Obamacare

The President’s Health Care Fables

by Hans Bader on July 16, 2011 · 1 comment

in Healthcare, Politics as Usual, Regulation, Sanctimony, Zeitgeist

The president pushed the health care bill through Congress using a series of fables — health insurance horror stories that turned out to be false. Michelle Malkin chronicles just a few of the false anecdotes told by President Obama in making the case for Obamacare. The most famous was the false claim that his mother’s health insurer tried to avoid paying for his dying mother’s treatment based on a pre-existing condition — when it in fact did no such thing and paid her benefits in full. (As the Washington Post notes, Obama’s misleading stories about his mother’s final months “often spoke as if he had been at his mother’s side,” even though he actually failed to visit her at all in the months leading up to her death from cancer.)

As Malkin notes, Obama’s “sham-ecdote” about his mother “is just the latest entry in an ever-expanding catalogue of Obamacare fables,” which include the following:

– Otto Raddatz. In 2009, Obama publicized the plight of this Illinois cancer patient, who supposedly died after he was dropped from his Fortis/Assurant Health insurance plan when his insurer discovered an unreported gallstone the patient hadn’t known about. The truth? He got the treatment he needed in 2005 and lived for nearly four more years.

– Robin Beaton. Also in 2009, Obama claimed Beaton — a breast cancer patient — lost her insurance after “she forgot to declare a case of acne.” In fact, she failed to disclose a previous heart condition and did not list her weight accurately, but had her insurance restored anyway after intense public lobbying.”

– Natoma Canfield. The White House made the Ohio cancer patient a poster child for Obamacare in 2010 after she wrote a letter complaining about skyrocketing premiums and the prospect of losing her home. After Obama gave Canfield a shout-out at a health care rally in Strongsville, Ohio, and promised to control costs, officials at the renowned Cleveland Clinic, which is treating her, made clear that they would “not put a lien on her home” and that she was eligible for a wide variety of state aid and private charity care.

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Yet Another Way That Obamacare Is Unconstitutional: The Arguments in Florida v. HHS

by Hans Bader on June 10, 2011

in Healthcare, Legal, Nanny State, Personal Liberty, Regulation

In the Washington Examiner, I discuss the brief I recently filed on behalf of Minnesota and North Carolina legislators challenging Obamacare, which highlights a lesser-known constitutional infirmity that plagues the massive new health care law passed in 2010: its Medicaid provisions violate limits on Congress’s power under the Spending Clause. Reason‘s Peter Suderman discusses the recent oral arguments before the United States Court of Appeals for the Eleventh Circuit in the challenge to Obamacare in Florida v. U.S. Department of Health and Human Services, the case in which we filed our brief, and how a judge viewed a related legal argument under the Spending Clause as being “powerful.” A Florida trial judge struck down Obamacare last year on a different ground: that its individual mandate violates limits on Congress’ power under the Constitution’s Commerce Clause. I previously explained why the individual mandate is unconstitutional.

200 More Obamacare Waivers Granted

by Hans Bader on May 24, 2011

in Health and Illness, Healthcare, Legal, Personal Liberty, Regulation

204 more waivers of Obamacare’s onerous mandates have been issued over the past month, bringing the total to at least 1,372. As I explain in the Washington Examiner, the waivers are going to the biggest supporters of Obamacare, and allies of the Obama administration. Meanwhile, other, less politically-connected applicants have had their requests for waivers rejected. AARP, whose support for Obamacare mystified many seniors, has now received lucrative exemptions worth millions that put it at a competitive advantage over its rivals in the health insurance market.

Columbia University law professor Philip Hamburger argues that the arbitrary waiver process makes Obamacare unconstitutional (see his National Review columns on the subject here, here, and here). Moreover, the unpredictable and standardless nature of the waivers are one way in which Obamacare violates the clear-statement rule contained in the Supreme Court’s Spending-Clause decisions, argue the leaders of the Minnesota and North Carolina legislatures. Obamacare also contains racial discrimination and race-based preferences that were criticized by the U.S. Commission on Civil Rights.

Thanks to Obamacare, 22,000 seniors lost their high-quality healthcare plan in New England. AT&T, Caterpillar, John Deere, and Verizon reported massive cost increases, while insurance premiums rose massively in some states. The new healthcare law also harms medical innovation.

CEI Files Another Amicus Brief Challenging Obamacare

by Hans Bader on May 14, 2011

in Features, Healthcare, Legal, Personal Liberty, Regulation

Post image for CEI Files Another Amicus Brief Challenging Obamacare

Debate over the constitutionality of the massive health care law passed in 2010 has focused on its “individual mandate”: the requirement that individuals buy health insurance, a requirement that the law’s defenders claim is authorized by Congress’s power to regulate interstate commerce. (I took issue with that argument here.)

