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New “Food Czar” Part of Ongoing Obama Divisiveness

Justin Danhof, director of the National Center’s Free Enterprise Project, said there is “nothing that the Obama Administration can’t make political — even our favorite steak and potatoes.”

Calling her the Obama White House’s new “food czar,” Danhof criticized the past activities of Angela Tagtow — the newly-appointed head of the U.S. Department of Agriculture’s Center for Nutrition Policy — and noted that it gives the impression that she will likely want to spend more government time and taxpayer money focusing on faddish environmental activism in the form of promoting low-carbon foods, urban gardening and cheering on nanny-state soda bans rather than relying upon time-honored and sound science-based nutritional guidelines.

Host Rick Amato, on the 7/30/14 edition of “The Rick Amato Show” on the One America Network, said that this appointment is yet another example of Barack Obama seeking to divide Americans through issues involving race, sex and wealth, among other things.  Danhof added that Obama seems to make everything political, and that any blame for what Tagtow might do — including the possibility of any promotion of national dietary standards similar to Michelle Obama’s unpopular school lunch guidelines — begins and ends with the President.


Obama & Income Inequality: Killing The Goose That Lays The Golden Egg

Note: This post was written by NCPPR’s intern, Scott Alford.

One of the rhetorical centerpieces of Obama’s second term in office has been reducing income inequality. President Obama called income inequality “the defining challenge of our time.” From talk of raising the minimum wage to closing the gender pay gap, Obama has stressed the role that government should have in supporting the middle class. However, the inequality talking points seldom discuss the actual consequences of government policies—consequences that fuel the wealth gap. Rather, wealthy entrepreneurs have become the Administration’s scapegoat for the sins of governmental economic mismanagement.  Instead of blaming businesses and markets for creating wealth inequality, the Obama Administration should begin by addressing the how government worsens income inequality. 

The Obama administration’s approach to economy has been to declare war on the 1% and attempt to drag down the wealthiest businessmen to reduce the wealth gap. While this approach might be “good enough for government work,” this does not actually create wealth and raise the standards of living for anyone. Margaret Thatcher argued that often liberals think, “So long as the gap is smaller, they would rather have the poor poorer.” In other words, liberal policies attempt a greater wealth equality by lowering the standard of living for both the rich and the poor.

Obama’s policies to tax and regulate the rich don’t make the poor richer but rather limits the ability of the rich to save, make investments, and create a better economy so that the poorest can have increased job opportunity and rising wages.  Killing the goose that lays the golden egg creates economic equality at the cost of economic prosperity.

The Obama Administration proposals to reduce inequality would exacerbate the plight of the poor.  Raising the minimum wage is one example. A minimum wage hike is supposed to help raise people out of poverty by forcing employers to pay them more.  In reality, raising the minimum wage raises the price of labor, and when the price of labor increases employers will demand less of it. The economic reality of raising the minimum wage is that it results in layoffs and fewer jobs.

This harms some of the most vulnerable in our society such as minorities and young people.  These people often lack job skills, but their one advantage is they can work for lower wages.  This enables them to begin acquiring the job skills that will eventually result in higher wages.  Politicians are effectively sawing off the lowest rungs of the economic ladder for such workers by raising the minimum wage.

Obama’s push to increase the minimum wage is, ironically, one of biggest threats to prosperity for the poor.


Federal Subsidies for ObamaCare Question Likely Supreme Court-Bound

Discussing the recent “circuit split” when different federal appeals courts delivered different rulings on the legality of taxpayer-funded subsidies on the federal ObamaCare exchange, the National Center’s Dr. David Hogberg told One America Network’s Rick Amato that both courts agreed the “substance of this law comes from the wording.”  But they nonetheless still came up with different solutions to the problem that will probably see the question ultimately decided in the U.S. Supreme Court.

On the 7/25/14 edition of “The Rick Amato Show,” Dr. Hogberg noted both the D.C. Court of Appeals and the 4th Circuit Court of Appeals agreed — in rulings handed down on the same day — that there was no evidence on Congressional intent.  It may be that members of Congress or, at least, Democrats, wanted premiums subsidies to go to both federal and state exchanges.  However, neither Court could find any definitive evidence of what Congress intended during that time that Congress debated and passed ObamaCare.

While he favored the logic of the D.C. Circuit because they operated with the motivation that they “actually have to deal with evidence,” Dr. Hogberg said the 4th Circuit’s more willful decision to defer ObamaCare implementation guidance (thus siding with continuing federal subsidies) to the IRS likely means the issue will “eventually wind up in the Supreme Court, and what happens there — who knows.”  A pessimistic Dr. Hogberg suggested Chief Justice John Roberts and the other justices may not want to be saddled with the “headache” of ruling that people lose their subsidies on the federal exchange.


National Center Shareholder Activism Precedes Congressional Bailout Bombshell

Of the increase of the relationship between big business and big government, there shall be no end.  That is, unless the American people decide to stand up and do something about it. 

Concerning the current and growing confluence of large corporations and big government, the media is often silent.  While the mainstream press is generally wary of the affairs of big business, their collective adoration of big government policies often causes them to turn a blind eye to when the two work together.  

These business/government relationships desperately need more sunshine because, in the equation of big government plus big business, the loser is often the American people generally and American taxpayers specifically.   

So left unfettered, business and government grow in tandem while liberty is trampled.


ObamaCare is perhaps the most striking example of this phenomenon.  But the National Center’s Free Enterprise Project is fighting back.  Through its intensive program of shareholder activism – with 50 meetings under its belt this year – National Center representatives often combat this symbiotic relationship.  

As written, ObamaCare provides multiple mechanisms by which health insurance companies might obtain funds to cover potential shortfalls.  One such mechanism is known as the risk corridor.  As the National Center’s David Hogberg Ph.D. has explained

ObamaCare’s risk corridors are a temporary program that is supposed to help insurers mitigate the enormous amount of risk inherent in the ObamaCare exchanges.  Under this program, an insurer in the exchange whose costs amount to 97% or less of its premiums must contribute part of its profits to reimburse insurers whose costs are 103% or greater of their premiums.  Insurers who are profitable contribute only a portion of their profits while insurers who are not profitable see only portion of their losses reimbursed. 

