Archive for the ‘Heath Care’ Category

Halbig and King, a response to Ziff Blog

August 2, 2014

A left-wing blogger named David Ziff wrote some intelligent commentary on Halbig, and the poor quality of the left’s response.  However, he also wrote the following:

It’s not like we don’t have good textual and contextual arguments on the left! For one, read the Court of Appeals decision in King v. Burwell starting on page 15.

I made the following comment.  Here’s I’ll do it with formatting 🙂

If you’re resting your hopes on the King Court, you’re going to be very disappointed.  First, let’s consider this from the 4th Circuit Opinion:

Section 1321(c) provides that if a state fails to establish an Exchange by January 1, 2014, the Secretary “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” (emphasis added). The defendants’ position is that the term “such Exchange” refers to a state Exchange that is set up and operated by HHS. In other words, the statute mandates the existence of state Exchanges, but directs HHS to establish such Exchanges when the states fail to do so themselves. In the absence of state action, the federal government is required to step in and create, by definition, “an American Health Benefit Exchange established under [§] 1311” on behalf of the state.

This is really pathetic.  The text says “enrolled in through an Exchange established by the State under [§]1311 of the [Act].”  “By”  Not “on behalf of”.

Second, there’s this, from Halbig (pages 18 – 20):

The dissent [and the 4th Circuit in King] attempts to supply this missing equivalency by pointing to section 1311(d)(1), which provides: “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” 42 U.S.C. § 18031(d)(1). According to the dissent, (d)(1) means that an Exchange established under section 1311 is, by definition, established by a state. Therefore, the dissent argues, because federal Exchanges are established under section 1311, they too, by definition, are established by a state.
The premise that (d)(1) is definitional, however, does not survive examination of (d)(1)’s context and the ACA’s structure. The other provisions of section 1311(d) are operational requirements, setting forth what Exchanges must (or, in some cases, may) do. See generally 42 U.S.C. § 18031(d)(2)-(7) (listing “[r]equirements”). Read in keeping with that theme, (d)(1) would simply require that an Exchange operate as either a governmental agency or nonprofit entity. But the dissent would have us construe (d)(1) differently. In its view, (d)(1) plays a definitional role unique among section 1311(d)’s otherwise operational provisions, creating a legal fiction that any Exchange is, by definition, established by a state, even when, as a matter of fact, it is not. That reading, however, would render (d)(1) the odd man out twice over: both within section 1311(d) and among the ACA’s other definitional provisions, which, unlike (d)(1), employ the (unmistakably definitional) formula of “The term ‘X’ means . . . .” See, e.g., 42 U.S.C. §§ 300gg-91, 18024; see also 26 U.S.C. § 4980H(c).
The dissent’s reading would also require us to overlook the fact that section 1311(d) would be a strange place for Congress to have buried such a legal fiction. Section 1311, after all, concerns Exchanges that are established by states in fact; the legal fiction the dissent urges would matter only to Exchanges established by the federal government. To accept the dissent’s construction would therefore transform (d)(1) into the proverbial elephant in the mousehole—the “ancillary provision[]” that “alter[s] the fundamental details of a regulatory scheme.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). The Supreme Court has repeatedly held that Congress does not legislate in this manner, see id.; accord Gonzales v. Oregon, 546 U.S. 243, 267 (2006), and we see no evidence that it did so here. Indeed, we are particularly loath to accept the dissent’s construction given that there are far more natural locations to place this fiction, such as section 1321 or the provision defining the term “Exchange,” 42 U.S.C. § 300gg-91(d)(21).

Sorry, but the law was written as Gruber was claiming it was written back in 2012: The States would be forced to set up Exchanges by the threat that they would get no subsides.  The threat didn’t work, the gamble failed.  You want that changed?  Then you’re going to have to negotiate with Republicans, and give up a lot.  That’s what happens when you screw up.

