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.

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:

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.

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.

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.

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.

Winning asylum in the U.S.: imminent danger of death is not enough

Reading about the flood of children now arriving on U.S. shores from Guatemala, Honduras and El Salvador, those of us not well versed in immigration law might assume that children who can demonstrate that they will be in imminent danger of death from gangs terrorizing their home towns if deported will be granted asylum. That is probably not so.

Determinations of refugee status or asylum in the U.S. are governed by the Refugee Act of 1980, which derives its criteria from the Convention Relating to the Status of Refugees approved by the U.N. in 1951. To be granted asylum, an applicant

"must prove that he or she would be persecuted on account of one of five protected grounds: race, religion, nationality, political opinion, and social group."  

If the gangs in question are equal opportunity terrorizers, it's hard to see at first glance how those criteria would be met.

The U.S. healthcare system, up my nostrils

If you'll bear with a brief personal medical narrative, I think it holds some lessons about overutlization and economic incentives in our healthcare system, though I'm not entirely sure what they are yet.

I've been plagued with nasal allergies all my life, and almost twenty years ago I also developed nasal polyps. The worst of the allergy symptoms moderated at about the same time, except when the polyps flared up, which would happen when I had a cold. On three separate occasions, I took steps to have the polyps removed surgically, which entailed taking the steroid spray Nasonex for a few weeks and the scheduling an operation. On each occasion I backed out of the operation. On each occasion, too, the Nasonex vastly improved my breathing, but I always went off it because I was under the impression it's bad to inhale a steroid indefinitely.

The last time I put this process in motion, in February 2012, I got some straight talk from the ENT doctor. Polyps and allergies require constant maintenance, he said. If I got the polyps removed, I'd have to stay on the steroid, and the polyps would likely grow back and have to be removed again. He convinced me that using Nasonex indefinitely would not be dangerous.

"Every time I go on Nasonex the polyps disappear," I said. "If I need to stay on the drug after I get the operation, what do I need the operation for?" He allowed that I had a point at wrote me a prescription refillable for a year.

Bypassing healthcare.gov, revisited

Just a brief teaser here, as I work to finish a reported story about different approaches to improving the shopping experience at healthcare.gov and getting essential information to users.

I have caught up again with HealthSherpa, which began life as one of the first ACA comparison shopping sites to spring up while Healthcare.gov was dysfunctional last fall, then went on to become a licensed broker and go live last February as one of the first third-party sites to start enrolling people in subsidized ACA plans. As I reported at the time (or rather, added some explanation to an initial report by the Washington Post's Brian Fung), HHS licensed a number of brokers to develop "web-based entities" -- that is, their own dedicated interfaces on the government site -- and HealthSherpa did so.

Now, co-founder Ning Liang tells me that the company has completed almost 2,000 applications and  continues to streamline the process. Liang claims that a solo applicant can now complete an application in 3-5 minutes --  and a family plan applicant in 10-15 minutes.  HealthSherpa has made this possible partly by reducing the lag time following each completed question, and partly by eliminating redundancies. One key streamlining is that a user goes directly from the shop-around process, where one enters personal info and gets price quotes with plan summaries, to the application process, rather than starting over as on healthcare.gov. The info entered in the shop-around process is ported into the application process.

Whaddaya mean, you didn't know about the subsidy? --Improving healthcare.gov

Once healthcare.gov stopped crashing, how successful was it in transmitting the most basic information to most users -- how much they'd be likely to pay in monthly premiums, and how much in out-of-pocket costs they'd be on the hook for?

My sense from late December on was that the website's shop-around feature, enabling a user to get that basic information without registering or applying, worked reasonably well. I used it all the time to check premiums, deductibles and maximum out-of-pocket (OOP) costs for different ages, income levels and locations. You need to enter about eight pieces of information, including state and county, household size, household members' ages, and household income, to get a listing of available plans, ranked lowest premium to highest, and sortable by metal tier. Each plan summary clearly lists what you'll pay in premium, deductible and OOP max (if your income estimate is accurate). Cost Sharing Reduction (CSR) subsidies lowering deductibles and OOP, available to those earning under 250% of the Federal Poverty Level, are figured in.

And yet, many people who tried to use the site came away with no idea how much they would need to pay -- that is, how big a premium subsidy they eligible for, let alone CSR, or even that they were eligible for subsidies at all. A McKinsey study found that 72% of the respondents who reported that they shopped but did not buy were subsidy-eligible, and that 66% of subsidy-eligible respondents who cited perceived affordability as the reason they stopped shopping were aware of neither their eligibility nor the amount for which they were eligible. Their plight is illustrated by the tale of a newly retired Philadelphia cop who went online and concluded that insurance would cost her $800 per month, -- missing the subsidy that reduced the premium to $135.