Hogberg rightly points out that risk corridors are just a different way of saying bailouts.  

As the theory of ObamaCare started to become a reality with its disastrous rollout, the dangers that conservatives had warned about for years also sprung up – including the potential for a massive taxpayer bailout of the health insurance industry.  

As it turns out, the risk corridor provisions as they were written into the law weren’t sweet enough for the health insurance industry, so many of its lobbyists and leaders went back to the Obama Administration with their hands out asking for more.  Team Obama, led by senior advisor Valerie Jarrett, seemed more than happy to accommodate them.  

Now, thanks to a report published yesterday by the U.S. House of Representatives Committee on Oversight and Government Reform, we know just how involved the health insurance industry was in securing this ever-growing bailout as well as how much the Obama Administration accommodated them.  

The report details communications between White House officials and health insurance executives/lobbyists that shows a very similar and simple pattern.  Health insurance officials demand more money and flexibility and the White House obliges.  Insurance leaders, representatives and lobbyists from companies such as Aetna, Humana, Blue Cross Blue Shield, Health Net Inc., WellPoint and CareFirst were all intimately involved in discussions to increase the risk corridor bailout.  

The report notes that: 

According to information obtained by the Committee, several insurers expected Risk Corridor payments prior to the start of open enrollment, and appear to have underpriced their ObamaCare-compliant plans as a result.

After the Administration received negative press attention about a possible taxpayer-funded bailout of health insurance companies, the Administration signaled in March 2014 that it would implement the Risk Corridor provision in a budget neutral manner. 

Insurance companies were generally displeased with this announcement and started a powerful lobbying campaign.  Part of the insurers’ lobbying campaign was a direct appeal to the President’s most senior advisors including Valarie Jarrett.  Insurance companies and their chief trade group warned that a budget neutral Risk Corridor program would lead to large premium increases for exchange plans in 2015.  Essentially, insurance companies presented the Administration with a choice: face significantly higher premium increases in 2015 for exchange plans or make taxpayers bail out insurance companies.

Documents show that Ms. Jarrett took the warnings of the insurance companies very seriously and indicated that the Administration had given insurers 80 percent of what they sought.  Insurers were not satisfied with the Administration’s first change and lobbied for additional protection.  In May 2014, the Administration delivered to insurers, modifying the risk corridor payment formula to increase the size of the bailout insurers could expect to receive. 

Again, the odd man out in this calculus is the American people.  

So, earlier this year, while conservative pundits and congressional leaders took the fight over ObamaCare to the courts and the Administration, the National Center focused its sights not just on the White House, but also the corporations that played a major role in creating – and are now exacerbating – the law’s devastating effects.  

National Center representatives quizzed the CEOs of many of the major health insurers about whether they would accept a taxpayer bailout through ObamaCare’s risk corridor provisions.  

For example, at the annual meeting of Humana shareholders, the National Center’s Hogberg asked Humana CEO Bruce Broussard, in part: 

In February, Forbes reported that Humana planned to take up between $250 million and $450 million from the ‘risk adjustment mechanisms in ObamaCare’ including the risk corridor.  Then in March, the Obama Administration proposed changes to the ACA that may increase this potential bailout for insurers in 2015 by ballooning the amount that taxpayers may have to pay insurers for company losses.

The taxpayers are already on the hook for so much of this law.  So, my question to you is, if the situation arises where Humana qualifies for taxpayer money through the risk corridor, can we get your promise that you will reject it?

Broussard (who is listed in the Committee on Oversight and Government Reform report as having attended a meeting with Valarie Jarrett regarding ObamaCare’s messaging and problems) said that Humana would be taking the taxpayer money if available.  

And so too did the CEOs of WellPoint, Aetna and UnitedHealth (whose CEO was less than enthusiastic about taking taxpayer money, but nonetheless declined to decline.)   

We had every expectation that these CEOs would confirm that they would take the money.  Indeed, we now know that health insurance industry leaders working for, and representing, these companies were working behind the scenes to increase the risk corridor bailout.  

So why did we bother asking the question?  

The answer is two-fold.  First, it was to get the companies on the record on this massively important issue.  From here on out, Aetna, Humana, WellPoint and UnitedHealth are all on record as willing to take a taxpayer bailout.  The second reason relates back to Dr. Hogberg’s definition of the risk corridors in which he noted that they are supposed to be temporary.  A sunset provision in the law means that the risk corridors are going to expire at the end of 2016.  However, in a press release following the WellPoint shareholder meeting, Dr. Hogberg warned that: 

I also doubt that the risk corridor will have a beginning and an end.  If the exchange risk pools prove unstable — that is, if the young and healthy people leave after 2014 and 2015 in the face of premium hikes — then insurers will likely be petitioning the Obama Administration to extend the risk corridors beyond three years.

That is exactly what we are working to prevent.  By exposing the industry and applying pressure on companies who willingly take taxpayer bailouts, the reputational risk to the likes of Aetna and Humana may start to outweigh the taxpayer largess.  

The Committee on Oversight and Government Reform report clearly shows that the Obama Administration appears more than willing to do the bidding of the health insurance industry.  This means is vital to cut the snake off at its head before it can request even more taxpayer bailouts.   

And these bailouts may be massive.  The Committee report rightly notes that the bailout is “potentially unlimited,” and the Weekly Standard notes the bailout “is now likely to be in the ballpark of $1 billion.  To put that into perspective, the year before Obama took office, the ten largest health insurers’ total profits were only $8 billion — combined.”

Bailouts do not occur in a vacuum.  Like any transaction, there must be a willing buyer and a willing seller.  The problem here is that the buyer (the health insurance industry) is asking a seller (the government, which doesn’t really have any skin in the game of its own) for something that is yours and mine – our tax dollars.  

I, for one, have had enough. 



Heritage: ObamaCare Increases Private Coverage By Only Half Million

A new analysis of health insurance data by the Heritage foundation finds that ObamaCare’s reduction of the uninsured via private insurance was relatively miniscule. Through the first quarter of 2014, only 520,402 people gained coverage via the individual market.  

