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Critical Condition

NRO’s health-care blog.

Florida Decision Could Accelerate Obamacare Appeals



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The legal challenges to the health-overhaul law have gone from quixotic to indisputably serious with U.S. District Judge Roger Vinson’s blockbuster decision declaring the entire law unconstitutional.

The White House reportedly was caught off guard but quickly “went into a full convulsive rage” at Vinson, writes Jonathan Turley of George Washington University in USA Today. Turley also writes that the administration itself was ultimately to blame: The White House “played a game of chicken over health care with the court and lost a critical battle in Florida. Instead of inserting a ‘severability clause’ designed to protect an act from this type of global rejection, the legislation was rammed through a divided Congress with diminishing public support.”

He continues: “Even for some of us who support national health care, the bill unnecessarily triggered the constitutional fight that led to its rejection in two federal courts … Even if one accepts that the removal of the clause was just some colossal, inexplicable blunder, it was the blunder of the White House and Congress — not the courts.”

The main defense from the administration appears to be: Our nation has a health-care crisis; the only way to solve it is with a centralized, government-micromanaged overhaul; for this Rube Goldberg apparatus to work, the government must force everyone to buy health insurance. Therefore, because we need health-care reform, it is “necessary and proper” — and therefore constitutional — for the government to force us all to buy health insurance.

The court didn’t buy it. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void,” Vinson concluded.

So what’s next? Florida and Wisconsin, two of the 26 states that were plaintiffs in the Florida case, have said they believe it means they don’t have to implement the law, although at least Wisconsin seems to be backing off that position.

The Florida decision likely means that the higher circuit court of appeals and ultimately the U.S. Supreme Court will be asked to accelerate their rulings.

White House “rage” and partisan attacks aside, Judge Vinson’s decision is gaining widespread respect for his “exhaustive and erudite opinion [that] is an important moment for American liberty,” according to a Wall Street Journal editorial.

And the individual mandate is the apex of that battle because it goes to such a fundamental question of control over our life and liberty. The struggle over control of our health sector is the fight for freedom of our generation and well worth the attention of the courts, Congress, and the country.

States React to Judge Vinson’s Obamacare Ruling



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Florida has led 25 other states to an overwhelming judicial victory against Obamacare in federal court, but, unsurprisingly, some states are ignoring Judge Roger Vinson’s decision that Obamacare — in its entirety — violates the U.S. Constitution.

California, for example, where Democrats control every executive office and both legislative chambers, has pledged to be the ”lead car” in the race to sacrifice its residents’ health-care choices to federal control. Unfortunately, the “lead car” will spin out of control and crash whether Obamacare is defeated judicially or legislatively. Former governor Schwarzenegger foolishly signed a law last year that launched an Obamacare-compliant Health Benefits Exchange, but neglected to include a “self-destruct” clause in case Obamacare ceases to exist.

More mysterious is the response of some states that oppose Obamacare and so should be leveraging Judge Vinson’s decision with all the power they have. Georgia, for example, is one of the 25 states that joined Florida’s successful lawsuit. It’s also a state where Republicans hold the governorship and majorities in both legislative chambers. Gov. Nathan Deal claims to oppose Obamacare, yet his response to Judge Vinson’s ruling (as reported by the New York Times) was curiously weak: “We’ll be required to move forward until such time relief is granted or an appellate decision is finalized.”

Required by whom? Does Governor Deal think that Kathleen Sebelius, U.S. Secretary of Health & Human Services, has some kind of power to fine or imprison him if he refuses to obey her? On the contrary, Secretary Sebelius’s ability to inflict Obamacare on the country will be severely hampered if states obey the Constitution and decline to collaborate with her bureaucrats (as I have described previously here and here).

The correct response to the momentum created by Judge Vinson’s ruling is exemplified by Florida governor Rick Scott, who takes his state’s commitment to defeating Obamacare as seriously as his attorney general, Pam Bondi, does. Not only has he decided not to waste “time and money” implementing Obamacare, but his insurance commissioner has actually returned Secretary Sebelius’s $1 million grant to start the spadework on a Health Benefits Exchange!

Governor Deal, and other governors who are inexplicably wavering in the face of the now mortally wounded federal law, need to rejoin the battle that their attorneys general are successfully waging.

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It’s Okay to Spike the Football, but Get Ready for the Next Kickoff in Higher Courts



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The Wednesday update on the surprisingly good and sweeping ruling in Florida that struck down the entire Obamacare health law as unconstitutional is: What do the states do next, and how does the “rule of law” Obama administration respond?