A Federal Government of Limited Powers

April 1, 2012

Over at Volokh, several commenters have been whining that it’s a violation of precedent for the Supreme Court to reject a government power (such as the individual mandate) just because there’s no “limiting principle” that would accept that power, but deny the Federal Government other powers.  Glenn Reynolds article in the Examiner today effectively rebuts that, with a quote from Lopez (the decision that overturned the “no guns within 1000 feet of a school law):

It was not acceptable, the majority opinion said, to “pile inference upon inference” in order to extend federal power so far beyond its intended limits. “To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.”

Verrilli didn’t look like an ass because the Court changed the rules on him,Verrilli looked like an ass because the people who wrote ObamaCare decided they could ignore Lopez, and as such they left Verrilli with an indefensible law to try to defend.  Also left looking like the asses they are are all the left-wing “legal commentators” (Linda Greenhouse, etc.) who insisted that the Individual mandate was a Constitutional “slam dunk”, apparently having wiped from their minds that Kennedy voted in the majority on Lopez and in Bond v. United States Kennedy wrote last year:

[Limiting federal power] protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.

If that doesn’t sound like “just because States can do it, doesn’t mean the Federal Government can”, then you’re not paying attention.  That, BTW, was a 9-0 decision.  Which is what the ruling striking down the Individual Mandate would be, if the four “liberals” on the Court were honest Justices, rather than left-wing hacks.

The Washington Post doesn’t understand insurance, or markets

March 30, 2012

The Washington Post has an editorial on the Supreme Court hearings on ObamaCare that gets a passing grade on Civics, but a flunking grade on understanding of insurance.  They wrote

There was, in some of the conservative argumentation over three days, a distressing undertone of me-firstism. Congress wanted to “capture” young people, attorney Paul D. Clement argued on behalf of the states objecting to the health-care plan, because they are “the golden geese that pay for the entire lowering of the premium.”  Well, yes, that is how insurance works

No, it’s not.  If you buy Term Life insurance, you pay a different, and much lower, rate if you’re 25, than you do if you’re 45, or 65.  And yo pay a much higher rate if you’re a smoker  If you buy auto insurance, you pay a much higher rate if you’re 18 and have no tickets or accidents, than if you’re 25, 35, or 45 also with no accidents or tickets.  Insurance is about pooling risk, it’s not about transferring costs from the politically favored to the politically unfavored.  For that you have government.  As Mr. Carvin pointed out during arguments of the individual mandate, “since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they’re doing here.”

The Democrats writing ObamaCare didn’t do that, because (as the Post editorial notes) they wanted to hide the cost of their actions from the American people.  That’s not “insurance”, that’s fraud, dishonesty, and normal operating procedure for the Democrat Party.

Then there’s their defense of “health care is special:

Mr. Verrilli, in fact, had a persuasive response: The health-care market is different from all others because virtually everyone, like it or not, will become entangled in it. You can choose not to buy a car; you can’t necessarily choose not to be hit by one. If you end up in the emergency room, you will be cared for, as federal law demands. The government, already deeply involved in regulating the health-care market, has a legitimate interest in encouraging you to prepare for such an eventuality.

(Bold face added).  Apparently the Washington Post editors are unaware that everyone has to buy food, and so is entangled in the “food market”.  So I guess that Congress can force us to eat broccoli, or at least force us to buy it.  They’re also unaware that everyone has to get around, and so is involved in the “transportation market” (sorry, but if podiatry, urology, and ophthalmology are all part of the same “market”, then so are cars, buses, and shoes).  Further, they seem to have decided that since the Federal Government has imposed market distorting regulations on the health care market, this expands the Constitutional limits on the power of the Federal Government in the health care market.  This is a flawed argument.

Ending on a high note, they did get one thing right:

But we also think there’s a kind of cynicism, or at least intellectual laziness, in asserting that this is an easy or obvious call — that no justice could possibly strike down the mandate out of honest, reasoned conviction. Solicitor General Donald B. Verrilli Jr. had his hands fulldefending the mandate, not because he’s a bad lawyer, but because it’s not an easy question.

