Category Archives: Healthcare

But I Thought This Was The [Secret] Plan?

Sometimes this gets tiring. I’m getting a bit sick of showing that bad consequences, entirely foreseeable (and possibly planned) and predicted, are coming to fruition — and the power-brokers in Washington have the gall to actually act appaled?

The great mystery surrounding the historic health care bill is how the corporations that provide coverage for most Americans — coverage they know and prize — will react to the new law’s radically different regime of subsidies, penalties, and taxes. Now, we’re getting a remarkable inside look at the options AT&T, Deere, and other big companies are weighing to deal with the new legislation.

Internal documents recently reviewed by Fortune, originally requested by Congress, show what the bill’s critics predicted, and what its champions dreaded: many large companies are examining a course that was heretofore unthinkable, dumping the health care coverage they provide to their workers in exchange for paying penalty fees to the government.

Of course, the pols in Washington didn’t want this to come to light too quickly:

In the days after President Obama signed the bill on March 24, a number of companies announced big write downs due to some fiscal changes it ushered in. The legislation eliminated a company’s right to deduct the federal retiree drug-benefit subsidy from their corporate taxes. That reduced projected revenue. As a result, AT&T (T, Fortune 500) and Verizon (VZ, Fortune 500) took well-publicized charges of around $1 billion.

The request yielded 1,100 pages of documents from four major employers: AT&T, Verizon, Caterpillar and Deere (DE, Fortune 500). No sooner did the Democrats on the Energy Committee read them than they abruptly cancelled the hearings. On April 14, the Committee’s majority staff issued a memo stating that the write downs were “proper and in accordance with SEC rules.” The committee also stated that the memos took a generally sunny view of the new legislation. The documents, said the Democrats’ memo, show that “the overall impact of health reform on large employers could be beneficial.”

Nowhere in the five-page report did the majority staff mention that not one, but all four companies, were weighing the costs and benefits of dropping their coverage.

An optimist — or a rube — would suggest that this is an unintended consequence of the legislation. That, after all, all of their cost estimates were based on employers largely keeping their employees on their own plans. And, after all, this bill was but a small move to cover those who were uncovered, not an attempt to overtake the American health care system in toto. That’s what they said, right?

Many said that the goal of the legislators was to get employers to toss their employees onto the exchanges, but it was denied. So why is it that rather than string these employers up in front of Congress, vilifying them for being uncaring profit-whores who would throw their employees on the hands of the government exchanges, Waxman swept this under the rug and canceled the hearings?

Could it be that these discussions weren’t the unplanned, unintended consequences of the legislation? That maybe this really was the intent?

H/T: David Henderson @ EconLog

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Prosecutors Ask If Congress Duped CBO To Obtain Favorable Score

Okay, that’s not true. But it’s no different than this:

Prosecutors Ask if 8 Banks Duped Rating Agencies

Wall Street played a crucial role in the mortgage market’s path to collapse. Investment banks bundled mortgage loans into securities and then often rebundled those securities one or two more times. Those securities were given high ratings and sold to investors, who have since lost billions of dollars on them.

At Goldman, there was even a phrase for the way bankers put together mortgage securities. The practice was known as “ratings arbitrage,” according to former workers. The idea was to find ways to put the very worst bonds into a deal for a given rating. The cheaper the bonds, the greater the profit to the bank.

The rating agencies may have facilitated the banks’ actions by publishing their rating models on their corporate Web sites. The agencies argued that being open about their models offered transparency to investors.

But several former agency workers said the practice put too much power in the bankers’ hands. “The models were posted for bankers who develop C.D.O.’s to be able to reverse engineer C.D.O.’s to a certain rating,” one former rating agency employee said in an interview, referring to collateralized debt obligations.

I just finished reading Michael Lewis’ The Big Short, and it’s pretty clear that the banks knew enough about the rating agencies’ models to pretty successfully turn shit into shinola. In fact, the agencies made enough of their ratings models public to make it absolutely certain that the banks would game the system. Not *dupe* the rating agencies, mind you, because the ratings agencies were willing partners.

But I thought about it a little bit more, and I was struck by another thought.

The Democratic house leadership wanted to cost projection of the healthcare bill to come in within a certain number. So what did they do? They duped gamed the CBO rating system to ensure that the bill they wrote would have the price tag they wanted it to have. The CBO is a respected and non-partisan office, but they’re asked only to score what legislators give them, NOT what they think the legislators will do in other bills immediately or a few years down the line.

Essentially both the Wall Street banks and Congressional leadership did the same thing: they were teaching to the test. They knew specifically what was needed in order to generate a favorable outcome from the “test”, and they made sure they did exactly what they wanted, but in such a way that got the right score.

So who’s going to prosecute the Democratic leadership when this healthcare bill inevitably costs the American people more than they advertised?

A New Introduction

I am honored to join The Liberty Papers.

Brad Warbiany and Doug Mataconis have been very welcoming, and my new realm into libertarian thought should be fulfilling and rich.

I’ve been at United Liberty for two years, starting with the 2008 election and running all the way up to coverage of Arizona’s discriminatory immigration law. My work goes back even further, back to the San Francisco Examiner and the neighborhood newspapers North Seattle Herald Outlook and Madison Park Times in Seattle, Washington.

In the times we live in, there seems to be a political shift going on. The United States is becoming more ethnically diverse, the economy continues to stagnate, and government is making short term maneuvers without foreseeing long-term effects. On the other side of the coin, the Right, who talk a lot of jive about freedom, are parading their own twisted form of nationalism. In these times, it’s important to try to solidify and distinguish the libertarian movement as a separate alternative to the forms of authoritarianism so far proposed to us. I hope my work at The Liberty Papers will help to do that.

I am also currently working on a book on the future of race in politics. It should be finished within the year and published subsequently.

NIMBY, Granny!

Oh dear.

“Stonemill Farms will be the scene of many memorable days with family and friends alike,” according to marketing materials. The development, with its $300,000 to $500,000 homes, is “the perfect place to raise a family,” the website boasts.

Sounds like a nice place. At least until the influx of the brain-devouring proto-zombie hordes (Alzheimer’s patients).

But maybe not if your family is like that of Woodbury resident Marilyn Nehring, whose husband, Jerry, has few memorable days now because he has Alzheimer’s disease.

Residents at Stonemill are opposing an attempt to turn an empty retail site into housing for people with Alzheimer’s or dementia.

Another man opposed it if there were “one-tenth of one percent chance that anything could happen to a kid.”

A woman holding a baby fretted that potential clients with brain damage probably led lives of daring and danger, which might return. They don’t have “the fear, the healthy fear, that the rest of us have,” she said.

Nearly everyone who spoke against the facility had concerns that their children might be attacked or see an elderly adult do something inappropriate.