It’s technically correct that the only governing law, at the moment, in this realm for the 26 states that were plaintiffs in the district court case is that there is no Patient Protection and Affordable Care Act that applies to them. Cue the dancing in the end zone by several governors, attorneys general, and many of their citizens. Yes, a declaratory judgment is almost as good as an injunction, and the Florida court put the Obama administration in a corner by saying, in effect, of course you will obey the law as a standard course of action.

Initially, the administration will bluster about rulings in other federal district courts, the legal uncertainty of what will happen in later appeals, and the extreme difficulty of unwinding the many early tentacles of the PPACA and then perhaps needing to re-attach them later if higher courts rule differently. But cooler legal heads (hopefully smarter than those who undermined their own legal arguments in the Florida case, see further below) should prevail and ask for some version of a stay of full enforcement of the Florida court order while further appeals are pursued. And the 11th Circuit’s federal court of appeals will grant this, rather than encourage further games of constitutional law chicken and quite a mess in the interim.

So, the legal and political forces that achieved this very significant initial victory will need to reassemble for the next legal kickoff, and avoid acting like the proverbial political equivalent of a “suicide squad.” This ain’t over (Obamacare was knocked unconscious with a stun gun, not yet fatally wounded with more broad-based firepower — I can hear some “progressives” already clucking about that last line). But the odds have changed tremendously. And worrying about the accounting over the chump change of early federal planning grants (give it back, pocket it, turn down any more) is more of a symbolic distraction than a central issue of concern.

Nevertheless, it’s worthwhile to keep posting more political points on the board while the other squad is shaken and back on its heels. Here’s some of what I wrote elsewhere earlier today, in that regard, at AEI’s Enterprise Blog:

Keep reading this post . . .

Now It’s Serious



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In October of 2009, a reporter from CNS asked then-Speaker Nancy Pelosi which provision of the Constitution allowed Congress to impose a mandate that all Americans purchase health insurance. Pelosi responded “Are you serious? Are you serious?” In case there was any doubt as to whether Pelosi herself was serious about her comment, her spokesperson Nadeam Elshami later clarified the remarks, saying “That is not a serious question. That is not a serious question.” Apparently, like Jimmy Two-Times in Goodfellas, they like repeating themselves in Pelosi’s office.

Unfortunately for them, repeating something does not make it so, as Judges Henry Hudson and now Roger Vinson have taught us. There is indeed something extremely questionable from a constitutional standpoint with the mandate to force individuals to purchase health insurance. Judge Vinson’s ruling is more sweeping than Judge Hudson’s, as it determines that the entirety of the law be overturned.

The ruling is also well-researched, as it looks carefully at the history of the Commerce Clause and its meaning. If I can be permitted a moment of fraternal pride, the ruling refers to an apparently seminal article by Judge Robert Bork and Daniel E. Troy (Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce, 25 Harv. J. L. & Pub. Pol’y 849, 861-62 (2002)) in attempting to determine the scope of the Commerce Clause. And like Pelosi, Elshami, and Jimmy Two-Times, the ruling refers to the article twice. In fact, Judge Vinson’s ruling appears so grounded in the Constitution, quoting the Federalist Papers, Madison, and Hamilton, not to mention Bork and Troy, that it almost makes one worry that other, more “modern” judges ruling on the issue won’t be swayed by its argument.

The decision also puts more pressure on the Obama administration. I have written previously about the notion of “effective repeal,” the idea that the Republicans may not be able to repeal the health-care bill straight out right now for structural reasons but a combination of legislative oversight, public dissatisfaction, and judicial disapproval can make the bill untenable and ultimately bring about its collapse. This latest ruling is another challenge to both the validity and the viability of the law. Speaker Pelosi may not have thought that the challenge to the law was “serious,” but it is a fair bet that she did not consider the challenge to her position as Speaker of the House “serious” either, and we see where that has gotten her.

The Obama health law now faces “serious” challenges on legislative, judicial, and political fronts. This should not come as a surprise to anyone who has been following the issue. In contrast to previous domestic-policy changes like Social Security, Medicare, and welfare reform, all of which had substantial bipartisan support, the one-party imposition of the health-care law has ensured that will always be seen as a partisan endeavor. As a result, it will never be able to overcome the original sin that governed its birth, and this will ultimately be its undoing. Judge Vinson’s ruling, along with the fact that a majority of states have joined the lawsuit against the bill, the recent House repeal vote, and the bill’s consistent unpopularity, remind us that there are many avenues available in a free society for challenging questionable legislative actions, and the anti-Obamacare movement is “serious” about exploring all of them.

Florida Ruling Goes Further than Any Obamacare Court Decision to Date



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Passage of Obamacare violated the will of the American people, and Florida District Judge Roger Vinson has concluded that it also violates the U.S. Constitution.

