The Fox Business Channel's Stuart Varney weighed in yesterday on the National Center's newest ObamaCare paper, "Why The "Young Invincibles" Won't Participate In The ObamaCare Exchanges and Why It Matters," by David Hogberg, Ph.D.
My recently released study on the incentives “young invincibles” will face on the ObamaCare exchanges received considerable criticism from the left. Interestingly, what most of it had in common was that it could have doubled as a description of present-day reality. (Guess, they don’t call the left the “reality-based community” for nothing).
My study found that in 2014 about 3.7 million of those ages 18-34 who are single and childless would save at least $500 by forgoing insurance on the ObamaCare exchanges and paying the individual mandate penalty. Slate’s Matt Yglesias responded, “Downside to this strategy for saving money is…you don’t get health insurance.”
That’s true. It’s also true that many in that age group already follow that strategy. Indeed, the age group with the highest rate of uninsured is 18-34-year-olds. About 19.1 million are uninsured at any given time, according to the Census Bureau, and somewhere in the ballpark of about 11 million are uninsured for at least one year. Apparently, quite a few young invincibles would rather save the money.
Jonathan Bernstein of the Washington Post and Brian Beutler of Salon note that not buying health insurance is risky. Bernstein claims, “even young healthies get the flu, or sprain an ankle, or otherwise need a bit of medical attention. Some even want regular check-ups just to be safe!” Buetler brings up the risk that they could get cancer.
Again, that’s true. But it’s also true that many 18-34-year-olds already take those risks, as evidenced by how many of them go without insurance.
So why do so many 18-34-year-olds forgo insurance? Undoubtedly there are many reasons, but one is that their health really isn’t that much at risk. For example, a 2004 study found that, on average, about 80 percent of an individual’s lifetime health care expenses occur after the age of 40. Not even 13 percent of those expenses occur between the ages of 20 to 40. Although the study didn’t include an 18-34 category, the percentage of lifetime health care expenses for that group would be even less.
As for cancer, data from the National Cancer Institute shows that the incidence of cancer among the age groups 20-24, 25-29, and 30-34 are 0.04 percent, 0.06 percent, and 0.09 percent, respectively. Among none of those groups does the death rate for cancer rise above 0.01 percent. The fact is that the risk of getting hit with large health care expenses or a serious disease is very low for the young invincibles and probably goes a long way to explaining their high rates of uninsurance.
Philip Klein of the Washington Examiner wrote up my study, which prompted Buetler to argue that Klein was “encouraging” young folks to forgo insurance and that doing so was “wretched.” By extension, presumably, that accusation also applies to me.
I’ve known Klein long enough that I can say on behalf of both of us that is ridiculous. We’d much prefer that more young people had health insurance than presently do. The point of my study, and Klein’s description of it, is that the incentives young people face on the exchanges encourage them to go without health insurance more so than the present system.
Not only will many young invicibles save hundreds of dollars on premiums by forgoing insurance and paying the fine, thanks to the exchanges they no longer have to risk being denied insurance should they come down with a serious illness. Due to the exchanges’ “guaranteed issue” regulation, insurers must sell all comers a policy during each year’s October to December enrollment period. As I explained in the study:
In a market without guaranteed issue, consumers run the risk of insurers not selling them policies when they get seriously ill. But that risk is largely gone under the exchanges. For instance, a young person who gets a serious illness in June only has to wait until October to sign up for insurance and then wait until January 1 of the next year to receive coverage. Combined, community rating and guaranteed issue give the young and healthy big incentives to forgo insurance until they are sick.
Bernstein took issue with that, amusingly calling it “the absolute worst thing you’re going to see written about the (very real) issue of young, healthy people and the Affordable Care Act.” Perhaps the best way to explain Bernstein’s outburst is that he didn’t quite grasp the concept that if not purchasing health insurance becomes less risky, more people will not purchase health insurance. He seemed to hope that by employing some hyperbole readers wouldn’t notice his lack of a coherent argument.
Regardless, decades of government regulations have increased the price of insurance to the point that many young invincibles no longer see it as a good investment given the relatively low risks they face. The ObamaCare exchanges will only make that situation worse.
UPDATE: Phil Klein has also responded here. Key part:
But there are two important things to keep in mind about this reality. First, even if everybody were to agree that just to be on the safe side, it’s better for younger Americans to have insurance than to go without it, that conclusion is irrelevant to the empirical economic question of whether a critical mass of young Americans will determine that insurance is worth the costs for them. And the empirical question will be the important one next year.
Second, if liberals think it’s so important for young Americans to purchase insurance in case of something unexpected, then they shouldn’t have supported Obamacare, which makes it a lot harder and more expensive for young Americans to purchase the type of plans that would make the most sense for them — catastrophic plans that, while they don’t cover routine medical expenses, would have low monthly premiums and would protect them from financial ruin in the event of an accident or serious illness.
In the United States, it is illegal to sell eggs without first washing them.
In Britain, it is illegal to sell eggs that have been washed.
Both laws are in place to protect consumer health.
And I'm sure they're both helping a lot.
The Food and Drug and Administration considers sunscreen to be an "over-the-counter medication" and laws in many states prohibit public school students from taking over-the-counter medications at school unless their parents, and sometimes doctors, fulfill some bureaucratic requirements in advance.
So, as a practical matter, most public school kids are not able to apply sunscreen before participating in outdoor activities unless they apply it at home, before school -- which means the sunscreen will have reduced value more than two hours after the student has left his or her house.
In many if not most instances, students won't even be able to apply sunscreen before walking home, even if they walk off school property before applying it, because they can be suspended or expelled merely for the possession of an over-the-counter medication in school -- which would include keeping a bottle of Coppertone in their backpack, in their locker, during the school day.
Big government, on the job for you.