If the federal government can force young adults to buy health insurance that they do not want, then what can’t the government do? That was the challenge from the mandate’s opponents. Liberal justices tried to come up with other cases where the government forces citizens to take affirmative action — to have pollution controls installed on their cars, to drive faster than 45 mph on the freeway. But no one has to buy a car, and you can choose to stay off the interstate.

Well, mostly right.  Contra Justice Breyer, while Congress has used the spending power to force states to establish a 55 MPH speed limit, it did not pass the limit itself, did not enforce it, and has never ordered a minimum speed limit (which is what Breyer needed, since he was claiming the Federal Government had the power to order people to do things, rather than to refrain from doing something).

Justice Sotomayor shows what’s so wrong with ObamaCare

March 28, 2012

JUSTICE SOTOMAYOR: General, I see or have seen three strands of arguments in your briefs, and one of them is echoed today.

The first strand that I’ve seen is that Congress can pass any necessary laws to effect those powers within its rights, i.e., because it made a decision that to effect — to effect mandatory issuance of insurance, that it could also obligate the mandatory purchase of it.

The second strand I see is self-insurance affects the market; and so, the government can regulate those who self-insure.

And the third argument — and I see all of them as different — is that what the government is doing — and I think it’s the argument you’re making today — that what the — what the government is saying is if you pay for — if you use health services, you have to pay with insurance, because only insurance will guarantee that whatever need for health care that you have will be covered, because virtually no one, perhaps with the exception of 1 percent of the population, can afford the massive cost if the unexpected happens.

I think accurately state, and it shows what’s so wrong with ObamaCare

1: What Justice Sotomayor, “General” Verrilli, and the Democrats in Congress and the White House have all missed is that the phrase is “Necessary and Proper“, not just “Necessary”.  While the Individual Mandate is Necessary for the Democrats scheme to work, it is not Proper, and thus it fails.

2: What government ordered health insurance will “guarantee” is that your politically approved “needs” will be met.  But that if the government review board decides your “need” isn’t “needy” enough, you’re toast.  Because no one, not even the US Government, can pay to cover all of everyone’s health care “needs”.  ObamaCare changes who gets to decide, but it doesn’t change that a decision has to be made.

Justice Ginsburg is an idiot

March 28, 2012

I’ve been reading through the Supreme Court Individual Mandate transcript.  I found the following quite interesting:

JUSTICE ALITO: But isn’t that really a 2 small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in — in 2016.  Respondents — the economists who have supported the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the Act wishes to serve, but isn’t — if those figures are right, isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

GENERAL VERRILLI: No, I think that — I do think that’s what the Respondents argue. It’s just not right. I think it — it really gets to a fundamental problem with their argument.

JUSTICE GINSBURG: If you’re going to have insurance, that’s how insurance works.

No, it’s not.  If you’re going to have “insurance” with “community rating”, that’s how it works.  But in normal insurance, those young healthy people would be paying something around $854 / year for their health insurance, because that’s the average cost of those customers to the insurance company.  That’s why people who have accidents and speeding tickets pay higher auto insurance rates than people who don’t have any, and people who live right next to a fire station pay lower home owner’s insurance rates than do people who live 10 miles away from the nearest one.

Mickey Kaus is on drugs

February 25, 2010

Mickey Kaus is trying to come up with reasons why Democrats should pass “Health Care Reform”, but his thinking is rather delusional:

There’s a much better argument. It’s that passing health care reform offers Dems, in the not-so- long term, a chance to do more than avoid Republican attacks. It offers the chance to disprove them. For months, both GOP and Fox hosts have been talking about socialized medicine and death panels and vicious Medicare cuts and the government coming between you and your doctor, etc. If Democrats pass the bill and none of this happens, Republican opponents will be more than defeated. They’ll be discredited.

Mickey has apparently forgotten that the Democrat plans raise taxes immediately, but start giving their “benefits” only around 2013.  So if the Democrats pass one of those bills, then for the next three years people will be facing higher taxes, and the threat of what will come, but they won’t be getting any of this “reality” that Mickey claims to think will disprove the Republican claims.  If that’s not a setup for an epic fail, I can’t imagine what would be one.