Depressing. Just depressing. Now, I’ve had more experience with Alzheimer’s patients than many. Prior to college, I worked a summer in maintenance at a nursing home. The Alzheimer’s ward was easily the most depressing* of the entire complex, as some of these folks just didn’t have a handle on reality. For example, one particularly depressing patient constantly asked the nurses what time her (the patient’s) daughter would be arriving, since she was scheduled to come that day. Every day this woman was “waiting for her daughter”, and every day her wait was fruitless; I’m not sure she even had a daughter. Almost more heartbreaking were the families who would show up to see their loved one, only to not be recognized at all. I can’t imagine anything worse than having to go see a loved one in the hospital and dealing with the hurt of him/her not even knowing me.

That being said, there was no danger there.

The Alzheimer’s ward was locked down. Keycodes were required for entry and exit, doors were alarmed, and everyone in the place (including lowly maintenance workers like me) were well-trained on the security procedures. Staffing was far heavier in this ward than most (as the patients needed much more individual care), but even those who were fully ambulatory weren’t exactly threats to the community.

The summer I worked at that home (the summer of my 18th birthday) was definitely one of the better learning experiences of my life. As depressing as some of the areas of the home were, exposure to reality is part of life. At the very least, having that experience made me thankful for what I do have in life. Now, as a parent it is my responsibility to control what access my kids have to that reality, and at some ages I wouldn’t subject a child to some of these things. But I would do so out of respect for my own child’s ability, at a certain age, to fully comprehend a situation, not out of fear for his well-being. Even though there are locks on the doors, this is a hospital facility, not a prison.

Often these types of misconceptions about people are only heightened by insulating society from their very existence. These parents are merely inculcating the same misconceptions and paranoia into their own kids**. How sad.

Hat Tip: Free Range Kids
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Congress Begs For Intervention Due To Spending Addiction

Congress has a problem. They have a tough time cutting unpopular spending, but cutting popular spending is just impossible. They talk about their ability to be elected, go to Washington, and make the tough decisions, but when push comes to shove, they want to shove responsibility off to a third party. I believe it’s called “plausible deniability”:

The IPAB is a 15-person, full-time board composed of health-care experts and stakeholders. Members need to be confirmed by the Senate and will serve six-year terms, with one possible reappointment. But the important thing isn’t who serves. It’s how they vote. Or, as the case may be, don’t vote.

If Congress approves the board’s recommendations and the president signs them, they go into effect. If Congress does not vote on the board’s recommendations, they still go into effect. If Congress votes against the board’s recommendations but the president vetoes and Congress can’t find the two-thirds necessary to overturn the veto, the recommendations go into effect. It’s only if Congress votes them down and the president agrees that the recommendations die. “I believe this commission is the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve,” says Peter Orszag, who’s been one of the idea’s most enthusiastic supporters.

Only if a recommendation is so onerous that public ire is raised to the point where Congress can override a presidential veto will that recommendation be killed.

As legislation goes, this has some advantages, as it may have some credible cost-cutting ability. Granted, I don’t think “cost cutting” should be the same thing as “price fixing”, but rather as a result of market forces. Imagine the reduction in cost if 80% of the nation was on an HDHP/HSA plan rather than traditional comprehensive insurance, and those individuals were in constant negotiation through the market to set prices. But while I’m opposed to some unaccountable government panel setting payment rates for medical procedures, I’m somewhat comforted that it may cost me less money than letting Congress do it.

But how much of this sounds like an addict trying to control his fix? This is the alcoholic with such little self-control that he knows he can’t even be in the vicinity of booze because he’ll start binging again. Congress trusts themselves so little that they refuse to even take responsibility for VOTING on these cuts.

If they’re going to abdicate this responsibility, isn’t that just an indication that Congress never should have been allowed the responsibility in the first place?

Will The Supreme Court Strike Down ObamaCare ? Don’t Be So Quick To Say Yes

The New York Times’ long-time SCOTUS reporter Linda Greenhouse takes a look at how the current court might look at the challenges to the health care reform law:

The challengers invoke and seek to build upon the Rehnquist court’s “federalism revolution” that flowered briefly during the 1990’s. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal. The court struck down a federal law that barred guns near schools, on the ground that possession of a gun near a school was not the type of activity that the Constitution’s Commerce Clause authorized Congress to regulate. It ruled that Congress could not require states to give their employees the protections of the federal laws against discrimination on the basis of age or disability. It ruled that the federal government couldn’t “commandeer” state officials to perform federal functions like federally mandated background checks of gun purchasers.

As Greenhouse points out, though, the Roberts Court is very, very different from the 1990s Rehnquist Court when it comes to issues regarding the power of the Federal Government:

Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.

And, as Damon Root points out, Antonin Scalia can’t be trusted on this issue either:

It’s also worth noting that conservative Justice Antonin Scalia did his part to thwart that “federalism revolution” by siding with the majority in 2005’s disastrous Gonzales v. Raich, which held that the intrastate cultivation and consumption of marijuana somehow still counted as interstate commerce, resulting in the Court striking down California’s popular medical marijuana law.

I noted last week that, as a matter of law, the odds are against the cases challenging the health care law. As Greenhouse and Root demonstrate, it also appears that we’re dealing with a Supreme Court that is not at all inclined to be sympathetic to arguments that limit the power of Congress.

Right now, I would say that the only vote that could probably be counted on to declare ObamaCare unconstitutional is Clarence Thomas’.

Life Expectancy — Due To Lack Of Healthcare Or Gluttony and Smoking?

A new study suggests that simply due to the results of blood pressure, obesity, blood glucose levels and smoking, American life expectancy is artificially low by 4.9 and 4.1 years for men and women, respectively (h/t Reason):

A new study led by researchers from the Harvard School of Public Health (HSPH) in collaboration with researchers from the Institute for Health Metrics and Evaluation at the University of Washington estimates that smoking, high blood pressure, elevated blood glucose and overweight and obesity currently reduce life expectancy in the U.S. by 4.9 years in men and 4.1 years in women. It is the first study to look at the effects of those four preventable risk factors on life expectancy in the whole nation.

Below is the number of years that would be gained in life expectancy in the U.S. if each individual risk factor was reduced to its optimal level:

  • Blood pressure: 1.5 years (men), 1.6 years (women)
  • Obesity (measured by body mass index): 1.3 years (men), 1.3 years (women)
  • Blood glucose: 0.5 years (men), 0.3 years (women)
  • Smoking: 2.5 years (men), 1.8 years (women)

This study in particular was largely looking at different subgroups within the US (ethnicities, geographies, etc) to determine relative differences in life expectancy due to those factors.

But I’d like to see a wider question answered. America typically ranks lower on life expectancy rankings than most European countries with generous welfare states and single-payer or heavily-socialized health care systems. This fact was largely heralded all during the debate over the health care bill. America is also considered to be gluttonous, unhealthy, lazy*, and fat compared to Europe; anecdotally, on my one trip to France, the only fat people I met spoke perfect English.

