Color commentary on the Obamacare Games

Incredibly, I was able to find some stuff about the Obamacare hearings to cover this week. OK, there is the factor of pro- and anti-Obamacare groups wasting precious hours outside the Supreme Court to agitate for their preferences, but that doesn’t merit the attention of a post. As we speak, the justices are debating exactly what to do if the individual health insurance mandate ends up being ruled unconstitutional. Their options are as follows:

1. Strike down the entire law, as the individual mandate impacts other provisions and the Obama administration itself says the law as a whole wouldn’t work without it.

2. Eliminate the provisions that are only possible with the mandate, including itself.

3. Eliminate the mandate only and leave the rest of the law intact.

Speaking in purely legislative terms, I would go with option 2. It would be both intellectually consistent and, possibly, an effective deterrent for future Supreme Court battles over Obamacare’s constitutionality. (Sidebar: For those who are bothered by my use of the term “Obamacare,” I am doing this to spare myself the exertion of typing “the health care reform law” every time.) The trouble is that the Supreme Court is not the legislative body. Even if they only ruled certain elements of the law unconstitutional, it would be up to Congress to remove them. This argument may have been appropriated by the left side of the court, but it makes perfect sense to me.

I did chuckle at Justice Antonin Scalia’s response to the idea of looking for every constitutional hiccup: “You want us to go through 2,700 pages?” It is sad that this legislation would take up about 15 percent of the space on my bookshelf, based on a completely unscientific glance upward from my computer. Unfortunately, that’s the massive hand that the court has been dealt. Someone really needs to figure out a methodology for writing executive summaries of this stuff.

One thing that has disappointed me throughout this process is how many observers have failed to make the distinction between a state-imposed mandate and a federally imposed one, instead choosing to judge the concept in isolation. As I’ve written, while I initially opposed the idea, observations of other countries’ success with it has led me to change my views. But they don’t favor decentralized law the way the U.S. Constitution does. That is the issue.

Final word for the day, as we will no doubt revisit this later: If you are a business who would benefit from a decision going a certain way, please do us all a favor and keep quiet.

Rethinking Obamacare many, many challenges later

One idea of Rep. Michele Bachmann’s (R-MN) campaign-era ideas that I always liked was a requirement that proponents of any federal legislation must prove its constitutionality. Had that rule been in place before President Obama spent his entire first year in office on his health reform law (except for the stimulus package), we might be spared the forthcoming ruling on the constitutionality of the law’s individual insurance mandate. It’s not looking good.

The administration has attempted to use the Commerce Clause to justify the mandate; you’ll find that most arguments about an overstep of federal authority will include the Commerce Clause on someone’s end. Lawyers for a group of 26 states opposing Obamacare say the clause does not permit the government to compel individuals to buy anything from private companies. I say “private companies” because these same individuals are compelled to buy into Social Security and Medicare.

Health care delivery systems in Germany and Switzerland prove that there is a place for individual mandates in theory. You have to remember, though, that their governments are more federalist than that of the U.S., thus allowing them to create mandates and provide public health services on a national scale. For their models to work throughout the U.S., each state would have to adopt them on their own time, unless Obama were willing to amend the Constitution to put health under federal purview. He might have done that in 2009.

The ultimate goal, then, for health care is fivefold: making sure the most necessary coverage can be accessed by anyone, privately or publicly (1), while respecting states’ rights (2), containing frivolous costs (3) and maximizing efficiency (4) without skimping on quality care (5). States with their own versions of Medicaid have already taken a big step toward this. Were they to regulate commerce on the part of association-based insurance companies, i.e. Blue Cross Blue Shield, if they didn’t already, frivolity might be less of an issue, too.

The federal government could regulate activity on the part of insurance companies operating on an interstate scale, i.e. Humana, and providing financial support to states that demonstrate that they are taking the steps to reach the fivefold goal described above. Obama had the right idea about the public option and the individual mandate; he was just wrong in assuming his government was within its rights to provide it. Look what a mess that made.

