Archive | Health Care

Ezra Klein on the “Obamacare Disaster”

Ezra Klein concludes that the launch of the PPACA’s health insurance exchanges has been a “failure.”

Not “troubled.” Not “glitchy.” A failure. But “so far” only encompasses 14 days. The hard question is whether the launch will still be floundering on day 30, and on day 45. . . .

We’re now negative 14 days until the Affordable Care Act and most people still can’t purchase insurance. The magnitude of this failure is stunning. Yes, the federal health-care law is a complicated project, government IT rules are a mess, and the scrutiny has been overwhelming. But the Obama administration knew all that going in. They should’ve been able to build an online portal that works.

Early on, President Obama like to compare the launch of the Affordable Care Act to Apple launching a new product. Can you imagine how many people Steve Jobs would’ve fired by now if he’d launched a new product like this?

Megan McArdle and Avik Roy have more on what’s behind the failures.

Klein also notes that the failure of the exchange rollout would have been more politically significant were it not for the government shutdown and debt ceiling debate. [...]

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Why the Obamacare Case May not be “Settled Law”

Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law”:

The Affordable Care Act was passed by Congress, signed by President Obama, upheld by the Supreme Court and reconfirmed by the president’s reelection. Many of its provisions have gone into effect. As Democrats have taken to saying, it is the law of the land.

But contrary to what the president suggested in the Rose Garden this past week, that does not mean Obamacare is “settled, and it is here to stay.” And it is not illegitimate for Republicans to use every lawful means at their disposal to stand in its way…

Lawyers use the term “settled law” to describe court decisions that clearly establish a rule or a doctrine. Yet settled law also refers to legal actions that are accepted by society. Consider two of the most famous Supreme Court decisions: Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which created the constitutional right to have an abortion. Both of these cases are “the law of the land.” They are binding on all courts in the United States. Only one of them, though, is settled in the broader sense of that phrase. It is perfectly acceptable for politicians, judges and ordinary citizens to attack Roe and call on the Supreme Court to overturn it. It is totally unacceptable to criticize Brown in 2013.

A statute or court opinion becomes settled law when there is a broad consensus that it is just.

Gerard enumerates a wide range of reasons why the Supreme Court’s ruling in NFIB v. Sebelius falls short of being fully settled. But the core insight is that there is no bipartisan [...]

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Magliocca on Why Obamacare Isn’t “Settled” Law

Gerard Magliocca has an essay in the Washington Post explaining why it’s a mistake to characterize the PPACA (aka “Obamacare”), or the Supreme Court’s decision upholding the constitutionality of the individual mandate, as “settled law.”

Lawyers use the term “settled law” to describe court decisions that clearly establish a rule or a doctrine. Yet settled law also refers to legal actions that are accepted by society. Consider two of the most famous Supreme Court decisions: Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which created the constitutional right to have an abortion. Both of these cases are “the law of the land.” They are binding on all courts in the United States. Only one of them, though, is settled in the broader sense of that phrase. It is perfectly acceptable for politicians, judges and ordinary citizens to attack Roe and call on the Supreme Court to overturn it. It is totally unacceptable to criticize Brown in 2013.

A statute or court opinion becomes settled law when there is a broad consensus that it is just. But a more practical rule of thumb is that both political parties must agree on its legitimacy. . . .

The Affordable Care Act is not settled law because the public remains deeply divided over it: More than half of Americans are opposed. But even more critically, congressional Republicans have withheld their stamp of approval. . . .

As Magliocca notes, the extraordinary lengths taken to enact the law, and the insistence on passing the PPACA without any Republican votes,* are factors that make it more difficult for so many to accept it as “settled law.”

I find quite bizarre the repeated claims that the Supreme Court’s decision in NFIB v. Sebelius should somehow end debate on the [...]

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My Forbes Column on Political Ignorance and the Government Shutdown

The Forbes website recently published an op ed I wrote on public ignorance about the issues involved in the government shutdown. Here is an excerpt:

As a government shutdown begins, much of the public knows very little about the issues behind it: Obamacare and the future of the federal budget. An August Kaiser Family Foundation survey showed that 44% do not even realize that Obamacare is still the law. Kaiser’s June poll found that 33% say they have heard “nothing at all” about the controversial insurance exchanges that are a central element of the law, and 34% “only a little.”

When it comes to the budget, numerous polls show that voters grossly underestimate the percentage of federal spending that goes to entitlements such as Social Security and Medicare, while greatly overestimating the amount spent on foreign aid….

