Archive for November, 2011
Obamacare’s Footnote Four
This post was co-authored by Cato legal associate Chaim Gordon.
Freedom-loving lawyers everywhere recoil in horror at the mere mention of “footnote four.” In that infamous citation in the 1938 case of Carolene Products, the Supreme Court officially renounced judicial review of laws that infringe on economic liberty. This week, in his dissent from the D.C. Circuit opinion that upheld the individual mandate on Commerce Clause grounds, Judge Brett Kavanaugh added his own dubious “footnote four.”
Judge Kavanaugh’s 65-page dissent was devoted to his parsimonious reading of various provisions in the Internal Revenue Code, culminating in the conclusion that the Anti-Injunction Act robbed federal courts of jurisdiction to hear the case until the mandate penalty is actually enforced. As Judge Kavanaugh noted, “the Tax Code is never a walk in the park.” But the Tax Code is even more grueling when you are given lousy legal advice. And that is why footnote four — in which Judge Kavanaugh inexplicably decides to publicly thank former IRS commissioners Mortimer Caplin and Sheldon Cohen and their counsel for their amicus brief – is so troubling. Here is his footnote four:
Both sides before us want this case decided now and contend that the Anti-Injunction Act does not bar this suit. The amicus brief of former IRS Commissioners Mortimer Caplin and Sheldon Cohen, submitted by able counsel Alan Morrison, cogently argued the opposite position. The Court is grateful to amici and counsel for their assistance.
But it is entirely unclear why Commissioners Caplin and Cohen and Counsel Morrison deserve the court’s thanks. For starters, the Caplin and Cohen brief was not advocating either of Judge Kavanaugh’s nuanced readings — be they correct or not – of various provisions in the Internal Revenue Code. (It did, however, make one of Kavanaugh’s main arguments in response to one of the government’s arguments toards the end of the brief.) Rather, the Caplin and Cohen brief broadly asserts that the AIA “prevents courts from reviewing all claims involving payments under the Code, not just those labeled taxes.”
The problem is that, in support of this broad, sweeping assertion, the Caplin and Cohen brief misleadingly cites cases that do not support its claim. That is, almost all the cases cited by the Caplin and Cohen brief specifically relied upon the fact that the penalties at issue were found in chapter 68 of the IRC or were part of a larger taxing scheme (as in the Mobile Republican case). But you would not know that from reading the Caplin and Cohen brief.
Take, for example, the Caplin and Cohen brief’s citation to Shaw v. United States and Botta v. Scanlon as “perhaps the best illustration of the breadth of the applicability of” the AIA. What the Caplin and Cohen brief does not say is that both of these cases specifically rely upon provisions in the IRC that define the penalty at issue in those cases (under section 6672) as taxes for the purposes of the AIA. Those provisions, by their own terms, only apply to penalties under chapter 68 of the Code, and the penalty for violating the individual mandate is in chapter 48.
This is really green-eyshade stuff, we know, but that’s what this litigation has come to — and it’s why tax lawyers are not suffering the higher rates of unemployment of their peers in other specialties.
To make matters worse, Caplin and Cohen filed essentially the same amicus brief with the Supreme Court in one of the cases that the Court will take up at its cert petition conference this week. This is especially alarming because the government has urged the Court to appoint an amicus counsel to argue for the position that the AIA applies to the penalty for violating the individual mandate (even though the government now agrees with the mandate’s challengers that the AIA does not apply).
We think the justices’ clerks are fully capable of advising their bosses on the pro-AIA arguments, which in any event does not apply to the 26 state plaintiffs in the Eleventh Circuit case. Plus the Court has the Fourth Circuit’s and now Judge Kavanaugh’s thorough “briefs.” If the Court does decide to appoint an amicus to argue that issue, however, let’s hope that it receives better legal advice than the D.C. Circuit got from Caplin and Cohen.
Just How Much of the Mortgage Market Is Over $625,000?
On October 1st the maximum loan limit for Fannie Mae and Freddie Mac declined from around $729,000 to just over $625,000. Not surprisingly the real estate industry and Fannie apologists are claiming that this would cause the housing market to crater. It would seem to me that this claim would greatly depend upon just how much of the market will be impacted.
Fortunately one can try to answer that question. According to Federal Reserve data, collected under the Home Mortgage Disclosure Act (HMDA), the percent of home purchase mortgages between $729,000 and $625,000 is less than 1% of the market. So we are arguing over increasing mortgage rates for only 1% of the market? I fail to see how such is going to have much of an adverse impact on the mortgage market.
