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What Glenn Kessler–and I–Missed Earlier In Emilie Lamb’s Claim: That She SAYS Obamacare Caused Her Hospital and Doctors to Stop Gratuitously Forgiving Her Medical Expenses Above $1,000. That’s Palpably False. [UPDATED.]

“I was diagnosed with lupus when I was 27. Lupus is an autoimmune disorder. It’s dramatically affected my life. I voted for Barack Obama for president. I thought that Obamacare was going to be a good thing. Instead of helping me, Obamacare has made my life almost impossible. Barack Obama told us we could keep our health insurance if we liked it. And we can’t. I got a letter in the mail saying that my health insurance was over, that it was gone.  It was canceled because of Obamacare. My premiums went from $52 a month to $373 a month. I’m having to work a second job to pay for Obamacare. For somebody with lupus, that’s not an easy thing. If I can’t afford to continue to pay for Obamacare, I don’t get my medicine; I don’t get to see my doctors. I am very disappointed in Barack Obama as a president. He made promises he didn’t keep. And that’s disheartening.”

–Tennessee resident Emilie Lamb, 40, in an ad sponsored by Americans for Prosperity

I posted yesterday about the odd claims in this ad and about Glenn Kessler’s exchange with her in which she told him exactly WHY she was so happy with her old policy, which, she indicated, had a $25,000 cap on annual benefits, and no limit on out-of-pocket costs, and that it would only cover generic medications. The reason: That her hospital, Vanderbilt Medical Center in Nashville, and her Vanderbilt-affiliated specialists, were forgiving her payments, including for intravenous medications provided multiple times weekly, above $1,000 annually.

Kessler said she told him that in 2007, before she was diagnosed with lupus, she “fell off a horse, requiring seven surgeries at Vanderbilt Medical Center.”  And that one surgical bill was for $125,000, but that “after negotiations with CoverTN, the hospital agreed to reduce the charges to below $25,000. In the end she barely paid anything in hospital costs after her accident.”  She said, “Really after that, I was not worried about something catastrophic”–something that would exceed the $25,000 cap.

Kessler continued:

To put her [lupus] expenses in context, the American College of Rheumatology says that average cost per patient with lupus is between $14,000 and $28,000, though patients with one form of lupus have significantly higher costs – ranging from $29,000 to $63,000.

And then he provided more details from his communication with Lamb:

Once Lamb was required to go on Obamacare, she discovered she qualified for a $15-a-month subsidy, which could be applied to nearly 40 different options. She chose one of the more expensive options—a Platinum plan – because it limited out of pocket expenses to $1,500, as her doctor fees and blood tests would be higher under the Obamacare plans. She also considered a plan with a lower premium, but it would have meant higher out of pocket expenses. “Instead of paying $6,000 a year, I would have been paying $10,000 a year” with the plan with a lower premium, she said.

I titled my original post: Emilie Lamb was subsidized by her doctor’s largesse and by federal taxpayers and full-coverage-insurance policyholders.  She still will be.  She should acknowledge that, publicly. But today I reread Kessler’s post after I reread my own, and I realized that her claim is this: that pre-Obamacare, she had been subsidized by her doctors’ and her hospital’s largesse, but that because of Obamacare her doctors and her hospital were now requiring her to pay her full out-of-pocket costs–all her medical costs that are not covered by her new insurance plan.

The chance that this true is zero.  Its sheer absurdity is why, upon first reading or hearing her complaint, it doesn’t immediately register that that is its sum and substance.  She’s saying that when she had a policy that had no caps on out-of-pocket expenses, and an annual cap of $25,000 (probably well below her annual medical bills each year), her doctors and her hospital were willing to forgive all but $1,000 of those bills each year.  But that now that she has a policy that has no annual cap and has a $6,000 out-of-pocket cap-so that the hospital and doctors will receive much more of the amounts they bill than they were before–they’ve told her that she now has to pay in full that $6,000 a year. And that she chose a platinum plan rather than a lower-cost plan that has a $10,000 cap on out-of-pocket expenses because her suddenly uncooperative hospital and doctors would require her to pay the full $10,000 in annual out-of-pocket expenses rather than just the full $6,000 in full annual out-of-pocket expenses for the platinum plan.  Because of Obamacare.

