Strengthening Constitutional Self-Government

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Eroding Obamacare

One of the strengths of Obamacare is the power it delegates to the Department of Health and Human Services to both define what is an acceptable (and thereby legal) health insurance plan and to grant waivers if they deem the waivers to be good policy or good short-term politics (whether to reward allies or avoid bad publicity.)   This mandate-and-waiver approach allows bureaucrats to slowly drive consumer-driven plans out of the market through a process of harassment and force coverage mandates that will either drive private insurers out of business or force ruinous premium increases that will push public opinion in favor of the legislative enactment of first price controls and then a single-payer health care system. 

The weakness of this system of mandate-and-waiver  is its lack of legitimacy.  If the public's attention can be focused on HHS bureaucrats denying particular insurance policies to particular people, then the Obama administration will be forced to choose between backing off or getting mired in a losing public relations fight.

Since the Obama administration is certain to make use of the strengths of the mandate-and-waiver to advance the cause of government-run health care, conservative politicians should use the political weaknesses of this approach (and the potential policy space this weakness opens up) not only to weaken Obamacare but to increase the numbers of Americans with consumer-driven health insurance policies.  Republican gains in governorships and state legislature seats gives the GOP an opportunity to force supporters of government-run health care to either retreat or fight (hopefully) losing political battles. 

One way that Republican governors and state legislators can weaken Obamacare is to reform their Medicaid systems into a subsidy for high deductible private insurance coverage.  A second way is for GOP governors and state legislators to adopt and expand Mitch Daniels' policy of offering and HSA/catastrophic insurance coverage to Indiana state employees.  This approach has saved Indiana money (which is pretty important considering the circumstances of many state budgets) and increased the take home pay of Indiana state employees while expanding the number of Americans with consumer-driven health care policies in a consensual (rather than mandated) way.  Other states should adopt this approach for their own state workers and make it mandatory that municipal governments offer identical HSA/catastrophic coverage plans to municipal workers as union contracts expire.  Let the union leadership fight not only the taxpayers, but their own members who might want the option of picking HSA/catastrophic insurance plans that would save them money in premium costs.  Also, let HHS and the Obama administration explain why a plan that is good enough for Indiana's employees isn't good enough for Kansas, Florida, or Georgia.  And let Republicans in Congress push for laws giving states the unambiguous legal authority to enact these kinds of policies. 

This approach of reforming Medicaid in a free market direction and giving an HSA/catastrophic coverage option to state and municipal employees has the potential to sharply increase the number of Americans in consumer-driven policies, making it much more politically difficult for the Democrats to abolish these kinds of plans through either legislation or bureaucratic fiat.  It also gives conservatives arguments in favor of eventually expanding use of these kinds of insurance policies to groups other than Medicaid clients and public employees.  If they are good enough for those two groups, they are good enough for most of the rest of the working public.  The very act of fighting the Obama administration for waivers for these kinds of policies will tend to increase public awareness of the existence and benefits of free market-oriented health care reform policies.  These kinds of state-level reforms (vocally supported by Washington Republicans and the right-leaning media) could do more to avert government-run health care than a dozen sure-to-be-vetoed votes to repeal Obamacare - though let's do that too.   

Categories > Politics

Discussions - 17 Comments

The 23 or so State Attorney Generals that have filed lawsuits against Obamacare have just been given a present. Obama has signed 111 waivers for mostly Unions and some companies. Obama has endorsed discrimination and crushed equal protection under the law. We will all be attending the funeral of Obamacare in the very near future as well as the exit of the worst President ever.

Aren't the experts at the Department of Health and Human services both more qualified, and inclined to have our best interests in mind?

I mean you act as if folks sit down and with full knowledge bargain for a contract.

Almost all insurance contracts are full of boilerplate, and really represent adhesion contracts.

The mandate and waiver approach is actually an approach that regulates what sorts of contracts people can enter into. In this sense it is bad.

But it is more or less good, because first of all most people lack the knowledge to bargain effectively.

And secondly, the insurance company is not going to bargain with you, they might bargain with you if you are a big enough business.

It seems to me you are fighting this as a rearguard action against the curse of specialization. The curse of specialization, is a blessing as well. Immagine the range of transactions, that occur in a modern economy. The presidency might be too big for a single individual. But knowledge of contracts is certainly too grand.

If I am wrong about this, please defend the AIG bonuses. As much as it pissed folks off to see the guys at AIG collect massive bonuses, these were a handfull of a very limited pool of people who could unwind the contracts.

The department of Health and Human Services is just trying to get rid of unconscionability. Granted this does mean politically that they will own the standard form contracts.

And it is true that just about everything that shows up on a contract is based upon law, either administrative or a court rulling.

I do generally like the Mitch Daniels "consumer driven" HSA plan.

But that is a totally different sense of "consumer driven", from one which deals at the level of barganing, offer, counteroffer, acceptance(leaving aside the extent to which UCC gap fillers already structure "consumer driven")

Plus I think you have to keep in mind that the insurance industry is highly Oligopolistic.

Personally I like the idea of a single barebones identical insurance contract, that everyone is required to have, just like Car insurance. If you are required to have it, it isn't a contract classically. But courts have rulled that if a court orders you to get treatement for alcoholism you can't refuse to pay the clinic, on the grounds that there was no consent, or acceptance.

The classical age of contracts certainly lives on, as does the age of the hand shake. But you have layers, developments and complexity.

The problem with the indiana policy is that Obama might say, if it is good enough for Indiana employees why isn't it good enough for everyone?

And that's the problem...Too much power to the Dept. you mentioned. And one of the heads is there is someone who clearly despises the current healthcare system and is more concerned with spreading the wealth instead of healing the sick.

cowgirl, I wouldn't count on Justice Kennedy to save us from Obamacare. I'm not saying he won't rule the individual purchase mandate unconstitutional, but I wouldn't count on it (and there are other ways to establish government-run medicine for the vast majority of the public.) And I'd feel a lot better if we also had 23 state governments trying to increase the number of Americans with consumer-driven health care policies. That would certainly be more helpful than a 24th or 25th anti-Obamcare lawsuit.

John, I believe that government has a rule making and enforcement role in helping market function, but your first paragraph (in the context of Obacare) best reads as bitter irony.

If the U.S. Supreme Court wishes to remain a legitimate part of the U.S. Government, then it would be to their advantage to consider Obamacare unconstitutional. If not, then I guess it would be okay to give a waiver to Muslims and have them opt out of the Patriot Act.

cowgirl, on the off chance that the threat of being called illegitimate on conservative websites does not convince Anthony Kennedy to vote to strike down the purchase mandate (and I am not 100% certain that there are four other votes against the mandate either), then we should have a Plan B.

Plan B. The Second Amendment.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

So, do you support the Wyden-Brown plan?

cowgirl, what a deplorable and self-marginalizing way to talk about the federal insurance purchase mandate. The retreat into big talking violent fantasy is a surrender rather than a defiance (though that does not exhaust all that is wrong with dealing with policy reversals within the bounds of our current politics through threats of revolutionary violence.)

agatha, no. From reading the commentary from Ross Douthat and Reihan Salam as well as watching Scott Brown on CSPAN2 yesterday (I was home from work with a sick baby), it seems that Wyden-Brown would just give states the option of adopting policies that range from Romenycare to Obamacare, to state-level single-payer. The rule that states would get waivers under Wyden-Brown only if their policies were as "comprehensive" as Obamacare would make free market-oriented reform (expanded use of HSAs and high deductible policies with some vouchers) virtually impossible under the law's standards.

The thing is that HHS has plenty of discretion when it comes to defining "acceptable" insurance policies - as 111 waiver recipients would be glad to tell you. The task is for Republican governors and legislators to press for waivers for free market-oriented policies, for congressional Republicans to push laws to codify the legality of those policies and for both groups (and the rest of the center-right also) to put maximum pressure on the Obama administration. This pressure should be aimed not only at getting the Obama administration to grant the waivers, but also to focus public attention of the benefits of incremental market-oriented health care reform policies.

