At first glance, I thought my informal bet—that a red-state governor will soon claim he stood up to the Obama administration over the formation of health exchanges, despite knowing full well that his or her constituents wouldn’t be eligible for tax subsidies—had died a quick death.
According to a report in the Wall Street Journal:
A number of states are scrambling to show that they—not the federal government—are or will soon be operating their insurance exchanges under the 2010 health law, in light of two court decisions this week.
The efforts are aimed at ensuring that millions of consumers who get insurance through the exchanges would be able to retain their federal tax credits if courts ultimately rule against the Obama administration.
The rest of the story, however, doesn’t bear out this picture of “scrambling.” It’s true that a few of the states mentioned—Idaho, Nevada, New Mexico—have Republican governors. And while Arkansas is bona fide red state, it has a Democratic governor. So we’re not talking here about the likes of Rick Perry or Sam Brownback “scrambling” to secure tax credit eligibility on behalf of their states. That’s to be expected. If such governors were willing to forgo expanded Medicaid money, I don’t see why they’d be in a rush to protect health exchange subsidies, either.
There’s a golden political opportunity in the offing, it seems to me. The aforementioned Perry; or Louisiana’s Bobby Jindal; or New Jersey’s Chris Christie; or Ohio’s John Kasich—one or all of these potential presidential contenders could appeal to their party’s base by making a fresh case that they refused federal blackmail. At the very least, they could ensure the Gruber-gate story has legs for weeks to come.
Mind you, I’m not saying I’m prepared to believe them. (One would think the argument would already have been made at some point over the last two years.) But this whole rotten enterprise is an exercise in post hoc opportunism. This is the next logical step.
A few more thoughts on Gruber-gate:
1. It seems the exponents of the D.C. Circuit’s ruling on Obamacare subsidies have moved from the position that the ACA passively fails to authorize tax credits through federal exchanges to the idea that it actively prohibits them. That’s pretty astonishing.
2. A second clip featuring Gruber surfaced in which the MIT economist said the same thing he did in the first video. I don’t know what more to add to my reaction to the initial revelation. It seems to me that Gruber did not “misspeak” on either occasion; he believed residents of states that hadn’t set up exchanges would miss out on subsidies until such time as the federal exchanges came online. It’s plausible, too, that he was encouraging states to cooperate with the law in order to score consulting contracts. One could see why he’d be loath to admit this now.
3. There’s another meme that’s about to be set loose: that it took “guts” for Republicans not to set up Obamacare exchanges, that is, accept the bribe of federal money. It’s only a matter of time before a Republican governor says he interpreted Obamacare in this fashion all along. Perhaps one with presidential aspirations—say, Rick Perry. I’ll take bets on who it will be, and when.
Putting aside the fact that no one thought the states wouldn’t want to run the exchanges themselves (indeed, Senators were demanding that option for their states), the exchange provisions simply do not work in the same way as Medicaid. Unlike the ACA’s Medicaid provisions, the exchange provisions have a federal fallback: Medicaid is use it or lose it; the exchanges are do it, or the feds step in and do it for you. In other words, this isn’t Medicaid; it’s the Clean Air Act (CAA). If a state decides not to create its own implementation plan under the CAA, its citizens do not lose the benefit of the federal program—the feds run it. The same goes for the ACA’s exchanges and so it would be nonsensical to deprive citizens in federal-exchange states of the subsidies. More importantly, if we are going to compare apples to oranges, the ACA’s Medicaid provisions have an explicit provision stating that if the state declines to participate, it loses the program funds (this was the provision at issue in NFIB v. Sebelius in 2012). The ACA’s subsidy provisions, in contrast, have no such provision, strong evidence that the subsidies were was not intended to be forfeited if the states did not participate. If the challengers are going to insist on strict textual arguments, this is exclusio unius 101: the rule of interpretation that provides that where Congress includes a specific provision in one part of the statute but does not include an analogous provision elsewhere, that omission is assumed intentional.”