No matter that Obamacare has a maximum annual out-of-pocket cap of about $6,500.

Because of Obamacare, her hospital and doctors said they would require full out-of-pocket payments from her rather than forgive the now-much-smaller amounts above $1,000 a year that her insurance plan will cover.  So because of Obamacare she chose a platinum plan rather than a gold or bronze one that was the same cost as her cancelled one.  No, she didn’t chose the platinum plan out of fear that her old tin plan would leave her bankrupt or unable to access the care she needs if her hospital and doctors suddenly withdrew their largesse.  Uh-uh. Because of Obamacare she suddenly needed a platinum plan.  So she bought one.  Even though paying for it makes her life almost impossible.

Reader Urban Legend posted this comment to my earlier post:

Besides the fact that her policy was crap, it appears there are numerous bronze or silver plans available in Tennessee to a 40-year-old for between $150 and a little over $200 (in Davidson County, Nashville, presumably the most expensive county in the state) . That is the overwhelming majority of plans, and that is without any tax credit assistance. Plans near $373 for someone that age are gold or platinum plans, some with $0 deductibles and out-of-pocket maxes at $1500 or less.

And presumably her employer is continuing to contribute the same amount as before. She was happy with her old plan, but would not have been happy with one for about the same cost as that old plan and that has better benefits, so that more of her medical bills will be paid by her insurer.  Her hospital and her doctors now want her to pay her full medical bills that are not covered by her insurance, and they didn’t before Obamacare.

Her hospital and doctors must be Republicans.  She shouldn’t have told them she voted for Obama, thinking that the ACA would help her.  They sure showed her!

And to think she had thought Obamacare would help her–by requiring her hospital and her doctors to provide free lifetime healthcare for her, saving her $1,000 a year.

Lamb, it turns out, was, like Julie Boonstra, a guest of her Tea Party Republican congressional representative at the State of the Union address.  And, like Boonstra, she’s a pretty cheap date.


UPDATE: Here’s an exchange between reader EMichael and me this morning, 3/2, in the Comments to this post:


I wonder what the financial effects on the hospital and doctors who are forgiving her debts?

And who pays for that forgiveness?

Another thought, I wonder if Ms Lamb has already been hit by the IRS for this past debt forgiveness, or will be hit now that she has gone public?


Hi, EMichael.  My earlier post on her did make the point that it’s the federal government (in very substantial financial assistance to hospitals for the very purpose of helping them cover the uninsured or the underinsured–an important purpose of the ACA), and her doctors, and people who do have comprehensive insurance, that have been footing her very large medical expenses.  In this current follow-up post, I make the point–which I originally missed and which Kessler missed–that she makes, in essence, a key claim to Kessler that surely is false: that her hospital and her doctors have told her they will no longer forgive her uninsured bills that total more than $1,000 a year, and that their reason is Obamacare.

And if THAT is false, and her hospital and her doctors have told her no such thing, then she was flagrantly lying by saying that she was happy with her old plan.  If she was happy with her old plan, which had NO cap on out-of-pocket expenses and a total annual cap of $25,000, because she felt she could continue to rely on the generosity of her hospital and doctors to forgive all but $1,000 a year, why would she have been unhappy with a bronze or gold plan that would have paid her hospital and doctors more than her old plan did?  Why did she believe that she now would have to pay out-of-pocket expenses of $10,000 annually under a plan that would have cost her and her employer–who presumably is still contributing the same amount as last year–the same as her cancelled plan did last year, and instead chose a platinum plan whose premiums are causing her to take a second job and making her life almost impossible in order to have to pay $6,000 a year rather than $10,000 a year in out-of-pocket expenses?  Why is she suddenly no longer comfortable relying on the special $1,000 annual cap that her hospital and doctors were providing her, and why is she claiming that Obamacare is at fault?

I’m going to email Kessler and ask that he inquire further about this.  If Lamb refuses to answer, maybe he can ask the Vanderbilt Medical Center whether they’re now refusing to forgive out-of-pocket expenses because of Obamacare, and, if so, what it is in the ACA that has caused them to make that decision. If Kessler won’t do it, I’ll ask PolitiFact or even Greg Sargent to do it.

