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Critical Condition

NRO’s health-care blog.


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Obamacare Hurts Seniors

Swinging for the Fences on Severability

Tuesday’s Supreme Court arguments on the individual mandate were certainly the main event from the constitutional-law perspective. But from the health-policy perspective, Wednesday’s arguments over severability were the top draw.

Even with the individual mandate in place, Obamacare is an unstable and unworkable mess. Should the Court strike only the mandate, the practical result would be to merely accelerate Obamacare’s inevitable, functional collapse.

Thus, from the perspective of health policy the more interesting question before the Court is that of severability — or, how the Court deals with the rest of Obamacare if it strikes the mandate as unconstitutional.

As Robert Alt and I noted recently, the Court has three options on severability — none of which is attractive from the Justices’ perspective:

1) Strike only the mandate, and leave the rest of the statute. That would be the equivalent of pulling the pin before tossing the hand grenade back to Congress.

2) Map the complex interrelationships between the mandate and numerous other provisions, and then try to divine a rationale for discarding (along with the mandate) some provisions, but not others.

3) Conclude that the first option is irresponsible and that the second is impossible, and therefore follow their own stated legal standard to strike the whole law — despite that being an uncomfortable practical position for most judges.

Thus, Wednesday’s oral argument on severability was essentially an exercise in the Justices trying to determine which option, from their perspective, was “least ugly.”

As the questioning unfolded it seemed that the Justices (including the Court’s liberals) grasped that discarding only the mandate and hoping for the best would be irresponsible. At least the more conservative ones also seemed to struggle with how they might find some number of other provisions to be non-severable (including even the few offered by the government) without severability devolving into an illogical and impossible exercise.

Indeed, in the questioning it became apparent that even adopting the government’s limited position of striking only a few provisions as “non-severable” from the mandate was internally inconsistent and no more logical than any other potential rationale for partial severability — points that Robert and I made in our paper. That conclusion also seemed to be reinforced (albeit, unintentionally) in the questioning of the Court-Appointed Amicus Curiae tasked with advocating for striking only the mandate — which was the decision of the Eleventh Circuit, but a position that neither the plaintiffs nor the government supported.

My overall impression was that the Justices appeared to be gravitating, reluctantly but inexorably, toward the solution that they were initially least inclined to embrace — that of striking down the whole law.

Given that context, what particularly intrigued me was that the plaintiffs’ attorney, Paul Clement, was clearly “swinging for the fences” on severability. Prior to oral arguments, there was an assumption, even among conservatives, that the plaintiffs’ argument for striking the whole law was a kind of “ask for the whole loaf to increase your chances of getting half a loaf” strategy. But Clement’s references to Buckley v. Valeo — not once, but three times, including making it the final point in his rebuttal argument — showed that he really was going for the home run.

Put in unvarnished terms, Clement was essentially saying to the Justices: “In Buckley v. Valeo, the Court struck some provisions but left standing others (including some constitutionally dubious ones), out of deference to Congress. Look at what that got you. Forty years of an unworkable statute and yet more constitutional challenges to it brought before you. The latest of those, Citizens United v. FEC, resulted in an unprecedented (and both institutionally and personally insulting) attack on you, to your face, by the president in his State of the Union Speech. That is the thanks you got for trying to be deferential to the political branches while legitimately exercising your duty to defend the First Amendment. Do yourselves, and everybody else, a big favor by not repeating that mistake in this case. Strike the whole law, and send the Congress and the president a message that they should think carefully about the Constitution before legislating. Sure, some of them are going to scream. But if you strike the whole thing, they only get to scream once.”

Of course, Clement didn’t need to spell it out quite so crassly. He knew that the Justices would read those unspoken inferences into his concluding statement — which, by the way, was also the last word in the entire argument over severability:

And that takes me to my last point, which is simply this court in Buckley created a halfway house and it took Congress 40 years to try to deal with the situation, when contrary to any time of their intent, they had to try to figure out what are we going to do when we are stuck with this ban on contributions, but we can’t get at expenditures because the Court told us we couldn’t? And for 40 years they worked in that halfway house. Why make them do that in health care? The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. I don’t think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.

I came away from the severability arguments thinking, for the first time, that the Court might actually strike down the entire law.

Of course that would be an excellent outcome for both the Constitution and the health system, but it would still not be the end of the matter. The Left would immediately begin bleating about the loss of Obamcare’s supposed “benefits” and attack the right for not having solutions to health-care problems. 