Public opinion will probably play a key role in determining the outcome of the shutdown battle. Both parties want to attract public support and focus voters’ frustration on their opponents. But the voters politicians seek to win over are often very ill-informed.

Widespread political ignorance isn’t limited to spending and health care. It cuts across many other issues, and even the basic structure of government….

There is no easy solution to the problem of political ignorance. Providing more information is unlikely to work, since most people fail to assimilate the information that is already available. But we can help alleviate the problem by limiting and decentralizing government. When people “vote with their feet” in the private sector or in choosing what state or local government they want to live in, they have much better incentives to acquire information and use it rationally than when they vote at the ballot box.

Unfortunately, public ignorance about these issues is just the tip of a larger [...]

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Reality Imitates The Onion on Public Ignorance About Obamacare

In this recent article, The Onion pokes fun at public ignorance about Obamacare [HT: several readers and Facebook friends who alerted me to the article]:

As debate continues in Washington over the funding of President Obama’s health care initiative, sources confirmed Thursday that 39-year-old Daniel Seaver, a man who understands a total of 8 percent of the Affordable Care Act, offered a vehement defense of the legislation to 41-year-old Alex Crawford, who understands 5 percent of it.

“First of all, Obamacare will reduce insurance premiums for most people, and no one can be denied coverage if they have preexisting conditions and stuff like that,” said Seaver, displaying over half of his 8 percent grasp on the sweeping health care reform policy. “Which means a whole bunch of uninsured Americans—I’m talking millions of people here—will finally have access to health care. How can you not get behind that?”

“And Medicare has nothing to do with this, by the way—that’s a separate thing,” continued Seaver, adding one of the few remaining facts he knows about Obamacare. “This just deals with the private insurance companies and makes sure they can’t, you know, drive up costs through the roof.”

According to reports, Seaver mounted an impressive case given his severely limited knowledge of the actual law itself, bolstering his 8 percent understanding of the Affordable Care Act with his 6 percent awareness of the nation’s current economic landscape. Crawford, meanwhile, demonstrated just about the full extent of his understanding of Obamacare by claiming that its provisions could potentially kill jobs.

Sources confirmed that, if asked, neither man would actually be able to correctly define the term “HMO” or coherently explain what a health care exchange actually is and how such a thing would actually work on a regional basis.

The Onion’s
fictional characters [...]

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Another ObamaCare “Glitch” – Family Coverage Edition

From USA Today:

Congress defined “affordable” as 9.5% or less of an employee’s household income, mostly to make sure people did not leave their workplace plans for subsidized coverage through the exchanges. But the “error” was that it only applies to the employee — and not his or her family. So, if an employer offers a woman affordable insurance, but doesn’t provide it for her family, they cannot get subsidized help through the state health exchanges.

That can make a huge difference; the Kaiser Family Foundation said an average plan for an individual is about $5,600, but it goes up to $15,700 for families. Most employers help out with those costs, but not all.

“We saw this two-and-a-half years ago and thought, ‘Has anyone else noticed this?'” said Kosali Simon, a professor of public affairs at Indiana University who specializes in health economics. “Everyone said, ‘No, no. You must be wrong.’ But we weren’t, and that’s going to leave a lot of people out.”

It’s almost as if no one carefully read the bill that was passed.  After all, this is hardly the only instance in which the text of the statute does something different than what the supporters had hoped. [...]

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Cert Petitions Filed in Contraception Mandate Cases

Petitions for certiorari were filed in two cases challenging the Obamacare contraception mandate last week.  Both cases involve private, for-profit employers.  The first was filed by Conestoga Wood Specialties Corporation, seeking review of the decision by the U.S. Court of Appeals for the Third Circuit holding, among other things, that corporations may not raise free exercise claims under the Religious Freedom Restoration Act (RFRA).  The Third Circuit voted against rehearing the case en banc 7-5.  The second was filed by the Solicitor General in Sebelius v. Hobby Lobby Stores seeking review of the U.S. Court of Appeals for the Tenth Circuit’s conclusion that a private, for-profit corporation can raise RFRA free exercise claims.

As Lyle Denniston reports at SCOTUSBlog, the filing of these two petitions makes it likely that the Supreme Court will hear a case on the contraception mandate this term.  Don’t be surprised if the High Court does not fully resolve the question, however.  It’s entirely possible the Court could decide only whether for-profit corporations may raise RFRA free exercise claims.  So, for instance, if the Court were to decide with Hobby Lobby on this point, it might opt to remand the case for a fuller consideration of the merits of the RFRA claim.