But the individual mandate is not the only provision in Obamacare that violates the Constitution. It also violates the Tenth Amendment and limits on Congressional power under the Constitution’s Spending Clause, through its huge expansion of Medicaid, which imposes unfunded mandates on state governments. Florida and other states argue that Obamacare’s Medicaid expansion provisions are unconstitutionally coercive in violation of the Tenth Amendment under the principles laid down by the Supreme Court’s decisions in United States v. Butler (1936) and South Dakota v. Dole (1987).

On May 11, I filed an amicus brief in support of Florida’s challenge on behalf of a majority of Minnesota’s State House of Representatives and the leaders of the North Carolina and Minnesota legislatures. That brief explains how the health care law violates the “clear statement” rule in the Supreme Court’s Pennhurst decision by imposing vague, indefinite, open-ended additional burdens on states, including massive, unpredictable costs in the billions of dollars. Federal officials have issued over a thousand waivers of burdensome rules imposed by Obamacare, mostly to unions or other entities with political connections.  Meanwhile, HHS officials have vastly expanded the reach of other burdensome provisions of the law. For example, they have largely nullified the law’s grandfather clause, which was put into the law to keep Obama’s broken promise to let you keep your existing health insurance if you like it. They also issued a rule rewarding end-of-life counseling, even though such a provision was removed from the bill prior to passage after the so-called “death panels” controversy.

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Obamacare’s Costs Rise, as Obama Backers Get Preferential Treatment

by Hans Bader on March 7, 2011 · 1 comment

in Economy, Features, Healthcare, Politics as Usual, Regulation

Post image for Obamacare’s Costs Rise, as Obama Backers Get Preferential Treatment

The cost of Obamacare continues to explode and exceed its sponsors’ predictions. HHS Secretary Kathleen Sebelius has now admitted to double-counting in the Obamacare budget, using the same $500 billion twice, first “to sustain” the existing Medicare program and then to “pay for” brand new Obamacare entitlements. Last year, the CBO hiked its estimate of Obamacare’s costs by $115 billion, even as many of its promised benefits failed to materialize.

Obamacare was supposed to save patients money by curbing insurance company profits and expanding state Medicaid programs to cover millions more people. (This expansion was criticized by state officials, including a few Democrats such as former Tennessee Gov. Phil Bredesen, who called it “the mother of all unfunded mandates.” Bredesen’s health care legal advisor concluded that Obamacare’s Medicaid-expansion provisions were unconstitutional.)

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PolitiFact: Obama Made False Claims About Health Care, Taxes, and Court Rulings

by Hans Bader on February 11, 2011 · 1 comment

in Economy, Employment, Healthcare, Legal, Regulation

PolitiFact, which earlier took Obama’s side about whether Obamacare is a government takeover of  health care, now is criticizing President Obama for making false claims about health care and taxes. In a pre–Super Bowl interview with Bill O’Reilly, Obama made the false claim that 12 judges have rejected “the notion that the health care law was unconstitutional.” As PolitiFact notes, only “four judges have ruled on the merits of various cases challenging the health care law. Two ruled in favor of the administration and two against.” (Earlier, we explained why the recent ruling by a Florida judge striking down Obamacare was not judicial activism.)

Obama’s problem with numbers isn’t new; during the 2008 campaign, he claimed that he had been to “57 states.” So he may not have been deliberately lying about this.

But as John Kartch noted earlier, Obama made a far more flagrantly false claim when he insisted to Bill O’Reilly that “I didn’t raise taxes once” while president. It’s hard to view that claim as anything other than a lie. Obama has signed into law a long list of tax increases on consumers and investors, which Kartch lists here. That includes “two dozen new or higher taxes” just in the health care law alone.

Some of the biggest of Obama’s tax increases haven’t gone into effect yet, and won’t go into effect until after the 2012 election, such as the new 3.8 percent tax it levies on many of America’s investors. As PolitiFact noted in debunking Obama’s claim that he hadn’t raised taxes, “starting in 2013,” “Individuals who make more than $200,000 and couples that make more than $250,000 will see additional Medicare taxes of 0.9 percent. They will also, for the first time, have to pay Medicare taxes on their investment income at a 3.8 percent rate.”

By contrast, an excise tax increase Obama signed in 2009 went into effect “soon after” he took “office,” and some of the tax increases in the health-care law that affect middle-class patients and medical-device manufacturers are already in effect.

