Some conservatives are unwilling to accept the status quo. They are pushing back against congressional inertia and conservative fatalism as they urge Congress to roll back the Obamacare regime.
I was disgusted last week speaking with a friend who is a very powerful strategist in the Democratic Party. She agreed with me when I suggested to her that the Democrats would Never sign off on either an immigration or health care plan until after the midterm election. I sensed this after the President signed an Executive Order reversing the separation of illegal immigrant children from their illegal parents as the Democrats, especially Ms. Pelosi and Mr. Schummer asked him to “pen”.
How can we make any progress at all when there is no cooperation between the parties and the administration? I am truly frustrated and wonder when we all are going to wake up and make these Senators and Representatives to “do their job”! They all only care about their own reelection models…. and impeaching the President. How have we sunk so low, so far??
Congress is still wading through the swampy waters of Obamacare. Congressional Republicans, who ran against Obamacare through four election cycles, have spent most of the past year running away from it. But they are finding the law hard to escape.
Democrats who once shied away from Obamacare now can’t stop talking about it. They are blaming Republicans for the next round of premium increases that will become finalized in the weeks leading up to the November elections.
Republicans will justifiably respond that Obamacare is a mess they didn’t make. Voters may nevertheless hold them accountable for not cleaning up that mess, despite years of campaign promises.
Congress should keep those promises, according to a group of conservative policy analysts, state-based think tanks, grassroots organizations, and GOP governors and state legislators. Tuesday, a group of them announced support for the Health Care Choices Act, a proposal that would repeal Obamacare entitlements and replace them with grants to states to finance consumer-centered reform.
The plan is innovative and bold. The ill-fated bills Congress considered last year kept the federal structure of Obamacare with relatively minor modifications. For example, those proposals modified the federal tax credits that are at Obamacare’s core; the Health Care Choices Act would repeal them. And while last year’s bills would have reduced federal spending on Medicaid coverage of able-bodied adults, the Health Care Choices Act would scuttle the Medicaid expansion policy entirely.
The proposal resembles the successful welfare reform of the 1990s, which repealed the individual entitlement to cash benefits and replaced it with grants to states to assist the needy. The Health Care Choices Act does the same thing with health care, but on a much grander scale. It would repeal an open-ended federal entitlement program expected to cost $1.6 trillion over the next decade and replace it with a block grant. It is welfare reform on steroids.
Block grants are not blank checks. Like welfare reform, which required states to implement policies to encourage work and reduce dependency, the Health Care Choices Act would require states to pursue two important goals: reducing costs and increasing health care choices.
States would be required to spend a portion of their federal allotments on meeting the medical needs of the sick without saddling the healthy with exorbitant premiums. Other stipulations would prevent states from using the money to expand Medicaid or to warehouse the poor in state-contracted managed care plans. States would have to provide low-income people assisted through the through the block grant, as well as Medicaid and State Child Health Insurance (CHIP) recipients, the option of applying the value of their assistance to the plan of their choice. Think of it as school choice for health care.
The new money would be provided through the CHIP statute, which, unlike Obamacare, includes permanent restrictions on the use of funds for abortion. Within those broad guidelines, states would design their own programs, determining who is eligible for assistance and what they’re eligible for. They would be released from Obamacare regulations on essential health benefits, age-related premium variation, and the requirement that insurers enroll the sick and healthy in the same insurance pools. Repealing these regulations would allow states to repair or ameliorate much of the market dislocation Obamacare produced.
In short, the Health Care Choices Act would dismantle two of Obamacare’s pillars and weaken the third: Obamacare’s individual entitlement would be abolished, the employer mandate (like the individual mandate) would be repealed, and federal insurance rules would be diluted.
Some conservatives look at the proposal’s health care reform donut and complain about the hole. They have particularly faulted the plan for not repealing Obamacare’s pre-existing condition rules.
A Republican reaction to last week’s Justice Department motion in a lawsuit that seeks to invalidate these rules is instructive. Democrats attacked the Trump administration – and Congressional Republicans – for opposing pre-existing condition protections.
To stanch the political bleeding, Senate Majority Leader Mitch McConnell declared, “Everybody I know in the Senate – everybody – is in favor of maintaining coverage for pre-existing conditions.”
McConnell’s colleagues pointedly did not race to the microphones to distance themselves from their leader. Nor are scores of House and Senate conservative incumbents campaigning on a promise to repeal the popular pre-existing condition requirements.
The message is clear: repealing that requirement does not enjoy anything like majority support even in a GOP Congress. For some conservatives, that is reason enough to leave Obamacare in place. If Congress can’t pass a perfect bill, they argue, then it shouldn’t pass anything at all.
A growing cadre of conservatives is unwilling to accept the status quo. They are pushing back against congressional inertia and conservative fatalism as they urge Congress to roll back an Obamacare regime that continues to raise costs and constrict health care choices.