As the chart below shows, the individual insurance market grew by a net 2.2 million, but that was partially offset by a 1.7 million decline in the employer market.  

The authors of the report, Ed Haislmaier and Drew Gonshorowski, say “the reduction [in the employer market] can only be explained by employers’ discontinuing coverage for some or all of their workers or, in some cases, individuals losing access to such coverage due to employment changes.” However, the report does not explain why employers are dropping coverage. Certainly, there have been those who have predicted that employers would “dump” employees into exchanges, but the data presented in the report is not definitive on that point. 

The authors also write that “it is now clear that at least half of any net increase in total health insurance coverage during the first year of Obamacare will be as a result of its expansion of Medicaid.” Indeed, the study found Medicaid enrollment increased about 4.3 million from September 2013 through March 2014 in the 26 states and Washington, D.C. which expanded their Medicaid programs. In the states that did not expand the programs, Medicaid increased 629,284.

The problem with the 4.3 million figure is that we still don’t know how many of those would have qualified for Medicaid even without the expansion.  For the sake of argument, let’s assume that in the expansion states the people who enrolled and would have qualified without the expansion is the same as the number of new enrollees, 629,284, in the non-expansion states.  That would reduce the number of newly insured due to Obamacare’s Medicaid expansion to less 3.7 million.  

But keep in mind that the expansion states include the first, third and fifth most populated states—California, New York and Illinois—which means it is quite possible that the number of people who signed up for Medicaid in the 26 states and DC and would have qualified without the expansion may be quite higher than 629,284.

 More from Haislmaier here.


You'll PAYE Even More For College

Note: This post was written by NCPPR’s intern, Scott Alford.

When my father decided to pursue his college degree, mowing lawns and repairing circuit boards gave him more than enough to pay his own way. For a student attending college today, however, that would be a superhuman feat. The price of college has nearly doubled in just the last 15 years. While most American students look to Washington for the answer to affordable college education, few realize that government intervention is the major driver of sky-rocketing college costs. To deal with the student loan crisis, the Obama Administration has proposed extending a program known as Pay As You Earn (PAYE). However, this proposal is simply masking the symptoms of the bad policies Washington has perpetuated in the student loan market.


The PAYE proposal would work by allowing students to pledge a part of their post-graduation income for a set period of time as payment for their loans, regardless of how much they owe or for how many years they were in school. In other words, after the student makes payments for the fixed period of time, he no longer owes any money even if his student loan debt has not been paid in full.  Sounds great, right?

Not quite. In the first place, students are often unable to make enough money to repay college loans. Government loans have saturated the market with college graduates, many of whom will never find a high-paying job in their field. PAYE does nothing to increase students’ post-college earning potential and thus improve their ability to pay back their loans.

Additionally, it perpetuates the problem of college costs and debt. Like student loan guarantees, PAYE gives colleges and universities increased incentive to increase tuition without any market discipline. Colleges have a greater incentive to charge more since students don’t have to worry about how much they have to pay back since it will be fixed in the future. For millions of students and their families who don’t have access to PAYE, college tuition will continue to straddle them with more debt as college costs keep rising. To top it all off, PAYE is a massive loss for the taxpayers who are often absorbing the poor decisions which the government incentivized.

PAYE is not the solution to make college more affordable or curb the growing student loan debt crisis. Rather, PAYE is fueling the fire of the status quo.


Jonathan Gruber: Hero of the Republic

I’ve previously dubbed Jonathan Gruber as “Society’s Spokesman.”  I’m now also conferring on the MIT professor and architect of ObamaCare the title Hero of the Republic.  The reason is back in 2012 he stated that ObamaCare only permitted premium subsidies to go to state exchanges.  (The relevant part starts at about 31:24):

And here is the quote:

What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this. [Italics added.]

Big hat tip to Competitive Enterprise Institute’s Ryan Radia for finding this.

I don’t have much to add as Radia, Michael CannonPeter Suderman, Phil Kerpen and Ben Domenech have pretty much covered the relevant issues.  

I’ll just add that for all the left-wing pundits who called the plaintiff’s arguments in Halbig vs. Burwellridiculous” and such, I’ll gladly barbecue some crow for you.

UPDATE: In an interview with Jonathan Cohn, Jonathan Gruber claimed that “I was speaking off-the-cuff. It was just a mistake.”  Apparently, he made that mistake twice:

Hat tip: John Sexton.


Football Trailblazer Tony Dungy Defended by Project 21’s Nadra Enzi on Bigotry Blow-Up

Tony Dungy, the first black coach in the National Football League to win a Super Bowl (and who is now a commentator for the NBC television network), is under fire for comments he made about Michael Sam.  Sam is the first openly gay player drafted into the NFL.

Dungy, who said his comments were made shortly after Sam was drafted by the St. Louis Rams, told the Tampa Bay Tribune that he personally “wouldn’t have taken” Sam in the NFL draft.  Dungy qualified his decision, saying: “Not because I don’t believe Michael Sam should have a chance to play, but I wouldn’t want to deal with all of it… It’s not going to be totally smooth… things will happen.”

After the Tribune published the comments on July 20, Dungy explained to syndicated sports talk host Dan Patrick that he was quoted shortly after the NFL draft this past May and after Sam seemingly surprised even his new bosses on the Rams by signing a now-shelved deal with Oprah Winfrey to produce a reality show about his NFL career.

But Dungy is nonetheless under fire for his comments, with critics essentially calling him a bigot.  For example, a New Orleans Times-Picayune editorial called Dungy’s remarks “cowardly or bigoted.”  ESPN’s Dan Graziano wrote “the silliness carries the stench of bigotry and really has no justification.”  And Indianapolis Star columnist Bob Kravitz wrote that Dungy’s feelings have “everything to do with his personal disapproval of Sam’s sexuality.”

