Friday, August 01, 2014

Michael Cannon gives the game away, cont.*

The Halbig plaintiffs and their allies would have you believe that the titanic struggle in the Supreme Court in 2012 over the constitutionality of the ACA's individual mandate was a fight over nothing. Or, alternatively, that the government had a bulletproof defense of the law's constitutionality that it inexplicably left on the table.

According to the Halbig plaintiffs, the ACA's framers deliberately barred any exchange established by the federal government from crediting subsidies to qualified buyers of health plans offered on the exchanges. Only an exchange "established by a state can do that. Thus, the ACA could only function in a state that established its own exchange.  The law's creators and proponents have been protesting for three years that this claim is preposterous on its face, as a federal exchange would be worthless without the ability to credit subsidies, but that is the suit's  contention.

Thursday, July 31, 2014

Michael Cannon gives the game away

Cato's Michael Cannon, a mastermind behind Halbig, has made much of video clips in which ACA architect Jonathan Gruber seems to suggest that states that do not build their own exchanges might forgo their citizens' access to the tax credits subsidizing coverage. Gruber has since claimed that the assertion was a verbal slip, and that he probably meant to suggest (at a time when no one expected states to abstain from building their own exchanges) that a federal "backstop"  might not be in place in time for the first open season.

That's how I understood Gruber when I listened to the first unearthed clip (at minute 31). But Cannon isn't buying it. He's going for the perceived jugular,  claiming proof that the ACA's framers (with whom Gruber worked closely) intended to make the whole ACA machinery dependent on state action:
The problem with his explanations is that Jonathan Gruber doesn’t “flake.” He knows this law in and out. He knew what his words meant, with all their implications, when he spoke them. He knew the feature he was describing essentially gave each state a veto over the PPACA’s exchange subsidies, employer mandate and to a large extent its individual mandate. He knew that could lead to adverse selection. To claim Gruber didn’t know what he was saying is as absurd as saying a conductor might fail to notice that the brass section suddenly stopped playing.
As Cannon asserts, if only the state exchanges can grant subsidies, the individual mandate is all but inoperative in states relying on the federal exchange, because insurance will be unaffordable for most of the state's uninsured, exempting them from the mandate.

If that is the case, the flagship suit against the ACA's constitutionality decided by the Supreme Court in June 2012, NFIB v. Sebelius, is moot, because the ACA effectively imposes no federal individual mandate, only state ones.

Wednesday, July 30, 2014

What's the web got to do with it? -- the uninsured need human help

I have an article forthcoming elsewhere (I hope) that examines why many people who visited healthcare.gov remained unaware that they were eligible for subsidies to defray the cost of health insurance. That article is mainly focused on website design, e.g., getting a quick subsidy calculation in front of site visitors.

A new Urban Institute report* drawing on information from Health Reform Monitoring Survey data collected this June spotlights a different aspect of reaching the uninsured: For many, access to expert human assistance is vital.

The report compares the experience of those who were insured in June 2014 but had been uninsured for all or part of the twelve months prior with those who remained uninsured at the time of the survey. While a higher percentage of the still-uninsured used a website as a source of information than of the newly insured (60.3%** vs. 51.1%), "the insured were more likely to use direct assistance assistance than the uninsured" (45.9% vs. 32.1%).  The newly insured were likelier than the still-uninsured to use navigators and application assisters (11.2% vs. 6.4%) or agents and brokers (12.4% vs. 5.1%).***

Those who gained coverage were less likely to use websites exclusively than those who remained uninsured. While that's unsurprising, it is perhaps surprising that 35.5% of those who gained coverage looked for information without using a website at all, compared with only 22.2% of the still-uninsured.

Would you kill the Boys from Brazil?

Professing himself a lifelong Zionist, Roger Cohen proclaimed a kind of apostasy yesterday:
Jews, above all people, know what oppression is. Children over millennia were the transmission belt of Jewish survival, the object of what the Israeli novelist Amos Oz and his daughter Fania Oz-Salzberger have called “the intergenerational quizzing that ensures the passing of the torch.” No argument, no Palestinian outrage or subterfuge, can gloss over what Jewish failure the killing of children in such numbers represents.

I am reminded of the conflict dramatized in Ira Levin's terror novel, The Boys from Brazil (spoiler alert).  In it, a relentless Jewish Nazi hunter gets a tip from a caller in Brazil and tracks down a final life project set in motion by Nazi doctor Josef Mengele: cloning dozens of little Hitlers around the globe and placing them with elderly, authoritarian adoptive fathers. Ultimately the protagonist, Liebermann, obtains a list of the (literal) Hitler youth and their locations. A militant "never-again" rabbi, Gorin, demands the list, determined to have the clones killed.  That leads to a final confrontation:

Tuesday, July 29, 2014

The ACA provision that should have killed Halbig

Ever since a three-judge panel of the D.C. Circuit Court found in Halbig v. Burwell that the ACA only authorizes subsidies to be paid for health insurance bought in state-run exchanges, not in state exchanges set up by the federal government, progressive reporters have been ransacking the record to prove what they always knew: that the law's creators never intended to exclude federally run exchanges from the subsidy regime.  Today, Greg Sargent and Jonathan Cohn both published compelling circumstantial evidence to that effect.

