Relevant and even prescient commentary on news, politics and the economy.

Dear Ms. Boonstra: It’s too bad that you don’t live in Kentucky. Or Rhode Island. Or New York State. Or California. Or Arkansas. Or that Michigan’s state government now has a Republican governor, a Republican-controlled House, and Republican-controlled Senate. And, yes, that healthcare.com didn’t work until December. [UPDATED]

Congratulations, Republicans.  You’ve finally found a case in which the failure of the federal ACA website amounted to the failure of Obamacare itself. At least for what turned out to be a very difficult two months for one particular woman, Julie Boonstra, a resident of Michigan Republican Rep. Tim Walberg’s district.

Which, contrary to your (and the news media’s) incessant conflations, does not mean that the website is the ACA.  No, the website is still a website, not an insurance program.  And its failure last fall created havoc, for those two months, for people like Boonstra.  And also gave the 36 state Blue Cross/Blue Shield companies–all the cancelled-plan horror stories I’ve heard of involve a Blue Cross/Blue Shield company–in Republican-controlled states that did not create their own online healthcare exchange the opportunity to cruelly try to manipulate people Boonstra into buying its costliest plan, by implying that that was the sole alternative.

Boonstra has Chronic Myelogenous Leukemia (CML). She was diagnosed with her cancer five years ago. Necessary oral chemotherapy treatments cost $4,100 a month, out-of-pocket, and she will need those treatments for the rest of her life.

When, for weeks, she could not get the necessary information from healthcare.com, and then could not get through by phone to an ACA navigator for Michigan’s federally established exchange until mid-December, and then was told there was a waiting period of two weeks, extending beyond her old policy’s expiration date of Jan. 1, she contacted her congressional Representative asking for assistance in learning of them. He told her instead that she could be his guest at the State of the Union address.  She accepted. Then, in desperation to learn her options for insurance, she contacted the Michigan Farm Bureau, which assisted her in finding a new policy, not through the exchange but apparently through Blue Care, her old insurance company.  The Farm Bureau even looked into the possibility of Medicaid for her, through the ACA’s Medicaid expansion, which Michigan has joined.

At least as of the date of the State of the Union address, she still did not know what her options were through the exchange.  Nor whether she even qualifies for Medicaid under the expansion; she was unable to get a determinatio of that.  Nor whether she would qualify for a federal subsidy, had she purchased her policy through an ACA exchange established by Michigan or through healthcare.com.

Well, hopefully, next year.

By which time she may well be quickly approaching her old policy’s lifetime coverage limit.  Or by which time Blue Care might simply have decided that she was too expensive to continue to cover, and unceremoniously dropped her as a policyholder.  And, unable then to obtain coverage through another company because of her preexisting condition, she might have contacted her congressional representative, Tim Walberg, and asked him for assistance.

She apparently does work, full-time, but not for an employer that provides healthcare insurance.

I know about Ms. Boonstra because, well, she’s now cut an ad, funded by the Koch brothers’ super PAC, Americans for Prosperity, attacking Democratic Congressman Gary Peters, who is running for the Senate seat that will be vacated by Carl Levin, for–surprise!–voting for Obamacare. And I also know this, from Glenn Kessler’s “The Fact Checker” in the Washington Post today:

First of all, many viewers [of the Americans for Prosperity ad] might think Boonstra lost her doctor, as she mentions her “wonderful doctor” and then says her plan was canceled. But AFP confirms that she was able to find a plan, via Blue Cross Blue Shield, that had her doctor in its network.

Local news reports recount that Boonstra, like many Americans, initially had trouble getting a plan because of the botched launch of healthcare.gov. No doubt that was a difficult experience. She then was invited by her local member of Congress to attend the State of the Union address and participated in a Republican National Committee news conference that highlighted problems with Obamacare’s stumbling launch.

At that news conference, Boonstra said, “I’m paying a higher cost now as far as out of pocket costs and the coverage is just not the same.”  But in the new ad she says “the out-of-pocket costs are so high, it’s unaffordable.”