P. S. Mickey tries to save his claims with this:

P.P.S.: OK, you say. If Dems pass reform and the sky doesn’t fall, that might help them in the semi-near term. But how would it help  them this November, when many will be facing what looks like an impressive wave of popular discontent? One answer is to look at the public’s response to the “stimulus” bill. It was unreasonable to expect last year’s package of spending to have an immediate effect on the unemployment rate. But when the unemployment rate didn’t fall, did voters say “Well, let’s give it another year and see”? Or did they start to think the stimulus was a flop? Answer: flop. Similarly, if health reform passes and nothing much changes, they will very quickly start to suspect that the GOP predictions of doom were bogus.

Doesn’t work.

  1. The Democrats sold the stimulus with the promise that it would have immediate positive effects.  Remember this chart:

    The voters judge the “Stimulus” a failure because it did not meet the Democrats promises.
  2. The Republicans aren’t saying all the bad things will happen immediately (other than taxes being raised).  Since the things the Republicans are saying are going to happen will, in fact, happen, this will give the rest of the Republican predictions more credibility, not less.

In short, if the Democrats want to pass this monstrosity, I’m moer than happy to have them so thoroughly shoot themselves in the foot.  Because President Palin will be happy to sign a law undoing all the Democrats changes (which won’t have kicked in before she wins the 2012 election), and the Republican’s filibuster proof majority in teh Senate will pass repeal in about two weeks.

Death Panels

August 19, 2009

There’s been a lot of blathering about this, so I want to throw my two cents in:

Short version:

It is not possible to have a government run / controlled / funded /managed health care system without having death panels. That is one of the many reasons why government health care is a bad idea.

Longer version:

Any and every health care system must have ways of deciding who will get what care. In a totally private system, it’s decided by money: if you’re willing and able to pay, you get the service, if you aren’t / can’t, you don’t. In our current system, if you have health insurance, your insurance company makes decisions about what it’s willing to cover, and may you have to fight with it / jump through its hoops in order to get the treatment you want. Or you can sue it, or you can just pay for it yourself, or you can not get the treatment, and continue to suffer through the problem (or just die).

As someone (who I can’t remember) pointed out: in this system , the government serves as “umpire”, deciding who should win each argument. The other “umpire” is “the market”: if a company’s insurance provider is routinely stiffing its employees, the company is likely to drop that provider, and switch to a different one.

In a government health care system, the government will have to decide what treatments are covered, and what aren’t. Which conditions justify the expensive red pill, which ones only get the cheaper (but less effective) blue pill, and which ones get you a trip to the hospice, or an aspirin and a call back in two weeks (if you’re still alive then). And since our political representatives are chickenshits who do their best to avoid having to make decisions, there will be a “panel” to decide what gets covered, and what doesn’t. In Britain, that panel is called NICE (National Institute for Health and Clinical Excellence: “NICE is an independent organisation responsible for providing national guidance on promoting good health and preventing and treating ill health”) President Obama is pushing for IMAC, (“Yesterday, a group of some of the most distinguished health economists in the country sent a letter to the President and Congress in support of the Administration’s proposal for the establishment of an independent board of doctors and health experts to guide Medicare policy. This Independent Medicare Advisory Council (IMAC) would make recommendations on Medicare reimbursement policy and other reforms – playing a critical role in allowing health care policy to adjust flexibly to a dynamic health care market, thereby helping contain costs and improve quality over time. As the authors note, ‘a properly structured Independent Medicare Advisory Council (IMAC), with a congressional mandate and authority to do so, can reduce the rate of growth of health expenditures substantially.‘”) He already had the Federal Coordinating Council for Comparative Effectiveness Research added to Porkulus. Both of those, by any reasonale definition of the term, are “death panels”. Panels that will decide whether you are worth treating, or if you should be left to die.

Will they decide it for you, personally? No. Will they “send death squads out to round up Trig Palin“? No. Might they decide it’s not worth the effort to fund “extreme” health care for people with Down’s Syndrome? Yes. Might they decide that your grandma doesn’t need that hip replacement, or pacemaker? Oh Hell yes!