Kravitz went into Dungy’s past to make assumptions about his feelings right now — which really don’t seem to fit.  Dungy received a “Friend of Family” award from the Indiana Family Institute in 2007.  The group opposes gay marriage, and Dungy said at the time, “I appreciate the stance they’re taking.”  Yet Dungy also tweeted in 2013 about Jason Collins, the first openly gay player in professional basketball: “I don’t agree with Jason Collins’ lifestyle, but think he deserves respect and should have opportunities like anyone else!”

But not wanting to draft Sam seems to automatically make Dungy a bigot.  Case closed, in the eyes of the liberal media.

Nadra Enzi, a member of the Project 21 black leadership network, sees the attack on Tony Dungy as part of a larger assault to blunt any and all criticism of gay marriage, particularly criticism by black men:

Tony Dungy isn’t required to prostrate himself at the secular altar of gay rights.  He made a valid assessment and isn’t a “cowardly” or “bigoted.”

Black men are free NOT to be part of the political correctness choir.  This seems to be more of an issue of using this football player to advance a majority white, progressive assault on traditional marriage and gender roles.

It seems any black man who speaks contrary to this trend must be demonized, lest more of his people follow suit.


ObamaCare: How's That 'Honor System' Working Out For You?

In July of last year, the Dept. of Health and Human Service admitted that it wouldn’t have the capabilities to check an applicant’s income eligibility for the premium subsidies on the ObamaCare exchanges. Instead, HHS decided it would “accept the applicant’s attestation [regarding eligibility] without further verification.” Or, as Avik Roy put it, “Not qualified for Obamacare’s subsidies? Just lie—govt. to use ‘Honor System.’”

Since then we’ve learned that there are at least 2.1 million “discrepancies” in the ObamaCare exchanges.  “About 1.2 million have discrepancies related to income; 505,000 have issues with immigration data and 461,000 have conflicts related to citizenship information,” according to the Associated Press.  It could easily be worse since “the 2 million figure reflects only consumers who signed up through the federally administered website and call centers. The government signed up about 5.4 million people, while state-run websites signed up another 2.6 million.”

And yesterday we learned that getting illegal subsidies out of the ObamaCare exchanges is almost as difficult as stealing candy from a baby.  Here’s what the Government Accountability Office reported:

For 12 applicant scenarios, GAO tested “front-end” controls for verifying an applicant’s identity or citizenship/immigration status. Marketplace applications require attestations that information provided is neither false nor untrue. In its applications, GAO also stated income at a level to qualify for income-based subsidies to offset premium costs and reduce cost sharing. For 11 of these 12 applications, which were made by phone and online using fictitious identities, GAO obtained subsidized coverage. For one application, the marketplace denied coverage because GAO’s fictitious applicant did not provide a Social Security number as part of the test. [Italics added].

There are two lessons here.  First, when the Obama Administration says that ObamaCare exchanges are working, we should be a bit skeptical.  But most people already know that lesson by now; this just reinforces that.

The second is that if you tell people that they’re on the “honor system,” a lot more of them are going to cheat than if you tell them that someone will be looking over their shoulder.  Most people learn that at some point in grade school or high school when the teacher has to leave the class briefly during a test.  

Perhaps the folks running HHS didn’t think that lesson applied anymore since their boss had “fundamentally transformed” the nation?

Project 21's Chelsi Henry on the Death of Eric Garner

Many people know that the actor James Garner died last weekend.  It was all over Facebook.

Fewer, however, know about the death of Eric Garner.  His funeral is today.  He died last week after having a heart attack most likely induced by a chokehold administered by a New York City police officer.  Garner was suspected of trying to sell untaxed cigarettes, but the hold put on Garner by the officer was an action that the police are supposed to no longer be allowed to use.

The cop who held Garner in the likely deadly chokehold was removed from street duty, the FBI is allegedly monitoring the investigation and NYPD officials say they are reviewing training procedures, but the situation seems still a long way from being resolved.

Chelsi Henry, a member of the National Center’s Project 21 black leadership network says that the force used against Garner was an offense to all Americans in general and the Garner family in particular:

America is the country that is supposed to embrace the notion of “innocent until proven guilty.”  America is the country that purports to be a place of new beginnings and second chances.

The death of Eric Garner has left me without many words to express my deepest disappointment and hurt.  The appalling actions of law enforcement in the video were contradictory to these values, contained unnecessary brutality and conveyed to me a disrespect for all Americans.

I long for the day when America truly becomes the place of second chances for all.  I long for the day when a person’s past actions will not be the definition of their future.

Last week, Eric Garner lost his life.  He leaves behind a wife and children who will never again have their dad at the dinner table, graduations, proms or athletic games.  Where is the freedom and equality that we preach in this case?

I hope for a thorough investigation and justice for Mr. Garner’s family and all Americans who, like him, thought he lived in the country of second chances.  I hope that fear will no longer be the feeling people feel when they see a police officer.


4th Circuit Agrees: No Evidence Of Congressional Intent.  But...

The Fourth Circuit Court of Appeals decision in King vs. Burwell in effect agrees with the D.C. Circuit Court about the evidence of Congressional intent regarding whether premium subsidies should be available on federal exchanges (p. 29):

…we cannot discern whether Congress intended one way or another to make the tax credits available on HHS-facilitated Exchanges.  

However, the Fourth Circuit upheld the use of subsidies on the federal exchanges by claiming that the InternalRevenue Service had made a decision that was consistent with the broad policy goals of ObamaCare.  Basically, one goal of ObamaCare is expanding insurance coverage, and offering subsidies to people who purchase insurance through federal exchanges is consistent with that goal.  The Circuit Court takes it even further by arguing that because of the features of ObamaCare like community rating and guaranteed issue, insurance would be unaffordable without the subsidies. (No kidding!)

Deferring to a regulatory agency is sometimes known as “Chevron deference” after the case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.  As David Kemp explains it, if “the statute is ambiguous, then the court asks whether the agency’s interpretation of the ambiguous provision is based on a permissible construction of the statute. A permissible construction is one that is not ‘arbitrary, capricious, or manifestly contrary to the statute.’ In other words, it is a very low threshold of deference.”

Yet, courts can’t give deference if the statute is unambiguous.  Section 36B of ObamaCare states that premium subsidies go to people “enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.”  That’s not ambiguous.

