Tag Archives: King vs. Burwell

Borkians Preserve Federal Obamacare Subsidies

29 Monday Jun 2015

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I have mixed feelings about the Supreme Court’s King vs. Burwell decision upholding federal subsidies for health insurance purchased in states that did not establish their own exchanges. My biggest concerns are that the decision gives a pass to the unchecked exercise of executive fiat as well as congressional carelessness (“lassitude”, to use Justice Scalia’s term), and the smearing of the separation of legislative and judicial powers. I admit that I was eager to see the exchanges unravel under the weight of their own lousy economics. However, the economics remain lousy even with the ruling, which will become more evident as major subsidies to health insurers expire over the next 18 months. It will be interesting to watch as the process of escalating premia plays out. I’m relieved that the Obamacare opposition in Congress (primarily Republicans) is now off the hook. These legislators never coalesced around an alternative and would have received a good portion of the blame for any further disruptions in the insurance “market” had the decision gone the other way. Probably their best approach would have been to extend the subsidies to all exchanges, at least for the remainder of Obama’s term. As Tyler Cowen notes, an extension would have occurred:

“… only after a lot of political stupidity and also painful media coverage. So on net I take this to be good news, although arguably it is bad news that it is good news.“

On the merits of health care policy, given the failure to put forward a better plan, what would have been gained over the next 18 months from a ruling for the plaintiffs? Not much.

Cowen links to a Robert Laszlewski post emphasizing the fragile economic and political condition of Obamacare:

“Obamacare has only enrolled about 40% of the subsidy eligible market in two years worth of open enrollments. That level of consumer support does not make Obamacare either financially sustainable or politically sustainable. The surveys say the 40% who have enrolled like their plans. Of course they do, they are the poorest with the biggest subsidies and the lowest deductibles. The working and middle-class have most often not signed up for Obamacare because it costs too much and delivers too little.

That Obamacare is not financially sustainable is evidenced by the first wave of big 2016 rate increases by so many large market share insurers. The next wave of rate increases a year from now will also be large and will be in the middle of the 2016 election.“

The SCOTUS decision flies in the face of the roles and responsibilities assigned to the branches of government by the Constitution. The implication of the ruling is that a law means whatever the executive branch says it means, even when it says the opposite unambiguously. This goes too far in granting executive power to “reimagine” legislation, and the Left may well come to regret it as a precedent. Executive rulings in implementing laws is nothing new, but one hopes for the courts to keep a tight rein on this discretion in an era when the regulatory environment is growing increasingly complex.

A Randy Barnett post at SCOTUSblog quotes Chief Justice Roberts’ opinion:

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.“

Improve health care markets? Not destroy them? Wait… I’m confused! But seriously, at this point in the process, Justice Roberts must be confused about actual outcomes. An objective assessment of Obamacare would include an accounting for the many individuals whose policies were cancelled against their wishes, premium escalation, and the fact that the ACA has fallen well short of expectations for reducing the number of uninsured; the law has certainly not improved markets. Barnett describes Roberts’ apparent philosophy on this point thusly:

“... the Chief Justice seems to be telling us that he is once again putting a thumb on the scale for the government here as he did in his solo opinion in NFIB. Rather than assessing the constitutionality of the law as written – or enforcing it according to its terms – the court will rewrite the law to suit the government.” 

This is not merely “legislative deference”, it is legislative rescue and a rewriting of the law. And Barnett points out that the Courts should provide a check on bad legislation, not serve as enablers.

Damon Root offers an excellent clarification of Roberts’ thinking: the strand of conservative judicial philosophy calling for deference to legislative intent is often attributed to Robert Bork. This obviously conflicts with the notion that conservatives are judicial activists. I discussed judicial activism here a few months ago, including Randy Barnett’s assertion that the term seems to be invoked as a pejorative almost any time someone doesn’t like a court decision. If it means preserving the Constitution, then count me as an activist.