For the moment, Americans’ taxes are not that high, because many of the tax increases already signed into law have yet to kick in. But appearances are deceiving, for as Kartch notes, “100% of the tax increases Obama signed into law are … permanent,” while “over 90% of the dollar value of the tax cuts Obama signed into law are only temporary.”

I earlier discussed why PolitiFact was wrong to accept the Obama administration’s claim that Obamacare was not a government takeover of the health care system.

While it dramatically increases regulation and red tape, Obamacare has done little to control costs; health insurance premiums have risen substantially in many states as a result of its passage, such as a 47 percent increase for some policyholders in Connecticut. Obamacare contains provisions that are harmful to the economy and medical innovation. Earlier, I discussed some of the bad effects of Obamacare on patients, employers, consumers, and the insurance market.

The End of the Imaginary Age of Civility

by Hans Bader on February 7, 2011 · 1 comment

in Politics as Usual, Sanctimony, Zeitgeist

After the Tucson shooting, liberals lectured America, and especially conservatives, on the alleged need for more civility (even though there was no evidence that the shooter was influenced by any uncivil political rhetoric, and the shooter was not a conservative).

But the new era of civility didn’t last long, if it ever existed at all.  Some of the very people who loudly demanded civility from others quickly returned to their own deeply-ingrained habit of trash talk and hate-filled vitriol.

Liberal actor and activist Richard Dreyfuss set up a project to promote “civility in political discourse” after the shootings.  When he was asked about a liberal radio host’s yearning for the death of the “dirtbag” Dick Cheney, he praised it as “beautifully phrased,” endorsing an intemperate diatribe that also branded Cheney as an “enemy of the country,” and a “freakin’ loser.”

The liberal lobbying group Common Cause, which had hectored America about the need for civility, helped organize a demonstration outside a conference in California where participants called for the lynching of Supreme Court Justice Clarence Thomas.

Liberal Congressman Steve Cohen (D-Tenn.) helped usher in the new Age of Civility by likening Republicans to Nazis like Joseph Goebbels.

The Washington Post and New York Times enlisted two prominent practitioners of trash talk to lecture America about the need for civility. Al Sharpton preached about the “dangers of inflammatory rhetoric” in the Washington Post, despite his own past history of helping incite a deadly race riot, and a court judgment against him for defamation arising out of the Tawana Brawley hate-crime hoax.   Ex-congressman Paul Kanjorski (D) lectured about the need for “civility” in the Times, despite his October 2010 statement that Florida governor Rick Scott (R) should be shot.

The Post op-ed writers who endorsed the calls for civility then paved the way for yet more civility, both by branding conservatives as spiteful lobotomy patients, and by insinuating that opponents of gun control are collectively guilty of subversion and nativism, writing that “the descriptions of President Obama as a ‘tyrant,’ the intimations that he is ‘alien’ and the suggestions that his presidency is illegitimate are essential to the core rationale for resisting any restrictions on firearms.”

Even as it prattled about the need for civility, the New York Times editorial board directed readers to its earlier diatribe that baselessly accused Republicans, the Tea Party, and conservative media of creating a climate of “division” and “anger” that made the Tucson shootings possible. The Times did so even though a column by its own David Brooks had earlier pointed out that there was “no evidence” that the shooter was influenced in any way by conservatives.

While the Post and the Times don’t seem at all concerned about the death threats recently made by liberal activists against Republican lawmakers in Florida and in Wisconsin, they are very up in arms about factual references to the health care law as being “job-killing”  (a claim based partly on Congressional Budget Office findings that Obamacare would reduce the size of the American labor force by perhaps 800,000 people). The Post‘s Dana Milbank seems to think that criticizing the killing of an inanimate object (like a job) is violent rhetoric, and he recently wrote a long, sanctimonious editorial devoted almost entirely to the alleged incivility of referring to Obamacare as “job-killing,” which he regards as rhetorical “poison.”

Since the big-government policies they favor typically wipe out jobs  (like the $800 billion stimulus package, which wiped out jobs in America’s export sector, while subsidizing foreign green jobs, and which the CBO admitted would shrink the size of the U.S. economy in “the long run“), it’s not surprising that liberal journalists like Milbank would want to squelch discussion of “job-killing” policies.