Meanwhile, the U.S. Court of Appeals for the Sixth Circuit ruled against a for-profit employer’s challenge to the contraception mandate in Autocam Corp. v. Sebelius.  Although it reached the same result as the Third Circuit, the sixth Circuit adopted a slightly different analysis, concluding that a for-profit corporation is not “a ‘person’ that can exercise religion for purposes of RFRA.”  Ed Whelan critiqued the Sixth Circuit’s reasoning at Bench Memos. [...]

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Is there a Generational Divide over “Judicial Restraint” Between Reaganites and Libertarians?

Various commentators such as Garrett Epps, Mark Tushnet, and recent guest-blogger Josh Blackman argue that there is a generational divide among right of center jurists between Reaganite advocates of “judicial restraint” and later, more libertarian figures who are less willing to defer to legislatures and more eager to strike down laws they consider unconstitutional. They argue that this divide is exemplified by the the Supreme Court’s decision in NFIB v. Sebelius, where Chief Justice John Roberts voted to uphold the individual health insurance mandate as a tax, while other conservative justices voted to strike it down. As Epps puts it, Roberts voted the way he did because “his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama.” As a veteran of the Reagan-era Justice Department, Roberts supposedly imbibed the ideology of judicial restraint, from which later conservatives have departed.

I. Federalism and Reagan’s Judicial Appointees.

This thesis fundamentally misconceives the dominant constitutional vision of the Reagan administration and most of the jurists associated with it. In the individual mandate case, both of the actual Reagan appointees still on the Court – Justices Antonin Scalia and Anthony Kennedy – voted to strike down the law. If they had still been on the Court, Reagan’s two other appointees, Sandra Day O’Connor and William Rehnquist (whom Reagan promoted to Chief Justice), would likely have voted the same way, based on their longstanding advocacy of strong judicial enforcement of limits on federal power and their dissents in Gonzales v. Raich (in which case Scalia and Kennedy voted to uphold the law).

Reagan also nominated numerous leading libertarians and pro-federalism conservatives to the lower courts, including such well-known libertarian and libertarian-leaning jurists as Alex Koziniski, Douglas Ginsburg, Stephen Williams, Jerry Smith, and [...]

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Third Circuit Denies En Banc Petition in Contraception Mandate Case

This week, the full U.S. Court of Appeals for the Third Circuit voted 7-5 to deny a petition for rehearing en banc in a private for-profit employer’s challenge to the federal contraception mandate in Conestoga Wood Specialties Corp. v. HHS. As SCOTUSBlog notes, this creates a circuit split between the Third and Tenth Circuits on whether the mandate imposes an impermissible burden on the free exercise of religion under the Religious Freedom Restoration Act (RFRA). (The cases include constitutional free exercise claims as well, but the RFRA claims are significantly stronger.) This increases the likelihood the Supreme Court will consider the contraception mandate in the 2013-14 term. [...]

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Wall Street Journal Op-Ed: Two Presidents, Two Suspensions

My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different.

The op-ed is here.

UPDATE: I will be discussing this on Fox News tomorrow morning around 8:45am EST. [...]

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PPACA’s Consumer Cost Caps Delayed

Tuesday’s NYT reported on another part of the PPACA that the Obama Administration has decided to delay. It begins:

In another setback for President Obama’s health care initiative, the administration has delayed until 2015 a significant consumer protection in the law that limits how much people may have to spend on their own health care.

The limit on out-of-pocket costs, including deductibles and co-payments, was not supposed to exceed $6,350 for an individual and $12,700 for a family. But under a little-noticed ruling, federal officials have granted a one-year grace period to some insurers, allowing them to set higher limits, or no limit at all on some costs, in 2014.

The grace period has been outlined on the Labor Department’s Web site since February, but was obscured in a maze of legal and bureaucratic language that went largely unnoticed. When asked in recent days about the language — which appeared as an answer to one of 137 “frequently asked questions about Affordable Care Act implementation” — department officials confirmed the policy.

The discovery is likely to fuel continuing Republican efforts this fall to discredit the president’s health care law.

Ezra Klein explains the delay. Michael Cannon comments. [...]

