Tag Archives: health care

Poor People Need BETTER Health Insurance than the Rest of Us, Not Worse

In every other aspect of life, we assume that the poor can get by with fewer goods of lower quality than the rest of us consume. But when it comes to health insurance, the exact opposite is true.

One common assumption runs through all our anti-poverty programs: The poor and less well-to-do don’t need to live as well as the rest of us. So public housing consists largely of small, poorly appointed apartments in bad neighborhoods, not mansions or suburban ranch houses. It is considered scandalous if food stamps are used to buy luxury foods like steak or lobster, and several states have put long lists of restrictions on how welfare benefits can be spent (even if there’s little evidence they were ever being spent that way). Conservative media often expresses surprise at how many poor families have ordinary modern conveniences like refrigerators and dishwashers, not to mention Xboxes or iPhones.

In its extreme manifestations this attitude becomes petty, but there is also some widely held common sense behind it: If I’m going to pay taxes to support someone else’s lifestyle, at the very least they shouldn’t live better than I do.

So it’s no surprise that the same idea has percolated through to healthcare policy. It’s not controversial that Medicaid patients lack the same choice of doctors as the rest of us, and may have to wait longer for an appointment. And when ObamaCare offered to subsidize health insurance for families with incomes beyond the Medicaid cut-off (which it tried to increase, but was thwarted in 19 states), the fact that many families could now only afford “bronze” plans, with high co-pays and deductibles, wasn’t a big issue: Shouldn’t they be happy to have health insurance at all?

Now that Republicans control Congress and the presidency, even ObamaCare’s bronze plans are considered too luxurious. Their ObamaCare replacement bill calls for the Medicaid extension to be phased out beginning in 2020, and its block-grant provision puts financial pressure on states to throw more and more people off of Medicaid as the years go by. Health-insurance subsidies for the working poor and lower middle class will be turned into tax credits based on age, not income, and generally made smaller. Regulations will be relaxed so that insurance companies can offer plans with fewer benefits and higher co-pays and deductibles — and presumably lower premiums. Economic necessity will force many low-income families (who will have less government help) into these low-premium, low-benefit, high-co-pay policies, or to forego health insurance altogether.

For many middle-class and upper-class Americans, these facts do not set off alarm bells. After all, it’s just common sense that the poorer people have to get by with less. What’s the advantage of making money if those with lower incomes get the same quality of health insurance we have?

In this article I want to argue that health insurance is a unique commodity, and in this instance our common sense is just wrong: The poorer you are, the better your health insurance needs to be. In this one situation, it’s the poor who should get the mansions and lobsters, while the rest of us occasionally make do with less.

I understand how outrageous that sounds. And in order explain why, I’m going to have to back up and explain the basic logic of insurance in general.

1. Even good insurance is usually a bad deal. The first thing to understand about insurance is that, if it’s going to work at all, it has to be a bad deal for most of the people involved.

That’s easiest to see in the case of fire insurance. The reason fire insurance works is that most people’s houses never burn down. If that weren’t true, if houses were burning down left and right, then insurance companies would have to charge astronomical rates that most people couldn’t afford. But it is true, so fire insurance is affordable.

My parents, for example, were homeowners for almost 60 years, and never filed a fire-insurance claim. Year after year, they paid the insurance company, and the insurance company never paid them. What a crummy deal!

Most homeowners are like that. And even the ones who do file a claim or two in their lifetimes probably still lose out: They have a little kitchen fire that requires replacing some cabinets and countertops — but nothing like the value of a lifetime’s worth of premiums.

So fire insurance is not an investment. Unless you’re planning an arson fraud, you don’t buy it expecting to come out ahead.

Even so, it’s not a stupid thing to do. The reason you buy fire insurance is to protect your vision of the future. The odds of your house burning down might be small, but a house is such a large portion of your net worth that losing it would be catastrophic. Without insurance, not only couldn’t most people rebuild anything like their original home, but everything else they had planned to do with their money — retire, pay for their kids’ education, and so on — would be up in smoke as well. The life they had envisioned before the fire would be over.

2. How much insurance you need depends on how tight your finances are. Whenever you buy an electronic gadget, the store will also try to sell you some kind of insurance. Maybe they’ll call it a “buyer’s protection plan” or an “extended warranty”, but basically it’s insurance: If something bad happens to your new phone or computer or TV, they’ll replace it.

Like all insurance, it’s a bad deal for most people. Unless you’re incredibly unlucky or accident-prone, over your lifetime you’d be better off saving up that extended-warranty money and replacing broken gadgets yourself.

But there’s a situation where you might want to pay for the insurance anyway: Imagine you’re buying a very expensive camera to start your own photography business. You’ve stretched yourself really tight to start this business, so tight that if that camera broke, you wouldn’t be able to replace it and your fledgling business would go down the tubes. Now camera insurance starts to resemble fire insurance on your house: You need it to protect your vision of the future.

In general, the right question to ask when you’re thinking about insurance is: “If I don’t have insurance and the Bad Thing happens, what happens next?” If the answer is: “I’ll replace what I’ve lost and life will go on as before”, then you don’t need insurance. But if it’s “Important aspects of my vision of the future will have to change”, you do. So a typical middle-class American doesn’t need an extended warranty on a $100 camera, but does need fire insurance on a house.

3. If you’re rich, you can do without. This aspect of insurance is hard to wrap your mind around, because it works backwards from most of the other expenses in life. For most goods and services, you expect that if you got richer you’d buy the higher-priced version. If you’re living on mac-and-cheese now, you imagine that if you got rich you’d eat filet mignon. You’d trade in your 10-year-old rust-bucket for a new BMW. The apartment you share with friends would become a sprawling private mansion, and so on. You don’t picture doing without anything.

But rich people can afford to forego insurance that poor and middle-class people need. Think about it: If you own ten houses and can afford to buy ten more, why should you insure any of them? If one of them burns down, it’s like the $100 camera: you’ll just replace it and life will go on. Insurance is a bad deal you can afford not to make.

One place where middle-class people run into this consideration is with collision deductibles on their car insurance. If you have a high deductible, you’re essentially buying less insurance, so your premiums go down. If you can go a number of years without an accident and put aside what you save in premiums, you’ll easily cover a higher deductible.

So a high deductible is a good deal if you can afford it. If you have the money lying around, a $1,000 deductible on your repair bill can be an annoyance soon forgotten. But for the working poor and even many in the middle class, an unexpected $1,000 expense can be catastrophic: You can’t repair the car at all, and then you can’t get to work, and then your life spirals down the drain of poverty.

So a well-to-do person can afford to have less insurance, but a lower-income person needs more.

4. No matter what you owe, bankrupt is bankrupt. For someone who doesn’t have sufficient savings or credit, high-deductible collision insurance can be as bad as no insurance at all. Where a middle-class person might pay $1,000 of a $10,000 repair and be glad to have insurance, a minimum-wage worker could be driven into bankruptcy by a $1,000 expense just as surely as by a $10,000 expense. And bankrupt is bankrupt, so the difference between no insurance and high-deductible insurance becomes completely invisible.

5. Poor people’s bodies work just like rich people’s bodies. One thing that hides poorer people’s greater need for insurance is that richer people own more expensive stuff. So even though a millionaire family could replace an ordinary middle-class house without breaking a sweat, it probably lives in a well-furnished-and-decorated mansion that it can’t easily replace. Ditto for the new Mercedes compared to a burger-flipper’s aging Ford. So even though the rich have many more resources with which to replace losses, the increased scale of their possible losses means that they probably spend more on insurance than the poor do.

But that reasoning doesn’t apply when you talk about health insurance. A rich guy’s body works just like a poor guy’s body. It’s prone to the same diseases and accidents and breakdowns. (Maybe more, because poor neighborhoods are likely to be more polluted, and low-paying jobs are often riskier than high-paying jobs. Not many mine owners have died of black lung disease.) If she’s going to have the same chance to survive, a poor woman’s breast cancer needs the same treatments as a rich woman’s, and those treatments cost just as much to provide.

6. What is real health insurance? Having health insurance should mean that your vision of your financial future is protected against a health catastrophe. In other words, if you get sick:

  • You get the care you need.
  • You don’t go bankrupt paying for it.

(Even if you get the care you need, you still might die or wind up unable to work, and that might wreck your vision of your family’s future. But that’s death and disability insurance, which is different topic.)

Most discussions of the Affordable Care Act (a.k.a. ObamaCare) center on the number of uninsured: By some estimates there were 49 million Americans uninsured before the ACA, and that number has come down by something like 20-25 million. Similarly, the percentage of Americans who tell Gallup that they’re uninsured has dropped from 18% in 2013 (before ObamaCare fully took effect) to 10.9% at the end of 2016.

What the uninsured rate ignores, though, is that many of the people who thought they were insured before the ACA only had insurance only up to a point. Millions had policies with annual or lifetime caps on the benefits, or provisions that allowed the insurance company to drop them if they got too sick. In other words, they were covered if they broke a leg slipping on the ice, but they still faced bankruptcy if they waged a multi-year battle with cancer or an expensive chronic disease like MS or HIV.

The best article about this is a Time cover story from March, 2009: Time‘s reporter on the healthcare-reform beat, Karen Tumulty, recounted how her brother thought he was insured until he was diagnosed with a chronic kidney disease.

When we talk about health-care reform, we usually start with the problem of the roughly 45 million (and rising) uninsured Americans who have no health coverage at all. But [Tumulty’s brother] Pat represents the shadow problem facing an additional 25 million people who spend more than 10% of their income on out-of-pocket medical costs. They are the underinsured, who may be all the more vulnerable because, until a health catastrophe hits, they’re often blind to the danger they’re in.

… While Pat had been continuously covered since 2002 by the same company, Assurant Health, each successive policy treated him as a brand-new customer. In looking back over Pat’s medical records, the company noticed test results from December, eight months earlier. Though Pat’s doctors didn’t determine the precise cause of the problem until the following July, his kidney disease was nonetheless judged a “pre-existing condition” — meaning his insurance wouldn’t cover it, since he was now under a different six-month policy from the one he had when he got those first tests.

The ACA did several things to turn kinda-sorta insurance like this into real insurance: eliminate caps and cancellations, as well as waivers that allowed insurance not to pay for pre-existing conditions. But there’s still a flaw.

7. Deductibles and co-pays. Just like car insurance, a healthcare policy might have a deductible: The company will only start paying after you’ve covered the first $500 or $5000 of your healthcare expenses for the year. The policy might also require co-pays: If you have 10% co-pay and run up a $1000 bill, you have to pay $100 of it.

Put together, those are called “out-of-pocket costs”, and they work just like the deductible on your car insurance: By accepting a higher out-of-pocket cost, you’re buying less insurance, so you’ll be charged a smaller premium.

And since insurance is a bad deal for most people, buying less insurance is a good deal for most people if you can afford it.

If you’re a middle-aged middle-class person and you have to pay the first $5,000 of the $200,000 treatments that cure your cancer, you’ll use the money you were saving for your next car or vacation, or get a home equity loan, or tap your IRA — and thank God you have insurance. If you’re too young to have established yourself financially yet, maybe you’ll stretch your credit cards and your middle-class parents will have to pitch in, but you’ll cover the $5,000 somehow.

Now suppose you’re a minimum-wage worker with no savings, no house, no credit, and no IRA, whose parents are in no better financial shape. To you, $5,000 is an astronomical sum; you can’t pay it, so you’ll have to go bankrupt. And bankrupt is bankrupt, whether it’s for $5,000 or $200,000.

So financially, your insurance has done you no good at all.