Ilya Shapiro sums up the “intent” of the legislation and the “deferential” position taken by the court in King vs. Burwell:

“Roberts explains his transmogrification by finding it ‘implausible that Congress meant the Act to operate in this manner,’ to deny subsidies to millions of people as part of legislation intended to expanded coverage. But it’s hardly implausible to think that legislation that still says that states ‘shall’ set up exchanges—the drafters forgot to fix this bit after lawyers pointed out that Congress can’t command states to do anything—would effectively give states an offer nobody thought they’d refuse. It was supposed to be a win-win: states rather than the federal government would run health care exchanges (yay federalism!) and all those who need subsidies to afford Obamacare policies would get them (yay universal healthcare!).

But a funny thing happened on the way to utopia, and only 14 states (plus D.C.) took that too-tempting offer, perhaps having been burned too many times before by the regulations that accompany any pots of “free” federal money. And that’s why we ended up with King v. Burwell: Obamacare the reality doesn’t accomplish Obamacare the dream.“

We’ll watch to see how badly Obamacare fares over the next two years. And we’ll hope that eventually Congress can fashion a new health care plan that creates more choice, reduces taxes, increases competition and reduces coercive rules and regulatory burdens.

Consequentialists Dismiss Obamacare Consequences

15 Sunday Feb 2015

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The King vs. Burwell case now before the U.S. Supreme Court turns on whether the Affordable Care Act (ACA, or Obamacare) authorizes the payment of federal subsidies to consumers in states that do not sponsor their own state health insurance exchanges (up to 37 states, by some counts, depending on how certain “hybrid” exchanges are treated). In those states, Obamacare must be purchased on the federal (or a hybrid) exchange. Proponents of the law strongly desire the court to uphold the subsidies. However, the “plain language” of the law states that tax credits apply only to insurance purchased “through an Exchange established by the state.” That language does not appear to support the governments position in the case. In addition, one of the chief architects of the ACA, Jonathan Gruber, seemingly exposed the real intent of this provision:

“What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits — but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”

Who could have given a better description of the motive?

Others insist that the awkward language in the ACA on this point might have been a typographical error, that the tax credits were intended to subsidize purchases on any exchange, and that other wording in the legislation makes the legislative intent “ambiguous” at worst. Harvard law professor Laurence Tribe subscribes to this view. Tribe argues elsewhere that a ruling which finds federal-exchange subsidies illegal would throw the health insurance market into turmoil. Thus, taking a “consequentialist” approach, Tribe argues that the court should be reluctant to disrupt the market by ruling that subsidies were intended to be unavailable to states without exchanges under the ACA. This conveniently dismisses the fact that Obamacare itself has had and will continue to have so many negative “consequences.”

Obviously, not all agree that a ruling against the government would be such a travesty. A victory for the King plaintiffs would not increase anyone’s premiums. What it would do is prevent the IRS from shifting the burden of those premiums from enrollees to taxpayers. According to  Michael Cannon,  arguments against the plaintiff’s case have:

“… misrepresented the impact of a potential ruling for the plaintiffs by ignoring three crucial facts: (1) a victory for the Halbig [and King] plaintiffs would increase no one’s premiums, (2) if federal-Exchange enrollees lose subsidies, it is because those subsidies are, and always were, illegal, and (3) the winners under such a ruling would outnumber the losers by more than ten to one.”

Nevertheless, the  consequentialist argument suggests that the court might be reluctant to rule against the government in the absence of a viable and immediate alternative to Obamacare. That belief helped motivate the most recent GOP plan, sponsored by Senators Richard Burr, Orin Hatch and Representative Fred Upton, which is due for a vote in the House of Representatives next week. This alternative has been called “Obamacare Lite” by some GOP critics, and it does retain a few of the most popular Obamacare provisions. However, it eliminates some highly intrusive aspects of the ACA (the individual and employer mandates) and attempts greater reliance on markets to control costs. This review in the Washington Free Beacon is mostly favorable. Peter Suderman at Reason explains that the proposal would involve tax credits designed to promote affordability, but they would be less distorting and less generous than under the ACA. Here is a fairly complete but mixed review of the GOP alternative.by Robert Laszewski:

“My sense is that voters will end up liking parts of both Republican and Democratic ideas. They might ask a reasonable question: Why can’t we take the best from both sides? If Democrats would just admit Obamacare needs some pretty big fixes, and Republicans would be willing to work on making those fixes by putting some of these good ideas on the table, the American people would be a lot better off. In fact, I am hopeful that this is eventually what will happen once Obamacare’s failings become even more clear (particularly the real premium costs) and both sides come to understand that neither will have a unilateral political upper hand.”