In a carefully documented decision, Judge Vinson ruled that the “individual mandate” — the federal requirement to purchase government-prescribed health insurance — violates the Constitution, and he furthermore said that since the individual mandate is central to the workings of the health-overhaul law, it is not severable from the whole and therefore the whole law is unconstitutional.

“Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void,” Vinson concluded.

This case, brought by Florida and 25 other states, is the highest-profile challenge to the health-overhaul law. Judge Vinson’s decision goes further than an earlier ruling by U.S. District Judge Henry Hudson in Virginia, which declared the individual mandate unconstitutional but let the rest of the law stand.

Judge Vinson sided with the states and other plaintiffs in concluding that Congress does not have the authority to regulate “inactivity” — someone deciding not to purchase health insurance. He said if that were to be declared a new federal power, there would be no end to what Congress could mandate the citizenry to do.

“It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause,” he wrote in his 78-page decision.

Judge Vinson drew upon the original Tea Party for an analogy: “It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain.”

Further, Judge Vinson ruled that the individual mandate is not severable from the rest of the law. He said the Obama administration itself argued at least 14 times in its motion that the individual mandate is essential to the workings of the entire law.

“In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit,” he wrote. “It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed.”

“For me to try and ‘second guess’ what Congress would want to keep is almost impossible,” Vinson wrote. “There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.”

“Congress’ failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate,” he continued.

The case will surely be appealed by the Obama administration. Meanwhile, Congress will have even more reason to investigate the processes by which the wheels of the bureaucracy continue to churn out thousands of pages of regulations to implement the law.

Today’s ruling throws the validity of the entire act into question and goes further than any other court decision to date. (So far two courts have declared the Patient Protection and Affordable Care Act unconstitutional and two have declared it does comply with the Constitution.) Unless the U.S. Supreme Court can be convinced to give an expedited ruling, the court challenges and appeals are likely to continue until a likely final decision in 2012.

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No Small Win



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We are elated Judge Vinson agreed with the National Federation of Independent Business and the states that the individual mandate is unconstitutional and that it is not severable from the rest of the law. The individual mandate interferes with the rights of small-business owners to own, operate and grow their businesses free from unnecessary government intervention. To force citizens to purchase government approved health insurance gives the federal government entirely too much power. Judge Vinson’s decision is right on point. Congress exceeded their authority with the health-care law and it should be struck down in its entirety.

 – Karen Harned is executive director of the NFIB Small Business Legal Center.

The Insurance-Benefit Canard



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Obamacare didn’t get mentioned until near the end of the president’s State of the Union address, but when the president did get around to talking about it, the content of what he said was predictable. He attempted once again to justify a full government takeover of American health care on the basis that the new law is already providing vital new insurance protections to Americans. There were the obligatory anecdotes of people who, the president says, have already been protected by these new insurance rules.

Framing what Obamacare does in this way is misleading in the extreme. For starters, despite the impression the president is trying to create, Obamacare hasn’t banned pre-existing condition clauses from insurance plans yet. That doesn’t happen until 2014. So, as of today, there are still millions of Americans with such conditions who are uninsured, and Obamacare is doing nothing for them. The new “bridge” high-risk-pool program that is intended to help those with pre-existing conditions get coverage until the “big bang” reforms of 2014 has been an abysmal failure so far. Enrollment is anemic because the program is poorly designed, with premiums that are too high and unpredictable to attract subscribers. As of last month, there were only 8,000 people signed up with the program. The president and his team have drawn many of their anecdotes of “early beneficiaries” from this incredibly small pool of people, but the truth is that this aspect of the new law is more an indictment of its failings than a proof of its virtues.

The president would like the public to think that Obamacare is mainly about new insurance rules, which is why he now calls it “health-insurance reform.” But, of course, that’s not really an accurate description of Obamacare. It’s a massively expensive government takeover of American health care. It will spend trillions, raise taxes and premiums, and lead to inferior-quality care. It will disrupt insurance coverage for millions of people. The federal government will become the choke point for all major resource-allocation decisions in the health sector.

Based on what he said last night, the president would seem to be willing to jettison just about everything else in Obamacare — the entitlement expansions, the exchanges, the Medicare cuts, the taxes, the new long-term-care insurance program — so long as new insurance rules to remove lifetime caps and allow 26-year-olds to stay on their parents’ plan are retained. Perhaps Republicans should take him up on it.