8. What does “affordable” really mean? ObamaCare caps out-of-pocket costs, but at a level that can be unapproachable for the working poor and lower-middle-class. The 2017 out-of-pocket limit is $7,150 for an individual or $14,300 for a family. That’s fine if you’re healthy, reasonably well off, and could afford a lower-out-of-pocket plan, but figure that you’ll come out ahead in the long run by buying less insurance. But if you’re forced into that plan because that’s the largest premium you can cover, you’re in a Catch-22: The only plan you can afford to pay the premiums on is one that you can’t afford to use.

Fortunately, the designers of ObamaCare took that into account (at least up to a point).  If your income is below a certain level — currently $29,700 for an individual and $60,750 for a family of four, increasing with each additional family member — you qualify for an additional out-of-pocket cost reduction: Below 4/5 of that number, the 2015 limit was $2,250 for an individual and $4,500 for a family, then increasing to $5,200 and $10,400. (Presumably, the 2017 limit has gone up with inflation, but I couldn’t lay my hands on it.)

I still have trouble imagining how a person making $23,760 a year comes up with $2,250, but at least it’s less than $7,150.

But that reduction is part of the income-based subsidies that are going away under TrumpCare. (This was hard to track down, but the web site ObamaCareFacts.com has a TrumpCare page that says: “The bill … gets rid of out-of-pocket cost assistance.”) So if you could imagine someone near the federal poverty limit wriggling through the Catch-22 of ObamaCare, that door is shut under TrumpCare.

9. TrumpCare slams the door on the working poor. For now, the very poor still have Medicaid, which is designed to have low out-of-pocket costs. But TrumpCare eventually jettisons federal responsibility for Medicaid, instead giving the states block grants whose value will not keep up with healthcare inflation. So whether Medicaid will remain as usable as it is now will depend on what state you’re in.

But those just above the Medicaid level — the people who get subsidies in the ObamaCare markets now — are going to wind up without usable insurance. Because they are less well off than the average American, their need for insurance is greater: They need not just coverage, but coverage whose out-of-pocket costs they can handle. A policy that would be fine for a rich or middle-class family will do them no good at all.

The relaxed regulations on coverages and out-of-pocket costs will probably bring premiums down somewhat, but that will only create the illusion of health insurance. Many will still face the horrible choice between foregoing treatment and going bankrupt. In other words, they won’t really be insured at all.

What’s up with ObamaCare (other than premiums)?

President Obama’s legacy accomplishment has problems that can be patched up. But will they be?

In the insurance business, the big thing you worry about is a vicious cycle called a “death spiral”. It goes like this:

  1. An insurance company realizes it isn’t making enough money because it’s paying more claims than expected. In other words, the risk pool is riskier than it predicted.
  2. It tries to increase profits by raising premiums.
  3. Supply-and-demand works in the usual way, so the increased price causes fewer people to want the product. But because of the unique properties of insurance, the people who drop coverage are mostly the ones who think they are less likely to make claims; the insurance was worth it to them at the old price, but not at the new. Meanwhile, the high-risk customers, the ones who will want insurance at virtually any price, all stay.
  4. As the low-risk customers defect, the risk pool gets even riskier. So the insurance company is back at Step 1, paying too many claims to make the profit it wants.

To a certain extent this cycle happens whenever an insurance company underestimates risk or overestimates the number of people who will want its coverage. But usually the effect damps out. In other words, each time around the cycle, fewer and fewer people drop coverage at Step 3, so after some small number of price hikes, a new equilibrium is reached: The higher premium covers a smaller, riskier insurance pool while still leaving the company a profit.

But in a death spiral, the cycle never damps out and there is no new equilibrium. Or, more precisely, the equilibrium point everything trends towards is zero: No one is covered, so the zero premiums balance the zero claims.

Now let’s talk about ObamaCare: Millions of people have signed up for insurance through the ObamaCare exchanges, but not as many as expected. In particular, not as many young, relatively healthy people have signed up. So the total covered population is sicklier than the insurance companies had planned on, and they’re not making money the way they thought they would.

So Step 2 is starting to happen: Last Monday, a report from the Department of Health and Human Services (HHS) said that baseline premiums on the ObamaCare exchanges would be going up 22% on average. In addition, some insurance companies have decided to pull out of the ObamaCare marketplace in a various states, reducing competition and making it easier for the remaining insurers to raise premiums.

That raises the question: Is this a blip that will quickly settle out into a new equilibrium, or is it the start of a death spiral?

It’s hard to get good information on this, because everyone knows which answer they want: Conservatives want a death spiral, and liberals want a blip.

Underenrollment. Let’s start with numbers. Back in 2010, the Congressional Budget Office projected much higher enrollment than we’ve seen.

CBO and [the Joint Committee on Taxation] project that, under current law, 6 million people in 2014 will receive insurance coverage through the new exchanges. Over time, more people are expected to respond to the new coverage options, so enrollment is projected to increase sharply in 2015 and 2016. Starting in 2017, between 24 million and 25 million people are expected to obtain coverage each year through exchanges, and roughly 80 percent of those enrollees are expected to receive subsidies for purchasing that insurance.

That didn’t happen. 2016 enrollment through the exchanges was about half the projection, around 10.4 million, and (prior to the premium increases) the most optimistic estimates projected around 13 million for 2017.

You can argue about why. Maybe the carrots (subsidies) and sticks (the individual mandate’s tax on the uninsured) weren’t as compelling as they should have been. Or maybe the scorched-earth nature of Republican resistance made a partisan issue out of decisions that (in an alternate universe) might have seemed public-spirited. Larry Leavitt pictures that alternate universe:

Imagine a world where the ACA passed with significant bipartisan support and there was a national effort involving politicians of all stripes and figures, and athletes, all encouraging people to get insured. That is not the world we live in. It’s more like what happened in Massachusetts [with RomneyCare].

Instead, we saw something altogether unprecedented in American history: a well-funded ad campaign trying to convince people to avoid a government program that had already been enacted into law. Who can forget the Koch Brothers’ creepy Uncle Sam who was going to “play doctor” with you?

For comparison, try to imagine it’s 1942 and some anti-war billionaires blanket the country with creepy Uncle Sam posters to convince people not to buy war bonds, or it’s 1966 and ads interrupt The Beverly Hillbillies to scare seniors out of signing up for Medicare. Nothing remotely like that happened or could have happened under the political culture of those eras. But it did for us.

Premiums. One important thing to realize about ObamaCare premiums is that up until now they’ve been running under the original projections.

There are a variety reasons for that: In part, it’s that healthcare inflation in general has been lower since the Affordable Care Act started coming into effect.

But a piece of it is also that insurance companies lowballed their initial offers, hoping that once people had health insurance they’d be reluctant to give it up or switch companies. The LAT’s Michael Hiltzik reports:

Some big insurers have found that their initial estimates of customer costs were unduly optimistic. They set premiums lower than they should have, sometimes to buy market share, and incurred losses as a result. Rate-increase requests in the double-digit range for 2017 are the harvest

So what looks like a malfunction in the program might just be premiums getting back to the level they should have been at to begin with.

Subsidies. One reason to think that the premium increases won’t start a death spiral is that most of the people who use the federal exchanges get some amount of subsidy. As their premiums go up, their subsidies do as well. So the sticker shock is diminished.

The people to watch are the ones whose incomes are too high to qualify for subsidies. According to Leavitt, that’s about 15% of the people who use the federal exchanges, but also almost seven million other people whose premiums are based on the rates on the federal exchanges (and whose business the insurance companies are figuring in when they set their premiums). If those people start cancelling their policies, then we could be back in the death-spiral scenario. But if they decide that they like having health insurance and are willing to pay the higher premium to keep it, then everything should be fine.

Fixes. Even if the vicious cycle starts, there are fairly simple ways to stop it — if that’s what everyone wants to do. Basically, the problem, if there turns out to be one, is that the incentives aren’t right yet: The subsidies need to be higher or extend to people with somewhat higher incomes. Or the individual-mandate penalty on the uninsured (the one you would pay when you file your 1040 income tax form) needs to be higher.

Other things could be done to lower insurer costs: The sign-up periods might be tighter and more strictly enforced, to prevent people from abusing the system by waiting until they get sick to get covered. Price controls could prevent profiteering by big pharmaceutical or medical-device companies. The bundle of services that need to be included in an ObamaCare policy could shrink.

Or you could change the market in other ways: In parts of the country (like Arizona) where premiums are rising faster because fewer companies compete, adding a public option (i.e., something like letting you buy into Medicare even if you’re not 65 yet) would increase competition.

Or if you want to go whole hog, the entire health-insurance system could be replaced by some kind of single-payer system, as Bernie Sanders campaigned on, and as gets better outcomes for less expense in just about any other advanced country.

The problem is getting any of that through Congress. So far, Republicans have refused to cooperate in making any mid-course adjustments to ObamaCare, in hopes that it will crash. This also is brand new in American politics. Previous programs like Social Security, Medicare, and even the prescription-drug benefit that President Bush added to Medicare in 2003 all have required tweaks as they got up and running. Once a program had been passed into law, Congress typically has accepted it and tried to make it work. But scorched-earth opposition to ObamaCare continues six years after the law passed: The only change Republicans are willing to consider is repeal.

We can’t go back. In the same way that President Obama’s economic critics often conveniently forget how the economy was collapsing when he took office, critics of ObamaCare forget how the old healthcare system was collapsing under the middle class. The poor could get Medicaid, but health insurance was increasingly out of reach for people who weren’t covered through their employers, and employers faced rising pressure to wriggle out of rapidly increasing premiums.

As a result, the number of Americans with no health insurance at all was approaching 50 million. Millions more Americans had “junk insurance” — low-maximum-benefit policies that would quickly be exhausted by any major illness, or short-term policies the insurer could refuse to renew if you got seriously ill. (Many of the much-publicized horror stories about premiums that skyrocketed when ObamaCare took effect were from people who previously had junk insurance. They didn’t pay much, but they would still face bankruptcy if they got seriously ill.) No one knows how many people were trapped in jobs they couldn’t leave because their pre-existing conditions would prevent them from qualifying for health insurance with a new employer.

In 2009, Time correspondent Karen Tumulty drew the lesson from her brother’s inability to pay for his medical care, even though he had insurance when he got sick.

What makes these cases terrifying, in addition to heartbreaking, is that they reveal the hard truth about this country’s health-care system: just about anyone could be one bad diagnosis away from financial ruin.

As the so-called “gig economy” grows, the lifetime-employment ideal of the 20th century is realized for fewer and fewer people, exposing more and more people to gaps in their healthcare coverage that they may not be able to fill due to pre-existing conditions. So going back to the system that was already starting to fail in 2010 would be trading a fixable death spiral for an inescapable one.

Replace? “Repeal and replace” has been the Republican slogan since 2010, but the “replace” part never materializes. Some vague ideas are thrown around: insurance competition across state lines, health savings accounts, and so on. But the discussion always stops short of an actual bill that the CBO could analyze and members of Congress could be asked to support or oppose.

Most likely that’s because the numbers don’t work, either in an accounting sense or a political one. Paul Ryan and Mitch McConnell know they can’t assemble their fractious troops behind any specific proposal. And if they did, the resulting plan would vastly increase the number of uninsured people, while leaving those with insurance vulnerable to losing it if they get sick or change jobs.

The basic vision of ObamaCare — private health insurance made universal through a system of government mandates and subsidies — was created by conservatives who wanted an alternative to a single-payer system. More than 20 years later, those are still the only two viable ideas out there. If you really want to replace ObamaCare, single-payer is your only choice. If that’s not what you want, then you should help fix ObamaCare.

The Individual and the Herd

How the rhetoric of freedom can lead us astray.

