebelius dismissed the idea that a lack of congressionally authorized funding for federal Exchanges would stop her department from implementing them. "We are going to get it done," she said. Now we learn she substituted her own judgment for Congress' by raiding ObamaCare's Prevention and Public Health Fund to the tune of $454 million to fund federal Exchanges. But even that wasn't enough.
Now we learn, from the Washington Post's Sarah Kliff, "Sebelius has, over the past three months, made multiple phone calls to health industry executives, community organizations and church groups and directly asked that they contribute to non-profits that are working to enroll uninsured Americans and increase awareness of the law."
This too appears to be unlawful:
Federal regulations do not allow department officials to fundraise in their professional capacity. They do, however, allow cabinet members to solicit donations as private citizens "if you do not solicit funds from a subordinate or from someone who has or seeks business with the Department, and you do not use your official title," according to Justice department regulations.
[A] Health and Human Services official, who requested anonymity because he was not authorized to discuss the secretary’s private discussions, described her work as well within the bounds of her authority.
Riiight. Kathleen Sebelius runs the Department of Health and Human Services. At nearly $1 trillion per year, HHS is the largest department in the U.S. government, spending 43 percent more than the Defense Department. Most of those subsidies go to the health care sector. Those subsidies will increase dramatically when ObamaCare takes full effect next year. Sebelius has been calling executives from the industry she regulates, including "multiple insurance executives," and asking them to donate money to Enroll America -- a private organization, headed by a former White House official, whose purpose is to help make ObamaCare a success. Sebelius has a history of threatening uncooperative companies with retaliation. But we are to believe it's all on the up and up because...what? She never told these executives whether she is the Kathleen Sebelius who runs HHS, or some other Kathleen Sebelius?
Even if her activities are not illegal, they are definitely unethical:
"It sounds like the people she’s going to are people that are being regulated by her agency, I think that is definitely problematic," said Meredith McGehee, policy director for the Campaign Legal Center. "That’s not a statement about the value of the law, but it’s a statement about using the power of government to compel giving or insinuate that giving is going to be looked at favorably by the government."
Given this much misconduct, you might think President Obama would ask for Sebelius' resignation. A spokesman for the president commented:
The President believes that the American people expect and deserve to have the very best public servants with the highest levels of integrity working in government agencies on their behalf...If the Inspector General finds that there were any rules broken or that conduct of government officials did not meet the standards required of them, the President expects that swift and appropriate steps will be taken to address any misconduct.
I'm kidding, of course. That's what White House press secretary Jay Carney said about the IRS targeting tea-party groups. Sebelius is all aces with the president, for two reasons. First, her misconduct came in the service of universal coverage. To the Church of Universal Coverage, there is no higher law. Second, the president needs Sebelius because she is the only person in the universe who can wield the considerable powers of ObamaCare's Independent Payment Advisory Board without needing a Senate confirmation hearing.
As I wrote on the eve of ObamaCare's passage, "Abandoning ethics to serve one’s partisan agenda is an ugly yet bipartisan tradition. But there’s an added irony when supporters of ObamaCare do it: at the same time they demonstrate what scant regard politicians have for honesty, propriety, fair play, and even public opinion, they are demanding that we trust politicians with our health care."
Given the growing concern even among Democrats that ObamaCare will result in a "huge train wreck" later this year, I have a few questions for Health and Human Services Secretary Kathleen Sebelius to add to my previous list:
- What happens if a federal court (say, the Eastern District of Oklahoma) issues an injunction barring HHS from making "advance payments of tax credits" in the 33 states with federal Exchanges?
- Has HHS done any planning for that contingency? If so, what are those contingency plans?
- If HHS has not, why not? Given that the Congressional Research Service and Harvard Law Review both say there's a credible case that the PPACA forbids tax credits in the 33 states with federal Exchanges, how could HHS not have a contingency plan ready?
For more on how HHS is violating federal law by planning to issue advance payments of tax credits through federal Exchanges, read my Cato white paper, "50 Vetoes: How States Can Stop the Obama Health Care Law," and my Health Matrix article (with Jonathan Adler), "Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA."