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How Public Feels About Obamacare Next Year Will Be More Important Than Halbig Decision

By: Wednesday July 23, 2014 11:26 am
justice statue scales

Justice may be blind but she’s also slow

I’m fairly confident this partial decision by the D.C. Circuit on Halbig v. Burwell will not stand. It is obviously absurd from a legal perspective, which is why other courts have ruled against the idea. But if by some miracle the opponents of the Affordable Care Act do ultimately prevail there is a real question of how much damage it could really do.

What is important to remember is that the case won’t even change anything for at least a year. The case will likely first get an en banc review by the full D.C. Court. That will take several months. Then the case will likely be appealed to the Supreme Court. If the Supreme Court even decides to take the case, it will be months before they hear oral arguments on it and several more months before they actually reach a verdict. Under the worst case scenario the Supreme Court won’t issue a ruling taking tax credits away from people in states with federally run exchanges well into 2015.

By that time the exchange tax credits will have been going to millions of people across the country for almost two years. People will have come to depend on them and eliminating these tax credits would be hugely disruptive. It would cost millions of people their coverage, savings, and/or jobs. It will not just be an immediate huge hit to people in the individual market, but also to hospitals, doctors, pharmacies and other businesses in the health care industry.

At the same time, fixing the issue would be extremely easy. Congress could pass a small correction or all the state governments could just just say they officially created a “state exchange” but contracting Healthcare.gov to do everything. These millions of people who would be directly and significantly hurt by the ruling should be able to create enough political pressure to force through one of these fixes.

If, after two years in operation most of the people who are supposed to benefit from the exchanges aren’t willing to fight over them, then the law fundamentally has a problem that goes way beyond this lawsuit. In the long run the program’s existence depends on the users wanting it to stay and being willing to change their votes based on the outcome.

If the law isn’t at least winning over its base of users by 2015, eventually it will be crippled either in one big move or in a thousand cuts. No government program that cost tens of billions a year, like the exchange tax credits, will survive long without a real base of support.

17 Percent Now Oppose Obamacare for Not Being Liberal Enough

By: Wednesday July 23, 2014 7:10 am

health care ACA single payer obamacareWith over half a year since the exchanges opened the American people have gotten plenty of time to judge the new health care law based on real world experiences and they continue to dislike it.

Only 40 percent favor the Affordable Care Act according to a new CNN/ORC poll, while 59 percent oppose it. This level of opposition has been basically unchanged for the past year and there is no reason to expect support to improve by November.

Some Democrats take solace in the fact that only 38 percent oppose the law for being too liberal while 17 percent oppose the law for not being liberal enough, so at least there isn’t popular support for the Republicans’ position either. Of course this still means one of the few big Democratic achievements in recent years is a huge disappoint to many of their potential voters. That is also a real problem in midterm elections where victory often depends on who turns out.

At 17 percent, opposition to the law for not being liberal enough is now the highest it has ever been in a CNN poll. This might just be basic fluctuation within the margin of error or an early sign that more left leaning people are starting to see some real practical flaws in the program.

The Undying Filibuster Myth

By: Tuesday July 22, 2014 10:23 am

walking deadI thought when Senate Democrats so easily eliminated the filibuster for executive appointees that was going to be the final nail in the coffin of the filibuster myth, but I was mistaken. The myth that the filibuster is some insurmountable hurdle, instead of something which can easily be dealt with, lives on in Kevin Drum’s defense of President Obama’s first year. From Drum:

As for Obama, could he have done more? I suppose he probably could have, but it’s a close call. Even with his earnest efforts at bipartisanship at the beginning of his presidency, he only barely passed any stimulus at all. If instead he’d issued thundering populist manifestos, even Susan Collins would have turned against him and the stimulus bill would have been not too small, but completely dead. Ditto for virtually everything else Obama managed to pass by one or two votes during his first 18 months. If that had happened, the economy would have done even worse, and if you somehow think this means the public would have become more sympathetic to the party in the White House, then your knowledge of American politics is at about the kindergarten level. Democrats would have lost even more seats in 2010 than they did.