We on the right must be prepared to vigorously counter both lines of attack. Conservative health-policy experts at Heritage and elsewhere are already fact-checking the Left’s claimed “benefits” of Obamacare. Conservatives have also long advocated an alternative vision of a patient-driven, market-based health system, most recently summarized in Heritage’s Saving the American Dream proposal. While awaiting the Supreme Court’s decision, my colleagues and I will continue to advance in detail the benefits of conservative health reforms while also continuing to critique the flaws and failings of Obamacare.

— Ed Haislmaier is senior research fellow in health-policy studies at the Heritage Foundation.

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Post-Court Report: Sally Pipes on the Future of Health-Care Reform in America

Sally C. Pipes is president of the Pacific Research Institute and author of The Pipes Plan: The Top Ten Ways to Dismantle Obamacare. She reviews this week’s Supreme Court oral arguments and the state of health care in America, politics and all.  

KATHRYN JEAN LOPEZ: What’s your greatest hope and greatest fear about the Supreme Court and this individual-mandate case?

SALLY C. PIPES: On the Supreme Court hearings and the individual mandate, my greatest hope is that a majority of the justices decide that the mandate is unconstitutional. My greatest fear is that they decide it is constitutional and then the power of the federal government to force us to purchase things in the private market will have no bounds — health insurance first and then Prius cars, burial insurance, a ban on red meat.


LOPEZ
: Could we live with an individual mandate? 

PIPES: I believe it would be very bad for us if the individual mandate remains part of Obamacare. The cost of insurance will increase and it will not reduce the number of uninsured. In our amicus brief to the court, we were able to show that the cost shift from the uninsured to the insured for uncompensated care will increase by $3–$5 billion because of the individual mandate. This is diametrically opposite to the administration’s claim.


LOPEZ
: Could Republicans ironically lose a clarifying issue in the election this fall if the Court strikes down the mandate? 

PIPES: Should the Court strike down the individual mandate, I think it will be a positive development for Republicans seeking office. Two years after signing the law, 56 percent of Americans support repeal of the Affordable Care Act. On the individual mandate, 72 percent favor repeal. In the 2010 congressional elections, one of the main reasons Republicans took back the House and made gains in the Senate was because of their disdain over government’s takeover of the health-care system.

If the Mandate Falls, Would Romney Be Committed to Repealing the Rest?

No one knows how the Supreme Court will rule on Obamacare. But let’s assume that the Court does end up striking down the individual mandate when it releases its opinion this summer, and perhaps along with it Obamacare’s “guaranteed issue” and “community rating” provisions (which together say that insurers can’t avoid offering policies to those with expensive preexisting conditions and cannot charge them any more for those conditions). And let’s assume that the Court leaves the rest of the 2,700-page monstrosity intact. This is certainly a realistic scenario.

In that event, Obamacare would still increase federal spending by about as much as (and quite possibly much more than) it would now. According to the Congressional Budget Office, Obamacare’s “coverage provisions” alone, mostly in the form of its taxpayer-subsidized “exchanges” and its massive and underreported expansion of Medicaid, would cost a colossal $2 trillion (and change) in Obamacare’s real first decade — 2014 to 2023 ($1.753 trillion from 2014 to 2022, plus more than $265 billion in 2023). These coverage provisions wouldn’t get much cheaper, and could get a lot more expensive, without the individual mandate.

Given that Mitt Romney’s own health-care overhaul in Massachusetts also offers huge taxpayer-funded exchange subsidies and also expanded Medicaid coverage in the Bay State, if Romney is then the Republican nominee, would he be committed to repealing such provisions in Obamacare? Romney said just last week that we need “to abolish” Obamacare, “root and branch.” But if the Court snips away the most visible part of Obamacare and removes it from public view, would Romney still be determined to pull out the rest, and would he make it a centerpiece of his general-election campaign?

Since Romney has said very little about Obamacare’s massive exchange subsidies and Medicaid expansion, and not a ton about Obamacare generally, these would seem to be fair questions for GOP voters to ask.