Ruling Striking Down Health Care Law Was Not “Judicial Activism”

by Hans Bader on February 3, 2011 · 2 comments

in Economy, Healthcare, Legal, Regulation

On Monday, a federal judge in Florida struck down Obamacare as unconstitutional. Judge Vinson concluded that the law’s cornerstone — a requirement that individuals buy health insurance — exceeded Congress’s power under the Interstate Commerce Clause, and Supreme Court rulings such as United States v. Morrison that limit that power to the regulation of “economic activities,” not inactivity like refusals to buy a product. He struck down the entire law, not just the individual mandate. He did this for two reasons. First, the law lacked a severability clause (a clause declaring that any unconstitutional provision should be severed from the law rather than striking down the law as a whole), even though such clauses are typically found in federal laws. Second, the individual mandate couldn’t logically be severed from the rest of the law, since Congress deemed it essential to the law’s overarching goals, and it was intertwined with the law’s other provisions.

Liberal commentators are up in arms about the decision in Florida v. HHS, to the point of hurling angry falsehoods about it. Writing in the Washington Post, Ezra Klein even claimed that the judge admitted his own ruling was wrong: “Vinson concedes that his position is activist in the extreme and a break from the court’s usual preference for limited rulings. . .”

The judge admitted nothing of the kind. As as a prominent lawyer notes, “Klein just made that up.”

There is nothing unprecedented about striking down an entire law that contains an unconstitutional provision, even when the law — unlike Obamacare — contains a severability clause designed to prevent that from happening.  (Here are some rulings in which courts, including the Supreme Court, did just that: See, e.g., Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 764–65 (1986); Carter v. Carter Coal Co., 298 U.S. 238 (1936); American Booksellers v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985), aff’d, 475 U.S. 1001 (1986); EEOC v. CBS, 743 F.2d 969, 973 (2d Cir. 1984); and Hotel Employees v. Davis, 981 P.2d 990, 1010 (Cal. 1999).)

And Obamacare lacked a severability clause, which was an additional reason to strike down the whole law. Klein ignored the fact that “the Democrats omitted a severability clause from the health care reform statute” for a reason. Judge Vinson pointed out the importance of the absence of such a provision:

The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law.  . . . the severability clause was intentionally left out of the Act. The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming. . . even before the Act became law, several states had passed statutes declaring the individual mandate unconstitutional and purporting to exempt their residents from it; and Congress’ own attorneys in the CRS had basically advised that the challenges might well have legal merit as it was “unclear” if the individual mandate had “solid constitutional foundation.” . . . In light of the foregoing, 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.

As Judge Vinson observed, the government’s own lawyers admitted that the statute’s entire scheme of insurance regulation would fall without the individual mandate, cutting against severability:

Moreover, the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.

Earlier, a judge in Virginia declared Obamacare’s individual mandate unconstitutional, but declined to strike down the rest of the law, in Virginia v. Sebelius.

As I noted in discussing the Virginia ruling in The Washington Examiner: “To justify preserving the rest of the law, the judge” in the Virginia case “cited a 2010 Supreme Court ruling,”Free Enterprise Fund v. PCAOB, “that invalidated part of a law — but kept the rest of it in force. But that case involved a law passed almost unanimously by Congress, which would have passed it even without the challenged provision. Obamacare is totally different. It was barely passed by a divided Congress, but only as a package. Supporters admitted that the unconstitutional part of it — the insurance mandate — was the law’s heart. . .” In short, Obamacare’s individual mandate is not “volitionally severable,” as case law requires.

Moreover, the individual mandate is not the only provision in Obamacare that violates the Constitution (although it was the only violation found by Judge Vinson). In my amicus brief in the Florida case for Governors Tim Pawlenty and Donald L. Carcieri, I explained how Obamacare’s Medicaid impositions violate the Tenth Amendment by ignoring constraints on Congress’s power under the Spending Clause (a so-called Pennhurst argument.)

Regardless of whether it is constitutional, Obamacare is also harmful to the economy, medical innovation, and the healthcare system. Earlier, I discussed some of the bad effects of Obamacare on patients, employers, consumers, and the insurance market.

If Obamacare Is Repealed, Conventional Wisdom is Defeated

by Lee Doren on January 31, 2011

in Legal

After Obamacare was passed into law, those who articulated conventional wisdom argued that “repeal” would be impossible. Instead, we heard that the best anyone could hope for is that sections the law would be reformed. We also were told that the public would totally reject “taking away” healthcare benefits from those who just received them after the law’s passage. A clear warning was sent to Obamacare opponents to move slowly.

Originally, the pragmatists seemed to have history on their side. There is little precedent for an enormous government entitlement being scrapped, and George W. Bush learned how difficult it was to reform an entitlement like Social Security. Overall, politicians prefer to buy votes with other people’s money.

However, a federal judge in Florida today struck down Obamacare, and according to Senator Jim DeMint, all Republican Senators have cosponsored a bill to repeal Obamacare S.192. This comes just a few weeks after the House of Representatives voted to repeal the law, placing the momentum clearly on the side of repeal.