The question Governor Chris Christie was asked seemed simple enough:

There’s a debate going on right now in the United States, the measles outbreak that’s been caused in part by people not vaccinating their kids. Do you think Americans should vaccinate their kids? Is the measles vaccine safe?

He could have just said: “The measles vaccine is safe and parents should get their kids vaccinated.” That appears to be what he believes, and the question required nothing more. But instead he decided to expand the context and give a more complex answer:

All I can say is that we vaccinated ours. That’s the best expression I can give you of my opinion. It’s much more important, I think, what you think as a parent than what you think as a public official. And that’s what we do. But I also understand that parents need to have some measure of choice in things as well so that’s the balance that the government has to decide.

In response to follow-up questions, he explained that vaccines for different diseases have different risks and benefits (which is true), so the government should be careful about which ones it mandates and which ones it leaves up to parents (which hardly anyone disputes). “I didn’t say I’m leaving people the option,” he protested. And when asked again whether vaccines were dangerous, he responded: “I didn’t say that.” But he also stopped short of saying: “The measles vaccine is safe.”

In short, if you parse Christie’s words very carefully and give him just a little benefit of the doubt, he didn’t say anything all that objectionable. But the question lingers: Why did he go there in the first place? Why not just give the simple answer, if that’s what he believes? After all, that’s the image Christie works so hard to project: a man who bluntly says what he thinks without a lot of political doubletalk. Why couldn’t “Is the measles vaccine safe?” get a “yes” answer, rather than a long-winded discussion followed by a denial that he was saying it was dangerous?

The obvious implication was that (as he progresses towards an as-yet-unannounced presidential campaign) Christie was trying not to offend some bloc of Republican voters. And many then jumped to the conclusion that the bloc in question is the anti-vaccine conspiracy theorists, who believe the scientifically groundless theory that vaccines cause autism.

The controversy Christie’s remarks started might have died out quickly, if rival presidential hopeful Senator Rand Paul hadn’t jumped in and said explicitly what Christie was accused of implying:

I’ve heard of many tragic cases of walking, talking, normal children who wound up with profound mental disorders after vaccines.

(He later backed off, claiming that after just means that vaccines and mental disorders are “temporally related”, not that one causes the other. So I’m sure he won’t mind if the media publishes a slew of stories of the form: So-and-so did something horrible after listening to Rand Paul. Or maybe a headline like “ISIS Beheads Hostage After Paul Speech”.)

But here’s the problem with the pandering-to-Republican-anti-vaxxers theory: First, there just aren’t that many anti-vaxxers. [See endnote 1]  And second, they aren’t all Republicans. There’s a liberal version of anti-vax that focuses the conspiracy theory on drug companies rather than government. [2]

So the theory that a Republican primary might be decided by anti-vaxxers casting a single-issue vote is a little sketchy. That’s why as soon as their position got labelled as pandering to anti-vaxxers, other potential candidates took the opposite side of the argument [3] and both Christie and Paul had to back down to a certain extent.

So who were they pandering to? The Libertarian/Theocrat side of my model in “The Four Flavors of Republican“.

Again Paul was the more explicit:

The state doesn’t own your children. Parents own their children. [4]

In other words, decisions about vaccinations shouldn’t be made by the American people as a whole through the democratic process, or by the medical experts that the people delegate those decisions to. Libertarians believe those issues should be decided by sovereign individuals, and Theocrats want them decided by the fathers that God made sovereign over their households.

When you look at the world through either one of those lenses, vaccinations aren’t the point, they just symbolize larger issues about authority. So sure, I’m going to vaccinate my kids, but the decision should be up to me. “It’s an issue of freedom,” Paul said, and when the CNBC interviewer pressed him, he got sarcastic. “I guess being for freedom would be really unusual.”

This ties vaccinations to other “freedom” issues, like your freedom to go without health insurance rather than accept ObamaCare, your freedom to let your kids grow up ignorant rather than send them to a government-approved school (or report their home-schooling progress to an education bureaucrat), or your freedom to take the low wages and poor working conditions an employer offers rather than negotiate through a union. Newly elected North Carolina Senator Thom Tillis defended the freedom of food-sellers to set their own hygiene standards rather than be bound by government regulations:

“I was having a discussion with someone, and we were at a Starbucks in my district, and we were talking about certain regulations where I felt like ‘maybe you should allow businesses to opt out,'” the senator said.

Tillis said his interlocutor was in disbelief, and asked whether he thought businesses should be allowed to “opt out” of requiring employees to wash their hands after using the restroom.

The senator said he’d be fine with it, so long as businesses made this clear in “advertising” and “employment literature.”

“I said: ‘I don’t have any problem with Starbucks if they choose to opt out of this policy as long as they post a sign that says “We don’t require our employees to wash their hands after leaving the restroom,” Tillis said.

“The market will take care of that,” he added, to laughter from the audience. [5]

So in Tillis’ ideal republic, you would have to study the diverse hygiene practices of all the places you eat, so that you can make an informed decision about whether it’s safe to eat there. Because freedom.

Taken to its logical extreme, the freedom agenda says that you should be free to drive on the left side of the interstate. You wouldn’t, of course, because it’s dangerous and you’re not stupid. At least, you wouldn’t most of the time. Most people wouldn’t, most of the time.

But it wouldn’t take many to screw everything up. What if, of all the drivers who would be traveling north during your next trip south down the interstate, you knew that only one would be using his freedom to drive on the left side and come straight at you? How would that change your driving experience?

Here’s what it boils down to: Human beings are simultaneously individuals and members of society, not fundamentally one or the other. Some issues (like free speech) are easier to understand from the individual point of view, while others (like traffic) require a  social point of view. [6]

Public health is fundamentally social. Germs pay no attention to your individuality; they just spread through the herd. You personally may do everything right, but whether or not you get sick also depends on social things like the quality of the sewage system, whether other infected individuals have access to health care or paid sick leave, how well your city controls rats and other vermin, whether restaurant workers wash their hands, and what percentage of people get vaccinated. In extreme cases, it depends on really draconian government interventions like quarantines and travel restrictions.

No matter what kind of intellectual contortions you do, you can’t square all that with a pure individual-freedom agenda. What if a free individual exposed to Ebola doesn’t want to be quarantined in a treatment facility? (Maybe he has his own theory about diseases and doesn’t believe all this germ-and-virus nonsense. Or maybe he was only probably exposed, and he’s willing to risk it.) If your ideology limits you to looking at everything from the individual-freedom viewpoint, your thinking about public health is going to be crippled.

So that’s who Christie and Paul were pandering to this week: people whose thinking about public health has been crippled by individualist ideology. If either becomes president, he may continue to pander to them.

[1] Anti-vaxxers only dangerous because it doesn’t take many to screw up herd immunity, which protects people who can’t use the vaccine. (In other words: Even if you can’t be vaccinated or haven’t been vaccinated yet, you’ll be safe because you are unlikely to come into contact with sick people.) According to the World Health Organization, as reproduced in Wikipedia, the herd immunity threshold for measles is 83-94% vaccinated, so as few as 6% in a local community might be enough to make that community vulnerable to an outbreak.

If you think of this in terms of the free-rider problem, the herd immunity threshold measures how many free riders the vaccination system can stand before it starts breaking down.

[2] Anti-vaccine liberals are sometimes used to prove that in their own way Democrats are just as much at war with science as Republicans who deny climate change or evolution. But here’s the clear difference: Anti-science liberals are on the fringe of the Democratic Party, and elected officials seldom pay much attention to them. Conversely, climate-change denial is a core position of the conservative base, so virtually every elected Republican has gotten in line.

[3] Marco Rubio demonstrated that a Republican presidential contender can give the simple, direct answer: “There is absolutely no medical science or data whatsoever that links those vaccinations to onset of autism or anything of that nature. And by the way, if enough people are not vaccinated, you put at risk infants that are three months of age or younger and have not been vaccinated and you put at risk immune-suppressed children that are not able to get those vaccinations. So absolutely, all children in American should be vaccinated.”

Also Ted Cruz: “On the question of whether kids should be vaccinated, the answer is obvious, and there’s widespread agreement: of course they should.”

But both avoided a direct endorsement of mandatory vaccinations, like Ben Carson’s.

[4] Rekha Basu of the Des Moines Register had the right response:

No, we don’t own our children. From slavery to child sexual abuse, the notion of owning another human has led to nothing good. Legally, we’re responsible for our kids and their care, feeding and safety until they’re old enough to take care of themselves. But they are autonomous human beings, which is why, unlike property, there are laws and standards governing what we can and can’t do to them.

[5] We’ve seen this two-step before. The same politicians who say that a well-informed public can sort things out without government help will also oppose any regulations that inform the public. Today, Tillis says he’d make Starbucks post that sign, but when the time came to vote on it he actually wouldn’t, for exactly the same reason: The market can sort out whether businesses should have to post their hygiene policies.

[6] It’s like the wave/particle thing with light, if that analogy makes sense to you. If not, forget I mentioned it.

7 Liberal Lessons of Ebola

Disease should make us think like a species, not like rugged individualists.

One perverse aspect of the public reaction to Ebola is the way it seems to be playing politically, at least in the short run. Ebola is making people afraid, and pushing them towards the party whose central narrative is about fear and anger: the Republicans.

Republican politicians are certainly playing up this angle: exaggerating the threat, and calling for xenophobic actions to combat it — cut off contact with Africa, seal the border against … well it’s not clear against who. Candidates have been amalgamating all the current fear-objects into one nightmare narrative: ISIS terrorists are going to infect themselves with Ebola, then sneak across our southern border to spread it here.

Senator Ron Johnson and Rep. Joe Wilson have put it most bluntly, but Republican Senate candidates around the country — Scott Brown, Thom Tillis, Cory Gardner — have been highlighting the pieces of this dark fantasy and hoping voters will assemble it for themselves: Ebola, ISIS, southern border.

Like most nightmares, this one evaporates as soon as you look at it by daylight: Ebola sucks as a bio-weapon, because it’s so hard to spread, and by the time the carriers were contagious they’d mostly just want to sleep; they certainly wouldn’t be able to swim the Rio Grande or hike the Arizona desert. Except in fantasy, no one has found any links between ISIS and Mexico. And unlike Texas, Mexico has no Ebola cases so far; if anybody should want to seal the border, it should be them, not us.

But nightmares — even very, very unlikely ones — raise fear, and fear makes people vote Republican. Or at least that’s what Republicans believe.

A rational person, though, ought to become more liberal when they think about Ebola, not more conservative. Here’s why.

1. Ebola points out why we need government. Libertarian rhetoric about sovereign individuals has a lot of superficial charm. But biology knows nothing about that; humanity is a species, and sometimes we have to act as a species. We do this through government.

If you want to get some distance on these issues, I recommend reading John Barry’s The Great Influenza, about the 1918-19 epidemic that killed as many as 100 million people around the world. The cities that did well with that plague were the ones whose governments were most draconian about it. As you read, try to imagine a plague hitting Galt’s Gulch, where each sovereign ubermensch would do his own research and make up his own mind about the disease and how to handle it. I don’t think they’d do very well.

There’s a lot of thankless, profitless work involved in controlling Ebola. For example, tracking down all the people who have been in contact with an infected person, and testing or quarantining them. It’s hard to imagine a free-market system that would do this well. The most obvious libertarian system would make individuals responsible for tracking their own exposure, and if some more complicated system created a profit motive for controlling a small outbreak, waiting until it’s a larger outbreak would be even more profitable.