Laszewski is critical of the plan’s potential for creating a new set of winners and losers, but his objection losses sight of the fact that distortions in the ACA create so many winners and losers as to be indefensible. For example, the ACA limits differences in age rating, effectively transferring wealth from younger premium payers to much wealthier seniors, while the GOP plan loosens those limits. Similar distortions were created by Obamacare’s mandates, taxes, lack of choice in health coverage, revocation of individual coverage, poorly designed provider incentives and reduced physician reimbursements, to give a short list.

I like many of the ideas in the Republican plan, but it is a compromise. Its reforms should reduce the cost of coverage. It increases choice, leverages market incentives, and reduces tax distortions, including the tax advantage of employer-provided coverage. At the same time, it wholly or partially retains ACA provisions that make coverage more affordable at low incomes and provide continuous coverage for those with pre-existing conditions. It also encourages the creation of state pools for high-risk individuals. These provisions might or might not  mollify “consequentialist” sentiment on the Supreme Court, leading to a majority ruling against the government in King vs. Burwell. If not, and while the question before the court is more narrow, the irony would be for the court to uphold the many destructive consequences of Obamacare.

Francis’ Statist Vision Not Shared By Venezuelan Clergy

16 Friday Jan 2015

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Some people lament our tolerance in the U.S. for “religious crazies.” Of course, these misgivings might reflect a certain view that religious people are crazy to begin with, as well as an outright hostility to constitutional protections of religious freedom. Do they mean that religious speech should not be protected? That one’s religious beliefs should not inform their political views? That religious freedom should not exempt anyone from rules imposed by government (the dispute in King vs. Burwell)? These possibilities cover a lot of ground, but none of them stands up to scrutiny in a free and liberal society. In fact, the apparent resentment of the Left toward “religious crazies” largely misses the point: the very expansion of government activity, in kind, degree and complexity, often brings the state into conflict with religious imperatives. And regardless of one’s stance on the taxation of religious activity, exemptions necessarily become more controversial in the sort of high-tax environment needed to fund big government.

But it is not just the secular Left that fails to recognize the inherent conflict between big government and religious liberty. Pope Francis himself seems oblivious to the dangerous implications of big government for religious freedom. His apostolic exhortation for greater reliance on the state to care for the poor simultaneously embraces socialism and condemns capitalism. I take no issue in principle with the provision of a social safety net, but the Pope should be more results-oriented in assessing different forms of social organization and their impacts on poverty. Big government typically fails to achieve the kinds of humane objectives usually espoused by the Left. The sad “road to serfdom” has played out many times in the past. In fact, in an apparent rebuff, Pope Francis’ Venezuelan Archbishops just issued a strong condemnation of socialist solutions to poverty. From Investors.com:

“The Venezuelan archbishops make the useful observation that if capitalist economies have problems, socialist alternatives are far worse for the poor and needy. Could it be the pope’s Latin American colleagues on the ground in the cesspool of communism are the ones who can get through to the holy father on economics?”

The Pope would do well to listen to his Venezuelan flock or to this great economic thinker, Thomas Sowell, who emphasizes the inability of government to craft solutions that “do no harm.”

Apart from lousy economic results, basic freedoms are seldom immune to compromise under the grip of big government. These reports from China should give the pontiff pause. The Chinese Communist Party is said to feel “threatened” by the growth of Chinese Christianity, and the government is cracking down, dismantling religious symbols and even destroying some churches. Similar outcomes have followed authoritarian governments many times in the past, and of course this isn’t the first crackdown on “religious crazies” under Chinese communism. No one should be surprised. Capitalism, with its miracle of market self-regulation, is the only economic system that is truly consistent with freedom and diversity of religion.