The upside of decentralization is that nothing keeps the feds from teaching states what’s sensible and tempting them to enact it.

Hey, look! A real-life job-killing tax hike!

It’s time once again for The Future American’s FAIL OF THE WEEK! Every Saturday, I name a person or group who has spent the past seven days behaving in a particularly idiotic way. Since it’s my belief that idiocy knows no politics, nobody is safe.

This week’s fail was brought to you by whoever thought this was a good idea: a 2.3 percent excise tax on the medical device industry, imposed to pay for Obamacare. I admit, I have been skeptical when Republicans accuse every proposed tax hike under the sun of being a surefire job-killer. I was starting to wonder if that trope was just a fiction they’ve perpetuated over the years to keep people scared, like vampires, or other vampires. Yet, here it is.

Both the Senate and the House have medical technology caucuses, composed primarily of members from Minnesota, which employs 6.9 percent of the entire industry. During the amendment stage of Obamacare, the Senate caucus’s Democratic leader, Sen. Amy Klobuchar (D-MN), succeeded in getting the original tax cut down from $40 billion in impact to $20 billion. That wasn’t enough to stop the tax from being set to slash an estimated 2,700 jobs in Minnesota in 2013. After all, why would the manufacturers bother keeping shops in America where they can just abandon those pesky taxes?

While this may be the worst time to recommend any move that might result in a loss of revenue, no revenue should be earned this way. This is a tax that did not need to happen. It directly affects American-based manufacturers, which are collectively the key ingredient in modern job creation. More importantly, it affects an industry that, ironically, would further the cause of health in America. This is like paying for a sweeping healthy food plan by taxing makers of apple corers and carrot peelers.

In the future, I would like lawmakers to ensure that the objective of the tax hike is proportional to the byproduct. No industry, least of all one involved with health, should risk hemorrhaging jobs because someone had an agenda (however well-intentioned) they wanted to fund. Given Obamacare’s dubious history, I’m not sure that anyone outside of the less-private health care voting bloc would say it’s worth the tax increase.

Here’s the secret to tax hikes: Impose them on the things only idiots want. Like Nickelback albums. And other vampires. And tofu, which to this date is the worst thing I’ve ever ingested. Medical technology that has the potential to save lives? Not so much.

And in the red corner . . .

I have absolutely no sympathy for lobbyists who fear that USConJointSelComDefRed may be impervious to their influence. They can take that influence and stick it Jack Abramoff’s craphole, as far as I’m concerned. The nation’s 29 Republican governors, on the other hand, are a different story. They’re using the existence of the debt supercommittee as occasion to fight for more control over how Medicaid monies are spent.

The Gang of 29, as we will call them hereafter, believes “outdated or inappropriate federal guidelines” are hindering their ability to provide the most effective care to their residents. They would prefer to receive lump sums from the feds, mete it out according to state-based guidelines and “be held accountable for the results.” Navigating existing federal rules and waivers is too much of a headache, especially in the fiscal sense.

I would be interested in getting my hands on a copy of the report they sent to the feds. The above link does not specify current inefficiencies and gaps. Knowing what those are would enable we commentators to have a clearer view of where the real problem lies. Is it burdensome regulations? Is it waste and abuse? Or is it, simply, underfunding? Even then, the Gang of 29′s plan would address all of these if handled properly.

I must say that I am personally very impressed with their handling of what they perceive as a troubling situation. They’re not railing against the federal government like Lady Gaga’s disciples railing at Adele. (For the record, I’m sick of both.) They came up with a very comprehensive plan and are presenting it to the powers that be in a way that is, for all intents and purposes, highly respectable. No doubt one or two are motivated by their hatred of Obamacare, but they’re keeping that factor fairly quiet.

Assuming their numbers check out, I can only identify an area in which I can improve upon the Gang of 29′s proposal: There should be increased emphasis on preventative care across the board. Other than that, the plan ensures accountability in a way that is sacrificial, almost deferential. Any regulations on health insurance companies would likely be the responsibility of the feds in the first place, and that should have been the primary focus of Obamacare.