If we were to go back to the pre-crisis loan limits of $417,000, we’d only have about 8% of the mortgage market not under the conforming loan limit. So instead of talking about a decrease to $625.000 we should be at least talking about a decrease to $417,000. Going even further to just over $200,000 would still leave Fannie and Freddie with a majority of the market.
For those that believe that declining loan limits unfairly hit “high cost” areas, then the solution to me would be to abandon any loan limits altogether and base eligibility on income, as we do in the Rural Housing Programs (which I believe have a limit of 115% of state median income). Of course this sets aside the fact that many “high cost” areas are expensive because of their harmful and misguided land use policies.
A Misimpression of Constitutional Moment
A little bit of errant security information made its way into the Supreme Court’s oral argument in U.S. v. Jones this week. Justices Ginsburg, Kagan, and Breyer were testing the fairly narrow limits of the position advocated by Jones’ counsel. He focused on invasion of Jones’ “possessory interest” in his car when the government placed a GPS device on it.
If the Court were to find that attachment of a device invaded Jones’ Fourth Amendment interests, this wouldn’t protect him from a system of cameras that developed much the same information, noted Justice Ginsburg. Justice Kagan continued:
What is the difference really? I’m told — maybe this is wrong, but I’m told that if somebody goes to London, almost every place that person goes there is a camera taking pictures, so that the police can put together snapshots of where everybody is all the time. So why is this different from that.
Justice Breyer continued down this line:
And in fact, those cameras in London actually enabled them, if you watched them, I got the impression, to track the bomber who was going to blow up the airport in Glasgow and to stop him before he did. So there are many people who will say that that kind of surveillance is worthwhile, and there are others like you who will say, no, that’s a bad thing.
I’ve spent a lot of time examining terrorism incidents, and the scenario described by Justice Breyer does not sound familiar to me. There was an attack on the Glasgow airport in 2007. That attack was a qualified success—heavily qualified: one of the attackers incinerated himself in the course of causing minor injuries to a few standers-by and only modestly damaging the airport. I’ve found no report that surveillance cameras were involved in monitoring or apprehending the attackers—much less stopping the attack—or in stopping any similar-sounding attack.
Security cameras and surveillance generally are over-rated as preventives of crime and terrorism. They are some help in discovering information about crime after the fact. No help is needed when a major incident turns the eyes of an entire city or nation toward discovering what happened.
I doubt that the case will turn on Justice Breyer’s apparent error, but it clearly influences his thinking, and he shared it with other members of the Court. The people he counts as saying surveillance is worthwhile do not have prevention of an airport bombing in Glasgow to back them up.
High Tech Surveillance: Where to Draw the Line?
As Jim Harper noted yesterday, the questioning during yesterday’s oral arguments in United States v. Antoine Jones suggested to most observers that the Supreme Court is acutely concerned about the dangers of leaving police use of location tracking technology completely unregulated by the Fourth Amendment. “If you win this case,” Justice Stephen Breyer told the government’s lawyer, “then there is nothing to prevent the police or government from monitoring, 24 hours a day, the public movement of every citizen of the United States…. You produce what sounds like Nineteen Eighty-Four.” Yet, as I observed in a previous post, the Court has a wide array of rationales to choose from if it decides to rule in favor of Antoine Jones, and each has different implications for the larger question of how the Constitution will limit a whole array of location tracking technologies.
The simplest and narrowest ruling against the government here — one that seemed to appeal to Justice Scalia — would focus not on the monitoring, but only on the physical intrusion on property involved in the installation of the tracking device. That is, I think, absolutely right as far as it goes, but would only prolong the deeper questions, since there are many high-tech ways to track someone without physically attaching anything to their property, from the cell-phone tracking already in widespread use, to robotic surveillance insects in the foreseeable future. Many on the Court would seemingly prefer to avoid a game of technological whack-a-mole, and find a principle to regulate location monitoring itself. The appeals court in this case relied on what’s come to be called the Mosaic Theory, which holds that prolonged monitoring may invade privacy, even if all the specific journeys — all the tiles in the “mosaic” — are public when considered in isolation.
GOP Fingerprints on the ‘Christmas Tree Tax’
The Drudge Report’s headlining of a Heritage Foundation story titled “Obama Couldn’t Wait: His New Christmas Tree Tax” has created quite a stir. In fact, it is being reported that the administration is now going to delay its implementation due to the outcry. Conservatives and Republicans are particularly incensed. However, it appears that they might want to rethink their Obama-as-Grinch narrative.