While promoting her new movie, billionaire Oprah Winfrey made the startling comparison of the 1955 murder of Emmitt Till and the 2012 death of Trayvon Martin, saying “in my mind, same thing.” She has also claimed that racism prevented her from buying an almost $40,000 purse in Zurich, Switzerland (a claim she has begun to back away from after being challenged on its validity).
On the 8/16/13 edition of “The O’Reilly Factor” on the Fox News Channel, Project 21 co-chairman Horace Cooper debated UCLA professor Mark Sawyer about whether or not there is a clear and present danger presented by racism on modern American society, or if Oprah and people like her are exaggerating their accusations.
Disagreeing with Sawyer and Winfrey that there is a legitimate way to link the deaths of Till and Martin, Horace said it “isn’t even close.” He added that perpetuating this accusation is “unfair and unhelpful.”
Horace told guest host Laura Ingraham:
The question here isn’t does racism exist or does racism not exist. The question is how relevant is that in impacting what goes on in the real lives of most Americans - black and white. And it is irrelevant. It’s not the #1 issue. It’s not the #2 issue. It’s not even the #10 issue. Family formation and educational attainment have far more to do with what happens in the lives of not just black Americns but everyone.
As for prevalent use of the n-word in slang and hip-hop music, Horace suggested that Winfrey - who acknowledges that the use of the word is not productive but is apparently unwilling to criticize black role models who use it - could have a tremendous impact by “telling people it’s never appropriate” to use the term.
Horace is erroneously identified by Ingraham as representing The Heartland Institute.
I got into a Twitter debate the other day with The New Republic’s Jonathan Cohn over whether the problems in Britain’s health care system are due to the nature of its single-payer system or the amount the government spends on its system. In other words, are the problems, such as long wait times for surgery, caused by “how they pay” for health care or “how much they pay”?
Cohn contended that it was due to the fact that Britain spends only about 8.7% of GDP on health care; the reason we don’t have much in the way of Britain’s problems in the U.S. is that we spend 16%. (The numbers we used were a bit out of date. As of 2011, health care accounts for about 17.9% of our GDP and 9.3% of Britain’s. Nevertheless, Cohn’s point still stands.)
I contend that Britain’s problems are due to the way it allocates its health care resources—namely, its government-run, single-payer system. In the course of the debate, I asked Cohn if he thought a single-payer system would allocate 16% of GDP as well as a market system (which, just for the record, we don’t have here in the U.S.). Cohn’s response:
I think Cohn is going to have a hard time finding much evidence that a government system will allocate 16% of GDP—or any amount of GDP—more efficiently than a market system. Good luck with that.
Then Cohn flipped the question, asking me if I thought “there’d be same access issues in UK if they spent 16% GDP like we do?” I replied, “Yes. Govt can mismanage 16% of GDP just as well as it can 8.7%.”
I also pointed out that Canada, which also has a single-payer system, has many of the same problems, such as waiting times for surgery, as Britain and spends more GDP on health care than does the Britain. Cohn replied that Canada still spends less than the U.S.
Good point, but we can compare Canada with some nations other than the U.S. to shed some light on the how we pay vs. how much we pay controversy. Specifically, let’s compare Canada with three nations that don’t have single-payer systems and don’t have much of a problem, if any, with waiting times for surgery: France, the Netherlands, and Switzerland.
(Note: Netherlands had a problem with waiting times for surgery in the 1990s, but that problem declined considerably in the next decade—after it changed how it paid for health care. See chapter 10 of this report.)
Anyway, here is what Canada, France, the Netherlands, and Switzerland spent on health care in 2011 (source: World Bank.)
All of these nations are pretty close to each other in terms of the GDP that is spent on health care. Indeed, if one is to cling tenaciously to the “how much” theory of spending, he’d have to argue that the point at which waiting lists are no longer a problem exists somewhere between Canada’s 11.2% of GDP and France’s 11.6%.
But even that wouldn’t hold much water as he’d still have to explain why Switzerland spends slightly less than Canada but apparently has no serious problem with waiting times. So, score one for the “how we pay” theory over the “how much we pay” theory.
Oh, and by the way, I didn’t get the idea to compare Canada to France, the Netherlands, and Switzerland at random. I got it from Cohn:
UPDATE: Looking at the OECD report on wait times, I decided to examine the GDP spent on health care of some of the nations listed as having no serious problem with wait times (see page 25 of the report.) Here is another comparison:
Well, Japan shows it is possible to spend just as much as Britain without the problems of wait times for surgery, whereas South Korea apparently shows that it is possible to spend even less. Now, both Japan and Korea have considerable government funding of their health care system, but both also have fairly extensive systems of private insurance, unlike Britain. So, score 2 for the “how we pay” theory over “how much we pay.”
Peter Orszag is at it again, defending the death panel Independent Payment Advisory Board against an attack by, of all people, Howard Dean. However, what’s most interesting about the article is Orszag’s contention about the causes of the recent slowdown, to 2.7%, of the growth in Medicare this year:
One reason costs have been rising so slowly is that systems for paying hospitals and doctors are changing. We’re moving away from the old fee-for-service plan and toward paying for value in health care — and we’re making the shift more rapidly than expected.
It’s not entirely clear what Orszag means by “paying for value” although presumably he means the “Medicare experiments with accountable care organizations [ACOs], bundled payments and other new strategies” that he mentions later on. I emailed him for an explanation last week and for the data to back up those claims. Thus far, no response. So, for the sake of argument, let’s assume he does mean ACOs and bundled payments.
That’s odd because so far those efforts are a tiny portion of Medicare’s operations. At the beginning of the year, about 1.6 million Medicare beneficiaries were enrolled in ACOs, which amounts to about 3% of all Medicare beneficiaries. What impact such a small number of enrollees would have on costs is debatable. That assumes, of course, that ACOs will reduce costs. Looking at early evidence, such as the Pioneer ACO model, shows mixed results at best on cost saving. Only 18 of the 32 organization involved in the demonstration saved money. Of those, only 13 saved enough money to share some of the savings with Medicare.