This wiki entry on the Clean Air Act seems apposite:
Although the 1990 Clean Air Act is a federal law covering the entire country, the states do much of the work to carry out the Act. The EPA has allowed the individual states to elect responsibility for compliance with and regulation of the CAA within their own borders in exchange for funding. For example, a state air pollution agency holds a hearing on a permit application by a power or chemical plant or fines a company for violating air pollution limits. However, election is not mandatory and in some cases states have chosen to not accept responsibility for enforcement of the act and force the EPA to assume those duties.
Again: I can’t believe this contest is even necessary. Sigh. Carry on.
Conservative economist Scott Sumner offers up a desperately needed example of intellectual honesty on l’affaire Gruber. (For those who haven’t been keeping score at home: Some libertarians last night released a video of Obamacare “architect” Jonathan Gruber in 2012 seemingly affirming the reasoning of the D.C. Circuit Court’s ruling on the legality of offering healthcare subsidies via exchange.)
Sumner actually watched the video and noticed Gruber’s remarks were taken out of context (context: what a concept!):
That seems to suggest he agrees with the recent court ruling. But he actually disagrees with the ruling. Indeed he seems to regard the ruling as ludicrous. That doesn’t look good. Until you realize that the quote was taken out of context, and that the comments immediately preceding the quote tells a very different story: “Yes, so these health insurance exchanges . . . will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.”
That seems to imply the federal backstops would provide health subsidies. So how can we reconcile these two statements? I believe Gruber was trying to say that the federal government was being slow in setting up the exchanges, because until they did so, those states without state exchanges would get no subsidy. Once the federal exchanges were set up, they would all get the subsidy.
What I don’t understand is why commenters were providing me with the quote on top, but not the second quote, which provides important context.
The cherry-picking of off-the-cuff remarks isn’t the worst thing about this absurdist drama. Take a step back: Michael Cannon, the Cato mastermind, basically went on a fishing expedition to find someone with standing in the Halbig case. His lightbulb: the average citizen has standing! And now this bombshell video: the Gruber remarks were the first and so far only piece of documentary evidence I’ve seen that anyone actually believed subsidies weren’t intended to be offered via the federal exchanges. This evidence was discovered two years after the lawsuit was filed.
We already had a murder charge without a body; now we have a smoking gun with all its bullets. I’m sorry. We’re not in the realm of reasonable disagreement. The charitable explanation is that this stuff is pure unmitigated cuckoo cockamamie BS. The cynical explanation, per Sumner:
BTW, which of the following two statements represents the conservative view on the role of the courts?
A. The courts should interpret the laws passed by the duly elected members of Congress, and should not be substituting their own views. Original intent is what matters. Unelected judges should not set policy.
B. Yay!! the courts have just gutted the ACA, which was an awful law passed by Congress.
I used to think it was A; now I wonder if it is B.
You’ll pardon me if I don’t find this behavior—this abusive legal chicanery—the least bit “conservative.”
Decades ago, a few friends and I were listening to Not For Kids Only, an album of Appalachian folk songs recorded for charity by Jerry Garcia and David Grisman. An older brother entered the scene, barking, “What’re you guys listening to? This stuff’s for kids!” My friend, who, it should be noted, was quite stoned, retorted, “No! It says right here—‘not’ for kids only.’ ”
I thought of my old buddy, bless his heart, when I learned of the D.C. Circuit’s ruling—its “ringing affirmation … of the rule of law,” according to the reliably florid Charles C.W. Cooke—on Obamacare’s insurance-exchange subsidies.
The right’s chortling reaction, in sum: It says right here — “Exchanges established by the State”!
I’d sincerely like to imagine that Cato’s Michael Cannon was stoned when he discovered this quirk in the text of the Affordable Care Act. But I’m afraid it’s a lot easier to imagine the pinkie ring and prideful guffawing of Mike Myers’s Dr. Evil.
I didn’t think “They’re going to make you buy broccoli next” could be topped.
Oh, was I wrong.
The two judges who comprised a majority of the D.C. Circuit panel argued that the government failed to provide evidence that the authors of the law did not intend to funnel subsidies through state exchanges only. Well, why would such evidence exist—if, as seems exceedingly likely, it never occurred to anyone that the subsidies were so structured until Cannon announced his discovery? “It was a carrot dangled in front of states, just like the promise of more Medicaid money,” the plaintiffs speculated. If so, then why the backstop of a federal exchange? What’s the point of the thing if not to convey subsidies to eligible customers? Much to the dismay of supporters of the ACA, there was no Plan B after the Supreme Court allowed states to opt out of the Medicaid expansion. And so the money remains unspent.