The National Taxpayer Union’s Demian Brady posted a link on his Facebook page to the 1996 bill that enabled the U.S. Department of Agriculture to implement a “Christmas Tree Tax.” As it turns out, the legislation was sponsored by then Rep. Pat Roberts – a Kansas Republican. John Boehner, the current Republican Speaker of the House, was one of the bill’s co-sponsors. The vote in the House was 318 to 89 with most of the “no” votes coming from Democrats. In the Senate, the vote was 74 to 26. Sen. John McCain was the only Republican to vote “no.”
As for the “Christmas Tree Tax” itself, my colleague Jim Harper is correct that it is indeed a tax (see also Ilya Shapiro’s post). It’s another example of how special interests – in this case, the Christmas tree lobby (!) – dominate policymaking in Washington, regardless of which party is in control. I would argue that there is no good practical, moral, or constitutional justification for the federal government to be involved in the marketing campaigns of business interests. Unfortunately, certain people saw the “Christmas Tree Tax” as an opportunity to further partisan aims rather than provoke a discussion and debate on the proper role of the federal government.
Farm Subsidies and ‘Risk Management’
There has been much written recently about the so-called shallow loss proposals to provide subsidies for farms in cases when farm revenues fall slightly below the record high levels of the past few years. The proposals come from a bi-partisan collection of influential farm state legislators, such as Rep. Collin Peterson (D., MN) and Senator Richard Lugar (R, IN) et al., and commodity groups such as the National Cotton Council. (The Congressional Research Service has prepared a helpful summary of the proposals). All suggest that new and expanded subsidy programs are needed to help farmers manage untoward risks of farming. These ideas have even gotten support from some long time advocates for farm policy reform such as the distinguished former Agriculture Secretary and U.S. Trade Representative Clayton Yeutter.
Let us take a step back and put these proposed programs in context. First, since the middle of the last decade farm prices for the major grains, oil seeds and cotton have doubled or more than doubled and are expected to remain elevated. This has meant that the long-standing support programs with their fixed congressionally mandated support prices no longer trigger payments. Projections for the next decade suggest that prices are unlikely to drop back to below the established support prices. Since there is no support for simply raising the government set minimum prices, and simply paying farmers and farmland owners based on their history of having political clout (as was established in 1996) now seems infeasible, commodity groups needed another formulation to continue to receive significant government payments.
One way to ratchet up supports and lock in high revenues is to tie payments not to price per se, but to revenue. Hence the new proposals each include variants of the idea that when revenue declines by 5 or ten percent below what farmers of a particular commodity have come to expect, the taxpayer would make payments to fill the gap. Thus, this year, with harvest time price of soybeans about 10 percent below the futures price established last winter, government payments would kick in under some proposals. Even now under subsidized crop insurance programs, farms or county yields as little as 5 percent below average would be enough to trigger crop insurance payments in some cases. Notice this would happen with a price of soybeans of more than $12 per bushel when the average farm price from 2004 to 2006 (not a particularly low-price period) was below $6.00 per bushel. In other words, historically high prices have become the new “benchmark” for support. Talk about a ratchet effect.
We can use insurance information to get a sense of how much the proposed programs are designed to satisfy farmers latent demand for “risk management.” Under the current crop insurance program with more than 50% premium subsidies, additional subsidies for program delivery, and subsidies to cover losses of insurance companies, relatively few farmers buy insurance to cover losses above 20 percent. And, as premium subsidies decline farmers abandon insurance altogether. Farmers employ many risk management strategies from diversification and crop rotation to storage and use of forward contracts. Given these options, they do not choose to buy more risk management when asked to pay a major share of the costs. The opportunity to lock in high revenues with expected payoffs likely to be in the billions of dollars is not about risk but about higher returns, and no operation can afford to turn down higher returns with little or no risk.
Finally, there are two further problems with the argument that farming is especially risky and therefore taxpayers must continue to provide payments whenever revenue targets are not met.
First, notice that this idea only seems to apply to that subset of farm commodities that have received the traditional farm subsidies since the 1930s. There are no proposals for massive “shallow loss” subsidies for industries such as fruits, vegetables, tree nuts, broilers, hay, hogs, beef cattle, greenhouse and nursery products, eggs or seeds. These industries are at least as risky as corn and soybeans, but they have not traditionally been subsidized to the degree to which some crops have become accustomed. (As an aside, there is no evidence that the long term prosperity or productivity of the heavily subsidized industries is higher than the less subsidized farm commodity industries.)