The President’s ‘Policy via Selective Anecdote,’ and Other SOTU Comments



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Tonight, according to the advance text of his State of the Union speech, the president will address health-care policy in two sections. In the first, he addresses Republicans’ efforts to repeal Obamacare:

Now, I’ve heard rumors that a few of you have some concerns about the new health care law. So let me be the first to say that anything can be improved. If you have ideas about how to improve this law by making care better or more affordable, I am eager to work with you. We can start right now by correcting a flaw in the legislation that has placed an unnecessary bookkeeping burden on small businesses.

What I’m not willing to do is go back to the days when insurance companies could deny someone coverage because of a pre-existing condition.  I’m not willing to tell James Howard, a brain cancer patient from Texas, that his treatment might not be covered. I’m not willing to tell Jim Houser, a small business owner from Oregon, that he has to go back to paying $5,000 more to cover his employees.  As we speak, this law is making prescription drugs cheaper for seniors and giving uninsured students a chance to stay on their parents’ coverage. So instead of re-fighting the battles of the last two years, let’s fix what needs fixing and move forward.

PPACA’s infamous 1099 rule, which requires individuals and businesses to fill out a separate IRS form for any vendor they spend more than $600 on in a given year, was one of the fiscal devices the law’s authors used in order to improve its CBO score. Repealing it appears to have garnered bipartisan support. If Republicans intend to offset this tax increase with spending cuts or other tax increases, it is strategically important that those offsets are unrelated to PPACA, so as to improve the CBO score for repealing the law at a later time under reconciliation rules.

As to the president’s policy-via-selective-anecdotes: (1) The incidence of insurers refusing to cover people because they have pre-existing conditions is vanishingly low; (2) Obamacare will drive health costs skyward, placing severe burdens on individuals and small businesses; (3) closing the Medicare prescription drug “donut hole” will increase wasteful Medicare spending, make entitlement reform more difficult, and increase the price of important medicines; (4) forcing all plans to cover “adult children” up to the age of 26 drives the cost of insurance up, making it less affordable for the very people who need it.

Here’s what the president had to say about entitlement reform:

The bipartisan Fiscal Commission I created last year made this crystal clear. I don’t agree with all their proposals, but they made important progress. And their conclusion is that the only way to tackle our deficit is to cut excessive spending wherever we find it – in domestic spending, defense spending, health care spending, and spending through tax breaks and loopholes.

This means further reducing health care costs, including programs like Medicare and Medicaid, which are the single biggest contributor to our long-term deficit.  Health insurance reform will slow these rising costs, which is part of why nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit. Still, I’m willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.

When it comes to health care, the Fiscal Commission accomplished very little, so the fact that the president finds himself to the left of that body is telling. Furthermore, it’s laughable for him to say that Obamacare will “slow these rising costs,” when the law includes trillions of dollars in new entitlement spending.

The one area where Republicans and the president might be able to make progress is malpractice reform, though given his disinterest in the issue during the Obamacare debate, one can’t be too optimistic.

I’ll put out a new post with comments on Paul Ryan’s response, either later tonight or tomorrow.

UPDATE: Paul Ryan has posted his prepared SOTU response. It paints in broad brush strokes (appropriate in an all-encompassing, but brief, speech):

Then the President and his party made matters even worse, by creating a new open-ended health care entitlement.

What we already know about the President’s health care law is this: Costs are going up, premiums are rising, and millions of people will lose the coverage they currently have. Job creation is being stifled by all of its taxes, penalties, mandates and fees.

Businesses and unions from around the country are asking the Obama Administration for waivers from the mandates. Washington should not be in the business of picking winners and losers. The President mentioned the need for regulatory reform to ease the burden on American businesses. We agree – and we think his health care law would be a great place to start.

Last week, House Republicans voted for a full repeal of this law, as we pledged to do, and we will work to replace it with fiscally responsible, patient-centered reforms that actually reduce costs and expand coverage.

Health care spending is driving the explosive growth of our debt. And the President’s law is accelerating our country toward bankruptcy.

Ryan makes the important point about entitlement reform: that it’s future retirees who are most at risk if we don’t tackle Medicare now:

Just take a look at what’s happening to Greece, Ireland, the United Kingdom and other nations in Europe. They didn’t act soon enough; and now their governments have been forced to impose painful austerity measures: large benefit cuts to seniors and huge tax increases on everybody.

Avik Roy is an equity research analyst at Monness, Crespi, Hardt & Co. in New York City. He blogs on health-care issues at The Apothecary.

First Draft



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This is a test of new revisions.

Let’s see if another revision gets created here.

How about another revision here?

Just Call Me ‘Liar of the Year’



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It would appear that I am the Liar of the Year.

