Strengthening Constitutional Self-Government

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Health Care

Bureaucratic Efficiency

In Liberty Fund's new blog Michael Greve points out how powerful and efficient bureaucracies can be when they have determined leaders. The issue here is HHS rules requiring religious organizations to provide contraception coverage in their employee health plans. In sum:

Follow the progression: first comes a statutory text of sufficient ambiguity ["Obamacare"] to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it's been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.

Categories > Health Care

Discussions - 3 Comments

I think that President Crackpot should force the Catholic Church and its affllicated associations not only to pay for contraceptive coverage for their employees, but they should have to pay for their employee's abortions and provide abortion services at their hospitals.

This would force the Catholic Church to shut down all of their hospitals and medical offices in the United States effectively putting approximately 1.5 million people out of work. Furthermore many, many poor people (you know the ones that the Occupiers care so much about) would no longer have free medical care from those Catholic Hospitals as the Catholic Charities provides approximately 40% of free medical care to poor people in the United States.

President Crackpot and the herd of sheep he has working for him the White House are clueless of the fact that not only do religious organizations provide a huge amount of free services to people who are poor, homeless, addicted to drugs and alchol, but they are extremely successful at helping poor people get on their feet, addicts off of drugs and kids in gangs off the street. More effective than the President Crackpot and the U.S. Government could ever be.

But like Mr. Gringrich says, the elitists in this country, including President Crackpot, are anti Christian and they will do anything to shut them down even if it means hurting the 99% that President Crackpot seems to care so deeply about.

Hope and change came about from some college student named Barry smoking too much dope and attending Marxist colleges.

God help us.

Seems spot on, but how does Michael Greeves skip out on the entire labor law dynamic?

Kathleen Sebelius might be right about the ballance, and Constitutional Law anymore is just a massive web of ballancing tests. But might be "right" isn't good enough.

You can characterize this as forcing churches to provide contraception coverage, or forceing labor/individuals to buy contraception coverage.

A pure waiver that exempts religious organizations from paying for these additional services would neglect the fact that a lot of these jobs are classified as "secular", which is why churches get the exception, but hospitals do not. So you can't use a religious litmus test in hiring, doctors or janitors or nurses at a catholic hospital.

But if you had a union representing this labor, these would certainly understand that providing such coverage was a sore point for the employer. It is not as if these employees are as sharply divided or as antagonistic to the employer as rigid legal catagories/structures i.e. "secular". It is after all these doctors, and nurses and janitors who as Cowgirl puts it provide "40% of free medical care to poor people in the United States."

Instead of doing the ballancing test from 5000 feet, why not simply grant waivers that require arbitration, and thus can be narrowly tailored to the true interests of the employer and the employee?

As this article points out only sophisticated parties like Michael Greeve are even aware that the APA exists, and a majority of folks have no idea how much actual government occurs on the level of notice and comment. So the notice and comment is in no way "democratic".

A waiver would thus grant a right to arbitrate the required provisions. The side representing the employer would is the contract, we have a waiver that allows us to cross out this portion of the contract provided we can come to an agreement.

Labor: we understand your moral position and want the monitized value of that coverage so that those who wish to retain such coverage could get it on the market.

The default rule can be cash (default rules are powerful nudges) but our client also wants the ability to check the box and get that insurance.

If you have moral objections to checking the box we are open to structuring the agreement in different terms. If we don't get check the box we want the cash payment to be pegged to the cost of such insurance, keeping in mind that retail insurance purchases are more expensive than wholesale insurance purchases because of barganing power.

Note: if Labor and the employer can't agree in arbitration the waiver disolves and the default agency rule applies.

Instead of a system where sophisticated parties (i.e. mainly powerful employers/corporations/institutions/K-Street manipulate the real action which happens in notice and comment.) we could instead move closer to government by consent.

Let's survey the general landscape, and look for commonalities in the key events:

Anti-ACA...worried about the freedom to contact, and being subject to administrative fiat.

Wisconsin+Ohio...really just frustrated about the freedom to contract. Blame, republicans: Hands off collective barganing!

The Tea Party...really just frustrated about freedom of contract. Manipulation of admin law by K Street. Blame, mostly: Government.

Occupy Wall Street...really just frustrated about the freedom of contract, in re: Contracts of adhesion and barganing power.Manipulation of admin law by K Street . Blame, mostly: Corporations.

Arbitration like that would be an expense to the institution. Why does anyone have to arbitrate what ought to be a natural liberty, that of conscience? What a drag. And by that I mean what a drag on the economy of the Catholic institutions who ought to be able to count on protection for the rights of conscience from our government.

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