2. Ebola points out why we need a fully funded government. When there’s no immediate threat of disease, government agencies like the CDC look like bureaucratic waste. When Rand Paul put out a “Tea Party budget” in 2011, it included a big cut in the CDC, and virtually no explanation as to how this would affect its mission. As I explained at the time:

sometimes you don’t get even that much justification, and the cut seems to be based on little more than an ideological assumption that waste must be in there somewhere. Take the CDC again. It’s our front line against plagues and epidemics, the folks we depend on to helicopter down in astronaut suits if SARS or ebola breaks out or drug-resistant tuberculosis gets out of hand. It has a total budget of $6.342 billion in 2011, so $1.165 billion represents a 28% cut for the final 2/3 of the year (assuming Paul’s bill could be passed immediately).

How should the CDC fulfill its mission with 28% less money? Given how disastrous a mistake could be, you might hope for some kind of expert justification, maybe a new strategy based on a medical study or two. Nope. The overview just suggests “focusing on domestic priorities rather than spending billions on overseas initiatives.” So basically, the CDC should stop worrying about plagues in other countries, and wait until they show up here. In Rand Paul’s world, that kind of thinking saves money.

I quote from my 2011 article to make this point: Hindsight wasn’t necessary to grasp how misguided this was.

NIH Director Francis Collins has speculated that we’d have an Ebola vaccine by now if not for the budget cuts that did get made: The $37 million we spent on Ebola vaccine research in 2010 was down to $18 million by 2014. Various other people have pushed back against that speculation. (And then Mike the Mad Biologist pushed forward again.) But the bottom line is simple: If you could reach back in time and reverse those cuts, wouldn’t you?

Now ask yourself: How many other cuts are like that? How many other agencies not currently in the headlines are we looking at as “wasteful spending” when it’s just that we don’t personally need them right now? And is it possible that events might make us wish we’d spent more before the emergency hit?

3. Ebola points out why we need a fully staffed government. Wouldn’t it be nice to have a surgeon general about now? (Just as it would have been nice to have had an ambassador to Russia when the Ukraine thing broke out or a Turkish ambassador as we were trying to get Turkey’s cooperation in opposing ISIS.) As former Surgeon General Regina Benjamin put it:

The surgeon general is America’s doctor. Delivering information to the American people in a language they can understand. Not having one right now, you don’t have that face and that person that the American people can identify with as their doctor who’s looking out for them on a large scale.

But we don’t have one because of the NRA. President Obama nominated Dr. Vivek Murthy back in March. But it turned out that Murthy views gun violence as a public health problem. (So does the AMA.) That makes him unacceptable to the NRA, so the Senate has been unable to confirm him (and a recent Supreme Court ruling prevents Obama from installing him as a recess appointment).

It wasn’t so long ago that the Senate believed in staffing the government, without making every appointment into a political football. But today’s Republicans have blocked Obama’s appointments on principle, even when they have no issue with the nominee. If they get control of the Senate in the upcoming election, expect the government to remain understaffed at least until the next administration.

If you’ve ever worked in an understaffed department, you know what that means: Stuff falls through the cracks. When that inevitably happens, Republicans will blame “government” rather than the true culprit: understaffed government.

4. Ebola demonstrates why we need to fund foreign aid. Foreign aid is one of the most unpopular parts of the federal budget (possibly because Americans grossly overestimate how much we spend on it). But viruses point out that the world is more interconnected than our political systems account for.

Bush administration officials used to tell us that we had to fight terrorism “over there” or else we’d eventually have to fight it over here. That’s debatable when it comes to terrorism, but it’s absolutely the fact when you talk about contagious diseases.

Ebola is controllable — previous outbreaks have been controlled, and the world has gone entire years without new cases. But ultimately it has to be controlled at the source, in west Africa.

Now widen your view a little: Anyplace in the world where people are living in unhealthy and unhygienic conditions, the next super-bug might be evolving. Any population that is “off the grid” of the global medical establishment might where a pandemic gets rolling before anyone notices.

5. The specter of a deadly infection demonstrates why we need universal health care. Conservative rhetoric revolves around individuals, and in particular how wrong it is to “give” individuals benefits — like health care — that they haven’t “earned”. Such individuals become “dependent on government” and take money away from “job creators”. It’s even worse if some of those benefits reach people who entered the country illegally or stayed past the expiration of their visas.

But when an infection gets loose, you want everybody who might be sick to seek treatment. You don’t want them to stay away from doctors because they can’t pay, or avoid the emergency room for fear of being deported, or not tell anybody about that undocumented cousin they might have infected.

I’m still not terribly worried about the spread of Ebola in the United States. (The number of cases and the likelihood of spreading the infection are both low.) But we might not be so lucky with the next disease. That’s why we should all be tremendously grateful that (so far) ObamaCare has gotten health insurance to ten million more people, and we should be working to plug the holes in that system rather than tear it down.

If a real epidemic got rolling, where would you rather be? In Massachusetts, where the model for ObamaCare, RomneyCare, became law in 2006, and only 1.2% of the population lacks health insurance? Or in a conservative wonderland like Texas, where 24.8% — probably including the Hispanics who clean your office or work in the kitchen at your favorite restaurant — are uninsured?

6. The Ebola panic demonstrates the danger of legitimizing conspiracy theories. During a plague, you need affected people to cooperate with the containment plan — seek treatment, accept quarantine, and report all their contacts truthfully — while unaffected people stay calm rather than doing panicky, stupid things. That’s when it’s important that the country trust its scientific establishment and its government.

Now of course it is important that the media and the political process police the trustworthiness of both those institutions. On those rare occasions when scientists fake data, they should be exposed. When the government lies, the media should investigate and seek the truth.

But what we’ve been seeing inside the conservative news bubble during these last six years goes way beyond that. Political opportunism has been seeking every opportunity to tear down public trust, even when — maybe especially when — the accusations are baseless.

And so, much of the public believes that the scientific community is involved in an elaborate conspiracy to promote a climate change “hoax”, or to destroy the Christian religion via the theory of evolution. So how can we believe what the doctors are telling us about Ebola?

And the Obama administration? If President Obama faked his birth certificate to hide the fact that he’s not really eligible to be president, if he’s been plotting to destroy the U.S. since he was a student, if he has a gun-confiscation plan that’s always just a month or two from implementation, if he is funding “death panels” that will decide whether your life is worth saving, if he has a “Kenyan, anti-colonial” worldview, if he “hates white people” or “has a deep-seated hatred of white people or the white culture” … why would his administration tell us the truth about Ebola? Fox News’ resident psychologist Keith Ablow lays it out:

[Obama’s] affinities, his affiliations are with [Africans]. Not us. That’s what people seem unwilling to accept. He’s their leader … we don’t have a president. We don’t have a president who has the American people as his primary interest.

This is irresponsibility on a grand scale. Every era has a lunatic fringe with paranoid notions. But this kind of stuff comes from governors, members of Congress, a news network, and lots of other folks who seem to be part of a trustworthy establishment. And major national leaders — I’m looking at you, John Boehner and Mitch McConnell — sit at the same table and humor the purveyors of this destructive nonsense.

So it’s no wonder we’re seeing all kinds of weird behavior out there: Like the school in Maine that suspended a teacher for 21 days (the incubation period of Ebola) because she’s been to Dallas. Her hotel was less than ten miles from the hospital where two nurses got infected, so how can we have her in the same room with our children? (The local news report on this mentions a local parent who believes the government has “downplayed risk factors”. I wonder where he gets his news.) Thursday, several entire schools closed in Texas and Ohio because of Ebola contagion fears.

What would happen if we were having a real epidemic? I think mobs would be roaming the streets, burning down the houses of suspected carriers — all because the conservative movement and the Republican Party have prioritized destroying Obama over maintaining public trust in trustworthy institutions.

Pandering to people’s worst instincts may seem like a political freebie. But it isn’t. There’s a big social cost to this kind of stuff. But “social cost” is one of those things that conservatives are trained not to see. And that’s a 7th reason why you should be a liberal.

Republican Judges Take Another Shot at ObamaCare

If ObamaCare were a TV series, every episode would be a cliffhanger.

Like a superhero’s girlfriend or a soap opera heroine, ObamaCare always seems to be in danger. It survived several apparently fatal crises on its way to passing Congress. After it passed, the new Republican House was going to repeal it or defund it. Then conservative lawyers created a completely new theory of the Commerce Clause to make it unconstitutional — and got five Supreme Court justices to agree with them — only to see Chief Justice Roberts rescue the law at the last minute by re-interpreting a penalty as a tax. (But the Court did allow states to opt out of Medicaid expansion, keeping millions of the working poor from getting health care, and probably killing thousands of them.) Then Ted Cruz was going to lead a campaign to force President Obama to accept repeal by shutting down the government and threatening to wreck the world economy.

After the program started to get rolling, the web site was never going to work, and people were never going to sign up, and the people who did sign up would be old and sick, and the rates were going to astronomical, and more people would lose coverage than gain it, and it just was all going to collapse of its own weight. Democrats would kill ObamaCare themselves, just to keep the disaster from destroying their party forever.

If ObamaCare were a TV series, every episode would be a cliffhanger.

But like TV cliffhangers, the disaster never really arrives. ObamaCare shows every sign of working more-or-less the way it was designed to, except for those minimum-wage folks in Texas (and other red states) who can’t get Medicaid.

But it’s still not out of the woods. Tuesday, two Bush-appointed judges on the D. C. Court of Appeals lobbed the latest bomb in ObamaCare’s direction: The way the law is worded, people in 36 states are ineligible for the subsidies that put the “affordable” in the Affordable Care Act. In an opinion piece at Fox News, Betsy McCaughey — the woman who created the “death panels” hoax that Sarah Palin made famous — announced that the ruling had sent ObamaCare into a “death spiral”.

I’ll get into the details of this in a minute, but first let me spoil the suspense: I don’t think this bullet is going to kill ObamaCare either. Not because the legal ruling is bogus and partisan — it is, but the Supreme Court has five conservative judges who might be happy to issue another bogus partisan ruling against ObamaCare — but because the stock price of health insurance companies didn’t budge when the D. C. Appeals Court’s surprise came out.

Politicians and pundits might predict all kinds of things, and who knows whether they really believe any of it. But what people do with their money reflects what they genuinely expect.

ObamaCare is great for insurance companies. (That’s the biggest liberal complaint about it.) And as the good news about ObamaCare has rolled in, health insurance stocks have had a nice run. United Health, for example, started 2014 at $71.65 and climbed steadily upward to open Monday at $84.68. Back on Inauguration Day, 2009, you could have bought a share for $24.16.

So the beginning of an ObamaCare death spiral would be bad for insurance companies and should have sent investors heading for the exits. (Take your profits. Sell, sell, sell!) But UNH closed Tuesday at $86.05, and closed Friday right back where it opened Monday, at $84.68. The whole week was a total non-event for UNH.

Just about by definition, investors are people with money. And people with money tend to be Republicans, who are more likely than most to live inside the conservative bubble and take bad news about ObamaCare seriously. But they’re not taking this threat seriously. So I’m not either.

Now let’s get down to the legal arguments. Fortunately, we get to look at the same facts from two different angles, because on the same day the Fourth Circuit Court of Appeals ruled the opposite way on a virtually identical case. The D.C. court’s judges vote 2-1 and the Fourth Circuit 3-0, so the net vote was 4 judges to 2 in favor of the ObamaCare subsidies.

The issue. The original plan in the Affordable Care Act was for each state to set up its own health-insurance exchange, like kynect in Kentucky or Covered California. But just in case one or two states didn’t, the law empowered the federal government to set up an exchange for a state.

At the time, I don’t think anyone in the administration expected the level of obstruction the program has faced. Common sense would tell you that a state government would jump at the chance to tailor the program the way it wants rather than have the feds make all the decisions. But these are not sensible times, so there are 36 states with federally-run exchanges.