An article in Modern Health Care notes that nine organizations will no longer continue in the program. It also notes the savings to Medicare from the ACOs that reduced costs was about $33 million. Medicare spent about $572 billion in 2012, which means that the $33 million saved by the ACOs are responsible for about .006% of the slowdown in Medicare spending.
Regarding bundled payments, Medicare’s four bundled payment experiments only began this year, and as of yet we have no data on whether they are saving costs. And even if they were, the effect on the entire system would be small, since only 114 organizations serving Medicare beneficiaries are involved.
Then there is the Advance Primary Care Practice Demonstration which has been going on since 2011. However, with only 195,000 Medicare beneficiaries enrolled, it’s doubtful it is having much impact on costs either.
It would sure be nice if Orszag would back up the grand claims he makes for Medicare’s new delivery methods with some actual evidence. But then, maybe there isn’t much evidence for those claims.
Okay, having given Clint Eastwood a bit of a smack with the last blog post, let’s give him some due with this one and use his contribution to categories to look at some the recent goings on in health care.
- IPAB Lite: It seems Oregon has its own version of the Independent Payment Advisory Board. According to the Wall Street Journal,
Oregon’s Health Evidence Review Commission, or HERC, claims to be merely concerned with what supposedly works and what doesn’t. Their real targets are usually advanced, costly treatments. That’s why HERC, for example, proposed in May that Medicaid should not cover “treatment with intent to prolong survival” for cancer patients who likely have fewer than two years left to live. HERC presents an example to show their reasoning for such a decision: “In no instance can it be justified to spend $100,000 in public resources to increase an individual’s expected survival by three months when hundreds of thousands of Oregonians are without any form of health insurance.”
The WSJ notes that ObamaCare expressly forbids IPAB from doing these sorts of things. On the other hand, ObamaCare doesn’t give the President the power to grant waivers to health care plans, to suspend the employer mandate, or allow Congressional staff to put their federal contribution toward insurance on the exchanges. At this rate, IPAB will soon be invading our TV screens commanding us to exercise.
- The Dishonor System. Chris Conover goes into considerable detail on the incentives that some people will face to commit fraud in order to qualify for tax subsidies on the ObamaCare exchanges. It’s a lengthy read but well worth it—however, you might want to read it in parts if you find it too depressing at times.
-ObamaCare Co-Ops. Among the Co-Ops created under ObamaCare, the HHS Office of Inspector General “found that CO-OPs reported limited private monetary support and many CO-OPs’ estimated in their applications budgeted startup expenditures that exceeded available funding.” Furthermore, OIS
saw little evidence of private monetary support in any of the 16 applications we reviewed. Additionally, 11 of 16 CO-OPs reported estimated startupexpenditures in their applications that exceeded the total startup funding ultimately provided by CMS.We saw little evidence of private monetary support in any of the 16 applications we reviewed. Additionally, 11 of 16 CO-OPs reported estimated startup expenditures in their applications that exceeded the total startup funding ultimately provided by CMS.
More here at the Washington Examiner. Oh, and most of the Co-Ops have failed to file required tax documents, according to a Washington Examiner investigation. One wonders what their treatment would be if they were “Tea Party Co-Ops.” Lois Lerner was unavailable for comment.
-Exchanges=Identity Theft Haven? Looks like the federal government won’t know if proper safeguards to protect customers’ identities on the exchanges will be up and running on time. HHS has missed a number of deadlines for implementing these safeguards, and according to another HHS OIG report, if “there are additional delays in completing the security assessment and testing, CMS may have limited information on the security risks and controls before the exchanges open.” Well, we are only about seven weeks from the exchanges opening. Surely nothing else could go wrong, could it?
-Consumers Can Shop For Health Care—Even Big Ticket Items! In 2010, Wellpoint BlueCross entered into an agreement with CalPERS employees to pay for hip and knee replacements in a new way. Noticing that about 46 hospitals and other centers charged an average of $30,00 for these procedures, Wellpoint agreed to pay for the full surgery if the CalPERS patients agreed to have the procedure done in one of the 46 facilities. If the patient went outside of that network, he’d have to pay the difference. Here is a graph from a study of the program. Look at the top two lines:
As John Goodman notes in his blog:
The [top] red line represents the average cost for CalPERS patients who went outside the network (about 30% of the total). Beginning in 2010, they undoubtedly told the providers they had only $30,000 to spend. As the figure shows, the cost of care at these hospitals was cut by one-third in the first year and continued heading toward the average “network” price over the next two years.
This is dramatic evidence that when patients are responsible for the marginal cost of their care (and therefore, providers have to compete on price) health care markets become competitive very quickly. Remember, the insurer is not bargaining with these out-of-network providers. The patients are.
Look at the uppermost blue line. These are (control group) patients who are not telling providers they have only $30,000 to spend. Nonetheless, their price/cost of care begins declining in 2010 as well. This is exactly what would happen in the market for canned corn or for loaves of bread. People who comparison shop affect the price paid by those who don’t.
Now ask yourself this very important question: Who is more powerful at controlling health care costs? Huge third-party bureaucracies negotiating with providers? Or patients paying the marginal cost of their care?
This is where our health-care system should be heading. Under ObamaCare, though, we are headed in the opposite direction.
In an August 10 interview on WMAL, the top talk radio station in the nation’s capital, Project 21 member Derryck Green took on those who would use Trayvon Martin and the rest of black America to advance a political cause that’s not necessarily in the best interests of blacks and the values they hold.
Derryck spoke with former congressman Ernest Istook, who called “Race Fatigue” — Derryck’s recent New Visions Commentary — “very thoughtful” and “very well done.” In it, Derryck criticizes how progressives are overusing race in order to promote politics.