So I’d like to see a serious academic look at what drives the life-expectancy differences between America and Europe. I’ve heard in the past that non-healthcare death rates (automotive accidents and homicides) are significantly higher here, but is it also the case that we’re eating and smoking ourselves to death at a rate much higher than Europe?

And if so, does anyone think — as I do — that the healthcare bill will do little or nothing to affect this life expectancy gap?
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The Cost Of Repeal

So, the CBO says this bill lowers the deficit. And thus, says Ezra Klein, it’ll be tougher for the Republicans to repeal, should they win control of Congress:

And as a reader reminds me, people should also remember that “now that the reform bill is the law of the land, [repeal] would increase the budget deficit relative to current law, at least in the eyes of the CBO.” So if they weren’t going to find offsets, they’d also need to overrule pay-go.

Cue AHA! moment:

If spending needs to be accounted for within pay-go, then the doc-fix will require $200B of offsetting cuts!

…until I found out that the doc-fix was exempted from PAYGO rules.

Presumably if the Republicans regained control of Congress, they could similarly exempt certain things from PAYGO accounting.

But let’s just assume for a moment that they didn’t want to cut such — I’ve found an answer!

Based on the results of this study (h/t Megan McArdle), maybe they can just find offsetting cuts in our stupid policy of subsidizing corn and taxing sugar.

Nah, never mind, the Republicans know that won’t play in Iowa.

Thirteen States File Suit Against ObamaCare

Well, that didn’t take long:

TALLAHASSEE, Fla. — Attorneys general from 13 states sued the federal government Tuesday, claiming the landmark health care overhaul bill is unconstitutional just seven minutes after President Barack Obama signed it into law.

The lawsuit was filed in Pensacola after the Democratic president signed the bill the House passed Sunday night.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,” the lawsuit says.

Legal experts say it has little chance of succeeding because, under the Constitution, federal laws trump state laws.

Florida Attorney General Bill McCollum is taking the lead and is joined by attorneys general from South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Idaho, Washington, Colorado and Louisiana. All are Republicans except James “Buddy” Caldwell of Louisiana, who is a Democrat.

Some states are considering separate lawsuits and still others may join the multistate suit.

I assume we will hear that Ken Cuccinelli has filed suit in the Eastern District of Virginia before the day is out.

As I’ve said, I am not optimistic about the ultimate outcome in these cases, but it will be interesting to watch them proceed through the system.

Here is the pleading itself:

Attorneys General suit on health care

Update: Make that fourteen states, Ken Cuccinelli has filed suit on behalf of the Commonwealth of Virginia.

Will The Courts Strike Down ObamaCare ? Don’t Count On It

Over at The American Spectator, conservative lawyer Stacy Cline points out that the legal challenges to ObamaCare have the odds, and the case law, against them:

Last night’s passage of the greatest expansion of the federal government since the Great Society is a sad day for our country, not only because it may bankrupt our future, but also because we have no recourse to the Constitution. Our Constitution was elegantly designed to protect individuals from too much concentration of power in any one source, but the Supreme Court has evolved into a body that has protected and even facilitated the modern regulatory state at the expense of our founding principles. The optimism of state attorneys general and others who hope to challenge the constitutionality of this legislation is admirable, but such challenges are not likely to be successful.

But what, you might ask, about what seems like it might be the most vulnerable part of the health care bill, the individual mandates ?

Well, as Cline points out, that may actually be the weakest ground of all:

Despite this patent overreach by Congress, the Supreme Court’s flawed jurisprudence on this issue probably permits it. The government will argue that it has the authority to impose the individual mandate under the Commerce Clause of the Constitution, which permits Congress “to regulate Commerce … among the several States.” Supreme Court precedent has interpreted the Commerce Clause to permit Congress to regulate and prohibit all sorts of economic activities that in the aggregate substantially affect interstate commerce.

In the 1942 case Wickard v. Filburn, the Supreme Court authorized the broadest federal power to date, concluding that a farmer growing wheat for his own use was not exempt from federal caps on wheat production that had been established by the government to artificially drive up the price of wheat. The fact that the farmer was growing wheat for his own use meant he would not purchase it on the open market. The Court held that his failure to purchase wheat in the market, taken in the aggregate, would have a substantial effect on interstate commerce. Thus, the Court laid the groundwork for Congress to regulate nearly any activity with a weak connection to economic activity, and for years Congress did not even bother to establish the basis for its Commerce Clause authority.

The Supreme Court had the opportunity to overturn this precedent in Raich v. Gonzales, the 2005 medical marijuana case, but balked. In that case, the Court decided that it was within Congress’s Commerce Clause power to prohibit individuals from growing medicinal marijuana for their personal use. In reaching this conclusion, the Court affirmed that activity that does not fall under the Commerce Clause alone can be reached as part of a broader scheme to regulate interstate commerce. This case was blow to those of us who thought the opinions in Lopez and Morrison signaled that the Court was willing to scale federal power back to something closer to the Constitution’s original intent.

The individual mandate can be distinguished from these cases, as it compels economic activity where Wickard and Raich did not. But what Raich showed is that the Supreme Court does not have the will to limit federal power when Congress has made the most modest of showings that the activity has economic effects. The individual mandate is likely to be upheld as part of a legislative scheme that regulates economic activity, and the insult to our constitutional government, designed to limit the federal government to enumerated powers, will have received judicial sanction.

Moreover, as Cline goes on to point out, the Court may not even need to reach the Commerce Clause issue. The Solicitor General, who will be arguing the case in favor of upholding the law, will clearly argue that the mandate and it’s penalty provision are, in reality, a tax, which would be governed under the General Welfare Clause. If that’s the case, then the challenge is pretty much doomed:

The last time a penalty was deemed an unconstituional tax by the Supreme Court was 1922, and since then the Court has permitted taxes on gambling, tobacco, alcohol and a number of other disfavored activities. Should the Commerce Clause prove to be an indefensible basis of authority, the General Welfare Clause would likely be another source of authority. The current Supreme Court, which time and again demonstrates its willingness to uphold the modern regulatory state to legal challenge, is unlikely to delve into a nearly century old line of cases limiting Congress’s ability to impose penalties as taxes.

If they’re not going to over-rule a clearly wrong 68 year old case, they sure aren’t going to overrule one that’s more than a century old.

Over at The Volokh Conspiracy, Orin Kerr gives odds on how likely a SCOTUS ruling against ObamaCare actually is:

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction.

I agree with Kerr.

That doesn’t mean that the law shouldn’t be challenged in Court. It should. These arguments need to be made and, even if the challenges are ultimately unsuccessful, they will bring to the forefront issues about the size and scope of government, and the extent to which the limitations of the Constitution have been exceeded that maybe, just maybe, the American people will wake up.

ObamaCare’s Immediate Impact

As we all know, most of ObamaCare is pushed out to 2014 or so. But Ezra Klein, ever helpful, points out this nice PDF which explains what will occur nearly immediately. Ezra is always celebrating the cost-control measures of ObamaCare, so let’s see how these provisions stack up:

1. SMALL BUSINESS TAX CREDITS—Offers tax credits to small businesses to make employee coverage more affordable. Tax credits of up to 35 percent of premiums will be immediately available to firms that choose to offer coverage. Effective beginning for calendar year 2010. (Beginning in 2014, the small business tax credits will cover 50 percent of premiums.)

Okay, an immediate hit to Uncle Sugar here, but probably not big unless it really changes behavior immediately. So we start hurting the deficit right away. This is a net hit on government spending, but one might think that it probably won’t do much to private healthcare costs in the short run. I expect this will result in marginally increased coverage and thus will show no real change to health insurance premiums.

2. BEGINS TO CLOSE THE MEDICARE PART D DONUT HOLE—Provides a $250 rebate to Medicare beneficiaries who hit the donut hole in 2010. Effective for calendar year 2010. (Beginning in 2011, institutes a 50% discount on brand?name drugs in the donut hole; also completely closes the donut hole by 2020.)

Another government spending hit on drug coverage. In 2011, a 0% subsidy in this range jumps to 50%. According to Wikipedia, this may affect somewhere in the range of 25% of Medicare Part D enrollees. I’ll leave it to others to quantify this, but this is another spending measure.

3. FREE PREVENTIVE CARE UNDER MEDICARE—Eliminates co?payments for preventive services and exempts preventive services from deductibles under the Medicare program. Effective beginning January 1, 2011.

Oh, look! Another government spending increase subsidy! And as one of Ezra’s colleagues at WaPo points out, preventative care doesn’t really lower total medical spending costs. So overall this is not a cost-control measure for government budgets or spending in general.

4. HELP FOR EARLY RETIREES—Creates a temporary re?insurance program (until the Exchanges are available) to help offset the costs of expensive health claims for employers that provide health benefits for retirees age 55?64. Effective 90 days after enactment

Another subsidy. This’ll mainly hit government, I don’t see a major change to insurance premiums here. There may be additional companies who provide early-retiree benefits, but only union jobs and government tend to do so. Most who are wealthy enough to retire early on their own will cover their own medical insurance costs — not their employer.

5. ENDS RESCISSIONS—Bans health plans from dropping people from coverage when they get sick. Effective 6 months after enactment.

And here we go. The first of [many] provisions that will raise private insurance premiums. Of course, this depends on how common rescissions are. The left says they happen OMG like ALL THE TIME, so if they’re right, it’s a big hit. I don’t think it’s a huge change, but it’s definitely going to raise premiums.

6. NO DISCRIMINATON AGAINST CHILDREN WITH PRE?EXISTING CONDITIONS—Prohibits health plans from denying coverage to children with pre?existing conditions. Effective 6 months after enactment. (Beginning in 2014, this prohibition would apply to all persons.)

Again, an increase to private health insurance premiums. But hey, who’ll complain? After all, it’s for the children.

7. BANS LIFETIME LIMITS ON COVERAGE—Prohibits health plans from placing lifetime caps on coverage. Effective 6 months after enactment.

Again, if you think anything other than that this will increase premiums up front, you’re smoking something. And you shouldn’t be smoking, because it’s bad for you. But on the bright side, in 6 months you can be assured your lung cancer will be treated with no limits. And don’t worry about lying about that smoking habit on your insurance application, because rescissions are banned too.

(UPDATE 7:55 AM PDT: Commenter Fabio Escobar notes that rescissions are still allowed in cases of fraud, so it would be best not to lie on those applications, folks.)

8. BANS RESTRICTIVE ANNUAL LIMITS ON COVERAGE—Tightly restricts new plans’ use of annual limits to ensure access to needed care. These tight restrictions will be defined by HHS. Effective 6 months after enactment. (Beginning in 2014, the use of any annual limits would be prohibited for all plans.)

Again, we have a regulation that’ll up private premiums. [Do you see a pattern here?] Costs must be amortized, so this added risk is going to show up in premium hikes rather than limits on annual coverage. Insurance is built to hedge risk, and its increasingly looking like the risks to the insurer don’t expire [until you do].

9. FREE PREVENTIVE CARE UNDER NEW PRIVATE PLANS—Requires new private plans to cover preventive services with no co?payments and with preventive services being exempt from deductibles. Effective 6 months after enactment. (Beginning in 2018, this requirement applies to all plans.)

Ahh, two fun ones here. Immediate premium increase (costs must be amortized, you know), and a probable increase in total healthcare costs, for the aforementioned reason that preventative care doesn’t lower total spending.

10. NEW, INDEPENDENT APPEALS PROCESS—Ensures consumers in new plans have access to an effective internal and external appeals process to appeal decisions by their health insurance plan. Effective 6 months after enactment.

Again, here come higher premiums. Unless you think the external appeals boards are going to rule less in favor of the patient than the insurance companies would have, of course. Since the left believes insurers deny care left and right, this has to be a big impact, right?

11. ENSURING VALUE FOR PREMIUM PAYMENTS—Requires plans in the individual and small group market to spend 80 percent of premium dollars on medical services, and plans in the large group market to spend 85 percent. Insurers that do not meet these thresholds must provide rebates to policyholders. Effective on January 1, 2011.

“Ensuring value for premium payments” sounds a lot nicer than “capping profit margins”, doesn’t it? If the left’s belief that insurers are fat and happy and spend all their money on lavish bonuses instead of medical services, this would in fact be a cost control measure. One story from late last year suggests insurers already spend above 80% (Wall Street analysts say low 80’s, industry says 87%). Overall, my read is that this probably isn’t a major component either way.

12. IMMEDIATE HELP FOR THE UNINSURED UNTIL EXCHANGE IS AVAILABLE (INTERIM HIGH?RISK POOL)—Provides immediate access to insurance for Americans who are uninsured because of a pre?existing condition ? through a temporary high?risk pool. Effective 90 days after enactment.

Initially there’ll be $5B in subsidy for this risk pool. It’s unclear whether some of this funding will replace existing state gov’t funding (35 states already have high-risk pools), so I’m not sure how much of that $5B is a net adder to the total cost. But the simple fact is this — while it might be better for some of those people currently denied due to pre-existing conditions (i.e. 100% risks), much of the cost will come out of *OUR* pockets.

13. EXTENDS COVERAGE FOR YOUNG PEOPLE UP TO 26TH BIRTHDAY THROUGH PARENTS’ INSURANCE – Requires health plans to allow young people up to their 26th birthday to remain on their parents’ insurance policy, at the parents’ choice. Effective 6 months after enactment.

This one just baffles me. Should we really be disincentivizing kids adults to get good jobs where they might be covered? I can understand an exemption for people on the 7+ year college program (hopefully grad school, not this guy), but if your offspring is 24 and not in school, it seems to me that it’s not your employer’s problem to provide them with health insurance (since it’s usually the cheapest method). Perhaps this *IS* actually a cost-control measure, since most 23-25 year olds are healthy and will add to the risk pool. But even so, I can imagine “Employee + Family” or “Employee + Children” plans increasing in premium, because they’re not usually charged based on how many kids are specifically enrolled.