The basic logic of ACA is achieve near-universal healthcare coverage by

  • expanding Medicaid to cover the working poor.
  • subsidizing insurance premiums via a tax credit for those somewhat better off.
  • using a tax/penalty to push everyone who isn’t already covered by either an employer or the government to buy private insurance on his/her state exchange.

But the line in the law that authorized the tax credits was worded so that they applied to taxpayers who are

covered by a qualified health plan … that was enrolled in through an Exchange established by the State under section 1311

So if you interpret that line in a context-free way, you might think that people in those 36 states with federally-created exchanges don’t get the tax credits. That completely screws up the logic of the plan, and absolutely no one at the time the law was passed thought it would work that way. (In particular, I don’t believe this point ever came up when states were debating whether or not to establish exchanges.) But words mean what they mean, right?

How this would resolve in a sane world. This is what is known as a drafting error, and they happen from time to time. If they aren’t too serious, everybody ignores them. (If a law would happen to mis-spell Connecticut, judges wouldn’t decide that Congress intended to refer to some previously unknown state.) But if the error looks like it will cause some real issue, Congress just fixes it. Or at least it used to. Former Bush Treasury official Phillip Swagel was focused on different errors last fall when he wrote:

It should be possible for the larger (and incredibly heated) debate over the merits of Obamacare to proceed even while specific flaws in the legislation are addressed

He gave the example of a 2005 transportation bill that contained earmarks for projects that no longer existed. A subsequent bill fixed this. But Swagel makes a major understatement:

Legislation to make “technical corrections” has become relatively infrequent as Congressional partisanship has mounted over the decades

These kinds of fixes didn’t used to be partisan issues. It didn’t matter whether or not you supported the original law, you wanted mistakes fixed. But not any more. Now, the worse a law works, the better for the party that opposed it to begin with. Bad for the country, but good for the party. And the party is what’s really important.

How the IRS tried to resolve it. Implementing tax credits falls to the IRS, which now had to implement something that didn’t quite make sense. They did the sensible thing and interpreted the law so that the federal government would be acting in the role of the state when it established a state exchange. So in practice “an Exchange established by the State” meant an exchange established by the state or by the federal government acting for the State. It explained:

[T]he relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges. Accordingly, the final regulations maintain the rule in the proposed regulations [i.e., that policies bought on federally-established exchanges still qualify for tax credits] because it is consistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole.

How this became a court case. Courts can’t just rule on whatever issues they feel like addressing. Somebody has to bring them a case, and the person who brings it has to have “standing”. In other words, the person who sues has to present a real injury that was caused by whoever is being sued and that a court has the power to remedy. (So “My girl friend doesn’t love me any more” might be a real injury caused by a specific woman, but what do you expect the court to do about it?)

Finding a plaintiff with standing took some doing in this case, because who exactly is being hurt if people get tax credits to help pay for their health insurance? (You might think, “the taxpayers”, but those kinds of suits are always thrown out of court. An injury needs to be more specific than just your tax money being spent in some way you find inappropriate.) Eventually, ObamaCare opponents came up with this plan: The individual mandate only applies to people who can find health insurance for less than 8% of their income. So if a guy is just poor enough that unsubsidized insurance would be more than 8% of his income, but subsidized insurance would be less than 8%, then the subsidy is what makes the individual mandate apply to him. That’s his injury.

The government argued that giving people a good deal on health insurance doesn’t really injure them, but neither court bought it. Both the D.C. Circuit and the Fourth Circuit said the suits had standing. Politically, though, it’s still a point worth making: This was the kind of legal contortion conservatives had to come up with to file this suit.

What the four judges said. Naturally, there is precedent for this kind of thing. I’ll let Judge Robert Gregory of the Fourth Circuit explain:

Because this case concerns a challenge to an agency’s construction of a statute, we apply the familiar two-step analytic framework set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). At Chevron’s first step, a court looks to the “plain meaning” of the statute to determine if the regulation responds to it. If it does, that is the end of the inquiry and the regulation stands. However, if the statute is susceptible to multiple interpretations, the court then moves to Chevron’s second step and defers to the agency’s interpretation so long as it is based on a permissible construction of the statute.

Notice where the burden of proof lies: In order to win their case, the plaintiffs have to convince the court that the statute is unambiguous and that the IRS is just making stuff up to interpret it any other way. (Gregory, BTW, is the only judge of the six to rule opposite to the party that appointed him: Though he was originally a temporary recess appointment by Bill Clinton, he owes his permanent appointment to George W. Bush.)

The argument over what Congress intended was wide-ranging, covering how similar words are used in other parts of the law, how this provision fits or doesn’t fit with other provisions, how it works in the overall structure of ObamaCare, and the “legislative history”, i.e., what the Congresspeople were actually talking about when they passed it.

Unfortunately, Congress never argued about whether or not the subsidies should apply on federal exchanges — probably because no one involved ever conceived that they wouldn’t; it just wasn’t an issue. But that means there is no clear legislative history. It’s like that down the line: Judge Gregory allows that the IRS interpretation seems more likely to him, but that there’s not a smoking gun either way. But …

when that is so, Chevron dictates that a court defer to the agency’s choice.

and so the subsidies stand.

Senior Judge Andre Davis was even less persuaded by the plaintiffs:

They have a clear choice, one afforded by the admittedly less-than-perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

What the two judges said. Judge Thomas Griffith of the D. C. Circuit also cited the Chevron case, but placed the bar of interpretation much higher:

We therefore give the absurdity principle a narrow domain, insisting that a given construction cross a “high threshold” of unreasonableness before we conclude that a statute does not mean what it says. Cook, 594 F.3d at 891. A provision thus “may seem odd” without being “absurd,” and in such instances “it is up to Congress rather than the courts to fix it,” even if it “may have been an unintentional drafting gap.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 565 (2005)

Griffith goes on to examine all the places in the law where differentiating between the state-established and federal-established exchanges might seem odd, and is able to find possible (though occasionally convoluted) meanings that Congress might have intended.

Senior Judge Raymond Randolph agreed, but the dissent by Senior Judge Harry Edwards is blunt:

This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (“ACA”). … The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. In so doing, the majority misapplies the applicable standard of review, refuses to give deference to the IRS’s and HHS’s permissible constructions of the ACA, and issues a judgment that portends disastrous consequences. … Simply put, §36B(b) interpreted as Appellants urge would function as a poison pill to the insurance markets in the States that did not elect to create their own Exchanges. This surely is not what Congress intended.

What happens next? The next step is to appeal the D. C. court’s ruling to the full court, rather than the three-judge panel. Since this is a partisan ruling that only a partisan Republican judge will uphold, the full court will reverse it.

One of the Republican moves that pushed the Senate’s Democratic majority to eliminate the filibuster on judicial nominations (other than the Supreme Court) was the blanket filibuster on any judge President Obama might appoint to the D. C. circuit. At the time, the court had a 4-4 balance of Republican and Democratic appointees and three vacancies. Republicans charged that filling the vacancies (as the Constitution instructs the President to do) would be “court packing“. After the filibuster change, Obama’s nominees were approved, so the full court has a 7-4 majority of Democratic appointees.

If the two appeals courts remained in disagreement, the case would have to go the Supreme Court (because you can’t have a law mean one thing in one circuit and another somewhere else). But if the full D. C. court reverses its three-judge panel’s ruling, the Supremes could decide whether or not they want to get involved.

If they do, I don’t think they’ll overturn the subsidies. The Roberts Court practices conservative activism, but prefers to do it by stealth. (That’s why Roberts nixed the first attempt to skewer ObamaCare in the courts, IMHO.) This would be a nakedly political, we’re-sticking-it-to-the-Democrats ruling. WaPo’s Paul Waldman summarizes:

Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed.

I can imagine Thomas, Alito, and Scalia going that way, but Roberts and Kennedy will be reluctant. ObamaCare will escape this cliff, and survive until the next episode.

How Threatening is the Hobby Lobby Decision?

The Court’s five male Catholic justices outvoted its three Jews and lone female Catholic. Is that a problem?

It is easy to be confused by the commentary on the Supreme Court’s 5-4 ruling that Hobby Lobby and Conestoga are exempt from the contraception mandate of the Affordable Care Act. The ruling, say some, is narrow; it will affect only a handful of business-owners in a more-or-less identical situation, and their female workers’ coverage will not suffer. No, say others, the consequences of the ruling are sweeping; it puts all workers’ health coverage at the mercy of whatever religions their employers’ corporations decide to adopt, and could have further consequences unrelated to healthcare.

Each of those views is right in its way. Justice Alito’s majority opinion emphasizes its limitations; cases that seem analogous cases, he says several times, may turn out differently. An important point in Alito’s argument is that the government might easily achieve its purpose — covering contraceptive care for women whose employers have religious objections — by pushing the small expense of the coverage back on the insurance companies, as it already does for some religious organizations like churches, hospitals, and colleges. Such a simple fix is probably unavailable if companies object to covering vaccines or blood transfusions, much less seeking exemptions from civil rights laws.

But Justice Ginsberg was not comforted by Alito’s assurances of what may or might happen. Analogous cases may turn out differently, but they might not. Countless numbers of them will work their way through the system for years to come, creating unnecessary chaos as lower courts explore the consequences of Alito’s new interpretations of religious liberty and corporate law.

And who knows? The Court has committed itself to nothing, so maybe those cases will lead to new sweeping rulings by the Court’s increasingly activist conservative (and male Catholic) majority. The government’s “easy” fix to the contraception mandate is itself challenged in a case that the Court will probably hear next year; immediately after the Hobby Lobby ruling, the Court issued an emergency order demonstrating that it takes that case seriously.

What does the ruling say? Here’s the full opinion of the Court — Alito’s 49-page ruling and Ginsberg’s 35-page dissent, plus a few paragraphs from other justices. Law professor Eugene Volokh summarized Alito’s ruling in 900 words, and Ezra Klein got it down to three sentences:

  1. A federal law called the Religious Freedom Restoration Act was written to protect individuals’ religious freedoms — and on Thursday, the Supreme Court ruled that, under RFRA, corporations count as people: their religious freedoms also get protection.

  2. The requirement to cover contraception violated RFRA because it mandated that businesses “engage in conduct that seriously violates their sincere religious belief that life begins at conception.”

  3. If the federal government wanted to increase access to birth control — which they argued was the point of this requirement — the Court thinks it could do it in ways that didn’t violate religious freedom, like taking on the task of distributing contraceptives itself.

Alito clearly thinks (or wants us to think) that his ruling is narrowly targeted:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

But Ginsberg’s dissent begins:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

And later she explains:

Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.

Ginsberg sees four dangerous new principles in Alito’s ruling:

  • Originally, the Religious Freedom Restoration Act of 1993 was meant to restore an interpretation of the First Amendment’s free-exercise clause that the Supreme Court backed away from in 1990. Alito has cut the RFRA loose from history of First Amendment interpretation, giving future Courts broad license to expand the notion of religious liberty.
  • Alito has granted RFRA rights to for-profit corporations, extending the legal fiction of corporate personhood into a previously unexplored realm, and blowing away the long-observed distinction between for-profit corporations and specifically religious organizations (like churches) created to serve their members.
  • The meaning of a “substantial burden” on religious liberty has been significantly weakened and made subjective.
  • The “corporate veil” — the legal separation between corporations and their shareholders — has been turned into a one-way gate. The rights of the shareholders now flow through to the corporation, but the debts, crimes, and responsibilities of the corporation still don’t flow back to the shareholders.

Let’s take those one by one.

The RFRA goes beyond any previous history of First Amendment interpretation.

For decades, the Court applied what it called the Sherbert test to First Amendment, religious-liberty-infringement cases: A law could require a person to violate his/her religion — say, by working on the Sabbath — only if the law was the least restrictive way to achieve a compelling government interest. But in 1990 it backed away from that principle in the Smith decision: If a law had a larger purpose and didn’t specifically target a religion, it didn’t have to be quite so accommodating.

