ObamaCare Goes to the Supremes

The Left is very, very concerned about the fate of ObamaCare as challenges head to the Supreme Court. You will recall former Speaker Nancy Pelosi responding, when she was questioned about its constitutionality before the final vote, “Are you serious? Are you serious?”

Yes, we are serious.

MIT Prof. Jonathan Gruber, a key architect of the law, was interviewed on Monday a few hours after the court announced it would hear arguments about the constitutionality of the individual mandate and other challenges to the law: “The mandate is really the glue that holds this act together.” He sees this battle as Waterloo. “Basically, this is the last hope for a free-market solution [his actual words] for covering the uninsured. If this fails, then you either give up on the uninsured or you go to single-payer. Those are the only two options left.” [Not true, of course. What we need is a properly functioning market in the health sector].

Health Policy Matters is a family-oriented post so you need to read for yourself his colorful quotes displaying his frustration, including some choice words about Mitt Romney.

In case you missed it, here is a link to my commentary in The Wall Street Journal from last week explaining why the individual mandate — like the rest of the health law — is doomed to fail, no matter what the court decides. I just can’t imagine that the Supreme Court would shred our freedom and liberty by declaring this incredibly flawed provision in this massively flawed law to be constitutional. But we will know by late June.

Here is a link to the piece I wrote for National Review shortly after the Supreme Court announcement. There are many, many other good articles and commentaries about the Supreme Court battles in the articles section below that you won’t want to miss.


In the interim: The risk over the next six months is that public attention will be focused on the Supreme Court and the individual mandate, and that the American people will forget even more than they have already the many other dangerous provisions of the law and the risk to our economy, our health sector, and our current and future prosperity.

So it’s good to see the process of dismantling the law continuing:

  • The House voted unanimously this week to fix a glitch in the health law that would have allowed some solidly middle-class early retirees to qualify for Medicaid. And that follows on the Senate’s unanimous vote last week to fix the provision — with the president agreeing he will sign it.

  • The House Energy and Commerce Health Subcommittee approved a bill this week to repeal the CLASS Act — the long-term care provision that we knew from the beginning to be a Ponzi scheme and which the Obama administration admitted last week it can’t fix. It is unclear whether or when the Senate will act.

  • And now we learn that the administration is trying to make an end-run around the sloppiness in the health overhaul law by attempting to rewrite it through regulation. See Michael Cannon and Jonathan Adler’s piece in the Wednesday Journal for more about this morass. (The law says that subsidies for health insurance can only be delivered through state exchanges; if a state refuses to set up an exchange, the federal government will set up its own exchange. The problem: The law only allows subsidies to be delivered through state exchanges, not ones set up by the Feds…)

  • And Rep. Denny Rehberg of Montana has introduced legislation that would fix two big problems at once: ObamaCare spending and deficit committee targets. He says Congress could reduce the deficit by $1.3 trillion by eliminating the massive spending provisions in ObamaCare: 1) the Medicaid expansion (which 26 states already are fighting in the courts); 2) the hugely expensive premium subsidies which will lure tens of millions of people away from employer insurance into taxpayer-subsidized coverage; and 3) the defunct CLASS Act.

    “Eliminating these new entitlements would be the quickest, simplest, and most common-sense way to meet [the super committee’s deficit reduction] goal because these are new entitlement programs,” Rep. Rehberg said. “We should not fund these new, incredibly expensive programs when we are struggling to meet our current obligations.”

    Former Congressional Budget Office Director Doug Holtz-Eakin agrees completely.


Reaching young people: I spoke on Wednesday night at Loyola University in New Orleans to an audience of professors, the public, and mostly students about our book, Why ObamaCare Is Wrong for America, at the invitation of the astute business and economics professor Nicholas Capaldi.

Many of the students seemed initially wary of hearing my concerns about the health overhaul law, but as we continued the conversation and I provided documented proof of the harm it is doing, many began to share my concerns.

They were particularly struck by four things: The cost they will be forced to pay during their working lives to pay for today’s and tomorrow’s entitlement spending; the job-killing impact of ObamaCare’s employer mandate; the high cost of health insurance they will be mandated to buy; and the extraordinary stress we are putting on the safety net by dramatically expanding Medicaid to cover as many as 87 million people by the end of the decade. Here is my PowerPoint.


Hoosiers lose: Finally, in a major, but not unexpected, disappointment, the State of Indiana learned that the Obama administration has denied its request for a waiver to continue Gov. Mitch Daniels’ popular Healthy Indiana program. Avik Roy has more in his column for Forbes.com. “Healthy Indiana is the most innovative and successful reform of Medicaid in the history of the program. Today, we learn that the Obama Administration has rejected the state’s request to extend its federal waiver, which means that over 45,000 Indianans who get their insurance through the program are out of luck.”