The claim that the costs are now “unaffordable” appeared odd because, under Obamacare, there is an out-of-pocket maximum of $6,350 for an individual plan, after which the insurance plan pays 100 percent of covered benefits. The Blue Cross Blue Shield plans in Michigan that appear to match Boonstra’s plan, as described in local news reports, all have that limit.

Meanwhile, Boonstra told the Detroit News that her monthly premiums were cut in half, from $1,100 a month to $571. That’s a savings of $529 a month. Over the course of a year, the premium savings amounts to $6,348—just two dollars shy of the out-of-pocket maximum.

We were unable to reach Boonstra, but on the fact of it, the premium savings appear to match whatever out-of-pocket costs she now faces.

And next year, she might be able to get a policy through healthcare.com that is better than her current one and better than her former one.  And maybe a substantial subsidy to help pay for it.  In any event, she’ll continue to have healthcare insurance.  Until, of course, the Republicans win the White House and control of both houses of Congress. With the help of her vote.

If only she lived in Kentucky.  Or Rhode Island.  Or even Ann Arbor, which borders on her town of Dexter and is represented in the House by a Democrat who, had she contacted his office, might have assisted her in getting the information she so desperately needed last December.  But who wouldn’t have invited her to be his guest at the State of the Union address.

—-

UPDATED: run75441, a.k.a. Bill H, of AB, a Michigan resident, posted the following comment to my post, detailing what actually happened in Michigan regarding the insurance exchange for the state and the state’s Medicaid expansion:

The fact of the matter is; the Republican controlled Senate and House waited until the last minute to pass the Medicaid Expansion and other aspects of the PPACA. They also waited to the last minute to decide not to establish healthcare exchanges thereby causing the Federal Government to step in to establish them. Gov. Synder recognizing a good deal, supported the Medicaid Expansion.

Insidious amongst the legislature is it failed to cause the PPACA Medicaid Expansionto be implemented January 1, 2014 through vote and instead GOP Senate Majority Leader Randy Richardville opted to delay the vote causing the PPACA Medicaid Expansion to be implemented April 1, 2014 instead of January 1st. It is costing Michigan ~$7 million/day as a result. The funding provided and if used in the manner it was previously used is enough to fund the “Expansion” until 2028 making it a good deal for the state.

Even if eligible for Medicaid under the PPACA, Ms. Boonstra would not have had access to the expanded Medicaid in Michigan until April 1, 2014.

Sooo … yes, Virginia, er, Ms. Boonstra, there is, almost certainly, a financial advantage to you from Obamacare. Or at least there almost certainly will be, soon.

Here’s a suggestion: Call Rep. Peters’s local office and ask for assistance in, possibly, swapping out the plan you bought, for a plan through the ACA exchange, in order to receive the subsidy you’re almost certainly entitled to.  The ph. # is: 313-964-9960.

And, who knows?  Maybe soon you’ll be able to resume your pre-illness plans to be a stay-at-home mom.  Although Rep. Walberg, who thinks job lock in order to have healthcare insurance is great national policy, would disapprove of your choice.

 

 

 

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Paul Krugman vs. … um … me. [Updated.]

No, no; of course, I don’t mean that Paul Krugman has expressly disputed something I wrote here on AB.  Or that he has ever read a post of mine.  Or that he knows that I exist.  Those latter two things have happened, but only in my dreams. The first of those has never happened at all.

Well, not directly, anyway.

But on Feb. 6, I posted a piece here that I titled “Republicans and Dana Milbank Solve the Unemployment Problem in Germany, Canada, Taiwan and Australia: Those countries just need to repeal their universal-healthcare laws and tie healthcare insurance to full-time employment at large corporations!”  The gist of which was that the claim that it is a bad thing economically for the country that Obamacare ends (to some extent) the U.S.’s overwhelmingly prevalent access-to-healthcare-insurance job-lock, as a practical matter requiring that one member of a family hold a full-time job at a company that provides access to healthcare insurance for full-time employees and their immediate dependent family members, conflicts with the experiences of every single other advanced economy in the world.  None of which predicates access to healthcare insurance upon a family member’s full-time employment at a company that provides access to healthcare insurance for its full-time employees. Some of which (I believe) are healthier economies than ours.