There’s no getting around the fact that those who drafted the law are guilty of a linguistic oversight. In a sane world, the matter would have been dispatched through a technical corrections bill, much as President Clinton and Congress ironed out a kink in U.S. Code that granted citizenship to those born abroad and one of whose parents was a U.S. citizen. Before the correction, the government granted citizenship only to those whose fathers were citizens.
But we’re not living in a sane world right now. We’re living in the world of massive resistance.
Don’t misunderstand. I’m hardly a fan of Obamacare. I’m with those who champion a cheaper and cleaner method of achieving universal coverage. I suppose it could be argued that the Halbig case is one way of getting there. But when its mastermind heads the “Anti-Universal Coverage Club,” I kind of doubt it.
The world’s fast-growing elderly population faces more age-related disease, higher health costs, and fewer children to care for them than ever, while the resulting caregiver shortage puts them at an increased risk of abuse and neglect. Some medical professionals, like geriatrics professor Louise Aronson, are proposing robots as a solution to both assist overwhelmed human caregivers and replace those guilty of mistreatment, as “most of us do not live in an ideal world, and a reliable robot may be better than an unreliable or abusive person, or than no one at all.”
Aronson’s robotic geriatrics are no fantasy but an existing solution in places like Japan, which has the world’s grayest population and the economic resources available for $100K, yard-tall robots to be feasible. Yet Japan’s relationship with robots shows that making robot caregivers cheaper might not make them any more successful. Japan’s elderly have rejected the robots, asking instead for humans. The only robots with modest success among Japanese elderly have imitated pets, providing limited social engagement rather than medical care and companionship—tasks still preferably assigned to human caregivers.
As Japan shows, the robot caregiver solution does not fail on economic or technological grounds, where boundaries are largely surmountable with time. Rather, turning an intimate job like geriatrics into an automated service sector is a misunderstanding of the profession at hand, which requires both emotional and ethical investment in patients.
Caitrin Nicol Keiper, countering David Levy’s Love and Sex with Robots, explained that such encouragement of human-robot intimacy stems from a misunderstanding of the human as mere biochemical machine. The caregiver shortage does not merely stem from a lack of medical aides to perform mechanical tasks, but also an absence of loving companions who ensure the experience of disability and old age is not a solitary one. These robots, after all, are often explicitly designed to counter the negative health effects of loneliness.
But that loneliness has been cemented in a medical and legal culture that is guided above all else by the principle of individual bodily autonomy. Advance directives and living wills allow patients to lay out their medical decisions ahead of time, discouraging the real-time participation of family members or other caregivers in the medical lives of the elderly. As Leon Kass, then chairman of the President’s Council on Bioethics, reflected in a 2005 report on geriatrics, “Living wills make autonomy and self-determination the primary values at a time of life when one is no longer autonomous or self-determining, and when what one needs is loyal and loving care.”
This cultural reluctance to participate communally in the care of the elderly often expresses itself as avoiding the “burdening” of loved ones. But as Gilbert Meilaender asked in 1991, “Is this not in large measure what it means to belong to a family: to burden each other and to find, almost miraculously, that others are willing, even happy, to carry such burdens?” He continued, “I have tried, subject to my limits and weaknesses, to teach that lesson to my children. Perhaps I will teach it best when I am a burden to them in my dying.”
As Meilaender and Kass suggest, the central problem is not medical incompetence, or even moral indifference, but a break in generational relationships. Neither the elderly nor their medical professionals want them to be dependent on robots rather than people, but, especially among the childless or otherwise socially disconnected, the aged may have little choice. As such, the inhumanity of Aronson’s geriatrics may not be a particularly medical problem, but a social problem. As long as we culturally insist on autonomy, we will technologically insist on automation.
Only two diseases have ever been completely eradicated worldwide: smallpox and rinderpest. But hopes for eradicating a third have dimmed with the World Health Organization’s announcement that the spread of polio has become a global health emergency.
