Tuesday, March 3, 2015

The Supreme Court Circus

Every country gets the circus it deserves.

Erica Jong (born 1942). American novelist

Three years ago I wrote a blog about the Supreme Court circus coming to Washington, D.C. to decide the constitutionality of ObamaCare. I reproduce a portion of it now because arguments before the Supreme Court on the legality of federal subsidies in 37 states begin tomorrow.

The blog began:

“Hear Ye! Hear Ye!The circus is coming to town. It starts today. It ends in three days. Get your tickets now while they're hot!

The circus has everything. It has men in dark suits bearing 136 briefs, six men in black robes, three ladies in black gowns, arch conservatives, leaning liberals, a swinging judge, juggling lawyers, legal beagles, a posse of pundits, braying donkeys, dancing elephants, googling journalists, four hundred rapt politicians in the tent goggling the greatest show on earth, busloads of people from afar milling outside, protesters jeering and cheerleaders cheering, and a vast outside world awaiting news and wondering what’s going on inside.”

This Year's Circus

This year’s circus is bigger, longer, and more exciting. It involves the survival of ObamaCare and the legacy of President Obama. It will last nearly 4 months, until late June, when the Court announces its decision and leaves town.

Its ringmaster will be Chief Justice John Roberts, Jr. He is widely expected to be the swing vote in a 5-4 decision whether federal subsidies are legal in 37 states.

Ostensibly the circus focus will be narrow – if the health law phrase “established by the state” applies only to state health care subsidies or to federal subsidies as well. But the practical and political implications of an adverse ruling are huge- Can the government withdraw subsidies from 7 million people who depend on those subsidies for health insurance? Is it humane to leave those people out in the health care cold? What’s more important - the law or the people who wrote the law or the people impacted by the law? How do you prepare to deal with the effects of the law, if it is no longer the law?

Beyond those questions is the big one - Who will be blamed if the law goes down, Democrats who designed, wrote, and enforced it? Or Republicans who have opposed it every step of the way for 5 frustrating years?

This year’s circus will have an enormous audience - the American people who will have to bear the burden of increased premiums and other health costs, state governments who may have to pay exorbitantly to set up state exchanges and support expanded Medicaid programs, and the politicians who will suffer its consequences.

The media, liberal and conservative, can think, write, and pontificate about little else other than the circus. The stakes are beyond belief. The President’s legacy may go down in flames. The 2016 elections may depend on the outcome. The media’s liberal wing says the circus is about social justice and man’s inhumanity to man. It’s a step forward for mankind. Conservatives stoutly maintain it’s about the Rule of Law, not the Rule of Man. It’s a power grab.

All eyes are on the ringmaster. Is he concerned strictly about those 4 words in the text of the law “established by the state? What is his position on federalism and the relative power of the states vis a vis the federal government? Is the law unambiguous or open to interpretation? What are the practical effects of the decision? Do the 4 plaintiffs who brought the case to the high court have legal standing, i.e., were they harmed by the law?

Who knows? Only he and the other justices know, and they have yet to read all the briefs and hear all the arguments.

In the meantime, I leave you with this version of my poem, which followed my original blog.

Here they come
The circus is back in town.
It’s the greatest show around
Yessir! The circus is coming to town.

There are jugglers, lawyers, too
The judges have much to see and do
Now that the circus is back in town.

Donkeys will prance, elephants will dance
Nothing could ever be so grand!

Don’t be left behind
They’re starting today right on time
Cause the circus is back in town
Only four hundred get tickets to see it
Because the circus is back in town.

Here they come
They’re back in town
It’s the greatest show around
Because the circus is back in town.

They are men in gowns, ladies in robes too
The judges have so much to hear and to do
Now that the circus is back in town.

The libs will roar, the Tea's will party,
Nothing could ever be so grand!

The left won’t be left behind
The right will start right on time,
Because the circus is back in town.

In and out, around the circus ring they'll go
Where they'll stop everyone wants to know,
Everyone's on the high wire getting emotional,
To their causes everyone is devotional.
Proliferating ObamaCare Options

We must dare to think “unthinkable" thoughts. We must learn to explore all the options and possibilities that confront is a complex and rapidly changing world.

William Fulbright (1905-1995), Arkansas Senator, Speech before Senate, 1964

As arguments before the Supreme Court begin, ObamaCare optional plans are proliferating on the Republican side of the aisle .

In plain language,GOP options for federal subsidies include state opt-outs, take-ObamaCare–or-leave it freedom plans, health checks distributed through the states, mew state exchanges, and today an Obama off-ramp plan. All of these plans and are said to be patient-centered or market-based. Democrats say they have no contingency plans, for none will be needed.