14. COMMUNITY HEALTH CENTERS—Increases funding for Community Health Centers to allow for nearly a doubling of the number of patients seen by the centers over the next 5 years. Effective beginning in fiscal year 2010.

There’s short-run deficit cost here, but the goal is understandable. Clinics are likely a better way of treating immediate non-emergency medical needs than emergency rooms, so there may be some cost-reduction in the delivery method of care. Presumably not all of the supposed “doubling” of patients will be people whose only alternative was a regular doctor visit or ER visit, so there may be some gross increase in the total number of patients served. This one could go either way, and I’ll leave it to the statisticians to score it. But I’ll grant that there’s at least a possibility of cost-control here.

15. INCREASING NUMBER OF PRIMARY CARE DOCTORS—Provides new investment in training programs to increase the number of primary care doctors, nurses, and public health professionals. Effective beginning in fiscal year 2010.

Again, another big subsidy. Gives 10% bonuses to PCP and General Surgeons starting in 2011, and it’s unclear here what “new investment in training programs” really amounts to, but the early notes I’ve seen suggest it’s largely student loan repayment changes. I don’t see that much here that will blunt the existing trend for doctors to head into specialization rather than primary care. 10% is nice but it’s nowhere near the difference between a specialist’s salary and a primary care doctor.

16. PROHIBITING DISCRIMINATION BASED ON SALARY—Prohibits new group health plans from establishing any eligibility rules for health care coverage that have the effect of discriminating in favor of higher wage employees. Effective 6 months after enactment.

This one is also somewhat vague. But usually when I hear about plans to avoid “eligibility rules” that “discriminate”, I think they’re trying to find ways to make it impossible to discriminate against bad health risks. Richer people tend to be healthier people, so it seems that if they accomplish their goal, it necessarily raises premiums.

17. HEALTH INSURANCE CONSUMER INFORMATION—Provides aid to states in establishing offices of health insurance consumer assistance in order to help individuals with the filing of complaints and appeals. Effective beginning in FY 2010.

Ahh, a two-fer! First is the direct government subsidy to states to hire new “consultants”. The second is the premium increase by pushing harder against health providers regarding complaints and appeals, which will likely often be adjudicated by the external appeals boards mentioned in point 10.

18. CREATES NEW, VOLUNTARY, PUBLIC LONG?TERM CARE INSURANCE PROGRAM—Creates a long?term care insurance program to be financed by voluntary payroll deductions to provide benefits to adults who become functionally disabled. Effective on January 1, 2011.

Voluntary? I wonder how long it will remain so. And how exactly does this different from the disability portion of Social Security? All I see here is a big new shiny bureaucracy, that will work as quickly as possible to entrench themselves by making this as involuntary as possible.

Conclusion:

So there you have it, folks. Of 18 highlighted points, most or all of them will increase payments made by government or increase health insurance premiums. This is “bending the cost curve”.

UPDATE 7:09 AM PDT: Welcome Instapundit, Powerline, and Tigerhawk readers! Feel free to take a look around to find out more about us, and we hope a few of you may come back from time to time.

Historically Appropriate Fact Of The Day

It was 245 years ago today, that The Stamp Act of 1765, one of the first of the many punitive taxes imposed on the American colonies and precipitated the Revolution, was passed by Parliament.

244 years and 364 days later, the United States Congress passed a piece of legislation that makes the Stamp Act look like a walk in the park.

Just sayin’

Lawsuits Await As ObamaCare Passes

Shortly, ObamaCare will be the law of the land, then the next round in the battle begins:

WASHINGTON — The battle over health care is poised to move swiftly from Congress back to the country as Democrats, Republicans and a battery of interest groups race to define the legislation and dig in for long-term political and legal fights.

President Obama plans to open a new campaign this week to persuade skeptical Americans that the bill holds immediate benefits for them and addresses the nation’s shaky fiscal condition. Republicans said they would seek to repeal the measure, challenge its constitutionality and coordinate efforts in statehouses to block its implementation.

The politics of health care are fragile — and far from certain — in the eight-month midterm campaign that will determine which party will control Congress next year. But both sides steeled for a fight to extend well beyond November, involving state legislative battles, court challenges and, ultimately, the next presidential race.

Even before the final vote, Republicans began relentlessly assailing lawmakers who supported the legislation, suggesting Democrats are spendthrift and proponents of big government. Democrats said they would seek to capitalize on the momentum from their success and strive to move beyond the political arguments in hopes of demystifying the complicated legislation.

“We ought to focus on not the political stakes, but the stakes for the country,” David Plouffe, an adviser to Mr. Obama, said on ABC’s “This Week.” “We’re going to go out there and not just talk about what we’re for, but what the Republicans are voting against.”

The next chapter in the health care fight will play out not only in the midterm elections, but also in the courts.

Already three state Attorneys General have announced their intention to file suit as soon as the bill becomes a law.

Virginia:

RICHMOND, Va. (AP) – Less than eight hours after Congress passed sweeping healthcare reforms, Virginia’s Attorney General became the first to announce a legal challenge against it.

Republican Ken Cuccinelli said early Monday that he will file a court challenge against what he and other conservatives decry as an unconstitutional overreach of federal authority.

Cuccinelli said he would file the lawsuit as soon as President Barack Obama signs the bill passed Sunday night into law.

South Carolina:

COLUMBIA, S.C. (AP) — South Carolina Attorney General Henry McMaster is again promising a legal challenge of the health care reform measure passed by the U.S. House.

McMaster issued a statement late Sunday calling the health care legislation “clearly unconstitutional.”

(…)

He says he took part in a conference call Sunday night and expects attorneys general in nine other states to join the challenge.”

And, Florida:

ORLANDO, FL — Moments after Congress voted to approve President Obama’s health care legislation, Florida’s Attorney General announced he will file a lawsuit to declare the bill unconstitutional.

Bill McCollum will join Attorneys General from South Carolina, Nebraska, Texas, Utah, Pennsylvania, Washington, North Dakota and South Dakota to file a lawsuit against the federal government.

“The health care reform legislation passed by the U. S. House of Representatives this evening clearly violates the U.S. Constitution and infringes on each state’s sovereignty,” McCollum said in a statement distributed late Sunday night.

“If the President signs this bill into law, we will file a lawsuit to protect the rights and the interests of American citizens.”

More to come, I’m sure.

Quote Of The Day

From Billy Beck:

I keep hearing about how this DeathCare deal will be the end of the Democrats in November. I cannot think of a single reason why that should matter, and there are many why it doesn’t. (For instance: when this thing is in the bag and done, who do you think is going to come along and take it all apart? Like Medicaid, for instance? {snort} Stop with the comedy, already. You will go to your grave carrying this rock.)