After over 25 years of eradication campaigns, polio had been beaten back into only a handful of countries, and, by 2012, polio was eliminated or in sharp decline in all but three countries: Pakistan, Afghanistan, and Nigeria. But, as the virus has come roaring back, the WHO has set travel restrictions on new hotspots. Residents of Pakistan, Syria, and Cameroon are advised not to leave their countries unless they have been vaccinated against the disease and cannot carry it beyond their borders.
Pakistan is the cradle of the resurgent polio. Of the 74 cases of wild polio reported this year to date, 59 occurred in Pakistan. The increasing prevalence isn’t due to a new mutation or drug resistance; the resistance is coming from the Pakistani people, not the microorganisms that live inside them.
The vaccinators lost moral credibility when, in order to confirm the identity of Bin Laden prior to his assassination, the United States ran a fake hepatitis vaccination campaign in Abbottabad. Although doctors claimed they were going door to door to give inoculations, the blood draws they conducted were used for DNA tests discover whether any relatives of Bin Laden were living in town.
After Seal Team Six carried out their mission, some Taliban leaders banned vaccinations in the regions under their control and over a dozen vaccinators were murdered, forcing Pakistan to put its eradication campaign on hold. The doctor who conducted the operation was arrested by Pakistan’s own intelligence agency and held on charges of treason.
The doctor was accused of betraying his country to serve another government, but the United States itself came under fire for betraying the medical community and putting public health at risk. Scientific American excoriated the United States for disrupting and profaning a historically neutral and altruistic profession. Médecins Sans Frontières (Doctors without Borders) said that the CIA operation was a “grave manipulation of the medical act” and endangered the lifesaving work doctors conducted around the globe.
If doctors could be spies in disguise, how could nations welcome them in? In Syria, where polio is spreading amid the chaos of the civil war, how can vaccinators persuade Assad to let them move freely within the country, if they could be doubling as spies, assassins, or gun runners? Read More…
Can you cook the books by using more accurate statistics?
That’s the question hanging over the Obama administration, now that the Census bureau has decided to change the way it assesses the number of Americans without insurance in the middle of the Obamacare rollout.
The basic problem the Census has been struggling with is how, exactly, to define “Americans without insurance.” If you ask your survey respondents “Do you currently have health insurance?” the percentage answering “No” will be a lot lower than the number of people who would say “No” to “Have you been uninsured at any point in the last year?” If you change your question to “Were you uninsured for all of last year?” the “Nos” will plunge accordingly.
The Census’s Continuing Population Survey has struggled for years with the phrasing of this question, and, when compared to other surveys of insurance coverage, has persistently overestimated the number of Americans without insurance. However, its numbers have still been commonly used, since CPS is the only survey that produces state-by-state insurance numbers across the nation.
The Census bureau did the right thing and has been investigating how to improve the accuracy of their numbers. Yuval Levin describes one of the error checks the CPS ran, and the surprising results.
In 2000, for instance, the CPS supplement introduced a simple verification question: If people had answered “no” when presented with a list of possible options for different kinds of insurance coverage on the questionnaire, then the interviewer, rather than just note them as uninsured, would say “So does this mean I should record you as uninsured?” They found that an amazing 8 percent of respondents answered “no,” and only in the wake of this verification question (which, for those who answered in the negative, was followed again by a list of insurance options) reported that they were in fact insured.
The CPS has finally found a new question, that they trust to produce reliable data, but, since they’re switching over just as Obamacare goes into effect, the methodological change may obscure the effects of Obama’s signature legislation. As reported in the New York Times:
In the test last year, the percentage of people without health insurance was 10.6 percent when interviewers used the new questionnaire, compared with 12.5 percent using the old version. Researchers said that they had found a similar pattern in the data for different age, race and ethnic groups.
But Ezra Klein of Vox isn’t worried that the changes in the survey will make it impossible to measure the impact of the Affordable Care Act. According to Klein, the CPS changed their methodology just in time.
Politics aside, there’s a technocratic logic to this timing. The Census Bureau’s change begins with data for 2013 — meaning it starts before Obamacare does. By making the switch in 2013, there’ll be a baseline to compare obamacare to, and that baseline won’t fall apart in year two or three or four.