The fact-checking journalists at PolitiFact.com gave their 2010 Lie of the Year award to the notion that Obamacare is “a government takeover of health care.” In 2009, the award to Sarah Palin’s “death panels” claim. But as I explain in my latest column for Kaiser Health News, the fact-checkers left out a few facts. Read the column to find out what PolitiFact missed. Here’s my conclusion:

From my vantage point, the evidence shows that ObamaCare is a government takeover of health care, and Sarah Palin’s “death panels” claim was essentially true. If that makes me Liar of the Year, so be it.

But another way to look at it is this: PolitiFact has now misappropriated this award for two years in a row.  Not only is each of these “lies” factually true, but — and this is more important — the people who made those statements believe them to be true, which means they fall short of the dictionary definition of a lie: “An assertion of something known or believed by the speaker to be untrue with intent to deceive.“ There is simply no factual basis — and no excuse — for calling them lies.

PolitiFact’s Lie of the Year award has proven as  conducive to civil discourse as Rep. Joe Wilson’s, R- S.C., dyspeptic “You lie!” outburst during one of President Obama’s previous addresses to Congress. Rather than continue to poison the well by dispensing another award this year, PolitiFact should just let it lie.

PolitiFact should also revisit its evaluations of those two claims.

Debating the Constitutionality of the Individual Mandate



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The Volokh Conspiracy points us to an interesting Federalist Society debate between Orin Kerr of George Washington University and Randy Barnett of Georgetown, on the constitutionality of the individual mandate.  It’s an hour and 17 minutes long, but useful to those who are interested in the issue. Enjoy:

Wasn’t Obamacare Supposed to Stop Insurance Rate Hikes?



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Supporters of Obamacare often attempt to reassure themselves by claiming that opponents of the law are ignorant and demagogic. The PPACA Pack, on the other hand, is enlightened, cerebral, and compassionate.

In reality, however, Democrats are the ones who speak most demagogically about health care. Like when the Democratic National Committee says that “insurance companies … overcharge for insurance just to boost their profits and CEO bonuses.” Indeed, the DNC went so far as to claim that Obamacare “frees Americans from the fear of insurance companies raising premiums by double digits with no recourse or accountability.” Kathleen Sebelius and the DNC would have you believe that Obamacare prevents rate hikes by cracking down on those demonic, profit-hungry insurance companies, and that repealing the law would allow insurers to once again run amok.

So, then, how to explain the news this month that Blue Shield of California was “seeking cumulative hikes of as much as 59% for tens of thousands of customers” this year? Wasn’t PPACA supposed to stop these supposedly abusive practices?

Unfortunately not. Blue Shield has stated that the new rates “meet the federal requirement that 80 percent of premiums are spent on healthcare expenses,” putting paid to the nonsensical argument that marketing expenses and CEO bonuses are driving premium increases. As Blue Shield detailed in a lengthy statement, the rate hikes correlate directly to increases in the cost of health care, including 4 percent “to cover the costs of enhanced benefits required under healthcare reform.” Despite these increases, Blue Shield expects to lose $10-20 million in 2010 and $20-30 million in 2011 on their individual plans.

New California insurance commissioner Dave Jones, in his first act in office, fired off a letter to Blue Shield, calling on the insurer to suspend its rate hike. “I wish to satisfy myself that all the pending proposed increases have been thoroughly and excessively reviewed.”

But Blue Shield of California is a not-for-profit entity “that has long advocated for universal coverage,” and the company was not cowed by Jones’ posturing. Instead, Blue Shield CEO Bruce Bodaken said the company would have its increases reviewed by an independent actuarial consultant, promising to refund Blue Shield’s policyholders with interest if the company had calculated its rate increases incorrectly.

But neither independent consultants nor press releases from politicians can change the basic facts of health costs. As Jordan Rau recently chronicled in an insightful piece for Kaiser Health News, hospitals are taking advantage of their monopoly status to charge more for their services, and insurers have no choice but to pass those increases onto their policyholders, or they would go out of business.

Indeed, Obamacare is guaranteed to increase, not decrease, underlying health costs. The law subsidizes excessive health spending, and imposes costly mandates on insurance plans that drive costs upward. Those who are genuinely concerned about rising health costs must start by repealing that law.

UPDATE: If you’re a fan of Xtranormal, you’ll enjoy this take-down of the Left’s view of health insurance:

— Avik Roy is an equity research analyst at Monness, Crespi, Hardt & Co. in New York City. He blogs on health-care issues at The Apothecary.

Two Ways to Improve the Repeal Bill



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Not that I’m trying to be a party-pooper, but there are two things that would have improved yesterday’s repeal bill (and, by implication, will improve it if and when the Senate deals with it), neither of which adds complexity to the elegant and brief bill passed by the people’s chamber.