The Obama administration’s rejection of the Hoosier state’s waiver request is a blow to this creative program as a model for entitlement reform throughout the country. But Indiana will fight on, next trying to amend its state Medicaid plan to allow Healthy Indiana to continue.



Rep. Paul Ryan on ObamaCare and IPAB

In this podcast, Representative Paul Ryan talks to the Manhattan Institute’s Paul Howard about the future of innovation in the face of ObamaCare and the Independent Payment Advisory Board.
Listen now >>


Supremes Will Hear ObamaCare Challenge

Grace-Marie Turner
National Review Online: Critical Condition, 11/14/11

The Supreme Court’s decision to hear arguments in the 26-state challenge to ObamaCare sets the stage for the most important constitutional test of freedom and individual liberty in at least a generation. The justices will hear arguments on: the individual mandate, the law’s requirement that states expand Medicaid coverage, whether federal tax law, under the Anti-Injunction Act, keeps the court from reviewing of the mandate until someone has paid a penalty in 2015, and severability, i.e., and what provisions of the law should be struck if the mandate is found to be unconstitutional. The real question in all of these decisions is whether or not the U.S. Supreme Court will use this case to finally put the brakes on the expansive use of the Commerce Clause to regulate all forms of commerce and our behavior as we engage in that commerce.
Read More

ObamaCare: Flawed Policy, Flawed Law

Grace-Marie Turner
The Wall Street Journal, 11/09/11

A poll taken this August by AP-National Constitution Center found that 82% of Americans say the federal government should not have the power to require Americans to buy health insurance. But what about the mandate as a matter of policy? The law would never work as the drafters intended. The 11th Circuit Court of Appeals, which ruled against the individual mandate in August, accurately described it as “toothless.” The penalties — $695 a year or 2.5% of income once fully implemented in 2016 — are too weak to induce people to sign up for insurance policies that the Congressional Budget Office estimates could cost $20,000 a year for a family of four. The mandate is also weak operationally because few believe that the federal government will have the political will to actually seek out and penalize people who don’t sign up for insurance.
Read More

For the Super Committee, an Option to Save Medicare

Grace-Marie Turner
The Huffington Post, 11/04/11

The congressional Super Committee knows that entitlement programs, especially Medicare and Medicaid, are driving our nation’s ballooning budget deficit, yet both Republicans and Democrats fear they are politically untouchable. Legislators can move past this political paralysis by taking first steps to begin to modernize entitlement programs. To survive, Medicare must be changed, and the question is whether it will be through the cuts, price controls, and rationing under current law, or through Rep. Ryan’s plan that enables enrollees to apply the government’s contribution to guaranteed health coverage while bringing the power of market competition to reduce health costs. The key to real reform is building in changes to Medicare and Medicaid that rely on consumer choice and competition, not price controls and crushing government regulations.
Read More

Grace-Marie also wrote about recommendations for the Super Committee in Modern Healthcare, Auburn Sentinel, and more than a dozen other papers.

Deficit Deal Could Diminish Drug Access

Grace-Marie Turner
RealClearMarkets, 11/15/11

As the deadline approaches for a deal on deficit reduction, some members of the congressional super committee reportedly are considering a “tiered pricing” proposal that would pay physicians less for the most frequently used Medicare Part B drugs. This makes no rational sense — basically saying that because a drug is especially effective or important to treating patients, doctors will be reimbursed less for it. For some doctors and some drugs, that means they would be paid less than what it costs them to buy, store, and handle these often-delicate and complex drugs. The proposed change that the super committee is considering at first looks like a straight $3 billion cut in reimbursement to doctors, but the impact will be reduced access to care for patients, diminished incentive for competitive pricing, and ultimately higher spending for Medicare.
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Romney still favors an Obama approach

Grace-Marie Turner
The Janesville Gazette, 11/04/11

While former Massachusetts Gov. Mitt Romney insists the Affordable Care Act “is bad news” and must be repealed, even he gets confused about what he means. In a recent Republican presidential debate, he said: “We all agree about repeal and replace. And I’m proud of the fact that I’ve put together a plan that says what I’m going to replace it with.” Does he really mean he sees Massachusetts as a model for his “replacement” plan even as he insists it’s not? RomneyCare remains Romney’s Achilles’ heel. Without a clearer position, he will have trouble convincing Republican voters he is serious about repeal and will have an even harder time mapping a clear plan on health reform should he be elected president.
Read More

Cain Shows He’s Savvy on Health-Care Policy

Grace-Marie Turner
National Review Online: Critical Condition, 11/02/11

Herman Cain spoke with passion and conviction recently before a Capitol Hill audience about the essential importance of repealing ObamaCare and replacing it with “market-driven, patient-centered reform.” He spoke at a forum organized by the Congressional Health Care Caucus, chaired by Texas Rep. Michael Burgess, M.D., about the destructive impact of ObamaCare, which is driving up costs and forcing at least 1,500 companies to seek waivers just to keep offering health insurance to their workers. Cain spoke without notes and clearly had ownership of the business of health care, the powerful impact of the tax treatment of health insurance in shaping the American health sector, and the crucial importance of repealing ObamaCare to provide a path to change that put doctors and patients in charge of choices.
Read More