This is serious stuff.  This woman has so little concern for others who have serious chronic illnesses that she’s willing to baldly lie in exchange for a free trip to Washington.  Wow.  I mean, really.  Wow.

I’ll add that I’m pretty sure that the IRS does not consider a hospital’s or doctor’s forgiving of medical costs to a patient who cannot pay those costs taxable income. I certainly hope it doesn’t. It’s basicly a gift of medical services. But Ms. Lamb pretty much personifies the ultimate in chutzpah by claiming falsely that Obamacare has, rather than helped her, instead made her life almost impossible by causing her hospital and doctors to stop forgiving her uninsured medical bills of more than $1,000 a year because under Obamacare those uninsured medical bills will be much lower and because she chose to pay more in order to reduce those uninsured medical bills to $6,000 a year rather than to $10,000 a year–now that, thanks to Obamacare, she has access to private healthcare plans.

Several commentators have noted that the AFP ads curiously stage only middle-aged women who have chronic life-threatening illnesses, and who make “reasonable judgments” that they were harmed, based upon flatly false beliefs or representations.

So here’s what I suggest to the Democrats: Have a middle-aged woman who has a chronic life-threatening illness ask in an ad why the AFP keeps portraying middle-aged women who have chronic life-threatening illnesses as deeply ignorant, seriously math- or logic-challenged, or just plain easily manipulated.  In fact, of course, these women are knowingly propagating a fraud about what they, of all people, know is, for many, many others a life-or-death, or bankruptcy matter.

They’re con artists, pure and simple.

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Julie Boonstra Says That Because Obama Lied to Her, She’s Entitled to Lie to Others. [UPDATED]

Julie Boonstra is a Michigan mother currently battling leukemia. Her medical coverage has been adversely affected by the onset of Obamacare. She’s had the courage to let people know about her struggle by speaking truth to power in an ad sponsored by Americans for Prosperity’s chapter in her state.

Julie tells John that she blames Congressman Peters for trying to quiet her & President Obama for lying to her and the American public about Obamacare. (Boldface in original.)

“The President Lied to me” Cancer Patient Julie Boonstra tells Gibson she will not stay quiet, Fox News Radio, Feb. 25

Apparently, this woman continues to claim, falsely, that her medical coverage has been adversely affected by the onset of Obamacare.  She also claims that Peters, who requested documentation from AFP, which sponsored the ad featuring her, supporting her claims was an attempt to silence her from saying that Obama said falsely that everyone who wanted to keep their health care plan could do so.  

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Michigan Republican Senate Candidate Terri Lynn Land Comes Out For Single-Payer Healthcare Insurance! Seriously!*

As far as Julie Boonstra being taken advantage of, I don’t think it’s just AFP that’s involved. She owns a home in Dexter with the former chair of the Washtenaw County Republican Party Mark Boonstra.

Eclectablog, this morning

Hmm.  Okay, so it’s not just Ms. Boonstra who can’t perform simple math, it’s also former Washtenaw County Republican Party chair Mark Boonstra who can’t, at least if he communicates regularly with the person with whom he owns a home in Dexter, Mich.  Or maybe he can, but just didn’t.

In any event, the Americans for Prosperity ad featuring Ms. Boonstra has been targeting Rep. Gary Peters, the Dem candidate to replace retiring Sen. Carl Levin. Peters’ opponent is Terri Lynn Land, a former Michigan secretary of state, who earlier came out for full repeal of Obamacare.  Michigan is one of the few states with Republican governors to adopt the ACA’s Medicare expansion, which will begin this spring and, as Greg Sargent points out, will provide healthcare coverage to about 400,000 Michigan residents.

Given Land’s repeal-Obamacare stance, Sargent asked her campaign whether she wants the Medicaid expansion repealed along with the rest of the law.  Sargent published the campaign’s response to him yesterday:

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Emilie Lamb was subsidized by her doctor’s largesse and by federal taxpayers and full-coverage-insurance policyholders. She still will be. She should acknowledge that, publicly.