During the interview, Derryck told Congressman Istook:
When you see the NAACP standing for abortion. When you they’re standing… against voter ID laws because of transgendered Americans. When you see the NAACP fighting against school choice. When you see them supporting gay marriage… as opposed to maybe supporting marriage in the black community. Maybe having programs that are targeting blacks to encourage marriage — to encourage blacks to not only marry but to have children within the bonds of wedlock. When you see a so-called civil rights organization taking stands that… [are] almost diametrically opposed to the benefits of its constituents, you have to say that they are no longer a civil rights organization. They are just a progressive organization that’s trying to go out and advance a politically progressive message. And they should change their charter… They don’t represent what’s in the best interest of black America.
This morning on my drive in to work I was listening to WTOP, 103.5 FM, when a story about the possible end of debit cards came up. The hosts interviewed a reporter from the Wall Street Journal who said that while eliminating debit cards would be a drastic move by the banks, you would more likely see the end of things like “free” checking.
The reason for this is “interchange fees”. Or, more precisely, price controls on interchange fees. Interchange fees are the fees banks charge retailers for processing the use of debit cards. The interchange fee used to be about 1.35% of the amount purchased at the retailer. This enabled banks to cover the costs of debit cards and offer other perks such as “free” checking.
Because the price of the interchange fee may soon be set at .03-.06 cents per transaction, banks have to figure out another way to cover their costs. Say welcome back to fees for checking. (For more, see this excellent article by Richard Epstein. Also see John Berlau’s article, The Free Checking Restoration Act).
Unfortunately, the news report on WTOP only once mentioned the Dodd-Frank financial “reform” law that contains the price control on debit cards. And no where did it mention the senator responsible for the amendment to Dodd-Frank that imposed the price control, Illinois’ Dick Durbin.
Durbin still claims that the price control is a win for consumers, although there is, as of yet, no evidence that consumers are seeing lower prices at retailers because of the reduction in interchange fees.
Forty centuries worth of experience should be enough evidence that price controls don’t work. Alas, people like Sen. Durbin never learn.
Update: Welcome Instapundit readers!
Update 2: One of our readers sent us this Youtube video that further explains the Durbin debacle. Enjoy:
An article in The Hill newspaper recently noted that black politicians are unwilling to call out Barack Obama for his failures as president because of the color of his skin and an apparent need for racial solidarity.
As black unemployment remains high and black homeownership low — despite assurances of great change with Obama ran for president in 2008 (change that never happened or was much weaker than predicted), Derryck points out that the average black American actually was earning about $800 more annually (adjusted for inflation) during the same time in George W. Bush’s presidency.
So Obama’s blackness trumps his failure to get black people back to work?
To trivialize the economic plight of so many Americans is disrespectful and shameful. It’s worse when that same group idolizes Obama and wills itself to believe he is virtually infallible.
In assessing who’s the most responsible for this miscarriage of leadership, Derryck adds:
But the CBC has chosen to become a national embarrassment — not only to their constituents, but to Congress as a whole. And that’s saying something.
Black Americans who continue to support political charlatans are complicit in their own socio-economic asphyxiation.
To read all of Derryck’s commentary, click here.
A new commentary by Project 21 member Dr. Elaina George is now posted on the web site of the Daily Caller. In her New Visions essay, Dr. George talks about how ObamaCare is more about increasing government control than it is about protecting the health of the American public.
In “The Cost of ObamaCare’s Control,” Dr. George writes:
One thing they aren’t willing to say is that Obamacare isn’t really about health care — it’s really about centralized government control.
Put simply — Obamacare is a corrupt scheme that has fooled too many Americans into entering a system limiting their health care choices, encroaching upon their freedom, robbing them of their hard-earned money, and destroying their privacy.
As an example of how far ObamaCare could reach into people’s lives and trigger what she considers extreme breaches of privacy and the unconstitutional infringement on basic rights, Dr. George reveals:
If someone was prescribed an antidepressant for something as benign as helping them stop smoking, for example, it could raise a flag and cause them to fail a background check for a gun permit.
But, in the grand scheme, Dr. George notes that ObamaCare is about putting more and more of America under the direct control and supervision of the government. If the quality of health care is diminished as a result, it appears to be a problem that the Obama Administration doesn’t consider all that important. For example:
Because of regulations, compliance costs and the rising cost of doing business — coupled with the dramatic drop in reimbursements — independent private physicians are largely being driven into retirement or into the arms of hospitals or large group practices increasingly part of large hospital systems.
A hospital’s cost structure is vastly different than that of a private physician, with overhead and a fiduciary responsibility to stockholders at the top of the list. A patient’s cost doubles or triples in a hospital-owned practice as opposed to that of a private physician.
To read Dr. George’s column in full, please click here.
In an outrageous degree of spinning even for them, the left-wing spin group ThinkProgress today sent out an email entitled, "The Right Never Rests," promising "seven of the most outrageous stories from just this week."
What did we nasty righties do this time?
According to Think Progress, conservatives are to blame because a suburb near Dayton, Beavercreek, doesn't want three new bus stops carrying riders from Dayton near one of its malls unless they are rather nice bus stops with surveillance cameras.
I'd be shocked and horrified to be a conservative in this situation if ThinkProgress had provided a shred of evidence "the right" is responsible for this local decision making, but it didn't. And I'm not, anyway. Bus stop decisions in Beavercreek should be up to Beavercreek.
The second of "the right's" sins in the email: "Texas police pull over multiple women and search their vaginas for drugs."
Yeah. That's the conservative, limited-government philosophy all right. Not.
The rest of the email at least involves people recognizably involved in GOP politics or conservative policy, although the list remains pretty dumb (to wit, #7 is "Why the Republican National Committee is freaking out over pop culture’s obsession with Hillary Clinton," which is an explanation, not an action), but if ThinkProgress, master spinner, cannot write a list of seven things to blame on us over a week without including some that have nothing to do with us, we must be doing quite a lot right.