Except most of the White House’s opposition to have a tone of bitterness to it, as if they know they’ve just been skunked. That’s what’s doomed to happen when you overstep your constitutional boundaries with good intentions. This is one area in which they really should concede now.

Congress just wants a peek!

I’ve never thought of it before, but a school is the perfect place to put a health center, especially for lower-income families. The health-care reform package passed in 2009 would have appropriated funds for this purpose; no word on how much it would be, but the Congressional Budget Office tells us the government would lose $100 million on it. That’s not much, but it’s something. Thanks to Rep. Michael Burgess (R-TX), those funds have been blocked in the House.

I can already hear the accusations flying: “That evil Burgess! He doesn’t care about poor families! He doesn’t care about sick kids! He doesn’t care about health care at all unless it benefits his buddies in Big Pharma! Why does he hate Americans?!” Calm down. I’m sure he doesn’t have a vendetta against the idea of school-based health centers. That really would make him evil.

His real issue is the way the money would be distributed. The Department of Health and Human Services would provide it in the form of grants, which isn’t uncommon when it comes to federal domestic spending. I have always favored this because it requires people to prove the value and cost-effectiveness of their proposals before getting a dime. The alternative would be to give a check to every schmuck who says they need one.

The downside, according to Burgess, is that in this specific instance, the granting of money from the Cabinet department doesn’t require approval from Congress; the bill gives the HHS Secretary carte blanche to grant at their leisure. Congressional approval has been sought, and often earned, for types of projects ranging from energy to transportation. My assumption is that whoever included this in the health-care bill wanted to protect the funding from going on the deficit chopping block. Nice try.

This comes not long after House Republicans voted to block federal funding for state-based health insurance exchanges, which I also supported in the belief that health care is best provided on as local a level as possible. The argument then was the same: The HHS Secretary was getting too much power. Frankly, I don’t see what’s stopping congressional Democrats and the White House from changing that. There’s nothing Congress shouldn’t be able to see.

I approve of the Republicans’ method of picking at small bits of health-care reform; it looks like they’re engaging in small discussions that should have happened two years ago. But this had better be their only concern, or they’ll just look like contrarians without an alternative. Again.

Obama hearts Romney

If President Obama considers former Gov. Mitt Romney (R-MA) as threatening to his re-election prospects in 2012 as I do, he definitely knows how to throw him off. Obama may have handed Romney the most humiliating moment of his career by praising the individual health insurance mandate he enacted as governor. It would have been Romney’s biggest weakness regardless, but that Obama said he took a cue from it will take him down a few notches.

Obama made sure to add that Romney’s plan reflects the importance of states’ rights, the lack of which in the federal mandate is one of the most worrisome aspects of total health care overhaul among its opponents. He used this as a jumping-off point to offer a compromise: If states can come up with a way to expand health care coverage without increasing the deficit, they will be exempt from certain aspects of the federal law, and his government will help them implement it.

Some Republicans will act like they didn’t hear Obama’s comments on Romney and simply inquire where his concern for states’ rights was when he first spearheaded reform legislation. That would be a very good question. As much sense as it makes, given the constitutional limitations at hand, I have no doubt Obama is only bringing up the states’-rights argument because he’s only now realizing how politically useful it can be.

Yet this new proposal sounds much like the student health system at both of the post-secondary institutions I’ve attended: Present proof of your own insurance or buy into the plan offered by the students’ association. It’s a reasonable compromise for students who can afford any health insurance at all. But what about the students who can’t? Are their payments indexed to their income? Do they receive subsidies?

There is no question that Obama will have to wait for the deficit to shrink before they go forward with this proposal; this will give the bipartisan commission of governors he wants to discuss it further and come up with new ideas. In the meantime, someone will need to figure out how to help people who cannot afford either side of the plan. I would personally love to see microinsurance enter the conversation, but I bet most politicians on any level have yet to hear of it.

A further compromise might be to confine the mandate to catastrophic insurance and insurance for children, which I have supported all along. But that will all be covered, so to speak, in the near future. At least Obama is giving it the old college try.