The Off-Ramp plan, presented the day before the Supreme Court hears arguments in King v. Burwell, is written by Republicans John Kline, Paul Ryan, and Fred Upton, chairmen of the House committees onf Education and Workforce, Ways and Means, and Energy and Commerce.

The author of the bill claim their Off-Ramp plan has these features:

Make coverage more affordable by opting out of insurance mandates on individuals and employers.

Choice of a wider range of plans based on personal needs and budgets.

Forcing insurers to compete for health consumer business across state lines.

Stop frivolous lawsuits.

Allow small businesses to band together to reduce costs and premiums.

Keep safeguards for patients - permit yonmg adults to stay on parents plans until age 26, prohibit insueres from imposing lifetime limits on benefits, protect people with pre-existing conditions, guarantee renewability.

Help people buy coverage by offering tax credits to buy insurance.

Give states more flexibility to design their own solutions.

Do away with health exchanges after a transitional period spent protecting those subsidized in federal exchanges.

Let consumers make their own choices rather than having those choices imposed upon them.

Put Americans, rather than government , in the driver’s seat.

Let common-sense, which is not so common under ObamaCare, prevail.

We shall see if common sense and plain dealing works after the incomprehensible and complex dealings that have characterized ObamaCare. While this workabout is going on, brace for change and protect the federally subsidized if the challenge to ObamaCare succeeds in the Supreme Court.

Monday, March 2, 2015

No Plan B for Adverse High Court Ruling

There’s no Plan B from the Republican or Democratic Party, so if this thing happens, what on earth will come next. Nobody has an answer for that.

Brian Keeley, president and CEO of Baptist Health South Florida, which owns seven hospitals, commenting on possible Supreme Court decision ruling against federal health exchange subsidies, New York Times, March 1, 2014

Storm clouds continue to gather in anticipation of a Supreme Court outlawing federal health exchange subsidies. The storm is intense in Florida, which had an uninsured rate of 21.3% in 2013, which dropped to 18.3% as record numbers enrolled in federal health exchanges.

The convenient meteorological wisdom is, barring alternative plans by either political party, 6 million subsidized enrollees will be inundated with bankruptcies, most will drown and drop their plans as unaffordable, premium flood waters will rise by at least a third and maybe one-half, people will be angry at paying penalties for not having insurance, the individual and employer mandates will die, individual insurance markets will enter a death spiral, ObamaCare will die, political chaos will follow, Republicans will get the blame, to their detriment in the 2016 presidential election sweepstakes.

That ‘s who the New York Times reads the political tea leaves. Its editors says the central claim of the law suit, that the phrase “ established by the State, "is to put it mildly, baloney” (“The Phony Legal Attack on Health Care,” NYT, March 1, 2015). Phony baloney or not, the Supreme Court may rule otherwise, given its political makeup and its lingering doubts that it made the right decision in 2012 by declaring ObamaCare constitutional.

Will the Republicans or Democrats come up with an alternative plan? Will the states be able to make their plans operational enough to save the beleaguered 6 million? (Real Clear Politics, “Officials in States Plan For Aftermath of High Court Ruling,” February 28, 2015))

One wonders what future historians will say about Obama’s strategy in implementing ObamaCare when 85% of Americans were satisfied with their health care? Was expending $1 trillion or more to insure the other 15% worth the cost? Or was Senator Charles Schumer (D.New York) right when he said the focus should have been more on saving the economy rather than concentrating so much on insuring the uninsured.

Maybe ObamaCare was the wrong war , in the wrong place, at the wrong time, against the wrong enemy, the American health care system, rather than on a dysfunctional economic system, saddled by high corporate taxes and heavy regulations producing low growth rather than economic recovery.

Saturday, February 28, 2015

The Numbers if Supreme Court Rules Against Federal Subsidies

None of us really understands what’s going on with all those numbers.

David Stockman (born 1946), Director of Management and Budget under President Reagan

Just give me the numbers. I will understand.


Here are the numbers for you out there seeking to understand what happens if the Supreme Court renders an adverse opinion on subsidies in federal health exchanges.

13 states operating their own exchanges would be unaffected.

87% enrolled in 37 states with federal health exchanges would be affected,

9.3 million could lose $28.8 billion in subsidies.

150 million who pay taxes would gain from loss.

Number of uninsured could rise by 8.2 million.

Premiums could rise by 47% with a 70% drop in enrollments.

Supreme Court decision would take effect in 25 days.

Congress could make decision go away by striking 1 phrase out of current health law “established by the state.”