Oh gosh, please fall apart. You are hyperventilating. You probably did not recognize the quote I posted was from the Declaration of Independence. This part was a message sent to King George for being an overbearing little dictator much like the one presently sitting in the White House now. The members of the Constitutional Congress ensured this type of dictatorship would not be tolerated int his country. The second amendment ensures the first amendment as well as the remaining amendments. The second amendment protects American citizens from a overbearing government. Understand, once you stop hyperventilating that this was the principle of The Constitution. Read Madison and you will understand.

The Revolution of 1776 was fought because King George was inflicting all kinds of unnecessary laws on the people living in the colonies. Obama is now doing the same.

We need a revolution, whether it is violent or changing the policies of a dicatorship - Obama - then so be it.

The colonists in 1776 wanted their freedom. I want mine too, at any cost - you betcha. I rather be dead then living under the tyranny of some little dictator.

Name on country run by a dictatorship that you would be willing to move to and live out your life.

cowgirl, well since we don't lack elected representation in the national legislature, do have an (indirect) vote in the election of the national executive. since our state elected assemblies have not been dispersed for being critical of the national government, and since critics of the government (other than those belonging to terrorist groups) are not being held without right to jury trial, I didn't think that I needed to spell out the relevant ways in which our situation was different from the one in 1776 (and the list is not exhaustive.)

The alternatives of moving to a dictatorship or violent revolution exclude so many intermediate, democratic and constitutionalist approaches as to be laughable and sinister at the same time.

This kind of violent fantasy talk isn't brave, it isn't principled and it isn't tough. It is just a face saving way of admitting defeat and marginalization. You're not going to overthrow Obama (though you might be a participant in a democratic political coalition that defeats him for reelection.) To the extent that conservatives use this kind of hyperbole (and most don't as far as I can tell), it make winning through democratic and constitutionalist means more difficult. As it should.

How laughable. Obama slammed through a health care mandate by threatening and bribing elected officials. We have elected officials in name only. Obama continously degrades and disrespect the process of government, referring to Republicans as enemies. Clearly he does not understand the basis of our Constitution and structure of government even though he has a Law Degree. He has okayed and stands behind illegal searches being done by TSA. He wants to tax the rich, control the type of car people drive, control companies (GM/Chrsyler), take away the right to bear arms, and his wife is continously telling people want to eat even though her husband is a smoker and a junk food junkie. Our situtation is different from 1776? Which history book did you read - Howard Zinn's "A People's History"?


Conservatives talk about violent overthrow? Really? I believe that Obama's hero is Saul Alinsky. You might want to read his book "Rules for Radicals". It is all about the violent overthrow of America. It is exactly what Obama is doing.

cowgirl, I think pretty much anyone with the slightest knowledge of the situation in the 13 colonies in the 1760s and 1770s and today and who was not blinded with partisan passion would be able to see the relevant differences in the respective political situations (some of which I mentioned.) Though extra points for the identity politics/guilt by association of using Howard Zinn. It would have made as much sense to mention Noam Chomsky or Ming the Merciless

When considering your first paragraph, and remembering that we were talking of your suggestion of violent revolution if the Supreme Court did not strike down the federal health insurance purchase mandate (and not conservatives in general, but you specifically), your list of complaints make for interesting reading, and would, to one who took you seriously on this issue (which I don't) create the impression that you are mad - and not in the sense of being angry. The inclusion of the First Lady's dieting advice/hectoring is especially absurd and grotesque given the context of our conversation (though reasonable in other contexts like if we were talking about hypocrisy and such.)

For the rest, they add up to some legitimate reasons to vote for someone else in 2012 and sore loser complaints that people with different policy preferences have won elected office. The advocacy of raising taxes on the wealthy might or might not be wise, but it is constitutional, and if passed by Congress, no kind of dictatorial action.

As for "threatening and bribing": if there is evidence of actual violations of the law in the President's combination of horse trading, public pressure and personal lobbying then the proper response is to agitate for congressional investigation and the appointment of special counsel. I don't doubt that the House Republicans will pursue this if they think the evidence is there. If the behavior is merely wrong but legal, then the answer is to seek to elect different office holders (partly accomplished.)