The incumbent Democrats are being constantly threatened with being voted out if they put this through. But that’s a sacrifice their leadership is willing to make, because while people may be voted out, we’ll get stuck with this monstrosity.

ObamaCare, The Constitution, And The Next Round In The Health Care Wars

The Constitutionality of ObamaCare is apparently a subject that neither Nancy Pelosi, nor any other Member of Congress has given any consideration to. In today’s Washington Post, however, Law Professor Randy Barnett takes a look at the probable Constitutional challenges to the health care bill:

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

As I’ve written before, this may be the one area of the health care bill that it most vulnerable to a Constitutional challenge. Neither the Commerce Clause, nor any other provision of Article I, Section 8 of the Constitution would seem to be capable of being read in a reasonable manner so as to grant to Congress the power to force every American man, woman, and child to purchase a produce whether they wanted to or not.

Will the Court’s see it the same way ? That remains to be seen, but there have been signs in recent years that the Supreme Court wants to step back from the overly broad interpretation of the Commerce Clause that we’ve become familiar with:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

So, this is as not nearly as much of a long-shot argument as it might have been twenty or thirty years ago.

Barnett concludes:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

In other worth, even if ObamaCare passes today, the political firestorm isn’t over, and the legal firestorm is just getting started.

Is “Deem And Pass” Constitutional ? Neither The Question Nor The Answer Are As Simple As You Think

As the debate over health care reform approaches it’s final hours in the House of Representatives, there’s been much discussion over the past week over a rather obscure topic — the internal operating procedures of the House of Representatives, and specifically the apparent intention of House Democrats to use something that has been called “deem and pass” to get the Senate Bill approved and a Reconciliation Bill to the Senate.

The first question, of course, is exactly what “deem and pass” actually is, and George Washington University Professor Sara Binder gives perhaps the best explanation I’ve seen to date:

So how is the process likely to unfold? We can’t be entirely sure of all the details yet, but it will likely start on Saturday when the Rules Committee meets, most likely in its usual room in the Capitol—a tight squeeze with just a handful of spectator seats. At that point, the committee will unveil its recommended special rule and debate it. We don’t know yet for sure what the rule will say. There will most likely be that self-executing provision that “deems” the Senate-passed health care bill as passed by the House upon adoption of the rule or upon House passage of the reconciliation bill.

(…)

The Rules Committee has now written up a special procedure for its debate and the House has approved it. If the rule is written in such a way that enactment of the rule itself deems the Senate bill passed, the Senate bill would—at that point—be ready for presidential signature. Health care reform, in other words, would be ready to become law. But it’s more likely the rule will stipulate that the Senate bill becomes law only after the House approves the reconciliation package. If so, reform’s fate will still not be settled. It will depend on whether the reconciliation bill passes.

And so the House will proceed to debate the reconciliation package, in whatever manner and for whatever duration the rule stipulates. Most likely, no amendments will be allowed. Once debate is exhausted, the House will move the previous question motion again, this time in preparation for final passage of the bill. Again, it will take 216 to agree to the previous question motion, setting up the climactic vote

(…)

[I]f all has gone according to plan for the Democrats, the chamber will come to its up-or-down vote on the reconciliation bill. If 216 members vote yes, the reconciliation bill will go to the Senate. And the main Senate bill? That one will enter the “enrollment” process to prepare it for its journey up Pennsylvania Ave to the White House.

Doesn’t exactly sound like Schoolhouse Rock does it ? That, I think is one of the reasons that we’ve seen such a strong reaction to this issue from many pundits and members of the public. Whether it’s right or wrong, it doesn’t seem right. Politically, it’s a dumb move that I think Democrats will come to regret. But what about the Constitution ? Is “deem and pass” Constitutional ?

Former Federal Judge Michael McConnell was among the first to state publicly that the answer is a clear no:

To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

It seems like a fairly straightforward, textually sound argument, and many on the right have essentially adopted McConnell’s argument as their own. Both Virginia Attorney General Ken Cuccinelli and talk show host Mark Levin have said that they intend to file lawsuits if the House utilizes the “deem and pass” strategy.

It turns out, though, that the answer isn’t quite as simple as McConnell makes it out to be.

In 2005, the Circuit Court of Appeals heard a case titled Public Citizen v. US District Court for DC. In that case, Public Citizen, joined by Members of Congress including Nancy Pelosi and current Rules Committee Chairperson Louise Slaughter (of the “Slaughter Solution) were challenging a “deeming” procedure used by the Republican-controlled House.

Here’s what the Court said:

The District Court held that Public Citizen’s bicameralism claim is foreclosed by the Supreme Court’s decision in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of “the two houses, through their presiding officers” as “conclusive evidence that [a bill] was passed by Congress.” Marshall Field, 143 U.S. 672-73. Under Marshall Field, a bill signed by the leaders of the House and Senate – an attested “enrolled bill” – establishes that Congress passed the text included therein “according to the forms of the Constitution,” and it “should be deemed complete and unimpeachable.” Id. at 672-73. Recognizing that Marshall Field’s “enrolled bill rule” prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen’s complaint and denied its motion for summary judgment. Public Citizen, 451 F. Supp. 2d 109. …

We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case. We therefore affirm the judgment of the District Court. We find it unnecessary to determine whether Public Citizen has standing to bring suit, because we conclude that the Marshall Field rule of dismissal “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v.Doe, 544 U.S. 1, 6 n.4 (2005).

In Marshall Field, the Supreme Court said:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.

(…)

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself—nothing to the contrary appearing upon its face—that it passed congress

So, assuming that Marshall Field applies, once Nancy Pelosi and either Vice President Biden, as President of the Senate, or Senator Byrd, as President pro tempore attest that the bill has passed their respective houses, that is the end of the matter unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis.

KipEsquire has made some good points suggesting that Marshall Field might not apply in this case, but it doesn’t end there.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That’s because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener’s errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

I understand the Presentment Clause arguments, and have blogged about them, favorably, over the past week or so. Based on a strict reading of the text of the Constitution, I think that it’s probably correct that the House is required to actually vote on the Senate Health Care Reform bill. However, the Presentment Clause does not state the manner in which the vote must be taken by each chamber, and Article I Section 5 says the following:

Each House may determine the Rules of its Proceedings,

In United States v. Bellin 144 U.S. 1 (1892), the Supreme Court stated:

The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

If the House of Representatives passes a Rule stating that the Senate bill is deemed as having been passed by the House, that would seem to fall within the discretion of the House under Article I, Section 5. And, as Jack Balkin notes, it would be part of a method under which “deem and pass” could occur without violating the Presentment Clause:

[T]here is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.

How that would not be in compliance with the Presentment Clause is beyond me.

Politically, “deem and pass” is a stupid idea because it smacks of dishonesty and, more importantly, there seems to be something wrong with using this method to pass such a major piece of legislation, even if the method itself is Constitutional.