Congress then passed the Religious Freedom Restoration Act to reinstate the Sherbert Test by statute. That’s what the law says and that’s how it has been interpreted. But you can’t justify the Hobby Lobby decision from the pre-Smith precedents, because you run into the 1982 Lee decision, concerning whether an Amish employer had to pay Social Security taxes:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.

Alito doesn’t answer Lee, he just blows it away:

By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.

In other words, in spite of its name the RFRA doesn’t “restore” anything; it’s a revolutionary assertion of new religious rights unrelated to the First Amendment. How far do those new rights go? Alito doesn’t say. A more detailed analysis of this issue is in Slate. Daily Kos’ Armando has an interesting response: If the RFRA really does mean what Alito claims, then the RFRA itself is an unconstitutional establishment of religion.

The RFRA extends to for-profit corporations.

The RFRA uses the word person and doesn’t define it, so Alito argues that the definition must come from the Dictionary Act of 1871, which says

the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

Worship of Mammon

(If the Dictionary Act rings a bell in your head, here’s where you’ve heard of it before: The way the Defense of Marriage Act affected thousands of laws in one swoop was by amending the Dictionary Act’s definition of marriage.) But Ginsberg points out that the Dictionary Act “controls only where context does not indicate otherwise.” Since “the exercise of religion is characteristic of natural persons, not artificial legal entities” the context of a law concerning the exercise of religion already excludes corporations.

Alito wants to claim his ruling only applies to “closely-held corporations”, but that’s not what the Dictionary Act says. If Bank of America wants to admit that it worships Mammon — a religion at least as old and popular as Christianity — it can claim free-exercise rights.

Alito’s reasoning has already had one very unintended consequence: A Guantanamo detainee was previously denied protection of the RFRA, because a court decided that the meaning of “person” in his case was not the Dictionary Act definition. Now that the Supreme Court has gone on record saying the “person” in the RFRA has the Dictionary Act meaning, he is claiming his case should be re-considered.

The meaning of “substantial burden” was weakened.

ObamaCare didn’t require the owners of Hobby Lobby to use, manufacture, distribute, or even necessarily buy contraceptives. They were merely required to provide health insurance that would cover contraceptives if the employees decided to use them. If Hobby Lobby employees agreed with the owners’ scruples, no violation of those scruples would take place.

Ginsberg did not find this burden “substantial”.

It is doubtful that Congress, when it specified that burdens must be “substantial,” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed.

But Alito did:

The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.

But surely any clever person can find a link of some sort between whatever they don’t want to do and the commission of some act they consider immoral by someone else. Alito is encouraging Christians to develop hyper-sensitive consciences that will then allow them to control or mistreat others in the name of religious liberty, a pattern I described last summer in “Religious ‘Freedom’ Means Christian Passive-Aggressive Domination“.

I focus on Christians here for a very good reason: Given that this principle will produce complete anarchy if generally applied, it won’t be generally applied. Contrary to Alito’s assertion, judges will have to decide whether the chains of moral logic people assert are reasonable or not. For example, elsewhere in his opinion he brushes off the objection that corporations will claim religious benefits to increase their profits:

To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail.

But how would it fail, if “it is not for the Court to say” whether asserted religious beliefs are unreasonable? If Randism is repackaged as a free-market-worshipping religion, won’t any regulation infringe on it? Who could claim that Koch Industries is “insincere” in its Randism?

In practice, a belief will seem reasonable if a judge agrees with it. That’s what happened in this case: Five male Catholic judges ruled that Catholic moral principles trump women’s rights. Three Jews and a female Catholic disagreed.

The nature of corporations was re-imagined.


By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.

Alito brushes away this separateness:

A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

Alito waves his hand at employees, but his ruling only applies to owners, i.e., rich people. So in Alito’s reading of corporate law, corporations protect rich people’s rights while shielding them from responsibilities. It is a way to write inequality into the law.

friend-of-the-court brief written by “forty-four law professors whose research and teaching focus primarily on corporate and securities law and criminal law as applied to corporations” says Alito’s “established body of law” doesn’t work the way he says, and that making it work that way will open “a Pandora’s box”.

The first principle of corporate law is that for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders. … [T]he most compelling reasons for a small business to incorporate is so that its shareholders can acquire the protection of the corporate veil. … Allowing a corporation, through either shareholder vote or board resolution, to take on and assert the religious beliefs of its shareholders in order to avoid having to comply with a generally-applicable law with a secular purpose is fundamentally at odds with the entire concept of incorporation. Creating such an unprecedented and idiosyncratic tear in the corporate veil would also carry with it unintended consequences, many of which are not easily foreseen.

The brief spells out some of the foreseeable consequences: battles between shareholders (perhaps spilling into court) about a corporation’s religious identity, weakening of the shareholders’ shielding against the debts and/or crimes of the corporation, corporations whose religious identities exempt them from certain laws might obtain advantages over their competitors, minority shareholders might sue a management that refused to take on an advantageous religious identity (because it failed to maximize profit), and many more. They conclude:

Rather than open up such a Pandora’s box, the Court should simply follow well-established principles of corporate law and hold that a corporation cannot, through the expedient of a shareholder vote or a board resolution, take on the religious identity of its shareholders.

Conclusion: The Box is Open.

More cases are already in the pipeline, cases that object to all forms of contraception, not just the four Hobby Lobby’s owners view as abortion-causing. One objects to paying for “related education and counseling”, so even seeing your doctor to discuss contraceptive options might be out. Religious employers are already asking to be exempt from rules about hiring gays and lesbians. Photographers and bakers want to be free to reject same-sex marriage clients. Beyond that, who can say what plans are being hatched in religious-right think tanks or corporate law offices?

The Court did not endorse these claims in advance, but it laid out sweeping new principles and did not provide any tests to limit them.


New Evidence that ObamaCare is Working

More people have insurance, insured people are less likely to die, and hospitals are making fewer mistakes.

Already this month we’ve seen three major pieces of evidence that ObamaCare is working, is improving healthcare generally, and will save lives. First, Gallup says that the number of uninsured people is dropping, and is now clearly below where it was before the Great Recession started.

Here’s why I suspect Gallup’s report understates ObamaCare’s impact: Prior to ObamaCare, a lot of people had junk insurance; it covered everything but the pre-existing condition that threatened to bankrupt them, or the insurance company could cancel it if they got sick, or it had a yearly or lifetime cap that would make it useless in the face of a major illness. (Those “cancelled policies” that got so much attention a few months ago were mostly either the replacement of junk insurance or the normal churn of the health insurance market.) A lot of those people probably didn’t tell Gallup they were uninsured, but if they got seriously ill their options were to forgo treatment or declare bankruptcy. Now they have real insurance.

Insurance saves lives. Second, a study published in the Annals of Internal Medicine says that the program ObamaCare was modeled on, RomneyCare, has lowered the death rate in Massachusetts. The Incidental Economist blog (“Contemplating health care with a focus on research, an eye on reform”) summarizes the results:

[The authors] estimate that overall mortality in Massachusetts declined 2.9 percent relative to control counties between 2007 and 2010; mortality amenable to health care declined 4.5 percent. This translates to one death prevented for every 830 people who gain insurance, and the effects were larger in counties with low income and low pre-reform insurance rates—the counties we would expect to be most favorably impacted by reform.

Another fact that points to insurance being the key factor: The study also didn’t find any drop in mortality among the elderly, who were already covered by Medicare.

Amenable mortality is the right measure. The quick sound bite for criticizing the American healthcare system is that we have the world’s highest costs but lower life expectancy than any other wealthy country. (We’re 35th in life expectancy, well behind countries like Canada and Australia that are culturally similar, but have universal health care.) If you do that, though, opponents of socialized medicine will explain that those other countries have healthier lifestyles or less violence or better genes or something.

But “mortality amenable to health care” — in laymen’s terms “people who die from things we know how to treat” — avoids that rejoinder: No matter why you get sick, if you have something curable the healthcare system should cure it. That’s why I keep harping on this statistic (here and here and here).

No country gets amenable mortality down to zero, but a 2011 article in the research journal Health Policy said:

If the U.S. had achieved levels of amenable mortality seen in the three best-performing countries — France, Australia, and Italy — 84,300 fewer people under age 75 would have died in 2006–2007.

I have never seen politicians opposing ObamaCare confront the amenable-mortality numbers with anything but denial. As Rick Santorum put it: “I reject that number completely, that people die in America because of lack of health insurance.”

The Incidental Economist article goes on to say that RomneyCare’s drop in amenable mortality is an indication of more than just saved lives:

“mortality amenable to health care” does not just magically decline. If fewer people are dying, that is almost certainly because diseases are being better treated, managed, or prevented—because of improved health.

How much is a life worth? The Cato Institute’s Michael Cannon is up to the challenge Rick Santorum dodged: He recognizes lives are being saved, but says the saved lives cost too much.

this Annals study also suggests that success has come at a very high cost. The authors estimate that “for approximately every 830 adults who gained insurance [under RomneyCare], there was 1 fewer death per year.” If we assume the per-person cost of covering those 830 adults is roughly the per-person premium for employer-sponsored coverage in Massachusetts in 2010 (about $5,000), then a back-of-the-envelope calculation suggests that RomneyCare spent $4 million or more per life saved…. As an economist might put it, this means there are likely to be policies out there that could save a lot more lives than RomneyCare does per dollar spent.

A different Incidental Economist article points out two fallacies of this argument: (1) It assumes that saving lives is the entire benefit of health insurance.

Health insurance gives you access not just to live saving care, but also to the rest of medical care, including things like hip replacements that allow you to walk and run, and free you from chronic pain. Insurance also protects your family from financial ruin. It’s the total contribution of health insurance to well-being that needs to be considered in deciding whether we should support universal coverage. If Cannon is going to place a value on being insured, he needs to consider the total benefit a person experiences from having health insurance, not just the chance that it will save her life.

And (2), the opponents of ObamaCare aren’t proposing any of those “policies .. that could save a lot more lives … per dollar spent”. They’re just proposing saving the money and letting people die.

How many [states] refused to expand Medicaid, but then did nothing else for the health of their uninsured? If politicians in those states just refused the money and let the poor die, they do not have standing to make Cannon’s criticism about paths not taken.

How are lives being saved? A NYT article on the new study provides some suggestive anecdotes about how insurance saves lives:

In the waiting rooms of the East Boston Neighborhood Health Center, bustling with a working-class clientele, doctors said much had changed since the state insurance law passed in 2006. People are less likely to put off care out of fear of unaffordable bills, and patients with diabetes can get medication regularly.

Dr. Stelios Maheras, medical director of the emergency department, said some patients used to ask for prices “like at the supermarket.” He recalled one patient who was having chest pains but refused an ambulance because he was afraid of the bill.

… Dr. Catherine Silva, a primary care physician at the East Boston health center, said some fatalities might have been prevented by helping people control their high blood pressure and cholesterol, which can increase the risk of heart attacks. She recalled a patient who had hypertension, but dropped out of treatment when she lost insurance, and came back three years later with breast cancer that proved tricky to treat because she had uncontrolled high blood pressure and diabetes.

“That conversation about why did you leave me for three years, that doesn’t happen anymore,” she said.

Keep these examples in mind when conservatives argue that the way to cut costs is to make the consumer more cost conscious. These are the kinds of costs that wind up getting cut.

The NYT article ends by pointing out that an even bigger study is coming in a few years: About half the country has expanded Medicaid under ObamaCare and half has refused. Eventually public-health researchers will be able to estimate how many lives that refusal has cost.