It is NOT a goddamn death panel!!!

In a discussion of health care yesterday on The MOP (hosted by Tristan Field-Jones, who writes the blog of the same name), we talked about ”non-essential” services to leave out of public coverage. Routine check-ups and the sniffles were two examples. Here’s another: end-of-life planning. A new Medicare regulation will allow beneficiaries to receive it, voluntarily, for free.

Now just so I have clarity, let me emphasize the word VOLUNTARILY. Sound it out: voh-luhn-teh-ri-lee. That means no one will be forced to go in front of a death panel before they kick it; it means the service, which provides advice on the appropriate health care when a patient is close to death, will be available at no cost. Do you understand? Everything you’ve read on Facebook is not true. There are no death panels. Say it with me: “No death panels. No death panels. No death panels.” Get it? Are we good? Great! Now let’s move on.

We didn’t ask for end-of-life counseling before my grandfather died. He had made his wishes known to us prior (being a lawyer, he already knew full well about wills), and his doctors knew what they were doing. Besides, my aunt is a nurse, so we had a built-in medical advisor. As I’m writing this column, I’m explaining the concept to my mom, and her first response was “What the hell kind of health care is that?” In short, my own experience tells me that such a service is not essential.

Of course, not every family has such advantages, and some of them may not be fully aware of their medical and/or legal options. However, I remain unconvinced that the onus should be on Medicare to provide it directly, considering its own limitations. Instead, we could say that they should be responsible for providing the patient’s loved ones with contact information for counselors trained in this specific area.

The new regulation would also cover the routine check-ups I mentioned earlier. (What’s former Gov. Sarah Palin (R-AK) planning to call those? “Disease panels?”) Again, not convinced that the cost of check-ups is onerous enough to justify Medicare coverage. If a family doctor’s rates are that high, I would instead recommend related subsidies for low-income households, especially those with young children.

It is understandable to oppose these regulations, not out of concern for 1984-style government oversight on health care, but simply because it’s an unecessary expenditure. The goal now should be to restrain Medicare as much as is reasonable, and this is certainly no way to do that. But just remember: No death panels. Know that.

I knew we forgot something

The individual mandate in President Obama’s health care overhaul was a tough political sell from the beginning. Just the idea made me cringe, even with the prospect of subsidies for those who could not easily afford private insurance on their own. During the time I covered health care extensively last year, I regret that I didn’t pause to consider the constitutionality. At least someone did.

Through the efforts of Virginia Attorney General Ken Cuccinelli, U.S. District Judge Henry Hudson decided that the individual mandate violates the Tenth Amendment, which promises rights unenumerated in the rest of the Constitution to state governments. If you read the rest of the Constitution, you won’t find ”The Congress shall have power to lay and collect penalties on the People’s refusal or inability to purchase private health insurance.”

Yes, the Constitution predated private health insurance by a good century. But this oversight on the part of the Obama administration is nothing short of humiliating. Despite Obama’s insistence that “the majority of courts” are fine with the act and will uphold it, he can’t talk his way out of such a blatant constitutional violation.

A presentation on health care I watched last week presented me with a new thought: If the point of health care overhaul is to accommodate demand, why not increase the supply? In Canada, there are a few private hospitals, although they are illegal to run. (I suspect the powers that be won’t enforce those laws out of concern for their own health.) The government-funded hospitals get clogged up quickly, and those who can afford it just get out of line. Were this to expand across the country, free of legal constraints, health care would be two-tier. But would that be such a problem?

The central point would be to make doctors, equipment and services more accessible to more people. There would need to be some way to incentivize at least a portion of the top talent to work within the public system, but other than that, it’s about as good as you can get. The idea of having to pay for health care still makes me cringe, but we’ve experimented with that long enough and we’re getting tired of ridiculous waiting times and slack service.

All that said, I’m starting to wonder if Obama had the right idea with the public option this whole time. It would have to be determined by the states, of course, in the absence of a new amendment, and it would have to wait for rapid economic growth. But in light of recent events, it may be time to reopen the discussion.