One more Jewish Voice for Peace

Update 7/7: Haaretz, voice of what's left of the Israeli left, published an astonishing indictment of Israeli society and culture in a staff editorial today:

No less responsible for the murder are those who did not halt, with an iron hand, violence by Israeli soldiers against Palestinian civilians, and who failed to investigate complaints “due to lack of public interest.” The term “Jewish extremists” actually seems more appropriate for the small Jewish minority that is still horrified by these acts of violence and murder. But they too recognize, unfortunately, that they belong to a vengeful, vindictive Jewish tribe whose license to perpetrate horrors is based on the horrors that were done to it.

Prosecuting the murderers is no longer sufficient. There must be a cultural revolution in Israel. Its political leaders and military officers must recognize this injustice and right it. They must begin raising the next generation, at least, on humanist values, and foster a tolerant public discourse. Without these, the Jewish tribe will not be worthy of its own state.

That makes me feel moderate in my little manifesto, originally posted on July 4, below.
 ----
A personal note here that I have joined Jewish Voice for Peace, which "seeks an end to the Israeli occupation of the West Bank, Gaza Strip, and East Jerusalem; security and self-determination for Israelis and Palestinians; a just solution for Palestinian refugees based on principles established in international law; an end to violence against civilians; and peace and justice for all peoples of the Middle East."  JVP campaigns to induce organizations and investors to divest from companies that profit from the Israeli occupation of the West Bank.

As a Jew, I feel a vital chord is struck by the JVP assertion that "we are among the many American Jews who say to the U.S. and Israeli governments: 'Not in our names!'" Not in my name the land theft, the caging of people in cantons via roads to which they're barred access, the legal codification of second class citizenship, the rampant housing discrimination, the mass arrests and consequence-free killings, the disproportionate assaults and bombardments, and the enablement of all of the above by obscene amounts of military aid showered on a first-world country by a U.S. Congress and executive branch forever in the pocket of a toxic combination of Jewish and Evangelical Christian lobbies.

I note that JVP is noncommittal as to the form of a just resolution of the conflict between Israelis and Palestinians, and that's as it should be. If conditions change to a degree almost unimaginable at the moment, and an Oslo-type two-state solution becomes acceptable to both sides, who would gainsay it?  I have come to believe, though, that a just state in which citizenship is defined by religion and ethnicity is impossible. Ultimately, by course of nonviolent evolution -- perhaps in a hundred years -- I would hope that a single democratic state with no special status accorded to any religion or ethnicity might emerge in present day Israel-Palestine.

Nostalgic bullying

Andrew Sullivan relays complaints from three writers, Leon Wieseltier, Molly Worthen and Rod Dreher, who are uncomfortable with the DIY approaches to religion adopted by many Americans. Worthen expresses the nub of their common complaint. "An institution" such as the Catholic church

forces you to have, for at least part of your life, a respect for authority that inculcates the sense that you have something to learn, that you’re not reinventing the wheel, but that millennia have come before you.

The loss of such authority is in my view a good riddance. On the plane of dogma, it means that those who confuse their close analysis of the fantasies derived from ancient fables with actual knowledge are not fooling anyone but atavists like themselves. On an institutional level, we've learned, or should have learned, that those credited an authority alleged to derive from God are likely to abuse it.

Perennial Millennials?

I've already forgotten what news snipped induced me to tweet, "If immortality is achieved in the next 50 years, we can call Millennials Perennials."  But underlying it was a children's poem I wrote maybe around 2005, which I think reflects a sneaking suspicion or hope held by my own (millennial) kids at the time:

What if human lifetimes double
before I'm 75?
What if they double again and again
and each time I'm still alive?

What if we're all electronically saved
on some future Internet
and email not only our thoughts but ourselves
wherever we want to get?

What if we move through time as well
and take on any shape
or shed our bods and morph to gods --
not bad for a naked ape.

Yes, Peter Suderman, the ACA covers the short-term as well as long-term uninisured.

Many people poring over the data still emerging from the ACA's first open enrollment season seem not to grasp  the volatility of Americans' insurance status.  Take Peter Suderman:

Kaiser’s survey finds that the majority of previously uninsured lacked coverage for two years, and that 45 percent reported not having coverage for five years. Which means that more than half of the previously uninsured were covered at some relatively recent point.

Now, many of those people clearly were having difficulty getting coverage for some reason—perhaps as a ripple effect of the recession, perhaps because of some other factor. But many of them appear not to be completely uninsurable. These are not people who couldn’t get insurance under any circumstance. They’re people who didn’t have it for the last several years.

Obamacare’s supporters would no doubt say that the law was designed to help those people just as much as it was designed to help those who never had coverage at all. That’s an entirely reasonable position. But when we talk about Obamacare’s coverage effects, it’s important to be clear about who is being covered: a sizable number of people who were already insured, as well as people who were both eligible for coverage and covered at one point, but had lost their coverage.

It's true that the ACA is designed to help the long-term uninsured. It's also designed to help the millions who fall out of and back into insured status every year. Last fall, healthcare scholars Rick Curtis and John Graves brought those millions into focus: