Obamacare at the Supreme Court
As most readers are no doubt aware, the Supreme Court this week takes up six hours of argument in the Obamacare litigation. Constitutional claims that were originally dismissed as “frivolous” and “easy” are now getting three days of hearings – unprecedented in the modern era. The Court has thus signaled what the American people have known all along, that the government’s breathtaking assertion of power goes beyond anything attempted in the history of the Republic.
Rather than repeat my previous writings on the subject, here’s a sketch of each of the four issues the Court will examine, along with a link to my recent op-ed on the subject (this month I’ve written on three of the four) and the relevant Cato amicus brief:
- Whether the challenge to the individual mandate is barred by the Anti-Injunction Act. –- 90 minutes on Monday – op-ed and brief.
- Whether Congress has the power to enact the individual mandate. –- 2 hours on Tuesday – op-ed and brief.
- Whether and to what extent the mandate, if unconstitutional, is severable from the rest of the law. –- 90 minutes — op-ed (with Richard Epstein and Mario Loyola) and brief.
- Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour — brief.
Are there any constitutional limits on what the federal government can do in the name of regulating interstate commerce? The government hasn’t offered any and we’ll see this week whether that’s good enough for the Supreme Court.
Here further is an analytical point-counterpoint I did with University of California-Irvine Law School dean Erwin Chemerinsky previewing the arguments, and here are a series of blogposts by Cato adjunct scholar Tim Sandefur doing the same. Finally, you can view Cato’s recent conference on the subject here (individual mandate panel) and here (Medicaid expansion panel).
Let’s hope that the Court says that we have a government of laws rather than men, allowing Congress then to get back to the hard work of crafting a true national health reform that both improves the system and stays within constitutional bounds.
May the odds be ever in liberty’s favor!
Gingrich Campaign Responds: Newt Counsels States to ‘Resist’ Implementation of ObamaCare
Newt Gingrich’s presidential campaign has responded to my post, “Gingrich Adviser Urges States to Implement ObamaCare,” in which I responded to David Merritt’s Daily Caller op-ed calling on states to create ObamaCare’s health insurance Exchanges. According to Gingrich campaign spokesman Joe DeSantis:
Mr. Merritt is still an advisor to Speaker Gingrich, but he was not writing this article as a representative of the campaign. Newt receives advice from a large number of people. That does not mean he always agrees with the advice he is given. In this case of states implementing ObamaCare as a precaution, he explicitly disagrees with Mr. Merritt. He believes states need to resist the implementation of the law because it is a threat to our freedom.
That’s welcome news. There’s probably nothing that would give a bigger boost to the repeal effort than for states to refuse to create health insurance Exchanges.
Now that we’ve got the Heritage Foundation and Newt Gingrich on board, perhaps Mitt Romney, Rick Santorum, and Ron Paul could emphasize to state officials the importance of not implementing ObamaCare.
Gingrich Adviser Urges States to Implement ObamaCare
State after state is refusing to implement ObamaCare’s health insurance Exchanges. Republican David Merritt hopes they will “grudgingly decide” to change their minds.
Merritt is a health care adviser to Newt Gingrich. He is also a senior adviser at Leavitt Partners. Leavitt Partners is a consulting firm that makes money by helping states implement ObamaCare. In the Daily Caller, Merritt tries to persuade state officials to help implement a law they oppose.
Merritt begins his pro-Exchange argument like so: “Imagine that you’re being required to buy a car.” Would you rather choose that car yourself, he then asks, or would you rather the dealer choose the car? Hmm, good question. I choose Option C: wring the neck of whoever is requiring me to buy a car. Not Merritt, though. He counsels states to choose their own “car.”
There are so many problems with this analogy that it’s hard to list them all. First, as Merritt essentially admits, states would be able to choose from such a narrow range of “cars” that it scarcely makes a difference whether they pick their own or let the feds do it. Second, states would only have to pay for their “car” if they pick it out themselves; otherwise, the feds pay for it. So Merritt is literally urging states to volunteer to pay for a “car” when the feds would otherwise hand them one for free. Finally, he says states should select their own “car” even though “no one knows what a federal [car] would look like.” How can Merritt counsel states to choose Option A if he admits he doesn’t even know what Option B is? Wouldn’t the prudent course be to wait and see? Especially since the Obama administration admits it doesn’t have the money to create Exchanges itself?
Merritt’s hypotheticals don’t make his point, either:
Take, for example, the treatment of high-deductible health plans with health savings accounts. A state exchange could and should include them as an option…But considering that many on the left oppose consumer-directed plans, a federal exchange may very well exclude them.
Perhaps a federal exchange will lard mandate upon mandate on participating plans, driving costs through the roof. Perhaps it will be so restrictive in its plan eligibility that only a few options will be available. Perhaps HHS will offer a public option.
This is nonsense. If the federal government wants to exclude HSAs, etc., it will do so in both federal and state-run Exchanges. States that establish their own Exchanges won’t be able to do a darned thing about it.
But here’s where Merritt’s argument really fails:
Unless and until the law is repealed by Congress or overturned by the Supreme Court, all health care stakeholders — including state policymakers — need to prepare for it as though it will be the law of the land forever. Wishing the law away is not a strategy. Hoping that it is overturned is not a plan.
Wishing? Hoping? Perhaps Merritt hasn’t noticed, but countless Americans are pursuing multiple well-considered strategies (and working their fingers to the bone) to ensure that ObamaCare is not “the law of the land forever.”
State-run Exchanges undermine all of those repeal strategies. In fact, they completely derail one of the most promising ones. Worse, Exchanges create new constituencies that would be dependent on ObamaCare, and would therefore fight repeal — constituencies not unlike Leavitt Partners. One of the most important reasons for states not to establish Exchanges is that the federal government does not have the money to establish Exchanges itself. Translation: fewer constituencies for ObamaCare.
For all these reasons, scholars from the Heritage Foundation, the Cato Institute, and countless other groups are advising states to refuse to create ObamaCare Exchanges and to send all related grants back to Washington. Perhaps Newt Gingrich’s health care advisers could lend a hand, instead of trying to cement ObamaCare in place.
Update: While it is important to understand the financial interests involved in such issues, I do not believe that financial interest is what’s motivating Merritt. He sincerely believes that creating their own Exchanges will allow states to make the best of a bad situation.
Update #2: Gingrich campaign spokesman Joe DeSantis writes, “Mr. Merritt is still an advisor to Speaker Gingrich, but he was not writing this article as a representative of the campaign. Newt receives advice from a large number of people. That does not mean he always agrees with the advice he is given. In this case of states implementing ObamaCare as a precaution, he explicitly disagrees with Mr. Merritt. He believes states need to resist the implementation of the law because it is a threat to our freedom.”
You Keep Using the Word ‘Affordable.’ I Do Not Think It Means What You Think It Means.
The federal government gave a $10 million “affordability” prize to a giant corporation for manufacturing a $50 lightbulb. The Washington Post:
The U.S. government last year announced a $10 million award…for any manufacturer that could create a “green” but affordable light bulb.
Energy Secretary Steven Chu said the prize would spur industry to offer the costly bulbs…at prices “affordable for American families.”…
Now the winning bulb is on the market.
The price is $50.
Retailers said the bulb, made by Philips, is likely to be too pricey to have broad appeal. Similar LED bulbs are less than half the cost.
This is the same federal government that refers to ObamaCare, which costs more than $6 trillion, as the “Affordable Care Act.”
American People: Of Course the Individual Mandate Is Unconstitutional
Cato senior fellow Randy Barnett (also, of course, a Georgetown law professor and the “intellectual godfather” of the Obamacare litigation) blogs the results of a new USA Today/Gallup poll: 72% of Americans (including 56% of Democrats and 54% of those who think “the healthcare law is a good thing”) think the individual mandate is unconstitutional. This follows a Rasmussen poll showing that a majority of Americans favor repeal and an AP poll from August that found 82% to opine that the federal government “should not have the power to require all Americans to buy health insurance.”
Now, no court should rule a given way simply because a majority—even an overwhelming majority—of people want it to. Indeed, the judiciary is by design the non-political branch of government, one often required by the Constitution to reach counter-majoritarian results. But to the extent that in this unprecedented litigation over an unprecedented assertion of federal power, where the outcome could turn on whether something is “proper”—the intepretation of which term may depend on concepts such as “legitimacy” and “accountability”—the sustained, strong views of the public may, at the margins, matter.
Are you listening, Justice Kennedy Supreme Court?
There Is No Objective Definition of ‘Medical Necessity’
California regulators are coming down on Kaiser Permanente. According to HealthLeaders Media, the regulators reviewed a batch of coverage denials and “found that in excess of 75% of the cases the services indeed were medically necessary, and 10% were not.” Indeed?
Now seems like a good time to post what University of Tennessee law professor Haavi Morreim wrote about “The Futility of Medical Necessity“ in Regulation:
Clinical artificiality The ill fit between “necessity” and ordinary medical care is immediately obvious in the question facetiously bandied about when health plans first considered what to do about a recently approved drug for male impotence: How often per month (per week? per day?) is drug-assisted sexual intercourse “medically necessary”?
As typified by that case, most medical decisions do not post clear choices of life versus death, nor juxtapose complete cures against pure quackery. Rather, the daily stuff of medicine is a continuum requiring a constant weighing of uncertainties and values. One antibiotic regimen may be medically comparable to and much less expensive than another, but with slightly higher risk of damage to hearing or to organs like kidneys or liver. For a patient needing hip replacement, one prosthetic joint may be longer-lasting but far costlier than an alternative. Of two equally effective drugs for hypertension, the costlier one may be more palatable because it has fewer side effects and a convenient once-a-day dosage.
Across such choices, it is artificially precise to say that one option is “necessary” — with the usual connotation of “essential” or “indispensable” – while the other is “unnecessary” — with the usual connotation of “superfluous” or “pointless.” Various options have merits, and often no single approach is the clear, “correct” choice. A given option might be better described as “a good idea in this case,” “reasonable, given the cost of the alternative,” “probably better than the alternative, given a specific goal,” “about as good as anything else,” or “not quite ideal, but still acceptable.”
In many cases, the real question is whether a particular medical risk or monetary cost is worth incurring in order to achieve a desired level of symptomatic relief or functional improvement, or to reduce the risk of an adverse outcome or a missed diagnosis. A huge array of treatments fits that description: more or less worthwhile, but the patient will not die without it and other alternatives (that might have some drawbacks) exist. [Emphasis mine.] Read the rest of this post »
Does Mitt Romney Have Health Insurance?
It’s an interesting question. Romney is under age 65, which means that he would have to obtain private health insurance. He jokes that he is unemployed, which means he may have to purchase it on his own. Or he may get it as a retiree benefit from Bain Capital.
The question is interesting because Romney is so wealthy that to spend his money on health insurance might seem like a waste. (Of course, Romney may be very risk averse, and a man to whom $10,000 is a small wager probably isn’t going to notice a $20,000 health insurance premium. But Romney could pay for whatever medical care he and his wife — and his children, and his grandchildren — could possibly need.) On the other hand, if Romney doesn’t have private health insurance, it would look bad that he forced other people to buy it.
Moreover, Romney turns 65 on March 12, meaning he becomes eligible for Medicare on March 1. He likely received his Medicare card in the mail two months ago. If Romney does not enroll in Medicare, it would again look bad that he who forced others to purchase health insurance is opting not to obtain health insurance himself. But if he does enroll in Medicare, it’s worth asking whether the 99 percent should subsidize people like him.
Kaiser Family Foundation: If ObamaCare Increases the Cost of Your Coverage, That’s a ‘Benefit’
Jonathan Gruber, one of ObamaCare’s biggest defenders, estimates that even after accounting for the law’s tax credits and subsidies, nearly 60 percent of consumers in Wisconsin’s individual market (for example) will pay an average of 31 percent more for health insurance. Some will pay more than twice as much as they did pre-ObamaCare.
Inexplicably, the Kaiser Family Foundation, another defender of the law, counts everyone in the individual market—including those who would pay more—in its estimate of “the number of people who would benefit from the financial subsidies.”
Sebelius Admits ObamaCare Exchanges Aren’t Happening, Then Disqualifies Herself from Office
Politico Pro has published a short but remarkable article [$] stemming from an interview with HHS secretary Kathleen Sebelius. It offers a couple of illuminating items, and one very glaring one.
First, Sebelius undermines the White House’s claim that “28 States and the District of Columbia are on their way toward establishing their own Affordable Insurance Exchange” when she says:
We don’t know if we’re going to be running an exchange for 15 states, or 30 states…
So it turns out that maybe as few as 20 states are on their way toward establishing this “essential component of the law.” Or maybe fewer.
Second, the article reports the Obama administration has reversed itself on whether it has enough money to create federal Exchanges in states that decline to create them. The administration has repeatedly claimed that the $1 billion ObamaCare appropriates would cover the federal government’s costs of implementing the law. And yet the president’s new budget proposal requests “another $1 billion” to cover what Sebelius calls “the one-time cost to build the infrastructure, the enrollment piece of [the federal exchange], the IT system that’s needed.”
In other words, as I blogged yesterday, the Obama administration does not have the money it needs to create federal Exchanges. Therefore, if states don’t create them, ObamaCare grinds to a halt. (Oh, and this billion dollars is the last billion the administration will request. Honest.)
Most important, however, is this:
Even if Congress does not grant the president’s request for more health reform funding, Sebelius said her department will find a solution. “We are going to get it done, yes,” she said.
An HHS staffer prevented the reporter from asking Sebelius what she had in mind.
This is a remarkable statement. Sebelius basically just copped to a double-subversion of the Constitution: Congress appropriates money for X, but not Y. Sebelius says, “I know better than Congress. I’m going to take money away from X to fund Y.” Sebelius has already shown contempt for the First Amendment, first by threatening insurance carriers with bankruptcy for engaging in non-fraudulent speech, and again by crafting a contraceptives mandate that violates religious freedom. Now, she has decided the whole separation of powers thing is for little people. What will Sebelius do the next time something gets in the way of her implementing ObamaCare?
I don’t see why a federal official should remain in office after showing so much contempt for the Constitution she swore to uphold.
HuffPo Oped: ‘The Illiberality of ObamaCare’
My latest:
On Friday, President Obama tried to quell the uproar over his ongoing effort to force Catholics (and everyone else) to pay for contraceptives, sterilization, and pharmaceutical abortions. Unfortunately, the non-compromise he floated does not reduce by one penny the amount of money he would force Catholics to spend on those items. Worse, this mandate is just one manifestation of how the president’s health care law will grind up the freedom of every American.
Oregon Legislature Blocks ObamaCare ‘Exchange’
From the Portland Oregonian:
House Republicans block Oregon’s health insurance exchange in surprise vote
Updated: Monday, February 13, 2012, 1:08 PMA coalition of 30 Republicans and 1 Democrat in the state House of Representatives blocked approval of Oregon’s health insurance exchange this morning…
Last year, a bill to set up the exchange passed both houses of the Legislature with broad bipartisan approval.
House Bill 4164, which would give final approval to the exchange, cruised through its committee hearings without incident. But then, as the House met Monday morning to forward the bill to the Senate, Rep. Tim Freeman, R-Roseburg, made a motion to instead refer the bill to the Joint Ways and Means Committee, where he co-chairs a subcommittee on human services.
Freeman said questions had arisen in a recent caucus meeting of House Republicans over what commitments existed over federal funding of the program, as well as the potential for a change to the legal status of federal health care reforms, currently under consideration by the U.S Supreme Court…
The move led by House Republicans comes as Republicans in the Senate have vowed to block a companion bill on health care reform unless it is modified to include limits on lawsuit awards against health providers.
(HT: Eric Fruits.)
President’s Budget Shows Feds Can’t Create ObamaCare ‘Exchanges’
According to Politico Pro [$]:
More than $860 million of President Barack Obama’s proposed $1 billion increase in the CMS budget will go to building the federal exchange, acting [Centers for Medicare and Medicaid Services] Administrator Marilyn Tavenner said during a budget briefing at HHS on Monday.
This funding is necessary in part because the amount originally appropriated for the federal costs of implementing the Affordable Care Act — $1 billion — is expected to be gone by the end of this year, HHS officials said.
Assistant Secretary for Financial Resources Ellen Murray said at the briefing that half of these funds have already been obligated, and the remaining amount will be used by the end of the year.
She also said states will still be able to get help building exchanges, because other ACA funds are still available for exchange work.
“Funding for [state grants] was provided in the Affordable Care Act, so the money we’re asking for in this budget is just for the federal exchange,” Murray said.
In other words, the federal government doesn’t have the money to create ObamaCare Exchanges, and the administration has no hope of getting that funding through the Republican-controlled House. So if states don’t create Exchanges, they might not exist. (And even if the federal government does create them, they won’t work.)
Never mind the lawsuits. The Exchanges may be ObamaCare’s most serious vulnerability.
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