The Fourth Circuit tries to make it ambiguous by pointing to other parts of the law that suggest premiums would be allowable for on all exchanges.  I’m not convinced by that, but it is likely the argument that the Supreme Court will use if it overturns the D.C. Circuit Courts opinion.

UPDATE:  Also read this great piece by Sean Davis on “drafting error.”  No, sorry, it’s not about football.

UPDATE II: Also see Phil Klein’s article, “Seven potential effects of the D.C. Circuit Court’s Obamacare ruling.”


Halbig vs. Burwell: As D.C. Circuit Correctly Noted, There Was No Evidence Of Congressional Intent

In Halbig vs. Burwell, the D.C. Circuit Court of Appeals got it right.  People who get their insurance through a federal exchange under ObamaCare are not eligible for premium subsidies.  (For some background on the case, go here.)

Arguably the most important part of the ruling concerned whether the Internal Revenue Service had interpreted ObamaCare correctly when it allowed people on federal exchanges to receive subsidies (p. 17):

The problem confronting the IRS Rule is that subsidies also turn on a third attribute of Exchanges: who established them. Under section 36B [of ObamaCare], subsidies are available only for plans “enrolled in through an Exchange established by the State under section 1311 of the [ObamaCare].”  Of the three elements of that provision—(1) an Exchange (2) established by the State (3) under section 1311—federal Exchanges satisfy only two: they are Exchanges established under section 1311. Nothing in section 1321 deems federally-established Exchanges to be “Exchange[s] established by the State.” 


The meaning of section 36B was always plain:  Only people who enrolled through state exchanges were eligible for premium subsidies.  The remaining issue for the Circuit Court was whether this was an oversight by Congress and that Congress intended for subsidies to be avaialbe on both state and federal exchanges.

That it was an oversight is something I wouldn’t argue.  The problem for the Circuit Court is that it could find no evidence that Congress intended for subsidies to go to both federal and state exchanges (p. 34):

For the court to depart from the [ObamaCare’s] plain meaning, which favors appellants, “there must be evidence that Congress meant something other than what it literally said,” from which the court can conclude that applying the statute literally would be “‘demonstrably at odds with the intentions of [the ACA’s] drafters.’”As Chief Justice Marshall wrote, “it is incumbent on those who oppose” a statute’s plain meaning “to shew an intent varying from that which the words import.”Nothing the government or its amici cite demonstrates what that precise intent was. And “[i]n the absence of such evidence, the court cannot ignore the text by assuming that if the statute seems odd to us, i.e., the statute is not as we would have predicted beforehand that Congress would write it, it could be the product only of oversight, imprecision, or drafting error.”


I don’t doubt for a second that if one queried every Democrat who voted for the law on whether the premium subsidies should be available on both state and federal exchanges, every one of them would say, “Yes!”  The problem is there is no evidence that any of them said any such thing, probably because none of them were ever asked the question.  Indeed, it was a then-reporter at Investor’s Business Daily who was the first (as far as I know) to point out publicly that ObamaCare stated that subsidies were only available on state exchanges—and that was on September 7, 2011, nearly a year and a half after ObamaCare was signed into law.

Courts can (or are supposed to) only consider actual evidence, not evidence that might have existed if some other condition had been met.  Since the Circuit Court could find no evidence of Congressional intent on this issue, it had to rely on the language of the statute.

A couple of points.  Commentators calling this “conservative judicial activism” or just a “grammar error” are being disingenuous.  They claim that Congress intended subsidies to be available on federal exchanges, but they aren’t pointing to any evidence.  They merely say that at the time no one in Congress ever said that the subsidies wouldn’t apply to both.  But Courts can’t accept that as evidence of intent either.

Next, is this the end of ObamaCare?  Well, first this case has to go to the Supreme Court and who knows what will happen there?  Another 5-4 decision in which Chief Justice Roberts sides with the four liberal Justices isn’t out of the question.

But even if the Supreme Court agrees with the D.C. Circuit Court, it’s probably not the end of ObamaCare.  As Callie Gable over at National Review notes, states could simply pass laws saying they are using as a state exchange.  

Finally, the 4th Circuit also ruled on this case today and ruled opposite of the D.C. Circuit.  I’ll comment on that case tomorrow.


Lies, Damned Lies, And ObamaCare Statistics

With apologies to Mark Twain, there are lies, there are damned lies, and then there are ObamaCare statistics. Case in point is a column written by Vicki Simons touting the supposed positive effects of ObamaCare:

The positive results of ACA:

— 20 million more American have access to health care than before ACA was passed.

— 8 million people have signed up for health coverage through the state and federal marketplaces; 32,000 in New Mexico.

— 4.8 million more have signed up for Medicaid coverage; 103,00 total in New Mexico. As of March 31, 2014, there were 642,489 residents enrolled in Medicaid or CHIP).

— 3 million now have coverage by staying on their parents’ plan; 26,000 in New Mexico.

Not a single one of those is accurate.

1. The statement that “20 million more American have access to health care than before ACA was passed” is easily the most misleading.  It’s intent is to leave the impression that ObamaCare has reduced the uninsured by 20 million.  It came from this study by the increasingly disingenuous Commonwealth Fund.  Here is how they came up with 20 million:


The notion that 20 million people have coverage now that didn’t have it before Obamacare is belied by the fact that not everyone who purchased insurance on the exchanges or directly from an insurer was previously uninsured.  At best, 20 million people have access to new types of coverage.  But, clearly, that’s not a reduction of the uninsured.

2. Regarding the claim that 8 million people have signed up for coverage on the exchanges, as Reason’s Peter Suderman pointed out the other day, “That statistic, however, leaves out an important detail: how many of those 8 million have actually enrolled.”  That number will decline as insurers drop people who have not paid their premiums.  That could be as high as 15 percent, which means enrollment would be about 6.8 million.  Nor does it include people who will leave the exchange for Medicaid or for employer-based insurance.  The U.C. Berkeley Center for Labor Research and Education estimated that by the end of the year about 42 percent of enrollees in the California exchange will leave for just those reasons.  Presumably, that will happen in other states as well.