Neither of the 2 sides, Democratic or Republican, has yet articulated a comprehensive alternative.

If the 2 sides do articulate an alternative , if I may quote Dr. Seuss, “You will see something new. Two things. And I call them Thing One and Thing Two.”

Thursday, February 26, 2015

Apocalypse, Armageddon, or Just Plain Politics

Wild, dark times are rumbling towards us, and the prophet who wishes to write a new apocalypse will have to invent new beasts.

Heinrich Heine (1797-1846), German romantic poet

Obama Care supporters and critics alike are projecting an image of Apocalypse, of Armageddon, the final battle between Good and Evil, with Evil winning, if the Supreme Court rules against federal exchange subsidies for 6 million people.

New beasts will roam upon us. Chaos will ensue. Insurers will descend into bankruptcy. Premiums will soar. Hospitals will close. Six million subsidized citizens will die in the streets. Chemotherapy will be turned off for 12,000 people. Dialysis wards for 10,000 will go dark.

If you doubt this scenario, read today’s news, (Joshua Green, “Is Washington Ready for the Death of ObamaCare,” Bloomberg Politics), or Senator Ben Sasse (R.Nebraska), “ A First Step on the Way Out of ObamaCare,” Wall Street Journal).

To Democrats, such scaremongering is understandable. Death of ObamaCare at the hands of the Court is so unthinkable, they do not mention an alternative or whisper that defeat is possible.

Republicans fear they will get what they wished for, the collapse of ObamaCare, and they will take the political blame for its untimely demise with cataclysmic results in the 2016 elections.

In their heart of hearts, both sides seem to be anticipating defeat or even death of ObamaCare . The Court itself is mum on the subject, for it has yet to read all the amicus briefs or to hear the oral arguments for or against.

It is clear if federal subsidies go down, for the sake of humanity, there will have to be a transition period out of ObamaCare and in the interim those previously subsidized will have to be subsidized . Senator Sasse of Nebraska recommends an 18 month period of transition until Democrats and Republicans get their act together, compromise, and craft an acceptable alternative plan that combines governmental and market-based principles.

The plan will not be one-size-fits-all plan, but various sizes-fitting most of the people most of the time-– depending on their need for government assistance - and their desire for freedom and choice.

Wednesday, February 25, 2015

Who Is Teetering and Who is Tottering? ObamaCare or the Supreme Court?

Teeter Tottering, in Washington, D.C. lingo, is perceived as swaying, seesawing, tipping up and down, and wobbling under political pressure. For me, teeter tottering evokes the image of children on the ends of a teeter totter, shifting their weights and positions to raise or lower themselves.

I thought of teetering and tottering when I read the CNN Report headline, “ObamaCare Is Once Again Teetering Before the Supreme Court.”

Its author, Ariane de Vogue, CNN’s Supreme Court Reporter, begins,

“The Obama administration most significant legislative achievement is now, once again teetering before the Supreme Court.”

The health law is presumed to be teetering because ObamaCare itself teetering. It is still looked upon with disapproval by the majority of Americans, and a Republican Congress has voted to repeal by the 30th time. It is also assumed to be tottering by the Justices, who are often split in 5 to 4 decisions, with Justice Roberts and Kennedy being the most common swingers. The Justices are caught between a rock, the phrase “established by the state, “ indicating subsidies are only available in health exchanges established by states, and a hard place, that 6 to 7 million citizens subsidized in federal exchanges might have to pay back or lose their subsidies if the health law teeter totter goes down, while the conservative and Republican side of the teeter totter goes up.

ObamaCare critics say the word of the law is the law and “opens the door to hundreds of millions of additional spending,” roughly $30 billion a year by my count.

ObamaCare supporter retort writers of the health law always intended to make subsidies available to all who qualified. Solicitor General Donald Vericelli, Jr. will subsidy spending for all was “abundantly clear” what Congress, i.e. Democrats, always mean and that a negative ruling would result in a “death spiral,” not only for the insurance industry, but for hospitals and patients without insurance as well. Besides, he may assert, the four plaintiffs who brought the case before the court do not have “standing” because they were not hurt by the health law.

I did not learn anything from Adriane de Voge’s article that I did not know already. She correctly states that there are tremendous stakes riding on the Supreme Court outcome, including the fates of 6 million who will become uninsured and the President’s legacy. Nor do I whole buy into the teeter tottering argument. We have now had 5 years of ObamaCare, and its benefits and consequences are well known. Neither its advocates or supporters are teetering or tottering. They are not children on a teeter totter, nor are the Supreme Court Justices, who are mature attorneys unlikely to be easily swayed by facile arguments from either side of the political aisle.