Unfortunately, a baseline data point is a lot less valuable than a baseline trend. The test for Obamacare isn’t just if it brings the numbers of the uninsured down, but if the new policies cause more people to sign up faster than historical data would predict. The 2013 datapoint may be a baseline measurement of coverage, but it can’t serve as a baseline for the changing trend of coverage.
The ideal solution might have been to run both questions, the old and the new, in parallel on the CPS for a period of five to 10 years. Instead of posing the improved question to all respondents, the Census employees could randomize assignments, so that a third to a half of all those surveyed answered the old, biased question, while the rest answered the new, improved question. Read More…
The front page article in the New York Times (“Selling a Poison by the Barrel: Liquid Nicotine for E-Cigarettes“) didn’t mince words. The bad science reporting that followed this hyperbolic headline is a much graver threat to public health than e-cigarettes themselves. The sensationalization of science and public health coverage occludes real dangers and gives consumers an excuse to ignore serious warnings as just more of the typical hype.
Electronic cigarettes, increasingly popular as a substitute for normal cigarettes, allow smokers to consume nicotine by inhaling it in a vapor. In contrast to traditional cigarettes, e-cigarettes contain fewer carcinogens, since the nicotine is delivered without incinerating paper, tar, and other materials used to treat and bind tobacco leaves.
The NYT article doesn’t dispute the comparative safety of e-cigarettes when smoked, but is concerned about the concentrated liquid nicotine, and the dangers of drinking or spilling it before it is smoked. If a user drinks the liquid in e-cigarettes, it is poisonous, and it is much more dangerous to children, if they drink the nicotine or pour it all over themselves, where it can be absorbed through the skin.
However, this danger isn’t enough to justify the hyperbolic headline. As far back as Paracelsus in the 15th century, doctors have known that it’s the dose that makes the poison. If the NYT were looking for other examples of dangerous chemicals lurking in the home, there’d be no reason to default to the bleach and the antifreeze; Tylenol would fit the bill.
Acetaminophen, the active ingredient in Tylenol, is safe at regular doses, but life-threatening. For a patient taking extra-strength Tylenol, just two additional pills per day over the recommended maximum is enough to wind up in the hospital. Arguably, liquid nicotine is less risky than Tylenol, since an adult isn’t in danger from a casual error. There’s no danger of miscalculating the dosage in normal use, just drinking something that wasn’t meant to be swallowed.
Or maybe e-cigarettes are more like compact fluorescent lights (CFLs). These efficient lightbulbs contain mercury, so, although they’re perfectly safe on a day to day basis, they’re hazardous if they break, and require special cleanup. A customer should address a liquid nicotine spill about as carefully as they would a shattered CFL.
Tylenol and CFLs haven’t been banned as a result of their dangers. The solution has been child resistant packaging, better warning labels, and consumer education. The NYT might have done better to spike this cover story, and give e-cigarettes the same practical safety guide they offered for CFLs in 2009. Frontloading an article with scaremongering is irresponsible and may alienate the most relevant readers: e-cigarette users.
Sensationalism may make better traffic, but it, too, is toxic at high doses.
Today’s Supreme Court oral argument, in the case of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, is correctly understood to pit defenders of religious liberty against those who believe that the government has a compelling interest in requiring employers to provide contraception, abortifacients, and sterilization services through their healthcare policies. In significant part, the case hinges on whether the companies—privately held businesses whose owners are unquestionably deeply religious individuals, and who run their businesses informed by those views—can be considered “persons” under the Religious Freedom Restoration Act. I, like many Christians, hope their case prevails.
But while the businesses are often characterized as “family-owned businesses,” each is a national business with hundreds of employees and multi-state operations. Hobby Lobby is by far the larger chain, with 640 stores that employs 28,000 individuals. While it has religiously-themed goods, plays Christian music, and closes on Sundays, in most respects it is identifiably a “big-box” store that can usually be found in major retail corridors, surrounded by acres of concrete and provisioned largely by merchandise made in China. While it is a “family-owned” business, it is hardly a mom-and-pop shop.