The Incredible Glibness of Being Gruber

16 Tuesday Dec 2014

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Jonathan Gruber is apparently a man of contradictions. He told a congressional committee last week that he “did not write any part of the Affordable Care Act.” He was asked at the hearing why he had claimed in 2012 that he did write part of the law. According to Peter Suderman, writing in Reason, Gruber replied “that it was ‘an effort to seem more important than I was,’ and that he was ‘speaking glibly.’” Video evidence of Gruber’s glibbery keeps stacking up in the wake of his sworn testimony.  He made the same “glib” claim at least twice in 2010 and again in 2012. In those videos, Gruber seemed pleased to issue disclaimers to his econ classes at MIT and other audiences that he “helped write” the ACA (Obamacare). From Suderman:

“There is no way to reconcile his multiple past statements with the statements he made this week while under oath. Either Gruber spent two years lying about his role in writing the law, or he was lying this week in his sworn congressional testimony.”

Now, Gruber has been subpoenaed again by the House Oversight Committee, this time in relation to his work and the income he earned as an Obamacare advisor. However, the subpoena covers all documents and exchanges with government employees, including work product, the results of economic model simulations, and any communications related to contracts and the funding of his research. Poor Gruber is in hot water. Lying to Congress, if that charge were pressed, could earn him up to five years in prison.

Of greater importance is that he very likely furnished the administration, as the law was being drafted, with economic projections showing that some existing private health plans would be cancelled. In his testimony last week, he admitted that his model simulations showed as much. Of course, President Obama was quite glib in his repeated assertions that “if you like your health plan, you can keep your health plan.” From Reason:

“Shouldn’t that mean that Gruber knew that administration’s repeated promises that those who like their health plans could keep their plans under the law weren’t true? 

Gruber was asked about the promise…. ‘I interpreted the administration’s comments as saying that for the vast majority of Americans the law would not affect the productive health insurance arrangements that they have,’ he said. ‘I did not see a problem with the administration’s statement.’

Of course he didn’t. Gruber is, after all, someone who argued that ‘lack of transparency’ was key to passing the health law.”

In fact, on the question of lost coverage, Gruber’s own comic book on the ACA made the same assurances as the Administration. See the frame at the top of this post! More contradiction.

Another crucial point is that Gruber claimed to have written the part of the ACA related to state health insurance exchanges. He stated on multiple occasions (captured on video) that the federal health insurance subsidies created by the ACA were intended as incentives for states to create their own exchanges. The “plain language of the law” is consistent with that claim; it is explicit in providing for subsidies only when a policy is purchased through a state exchange, not a federal exchange. Next year, the Supreme Court will hear the case King vs. Burwell, which turns upon whether the law itself disqualifies ACA insurance buyers in 36 states from collecting federal subsidies. Gruber’s videos appear to be quite damaging to the government’s case.

Obamacare’s Verity Disparity

26 Wednesday Nov 2014

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Increase demand for health care and reduce the cost of care… that was the the major thrust of the Obamacare sales job. It didn’t take an MIT economist to realize that the promise would be unattainable without major steps to enhance the supply of medical care. Unfortunately, nearly everything in the ACA and its implementation ensured the opposite, from the medical device tax to compliance burdens on providers and low reimbursement rates. Given the supply constraints, it should be no surprise that access to care among the newly insured is limited. Scott Atlas notes that Obamacare placed an emphasis on general care rather than specialist care, despite the growing need for specialists to serve the needs of an increasingly elderly population:

“Virtually all patients with serious diseases today are managed by specialists and with advanced technology. For seniors, visits to specialists have increased from 37% of visits two decades ago to 55% today. And that’s appropriate, because those are the doctors who have necessary training and expertise to use the complex diagnostic tests and devices, state-of-the-art procedures, and novel drugs of modern medicine. … Fittingly, Americans unambiguously prioritize the latest medical technology.”

Atlas also points out that most of the newly insured obtained their coverage via Medicaid:

“Medicaid is already refused by more than half of doctors across America, according to 2013 data from a 2014 Merritt Hawkins survey. Likewise, more than 20% of primary care doctors already accept no new Medicare patients, five times the percentage who refuse new privately insured patients.

In 2012 alone, CMS reported that almost 10,000 doctors opted out of Medicare, tripling from 2009. And, counter to the administration’s demonization of private insurers, it is Medicare that consistently ranks at the top of the charts for the highest rates of claim refusals….”