Structural changes are working. Third, the part of ObamaCare that has gotten the least press is its attempt to restructure how healthcare is delivered. The system prior to ObamaCare had perverse incentives: If complications of treatment caused a person to be hospitalized longer, or to come back after a few days, the hospital might make more money. No one is suggesting that hospitals made mistakes intentionally, but they had negative financial incentive to root out the processes that were likely to produce mistakes.

But ObamaCare has changed some of those incentives. For example, ObamaCare

penalizes hospitals that have the highest readmission rates. Hospitals can now lose as much as 2.5 percent of their Medicare revenue if they have lots of patients turning up in the hospital again. One analysis showed that hospitals have lost $227 million in fines because of this program.

Result? Hospital readmissions are falling after having been flat for years.

and hospital-created conditions are dropping, coinciding “with health law programs that try to penalize these exact types of events.”

So that’s what the evidence is showing: The things ObamaCare was created to do — insure the uninsured and underinsured, save the lives of people who otherwise might go untreated to save money, streamline and restructure the incentives to deliver good care — are exactly what it’s doing.

What the CBO Really Said about ObamaCare and the Economy

File this under: “Liberal media? What liberal media?”

I doubt the Congressional Budget Office expected The Budget and Economic Outlook 2014 to 2024 to be front-page news. They put out these ten-year look-aheads every six months or so, and they don’t usually get much reaction.

But say some news outlets decided to pay attention. You might expect — the CBO probably expected — reporters to focus on the summary. After all, that’s why people write summaries to 182-page government reports with eight appendices. In particular, you might expect articles to focus on the summary’s first line:

The federal budget deficit has fallen sharply during the past few years, and it is on a path to decline further this year and next year.

That sounds like a big deal. Very Serious People have been telling us for years (or more accurately, since Inauguration Day 2009, when they suddenly stopped believing Dick Cheney’s “deficits don’t matter” maxim) that the deficit is going to destroy our entire society. We’re going to turn into Greece, locusts will devour our fields, toads will rain from the sky, and so forth. So the fact that this situation is rapidly improving ought to get the VSPs attention.

The numbers are striking: The combined Bush/Obama budget of FY 2009 (October, 2008 to October 2009) had a $1.4 trillion deficit. (Bush’s first proposal for a FY2009 budget had an $407 billion deficit, which had grown to a projected $1.2 trillion by the time Obama took office, due to the economic collapse at the end of Bush’s term. Obama’s stimulus pushed the deficit the final $200 billion on its way to creating 3.3 million jobs, according to a previous CBO study.) FY 2013 ended in October with a $680 billion deficit, and the CBO projects deficits of $514 billion in FY2014 and $478 billion in FY2015.

At that level, this year’s deficit would equal 3.0 percent of the nation’s economic output, or gross domestic product (GDP)—close to the average percentage of GDP seen during the past 40 years.

So unless you think we’ve been in a Deficit Emergency for the past 40 years, we’re not going to be in one this year or next.

But that’s not what caught everybody’s attention. Instead of looking to the CBO’s summary for the story, the media (led by the right-wing media) looked to Appendix C “Labor Market Effects of the Affordable Care Act: Updated Estimates”. Because, you know, appendices of government reports are always so fascinating, especially the third appendix.

But even if you only read the appendices, you still have some choice about what the story is. Appendix B, for example, says:

CBO and JCT [Joint Committee on Taxation] estimate that the insurance coverage provisions of the ACA will markedly increase the number of nonelderly people who have health insurance—by about 13 million in 2014, 20 million in 2015, and 25 million in each of the subsequent years through 2024 (see Table B-2).

So despite all the scary (and debunked) headlines about cancelled policies and increased premiums, the ACA will make substantial progress on its main goal: Millions more people will have health insurance.

But the cost of that coverage will explode the deficit, right? Well, this report reiterated a previous conclusion:

Considering all of the coverage provisions and the other provisions together, CBO and JCT estimated in July 2012 (the most recent comprehensive estimates) that the total effect of the ACA would be to reduce federal deficits.

But maybe you’re worried about the “insurance company bailout” Republicans have been denouncing, which the rest of the world calls “risk corridors”. If so, you’d focus on this part of Appendix B:

CBO now projects that, over the 2015–2024 period, risk corridor payments from the federal government to health insurers will total $8 billion and the corresponding collections from insurers will amount to $16 billion, yielding net savings for the federal government of $8 billion.

So the “bailout” is a re-insurance plan that the government expects to make an $8 billion profit on.

But anyway, what does Appendix C say?

CBO estimates that the ACA will reduce the total number of hours worked, on net, by about 1.5 percent to 2.0 percent during the period from 2017 to 2024, almost entirely because workers will choose to supply less labor … The reduction in CBO’s projections of hours worked represents a decline in the number of full-time-equivalent workers of about 2.0 million in 2017, rising to about 2.5 million in 2024.

It’s not hard for me to imagine why this might happen: My wife is a (currently healthy) over-55 two-time cancer survivor, and prior to ObamaCare she couldn’t possibly have gotten insurance on the individual market at any reasonable rate. She happens to like her job, but many people in similar situations might decide to retire early (now that they have that option) rather than hang on until Medicare covers them. Similarly, my college roommate has been frozen into his job for the last couple decades, because his son was born with major medical problems that a new employer’s insurance company might write off as a pre-existing condition. Other people might prefer to work part-time, but have been hanging on to full-time jobs for fear of losing their health coverage. Or maybe extended Medicaid or S-CHIP coverage or an ObamaCare subsidy could shift the balance in a struggling household towards having one parent stay home with the kids.

That’s the kind of thing the CBO is talking about: “workers … choose to supply less labor”. It’s a good kind of thing.

So naturally it got covered like this by the conservative media:

Fox News: ObamaCare could lead to loss of nearly 2.5 million US jobs, report says

Washington Times: ObamaCare will push 2 million workers out of labor market: CBO

National Review: The CBO just nuked ObamaCare

And not much differently by the mainstream media:

The Hill: O-Care will cost 2.5 million workers by 2024

UPI: ObamaCare to cost 2.3 million jobs over ten years

And even a 180-degree false CNBC headline: CBO says ObamaCare will add to deficit, create reluctant work force — later corrected to allow that ObamaCare “may not add to federal deficit” rather than the accurate “the total effect of the ACA would be to reduce federal deficits”.

CBO director Paul Elmendorf testified before Congress Wednesday morning, and set the record straight. The CBO believes that ObamaCare will increase demand for labor over the next few years, creating jobs rather than killing them.

When reporters began to understand that they’d been scammed into repeating Republican talking points, many of them blamed the Obama administration. National Journal‘s headline: “The White House is Still Terrible at Explaining ObamaCare“. You see, it’s not up to reporters to check facts and inform their readers rather than mislead them. How can they be expected to print the truth when no one spoon-feeds the story to them properly? And why didn’t the White House (which doesn’t control the CBO) anticipate the report, anticipate that Appendix C would be the story, and anticipate that Republicans would twist its statements into pretzels? Shouldn’t they have been prepared for this?

That’s your liberal media in action.

Rooting for Your Country to Fail is Unpatriotic

America has decided to implement ObamaCare. Are you with your country or against it?

In America, we argue about everything. Just because the Leader proposes something, we don’t all have to get in line behind it.

We argue about whether to go to war in places like Syria, Libya, or Iraq. We argue about taxes. We argue about how much money our government should spend and what it should be spent on. We argue about which drugs and medical procedures should be legal.

We argue; it’s what we do. If you didn’t argue for your beliefs, if you just knuckled under as soon as the Powers That Be made their will known, you wouldn’t be a real American.

But we also come to decisions. We have a Congress that is empowered to pass laws. We have a president who is obliged to either veto those laws or enforce them. We have courts you can appeal to if you think those laws exceed the powers the Constitution delegates to the federal government.

In short, there are lots and lots of ways you can register your objection to a proposed public policy. Our Constitution creates many pressure points where the flow of an idea into law can be blocked.

But we do eventually make decisions.

Even after a decision is made, you can still argue that it was wrong. You can argue that we shouldn’t have invaded Iraq. You can argue that we shouldn’t have bailed out General Motors or Bank of America. You can argue that the CIA shouldn’t be launching drone attacks into countries we aren’t at war with or that the NSA shouldn’t be tracking your cell phone.

That’s not just a technicality of freedom of speech. You can make those arguments as a patriotic American, because the country has a process for reversing course. If you can convince enough people agree with you, maybe the power of public opinion will change the minds of our office-holders. And if not, elections can turn those offices over to new office-holders who can make new policies and pass new laws.

That’s not working against America, it’s part of how America works.

But there’s a line between legitimate partisanship and lack of patriotism, and this is where it runs: After a decision is made, after it is upheld as constitutional, after America has decided to do something, you don’t root for your country to fail — and you certainly don’t take action to make your country fail.

That’s unpatriotic.

Democrats respected that line when a Republican administration did something we thought was wrong: invading Iraq. We never stopped arguing against it. We never stopped trying to elect people who would get us out Iraq. And eventually we succeeded. The fighting in Iraq continues, but American troops are out of it.

You know what we didn’t do? We didn’t try to sabotage the war effort. Democratic leaders weren’t out there publicly rooting for failure. We didn’t aid the Iraqi resistance or gloat over defeats. And we certainly didn’t cheer when American troops came home in body bags. If a stray voice on a blog or in a public forum started rooting for defeat or gloating over American corpses, we jumped all over him. No external force had to police us on that; we policed ourselves.

We were Americans. We opposed what our government was doing in Iraq, but we stayed patriotic.

But on ObamaCare, Republicans have crossed that line between patriotic and unpatriotic. Let’s review a few of the ways.

McConnell and the NFL. In June, Republican Senate Leaders Mitch McConnell and John Cornyn sent a letter to the National Football League, warning it not to cooperate in efforts to publicize the law and tell the public how to get the benefits it offers. (They were successful; the NFL did not cooperate.)

This is unprecedented. Private organizations, including sports leagues, frequently take part in public information programs. When Massachusetts passed RomneyCare, the Boston Red Sox helped publicize it. Private companies like CVS, Shaw’s supermarkets, and H&R Block pitched in. This wasn’t controversial, because it wasn’t taking a position on a proposal, it was educating the public about the law.

The Bush administration organized a similar public-information campaign to introduce the Medicare prescription drug benefit. Democrats had opposed the bill in Congress (because it was written to benefit drug companies more than seniors), and we objected to the tactics used to pass the bill. But Democrats did not interfere with educating the public about how to get the new law’s benefits.

McConnell’s logic is revealing. The NFL should refuse to participate because ObamaCare “is one of the most divisive and polarizing political issues of the day.” Actually, no, it had been a political issue, but it was now a law. McConnell admitted as much, but discounted that fact because “this law was enacted … on a strictly partisan basis”. In other words, the constitutional process is insufficient as long as Republicans disapprove.

The Koch Brothers’ creepy Uncle Sam. The Koch brothers have funneled millions of dollars into ads that aim to sabotage ObamaCare by getting young people not to sign up. Not only are these ads misleading — amounting to an anti-public-education campaign against the law — they also turn a symbol of America, Uncle Sam, into something sinister and threatening.

This is well within the Kochs’ legal freedom of speech — just as it would have been within the freedom of speech of anti–Iraq-War billionaires to run creepy and misleading ads telling young Americans not to sign up for the military. (No such ads ran.) But it is similarly unpatriotic.

The fake Cover California web site. Republicans around the country crowed over the problems of the HealthCare.gov web site. Crowing over your country’s failures is unseemly enough, but California Republicans took it one step further: They set up a fake web site to actively confuse Californians looking for health insurance.