Second, the debt to equity ratio of the subsidized farm sectors does not make them particularly vulnerable. In fact farm debt is well below 15 percent of equity. Moreover, most farms have substantial non-farm income and most farmers work off the farm or get retirement income from non-farm occupations. The farmers that are least likely to work off the farm operate the largest farms and practice a number of risk management strategies. Thus, relatively few farms are in danger going under. Farming is a risky business, but, given how they are organized, there is nothing particularly risky about farming compared to other businesses.
Under the new “risk management” proposals, any individual farm would gain from access to government payments when market revenue falls below some recent average or pre-set target. That said, there is simply no evidence or consistent reasoning for subsidies whether rationalized by “risk management” or one of the other dozen or so common claims (see page 12 of this book by Stanford University’s Woods Institute). Furthermore, there is no evidence that the long term prosperity of agriculture is enhanced by government subsidies or that U.S. farming is more productive or that Americans eat better because we have spent trillions of dollars on farm subsidies over the past seven decades. The best argument for farm subsidies is that we have always had them and change is hard. But, that argument has been stretched a bit thin and this period of record farm profits and record government budget deficits is an ideal time to finally cut the cord.
(Other papers critical of recent “risk management” proposals and well worth your time are a piece written by Bruce Babcock for the Environmental Working Group and one by Barry Goodwin and Vince Smith for AEI. For a recent broader evaluation of farm subsidies visit my paper written jointly with Barry and Vince and published by AEI).
The End of Civilization?
Forced to cut its budget, the Agriculture Department has decided to eliminate dozens of reports, including the annual goat census (current population: three million), and the number of catfish on the nation’s fish farms (177 million, not counting the small fry).
Another Immigration Message from Arizona
Last year sometime, when the Arizona immigration law S.B. 1070 was big news, I was preceded on a cable TV talk show by an Arizona state senator who had sponsored the legislation. As I sat in a remote studio in Washington, I could hear the senator in another studio rattle off what seemed an unending list of people in his state who had allegedly been killed by illegal immigrants. Knowing that the state’s violent crime rate has actually been declining and is the lowest it has been in 40 years, I thought to myself, “This guy is a first-class demagogue.”
Apparently his constituents agree. The state senator was Russell Pearce, main sponsor of Arizona’s tough anti-illegal-immigrant law. Yesterday his constituents removed him from office in a recall election spurred largely by his obsession with rooting out low-skilled, undocumented immigrants from his state.
Pearce tried to blame the recall on liberals soft on illegal immigration, but the opposition in his conservative district was fueled mainly by other Republicans tired of the damage he was inflicting on the state’s reputation. After passage of S.B. 1070, Pearce had then tried to deny state-issued birth certificates to children born in the state to an illegal immigrant parent despite more than a century of settled constitutional doctrine on birthright citizenship. That effort was stopped by business leaders in the state who saw no upside but plenty of downside in Pearce’s single-minded efforts that did nothing to address the state’s depressed economy.
Defeating Pearce was another Republican, Jerry Lewis, who carried 54 percent of the vote despite being outspent 3-1. After his victory last night, Lewis said,
Certainly the immigration issue is important to many people including myself. We need to bring a civil tone to that discussion, a professional approach to solving it, an approach that is reasonable and won’t be … in the courts for years to come.
Perhaps there is a lesson here for the GOP presidential candidates who have been competing with each other in recent debates to prove who can sound the most like Russell Pearce on immigration.
The End of the Euro?
Global equity markets are falling, with the Dow Jones Industrial Average down around 250pts. A benchmark 10-year Italian government bond is yielding 7.4%. Every country whose sovereign debt went over the 7%-mark has required a bailout. I was in Italy a month ago, and the yield was under 6% (still pricey for a developed country).
A bailout of a country Italy’s size would be a gargantuan task — probably a larger effort than heretofore. It is beyond the capacity of the EU. Italy’s debt is just too large. I doubt China would purchase any real assets until labor-market reforms and pension reforms were enacted. China actually wants a return on its investments.
If the IMF gets involved, it would require massive new funds for which the US taxpayer would be on the hook for around 18%. I wonder how that would go over in the US House or even the Senate? That doesn’t mean the Obama administration won’t try to organize a rescue. The Fed has been backstopping the EU banks for some time.