First: The House has a new rule that bills must refer to the constitutionally enumerated power that allows Congress to legislate the matter at hand, but it does not demand the complement. This can be rectified: When a bill to repeal legislation is introduced, and is (at least partially) grounded in the idea that the original legislation was unconstitutional, the repeal bill should assert as much in the preamble. Something like this:

“Whereas the U.S. Constution does not enumerate a power to the federal government to mandate the purchase of health insurance, P.L. 111-148 and P.L. 111-152 violate the U.S. Constitution and are, therefore, intolerable acts.”

Second, naming the bill the “Repeal the Job-Killing Health-Care Law Act” was a wasted opportunity. (No, not because it invokes images of violence.) The bill repeals “Obamacare,” plain and simple. The media go to great lengths to avoid using that label, so Republicans should use it in every bill that addresses Obamacare. The “Obamacare Repeal Act” would have achieved this — and would have been much easier for the rest of us to get our mouths around.

Back in 2007, when Governor Schwarzenegger was trying to impose mandatory health insurance in California, I struggled mightily to find a label: Nothing worked — not “ArnieCare,” not “TerminatorCare,” nor even “MariaCare,” referring to Maria Shriver, whom many suspected was the real driver of the legislation.

Let’s face it, one great unearned benefit of opposing the government take-over of our access to medical services is the ability to use the president’s last name to connote the legislation negatively. It sounds even better than “HillaryCare”! I’ve given a lot of speeches on this legislation, and the auditory aesthetics of the word “Obamacare,” when spoken by and to its critics, is undeniable. It just rolls off the tongue. (“Romneycare” is a close second, of course, and I’m glad of that, too — because that “reform” has had significant negative consequences for costs of and access to care in Massachusetts.)

Health Care’s Known Unknowns



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The House passage of the repeal of the Democrats’ unipartisan approach to health care is a good indication of the correctable nature of legislative errors. Unfortunately, we know that House passage of the repeal, while important, is not enough, and that Sen. Harry Reid has pledged to prevent the repeal effort from coming to the Senate floor. None of this should be news to anyone. We have known for months that the House would bring up and pass the repeal, and that it would die for now in the Senate due to Democratic obstructionism. What we don’t know, and cannot know, is what happens next. The Republicans have learned that they can win elections on the health-care issue, that they can win a majority vote in the U.S. House in favor of repeal, and that they need to maintain a focus on the flaws of the health-care law if they are to maintain support among the populace for repeal. They have also learned that Democrats will pull out all the stops in opposing the Republican effort, including politicizing HHS and having one of their members comparing Republicans to Nazis.

We do not yet know how the Republicans will use their majoritarian powers in the House to keep up the pressure on the flawed health-care law, via investigations, hearings, updates on implementation efforts, and funding limitations on executive-branch activities. We also do not know how the courts will rule on the lawsuit questioning the constitutionality of the individual mandate, although it is significant that a majority of states have signed on to the suit.

And we do not know how the Republicans will handle the “replace” piece of repeal and replace, whether they will come up with a credible alternative using Republican ideas to fix our flawed health-care system.

Answers to all of these questions will become clearer in the months ahead. For now, though, we have learned that the House Republican majority will follow through on their promises, and that is perhaps the most important lesson of all.

Putting the Pressure on Harry Reid



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Brent Bozell tonight, encouraging people to call their senators: 

 Harry Reid is single-handedly holding the will of the people hostage by suggesting he will not bring ObamaCare repeal to the floor for an up or down vote.  Every Senator must publicly call on the Majority Leader to bring this to the floor and tell the American people how they would vote on repeal.  Senator Reid may feel he can ignore us for six years but his colleagues know they cannot.  We will be listening carefully and watching what they do.  This will clearly be an issue in the next cycle and we will not forget.

Three Things We’ve Learned from Repeal



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This wasn’t the way the Democrats saw things playing out.

After Obamacare was passed (so we could find out what was in it), people were supposed to learn to love it. The House of Representatives certainly wasn’t supposed to pass a bill to repeal it — especially not less than ten months after that glorious day in March when the Democrats effectively told the American people that, when they wanted their opinion, they’d ask for it. Yet all of this has now happened.

The repeal vote confirmed — if there was still any room for doubt — that Republicans and Democrats alike should stop believing the Democrats and their allies when they confidently assert that Obamacare is here to stay; that statism can only advance, not recede; that, regardless of what the people think they want, there’s nothing that anybody can do about this.