I'm not sure if Saul Alinsky called for violent revolution if his preferred candidates lost election, but I don't recall Obama ever doing so. Even if Alinsky had made such suggestion, it makes no more sense to impute those opinions to Obama, than to impute support for violent revolution to someone who did not support it, but who was somehow associated with you.

Things were different from then and now? You don't get out much and talk to the little people. Let's take this example: Charley Rangle, a U.S. Congressman, is not going to prision for violating ethics rules and not paying taxes. Yet Wesley Snipes, a private citizen, is off to prison for three years for not paying taxes. This is not 1776. Yeah right. I did not associate you with Howard Zinn - I just asked if your knowlegde of American History is based on using Howard Zinn's book as reference.

You don't take me serious, but you take the time to respond to my posts? Amusing. Again you don't get out much. Or at least you don't talk to the little people - You sound pretty much like an elistist.

I create the impression that I am mad. Yes I am mad. Mad to the extent that my rights are being trampled on a daily basis by an extremist, revolutionary President. One who has no respect for American, the Constitution and the Bill of Rights. He and yes his wife seem much like you - elistists. Do as I say not as I do. That doesn't work when you are a elected President of a Free People.

Raising taxes on the rich is constitutional? I was under the impression that all men are created equal and there is equal protestion under the law. Raising taxes on the rich without raising taxes on everyone is racist and discriminatory. So I have to pay more because I work more and don't live off the hard work of someone else? That is Constitutional? Just because it is pass by Congress doesn't make it Consitutitional. There is nothing in the Consitution that says you can raise taxes on the rich but not the poor or middle class.

You are so amusing as you try and validate the bribery and threats that Obama carried out when pushing his very unpopular healthcare bill as horse trading. I am sure if it was George Bush who did this "horse trading" you would want him tied to a wagon wheel and beaten.

As far as Alinsky - Please read the book and be enlightened - he did want a violent revolution. Many of his follows including Bill Ayers - a friend of your Obama's - did exactly that and later was upset that he had not doing more. I guess that means he regrets not bombing more buildings and hurting more people. Obama's community organizer work (what a joke) was with an organization that used Alinsky's principles. Obama's hero in his books - Malcom X. Need more be said.

cowgirl,

1. Yes things are different now compared to when Americans could not elect their national-level (or closest equivalent) legislators or executives, were having their local assemblies shut down for criticizing the government, and when critics of the government were facing the prospect of military tribunal. It was not Howard Zinn who brought those facts to my attention.

2. No I don't take you seriously when you advocate revolutionary violence if the Supreme Court refuses to strike down the individual federal health insurance purchase mandate. If I took your statements seriously as a guide to your likely actions in the event of an adverse court ruling, I would counsel you to seek psychological help and/or bring you to the attention of the FBI - partly for your own sake. I actually just think you are blowing off steam in a showy and self-marginalizing way so I'm not worried about the safety of you or the people around you. Why keep responding? Because I think you can learn a lot from people - even people who have gone very wrong on a given issue. This conversation has taught me a lot about the role of self-validating fantasy and the politics of purity in dealing with the frustrations of politics.

3. There is nothing in the Sixteenth Amendment that mandates a flat income tax (or an otherwise flat tax with progressive features like a child exemption.) I'm pretty sure that the federal income tax has had progressive features ever since it was introduced in the mid-1910s - under both Republican and Democratic Presidents as well as Democratic and Republican-controlled Congresses. http://www.taxfoundation.org/publications/show/151.html

Only you know why raising the top rate from the present 35% to 39.9% is any more or less constitutional (as opposed to desirable) than our present tax code. Your entire discussion of the constitutional implications of Obama's proposed income tax increase reminds me of this article http://www.theonion.com/articles/area-man-passionate-defender-of-what-he-imagines-c,2849/

4. If you are aware of any criminal threats made by Obama in order to get his health care plan passed, you would do us all a favor to report the facts to the authorities. I don't remember the details, but I seem to recall that there was horse trading (including special deals for particular industries and states) by the Bush administration in getting Congress to pass both CAFTA/DR and the expansion of Medicare. Given the context of our discussion, it is amusing that you impute violent fantasy to my presumed feelings about the Bush administration (voted for Bush twice, supported CAFTA/DR, have mixed feelings about the Medicare law.) Projection.