3. As for 4.8 million now have Medicaid coverage, Sean Trende exposed the problem with Medicaid numbers back in January.  At the time, he examined November enrollment numbers and wrote, “of the November enrollees, 55 percent are in states where the Obamacare expansion of coverage didn’t occur and the ACA is therefore very unlikely to be directly responsible for their coverage. If we look at the October numbers, a little less than half (49.82 percent) were in states that didn’t expand coverage. Therefore, in total, of the 3.9 million individuals newly covered by Medicaid in October or November, only about 1.9 million are from states that expanded Medicaid.”

Nor do such numbers distinguish between people who are signed up for Medicaid because of the expansion—that is, they would not have previously qualified for Medicaid because their income was too high—and those who have signed up and would have been eligible even without the expansion.  One can argue that the former are covered because of ObamaCare, but not the latter.  But the latter are undoubtedly included in Ms. Simons numbers, thereby rendering them bogus.

4. I examined the claim 3 million young people gained coverage under their parent’s plan a while back and found it to be deceptive.  It included not only young people on private insurance but also those on public coverage (such as Medicaid) and hadn’t been updated in over 21 months.  Fixing those problems showed that the number was, at best, 2.2 million.  Furthermore, using different data from the Census Bureau showed that at most 258,000 young people had received coverage via their parents plan.  But Ms. Simons didn’t have to take my word for it. She could have done a bit of Google searching and found that PolitiFact rated the claim as only “half true.”

Back in April, I noted that the “Administration has shown itself to be utterly shameless in hawking bogus statistics.”  Apparently, so are its supporters.


Correcting the Record on Yet Another Idiotic Article [Mis]Covering Our Work


Believers in the human-caused catastrophic global warming theory (or CGAW, but called "climate change" by many) would do better without supporters who have the research skills of walnuts.

There ought to be a limit to the idiocy we all have to put up with so certain people can feel morally superior.

I'm reminded of this (again!) by an article by a Laura Kissel (a woman who calls people who do not believe in CAGW "deniers" -- as in holocaust deniers) in "Main Street" (which is part of "The Street Network," and therefore big enough to employ editors for accuracy) on June 20.

It's full of nonsense that has been addressed often by many, so I will limit my criticism to what she said about our work:

And back in March, shareholders of Apple voted down a resolution by the National Center for Public Policy Research — a proponent of climate skepticism — that would have forced the corporate behemoth to disclose the money it has invested in tackling climate change.

Um, no.

Our resolution said:

Shareholders of Apple Inc. (“Apple”) urge the board of directors (the “board”) to authorize the preparation of a report, updated annually, disclosing:

1) Apple’s membership in any trade association or organization that educates members about sustainability practices, assists members in the development of sustainability practices, encourages members to engage in sustainability practices or requires members to undertake sustainability actions.

2. Payments made by Apple to trade associations or organizations of which Apple is a member that meet any of the definitions set forth in #1, above.

3. Registration with, membership in or subscription to any independent sustainability rating processes, registries and/or organizations to which Apple makes payments that rate Apple products for sustainability purposes and intentionally make results of such evaluations, in whole or in part, available to the public.

4. The amount of payments made by Apple to entities that meet any of the definitions set forth in #3, above.

The report, excluding proprietary information and information related to legal compliance, shall be presented to the Audit and Finance Committee of the board or other relevant oversight committees of the board and posted on Apple’s website.

To those who are willing to read it, it's clear our proposal asked Apple to make public its payments to trade associations and organizations (aka, BUSINESS groups) and sustainability registries.

On the matter of sustainability registries, as we wrote in March, here's why we cared:

In 2012, Apple withdrew from the industry-funded Electronic Product Environmental Assessment Tool (EPEAT) sustainability registry when many believed the then-new line of MacBooks would not meet EPEAT's standards. Days later, Apple rejoined EPEAT, and somehow earned EPEAT's top "gold" certification for its new laptop. How was Apple able to earn this approval? Would a smaller company have been treated the same? Minus the transparency we sought with our shareholder proposal, who knows?

Laura Kissel is complaining because we are wondering about the size of Apple's payments to an environmental registry that mysteriously (to us, at least) seemingly changed its mind about its "green" ranking of one of Apple's core products -- for the better.

Does Laura Kissel know how Apple got a top ranking? Does she even care about "dark money" (a propaganda phrase of no precise definition put forth by left-wing groups opposed to free speech) if it isn't being spent by people who are publicly skeptical of CAGW? Apparently not -- she opposes Apple telling its own board and shareholders about its payments to outside business groups and to registries that people rely upon for, one hopes, objective environmental ratings of popular consumer goods.

I'll close with how I closed a post about this in March, since it's obvious it hasn't sufficiently been read:

...Last year, we flew a member of our board of directors to the Apple shareholder meeting to ask Tim Cook a question about trade association "sustainability" activities that officially are about being green but which in practice threaten competitiveness and give big businesses an unfair edge over smaller companies. Tim Cook only took five questions (one about bathrooms!) and ignored ours. So we issued a press release. Did anyone care? Mostly, not.

Silver Apple Logo White

So for the 2014 shareholder meeting, we submitted a shareholder proposal calling for reasonable transparency for these trade association activities, and we asked Tim Cook a question (which wasn't easy; after calling on our representative Cook tried to pick someone else immediately after recognizing him, but our guy got his question out fast) to find out where Apple really stands. There are many calm and professional ways Cook could have answered our question, but he instead choose to lose his temper, pretend we objected to things like the development of accessibility tools for the blind (we don't object and never mentioned the subject), and duck much of what we asked.

Why is that? In our view, it isn't because Apple is too green. It is because it is brilliant at greenwashing. Tim Cook got a question that -- had he answered it -- could have illustrated the difference between Apple's green reputation and Real World Apple.

Tim Cook didn't like that question, so he scolded us and played the green card, and got out of giving a straight answer.

And based on the amount of email we've gotten since Friday with the words "F--k you" in them, a lot of you fell for it.