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Judge Rejects DOJ Motion to Dismiss Oklahoma Suit Against IRS Tax Credit Rule

Earlier today the U.S. District Court for the Eastern District of Oklahoma rejected the federal government’s motion to dismiss in Oklahoma v. Sebelius, a challenge to the legality of an IRS regulation extending the availability of tax credits to federal exchanges under the PPACA. The text of the PPACA only provides for tax credits in exchanges “established by the State” and otherwise fails to provide for tax credits in federal exchanges, as explained in detail here. The court rejected the federal government’s argument that Oklahoma lacked standing to pursue its claims. Here are early news reports. Another suit against the IRS rule is pending in the federal district court in D.C. [...]

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New Books on the Obamacare Case

A little over a year has passed since the Supreme Court’s momentous decision in NFIB v. Sebelius. Not surprisingly, there is still no consensus on what the Court got right, what it got wrong, and what the long term significance of the case will be. But several interesting books about the case have just been published or are forthcoming in the next few months. And I suspect there are many VC readers who might be interested in some or all of them. Here are my thoughts on them.

I. Josh Blackman, Unprecedented.

For readers who want a blow-by-blow account of the litigation and its history, you can’t beat Josh Blackman’s Unprecedented: The Constitutional Challenge to Obamacare. Blackman – a law professor at South Texas College of Law and prominent legal blogger -interviewed over 100 participants in the case on both sides, and he does a great job of explaining each side’s legal, political, and public relations strategy. The book also does a good job of presenting most of the key legal arguments in a form accessible to nonexperts.

I do have some quibbles with the book. For example, I think that Blackman pays too little attention to the Necessary and Proper Clause issues in the case, which scholars as varied as Andrew Koppelman (discussed below), co-blogger Orin Kerr, and myself all believed was the federal government’s strongest argument. Chief Justice Roberts’ conclusion that the individual mandate was not “proper,” even if it was “necessary” may be one of the most significant aspects of the Supreme Court’s decision. In addition, while Blackman’s account is a useful corrective to claims that Solicitor General Donald Verrilli badly botched the case for the government, I think he goes too far in portraying him as a brilliant legal strategist who foresaw [...]

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Can For-Profit Corporations Have Religious Purposes?

Expanding on Will’s post from Wednesday (and his prior post here), it seems to me the argument that corporations, as such, cannot press religious liberty claims (or, to put it another way, cannot “exercise” religion) is wholly unsustainable.  As Will notes, a consequence of this position would be the denial of religious liberty claims made by churches.  Yet the Supreme Court has already recognized religious liberty claims made by churches, as in the O Centro RFRA case and many other institutions are clearly religious in purpose, including charities and schools.

Okay, some may respond (e.g., here), churches and other organizations have free exercise rights, but for-profit corporations do not.  But why would this be?  An individual sole proprietor — of, say, a kosher deli, to use Will’s example — would clearly be able to press a religious liberty claim, whether or not she hopes the deli will make her rich (and whether or not she commits to donate her earnings to a religious charity).   Does this individual lose such rights if she incorporated?   Does that somehow make her religious motivations any less sincere? Any less judicially cognizable?  I can’t see how.   What, then, if the deli owner formed a partnership with her equally devout brother?  Would that matter?  And, again, if an informal partnership would be okay, why would the adoption of a corporate form and limited liability matter?

The consequence of the “no religious liberty for corporations” position is that individuals who would like to go into business are penalized if they seek to go into business without any potential recourse, under RFRA or otherwise.  The choice presented by the state is go into business or stay true to your religious beliefs.  Although I suggested otherwise before, it seems to me this approach imposes a substantial [...]

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Congress Will No Longer Be Upset with the PPACA as It Applies to Them

Last week, the NYT reported on how members of Congress and their staff were upset that they would be required to obtain health insurance within insurance exchanges without financial support from their employer.  Not to worry.  On Thursday, Politico reported that the President has encouraged the federal Office of Personnel Management to find a solution.  Accordingly, OPM will soon issue a regulation planned (re)interpreting the PPACA to allow continued federal support of health insurance premiums for members of Congress and Hill staff.  Politico reports this change as adopted to prevent an exodus of Congressional staff.  Perhaps. A more likely explanation is Administration concern that Congressional unhappiness with how the law applies to them would increase the prospect of legislative reform.

When faced with inconvenient aspects of the PPACA, the Administration is once again responding by rewriting the law.  This is what the Administration did with the employer mandate, tax credits in federal exchanges, funding for federal exchanges (there is none), and many of the waivers.  Why should the provisions concerning legislative personnel be any different? [...]

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