California is one of the states that set up its own ObamaCare exchange with its own web site, Covered California. The state web site was working much better than the national one, so naturally something had to be done to monkey-wrench it. Republicans put up their own fake site, Covering Health Care California, where you can’t sign up for health insurance, but you can access anti-ObamaCare propaganda and misinformation. Republican state representatives then distributed a mailer publicizing the bogus web site.

This is not normal. You want to argue that ObamaCare is a mistake and should be repealed? Fine. You want to run on a repeal platform? Fine.

But America has made a decision to do something about its 50 million uninsured. That decision, made through our constitutional process, is to implement ObamaCare. When you take action to screw that implementation up, you are working against your country.

It’s that simple.

The ObamaCare Panic

Here’s what I like least about being a Democrat: Way too often, when the conservative media machine either exaggerates or completely invents an issue, our leaders — in the media, in Congress, and even the administration — wilt under the pressure. Rather than rather than defend good policy (or even defend reality sometimes), they start legitimizing the phony issue created by their enemies.

Remember the bogus ACORN pimp video? It was a fraud perpetrated by conservative “journalist” James O’Keefe, for which he and his partner ultimately paid an ACORN employee $150,000 in damages. But the truth came out only after Congress had been stampeded into passing a law  banning ACORN from applying for federal contracts. (Ultimately, a GAO investigation found no evidence that ACORN had mishandled federal funds.) ACORN was forced into bankruptcy and no longer exists. So Democrats in Congress assisted in destroying an organization whose main sins were registering poor people to vote and trying to raise the minimum wage.

Good job, guys.

Over the years panicked Democrats have authorized the Iraq invasion without looking too hard at the “intelligence” the Bush administration supplied, supported torture, abandoned a public option in ObamaCare even though the public wanted it, and given in to the idea that the deficit — and not creating jobs — is the top economic problem.

Remember when the Obama administration fired Shirley Sherrod? On the basis of yet another video doctored by conservative activists? Even Bill O’Reilly apologized for that one.

Just last spring, Democratic Senate Finance Chair Max Baucus proclaimed the IRS scandal an “outrageous abuse of power and a breach of the public’s trust” while Senator Joe Manchin railed: “The actions of the IRS are unacceptable and un-American. … The president must immediately condemn this attack on our values, find those individuals in his administration who are responsible and fire them.”

Yeah, that one was bogus too.

So now we get to ObamaCare. The HealthCare.gov* web site has been a problem and first month sign-ups were below expectations. That has created an atmosphere of trouble around the program, which the conservative media exploited by drumming up a bunch of ObamaCare-killed-my-dog stories. A lot of them have been fabricated from nothing, and most of the rest are exaggerations.

Small business. Sean Hannity devoted a whole show to “victims” of ObamaCare. A tiny amount of follow-up by Salon’s Eric Stern showed that none of Hannity’s guests were actually victimized.

First I spoke with Paul Cox of Leicester, N.C.  He and his wife Michelle had lamented to Hannity that because of Obamacare, they can’t grow their construction business and they have kept their employees below a certain number of hours, so that they are part-timers.

Obamacare has no effect on businesses with 49 employees or less. But in our brief conversation on the phone, Paul revealed that he has only four employees. Why the cutback on his workforce? “Well,” he said, “I haven’t been forced to do so, it’s just that I’ve chosen to do so. I have to deal with increased costs.” What costs? And how, I asked him, is any of it due to Obamacare? There was a long pause, after which he said he’d call me back. He never did.

There is only one Obamacare requirement that applies to a company of this size: workers must be notified of the existence of the “healthcare.gov” website, the insurance exchange. That’s all.

Fox’ Megyn Kelly did a similar segment on a car-wash-chain owner who claimed he sold his business because of ObamaCare. Stern again followed up. It turns out Kelly had asked for no information to verify the impact of ObamaCare on the business. Stern’s interview paints a more complete portrait: The guy had been thinking about selling out for several years, he didn’t like Obama anyway, and the prospect of figuring out how ObamaCare would affect his business gave him an aw-fuck-it moment. In short, not exactly a horror story.

Hannity claimed, “These are the stories that the media refuses to cover.” But in fact the stories that aren’t getting covered are the positive ones. TPM’s Josh Marshall is in the perfect position to cover ObamaCare’s effect on small business, because TPM is itself a 20-employee business. He sums up:

[A]t least on year one in New York State, Obamacare seems to basically be a wash for us in terms of premiums versus last year. However, it’s arguably saving us money since this will be the smallest year over year premium increase since we bought our first group policy back in 2005.

I’m sure Megyn Kelly will be featuring Josh on her show any day now.

Canceled policies. The whole point of ObamaCare was to solve two problems: Nearly 50 million Americans had no health insurance at all, and about another 30 million had bad insurance; they might be insured against a broken arm or something similarly minor and fixable, but their policies either

  • didn’t cover the health problems they were most likely to have (i.e., complications from pre-existing conditions)
  • or had benefit caps that made the policy useless in the face of a major health issue,
  • or the insurance company could cancel the policy if they had the audacity to get sick.

Consumer Reports tells this story:

Judith Goss, 48, of Macomb, Mich., believed that the Cigna plan she obtained through her job at the Talbots retail chain was “some type of insurance that would cover something.” When the store she worked at closed in January 2011, she even paid $65 a month to keep the coverage through COBRA.

“I was aware that it wasn’t a great plan, but I wasn’t concerned because I wasn’t sick,” she says. But in July 2011 she was diagnosed with breast cancer, at which point the policy’s annual limits of $1,000 a year for outpatient treatment and $2,000 for hospitalization became a huge problem. Facing a $30,000 hospital bill, she delayed treatment. “Finally my surgeon said, ‘Judy, you can’t wait anymore.’ While I was waiting my tumor became larger. It was 3 centimeters when they found it and 9 centimeters when they took it out.”

That’s what you should picture when you hear about canceled policies. Replacing junk insurance with real insurance is part of the good news of ObamaCare.

Of course if you don’t get sick, you don’t notice that your insurance sucks. Such was the case of Dianne Barrette, a Florida woman CBS found whose inexpensive policy is being cancelled. Her story went viral, so Consumer Reports looked into it:

“She’s paying $650 a year to be uninsured,” Karen Pollitz, an insurance expert at the nonprofit Kaiser Family Foundation, said. “I have to assume that she never really had to make much of a claim under this policy. She would have lost the house she’s sitting in if something serious had happened. I don’t know if she knows that.”

Yes, President Obama did say “If you like your health plan, you can keep it” in response to the liars who claimed that ObamaCare was a government takeover that would totally disrupt everyone’s health insurance. (Herman Cain, a cancer survivor whose coverage as a millionaire CEO would have been completely unaffected, claimed ObamaCare would have killed him.) Clearly Obama overlooked the possibility that you might like your junk insurance because you’re an effing idiot.

The media is also overlooking the possibility that when insurance companies say they have to cancel your plan and your new plan will cost more because of ObamaCare, they might be lying. TPM reports:

Across the country, insurance companies have sent misleading letters to consumers, trying to lock them into the companies’ own, sometimes more expensive health insurance plans rather than let them shop for insurance and tax credits on the Obamacare marketplaces — which could lead to people like Donna spending thousands more for insurance than the law intended.

Real ObamaCare “losers”. The exception are these folks, a couple found by Pro Publica. Because they were in a risk group cherry-picked by the insurance company to be people who never got sick, their premiums were lower than any policy for the general public can be. Since there’s no way to solve the overall health insurance problem while cherry-picking the healthy for special rates, they end up being ObamaCare “losers”.

But a TPM reader who shares their “plight” puts his situation in perspective:

Having insurance, even crappy insurance, in the individual market means we are almost by definition, healthy and relatively young. If we were not, we wouldn’t be able to get coverage of any kind in the non-group market. If our ACA-compliant replacement policy costs us more, it’s likely because we’re too affluent to qualify for subsidies.

It takes a remarkable degree of self-absorption and sense of self-entitlement to be healthy, young(ish) and affluent—and yet consider oneself a “loser.” It’s a label I reject out of shame (no matter how much the lazy, superficial MSM want to fixate on me and my “plight”) NOT because there’s anything shameful about being a loser; the shame is in thinking oneself a loser when one is actually fortunate.

Again, the positive cancelation stories aren’t getting covered. This week, one of my FaceBook friends posted his experience:

I got the notice yesterday from Anthem Blue Cross that my insurance isn’t ACA compatible and will be cancelled. I’m one of the million or so Californians to have their insurance cancelled.

If I do nothing, Anthem will automatically switch me to a comparable (slightly better) plan. The good news – it will cost $265/month LESS than the old plan! Woo-hoo! I think that the difference is because I no longer have to pay the higher HIPAA premium rate because of my pre-existing conditions. Thank you, Obamacare.

Wilting Democrats. If you believe that the major news properties are liberal, you might expect a lot of front-page stories debunking the ObamaCare panic stories. Guess again.

The so-called liberal media has piled on to the anti-ObamaCare memes promoted by Fox News, like a front-page NYT story comparing ObamaCare to Hurricane Katrina. The best response I found was this chart:

But what about Democratic politicians? Surely they are outraged at the unfair coverage and are jumping up and down to defend good policy and debunk BS.

You don’t know many Democratic politicians, do you?

The drumbeat of (largely bogus) negative media is having an effect on public opinion. President Obama’s approval rating is down to 39% in one poll. So of course the Democratic response is to deflect the short-term public ire by undermining the long-term viability of the program.

So when House Republicans put forward a bill that would give insurance companies the option to keep offering junk insurance plans — because it’s all about the rights of big corporations, not people — 39 Democrats voted for it.

Democratic Senator Mary Landrieu’s bill to let individuals decide to keep their non-compliant plans is just slightly better, but Ezra Klein points out the problem

Put simply, the Landrieu bill solves one of Obamacare’s political problems at the cost of worsening its most serious policy problem: Adverse selection. Right now, the difficulty of signing up is deterring all but the most grimly determined enrollees. The most determined enrollees are, by and large, sicker and older. So the Web site’s problems are leading to a sicker, older risk pool. Landrieu’s bill will lead to a sicker, older risk pool.

And that means premiums will go up. Similarly, President Obama’s “fix” will let insurers keep offering non-compliant plans for another year. It’s hard to tell how many insurance companies will “uncancel” canceled plans or what this will do to the risk pool. But the general effect is also to address a short-term political problem by making the long-term policy problems worse.

The most annoying thing from my point of view is that this short-term-politics/long-term-policy tradeoff probably won’t even work. It never does. Instead, it will just add to the vague public sense that ObamaCare is a bad law, rather than the huge improvement on the status quo that it is.

I’m with Chris Hayes on this one: The only way out is through. For the Democrats, the best thing to do politically is to do the best thing policy-wise. Going wobbly on ObamaCare is not going to get you any conservative votes in the next election. What’s going to get votes for all Democrats is to make this thing work.

After all, Democrats in Congress, you’ve gone squishy before in the face of short-term bad publicity. Iraq. Torture. ACORN. How has that worked out for you?

* By the way, I finally decided to try out HealthCare.gov Saturday morning, and it worked way better than press reports had led me to believe. The response time was good. Without creating an account, I was quickly able to see sample plans and rates in my area. It was easy to create an account and input information about myself and my wife.

I stopped short of applying for insurance, because we like the insurance we get through my wife’s job. (And like the man said, we can keep it.) So I can’t vouch for the end-to-end process, which apparently was still having problems as of Friday. But if you need or want health insurance and the horror stories have been keeping you from trying to get it, you should definitely make an attempt and see what happens. Probably, you’ll at worst get to a point where you’re one click from success. And then at some point the back end will be fixed and you can go do that click.