They view the Health Care Choices Act’s repeal of Obamacare’s entitlements and devolution of power from Washington to the states not as the final word on health care reform, but as an essential component of a broader effort. Expanding health savings accounts is part of that effort. Promoting innovative approaches like health-sharing ministries and direct primary care is another. Trump administration regulatory proposals to allow small businesses and independent contractors form health insurance purchasing groups across state lines also are part of it, as is its plan to expand the sale and renewal of short-term, limited duration policies.
Conservatives who back the Health Care Choices Act prefer real progress to theoretical perfection and the inaction it induces. They also argue that it is politically better for Republicans to confront Obamacare than to be blamed for its failures.
Republicans are stuck in a Nash equilibrium on Obamacare repeal. Conservative firebrands, Republican moderates, and congressional leadership – each for very different reasons – are content to make Obamacare repeal the new balanced budget, something they talk about to mine money and votes from their base, but never seriously pursue.
The millions of families and thousands of small businesses suffering under Obamacare deserve better.
Obamacare Faces New Life-threatening Conditions
Opponents of the Affordable Care Act have been busy. In the midst of several headline-making events on other issues, the Trump administration has instigated two major efforts to effectively do what Congress could not do earlier this year — repeal Obamacare.
The result is a laundry list of warnings for all health care consumers, not just those who buy insurance on the ACA exchanges. Here’s a closer look at the latest changes to the health insurance marketplace:
Expanding association health plans
The administration issued new rules on Tuesday that expand the use of what’s known as association health plans. They allow small businesses and self-employed individuals to buy health insurance collectively through what’s loosely defined as an industry association. By pooling together, members can buy insurance for less expensive group rates, the way employees of large corporations do.
Association plans have been around for a long time, but under the ACA they were restricted. The new rules loosen some of these restrictions and expand the reach of these plans. At the same time, these plans are exempt from many of the protections under the ACA, including coverage of the 10 essential health benefits such as maternity and mental health services, hospitalization and prescription drugs.
In addition, the new rules allow association plans to sell insurance across state lines. States regulate health insurers, and for the most part, insurers must adhere to each state’s regulations for the consumers they serve in those states. But under the new rules, association plans can choose which state they want as their regulatory jurisdiction. That means they could conceivably choose a loosely regulated state as their home base.
Association plans have seen their share of scandals in the past, largely due to this state regulatory confusion.
The new rules aren’t a surprise. The Trump administration has been calling for the expansion of association health plans as a way of offering more options outside of Obamacare and a way for small businesses and individuals to have access to more affordable group insurance.
But advocates worry that the move is a return to the bad old days before insurers had to adhere to standard regulations that protected consumers from paying insurance premiums, only to find coverage wasn’t there when they needed it.
“The new rule will allow groups of businesses to band together to buy insurance across state lines, which will be bad for small firms and their employees because it will lead to higher premiums, unbalanced risk pools and lower-quality insurance,” said John Arensmeyer, founder, and CEO of Small Business Majority.
In addition, the provision may encourage a new batch of healthier people who can get by with skimpier coverage to sign up for association plans instead of the ACA exchange plans. That could leave more sick people in the exchanges without the benefit of younger, healthier people balancing the risk pool. According to the Congressional Budget Office, 6 million people are expected to enroll in expanded association health plans.
If you’re considering one of these plans, many of which are expected to be available in September just before the 2019 ACA open-enrollment period, be sure to read everything you can get your hands about the plan as carefully as you can. You’ll want to be sure you understand any limitations in coverage so you can determine if the plan is right for you.
A threat to preexisting condition coverage — and more
Tuesday’s announcement comes on the heels of another potentially devastating blow to the ACA. Earlier this month the Justice Department announced it would not defend the law against a lawsuit brought by the attorneys general of Texas and 19 other states.
The suit claims that because the newly enacted tax law eliminates penalties associated with the individual mandate, the ACA requirement that most Americans carry health insurance is no longer constitutional. In addition, the suit contends that consumer insurance protections under the law also aren’t valid.
Since then an outcry has been heard from health care advocates, insurers, congressional Republicans and most recently a group of bipartisan governors from nine states. The protest is focused on the provision in the ACA that requires insurers to provide equal coverage and the same premium rates to people with pre-existing conditions as they provide to people without previous health problems.
The requirement applies to all insurers, not just those in the exchanges, and polls show most Americans — including many who don’t support Obamacare overall — want to preserve it. Even Senate Majority leader Mitch McConnell famously said, “Everybody I know in the Senate, everybody, is in favor of maintaining coverage for preexisting conditions.”
Still, the Texas court case would potentially eliminate many more ACA provisions, including the premium subsidies so many exchange customers rely on, essential health benefits and Medicaid expansion, said Eliot Fishman, senior director of health policy at Families USA. That said, Fishman believes the court case will take time, so consumers who are planning on signing up for exchange coverage for 2019 at the end of this year should not be dissuaded from doing so.
|Health warning-Obamacare is in legal peril once again! Many legal scholars are dismissing a new case. Don’t listen to them.