P.S. In the case of the local bus stops, the feds are now getting involved. Is anything a local decision anymore?
P.P.S. ThinkProgress makes a big deal of the fact that Beavercreek is mostly white, calling it "lily white." Guess what other town is mostly white? Dayton. ThinkProgress didn't mention that.
Think New Yorkers are tough?
Apparently not in the minds of the leaders of the city’s public school system. These bureaucrats are in the midst of pushing a list of banned words they seem to think will meet the sensibilities of younger residents of the Big Apple.
Administrators are circulating a list of words and topics they feel are upsetting to students and should therefore not appear on standardized tests.
They want some words killed so that evolving intellects aren’t scarred from birthday to birthday. That sentence, by the way, contains three of the banned words (four if you could “birthday” twice).
Some of the other words on the list:
Computers (in the home — school computers are OK)
Disasters (including tsunamis and hurricanes)
Homelessness (because there are no homeless on the streets of New York)
Rap music (and “rock-and-roll” — no discrimination here)
Slavery (this is going to make history classes interesting)
Terrorism (our embassies are closed right now because…)
Vermin (rats and roaches — also unknown to New Yorkers)
For a complete list, click here.
Project 21 member Darryn “Dutch” Martin is appalled that schools may purposely ban talk of issues such as politics, wealth and poverty, religious observances and even personal swimming pools as a nod to political correctness and protecting allegedly fragile feelings — especially when there are so many other problems in government-run schools that need to be fixed.
This is just another example of Big Brother gone wild!
Who gave the New York City Department of Education the right to determine which words are offensive? And compared to what?
Shouldn’t school officials be focusing more on shrinking the academic gap between black and Hispanic students and their white and Asian counterparts in reading, writing, mathematics and overall graduation rates? How about dealing with truancy, encouraging parents to take a more active role in their school children’s education?
Apparently, banning certain words and phrases that might hurt certain students’ feelings is of a higher priority.
photo credit: iStockPhoto
“We issue no holding on §5 itself, only on the coverage formula.”
So wrote U.S. Supreme Court Chief Justice John Roberts in the Court’s recent decision in Shelby County v. Holder, striking down the coverage formula in Section 4 of the 1965 Voting Rights Act. That provision previously required certain states and jurisdictions – selected based on past racial discrimination – to undergo extra-constitutional review by either the Justice Department or a federal court whenever they sought to do anything that might have affected the voting process. The Court ruled that the coverage formula was outdated and unconstitutionally punished states, in violation of equal sovereignty, for actions more than 50-years old.
Most conservatives cheered the decision, while sky-is-falling liberals bemoaned the death of the Voting Rights Act. Neither side got it totally right.
At the time, some of my colleagues called me pessimistic (and they were probably right to a degree), but I was one conservative lawyer who was furious with Robert’s Shelby County opinion.
Roberts did not make a grand legal pronouncement; he committed an act of judicial minimalism – something that is becoming a disturbing hallmark of his tenure as Chief Justice.
In the case, the lawyers for Shelby County, Alabama primarily argued that preclearance itself – Section 5 of the Voting Rights Act – should be deemed unconstitutional. Since the 1960s, under preclearance, all or part of 15 states were required to petition the federal government for approval to any change in their voting laws no matter how minuscule. Shelby County issued a direct facial challenge to Section 5. In their brief, they explained that:
In 1965, “Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits.” Katzenbach, 383 U.S. at 328 (emphasis added). Absent similar evidence in the 2006 legislative record, or at least evidence of discrimination in covered jurisdictions “so extensive that elimination of it through case-by-case enforcement would be impossible,” Nw. Austin, 557 U.S. at 225 (Thomas, J.), there is no basis for upholding Section 5. If the efficient prevention of isolated violations could sustain the invasive preclearance obligation, then Section 5 would be a constitutional remedy even where the legislative record documents the existence of minimal voting discrimination. Such a result cannot be reconciled with Katzenbach or any other decision.
They further explained why the lower court’s vote to uphold Section 5 was in error:
Under the lower court’s constitutional reasoning, preclearance could be imposed to counteract any perceived threat of Fourteenth or Fifteenth Amendment violation given the lure of prior restraint. Instead of creating a right of action to remedy discrimination against the disabled in accessing judicial services, Lane, 541 U.S. at 517, or against women in the workplace, Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724 (2003), Congress could suspend the right of state and local governments to make physical changes to their facilities or make changes to their employee leave policies “until they have been precleared by federal authorities in Washington, D.C,” Nw. Austin, 557 U.S. at 202. But Katzenbach teaches that an unprecedented preclearance remedy requires evidence of systematic violations not remediable by less restrictive means. Federalism interests cannot be trampled solely in the interest of an efficient remedy.
In other words, since Congress did not properly evaluate the racial conditions when it reauthorized the Voting Rights Act in 2006, and ample record evidence showed that preclearance had long outlived its temporary, extra-constitutional usefulness, the High Court was the proper venue to strike Section 5 and return the states to equal footing under the equal sovereignty doctrine.
Roberts obviously had other ideas.
Instead of ruling on the constitutional matter squarely before him, Roberts simply ruled that Section 4’s coverage formula was outdated. Note that he didn’t even rule that Section 4 itself was unconstitutional. Congress is free to reevaluate states and jurisdictions whenever it wishes, develop a new Section 4 formula, and place a whole new crop of regions under Section 5’s preclearance regime. While the current makeup of Congress makes this unlikely in the immediate future, one only has to look back at the composition of the legislative and executive branches in 2008 and 2009 for a reminder of what pure progressive power can accomplish in short order.
It is well known that Roberts doesn’t want the Court to be seen as a political body. Many feel that this is the reason he found such a convoluted way in which he uphold ObamaCare (striking the congressional power grab under the Commerce Clause, but upholding the law under the taxing power). But beyond trying to avoid politics, close observation shows that the Court under Roberts has a pattern of so-called judicial minimalism – a legal theory that he praised during his confirmation hearings.