The dominant narrative—religious liberty against state-mandated contraception—altogether ignores the economic nature of the case, and the deeper connections between the economy in which Hobby Lobby successfully and eagerly engages and a society that embraces contraception, abortion, sterilization, and, altogether, infertility. Largely ignored is the fact Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. It is almost wholly disembedded from any particular community; its model, like that of all major box stores, is to benefit from economies of scale through standardization and aggressive price-cutting, relying on cheap overseas producers and retail settings that are devoid of any particular cultural or local distinction. The setting where one finds Hobby Lobby near us—on Grape Road in nearby Mishawaka—is about as profane imaginable a place on earth, accessible by six lanes of concrete roads where there is a heavy concentration of large chain retailers, where it anchors a sensory-deadening row of retail store fronts that border acres of cracked and barren pavement, awash in discarded plastic bags and crumpled fast food wrappers. On the rare occasion that I enter the store, even amid the Chinese mass-produced crosses and the piped in Christian music, under the endless florescent lighting and displays carefully-managed to optimize impulse buying, I am hardly moved to a state of piety, prayer, and thanksgiving. I am, like everyone else, looking for the least chintzy item at the cheapest price.
Hobby Lobby—like every chain store of its kind—participates in an economy that is no longer “religious” or even “moral.” That is, it participates in an economy that arose based on the rejection of the subordination of markets embedded within, and subject to, social and moral structures. This “Great Transformation” was detailed and described with great acuity by Karl Polanyi in his masterful 1944 book of that title. He described a sea change of economic practice that took place especially beginning in the 19th-century, but whose theoretical groundwork had been laid already in the 17th- and 18th-centuries by thinkers like Thomas Hobbes, John Locke, and Adam Smith. As he succinctly described this “transformation,” previous economic arrangements in which markets were “embedded” within moral and social structures, practices, and customs were replaced by ones in which markets were liberated from those contexts, and shorn of controlling moral and religious norms and ends. “Ultimately that is why the control of the economic system by the market is of overwhelming consequence to the whole organization of society: it means no less than the running of society as an adjunct to the market. Instead of economy being embedded in social relations, social relations are embedded in the economic system.” Read More…
“Off with Obamacare’s head!”
Such was the battle cry at the first day at CPAC, woven into nearly every speech, from Ted Cruz’s opening remarks at 9AM to the afternoon panels, regardless of whether the topic at hand was healthcare-related or not. Repeated demands were made to repeal or abolish Obamacare, each new iteration met with enthusiastic applause. Obamacare was criticized, attacked, and ridiculed with palpable glee. Speculation abounded about what would happen when Obamacare collapsed under its own weight. But few solutions were offered to replace a defenestrated Obamacare, which will cost Republicans with potential voters in the midterms, and in 2016.
CPAC is not known to be a breeding ground for policy initiatives, but that doesn’t mean that it can’t or shouldn’t be. Try as Republicans might, they have been thus far unsuccessful in their attempts to repeal Obamacare, leaving them with only one viable alternative: reform. In an environment like CPAC, words like reform aren’t “sticky” or in line with the talking points drilled into participants’ heads. But it is necessary, and may even be crucial to our health care system having a fighting chance of recovery. The health care system is in desperate need of overhaul, and Republicans should be leading the charge of how to fix it, not simply pointing out that Democrats broke it most recently. Senator John Barrasso from Wyoming, who had a career as an orthopedic surgeon before becoming a politician, stressed the additional burden placed on patients on having to travel farther to see doctors on a government mandated health insurance program. “Obamacare is patient, heal yourself,” Senator Barrasso said, indicating that it will be harder for seniors to get to hospitals and receive the consistent care they need. “They’re aren’t enough people to take care of the patients, and it’s actually making things worse.”
The silver lining to the grim prognosis is that there is, at last, Republican legislation surfacing. The Coburn, Burr, and Hatch plan is one example of such legislation. The bill takes practical measures to reform Medicaid by allowing patients to keep their own health care plan, reforms medical malpractice law, and allows patients to make their own choices when it comes to their own health care plans, as opposed to government regulations dictating what providers are available to them.
CPAC may be about hitting those talking points, but it can also be a meeting of minds and the beginning of substantive conversations that could put a derailed healthcare system back on track. Republicans need to act quickly, though. Time is running out, and the final phases of Obamacare implementation are on the horizon.