Noah Feldman wrote that one shouldn’t turn your back. Could key portions of the Affordable Care Act be declared unconstitutional – years after the Supreme Court upheld them? The Trump administration’s Department of Justice has just filed a brief saying so in a suit by several states that aims to take down the whole program.
Most mainstream legal commentators think the government’s arguments are unconvincing. But it’s crucial to remember that this was exactly the reaction of the same set of people in 2010 when the original argument was made against the individual mandate by libertarian law professor Randy Barnett. Just two years later, five justices of the Supreme Court embraced Barnett’s argument.
Given the excitement for judicial activism building among conservatives, the Trump administration may have more than a 50 percent chance of success.
Just in case you haven’t thought much about the individual mandate and the Constitution in the last six years, let me provide an update and a brief refresher. The update is that, in 2017, Congress passed the Tax Cuts and Jobs Act. In the law, Congress repealed the tax penalty associated with the individual mandate that everyone has health insurance.
In other words, the ACA still says you have to have insurance. But if you don’t, nothing happens to you. You may remember that the Obama team was worried about the interaction between the individual mandate and the popular ACA provisions that say insurance companies can’t refuse to cover anybody because of pre-existing conditions and can’t charge you more if you are already sick.
The theory went something like this: If you aren’t compelled to buy insurance when you’re healthy, but you’re allowed to buy it when you find out you are sick, then only sick people would buy health insurance. That, in turn, would create a “death spiral” for insurance under the ACA, as insurance costs went up.
Crucially, President Barack Obama’s Department of Justice relied on this argument in trying to convince the Supreme Court to uphold the individual mandate. This death spiral doesn’t seem to have happened yet, however.
Now comes the new constitutional challenge to the ACA, filed by a group of states led by Texas. Their argument begins with the fact that, when the Supreme Court upheld the individual mandate, it did so in a very strange way. The five conservative justices all agreed that, under the commerce clause of the Constitution, Congress did not have the authority to make people buy insurance.
Their reasoning was borrowed from Prof. Barnett, who had proposed in his article that while the Congress has the power to regulate existing commercial activities, it can’t force people to undertake a commercial activity they are not already engaged in. This was the famous broccoli hypothetical: the conservatives argued that the commerce clause wouldn’t allow Congress to pass a law requiring everyone to buy and eat broccoli, even though Congress could lawfully regulate broccoli prices.
Despite this conclusion about the commerce clause, however, Chief Justice John Roberts joined the four liberals to uphold the individual mandate on the ground that it was a tax and therefore fell within Congress’s separate taxing power. The other four conservatives were clearly frustrated with Roberts, but his vote carried the day.
The states are now arguing that once Congress repealed the tax penalty for the individual mandate in the 2017 law, no more constitutional authority exists for Congress to keep the individual mandate in place. The Supreme Court already excludes the commerce clause, and now the tax rationale is gone. Trump’s Department of Justice has agreed with this claim.
The states say that without the individual mandate, the whole ACA should be struck down as unconstitutional. Trump’s Justice Department didn’t go quite that far. But it did say that the ACA provisions on pre-existing conditions are so linked to the individual mandate that it should now be struck down.
Legal observers are pretty upset about this — but not all for the reason you’d think. Some are focused on the strange circumstance that Justice is arguing that the law is unconstitutional. It’s not supposed to work that way. The executive branch is supposed to argue in favor of the constitutionality of laws currently on the books.
That’s bad, without a doubt. But it seems less worrisome than the possibility that courts, including the Supreme Court, might actually adopt the Trump administration’s view and strike down the ACA provisions on pre-existing conditions.
Legally, I don’t think that would be the right decision. I don’t think that the repeal of the penalty means that the no-penalty individual mandate is necessarily unconstitutional, since there is no sanction for violating it, so it isn’t really much of a law at all.
And even if the no-penalty mandate were unconstitutional, it doesn’t follow that the mandatory coverage provisions need to go. They are logically separate from the individual mandate. The mandate may have been thought been necessary to make those provisions work in practice, but it turns out that, so far at least, they are operating without it, and the death spiral hasn’t happened.
But it is entirely possible that five justices would follow the chain of formal logic laid out by the states and adopted by the Justice Department. The best argument in favor of that position is that the Obama Department of Justice told the Supreme Court years back that these provisions were interlinked – “inseverable” in legal jargon.
There is, therefore, a real and indeed significant chance that the most popular part of the ACA could be struck down. You may have thought that the whole ACA-and the-courts topic was over. But as it turns out, it keeps coming back, like a figure from a horror movie. Don’t turn your back.
And look at all of the campaign “idiots” who are experts on health care and declare that their State will have better healthcare by adopting Medicare for All. Don’t they know that Medicare is a Federal program that States can’t themselves change? And how are they going to pay for it if the prediction that Medicare and Social Security programs will be out of money by 2026-2034?
Let’s talk more about Medicare for All!