We suggest that you ask yourselves: Why did Apple's management oppose our shareholder resolution [resolution #9 at the link], which called for transparency in its relationships with trade associations and sustainability registries such as EPEAT?

Up your game, Laura.


NAACP, ACLU Sue Again to Make it Legal to Abort Babies Because of Race, Sex

Having been thrown out of one court already, the NAACP is once again suing to make it legal to abort babies in the state of Arizona solely on the basis of the race or sex of the unborn.

Previously, in 2013, the NAACP and other groups sued for the overturn of “The Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act,” a law passed in 2011 making it a felony for a doctor to knowingly perform an abortion if it is known that the mother is being coerced into the procedure because of the race or the sex of the unborn baby.  They said the law was prejudiced against minorities (even though the law was all-encompassing and did not single out any racial group in its enforcement) and thus restricted access to abortion.

The federal district court judge in this case ruled that they lacked legal standing and dismissed the case.

Now, the Arizona chapter of the NAACP and the National Asian-Pacific American Women’s Forum, with the representation of the American Civil Liberties Union, is suing in the federal 9th Circuit Court of Appeals.  They are now claiming that the law is rooted in racial stereotypes.  Once again, the law contains no racial specifications.

The law generally applies to doctors who would knowingly perform an abortion on someone pressured into the act because someone else was not happy with the race or gender of the unborn baby.  While that alone smacks of racist intent, add to it the fact that it is reported that none of the plaintiffs or their lawyers can point to proof that the law has had a disparate impact or that minorities are already at risk of prosecution.

Derryck Green, a member of the National Center’s Project 21 black leadership network, commented on the previous lawsuit and the absurdity of the NAACP’s crusade against protecting the unborn from the hate crime of an abortion based solely on sex or race.  He is now commenting on this newest lawsuit, which could eventually see this argument before the U.S. Supreme Court:

It’s as if the NAACP hasn’t done enough to dishonor its legacy and completely ruin its reputation as a civil rights organization.

Grasping for political relevancy, the so-called civil rights group’s Arizona chapter, with the help of the ACLU, is suing the state of Arizona once again in an attempt to achieve greater access to race and sex-based abortion.

After their first lawsuit against the law – one that claimed it restricted access to abortions – failed, the ACLU is now making a claim on behalf of the NAACP chapter and National Asian-Pacific American Women’s Forum that black and Asian women in Arizona “must endure the humiliation of living under a government that views them as a threat to American values simply by virtue of alleged character flaws possessed by persons of their race.”

In other words, black and Asian women who might be the subject of a race or sex-based abortion shouldn’t have to be associated with the stigma of intentionally having an abortion based on race or gender.  Instead, they should be free to kill their preborn babies without impunity and perhaps under duress.

Fools, the whole lot.

Again, “The Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act,” the Arizona law in question that has yet to see a prosecution, makes any and all abortions based on the race or sex of the mother or preborn child illegal.  It also criminalizes anyone who knowingly performs an abortion that is the result of race or gender.  Lastly, it criminalizes anyone who engages in physical or verbal coercion that leads to a race or sex-based abortion.

So, in reality the person getting the abortion is not even at risk of prosecution.  And this fact, and the lack of any such use of this law to enact a sweeping ban on minorities seeking abortions, should show how precise the law is tailored.  But the ACLU, NAACP and NAPAWF still say that minorities are being persecuted.  Not by those who wish to see the unborn killed because of race or sex but by those who want to prevent such unnecessary and hateful murders to be committed.

It would seem the NAACP is still not content with the disproportionately high numbers of abortion in the black community.  It would seem to want more, and its Arizona state chapter will apparently sue repeatedly to make it happen.

Imagine if a white person or predominately white so-called civil rights organization endeavored to sue a state in an attempt to rescind a law that prohibited race and sex-based abortions because they wanted to increase the numbers of black babies aborted.  It would rightly be called racist, and one can believe that the NAACP would waste no time letting America know about such racist intentions, which they would likely say is a reflection of a greater racist America.

Yet the NAACP is itself engaged in this very same practice.  In my opinion, it clearly indicates their reprehensible hypocrisy.  The NAACP is actively supporting a position – through word and deed – that would increase abortion in the black community.  Doing so effectively undermines the association’s shrinking credibility when it comes to being an advocate against racism.

Who should take seriously any organization that protests and demonstrates against racism while, at the same time, advocates a form of racism itself?

Since racism as a comprehensive obstacle to black advancement has been overcome, the NAACP no longer has moral or cultural relevancy.  It should therefore drop the pretense of being a civil rights organization.  In this case, the group obviously refuses to believe civil rights extend to those in the womb.

NAACP leaders should admit what it has become and what any Americans already know – it’s a political advocacy group that seeks to advance progressive political causes.


Holder’s “Racial Animus” Remark “a Dog Whistle in Itself”

Responding to allegations made by Attorney General Eric Holder that there is “racial animus” among critics of him and President Obama, Project 21 member Christopher Arps said “that’s a dog whistle in itself” — making reference to how the left tries to find code words and so-called “dog whistle racism” on the part of opponents of the Obama Administration’s policies and practices to gain support.

Instead, as Christopher explained on the 7/16/14 edition of the “Rick Amato Show” on the One America Network, “the wheels are falling off this administration” when it comes to issues such as the economy and immigration.  Holder and the President’s supporters, he explained, “play the race card to deflect some of the blame.”  This is getting extremely hard as the border crisis and the jobless recovery are causing even Obama’s most-loyal support among black Americans to decline.

Playing the race card in this manner is an obvious strategic tactic on the part of the White House at a time when Christopher says a “Tea Party-like groundswell” is needed to deal with the lack of transparency within the Obama Administration.

Speaking about the IRS scandal and the plague of crashed computers among accused Obama Administration staffers, Christopher said: “You got a better chance of marrying Beyonce and winning the lottery the same day.  This case is clearly starting to scream out that it needs a special prosecutor.  This administration is basically investigating itself and the administration’s credibility is really at a low point at this point.”