Imagine it is 2009. Obama’s popularity is still sky high and a huge number of Democrats in Congress owe their seats to his big coattails. Picture him going to Congressional Democrats saying he needs them to pass something, say a $1 trillion stimulus or a health care law. He says the economy and his entire presidency depends on it, but the Senate Republicans are actively trying to sabotage him so he needs Congressional Democrats to do it without them.

Do we really think Senate Democrats would have responded, “tough luck Obama we think letting Republicans filibuster things is the most important thing ever?” Or do we think they would have found a way to do it by changing the filibuster or using reconciliation, just like Republicans did a few years early to pass Bush’s tax cuts?

I can’t guarantee Senate Democrats would have responded correctly, but this is a legitimate strategy that could have produced a dramatically different result. As we recently saw when pushed Democrats are willing and able to change the Senate rules.

Contrary to Drum’s claim there was nothing approved by only one or two votes in 2009, because Democrats simply preferred having over 60 votes for everything. Obama chose to live under this artificial constraint but he could have tried to fight to get rid of it to greatly expand his options.

Drum’s argument only works if you take the filibuster myth as fact. I can almost guarantee in the future once the filibuster is fully eliminated people will look back in disbelief at how pathetic it was that Obama let his first term to be crippled by something so stupid and easily dealt with.

D.C. Circuit Reaches Absurd Conclusion Against Obamacare Subsidies

By: Tuesday July 22, 2014 8:22 am

health careThe U.S. Court of Appeals for the D.C. Circuit in a 2-1 partial decision have reached jaw dropping, absurd conclusion that would potentially take away the Affordable Care Act’s insurance subsidies from people in over half the country.

The case is Halbig v. Burwell and it is based on a very contrived reading the law that completely ignores context and the entire Congressional record. Basically a group of employers are suing claiming the insurance tax credits can’t be provided to people in states where the exchanges are run by the federal government because that provision says tax credits are only for people enrolled in plans, “through an Exchange established by the State.”

This decision is incredible because never during the the months of debate was there any indication that a member of Congress thought the law should be read the way the court did. While on the other hand there is overwhelmingly evidence in the Congressional record and official CBO analysis that everyone assumed the law would allow subsidies on federally run exchanges. In addition many other provisions of the law, like those allowing for the creation of a federally run exchange where states fail to set up their own, would make zero logical sense if you follow the court’s tortured interpretation.

If the ruling stands it would mean several million Americans in states with federally run exchanges would lose their subsidies and likely lose their insurance as a result. It would also likely cause premiums to dramatically increase even for people who didn’t qualify for subsidies as healthy people leave the exchange.

It is unlikely the ruling will stand though. The Obama administration will likely ask the entire D.C. Circuit to review the decision “en banc.” The 11 members of the full court are more Democratic leaning than this three judge panel.

Image by Neff Connor under Creative Commons license

Consumer Protection Whac-A-Mole With the Private Insurance Companies

By: Monday July 21, 2014 7:15 am

The ACA left plenty of space for insurance companies to come up with new schemes to screw people over

While the Affordable Care Act banned some of worst practices of the private insurance companies, it didn’t stop these companies from finding new ways to screw you over.

Jeffery Young at the Huffington Post has a nice article looking at some of the new tactics they are now employing. For example instead of refusing to take patients with certain medical conditions, they can just design their drug plans and provider networks to make it prohibitive for these patients to use their plans.

This highlights another fundamental flaw with the health insurance law. Faced with an industry that has a history of horrible behavior the law didn’t use a blunt hammer to force them to behave. It didn’t completely replace them with single payer. It didn’t force them all to only sell the exact same policy completely designed by the government, like some systems. It didn’t even create a public option so regular people could at least actively avoid them.

Instead the law is just playing a game of consumer protection Whac-A-Mole. It banned some practices but left space for the insurance companies to come up with new schemes to screw people over. While the article points out the government is looking at ways to try to whack some these new moles, unfortunately, the industry has a big upper hand in this game.