And today, Krugman, in a blog post titled “Why Do You Care How Much Other People Work?”, answers that question thusly:

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Just Go Read

As I said on Facebook, it appears that Tim Armstrong—who got paid $12 million last year alone as CEO of the dead-on-its-feet AOL—is even more of an asshole than anyone previously believed.

The pull quote:

Until the morning I woke up in labor, every exam indicated that our daughter was perfectly healthy. In fact, had signs of trouble emerged, such as bleeding or pre-eclampsia, the doctors would have had the chance to mitigate the danger, administering steroids to speed up her lung development or hormones to delay labor. Instead, even with the best medical care available, we had no warnings, and we will never have an explanation for what went wrong. This is why the head neonatologist referred matter-of-factly to our daughter’s birth as “catastrophic.”

In other words, we experienced exactly the kind of unforeseeable, unpreventable medical crisis that any health plan is supposed to cover. Isn’t that the whole point of health insurance?

The story has a happy ending. Except that around ten years from now, that daughter is going to find out what someone who isn’t fit to shine her shoes but somehow runs an American corporation said about her when she was fighting for her life.

The next mofo who makes the absurd claim that “the 1% work harder” better have overcome at least what Deanna Fei’s daughter did and is. In a just world, or even the world of Brad DeLong’s Sensible Technocrat Economist *** dreams, anyone on AOL’s Board of Directors who did not come out publicly for Armstrong’s firing would be summarily dismissed from any other Board on which she or he served due to nonfeasance.

Instead, Armstrong is an invited guest at Davos, though he didn’t show up this year. Saving the Swiss being lectured about how evil it is to allow pregnancies to go to term.

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Political Journalists Should Follow the Lead of Insurance Industry CEOs and Read Angry Bear Regularly. Seriously.

Meanwhile, health insurers warned that Rubio’s legislation [to kill the insurance risk-corridors provision in the ACA] would lead to the government-run health-care system that most alarms conservatives. And there was the awkward fact that the risk corridors were the same mechanism Republicans used in the 2006 prescription-drug legislation.

From Obamacare to the IRS scandal, Republicans are ignoring the facts, Dana Milbank, Washington Post, today

Hmmm.  It’s interesting that the insurance companies finally are catching on.  Their CEOs must read AB.  But, given the importance of this insurance-industry awakening, I wonder why this has not (at least to my knowledge) been reported elsewhere in the mainstream media.

My suggestion to mainstream political journalists: Follow the lead of insurance industry CEOs and read Angry Bear regularly!

 

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Republicans and Dana Milbank Solve the Unemployment Problem in Germany, Canada, Taiwan and Australia: Those countries just need to repeal their universal-healthcare laws and tie healthcare insurance to full-time employment at large corporations!

It’s worth appreciating the perverse nature of the [Republicans’] lie on display [in a new web ad against North Carolina Sen. Kay Hagan here. Because Republicans are absolutely wedded to their “Obamacare is a job killer” talking point, the CBO report’s findings are being distorted into proof that the law will inflict job losses on millions of workers who, in this telling, become Obamacare’s helpless victims — a labor demand argument. In reality, the report actually found it would impact the choices workers receiving the law’s benefits make — a labor supply argument.

Some conservatives have dealt with the report’s actual findings directly by arguing they prove the case against the law — that government subsidies reduce the incentive to work. Many of the good wonky writers — Jonathan Cohn, Brian Beutler, Jonathan Chait, Jared Bernstein — have already engaged this argument effectively. But that is at least a legitimate debate to have within the context of the CBO’s findings.

Morning Plum: Republicans double down on another Big Lie about Obamacare, Greg Sargent, Washington Post, today

Okay, look, folks.  As Sargent recognizes, there are two distinct issues concerning the Republicans’ and the news media’s treatment of the CBO report’s statement that approximately 2.3 million people will voluntarily retire or reduce their weekly hours from full-time to part-time because they no longer need to work or to work full-time in order to have access to healthcare insurance insurance.

One of those issues is the bald misrepresentation, deliberately or unwittingly, that the report said that an estimated 2.3 million workers will be involuntarily laid off because of Obamacare, and its punditry-proffered corollary that although that’s not at all what the report actually said, what the report actually said is just too complicated for the Democrats to explain to the public between now and November.