The vote also conveyed at least three other things:

1. Repeal is far more popular than Obamacare ever was. Obamacare barely squeaked through the legislative process. In the House, it passed by a margin of seven votes and two percentage points. Repeal passed with ease by 56 votes and twelve percentage points. Moreover, repeal was a reflection of popular will, not a circumvention of it.

2. Very few Democratic representatives genuinely oppose Obamacare. If you opposed Obamacare in March, as 13 current Democrats did, why would you now reverse course and support the legislation — especially after an intervening election that didn’t go so well for your party? It’s hard to imagine what motivation could lead to such a decision, yet ten of the 13 Democrats who had previously, somewhat bravely opposed Obamacare decided this time around to cast their votes in support of its continuation. American voters who had been on the fence about sending a Democrat, even one who had voted against Obamacare, back to Congress were surely taking notice.

Dan Boren (D., Okla.), Mike Ross (D., Ark.), and Mike McIntyre (D., N.C.) are the exceptions to this rule. These three, who voted for repeal, have shown themselves to be true opponents of Obamacare, and they deserve acclaim.

3. This will set up a battle royale in 2012. On March 21, 2010, the day that the House passed Obamacare, Rep. Paul Ryan (R., Wis.) declared, “This moment may mark a temporary conclusion of the health-care debate, but its place in history has not yet been decided. If this passes, the quest to reclaim the American idea is not over. The fight to reapply our founding principles is not finished. It is just a steeper hill to climb, and it is a climb that we will make!”

Several major steps in that climb have now been completed: promoting public knowledge of Obamacare’s almost endless shortcomings, winning the election of 2010, and passing a repeal bill through the House. Several more are still to come. But, in the end, as has been evident all along to anyone who’s been paying attention, this debate will not be settled by any entity other than the one that the Democrats were so determined to defy in the first place: the American citizenry.

Everything now points to the presidential election of 2012. Unlike President Clinton with HillaryCare, President Obama can’t escape Obamacare. Unless the Republicans are foolish enough to send him partial-repeal legislation that he can sign, he is stuck with a horribly unpopular partisan monstrosity that essentially bears his name. He can tack to the middle on everything else, but he cannot — without the Republicans’ help — tack to the middle on Obamacare. He cannot — unless the Republicans let him — make it merely somewhat less terrible and thereby attempt to save it. Apart from the prospect of Republicans playing right into his hands, only three possibilities remain: public opinion must shift; Obama must disavow Obamacare; or he must go down with it.

He wanted it this way. He wanted Obamacare to be “comprehensive legislation,” passed without compromise and without input from the minority party. The fate of his presidency is now tied to whether or not he can convince people that they want this; that they want a government takeover of health care, an unprecedented consolidation of power in Washington, and a colossally expensive new entitlement when we are already $14 trillion in debt. More than anything else, the 2012 presidential election will hinge on these questions.

Republicans have pushed repeal through the House. Now, to push repeal to its conclusion, they must win the presidency. It will be a lot easier to win with someone like Ryan at the top of the ticket, someone who’s been involved in the battles over Obamacare, who knows his stuff inside and out, and who can debate Obama and win. But whoever the nominee is, November 6, 2012, will decide the fate of Obama, the fate of Obamacare, and, to some significant degree, the fate of a nation that remains, as Hamilton wrote in Federalist No. 1, “in many respects the most interesting in the world.”

Tonight’s Repeal Vote



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Many members of Congress were elected in 2010 precisely because they promised to vote to repeal Obamacare. They have done their duty to their constituents, kept their promise — in sharp contrast to the president and his allies in Congress, who promised not to raise middle-class taxes or threaten the existing health-insurance coverage of millions of Americans. In keeping their promise they have helped to restore public trust. 

 – Robert Moffit is a senior fellow at the Heritage Foundation. 

Emily’s List Makes Its Pitch, Leaves Some Things Out



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Emily’s List is urging its supporters to contact members of Congress and tell them to oppose repealing Obamacare. In her e-mail, president Stephanie Schriock claims that “Boehner and the Republicans have grievously misled the public about health care reform from day one.” Yet her e-mail contains a fair bit of misleading information of its own.

For example, she claims that repeal would mean “$230 billion added to the deficit.” Yuval Levin, among others, has dissected the absurd claim that Obamacare somehow saves taxpayers money. At best, from a deficit perspective, the new law reduces the deficit by raking in enough new tax revenue and cutting Medicare enough to offset all the new spending (in which case taxpayers pay more for a significantly expanded government). But it’s highly unlikely that all the new taxes and Medicare cuts contained in Obamacare will be sufficient to cover the law’s explosion of new spending. The only way Democrats could manufacture positive scores from the Congressional Budget Office was by gaming the scoring system.