With many state governments hostile to the law,  Congress in a state of crippling gridlock, and a revolving door for regulators it is very unlikely the government will ever be particularly quick to respond to each new insurance gimmick that pops up.

Photo by TPapi under Creative Commons license

Sentencing Commission Votes to Retroactively Apply Their Big Drug Sentencing Reductions

By: Friday July 18, 2014 11:27 am

Over 46,290 offenders should be eligible to have their cases reviewed.

Tens of thousands of American serving time for federal drug crimes could see their sentences reduced. On Friday the United States Sentencing Commission voted unanimously to retroactively apply their reduction in sentencing guideline levels on federal drug trafficking cases.

Back in April the commission amended the guidelines to lower the base offense levels in
the Drug Quantity Table, which will result in shorter sentences for new drug offenders. Now the commission has decided to let these guidelines also apply to people currently serving time.

Prisoners will be able to petition a judge to have their sentences reduced to what they would be under the new guidelines. One big caveat in the commission’s decision is the reductions can’t take effect until November 1, 2015. The delay is intended to allow time for the appropriate consideration of individual petitions by judges and to prepare for effective reentry plans.

According to the commission over 46,290 offenders should be eligible to have their cases reviewed by a judge. Those eligible offenders could have their sentences reduced by an average of 25 months. This would result in real financial savings for the government.

“This vote not only restores a sense of fairness to our criminal justice system, it’s going to restore lives and families,” said Families Against Mandatory Minimums President Julie Stewart. “But as happy as we are today, we have to remember that this single act won’t undo decades of overly harsh sentencing policies. We need reform from the other branches of government. The House and the Senate must pass the Smarter Sentencing Act.”

Congress has until November 1st of this year to disapprove of this policy. Given that the Senate has recently been working on their own sentencing reform measures and Congress in general has been gridlocked, it is very unlikely they will intervene to stop this change.

Public Doesn’t Think There Is a Responsibility to Intervene in Iraq

By: Friday July 18, 2014 8:05 am

Demo table US responsibility Iraq

The American people continue to be opposed to new military actions around the world after over a decade of expensive wars. Even with renewed violence in Iraq thanks to Islamic State in Iraq and Syria a clear majority in the country doesn’t think the government has a responsibility to take action.

According to a new Pew Research poll, only 39 percent think we have a responsibility to do something about the violence in Iraq, while 55 percent believe the United States don’t have a responsibility to to act.

There is a clear partisan divided with Democrats and Independents being the least inclined toward taking action while Republicans are most inclined. Yet even among Republicans only a bare plurality thinks the United States Government has a responsibility to act.

The only group where a clear majority think the country has a responsibility to take action in Iraq are Republicans who say they agree with the Tea Party. It is another sign that the term “Tea Party” has become mostly meaningless. It is now basically just a interchangeable with conservative.

This also highlights one of the big problems the Republican Party has in 2016. On a range of issues where their most dedicated primary voters stand is often noticeably at odds with what general election voters want. The positions needed to win the crowded Republican primary could really hurt the nominee come November.

 

Should the Health Care Exchanges Just Automatically Assign Everyone a Plan?

By: Wednesday July 16, 2014 9:51 am

Right now insurers may have the incentive to design their plans with the goal of tricking uniformed shoppers

The more I read about how regular people interact with the new health insurance exchanges created by the Affordable Care Act, the more convinced I’ve become that most people probably aren’t making the optimal decision.

Whether it is surveys showing a majority of people said it was difficult to compare plans, assessments showing very few Americans have a proficient level of health literacy, the large amount of help people need to use the program, or studies based on actually watching people use the system, I come away with a strong sense most people lack even the basic insurance knowledge needed to understand one policy. So there is little reason to believe they can then do the complex analysis among multiple policies required to actually make the best choice for them.