Unfortunately for the Washington Post, two of its preeminent political-analyst pundits, Dana Milbank and Chris Cillizza, have become the poster journalists, respectively, for the former and the latter.

The other issue is the question of whether we should return to a healthcare insurance system tied almost entirely to full-time employment, so as to effectively preclude voluntary early retirement (raise the Medicare eligibility age to 67!) or voluntary reduction from full-time to part-time work–or the decision to leave a corporate job and start a business–for millions of Americans, lest we encourage sloth among working-age Americans.  In a transparent attempt at a sleight of hand to quietly backtrack on his jaw-dropping initial misconstruction of the CBO report, Milbank today makes himself the poster mainstream-journalist for support of repeal of Obamacare on this  ground. He says that, with a single exception, the report is “otherwise unhelpful to the health-care law.”  Suffice it to say that the exception is not the uncoupling of access to healthcare insurance from full-time employment at a large corporation; that, he maintains without explanation, is part of the unhelpful stuff.

It is, or course, Milbank rather than the report that is unhelpful, and the absent explanation is that he does not want to admit that he either misread the report on Tuesday or didn’t read it all before posting a full-length column about it.  But why does Sargent–who interpreted the report correctly from the outset–treat this as a legitimate policy dispute?  Yes, it certainly is a policy dispute.  But is it really a legitimate argument that it’s better for the economy to continue to tie access to healthcare insurance to full-time employment at a large corporation?  What evidence is there that this is so?

The United States is the only modern economy in the world that has that system.  But it is not the most successful economy in the world.  Germany, Canada, Australia and Taiwan all (I believe) have more vibrant economies these days than the United States.

As for Cillizza’s claim, reiterated yesterday after criticism of it the day before, I’ve been at an utter loss to understand why journalists and pundits think that the public won’t know by November that the people at issue in that part of the CBO report are those who have wanted to retire or work just part time but haven’t been able to because they need the healthcare insurance benefit–and that their choice to retire or reduce their weekly work hours means openings for others.  

This isn’t rocket science. This option is a fact of life in every advanced economy other than ours, and it’s a concept that almost everyone is very familiar with right here in this country.  Is the unemployment rate higher in Germany, Canada, Australia and Taiwan because their healthcare insurance systems aren’t based on full-time employment by a company that provides it to its full-time but not to its part-time employees?  Really?

This isn’t hard to explain and it’s not hard to understand.  As Sargent says today:

Indeed, even CBO director Douglas Elmendorf directly contested the characterization of jobs being “lost” during yesterday’s House hearing, noting that when people decide to ease up on work for good reasons, “we don’t sympathize. We say congratulations.” Elmendorf even added that those impacted this way could include older people who decide to retire earlier than they otherwise might have, or spouses who choose to reduce work hours to stay home with a new baby.

But instead of simply refuting the anti-Hagan ad with one showing a clip of that part of Elmendorf’s testimony, or of someone in his or her early 60s who is ecstatic to now be able to retire, or a young mother who can now choose to reduce work hours to stay home with a new baby–as they obviously should, and presumably will–the Democrats should do this as well: point out in ads that the Republicans apparently have trouble understanding basic English-language declaratory sentences, such as the ones in the CBO report.

Rather than attacking the Republicans for dishonestly, the Democrats should take them at their word.  Their word being that they are too stupid to understand a clearly written CBO report.

Then again, I suppose the Republicans could invoke Dana Milbank and a few other mainstream journalists to show that they are not alone in that.

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Obamacare Killing Jobs . . . again

Cost of Obamacare

picture hat tip TPM DC

 

After shown to be wrong by Factcheck.org in its analysis, the Fox News group and Republicans are at it again  with a worn out commentary on how Obamacare kills jobs. This time they are using the CBO’s new analysis on the impact of Obamacare. Sometimes, I wish the CBO’s Douglas Elmendorf would simply shut up and keep his calculations and thoughts to himself. From Healthcare taking over the economy which Louise Sheiner and Glen LaFollette debunked and Yves Smith at Naked Capitalism portrayed; to Fair Market Valuation of Student Loans for risk even when Student loans can not be discharged in bankruptcy and make a greater return in default; and now the nebulous wording in a recent CBO report;

“The reduction in CBO’s projections of hours worked represents a decline in the number of  full time-time equivalent workers (page 117) of about 2.0 million in 2017, rising to about 2.5 million in 2024.”