Will the Euro survive? Will the global financial system survive?
The Longhorn Mismatch: Too Much Racial Preference, Too Little Success
Last week the Supreme Court asked the University of Texas to respond to a cert petition raising an issue that in any non-Obamacare year would be the most explosive part of the Court’s docket: racial preferences in higher education. (UT had for some inexplicable reason failed even to file a waiver, which is customary in cases where the respondent feels no need to file an actual brief.)
The case was brought by Abigail Fisher, a white Texan denied admission to UT-Austin even though her academic credentials exceeded those of admitted minority students. The district court granted summary judgment to the university and the Fifth Circuit panel affirmed because a divided Supreme Court in the 2003 case of Grutter v. Bollinger (the University of Michigan case) found narrowly tailored racial preferences to be constitutionally justified for the sake of diversity. Judge Emilio Garza wrote an electrifying concurrence — starting at page 58 here — agreeing that the ruling was correct under Grutter but that Grutter itself, and the regime of “soft” racial preferences (i.e., not quotas) it created, is incompatible with the Equal Protection Clause.
The Fifth Circuit then denied en banc rehearing by a vote of 7-9, over a sharp dissent by Chief Judge Edith Jones. (Full disclosure: The judge I clerked for lo those years ago, E. Grady Jolly, joined Chief Judge Jones’s dissent.)
Fisher’s cert petition objects to the wide discretion the Fifth Circuit would grant UT in administrating its racially preferential admissions paradigm, arguing that affording deference to the university extends Grutter and cannot be consistent with the “strict scrutiny” Grutter requires. Indeed, rather than working to phase out public university race preferences consistent with the expectations the Court articulated in Grutter – Justice O’Connor famously wrote that the diversity rationale would only suffice for about 25 years – the Fifth Circuit provides a veritable roadmap for discriminatory state action.
Now, it would be ideal if all nine justices were courageous enough to uphold constitutional protections for all citizens by refusing to legitimize racially discriminatory state action, regardless of the good-faith motives or other political atmospherics surrounding that action. Progressive legal theory being what it is, however, such a result, where people are judged on the content of their character/qualifications rather than the color of their skin, is unfortunately still a dream. There is, however, an argument that might sway even those members of the Court who support affirmative action as a policy matter: race preferences hurt those they are intended to help.
As highlighted in Richard Sander and Stuart Taylor’s amicus brief, a growing body of research suggests that when the capabilities of a student’s peers exceed their own, the student performs worse than when surrounded by peers with objectively similar capacities. Sander (a UCLA economist and law professor) and Taylor (a lawyer and journalist who has long covered civil rights issues) utilize this “mismatch theory” to discredit the assumption underlying race preference programs — that they benefit minorities — and demonstrate that the opposite is true. They further point out that racial preferences have failed to have their intended effects; namely, preventing racial balancing, fostering diversity, and making universities more attractive to minorities.
Three U.S. Civil Rights Commissioners also filed an amicus brief presenting evidence that racial preferences produce the opposite of their intended effect; they discourage rather than facilitate the entry of minorities into prestigious careers by incentivizing elite public universities to admit students they would not admit if admissions were race-blind. They argue that racial preferences place students in environments that do not optimize to their learning. Citing robust statistics, they conclude that this effect actually discourages minorities from entering science and engineering careers and becoming college professors, and decreases the number of minority students accepted to law schools who actually earn JDs and pass the bar exam.
The well-intentioned advocates of race-conscious public university admissions got it wrong under the Constitution. These briefs further illustrate the detriment everyone in society suffers when state action based on race rather than merit dictates the paths of young Americans.
Under the Court’s request for a response, the university has until the end of the month to file, unless it asks for and is granted an extension. If the university’s response arrives by January, the case — if the Supreme Court takes it – should be on schedule for argument and decision this term. For more on Fisher v. University of Texas, see the case’s SCOTUSblog page.
Thanks to Cato legal associate (and UT alumna) Anna Mackin for help with this blogpost.
Michelle Obama on Personal Responsibility and the Limits of Federal Programs
Yesterday the First Lady addressed high school students visiting Georgetown University for a day. Her message was to encourage students to strive for academic success and college degrees, but her answer to one question said a whole lot more. Here’s the question:
about the community, like, about this violence and teen pregnancy that’s going on…. What could you and your husband do to change or help out us young people? Because it’s like someone dying every day. Like, it’s just crazy.