It’s More than Broccoli

Obamacare Supreme Court Live Blog – Day Three

Today, the Supreme Court will hear two sets of oral arguments: At 10 a.m. EST, they’ll discuss whether the individual mandate is “severable” from the rest of the Affordable Care Act, and whether the rest of the law — or part of it — should go down alongside. At 1 p.m. EST, the Court will hear arguments on whether Obamacare’s dramatic expansion of Medicaid is excessively coercive to the states, given that states are forced to go along or lose all of their Medicaid funding.

We had nearly 6,000 readers for Tuesday’s live blog on the individual mandate, so we’ll be back again, starting at 10:00 a.m., and going on until the end of the day. (The transcript of Monday’s live blog is here.) We’ll be joined, as usual, by leading conservative health-care journalists and policy experts. Please join us, and bring your comments and questions!

Avik Roy is a senior fellow at the Manhattan Institute and the author of The Apothecary, the Forbes blog on health-care and entitlement reform. You can follow him on Twitter at @aviksaroy.

Pictures from Obamacare Hearings, Day Two


“Tea Party Patriots” try to speak as pro-Obamacare forces chant loudly that they love the law.


A woman in wheel chair opposes Obamacare because she fears her care will be rationed.

Tea Party Patriots chant “We Love Liberty.” Marchers chant “We Love ObamaCare.”

“Hey-Hey, Ho-Ho! ObamaCare has got to go!”

Obamacare is not working.

“Tell me what the Constitution looks like?” “THIS is what the Constitution looks like!”

As SCOTUS arguments end, cameras prepare for news conference with pro-Obama supporters.

An anti-Obamacare patriot!

The arguments are over and lawyers are leaving.

“Strike it down!” the crowd cheers.

This person marching with the Left seems not to have gotten the memo.

Bad community-organizing decision: The other side sent their marchers to lunch!

Tea Party supporters are having a big rally just down the street from SCOTUS.

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I’m Tweeting from Outside SCOTUS

Vermont’s Health-Care Petri Dish

While the rest of America steels itself for the onset of Obamacare — or hopes the Supreme Court puts a stop to it — little deep blue Vermont is well on its way toward installing its own Canadian-style single-payer health-care system.

“Single payer” refers to a universal taxpayer-financed government-managed health-care system that replaces private health insurance. Under Green Mountain Care, the emerging Vermont version, a newly-appointed government board will ensure that by 2017 all covered Vermonters will receive “affordable and appropriate health care at the appropriate time in the appropriate setting.”

Republican Governor Jim Douglas held Vermont’s single-payer forces at bay from 2003 until his retirement in 2010. In that year, five qualified Democrats sought their party’s nomination for governor. The single-payer forces declared they would not support any primary candidate who failed to unequivocally endorse installing single payer as a first order of business. All did. The winner (by 197 votes), was Senate president pro tem Peter Shumlin, who was elected governor in the general election. In his first year as governor Shumlin pushed through to passage — in a legislature with better than two-to-one liberal majorities — the blueprint for installation of the historic new plan.

To its enthusiasts, the emerging Green Mountain Health Care plan will finally deliver on their long proclaimed assertion that “health care is a human right”; that is, everyone has a right (of unspecified origin) to have the government force someone else to provide them with health-care services. The providers of these services — doctors, dentists, nurses, hospitals, nursing homes — will be remunerated at rates established by the five-member Green Mountain Care Board. The costs of this sweeping program — over twice the present state general-fund budget ($1.3 billion) when it’s implemented in 2017 — will be covered (its backers hope) by Medicaid, General Fund revenues now paid to cover state employees and retired teachers, and above all, new taxes. The menu of new taxes was thoughtfully scheduled to be revealed in January 2013, after Governor Shumlin’s expected reelection. It will presumably include some mix of payroll, income, and sales taxes.

The governor believes that single payer is the only hope for “cost containment.” With government standing athwart the only money pipe paying out to all health care providers, government can tell them which treatments are “inappropriate” for which patients, and how much they will be paid for their services. The single payer system will, it is said, also curb duplicate billings, prevent fraud, rationalize the technology available for treatments, and end the dead weight waste that results from multiple insurers promoting their products and pocketing profits.

The 2009 legislature hired Dr. William Hsaio of the Harvard School of Public Health to explain how to install a single-payer system. Dr. Hsaio is well known for designing the Resource Based Relative Value System used to control costs under Medicare.