What this really means is Labor can work fewer hours as a result of Obamacare causing healthcare insurance to be less costly. The number of hours needed to work would decrease 1.5 to 2%. People may want to work less and it sounds like they will opt to work less. The Republicans and Tea-baggers (their right of right brothers) just made their own version of the CBO’s report. The entire blog-o-sphere is laughing at Fox News and the Republicans with their obvious effort to distort the report.

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Obamacare roundup: Great enrollments for Wellpoint; “Bette from Spokane” debunked

Via Joan McCarter, we learn that Wellpoint, which runs a number of for-profit Blue Cross/Blue Shield insurance plans, reported on an investor’s conference call that it expects to add over one million new policyholders this year and that its enrollments are much better than expectations. Of 500,000 enrolled so far, fully 80% of them came to the company via the exchanges. Of that amount, 2/3 were eligible to receive subsidies for their insurance premiums.

Of course, for those of us who support single payer, giving money to private insurers is a mixed blessing. We’d be better off without them, but under our current political situation, this is the best we will be able to do for the uninsured for a while. As McCarter points out, stories like this mean that Obamacare is going to be unrepealable soon, if it isn’t already.

Meanwhile, if you could stomach listening to the first Republican response to President Obama’s State of the Union address Tuesday, you heard Rep. Cathy McMorris Rodger (R-WA) tell the plight of a woman she called “Bette in Spokane,” who supposedly had to pay “nearly $700 per month” more for her health insurance, after her insurance company canceled her old plan.

As with many other such stories, this one has collapsed under scrutiny. As the linked article shows, Bette Grenier had had a catastrophic plan canceled, and she only compared it to the price of a Gold-level policy her insurer suggested as a replacement. Not only were cheaper policies available, she told the paper she would not go on the state exchange to look for a policy, even though this would likely have saved her even more money compared to the one her insurance company offered. She told the paper she and her husband planned to go without insurance.

As Paul Krugman (who pointed me to the Spokane link) notes, there is a reason why catastrophic plans aren’t allowed: “If you’re allowed to have insurance that barely covers anything, that’s almost the same as not participating at all.” Which appears to be exactly what’s happening in this case.

Cross-posted from Middle Class Political Economist.

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George Will Comes Out for Single-Payer Healthcare Insurance! Cool!

WASHINGTON — Someone you probably are not familiar with has filed a suit you probably have not heard about concerning a four-word phrase you should know about. The suit could blow to smithereens something everyone has heard altogether too much about, the Patient Protection and Affordable Care Act (hereafter, ACA). …

The four words that threaten disaster for the ACA say the [federal] subsidies shall be available to persons who purchase health insurance in an exchange “established by the state.” But 34 states have chosen not to establish exchanges.

Four words in the ACA could spell its doom, George Will, Washington Post, today*

Ah.  While George Will’s readers don’t know about the lawsuit and others like it, and don’t know about the the four words at issue, my readers, here on AB, are not so in-the-dark.  The problem, of course, is that my readers are, well, not that numerous.  And George Will obviously is not among them.

To refresh your memory, faithful readers, back on Dec. 3, I posted a detailed post, prompted by a New York Times article that day by Sheryl Gay Stolberg.  Stolberg’s article was titled “A New Wave of Challenges to Health Law.” My blog post was titled “The Antidisestablishmentarianism Theory of Obamacare Illegality. (The ACA has a (dis)establishment clause!  Who knew?).”

I began my post, as I often do for the sake of efficiency (I don’t get paid to write these things. Dan???)**, with a quote from the article that discusses the issue I want to write about.  In this instance, the quote was:

A federal judge in the District of Columbia will hear oral arguments on Tuesday in one of several cases brought by states including Indiana and Oklahoma, along with business owners and individual consumers, who say that the law does not grant the Internal Revenue Service authority to provide tax credits or subsidies to people who buy insurance through the federal exchange. …

The subsidy cases, if successful, would strike at the foundation of the law. Subsidies and tax credits, which could be available to millions of low- and middle-income Americans, are central to Mr. Obama’s promise of affordable care. In drafting the law, Congress wrote that such financial help would be available to people enrolled “through an exchange established by the state” under the law.