Liberals Doing Obama a Disservice on Illegal Immigration

Saying that his liberal supporters are doing his a disservice in their defense of the humanitarian crisis on the U.S.-Mexico border, National Center Free Enterprise Project director Justin Danhof said it’s “tough to say we didn’t foresee a porous border… we’ve had a porous border for years.”  And, in rushing to the border to support illegal aliens and push for their amnesty, they contradict the President’s new efforts to dissuade the masses of children moving from their homes in Latin America to the United States.

On the 6/27/14 edition of the “Rick Amato Show” on the One America Network, Justin criticized House Minority Leader Nancy Pelosi (D-CA) for going to the border to demonize those who want stronger border security and deportation of those who enter the United States illegally.  He suggested Pelosi go beyond the border and into Mexico to see the misery wrought by the Obama Administration’s policies and the false hopes it has put into the minds of Latin American families.  Justin said: “Not all the children make it, so maybe Nancy Pelosi should go visit the FBI and see what happens to children sold into the sex trade.  She should visit the shallow graves of the children who don’t even make it to the border.”

Host Rick Amato later pointed out to the panel that “if [Pelosi] really was showing integrity on this issue, I believe she would do what Justin Danhof indicated.”


VA's Problem: "Bureaucrats Will Take Care of Bureaucrats"

Discussing the Department of Veterans Affairs crisis, National Center policy analyst David Hogberg said the simple diagnosis of veterans’ health care ills is that “bureaucrats will take care of bureaucrats.”

On the 7/10/14 edition of the “Rick Amato Show” on the One America Network, David pointed out that the government-run and taxpayer-funded Veterans Health Administration system simply does not have the incentives to promote quality in a manner that is expected of private health care systems or any other private institution.  He said the “customers… the veterans… do not actually control the funding,” and that there is no pressure on staff because there is no real competition.

Asked about an excuse for VA facilities being overrun due to unexpected demographic shifts in veteran populations to southern retirement communities, David said his research and reports by the government do not bear out this excuse — “the data does not support it.”  He said there have been equal numbers of poorly-functioning VA centers found in the north and Sun Belt regions.


E-Cigarettes "Biggest Boon to Public Health"

Jeff Stier, director of the National Center’s Risk Analysis Division, points out that e-cigarettes are a “huge threat” to the traditional tobacco industry and “good news for public health.”

On “Real Money with Ali Velshi” on the Al Jazeera America network on 7/15/14, Jeff calls e-cigarettes the “biggest boon to public health.”  He said they are more successful in weaning smokers off tobacco than any government-imposed warning, tax or regulation.

Unfortunately, Jeff added, “I think the public health community hasn’t really figured that out yet.”  Noting that all of the e-cigarette users he knows are using them as a means of quitting altogether, he wondered why anti-tobacco activists and their supporters would be so adamantly opposed to something that is achieving their goal in a more effective manner.


The VA Scandal: Longman's Other Bad Idea

Phillip Longman’s book Best Care Anywhere: Why VA Health Care Is Better Than Yours contributed to the current VA scandal by creating a sense of complacency among those in the Congress and the Obama Administration who were charged with overseeing the VA.  Unfortunately the notion that the VA was the crown jewel of the U.S. health care system wasn’t the only bad idea to come out of that book.

The Obama Administration’s attempt to impose electronic health records on the health care system and the resulting mess also found its origins in Longman’s book.  Longman championed the Veterans Health Information Systems and Technology Architecture (VistA) as a wonderful tool for coordinating patient care and used the last portion of his book to advocate for adoption of VistA by the entire medical community.  

Longman’s story of the development of the VistA system was a description of a “bottom up” process.  In Best Care Anywhere Longman recounts the efforts of various programmers and physicians in the VA to develop the VistA system.  While the VA bureaucracy was constantly trying to stymie their efforts, they “had one crucial advantage,” according to Longman.  ”[T]hey were creating software either for their own use or for their colleagues.” VistA would prove useful for the VA because it was being created and tested by VA personell.  It was a process of trial and error that involved the people who would be using the product on a regular basis.  

So, when later in the book Longman proposes that the entire U.S. health system should adopt VistA, what approach does he suggest?  Why “top down,” of course!

Longman suggested that the government in effect say to the private sector: “If you expect to get paid by Medicare or Medicaid, you’ll have to join the VistA Health system.  This requires installing VistA software and using it to demonstrate that your are meeting certain VA performance standard.”

While Obama Administration did not take that exact approach, it didgo the top down route.  In 2009 Congress passed and the President signed the HITECH Act as part of the stimulus program.  It budgeted $30 billion to encourage health care providers to adopt electronic health records (EHRs).  They would continue receiving the money as long as they met the federal government’s standards for “meaningful use.”  The results have been predictable.

According to a Government Accountability Office report, while take up of EHRs among hospitals and physicians increased from 2011 to 2012, there was a high drop-out rate from 2011:

Specifically, within the 36 states that had completed their determinations of which providers would receive incentive payments for the 2012 Medicaid EHR program year, 61 percent of professionals and 36 percent of hospitals that participated in the Medicaid EHR program in 2011 did not continue in 2012. Sixteen percent of professionals and 10 percent of hospitals participating in the Medicare EHR program in 2011 did not continue to participate in 2012. 

The reason, as John Graham explained, is that in 2011, most providers were only in Stage 1 of meaniful use. Stage 2 and Stage 3 were going to be much harder to meet, and providers that couldn’t meet them simply dropped out.

By 2014, “only four hospitals and 50 physicians have achieved the federal government’s goals for ‘meaningful use’” for EHRs.

One side effect appeared to be the EHRs were increasing costs.  Physicians using EHRs were more likely to order more diagnostic tests.

Thousands of different hospitals and millions of physicians and nurses are going to have different needs and preferences when it comes to using EHRs.  One set of standards imposed by Washington is going to hamstring the ability of hospitals and medical personnel to find the EHR system that works best for them.  They end up trying to meet standards imposed from above instead of engaging in a trial and error process to determine which system best meets their and their patients needs.  

Those concepts are clearly lost on intellectuals like Longman, who believe in centralized solutions even when evidence to the contrary is in one’s own book.