In short, judicial minimalists decide cases on narrow, one-time circumstances so as to not offend stare decisis (respecting judicial precedent).
Consider the Court’s recent affirmative action case, Fisher v. University of Texas at Austin. In a case arguing the constitutionality of affirmative action programs for higher education, the Court made no ruling whatsoever in regards to the constitutionality of affirmative action for higher education. Instead, the majority simply remanded the case for review under strict scrutiny – which is already the established standard in such cases.
Likewise, in Hollingsworth v. Perry, the recent case challenging the constitutionality of California’s Proposition 8 which defined marriage as between one man and one woman, the Court simply dismissed the case for lack of standing and made no ruling on the merits (a decision which I believe is legally correct, but further highlights the Court’s minimalist approach under Roberts).
(For more on Robert’s minimalism, read this Washington Post article by legal expert Cass Sunstein.)
Shelby County is just another paradigm in this progeny.
At his U.S. Senate confirmation hearings in 2005, Roberts championed this concept of judicial minimalism – noting that his job is to be an umpire – “to call balls and strikes and not to pitch or bat.” Too often though, Roberts appears to be playing football or basketball, and not baseball.
Robert’s remarks from his Senate hearing have not always translated well during his time on the bench. In Shelby County, he was asked by the plaintiffs to make a ruling as to whether Section 5 of the 1965 Voting Rights Act was still constitutional in 2013. That was his job, but he didn’t want to call a ball or a strike. He looked at the issue before him and decided that a field goal went wide left.
Under the political question doctrine, judges sometimes demur on legal or policy questions that are really more of legislative issues. That is appropriate. But what is our tripartite government to do when the Chief Justice of the Supreme Court seems content to consistently shirk his primary responsibility?
In the Shelby County aftermath, the executive branch has continued to lord its excessive powers under the Voting Rights Act – exactly what I feared when the case was decided.
Shortly after the decision, Attorney General Eric Holder petitioned a federal court to require Texas to remain under preclearance standards as it was prior to the few days respite after the Shelby County decision was released. Expect Holder to take similar action against many more states – perhaps even states not previously covered under Section 4.
Once a governmental body grabs power, it is nearly impossible to take it back. And Attorney General Eric Holder is playing hardball. He has worked hard to perpetuate the notion that America is still a racist nation which is hostile to blacks – and he is not going to let the Shelby County decision get in his way of running the Department of Justice based on that judgment.
Since Roberts refused to rule on Section 5’s preclearance provision, Holder is using the so-called “bail-in” provision of Section 3 to try and put Texas back under the thumb of the Department of Justice – requiring it to preclear any future voting changes with federal officials – for at least another decade.
Under Section 4, it was the state’s duty to prove that any change they sought in voting rules was not discriminatory. Under Section 3, the Justice Department must convince a judge that a state has engaged in recent intentional discrimination in order to place that jurisdiction under federal preclearance control.
That is the only difference from the pre-Shelby County era; which party must prove/disprove discrimination. And it will likely be easier for Holder to “prove” intentional racial discrimination – at least in the eyes of progressive judges – than one might think.
Consider all the states that have enacted, or are working to enact, voter ID laws. In the last few years, more than 30 states have introduced some form of voter identification law. Liberal legal leaders such as Rick Hasen and Attorney General Holder view voter identification laws as ipso facto evidence of racial discrimination. In fact, Holder is relying on past litigation addressing, in part, Texas’s voter ID efforts as proof of recent intentional discrimination.
Starting his Section 3 bail-in march in Texas, it is easy to conceive that Holder will traverse the countryside, declaring every state that dares place an ID requirement on voting to be racist. This would dramatically increase federal power over voting – and liberals claimed that Roberts gutted the Voting Rights Act.
The current litigation in Texas, and the likely litigation in other voter ID states, could have all been avoided if Chief Justice Roberts had simply called a ball or a strike and struck out the outdated preclearance provisions of the Voting Rights Act. After all, that’s how he once described the job he now holds.
Let’s just hope the next time the Supreme Court considers a facial challenge to the Voting Rights Act, perhaps a challenge to his own decision in Shelby County and how the Obama Administration responded, Roberts remembers his pledge to be an umpire. Someone has to take the bat out of Attorney General Holder’s race-obsessed hands.
As Rachel Jeantel’s testimony in the George Zimmerman trial made clear, “cr-cker” is a racially-charged term. Yet a senior liberal lawmaker felt entitled to use it when referring to the Tea Party movement during an interview with a major Internet media web site.
In an interview with The Daily Beast, Representative Charles Rangel (D-NY) tried to equate Tea Party activists who oppose government policies such as the takeover of private health care in America and poorly-administered spending programs to civil rights era segregationists. Rangel said about the Tea Party: “It is the same group we faced in the South with those white cr-ckers and the dogs and the police.”
It’s going to be hard for Rangel to prove the Tea Party has a police force, but what is more surprising is that the liberal lawmaker – who has served in Congress since before Dr. Martin Luther King, Jr. was assassinated – could think it is appropriate to throw out a racial term such as “cr-cker” (which has so recently been a topic of national discussion) in referring to his political enemies.
Unless it’s for crass purposes of political assassination, of course.
It is not surprising that lazy, shiftless politicians who have an abysmal record for their community would want to diffuse the issue of what they are doing for their communities by dropping the race card. I’m making a direct connection between the way games were played with poor whites in the South. [White Southern Democrats] would drop the “n-gger card” back then. Now, black Democrats have learned that trick and are dropping the “cracker card,” with their black constituents.
Niger, a Tea Party activist and chief political strategist for TheTeaParty.Net, said he has never been referred to as a “cr-cker” in the past.