Obviously, this inherent problem is one of the many arguments for single payer. In the short term though I think there is a partial improvement that should be looked at: having the exchanges automatically assign everyone to a plan when the register based on their personal data. People could still ignore this strongly pushed advice and select their own plan if they really wanted.

To do this most effectively you would need to upload all of a person’s medical information into the system with their income data so a sophisticated formula could determine what is likely the best plan for them. That setup would possiblly run into serious technological and privacy concerns, but I imagine having people even just answer 30 question about their health care/lifestyle would provide enough additional information for a formula to make a good recommendation. That is also something that could be implemented fairly easily.

This could create two improvements: more people would make the best choice and it could make insurers behave better.

The biggest problem it solves is making sure more people make the optimal choice. Given how little most people seem to understand health care terminology and how it all fit together, I think even a well written formula would outperform the majority of exchange users.

It would potentially also have the added benefit of improving the quality of the insurance plans that are offered. Right now insurers may have the incentive to design their plans with the goal of tricking uniformed shoppers. Making plans merely look good to low information users could prove to be a more effective way of attracting customers than actually creating quality policies. If instead most people stuck with their formula assigned planned, insurers would have the strong incentive to focus primarily on meeting the quality metrics of the formula.

It would be interesting to see states experiment with this idea given that it could be implemented easily on a purely voluntary basis.

I have almost no faith in the idea of health insurance exchanges because of the incredible information disparity between the insures and the regular users. At least with this change the dynamic struggle would be between companies and a team of trained government actuaries instead of between very sophisticated for-profit companies and regular people who barely understand what they are being forced to buy. I suspect the former would produce better outcomes for most people.

Immigration Surges to Number One Issue With Americans

By: Wednesday July 16, 2014 7:00 am

The media coverage of thousands of youth migrants/refugees from Central America has dramatically raised the public’s concern about immigration issues in general. The issue went from barely registering a few months ago to now being seen as the most important problem among a plurality of Americans. From Gallup:

U.S. Most Important Problem -- Recent Selected Trend

Whether a gridlocked Congress will actually manage to do anything productive about it in the the last few weeks before they disappear for the summer recess is yet to be seen, but the public concern about immigration is the highest since President Obama took office.

Boehner Is Suing to Stop Obama From Delaying the Employer Mandate and May Ask the Court to Delay it Instead

By: Tuesday July 15, 2014 11:56 am

Boehner wants to sue to stop Obama from delaying the mandate.  Then he wants the court to delay it instead.

Just when I though the House Republicans lawsuit against the President couldn’t get more absurd it does. From the Speaker’s Office explaining their own lawsuit:

Q: But if the House lawsuit succeeds, it means the Obamacare employer mandate goes into effect, doesn’t it? 

A: If the House litigation succeeds, the House would immediately take up legislation – again – to stop the implementation of the employer mandate through the normal constitutional legislative process, as well as legislation to stop the law’s mandates on the rest of the nation.  Such legislation has already passed the House with bipartisan support.  The House would also have the option of asking the court for a stay of the effect of the order to allow time for the legislative process to work. 

(emphasis mine)

This is remarkable. Not only are House Republicans suing to stop Obama from delaying a provision they want delayed anyway, which is bizarre enough to begin with.  House Republicans are also planning to ask the court to stop the President from unilaterally delaying the provision –  and then they plan to ask the court to unilaterally delay the provision.

In effect, they are suing the President for supposedly usurping the power of the legislature and also plan to ask the court to basically do the same thing based only on what it thinks the Congress might do purely based on their words.  Which seem to be contradicted by their actions.

After all there is a reason the court should need to give Congress “time” for the legislative process to work, or to try and predict what they will do. There is nothing stopping Congress from moving forward with an employer mandate delay before the lawsuit is decided, expect for the fact that if Congress did adopt a clean employer mandate delay and Obama signed it that could make the whole lawsuit moot.

Since Congress hasn’t approved a clean delay and is suing to stop the executive delay, I don’t know why the court should believe Congress doesn’t want the the employer mandate to be enforced right away.

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