She writes that Obamacare benefits seniors and reduces the “donut hole” in Medicare’s prescription-drug benefit, but ignores how the law eliminates popular Medicare programs and will attempt to squeeze hundreds of billions of dollars from Medicare — which will likely result in less access to quality care — to pay for the broad new entitlement.

Schriock implicitly applauds the regulations that let “children” stay on their parents’ insurance until age 26 and limit insurance companies’ ability to charge different premiums to different people based on factors like gender, but she ignores the very real costs associated with these provisions. Sure, some people benefit from these new mandates, but the costs of those benefits are shifted to everyone else. That’s why premiums are expected to rise faster as Obamacare’s mandates kick in.

Schriock makes it sound as though opponents of Obamacare rejoice at the idea of increasing the ranks of the uninsured. In reality, the reason so many Americans support repeal is that they know there are ways to better reform our health-care system without ceding so much control to the government. Americans don’t want government dictating the type of insurance they have to have. They don’t want to be pushed from their private insurance onto government rolls. They want jobs, and they recognize that our current unemployment problem will be exacerbated by a law that will drive up employment costs.

Schriock may succeed in convincing her already-liberal members to call their congressmen, but these one-sided arguments aren’t going to convince the majority of Americans, who want this counterproductive law repealed.

Carrie L. Lukas is executive director of the Independent Women’s Forum.

‘Pull It Out by the Roots’



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The Republicans in the House commenced the debate on repealing Obamacare by expressing their view that they are doing what the voters have asked of them. Following the November elections, a Wall Street Journal poll reported that 84 percent of voters said Obamacare affected their vote, and Rasmussen polls continue to show that about 60 percent of voters favor repeal.

Obamacare is not going to provide universal coverage, nor will it bend the cost curve down. By 2019, 23 million Americans will still be uninsured. The average family will see their premiums increase by $2,100, not decrease by $2,500, as President Obama promised. Deficits will go up, jobs will be lost, taxes will rise, and ultimately care will be rationed. The American public knows this and therefore supports repeal.

The president, knowing that he faces reelection in 2012, has said, “I’m willing and eager to work with Democrats and Republicans to improve the Affordable Care Act.” However, he went on to say, “We can’t go backward. Americans deserve the security of knowing that insurance companies can’t deny, cap, or drop their coverage when they need it most, while taking meaningful steps to curb runaway health-care costs.” The president is proud of this legislation, and it’s unlikely that he would be willing to throw it out and support “repeal and replace.”

Rep. Steve King of Iowa said it well: “Our guaranteed rights that come in our Constitution are diminished by the federal government deciding what health care we will have, what health insurance policies we’ll be able to buy, and what tests we’ll be able to take, and which doctors we’ll be able to go to. . . . It’s a cancer that eats away at us, and we’ve got to repeal it completely, pull it out by the roots so it doesn’t grow back again.”

— Sally C. Pipes is president and CEO of the Pacific Research Institute. Her latest book is The Truth About Obamacare.

Politicizing HHS, ‘Effective Repeal,’ and a Two-Year Window for Bipartisanship



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As the House of Representatives prepares to vote on repeal of President Obama’s health-care law, the Department of Health and Human Services has come out with a report saying that nearly half of all Americans have preexisting conditions that could make it hard for them to get health coverage. When I served at HHS, we tended to be careful about releasing reports that were this politically charged, lest we be accused of politicizing the agency. HHS’s credibility is an invaluable resource, especially since Americans are so reliant on HHS in case of a health emergency, such as a flu pandemic or bioterror attack.

Leaving aside the report’s curious timing, the issue of our problematic health system remains. The bill that the Democrats rammed through last year will not fix the myriad problems of our health system — over 20 million Americans will remain uninsured in 2019, and insurance premiums will rise faster than they would have without the bill. At the same time, the new law will cause other problems in the system in terms of overburdening Medicaid and limiting our spending flexibility in the future.

The GOP argument is not that our health system is fine as is. It most certainly is not. What the Republicans are saying is that the Democratic approach is flawed, uni-partisan, and in the process of being rejected by the body politic. A report in yesterday’s Politico finds that a majority of states have now signed on to the lawsuit questioning the bill’s constitutionality. This is a perfect demonstration of the concept of “effective repeal” that I laid out in this month’s Commentary. If a majority of states not only question the bill but reject it and refuse to implement it, the bill will not be sustainable.

The Republicans want to wipe the slate clean and come up with a new approach. Given that the Democrats control the Senate now but likely will not in two years, this Congress may present the best chance to come up with a bipartisan approach that both sides can live with. Unless, that is, the Democrats want to take their chances with an all-Republican Congress after 2012.

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