“ ‘Through an exchange established by the state’ under the law.”  I wrote:

Hmm.  Okay, let me take a crack at this.  The law gives each state the option of running its own exchange or instead allowing the federal government to run an exchange for the state–an operation that must be done separately for each state, because each state has its own insurance companies offering different policies than other states, and subject to state insurance laws and state agency oversight.

The law doesn’t say “through an exchange run by the state” under the law; it says “through an exchange established by the state” under the law.  The states know their options.  Fourteen of them chose to establish an exchange by setting one up and running it.  The rest have chosen to establish an exchange by delegating to the federal government the job of setting up and running the exchange for the state.

The law itself, in other words, by requiring that each state choose one of two mechanisms to establish an exchange–directly or instead by delegation to the federal government–required every state to have (i.e., to establish) an exchange.  The tax credit, or subsidy, provision of the statute does not limit tax credits (subsidies) to people who live in states that choose to physically set up and run the state’s exchange itself.  It provides that benefit to people regardless of their state of residence, because by operation of law–specifically, by operation of that law–states can establish their exchanges by delegating to the federal government the physical setting up and running of the exchange.

Depends, in other words, on what the meaning of established is.  Or, more accurately, on what Congress intended the meaning of “established” to be.  And I’ve just told you what that is.  Surely, the federal courts understand the concept of contracting out a tech job.  Thirty-six states have chosen to contract out this job to the federal government.  Except, of course, that the contract was not negotiated but instead compelled by law.

Voila!  The antidisestablishmentarianism theory is disestablished.  The tax credits/subsidies clause in the ACA applies even to you, Red State denizens who qualify financially.  Congratulations.  I mean, my condolences.

I do not suggest that this is a slam-dunk.  As Will explains, the IRS, charged with enforcing the statute, has interpreted it as “consistent with,” and justified by, the “structure of” the ACA. By which, Will says, “The IRS means that without its rule, the ACA would be unworkable and that Congress could not have meant to allow this.”

Well, no, actually, what the IRS means is that in the 14 states that have established and run their own exchanges, the entirety of the law that remained after the Supreme Court struck down one part of it–more on that part below, because Will doesn’t understand the legal theory that succeeded in that part of the Supreme Court opinion; he should have phoned one of the legal eagles he mentions fondly before he bandied it about near the end of his column–is working reasonably well, thank you very much.

And that in the remaining 36 states, it’s also working fairly well now that the federal website is working fairly well.

And that if the Supreme Court does take the bait in these lawsuits, and strikes down the federal subsidies to lower- and some middle-income folks and families–who by then will be receiving those subsidies and enjoying meaningful healthcare insurance and the resulting relief from fear of economic hardship or calamity, should they need major medical care (or even just a broken ankle set)–the ruling likely will be the final nail in the federal-programs-via-federalism juggernaut so strongly supported by Republicans until Barack Obama became president.

Yes, as those links show, I’ve written extensively here about the death of federal-programs-via-federalism, courtesy of the Tea Party.  In those posts, I’ve also discussed the probable result of this for healthcare insurance: a major push for single-payer coverage, albeit not as a monopoly. This is a.k.a, “the public option.”

Will and his compadres apparently haven’t noticed that, with the exception of the Tea Party, most people who are concerned about Obamacare are not raging about “freedom!”/“liberty”!  Instead, they complain that their provider networks are too narrow or that the healthcare plan that they “liked” has been cancelled but usually are easily replaced by a plan they like better.

Or would like better if they knew of its availability.  Either because, with subsidies, it’s much less expensive, or because for a small additional cost, it’s much more comprehensive.  And because, well, it or something similar will continue to be available even after they actually make a large claim. Many people who have a pre-existing medical condition and who have feared that losing their job and therefore access to healthcare insurance at all, have some strong opinions about this, too.  Many of them agree that the issue is “freedom! liberty!”