5. Obama has not to my knowledge advocated revolutionary violence if he does not get his own way (within the bounds of our current political disputes.) I don't praise him for that. It is a very, very low standard. And yet there are those who do not meet it.

1. The President of this countries refers to members of an opposite party as enemies. Not 1776? The President of the United States supports and has been a member of an organization that has continously been involved with voter fraud. The President of the United States Attorney General does not prosecute two black panthers that threatened violence towards voters. Not 1776? Kathy Sebilus, Obama's Health Care Czar, threatened any company or person who spoke out against the healthcare plan. Not 1776? A Chief Financial Officer of AmVets, a non profit organization in D.C. who was tired of defending Obama and was worried about her family's future - was fired from her job recently - coincidence? Maybe or maybe not.

2. Wow - aren't you the tough one. Threaten to report me to the FBI? But of course you won't even touch on the fact that your man in the White House is one of the biggest threats to freedom and one who supports violence. It is easy for you to point your fingers at me, but you won't, I repeat won't even look at Obama's past involvment with known terrorists and organizations that promote violent overthrow. A President who calls people from other parties "enemies". You say you want to learn from other people - Okay I will play your silly game - Read Obama's books. When you are done, you might want to send him a requesting he get pyschological counseling and report him to the FBI. On top of that you might learn something about Obama.


3. My entire discussion of taxes reminds you a person who complains about God in the Constitution? Whiskey. Tango. Foxtrot. Have you made an appointment with a shrink yet? Raising taxes on one group because they are rich is discriminatory and racist. Period. Talk about fanatasy and projection. You obviously have carte blanche on both.


4. Obama's Health Czar, Kathleen Sebilus has made threats - threats that should have her thrown in jail, but of course that won't happen. Again, Obama's passage of the Healthcare Bill was unprecedented especially since it was against the will of the majority of the people. Furthermore the lies that Obama cast about this bill to the American people would justify impeachment. No one will be able to keep their doctor, health insurance plan, etc. The House Republicans are going to investigate and it will not be pretty. I have no violent fanatasy - but you do - what I stated about Bush was a figure of speech used in the old west. You need some counseling - you have too much of the wimp factor going on.

5. You obviously haven't read his books or listen to his speeches. But why would you? Ignorance is bliss.


I find it interesting how you point your finger at me as a violent, fanasty induced, crazed nutcase who needs psychological counseling, but yet you find that you are learning something from me. My question: who is the nutcase here......or the smug elistist.....

To the points,

1. You have outlined a respectable reason to vote for someone else in 2012, cause for an investigation and (if clear proof of criminality emerges) prosecution, and a reason for a different health care law and a different Secretary of HHS. The idea that your list of complaints (which had earlier included the First Lady's diet advice to the public) replicates the situation of the 1760s and 1770s, and justifies violent revolution against the US government is either very silly or very sinister depending on how likely one is to act on the above ideas. I still don't think you fall into the very sinister category, no matter how hard you try to convince me.

2 and 5. If you are aware of Obama advocating violent revolution against the US government if he does not get his own way within the present bounds of American politics (say Obamacare is repealed, cap and trade is not passed or abortion is restricted), you would do us all a service to let us know specifically where he wrote or said such things. I read Dreams From My Father all the way through, but I confess to having only skimmed The Audacity of Hope. If there is a section of that latter book in which he advocates violent revolution if he does not get his own way within the present bounds of American politics. I (and no doubt many others) would be very interested in reading it. If such a section of the book existed, it would strike me as very negligent that Clinton, McCain, Palin, etc. did not bring it to the public's attention.

3. I'm sorry, but that made no sense. I take it you are angry. You are of course free to counsel your elected representatives to craft a tax code more to your liking or to vote for opposing candidates if your current elected representatives do not satisfy you (options not available in 1776.) You are also free to bring your fantasies about the unconstitutionality of the progressive income to the attention of the federal courts.

4. If you believe that there is evidence that Sebelius committed crimes, you ought to bring it to the attention of the authorities, agitate for the appointment of a special counsel and encourage your elected representatives to consider impeachment and removal.

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