Just because it’s politically stupid, though, doesn’t mean it’s unconstitutional.

Note: This post was developed from a series of posts I published on my personal blog earlier this week.

Update 2:39pm EDT: The Washington Post is reporting that the House leadership has decided not to use a “deem and pass” rule for tomorrow’s vote. To me, that means that they are confident they have the votes.

The CBO Health Care Numbers Are Phony And Meaningless

While the Democrats in Congress will try to spin it otherwise, the truth about the CBO numbers released today can be found on the first page of CBO Director Douglas Elmendorf’s letter to Speaker Pelosi:

Although CBO completed a preliminary review of legislative language prior to its release, the agency has not thoroughly examined the reconciliation proposal to verify its consistency with the previous draft. This estimate is therefore preliminary, pending a review of the language of the reconciliation proposal, as well as further review and refinement of the budgetary projections.

In other words, this isn’t a final scoring of the the health care bill, and it isn’t complete because Congress hasn’t told the CBO what’s in the reconciliation package that they’ve supposedly been working on for a week now.

One Capitol Hill reporter stated on Twitter earlier that a final CBO scoring won’t be released until tomorrow, or Saturday. If that’s the case, then the 72 hour clock has NOT started running yet and we won’t see a vote on this until early next week.

Don’t let them fool you.

LP’s Wes Benedict on ‘Limited Government’ Conservatives

Those of us who truly believe in limited government* tend to be simultaneously amused and irritated hearing the folks at CPAC speak of limited government as though it’s a principle they truly support. Yesterday, the Libertarian Party’s Executive Director Wes Benedict, monitoring the CPAC festivities from afar, said some of the things that many of us have been thinking:

Unlike libertarians, most conservatives simply don’t want small government. They want their own version of big government. Of course, they have done a pretty good job of fooling American voters for decades by repeating the phrases “limited government” and “small government” like a hypnotic chant.

It’s interesting that conservatives only notice “big government” when it’s something their political enemies want. When conservatives want it, apparently it doesn’t count.

– If a conservative wants a trillion-dollar foreign war, that doesn’t count.

– If a conservative wants a 700-billion-dollar bank bailout, that doesn’t count.

– If a conservative wants to spend billions fighting a needless and destructive War on Drugs, that doesn’t count.

– If a conservative wants to spend billions building border fences, that doesn’t count.

– If a conservative wants to “protect” the huge, unjust, and terribly inefficient Social Security and Medicare programs, that doesn’t count.

– If a conservative wants billions in farm subsidies, that doesn’t count.

It’s truly amazing how many things “don’t count.”

Benedict went on to point out the lack of concern these same people had with the government expansion of President Bush and the health care mandates of another CPAC favorite – Mitt Romney.

While I’m by no means a supporter of the Obama Administration, the idea that many Conservatives seem to have that all the problems we are faced with started on January 20, 2009 is completely ludicrous**.

These are the same people who would gladly support Sarah ‘the Quitter’ Palin, ‘Mandate’ Mitt Romney, or ‘Tax Hike Mike’ Huckabee – none are what I would call ‘limited government’ by any stretch of the imagination.

» Read more

“Are these Republicans Walter”? “No Donny, these men are just nihilists”

“I mean, say what you like about the tenets of the Republican party, Dude, at least it’s an ethos…”

Apologies to Joel and Ethan Coen…

There has been a recent meme circulated by the leftosphere, that the Republicans… in fact any opponent of the Obama agenda… are nihilists.

Now, I have to say, I don’t think most of the people promoting this idea even know what a nihilist is (and if they did, many of them would realize THEY are the ones that come close to fitting that bill), never mind that current republican ideology is nihilist. Current republican ideology is empty, obstructionist, and reactionary; but that’s not actually nihilism… or even close to it.

A few days ago, a person whose intellect I generally respect, John Scalzi, randomly tossed off a comment calling Republicans (and Obama oppositionists) Nihilists.

Well.. at least John knows what a nihilist is… which is why I was disappointed in his statement… because as far as I’m concerned that analysis is just lazy.

Then a few days later, as part of his commentary on the state of the union speech, he wrote this:

“As for the Republicans, a recent reader was distressed when I said they were “hopped-up ignorant nihilists,” but you know what, when your Senate operating strategy is “filibuster everything and let Fox News do the rest,” and the party as a whole gives it a thumbs up, guess what, you’re goddamned nihilists. There’s no actual political strategy in GOP anymore other than taking joy in defeating the Democrats. I don’t have a problem with them enjoying such a thing, but it’s not a real political philosophy, or at least shouldn’t be.”

Ok… not much of the core of the analysis there I can disagree with… but again, it isn’t nihilism.

Today however he posted a link to further explain the position he was trying to express in shorthand by calling the Republicans nihilist.

Again, there’s nothing I can really disagree with in this analysis:

[N]othing could be worse for the GOP than the illusion of success under present circumstances. Worse than learning nothing from the last two elections, the GOP has learned the wrong things… Not recognizing their past errors, the GOP will make them again and again in the future, and they will attempt to cover these mistakes with temporary, tactical solutions that simply put off the consequences of their terrible decisions until someone else is in office. They will then exploit the situation as much as they possibly can, pinning the blame for their errors on their hapless inheritors and hoping that the latter are so pitiful that they retreat into yet another defensive crouch.

Is the GOP in a worse position than a year ago? On the surface, no, it isn’t. Once we get past the surface, however, the same stagnant, intellectually bankrupt, unimaginative party that brought our country to its current predicament is still there and has not changed in any meaningful way in the last three years.

The best thing though, is the source of that quote: The American Conservative

Thus showing, once again, for those who don’t already know; that Republican does not necessarily mean conservative or libertarian, nor does conservative necessarily mean Republican.

Oh and continuing in that vein, conservative doesn’t necessarily mean religious either; nor does religious always mean conservative (especially if you’re Catholic).

I am neither a Republican, nor a conservative; but I DO register as a Republican because my state has closed primaries, and I like to vote against John McCain and Joe Arpaio.

I am a minarchist, which is a school of libertarianism that pretty much says “hey, leave me alone as much as is practical, and I’ll do the same for you, thanks”.

I’m well educated (perhaps overeducated), high earning, catholic, married with two kids, and a veteran. I was raised in the northeast but choose to live in the Rocky Mountain west, because I prefer the greater degree of freedom and lower levels of government (and other busybodies) interference.

I don’t care who you have sex with or what you shove up your nose, down your throat, or into your lungs so long as I don’t have to pay for it, or the eventual medical bills you rack up.

I KNOW from direct personal experience we need a strong national defense, but that freedom and liberty (which are two different things) are rather a LOT more important than internal security.

I have no faith in the government not to do with… really anything other than defense… exactly what they did with Social Security, or AFDC, or any number of other programs that they have horribly screwed up, wasting trillions of dollars in the process.