A key feature of Dr. Hsaio’s proposal was the importance of keeping the Green Mountain Care Board independent of office-holders and political pressures. When the governor made his five appointments to the powerful new Board, its chair turned out to be Anya Rader-Wallack, Governor Shumlin’s special counsel for health-care reform. Queried about how Green Mountain Care will be paid for, Rader-Wallack (who holds a PhD in “social policy”), replied “We can move full speed ahead with what we need without knowing where the money’s coming from.” At the board’s first meeting, assistant attorney general Cliff Peterson explained, “You’re charged with improving the health of Vermonters, reducing the rate of growth in health-care costs, enhancing the patient and health-care professional experience, recruiting and retaining high-quality health professionals, and achieving administrative simplification both in financing and in delivery of health care. You can, for example, set rates for health-care professionals, for manufacturers of drugs, for medical-supply companies, and the like, and for other companies providing services.” He added wryly, “That’ll be done by Friday.”

By 2014, according to the Obamacare law, the state must establish a health-insurance exchange. Shumlin has asked the current legislature to require that 98 percent of Vermont’s small businesses (those with up to 100 employees) be allowed to purchase coverage only through the exchange, from no more than the two surviving health insurers in the state. It’s likely that there will be only one left, Blue Cross Blue Shield of Vermont, since 1990 a virtual ward of the state.

Shumlin’s proposed Vermont Exchange law also provided that all plans must have at least what Obamacare calls a “silver” actuarial value: at least 70 percent of coverage provided by the insurer. This provision would have killed off the high deductible Health Savings Account-eligible policies now enjoyed by thousands of Vermont families.

On February 6, in the face of a rare business uprising, the governor was forced to retreat. For the first two years, the governor explained at a news conference, companies with 51 to100 employees would not be forced to purchase coverage through the exchange. He neglected to mention that these businesses were precisely the ones that led the rebellion against being swallowed up in the Exchange, after they learned that their premium rates would increase by 18 percent. The governor also agreed to allow “bronze” plans (60 percent of actuarial value) to be sold on the exchange, thus reversing the legislative death sentence imposed in 2011 on popular high-deductible plans that are coupled with health savings accounts. The Shumlin Democrats have always detested such plans because they encourage individuals to make rational choices in their own interest, instead of acceding to the common good.

Before House passage of the governor’s Exchange bill on February 25, the badly outnumbered Republicans sought to allow small businesses with 50 or fewer employees to purchase their own health coverage outside of the Shumlin Exchange. Representative Michael Fisher, the chair of the House committee on health care and an “outreach social worker” by trade, opposed the amendment. He stated that allowing people to choose to remain outside the exchange was a “mystifying” concept, saying, “I can’t see any potential value that can be gained outside the exchange.” The amendment went down 57–80.

Shumlin has made it clear that the exchange will only be temporary. If he can obtain a host of waivers from Obamacare — highly doubtful — he intends to fold Obamacare’s promised premium tax credits into the huge pot of money needed to pay for Green Mountain Care when it springs full blown in 2017.

Meanwhile the Green Mountain Care Board is laboring to produce the many policy and price-control decisions required by the Vermont law. Its decision to hire a public relations consultant to explain its workings to citizens produced a tempest. Governor Shumlin, supposedly far removed from the “independent” board, publicly disapproved. The Board members expressed their independence by grumbling as they reversed the decision. During the single-payer debate, the outgunned critics argued that Green Mountain Care will quickly degenerate into Quebec-style rationing, waiting lines, maddening bureaucracies, demoralized doctors and nurses, shabby facilities, obsolete technology, declining quality of care, and economy-wrecking taxation. There is little reason to believe otherwise.

As the enormous difficulties inherent in creating such a system become ever more apparent, some are speculating that at some point the governor will bail out. At a business meeting in Rutland last year he said “We will only go ahead [with Green Mountain Care] if we’re convinced together as a state, that the system is better than what we have, that it costs less, it’s going to help create jobs, and we’ve got the cost-containment system right. If we can’t do that, we’ll take our marbles and go home.” If this comes to pass, it will mark the end of yet another costly failed experiment from little Vermont, long notorious for being the nation’s petri dish for foolish and expensive collectivist schemes that end badly.

John McClaughry, a former Vermont state senator, headed the free-market Ethan Allen Institute for eighteen years.

Tea Party Leaders Are Holding an Impromptu News Conference @SCOTUS

Tea Party Patriots try to hold a news conference over loud chants and drums of pro-ObamaCare marchers:

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