Sick of health care yet?

Several people have asked for my opinion of the health care bill thus far. I told them I wouldn’t say much of anything until I saw how the Senate was planning to tweak it. Now that list of tweaks has come out, so let’s get the ball rolling.

Before we do that, though, I would like to express my approval of the use of the line-item veto by Senate Parliamentarian Alan Frumin. Not only does any use of this veto make good fiscal sense, but the Senate parliamentarian is more trustworthy when using it than any president, primarily because both parties appear to regard him as some sort of Yoda-like figure. That’s all. Now, on with the tweaks:

1. Rejected: Denial of ED drugs to sex offenders. I can’t remember the last time I heard of a sex offender being unable to get it up. Either way, this provision would depend on the severity of the offense and would likely require giving physicians access to a patient’s criminal record, if they don’t already have it. I doubt this would have been enforceable in any case.

2. Rejected: Illegalizing increases in insurance premiums. I bet we’d all like that, but it should be used with caution. Adjusting premiums for inflation might not be such a bad thing, nor would increasing them for “non-essential” health services.

3. Rejected: No tax increases for families making less than $250K. That’s the magic number nobody has wanted to cross, of course. But unless you define the individual mandate fee as a tax, which isn’t completely inaccurate, how much do we really need to worry about this?

4. Approved: Expansion of low-income health subsidies. Maybe we should see what effect the current subsidies have before expanding them. Patience is a virtue.

5. Approved: Medicare taxes on unearned income, i.e. investments, capital gains, tenant payments, etc. I suppose it’s better to tax this kind of income than the earned kind. Nonetheless, before they implement this, I would like to know how much money they’d save if current Medicare recipients with enough money of their own simply gave the entitlement up.

So after factoring in all these, as well as new regulations on insurers, I can grade the health bill with a B-. It lost a lot of points by keeping the individual mandate. But apparently that idea has been kicked around before by both parties, so I’ll just blame the one moron who first came up with it.

Disposal Day #11: More goddamn health care updates

STORY #1: The vote is nigh

Because of this, President Obama is reportedly telling individual Democratic lawmakers to vote for the bill to save their own electoral chances – not his, they are quick to add. “Most spoke of sober, policy-drenched conversations” with Obama, which makes me squee. I love sober, policy-drenched conversations! (To anyone who knows me, that’s not the least bit sarcastic.)

I’m not sure a failure to pass the health care bill would harm members of Congress any more than everything else has. We already know that Americans as a whole disapprove of them all. But my expectation is that this relates more to the big names in the Senate and a few select notables in the house. Not Reps. Dennis Cardoza (D-CA) or Jason Altmire (D-PA) or a bunch of people you’ve never heard of outside your own state.

STORY #2: A tale of two mandates

The first is the individual kind and the second is the unfunded kind. Gov. C.L. “Butch” Otter (R-ID), who has the most Republican name I’ve ever heard that isn’t “Rich White III” or something, believes that if the first remains in federal health legislation, it would represent the second for states. That’s why he signed a bill that would require Idaho’s attorney general to sue the feds if the federal bill passes.

It’s already expected that the Idaho bill will be tossed out on constitutional grounds, and that any other state legislature that passes one (there are 37 others at the moment) will face the same problem. So this whole move is more symbolic than anything. But as much as the whole idea of an individual mandate sucks, would we have the same reaction if it was intended for catastrophic insurance and little more? Something worth pondering.

STORY #3: Ann-titrust

I still read Ann Coulter’s column every week, despite personal misgivings, and this is the first time I actually have to give her some kudos. She took a page out of my playbook and listed her preferred health care provisions and strategies. And they’re not so bad, either: an antitrust exemption for insurers, an attack on Obama’s use of anecdote, and a crack at Heidi Montag. Granted, she still has an unhealthy faith in the market, but at least she stood for something this time.

So do stories #1 and #3 represent American political discourse shifting to a more policy-oriented paradigm? Have I gotten results in that regard? Stay tuned for updates.