“I was diagnosed with lupus when I was 27. Lupus is an autoimmune disorder. It’s dramatically affected my life. I voted for Barack Obama for president. I thought that Obamacare was going to be a good thing. Instead of helping me, Obamacare has made my life almost impossible. Barack Obama told us we could keep our health insurance if we liked it. And we can’t. I got a letter in the mail saying that my health insurance was over, that it was gone.  It was canceled because of Obamacare. My premiums went from $52 a month to $373 a month. I’m having to work a second job to pay for Obamacare. For somebody with lupus, that’s not an easy thing. If I can’t afford to continue to pay for Obamacare, I don’t get my medicine; I don’t get to see my doctors. I am very disappointed in Barack Obama as a president. He made promises he didn’t keep. And that’s disheartening.”

–Tennessee resident Emilie Lamb, 40, in an ad sponsored by Americans for Prosperity

The Facts

Lamb’s old plan was provided through a public-private program aimed at lower-income workers called CoverTN, which split the premium costs between an employee, the employer and the state. That’s a big reason why Lamb’s premium was only $52 a month, but in an interview she said she would have gladly paid and could have afforded the full $156 a month.

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Julie Boonstra, Americans for Prosperity, and the Triangle Shirtwaist Factory Fire Trial

The Tea Party group Americans for Prosperity has now released its factual documentation for its misleading ad featuring Julie Boonstra, a Michigan woman stricken with Leukemia who suggests Obamacare forced her to take on a new plan that is now “unaffordable.” The ad has been widely pilloried ever since Glenn Kessler discovered that her premiums had come down, likely making her overall costs a wash or even cheaper. Gary Peters, the Dem candidate for Senate in Michigan, had written to TV stations insisting on documentation.

The documentation provided by AFP, which was passed along from TV stations by the Peters campaign, doesn’t actually back up the ad’s key claim. But it tells us something interesting about how the AFP campaign — and by extension, the broader GOP strategy against Obamacare — really work.

To buttress the ad’s charge that Boonstra’s “out of pocket charges are so high, it’s unaffordable,” AFP cites a single Politico article reporting that “consumers may have to dig a little deeper into their wallets to pay for health care in the Obamacare insurance exchanges,” because the law could mean additional out of pocket expenses. Needless to say, that doesn’t shed light on Boonstra’s individual situation. And on that front, AFP’s documentation offers this (emphasis mine):

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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 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, 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

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 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 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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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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Linda Greenhouse’s ACA-Litigation-Outcome Tea-Leave Reading (And Why I Think She’s Right)

In an email exchange between Dan and me on Tuesday, I wrote:

Btw, the Supreme Court has been amazingly slow this term in issuing opinions in high-profile cases.  Most of the opinions they’ve issued recently are on pretty esoteric issues; they’re important, but pretty inside-baseball.  A good example is an opinion they issued yesterday.  Here’s a great article on it at SCOTUSblog….  If you read it, I think you’ll see what I mean by esoteric and inside-baseball.  I do have to say—as the author of the article does—that Alito’s dissent is spot-on.  And, as the author says, it’s downright baffling that five justices signed on to Thomas’s wacky opinion.  The article indicates that Thomas apparently flipped Scalia after the oral argument.  Scalia had it right the first time.

In an op-ed piece yesterday in the New York Times, Linda Greenhouse, that paper’s longtime Supreme Court correspondent, who retired three or four years ago but still writes two or three op-ed commentaries a month there, mentioned the Court’s slow pace in issuing its “big” opinions this term.  Then she discusses an opinion that the Court issued on June 4 that, like most Supreme Court opinions, got little attention in the mainstream press but is nonetheless important. 

Most Supreme Court opinions decide “procedural,” “jurisdictional” or “standard-of-judicial-review” questions, which sometimes involve constitutional questions, often under the guise of statutory-interpretation ones.  Often, the court treats these cases as though they present only issues of interpretation of a federal statute and pretend that the case does not implicate constitutional law even if really does.  But the case Greenhouse discussed, Amour v. City of Indianapolis, was squarely a constitutional-law case involving the Fourteen Amendment’s equal protection clause, and did not involve a federal statute but instead a Supreme Court-created standard of judicial review of the constitutionality of a government policy or law that has the effect of discriminating against some class of people. 