If repeal is ultimately successful, it will not just be a temporary win for small government libertarians. Instead, it will likely galvanize many proponents of limited government to throw conventional wisdom out the window and fight together.

Moreover, if Obamacare is repealed, its ramifications will likely extend beyond Obamacare itself. It would mean that all entitlements are on the table when future budget cuts are proposed, and it will create the precedent necessary to give confidence to those who want to reject the conventional wisdom.

Yes, Obamacare is a Government Takeover of the Health Care System

by Hans Bader on January 21, 2011

in Healthcare, Personal Liberty, Regulation

In Tuesday’s Washington Post, Glenn Kessler looked at Republican claims about Obamacare, such as the claim that it “is a ‘government takeover’ of the health care system.” He said that claim was “not true,” and approvingly cited PolitiFact’s controversial claim that this was the ‘2010 lie of the year.’” (He didn’t mention that PolitiFact’s claim was rebutted by newspapers like the Wall Street Journal, or the president’s own prediction that his health care plan would eventually lead to a government-run “single-payer” health care system.)

PolitiFact based its claim that Obamacare will not lead to a government takeover of health care on the false contention that Obamacare is not like European socialized medicine because the “European approach” is “where the government owns the hospitals and the doctors are public employees.” But that was a straw man argument, since the government does not own all the hospitals or employ most of the doctors even in many European nations long run by socialist parties.

France’s universal health care system is a classic example of the “European approach.” But even there, “doctors and other health care professionals are mostly self-employed,” especially general practitioners,” including all the physicians who have ever treated my daughter, a French citizen. Nor does the government own all the hospitals. For example, the private sector there has “half of all surgical beds.” Moreover, 92.2 percent of all French people purchase additional private insurance. When my father-in-law, a socialist trade unionist, recuperated from his quadruple bypass, he did so at a private convalescent home, using his supplemental private health insurance policy. Nonetheless, given its government’s dominant role in funding and supervising the health care system, France is commonly described as having socialized medicine.Moreover, the government’s share of healthcare spending is already higher in America than in various foreign countries. As a health care economist noted a few years ago, “the Swiss government only pays for 24.9% of health care costs (compared with 44.7% in the U.S.).” (PolitiFact itself had admitted that the government’s share of health care spending was already at 46 percent, and other estimates range up to 55 percent, if you add together state and federal spending.) Switzerland, not the United States, is the “country with highest annual out-of-pocket household spending on health.”

Obamacare will greatly increase the government’s share of health care spending by radically expanding state Medicaid programs to cover 16 million more people, resulting in the government paying for the lion’s share of health care spending in America. That is plausibly viewed as a government takeover.

Moreover, our health care system will become “government-run” under Obamacare in important ways. Obamacare imposes onerous government rules on our health care system, creating much more red tape than exists in many European countries, and turning health insurers into tightly-controlled public utilities. It will also spawn a potentially vast wave of lawsuits against state governments and private employee-benefit plans.

As a Wall Street Journal reader argued in criticizing PolitiFact, under Obamacare, government control is pervasive: “Government defines what health insurance is. Government defines what ‘minimum essential coverage’ is. Government forces everyone to buy one of four varieties of overpriced, low-value health insurance. . . .Congress establishes 159 government agencies to run the new health-care system. The government grants new powers to the Secretary of Health and Human Services, who will ‘deem,’ ‘create,’ ‘define,’ ‘determine,’ ‘approve,’ ‘disapprove’ and otherwise dictate everything about health care in America. The government takes away the power of individuals to appeal bad decisions by the secretary to the courts. The government penalizes doctors who don’t . . . follow cookbook medicine guidelines while expanding rationing powers of government and the insurance companies that it now effectively controls.”

As another Wall Street Journal reader noted, the fact that Obamacare “requires 15,000 to 18,000 additional IRS agents for implementation” is another sign of expanding government control. (An estimated 16,500 IRS agents will be required to implement the health care’s law requirements – the “biggest expansion of the IRS since World War II”).

The American people see Obamacare as a government takeover of health care, although not all view that as a bad thing. PolitiFact itself admits that “53 percent of respondents in a Bloomberg poll said they agreed that ‘the current proposal to overhaul health care amounts to a government takeover.’”

(While it dramatically increases regulation and red tape, the health care law has done little to control costs; health insurance premiums have risen substantially in many states as a result of its passage, such as a 47 percent increase for some policyholders in Connecticut.)

At best, PolitiFact’s claim that the government takeover of health care is a “lie” is as silly as saying it’s a lie to call a glass that’s half-empty “half-full.”

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