It seems to me, though, that such circumstantial evidence should be unnecessary. The ACA includes a provision that ought to settle the issue -- on that the majority in Halbig egregiously misread. Health law scholar Timothy Jost highlighted the dispositive provision back in September 2011, two months after the IRS issued a rule spelling out that subsidies would be available through the federal exchange (at which point the brains behind the Halbig suit, Michael Cannon and Jonathan Adler, immediately began arguing in print that the IRS rule contradicted the ACA's text). With reference to the drafting error stipulating only that subsidies be credited through an exchange "established by a state," Jost asserted:
 we do not need to rely on the courts to correct this error. Congress corrected it itself.

Four days after Congress passed the Patient Protection and Affordable Care Act, it enacted the Health Care and Education Reconciliation Act of 2010. Section 1004 of HCERA amended section 36B(f) of the IRC to impose on exchanges established under section 1311(f)(3)—that is, state exchanges—and under section 1321(c)—that is federal exchanges, the obligation to report to the IRS and to the taxpayer information regarding tax credits provided to individuals through the exchange. In this later-adopted legislation amending the earlier-adopted ACA, Congress demonstrated its understanding that federal exchanges would administer premium tax credits.
In a subsequent post, Jost noted, "As a later-adopted statute, HCERA would take precedence over PPACA if there were a contradiction."

If I forget thee, O Buffalo

But how could we, when there's the Garden Walk to draw us back every year? Pro tip: the city of legendary winters has delightful summers.  And gardening fever spreads block by block, year by year. Now there's almost 400 gardens to tour ( here's a few of them). No competition, and no admission fee, though donations are solicited.



Friday, July 25, 2014

SCOTUS: Federal government can't *deny* subsidies to refusenik states?

Yesterday, I suggested that if the conservative justices of the Supreme Court wanted to uphold the D.C. ruling in Halbig, denying the federal government the right to provide subsidies to people who buy health insurance on  healthcare.gov, they might deflect reluctance to upend the law by recourse to states' rights. That is, Roberts in particular  might actually approve on principle leaving it up to the states whether to fund subsidies offered on the ACA exchanges, as he did with respect to the Medicaid expansion. By email, TNR's Brian Beutler responded:

Here's a fun thought. What if Roberts determines that an unambiguous reading of the statute denies subsidies to states that do not set up their own exchanges, but that this constitutes YET ANOTHER unconstitutional exercise of the spending power, a la the Medicaid expansion, and that the subsidies must flow everywhere.

Thursday, July 24, 2014

Could the ACA exchanges go the way of the Medicaid expansion?

If the D.C. Circuit panel ruling in Halbig stands, and the state exchanges currently run by the federal government are deemed unable to grant subsidies to health plan buyers who qualify for them under the ACA's criteria, Nicholas Bagley posits that "the states with federally established exchanges will come under enormous pressure to establish their own exchanges." The federal government could make it easy for them, Bagley suggests, essentially allowing them to decree that they've "established" exchanges while letting Healthcare.gov continue to run them.  Thus the ACA would likely prove indelible after all:
True, not every state would accept the invitation to establish its own exchange, even if doing so were more or less a formality. But lots of states would, especially as voters started to howl about losing their tax credits. If so, even a bad outcome in Halbig might not matter that much in the end.
That quasi-forecast recalls the argument that all states will ultimately come round to accepting the ACA Medicaid expansion, albeit in their own sweet time (Arizona, the last state to implement Medicaid itself, did so 17 years after Congress established the program).

While this thought might be expected to soothe ACA proponents, for me it had the opposite effect. The Medicaid scenario might provide cover for the Supreme Court to uphold the D.C. Circuit panel in Halbig.

When Chief Justice John Roberts held in June 2012 that the ACA's individual mandate exceeded Congress's power under the Commerce Clause but was a legitimate exercise of Congress's taxing power, he justified the recourse to "the Government's alternative argument" by citing SCOTUS precedent that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” He would not thwart Congress's intent by destroying the law's ability to function if he could avoid it.

He showed no such reluctance, however, with regard to the ACA's requirement that states expand Medicaid eligibility to a new class of beneficiaries or else stand to lose federal funding for their existing Medicaid programs. He deemed that requirement coercive, and was joined by six other justices in striking the requirement down and making the Medicaid expansion voluntary for the states.

Wednesday, July 16, 2014

Let them all in? Laying a thought experiment on top of a thought experiment

Jeff Spross of ThinkProgress thinks we should give all kids who arrive on our borders immediate legal status. Josiah Neeley of the Texas Public Policy Foundation responds (on Twitter) by dangling a bit of bait: "why not let in anyone who wants come? Spross suggests that the U.S. could handle the influx if it had to or wanted to. Neeley then asks, "How many do you think would come if we accepted anyone who wanted to come?"

This recalled me to a thought experiment that seems apropos, though I'm not sure why -- maybe because it suggests, indirectly, how much running room we have. Courtesy of James Fallows:
I mentioned yesterday that Thomas Barnett had given a realistic brief appraisal of China's strengths and weaknesses in an NPR interview. A point I particularly liked was this tip for comparing American and Chinese scale:

If Americans wanted to imagine what it would take to be "strong" in the way China currently is, he said, all we'd have to do is think of moving the entire population of the Western Hemisphere into our existing borders. Every single Mexican. (Rather than enforcing the southern border, we'd require everyone to cross it, headed north.) Every Haitian, Cuban, and Jamaican. Everyone from Central America. All 190 million from Brazil. And so on. Even the Canadians. China, by the way, is just about the same size as the United States, though a larger share of its land area is desert, mountain, or otherwise nonarable.