Other members of Project 21 who are black and yet still affiliate with the allegedly “white cr-cker”-dominated Tea Party movement, are also speaking out against Rangel’s incendiary and clearly unhelpful contribution to American political discourse.
Emery McClendon is a Project 21 member and a Tea Party organizer in northern Indiana who received an award from Americans for Prosperity for his activism on behalf of smaller and more responsible government. Emery said:
Perhaps Charlie Rangel needs to recheck his American history before he speaks. The Tea Party is composed of conservative, God-fearing people – not those who rallied with the likes of Bull Connor and other southern Dixiecrats in the 1960s. Unlike the Ku Klux Klan, the Tea Party movement invites all citizens to become involved in its activities. I am not aware of a single racial event tied to the Tea Party movement since it began in 2009.
Demetrius Minor, a Project 21 member who has also attended his share of Tea Party events in southern Virginia, said:
The remarks made by Representative Charlie Rangel present a tarnished and divided stance on racial relations in America.
We should focus on strengthening and uplifting one another, and this comment unfortunately moves us towards regression – not progression. We should always condemn racial bigotry and embrace a more peaceful and harmonious society.
We should all be embarrassed and disgusted by Representative Rangel and his pathetic attempt to lie his way into importance. He is indifferent to the truth and wouldn’t know a true Tea Party patriot if they smacked him on the face. His constituents should call for an apology for his racial disparity of whites and demand more from their elected representative. He has outed himself as the racist bigot. Enough is enough.
It’s the first Friday of the month — time for the government to announce the unemployment figures during the previous month.
For July, the overall unemployment rate fell to an all-time Obama low of 7.4 percent. Before breaking out the party supplies, the President’s supporters should not forget that this figure is far above where his policies were supposed to put the jobless rate by now. It’s also possibly so low because there are so many people giving up on looking for a job (the expanded unemployment figure is still up at an alarmingly high 14 percent!).
And the expected shift of more and more jobs from full-time to part-time in an effort by business owners to deal with ObamaCare insurance regulations is continuing.
Americans endured yet another month of a national unemployment rate still well above seven percent. The Bureau of Labor Statistics announced that the official unemployment rate for July of 2013 was 7.4 percent.
The more accurate “U-6” measurement of total unemployment — including those who are jobless, underworked, those who can only find (or are forced into) part-time rather than full time work and those who have given up looking for work altogether clocked in at a devastating 14 percent. And the number of actual jobs created fell below expectations.
Also, black unemployment is well above 12 percent. At least, at 12.5 percent, it’s finally below the seemingly-permanent 13 percent barrier. It’s the major good news of the unemployment report. Since Obama was elected president, black unemployment was below 13 percent only once before — during the partial month in which he was first inaugurated.
Black teens in particular didn’t fare as well. Their unemployment rate is still extremely high at 41.6 percent, making it the 30th time that black teen unemployment topped 40 percent since the President’s first month in office.
Adding to the already-grim news on jobs is the fact that more Americans are living paycheck to paycheck. And four out of five Americans are struggling with economic insecurity characterized by fears and the experience of poverty, joblessness and government dependency.
And how serious is the President in his attempts to reduce the financial strain and economic pessimism of anguished American workers?
Just this week, President Obama laughingly dismissed the job-creating potential of the Keystone XL pipeline. Claiming the pipeline would only create between 50 and 100 permanent jobs, he seems to think it isn’t significant enough of a job creator to justify or support its construction.
The idea that the Keystone XL pipeline will create no more than 100 jobs is intentionally misleading at best. It’s outright lying at worst, and several credible sources dispute the Obama’s claim (including reports from his own staff).
Furthermore, seeing that workforce participation rate is at a 30-year low and the economy has more than 9 million fewer people in the workforce now than it did since Obama took office, any job created in the private sector is a step in the right direction.
In reality, there are credible estimates (from the Obama State Department, no less) that indicate the Keystone XL pipeline would create upwards of 13,000 jobs of a full and extended-term nature and support over 42,000 jobs on the periphery — creating over $2 billion in worker’s income and close to $70 million in state and local taxes over a two-year period.
These facts demonstrate that construction of the Keystone XL pipeline, in terms of job creation, is a force multiplier. Thousands of jobs — temporary or not — will be created across America in fields such as construction, manufacturing, transportation, management and administration of the completed pipeline and the various support roles. It will create new income all over the country.
Obama’s downplaying of this potential spotlights his cavalier and disingenuous dismissal of the pipeline and the jobs it can create and further exposes the President’s ignorance regarding simple economics. It also seems to betray his professed commitment to an “all of the above” energy strategy.
Equally as important is the Keystone XL pipeline could reduce the cost of oil and gas, which would then increase discretionary income. This factor allows people to save more, invest or simply spend as they see fit. This could create a fiscal surge that increase consumer confidence to show the economy is getting better.
But, rather than embrace the benefits of this possibility, Obama fabricates and chuckles.
He chuckles — undoubtedly with the knowledge that his ideological fixation with “green energy” cost the American taxpayer $26 billion in “shovel-ready” stimulus dollars that actually only created less than 3,000 jobs — at a cost of almost $11.5 million per job.
How many jobs has the President’s recycled campaign speeches created?
And over the next several weeks at a time when the Obamas are on yet another vacation in Martha’s Vineyard, too many Americans — those fortunate enough to be working — will be introduced to a reduction in their hours thanks to Obama’s vision of government-administered health care for America.
It’s a vision that not even congressmen and their staffers are fond of now that they’ve had a chance to read the bill that they passed.
Nero fiddled as Rome burned.
At least Nero did something. Obama just laughs.
I stopped reading Paul Krugman a while ago as his column has descended into all out hackery. But his most recent piece appeared in my Google Alert for “health care” and seeing the first few lines of it, I couldn’t resist reading.