As a liberal who would love to see a public option available to all–a system that uses its near-certain bargaining power to significantly lower healthcare costs and broaden provider networks or eliminate the very concept of it–I say to the justices, “Go for it!”  And as a Democrat, I’ll be licking my chops during the following campaign season, if they do.

Will says that some people argue that “the language limiting subsidies to state-run exchanges is a drafting error.” To which he responds: “Well.”  But he also disputes that the drafting-error claim is accurate. The words “established by the state,” were “carefully considered and express Congress’ intent.” “Congress,” he says, “made subsidies available only through state exchanges as a means of coercing states into setting up exchanges.”

Okay. Except that, well, what exactly is the hammer, the gun held to the head, in the coercion equation?  The states can establish and run their own exchanges or instead choose to allow the federal government to establish and run an exchange for the state; each state, remember, needs its own exchange, because the insurance policy options are for each state alone. Coercion? Really? The state saves money by allowing the federal government to establish and run the state’s exchange.  Our money or our life, isn’t all that coercive. “In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus, D-Mont., one of the bill’s primary authors, suggested the possibility of making state-run exchanges the sole source of subsidies because only by doing so could the federal government induce state cooperation with the ACA,” he says.

I’ll take his word for it.  The problem is that there is nothing inherently problematic with the federal government attempting to induce cooperation with the ACA or any other statute, when there is no penalty to the state for refusing the inducement and failing to cooperate.  Will might want to check out how, say, federal transportation funds usually are distributed.  He doesn’t understand this, though, and the last three sentences of that paragraph run off the rails.

Baucus, he says, suggested the possibility of making state-run exchanges the sole source of subsidies because only by doing so could the federal government induce state cooperation with the ACA, because, um, that way “the law’s insurance requirements could be imposed on states without running afoul of constitutional law precedents that prevent the federal government from commandeering state governments.”

Yikes.

The constitutional law precedents he’s referring to are actually, first, a line of dictum in a Supreme Court opinion suggesting that there is a line, not crossed in that case, beyond which the federal government cannot go in trying to obtain a state legislature’s enactment of legislation, and, second, the section of the Supreme Court’s multipart ACA opinion issued in late June 2012. That opinion upheld all but one of the challenged sections of the ACA as constitutionally permissible use of federal fiscal power, and struck down the part of the Medicaid-expansion section that made continued federal Medicaid funds available to each state contingent upon the respective state’s agreement to expand the Medicaid program under the ACA.

The commandeering of state governments, the Court held, occurred because the Medicaid program, a program in which every state voluntarily participates and that is funded jointly by the state and the federal government, is too popular for state legislators to vote to end. Thus, coercion by the federal government, not because of the federal funds that would be provided to the states for the additional Medicaid coverage but because of the state funds, albeit only a small percentage of the costs of the expansion, that the expansion would require beginning a few years into the expansion program.

The success of this argument dismayed scads of legal scholars and other followers of the litigation. But the theory requires something resembling coercion of state legislators.  A huge part of modern conservative-legal-movement constitutional federalism claims do flip the Constitution’s Supremacy clause upside-down. But, really. No one, not even Paul Clement, at least to my knowledge, claims that the absence of a state veto over legitimate federal legislation constitutes the commandeering of state governments by the federal government, and therefore states must approve federal legislation. The federal government is entitled to use its constitutionally “enumerated” spending power to provide subsidies, in the form of tax credits or in some other form, toward the purchase of private healthcare insurance.  Will’s claim to the contrary is ridiculous.

Will says, accurately, that passage of the ACA required the vote of every Democratic senator. He also says that one senator, Ben Nelson of Nebraska, “admirably opposed a federal exchange lest this become a steppingstone toward a single-payer system.”

Nelson, as a longtime lawmaker, probably is aware of the law of unintended consequences.  Will, by contrast, has never been a lawmaker.

******

*Link is to a non-pay-wall republication titled slightly differently.

**As we Bears know, Dan Crawford has a sense of humor.  Or did have one.

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Oh, dear. Another loopy challenge to yet another ACA provision, this one concerning the Independent Payment Advisory Board.*

A legal-news blog I read mentions an article published today on the National Review Online aspirationally titled “A Strike at the Heart of Obamacare” and subtitled “A case against IPAB is heard by the Ninth Circuit — and eventually by the Supreme Court?”  I don’t normally read the National Review and am not familiar with the article’s author, Quin Hillyer.  But the article discusses in frenzied fashion a case that will be argued on appeal next week at the Ninth Circuit Court of Appeals, the federal appellate court based in San Francisco, that hears appeals in federal cases from west-coast and several mountain states.

I did not know what IPAB stands for, so I clicked the link to the article in order to find out, and learned that the IPAB is “that monstrosity called the Independent Payment Advisory Board (IPAB), a 15-member body invested with virtually unreviewable, plenipotentiary powers.” Glad I did.

The case to be heard on appeal next week, Coons v. Lew, was filed by the Goldwater Institute and several medical practitioners, and challenges the constitutionality of the section of the ACA that creates and establishes the powers of the IPAB, the ACA provision that Hillyer says is “the law’s most obnoxious violations of Madisonian principle and essential constitutional structure.”  Which, best as I can tell from what he says about the provision, absolves the law from any obnoxious violations of Madisonian principle and essential constitutional structure.  I’ll take his word for it.

Coons, Hillyer fumes in dismay, is the only Obamacare case that has included a challenge to the IPAB, and the trial-court judge, whose ruling the plaintiffs are appealing, gave that challenge short shrift.  Why only one case making that argument?! And, why short shrift?! I’m just guessing here, but I suspect that one reason is that one of the two grounds for constitutional challenge–that Congress can’t delegate specific rulemaking functions to executive-branch agencies, because that constitutes a violation of the doctrine of separation of powers–was rejected by the Supreme Court initially many decades ago when certain New Deal legislation was at issue, and that in 1984 the Supreme Court, in an opinion called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., created what is known as the Chevron doctrine, giving executive-branch agencies broad “deference” to promulgate “regulations,” i.e., sets of substantive (as well as procedural) laws about which the agency has specific expertise.  Which suited conservatives fine during the Reagan and various Bush administrations, which, courtesy of that doctrine, had virtual carte blanche to undermine, say, the Environmental Protection Act or the Securities Exchange Act. But conservatives are having second thoughts about the wonders of the Chevron doctrine these days.

The current Supreme Court Republican majority, of course, shows no inhibition about switching sides in light of new circumstances, such as a Democratic White House.  The Chevron doctrine was too broad, but only very recently has the Court shown interest in narrowing it–in a way that probably would allow the doctrine to be broadened again, during the next Republican administration.

So the Chevron doctrine alone probably doesn’t explain why only the Goldwater Institute and a few Western-state doctors are the only ones to challenge the IPAB and questions related to review of the Board’s payment recommendations. And I haven’t read the trial judge’s ruling, and in fact was unaware of the case until I read Hillyer’s article.  But I’ll go way out on a limb here and suggest another sorta large problem with the challenge to that section of the ACA.  Whatever the Board’s plenipotentiary powers actually are, and whatever “plenipotentiary” means–I actually have no idea what the Board’s powers are, but the title of the agency is after all the Independent Payment Advisory Board, so presumably it’s an advisory board–what is clear is that neither the Medicare Act nor the ACA requires healthcare providers to accept Medicare insurance.  These healthcare professionals are no more required by law to accept Medicare patients than they are to accept patients who have insurance through one or another private company, or who have only catastrophic insurance, or Medicaid, or no insurance.

Their claim, in other words, is ridiculous.  But it does have the advantage of carrying with it the Madisonian Freedom/Liberty tag, a label that the Koch right confers upon anything it wishes, because that surely will gain the attention of the Fab Five’s law clerks once the Court is asked to hear the case.  Normally, they attach this label to anything concerning property rights or wealth or income accrued or to be accrued, actually or ostensibly, through the private sector, but here they’re branching out.  Here, they’re claiming a Madisonian constitutional right by the private healthcare industry to Medicare payments set by the private healthcare industry.

Farm subsidies and Medicare payment levels set by the healthcare industry forever! That was Madison’s motto.

Keep your government hands off my Medicare payment levels!  Who knew Madison was an M.D.?

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*Post edited slightly for clarity after initial posting.

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