Yes, there is great benefit to some of those programs at some times (and I was on welfare and foodstamps as a child, I know directly this is true); but the government couldn’t make a profit running a whorehouse, how can they be expected to run healthcare, or education, or anything else for that matter.

Oh and for those of you who believe that government really can do good, without a corresponding and greater bad… I’m sorry, you’re wrong.

It’s a sweet ideal, but it just isn’t true. Good intentions don’t mean good results, unless combined with competence, efficiency, passion, compassion… HUMANITY in general; and the government is not a humanitarian organization.

Governments are good at exactly two thing: Stealing and Killing. Yes, they are capable of doing other things, but everything they do proceeds from theft, coercion, force… stealing and killing.

That doesn’t mean that good can’t come out of it; but everything the government does has an associated harm that goes with it. Sometimes that’s worth it, sometimes it isn’t and it’s DAMN hard to figure that out. Who gets to decide? You? Your friends?

Do you have the right to tell me what to do, how to live my life? Do I have the right to tell YOU how to live YOUR life?

So why is it ok if you get a few million of your friends, and I get a few million of my friends, and just because you have more friends than I do you get to tell all of us how to live and what to do?

Sorry but, HELL NO.

I want the same things you want. I want people to be happy, and healthy, and have great opportunities… But the government doesn’t have the right to steal from me to help you do it; anymore than you would have the right to hold a gun to my head and take the money from me personally.

Actually, the government doesn’t have any rights whatsoever. The PEOPLE have rights, the exercise of which we can delegate to the government.

It absolutely amazes me that both liberals and conservatives understand that the government isn’t to be trusted; they just believe it’s not to be trusted over different things:

Liberals trust the government with your money, education, and healthcare; but don’t want them to interfere with your sex life, or chemical recreation.

Conservatives on the other hand are just fine with the government making moral, sexual, ethical, and pharmaceutical choices for you; but don’t trust it with your education, healthcare etc…

Well, I don’t trust them with ANYTHING except defense (which they also screw up mightily, but which is at least appropriate to the coercive and destructive nature of government).

It’s axiomatic that the intelligence of any committee is equal to that of the least intelligent member, divided by the total number of members.

There are 435 members of the house of representatives, 100 senators, 21 members of the cabinet, 9 supreme court justices, a vice president, and a president; for a total committee size of 567.

Now, if we’re charitable and say they’re all geniuses with IQs above 140 (don’t hurt yourself laughing), that’s an overall government IQ of .25

Why on earth would you want THAT spending your money, or making any decisions for you whatsoever?

Now… Given that thumbnail philosophy, who am I supposed to vote for?

I certainly can’t vote Democratic; they want to take all my money and either give it to other people, or use it to force me (and everyone else) to behave as THEY decide.

On the other hand, I can’t much vote for Republicans, because they still want to give my money to other people (just mostly different other people than democrats), and use my money to force me (and everyone else) to behave as they decide…. They just want to take a little less of it.

And I really can’t vote for Libertarians, because they are profoundly unserious and incapable of effecting any real political change. I want to vote for someone who will PREVENT the worst abuses of government, and sadly, voting libertarian has no hope of accomplishing that goal.

I end up voting for whoever, or whatever, I hope or believe will reduce those undesirable characteristics of theft and coercion inherent to government.

Often that means voting Republican, but that shouldn’t be taken as an indication of my support for Republicans.

So tell me, is that nihilism? I don’t think so. I think it’s playing defense, which isn’t a winning strategy; but it’s not nihilism.

Nihilism would be standing by the sidelines say “there’s no point in playing, you’re all going to lose anyway”… which coincidentally is the position of a lot of Libertarians.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Would C-SPAN Make The Healthcare Bill “Worse”? Define Worse.

I’ll blockquote Peter Suderman over at Reason blockquoting the CAP’s “wonk room” blog on this one:

The short version of the argument is that C-SPAN’s coverage would put pressure on legislators to perform for the cameras and thus make the bill worse:

C-SPAN is grounded in the belief that transparency produces superior legislation. And maybe a certain level of transparency does. But if one actually considers the tone and tenor of the televised health care debate of 2009, filming the conference negotiations seems counterproductive.

…On the whole, C-SPAN’s coverage informed and entertained the viewer. But did it improve the underlying bill?

The post suggests pretty strongly that the answer is no. But how you answer this last question depends quite a bit on what you mean when you say “improved.” If you asked me, I’d say that anything in the health care bill that increased individual control and responsibility for their health care improved it. But when anyone at CAP asks whether something has been “improved”, I think it’s fair to say that what they’re asking is whether it made the bill more progressive — ie: does it cover more people, spread costs across a greater share of the population, offer larger subsidies for care, and move more power away from private enterprise and toward centralized government authority. The implicit argument here is that not filming the negotiations will push the bill in a more progressive direction. I agree, but I think that’s a bad thing. And I also think that as excuses go, shutting out C-SPAN and other media because doing so would limit opposition to the progressive agenda is pretty weak.

I don’t think it’s fair to say that CAP is asking whether it made the bill more or less progressive. There are multiple definitions of “worse”, and Suderman is projecting his definition of worse vs. improved onto CAP.

I think a more fair question, particularly when political grandstanding is involved, is this:

Does C-SPAN televising the debate make it easier or harder for Congress to write a bill accomplishing its objectives with a minimum of bad elements?

There are a lot of ways to define “bad elements”. Peter Suderman and I would say that a public option or an individual mandate are bad elements. CAP would probably say that these are desired elements and dropping the subsidies from 400% to 300% or the Stupak amendment are bad elements. All involved would probably say that greasing the wheels of Ben Nelson and Mary Landrieux are bad elements.

The uncharitable way to read CAP’s question is to suggest that getting the debate out in front of voters, news media and bloggers prior to reaching a final bill gets the debate out of Congress and into public opinion, where voters might object to necessary provisions or add bad elements through the political process. But the charitable way to read this is that televising the debates on C-SPAN leads to overt politicization and a necessarily “worse” bill by addition of things that both Democrats and Republicans would consider bad elements. Whether policy is good or bad is not defined by its public popularity.

I like the idea of C-SPAN televising the negotiations, but not because I think they’ll improve the bill. Frankly, I think greater public awareness and pressure might lead to a further public opinion shift against the bill and potentially damage it before the votes come back to House & Senate on the compromise legislation. Any damage to this intrusion of government on freedom that I can get, I’ll take. But I don’t think televising the debates will in any way improve the bill. As the wonk room states:

Turning the conference committee into another Senate floor debate won’t improve health reform legislation. The televised conference hearings will become a drawn out theatrical sideshow — the real discussions will still occur behind closed doors.

They’ll just give a bunch of Congressional blowhards a forum to grandstand, and provide fodder for cable news and the blogosphere to excoriate them in public. Great fun, mind you, but since all the substantive negotiation occurs off-camera anyway, it’s not exactly useful.

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