It is worth taking a look at, not because it says anything worthwhile about health care (just like most of his columns). Rather, it’s a great example of that psychological concept known as “projection” To wit:
Yet even as Republican politicians seem ready to go on the offensive, there’s a palpable sense of anxiety, even despair, among conservative pundits and analysts. Better-informed people on the right seem, finally, to be facing up to a horrible truth: Health care reform, President Obama’s signature policy achievement, is probably going to work.
And the good news about Obamacare is, I’d argue, what’s driving the Republican Party’s intensified extremism. Successful health reform wouldn’t just be a victory for a president conservatives loathe, it would be an object demonstration of the falseness of right-wing ideology. So Republicans are being driven into a last, desperate effort to head this thing off at the pass.
Funny, has Krugman not been paying attention to the news recently? Has he missed the Obama Administration’s suspension of the employer mandate? Have the articles about the GAO reports regarding the lackluster progress that states and the federal governments have made on implementing the exchanges failed to catch his eye? One can forgive him for overlooking the unions that are now complaining about how ObamaCare will harm their multi-employer plans, as that hasn’t received a good deal of news coverage. And those are only the most recent problems with ObamaCare. The Heritage Foundation has a great list of all that had gone wrong with the law through early July of this year.
The fact is Krugman hasn’t missed most of this news. He’s well aware of it, to the point that he is the one who has a “palpable sense of anxiety, even despair.” He’s the one that will eventually have to face up to the “horrible truth” that ObamaCare won’t work. Indeed, the failure of ObamaCare will be “an object demonstration of the falseness of” left-wing ideology, if it isn’t already.
As evidence that ObamaCare will work, Krugman touts the exchanges, one of the few things that haven’t gone wrong—yet:
The question is whether the Massachusetts success story can be replicated in other states, especially big states like California and New York with large numbers of uninsured residents. The answer to this question depends, in the first place, on whether insurance companies are willing to offer coverage at reasonable rates. And the answer, so far, is a clear “yes.” In California, insurers came in with bids running significantly below expectations; in New York, it appears that premiums will be cut roughly in half.
Unfortunately for Krugman, more bad news about the exchanges came out the day his column ran. Perhaps Krguman believed President Obama when he said the exchanges would make shopping for insurance like “Travelocity.” But now it appears they won’t:
Struggling with a deadline crunch, some states are delaying online tools that could make it easier for consumers to find the right plan when the markets go live on Oct. 1….
“The bottom line is that with tight timelines … states have had to scale back their initial ambitions for Day 1,” said Paul Hencoski, leader of KPMG’s government health practice, which is advising nearly 20 states. “A lot of the more sophisticated functionalities that might have been offered through the Web are being deferred to later phases.”
When the markets first open, Hencoski said, “there will be a significant amount of manual processing of things that will later be automated.” Translation: emails, phone calls, faxes.
And, depending on your perspective, there was more bad news. About 220,000 people are in state high-risk pools; that is, 220,000 people who are expensive to cover with insurance. Some of them, maybe all, will be going on to the exchanges next year. That’s in addition to the roughly 100,000 who are in the ObamaCare high-risk pool (known as the Pre-Existing Condition Insurance Plan.) You may recall this was the program that was expected to enroll nearly 350,000 people and had $5 billion allocated to it? Even without full enrollment, the program was so expensive that new enrollment was suspended back in February.
If you are a member of one of those high-risk pools, moving to the exchanges could well be good news. But if you are a booster of the exchanges then it isn’t so rosy. When these folks join the exchange premiums will rise, and probably rise precipitously. Once that happens, expect the young and healthy to stay out.
Alas, when the exchanges turn into a disaster, don’t expect Krugman to admit he was wrong. Rather, he’ll find some way to blame it all on conservatives and the GOP. That’s what projection is all about.
Just posted on The Daily Caller’s web site is a new commentary from Project 21’s Hughey Newsome that shows how some politicians are more than willing to play the race card in order to overcome their stunning failure to lead.
Using his former home of the Detroit metro area as an example, Hughey chronicles how now-jailed former Detroit mayor Kwame Kilpatrick was quick to find other people to be at fault for the failures of his city’s ruling class.
In the commentary, Hughey noted:
Take, for example, the 2008 State of the City address by then-mayor Kwame Kilpatrick. With Detroit facing a perilous fiscal future and him facing ethics complaints, Kirkpatrick highlighted race. He sparked controversy by using the “n-word” while referencing an insult he received from some random person.
Kirkpatrick vowed to stand strong against this attack, and asked citizens to stand by him against a “lynch mob mentality.” He essentially used that slur to leverage racial tension, inciting and dividing the mostly-black city against mostly-white suburbs. After all, it was the people in the suburbs — many who either worked in Detroit or had economic ties to the city — who were frustrated with mounting city corruption and mismanagement.
The citizens of Detroit rallied behind their mayor. It was racial politics — pure and simple.
Five years later, Detroit is in the midst of bankruptcy proceedings, and Kilpatrick – who resigned six months after his controversial address — was convicted of a series of felonies that may put him in prison for the rest of his life.
Kilpatrick is not the one bad apple who destroyed Detroit. Using race to cover for failure is commonplace.
But Hughey does not limit his criticism to Detroit. He also finds rot at the top.
Critical of President Obama’s surprise speech after the George Zimmerman verdict, in which Obama personalized the issue — as he regularly does, Hughey suggests the result may have driven races in America even further apart:
Obama’s words of division and distrust – to advance a political agenda — diminish an opportunity to address real biases principally driven by media and entertainment.
Too much time is spent complaining about and looking for the overt racism that has largely been banished from our society. Perversely, this effort to protect minorities from the bigot under the bed promotes the “soft bigotry of low expectations” that Obama’s predecessor sought to stamp out.
Americans must recognize attempts to manipulate past pain for political gain. How else will leaders focus on 21st century problems rather than self-serving agendas?
To read the entire Newsome column on The Daily Caller, click here.