Now, if you’re really rich, you can fly someplace else and get treatment, or, if your government allows it, you can pay for it yourself in your country (if, of course, your country has the ability to provide what you want. After all, the main way of government rationing will be to simply not provide the capability, or not provide enough of it, in the first place). But for the rest of us, those government panels will be deciding whether or not we get treated. Not the market, not an insurance company that can be dumped if we don’t like it’s choices, the government.

You know, the same government that has to pay for the care if it decides it’s “appropriate”.

Would you like to play baseball when all the umpires have been hired, and paid, by the other team? If not, then you don’t want those government death panels deciding when it’s not longer “cost effective” to keep you alive.

Single Payer Heath Care and US Business Competitiveness

June 18, 2009

Over at Hot Air, Ed Morrissey is mocking Obama’s speech to the AMA

A big part of what led General Motors and Chrysler into trouble in recent decades were the huge costs they racked up providing health care for their workers — costs that made them less profitable and less competitive with automakers around the world. If we do not fix our health care system, America may go the way of GM — paying more, getting less, and going broke. When it comes to the cost of our health care, then, the status quo is unsustainable.

Er, yes. Which is why no one could understand why Barack Obama kept sinking tens of billions of taxpayer dollars into GM while its pension and health insurance obligations never got addressed. It’s also why we all wondered why Obama perverted the bankruptcy process in order to favor the unions, who insisted on those big, expensive pension/benefits packages that made GM uncompetitive in the domestic and global market.

While Ed makes good points, he misses the real problem with Obama’s statement: The claim that having “the government” “pay for health care” will improve US businesses competitiveness. This is an oft repeated claim. But it’s utter garbage. Let us consider this WRT GM. There are four ways things can happen WRT GM and ObamaCare:

  1. GM has a”gold plated” health insurance plan for its members, and ObamaCare will allow GM to dump the plan, and stick its employees with the national plan, instead.
  2. GM has a”gold plated” health insurance plan for its members, and since it is required by their contract, GM will continue to pay for that plan.
  3. GM has a”gold plated” health insurance plan for its members, and through the miracle of ObamaCare, the employees will get to keep that plan, subsidized by the rest of us taxpayers.
  4. GM has a normal and reasonable insurance package, and something similar will be extended to everybody.

So, now let’s consider each of these options:

  1. The only way this will happen is if the US bans all private insurance / health care, and forces everybody to be part of the National Health System, and, like Canada, forbids health care providers to do business outside of the government run health care system. If we were to do this, then GM would probably save money. But Obama swears up and down that he’s not going to do that.
  2. This seems to be the most likely option under the currently proposed ObamaCare. At best, GM is no better off than it is now. However
    • Taxes will have to go up to pay for ObamaCare. Which means employees will be fighting for higher wages just so they can keep their standard of living the same.
    • Taxes will have to go up to pay for ObamaCare. Which means that everything GM buys will cost more, raising the cost of its cars compared to cars made in Japan (where their taxes aren’t going up to pay for ObamaCare).
    • We expect that ObamaCare will raise costs for the private health insurance companies. Those costs will be passed on to GM.
  3. I suppose Obama can try to do this. OTOH, I can’t think of a quicker way to destroy the Democrat majority in Congress than to announce that union health plans would get a special subsidy that the rest of us don’t get, and I can’t think of a quicker way to bankrupt the US than extend those subsidies to 50%+ of the country.
  4. the idea behind ObamaCare is to extend health insurance to those who currently lack it. Which is to say: to increase the amount of money we’re going to spend on health care, and thus increase taxes so the government can pay for all those people’s health care. Who’s going to be paying those taxes? Why, GM, and its employees. And its customers and suppliers. See #2 for the problems with that.

In short, one of the competitive benefits US Companies have is the smaller size of the US governments (Federal, State, and Local) compared to Europe, and thus the lower costs that government imposes on all of us. Making the US Government bigger is not going to make us business more competitive.