In describing the campaign to make Obamacare law, the pejorative “sales job” never seemed more appropriate in light of the recent revelations provided by the Jonathan Gruber videos. He is the aforementioned MIT economist, and his statements indicate that the law’s team of elite architects knew full well that selling it would require deceit. Here are links to two perspectives on this crew’s dishonesty and contempt for voters: first, Clive Crook provides a Democrat voter’s perspective on certain tendencies in the party that he finds regrettable:

“This syndrome of Democratic disdain, I think, has two main parts. First, liberals have an exaggerated respect for intellectual authority and technical expertise. Second, they have an unduly narrow conception of the values that are implicated in political choices. These things come together in the conviction that if you disagree with Democrats on universal health insurance or almost anything else, it can only be because you’re stupid.

Voters recognize this as insufferable arrogance and, oddly enough, they resent it. Democrats who might be asking where they went wrong in the mid-term elections — not that many of them are — ought to give this some thought. The conviction that voters are stupid, however, isn’t just bad tactics. It’s also substantively wrong.”

Jonah Goldberg offers a view of the Obamacare deceit from the right:

“Speaking of transparency, the Washington Examiner’s Timothy Carney notes that Obama frequently attacked the ‘special interests’ opposed to the bill even though the very same interests supported the bill thanks to the generous bribes — er, ‘subsidies’ — included therein. From the Rose Garden in 2009, Obama attacked drug companies for opposing the bill, even though he knew the drug lobby helped craft it. (Carney notes, ‘Behind closed doors, the White House apologized to drugmakers for that line, blaming a ‘young speechwriter.’’)”

Here is an earlier SCC post on the Gruber videos, including the damage wrought by Gruber to the government’s argument in the upcoming King v. Burwell case to be heard by the Supreme Court next year.

Obamacare Gets a Whole New Grube

13 Thursday Nov 2014

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Is anyone unaware at this point that Obamacare (the ACA) was built on a foundation of lies? The “tax vs. penalty” controversy was squirrelly, as the administration shifted positions in defending the individual mandate before the Supreme Court in 2012. Surprisingly, that court decision went in favor of the ACA despite the obvious flip-flop. Of course, we heard Obama say, “if you like your plan, you can keep your plan,” and “if you like your doctor, you can keep your doctor,” both of which were patently false statements. Now, we have the curious case of Jonathan Gruber, the celebrated MIT economist and a chief architect of the ACA. A citizen journalist (“real” journalists were asleep at the switch) uncovered a series of video clips of Gruber in which he strongly asserts that there was willful deceit involved in the crafting and selling of the health care law. Some Gruber:

“This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO [Congressional Budget Office] scored the mandate as taxes, the bill dies. Okay, so it’s written to do that. In terms of risk rated subsidies, if you had a law which said that healthy people are going to pay in – you made explicit healthy people pay in and sick people get money, it would not have passed… Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really really critical for the thing to pass….”

Ron Fournier, at the first link above, writes:

“Liberals should be the angriest. Not only were they personally deceived, but the administration’s dishonest approach to health care reform has helped make Obamacare unpopular while undermining the public’s faith in an activist government. A double blow to progressives. …Gruber’s remarks are evidence that the administration intentionally deceived the American public on the costs of the programs. …And so even I have to admit, as a supporter, that Obamacare was built and sold on a foundation of lies.”

Even worse for those clinging to hope that the ACA will survive intact, in July, a year-old video came to light in which Gruber confirmed that the Obamacare subsidies were intended as an inducement  to states to provide their own insurance exchanges, rather than relying on the federal exchange. This is now the subject of another case before the Supreme Court, King vs. Burwell. Sacred Cow Chips featured a post on Gruber’s statement in July, when he attempted to pass-off the remarks as mistaken, a “speak-o” as he put it, but he said the same thing on at least three separate occasions. In so doing, Gruber helped to make the case that subsidies were not intended for individuals purchasing insurance through the federal exchange.

There has been a spate of recent contentions that Obamacare is “working” after all. Lest any hypocrite take solace that the lies and deceit were worthwhile after all, the positive news is scant. Of course, the number of uninsured has declined to some extent, but almost entirely via Medicaid enrollment, for which access to providers is often problematic. Premia have increased for many previously insured under individual policies. Overall measures of premia are distorted by subsidies and the so-called “risk corridors,” basically bailout funds kicked back to health insurers to keep them profitable. There are a host of other problems. You can read about some of them here.