Mrs. Obama answered at length, stressing the need for every individual to take responsibility for his own life and his own destiny, going so far as to add that
there’s all this stuff the President and Congress can do, but trust me, they can’t fix that. No matter what, they can’t get in your head and change that. You have to do that.
The First Lady is right that people must take responsibility for themselves, but what she seems not to realize is that government programs often stifle that kind of behavior. Responsibility is like a muscle: use it or lose it. The only way you learn how to behave responsibly is to actually have real responsibilities. Government has gotten in the way of that process in a host of ways, but nowhere so perniciously as in education. Today, the only educational responsibilities most parents have is to get their kids up in the morning and point them in the direction of the school or the school bus. They don’t decide where their kids go to school, who teaches them, or what they’ll be taught. The natural result—the inevitable result—is the atrophy of parental responsibility towards their children’s education and the horrendous cascade of social ills that flows from it.
Most of this is the fault of our state school monopolies that automatically assign children to schools based on where they live. But the federal government has exacerbated that problem by centralizing control over schooling even further. By abolishing their failed k-12 education programs alone, Congress would save the nation’s taxpayers roughly $70 billion annually. And by encouraging states to return power over education to parents instead of leaving it with bureaucrats, they would dramatically increase the exact kind of responsible behavior that Mrs. Obama knows is essential to solving so many of our social and economic problems.
Consider that the state of Florida has a program that cuts taxes on businesses that donate to non-profit k-12 scholarship funds. Those scholarship organizations subsidize private school tuition for low-income families. According to two separate studies, this program improves achievement in public schools, by virtue of the new competitive pressures it introduces, and it improves the achievement of the students who participate. And by requiring parents to make the difficult decisions as to where to send their children to school, and by requiring most parents to contribute at least a small co-payment, this program builds exactly the kind of responsibility and exactly the kind of social capital that Mrs. Obama so rightly yearns for.
Oh, and, by the way, it saves taxpayers $1.49 for every dollar it reduces state revenue, so it makes economic sense in the immediate term as well as in the long term.
But there’s a catch: This practical and proven solution does not seem to fit well with Mrs. Obama’s political ideology—or, more damagingly, with her husband’s. So instead of ending failed federal education programs and encouraging parental choice, power, and responsibility, the president will keep pursuing federal programs that even his own wife recognizes are doomed to fail.
But while it’s hard for a person to change his ideology, it’s easy for a country to change its president.
Ohio’s 2-1 Vote against the Individual Mandate Is a Wholesale Rejection of ObamaCare
Yesterday, Ohio voters approved by 66-34 percent an amendment to the state constitution blocking any sort of individual mandate in the state. The Cleveland Plain Dealer reported that this “strike at President Barack Obama’s health care plan…was ahead by a wide margin even in Cuyahoga County — a traditional Democratic stronghold.” A little over a year ago, Missouri voters likewise rejected ObamaCare’s individual mandate by 71-29 percent.
Supporters typically dismiss such setbacks, including two years of solid public hostility to ObamaCare, by claiming that voters don’t hate the entire law. In fact, they actually like specific provisions. A year ago this month, The Washington Post‘s Greg Sargent quoted approvingly a McClatchy-Marist poll:
Almost six in ten voters — 59% — report the part of the health care law that prevents insurance companies from denying coverage due to pre-existing conditions should remain law while 36% want it repealed.
Supporters are in serious denial if they still cling to this theory. These overwhelming rejections of the individual mandate are indeed a rejection of the entire law.
Asking people whether they support the law’s pre-existing conditions provisions is like asking whether they want sick people to pay less for medical care. Of course they will say yes. If anything, it’s amazing that as many as 36 percent of the public are so economically literate as to know that these government price controls will actually harm people with pre-existing conditions. Also amazing is that among people with pre-existing conditions, equal numbers believe these provisions will be useless or harmful as think they will help.
But as the collapse of the CLASS Act and private markets for child-only health insurance have shown, and as the Obama administration has argued in federal court, the pre-existing conditions provisions cannot exist without the wildly unpopular individual mandate because on their own, the pre-existing conditions provisions would cause the entire health insurance market to implode.
If the pre-existing conditions provisions are a (supposed) benefit of the law, then the individual mandate is the cost of those provisions. If voters don’t like the individual mandate–if they aren’t willing to pay the cost of the law’s purported benefits–then the “popular” provisions aren’t popular, either.
Or, as Firedoglake’s Jon Walker puts it, ObamaCare is about as popular as pepperoni and broken glass pizza.
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