GOP hopefuls diverge on alternate health law
Paige Winfield Cunningham, The Washington Times, 11/15/11

Will the Poor Be Able to Afford Obamacare?
Diana Furchtgott-Roth, RealClearMarkets, 11/17/11

Another ObamaCare Glitch
Jonathan H. Adler and Michael F. Cannon, The Wall Street Journal, 11/16/11

Delay Health Law’s Implementation
Douglas Holtz-Eakin and James C. Capretta, Politico, 11/08/11

Repeal health tax to create jobs
Sen. John Barrasso and Sen. Orrin Hatch, Politico, 11/15/11

Report: Fewer than expected claiming small business health credit
Bernie Becker, The Hill: Healthwatch, 11/07/11

Effects of the PPACA Health Insurance Premium Tax on Small Businesses and Their Employees
Michael J. Chow, National Federation of Independent Business, 11/09/11

Public Opinion on the Future of Employment-Based Health Benefits: Findings From the 2011 Health Confidence Survey
Paul Fronstin, Employee Benefit Research Institute, 11/11

Insurer to drop small-business health plans
John Golden, Westfair Business, 11/11/11

Obamacare and the Limits of Judicial Conservatism
Eric R. Claeys, National Affairs, Summer 2011

ObamaCare and the Limits of Government
David B. Rivkin and Lee A. Casey, The Wall Street Journal, 11/15/11

Supreme Court to Hear Obamacare Challenge Involving 26 States
Jeffrey H. Anderson, The Weekly Standard: The Blog, 11/15/11

A Health Policy Failsafe for the Super Committee
David Kendall and Ryan McConaghy, Third Way, 11/16/11

The 2012 Presidential Candidates and the U.S. Health Care System: A CAHI “Plan” Summary
Council for Affordable Health Insurance, 11/11

The bleeding edge of rationing
Scott Gottlieb, American Enterprise Institute, 11/03/11

Health Exchange Subsidies Will Reduce Employer Health Plans
Devon Herrick, National Center for Policy Analysis, 11/16/11

ObamaCare’s Substandard Health Care Subsidies
Sally C. Pipes, Forbes.com, 11/15/11

The market for kidneys, livers and lungs
Sally Satel, The Wall Street Journal, 11/08/11

Saving the American Dream: Improving Health Care and Retirement for Military Service Members and Their Families
Baker Spring, The Heritage Foundation, 11/17/11

Medical residents shouldn’t be working 28-hour shifts
Jason Fodeman, The Daily Caller, 10/30/11

The Doctor’s Out. Where’s the Nurse?
Virginia Traweek and John C. Goodman, National Center for Policy Analysis, 11/10/11


Florida’s Medicaid Reform Shows the Way to Improve Health, Increase Satisfaction, and Control Costs
Tarren Bragdon, The Heritage Foundation, 11/09/11

Obama Administration Denies Waiver for Indiana’s Popular Medicaid Program
Avik Roy, Forbes.com, 11/11/11

The ACA Threatens Access To Care For Medicaid Patients
Anthony Keck, Health Affairs Blog, 11/14/11

Medicare’s failed physician payment policy
Joseph Antos, Real Clear Markets, 11/10/11

Free market makes Medicare drug plan work
Michael Thompson, Richmond Times-Dispatch, 11/13/11


Time Patients Spend in the Emergency Department: England’s 4-Hour Rule-A Case of Hitting the Target but Missing the Point?
Suzanne Mason, Ellen J. Weber, Joanne Coster, Jennifer Freeman, Thomas Locker, Annals of Emergency Medicine, 11/16/11


Obama plan to force ‘rebates’ into Medicare drug benefit will drive up costs for thousands of seniors
Joseph Antos, New York Daily News, 11/14/11

Solving the growing drug shortages
Scott Gottlieb, The Wall Street Journal, 11/07/11

Obama Orders Drug Shortages
Robert M. Goldberg, The American Spectator, 11/04/11

The Bush-Obama Rx Shortages
The Wall Street Journal, 11/04/11

It’s Time to Blow Up the FDA’s Drug Review Process
Sally C. Pipes, Forbes.com, 11/08/11

Bad Medicine for Federal Workers and Taxpayers: Killing FEHBP Competition
Robert Moffit, Ph.D., The Heritage Foundation, 11/02/11


Defining the Future of the FDA: PDUFA V and Beyond
Center for Medicine in the Public Interest Interactive Panel Discussion
Tuesday, November 29th
12:00pm – 1:30pm
Washington, DC