Under the Court’s longtime equal-protection jurisprudence, the law is more tolerant of certain types of government discrimination than of other types of discrimination.  Laws or policies whose purpose is purely fiscal are among the types of government actions entitled to the most tolerant, or most “deferential,” level of judicial “scrutiny.”  Courts are not entitled to bar those laws or policies as violative of the equal protection clause unless there is no conceivable legally legitimate “rational basis” for the discrimination.   Greenhouse observes (as most liberal court watchers have recognized) that the conservative justices select out a few favorite conservative causes—most notably, the cause of George W. Bush becoming president instead of Al Gore, but also challenges to government affirmative action programs, and issues concerning religious speech in public schools (which Greenhouse doesn’t mention), and property-rights and tax cases—in which to champion the right of equal protection, while otherwise normally accepting virtually any stated basis for government discrimination as a sufficiently rational one to pass constitutional muster.  Of these conservative-favored types of cases, the deferential “rational basis”—i.e., almost anything goes—standard is applied only to the property and tax-type cases.  Conservative legal-movement types hatethat it is.

Armourconcerned a sewer improvement assessment in an Indianapolis subdivision.  Greenhouse summarizes:

The city gave the 180 property owners affected a choice of how to pay the $9,278 assessment: in a lump sum, or over time with interest. Most chose to pay over 10, 20 or 30 years. Three dozen paid up front, and the city then played them for suckers, announcing a year later that it was changing the way it financed sewer improvements and would issue bonds to cover most of the cost. It would forgive the indebtedness of the installment-payers. But the city refused to give the full-payers any of the refund they demanded.

The full-payers sued for a refund of all but the first year’s pro-rated assessment.  In a 6-3 opinion written by Breyer, the majority accepted as a sufficiently legitimate rational basis the city’s claim that the refund process would be difficult administratively and that the city then also would probably have to make similar refunds in other parts of the city.  Roberts wrote a strong dissent, but, as Greenhouse points out, it was fact-based rather than an attempt to change the law itself.  Roberts, joined by Scalia and Alito, said that the city’s proffered basis was not sufficiently legitimate under the rational-basis to pass equal protection muster.  But he did not advocate a change in equal protection legal doctrine itself; he did not suggest that the Court should abandon the rational-basis test for property-rights and other fiscal cases.  And Kennedy joined Breyer’s majority opinion.

Which Greenhouse interprets as potentially indicative of the outcome of the Affordable Care Act case.  I do too, although I’d already concluded more than two months ago that Roberts and Kennedy probably would vote to uphold the individual-mandate provision.  I based that in part on an earlier Greenhouse op-ed in the Times, in which she discussed a comment by Kennedy late in the oral argument on the challenge to the individual mandate, and a comment by Roberts.  Neither comment had gotten much attention in the press coverage immediately following the argument (and I hadn’t read the lengthy transcript of the argument).  I also concluded once the dust had settled two or three weeks after the argument, and I’d read many articles and commentaries about it, that the majority might tacitly and effectively uphold the mandate’s constitutionality, by not formally making that ruling at this time but making it clear that eventually they will.  I still think that’s a possibility, but one that, because of recent historical findings by a Harvard professor published a few weeks after the argument, is less likely now. 

In several posts on AB beginning about a year ago, I argued that the challengers’ Commerce Clause argument—that in enacting the ACA, Congress’ exceed its power under the Commerce Clause—was really a disguised Fifth Amendment “substantive due process” argument (liberty! freedom!), not a Commerce Clause argument at all.  Under the Supreme Court’s Commerce Clause jurisprudence, beginning in the mid-1930s with cases challenging the constitutionality of some of the New Deal legislation, and including a high-profile opinion issued in 2005, the ACA appears comfortably within the authority of Congress’s Commerce power.  It was that darned liberty thing that really was at issue: the slippery slope to Congress’s requiring the purchase of broccoli.   That is, this is a Fifth Amendment substantive due process argument, not a Commerce Clause argument.  As I pointed out, the “freedom” issue would be the same whether Congress achieved the end through it Commerce power or instead through its taxing power. 

And, in fact, the ACA’s enforcement mechanism—the penalty for not obtaining medical insurance arguably is a tax.  And since that’s the only enforcement mechanism—there is no provision for arrest and imprisonment, for example—the taxing power would suffice.  But that still would leave the issue of freedom! liberty!  And that slippery slope to broccoli-purchase mandates.  Unless, of course, the ACA mandate is no different, in a liberty! freedom! sense, whether enacted through the Commerce power or instead through the taxing power, than, say, Medicare and Social Security, but that a broccoli mandate, whether enacted through the Commerce power or instead through the taxing power is very different, and would be a violation of Fifth Amendment substantive due process (personal choice, liberty). 

Shortly after I wrote my first AB post making this argument, the first of two appellate-court opinions upholding the law under a virtually identical analysis was issued, both of them written by conservative-movement leading lights.  In the second of the two, issued last August, another leading-light movement-conservative judge dissented, but only from the determination that the law was within Congress’s Commerce Clause power, not from the conclusion that the law unconstitutionality infringed upon individual liberty.  That judge said that had Congress tweaked the statute even just slightly, enacting through the taxing power rather than through the commerce-regulating power, running the mandated insurance purchase through the government, the statute would be constitutional, both in that Congress would have the authority to enact it and that the mandate would not violate constitutional precepts of individual liberty.  And it turns out that the lawyer for the statute’s challengers agrees, as (apparently) does either Kennedy or Roberts (I can’t remember which).  And probably both do.

It was a third appellate case that the Supreme Court agreed to hear.  In that case, the Obama administration originally argued that the ACA’s penalty provisions was a tax, that the ACA was enacted under both the Commerce power and the taxing power—and that under a federal “jurisdictional” statute known as the Tax Anti-Injunction Act, which bars the courts from hearing a constitutional challenge to a federal taxing statute until after the tax is due, the courts lacked “jurisdiction” (legal authority) to consider the constitutional challenge at all until April 2015, when the first penalties under the ACA would be due.  But when that case on appeal, the administration reversed its position and said the penalty was, well, just a penalty, not a tax, and that the ACA was enacted solely under Congress’s Commerce power.  If so, the courts could hear the challenges to the Act.  That appellate court agreed, and in a split opinion held the mandate provision unconstitutional under what the majority said was a finding that Congress exceeded its Commerce power authority but what, the language of the opinion made clear, was really a finding that the mandate violated Fifth Amendment due process, or individual liberty, rights.  This, although the opinion didn’t mention the Fifth Amendment or due process.

When the Supreme Court agreed to hear that case, it decided to hear as a threshold issue, although neither side had asked it to do so, whether the penalty is really a tax and therefore its constitutionality cannot be decided until 2015.  That issue was argued on the first of the three days of argument.  The next day, late in the argument on the mandate issue, Kennedy or Roberts asked the lawyer for the challengers whether an insurance mandate enacted under Congress’s taxing power would be constitutional—that is, whether Congress not only had the authority to enact such a mandate through the taxing power but also whether such a mandate would be constitutional; in other words, whether it wouldn’t violate a due process liberty right and lead to the possible forced purchase of broccoli. The lawyer said Congress could enact such a mandate through its taxing power, and apparently the justices didn’t dispute this. 

So if a majority of the Court concludes that the mandate penalty is a tax, they can postpone an actual ruling on its constitutionality until after April 2015, while  strongly suggesting in its opinion this month that the mandate and its enforcement-mechanism penalty do not unconstitutionally violate individual liberty. 

But I don’t think they’ll do that.  In an article titled “IfHealth Insurance Mandates Are Unconstitutional, Why Did the Founding FathersBack Them?”, published in the New Republic in mid-April (three weeks after the Supreme Court arguments), Harvard law professor Einer Elhauge pointed out that on two occasions in this country’s earliest days, Congress, whose members the included several drafters of the Constitution, enacted statutes mandating that certain citizens purchase a private product.  In one instance the product was guns, in the service of a creating a citizens’ militia.  In the other instance, the product was medical insurance, which ship owners were required to buy for their seamen, enacted apparently under Congress’s Commerce power.  Neither law was thought to violate constitutional concepts of individual liberty.

Which creates sort of an obstacle for the conservative “originalist” justices.  And which causes me to think that a majority will uphold the mandate as authorized under the Commerce power and that the penalty is, after all, not a tax but instead just a penalty.

Which in turn causes me to disclaim my prediction before I’m even proven wrong.  After all, this type of prediction is worth the cost of the paper it’s not even written on. If that.

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