#FullRepeal Daily Digest

The Transom: THE LAW IS WHAT WE SAY IT IS

• One of the underrated aspects of the current debate over Obamacare’s subsidies triggered by the Halbig decision is that we are dealing with an argument about a piece of legislation which was never intended to become law in its existing form. Scott Brown's election to the Senate completely disrupted the process, preventing conferencing on the bill and leaving Democrats with the option of an up or down vote to ram through this stillborn piece of gobbledygook. If you were going to really go by the original intentions of the people who drafted this, the whole thing would have to be repealed, because they never intended it to become law.
• But striking down the subsidies, despite the political rationale of those who support the law, would not result in Obamacare’s collapse. Halbig is a significant case, yes, but it is not a case that represents another up or down vote on Obamacare: it is a case which would transform Obamacare into an opt-in program along the lines of the Medicaid decision. I don’t believe this was the intent of the drafters, but it was the result. For the Supreme Court to endorse Halbig, it would be a vindication of the view that the law isn’t just what we say it is – it is what it is. That doesn’t erase Obamacare, but it does dramatically alter the effect of the law.
• [RELATED] RedState: Halbig's Critics Hoist By Their Own Petards
  • As a practical matter, the first problem with this argument – that Congress would never, ever, ever have intended to cut off healthcare funding as a club to get states to join the program – is that it ignores the fact that this is precisely what Congress did in the Medicaid section of the statute. The ACA’s Medicaid expansion didn’t just condition new Medicaid funding on states agreeing to Obamacare’s new rules for Medicaid eligibility. It went even further, and stripped away every penny of federal Medicaid funding for states that would not go along.
  • Is it plausible that Barack Obama, Nancy Pelosi and Harry Reid wanted to completely defund Medicaid anywhere in the country? Of course not. Did they pass a statute doing just that? They did. Did the Administration defend that statute in court? Yes it did (and lost; the Supreme Court threw out that part of the ACA). But they did it because they expected that the leverage of holding hostage 20-25% of a state’s budget would be so powerful that all 50 states would have to go along. It is hardly a fantasy to think that the exchange subsidies were drafted with a similar thought in mind and a similar assumption that every state could be made to go along, so the federal exchange would never be more than a short-term stopgap (recall that early drafts of the law did not even include a provision for a federal exchange).
• [RELATED] The Federalist: Halbig Shows How We Legislate Now
  • No matter how many impenetrable pages of verbiage were contained in the original law, it’s all equivocal and meaningless and can be endlessly reinterpreted by executive bureaucrats, so long as they believe they are working toward the aspiration named in the law’s title: “affordable care.” That, ladies and gentlemen, is how we legislate now. What used to be a “law” is now just an open-ended grant of power coupled with a vague aspiration. Nothing in between, none of the actual concrete provisions of the law, has any meaning or makes any difference.
  • If you understand that context and that mentality, then you can see why ObamaCare’s defenders were so confident—and in many cases remain confident—that they get to skate on following the actual letter of the law. They believe no one will hold them to it, not the courts, not the press, not the public, because that’s the system they’re already living in. It’s the way we legislate now, which is to say that we don’t pass any real legislation at all.

Senator Tom Coburn in Real Clear Politics: A Lack of Funding Isn't the VA's Problem [Senator Coburn may even be too kind to the central planning inherent in any VA system that does not radically reform the current structure to empower all veterans a choice in where and how they receive care]

• The numbers show the VA has hardly been strapped for cash. Funding for the VA has gone up 57 percent since 2008. And at facilities where the worst abuses occurred, such as Phoenix, funding was ample enough to finance to lavish bonuses for the very officials who should have been held accountable for harming veterans.
  • Moreover, the problems at the VA are not understaffed and overburdened hospitals as much as much as poor management and a lack of accountability and oversight. While funding increased 57 percent since 2008 the number of patients treated at VA facilities went up only 13.8 percent. In other words, funding growth outpaced the growth in patient load by a more than four to one margin.
• Also during this time period, the number of full-time physicians at the VA went up 40 percent – again, far more than the patient load. And these significant funding increases went through even though VA doctors, on average, see half as many patients as their private sector counterparts. Poor management is a problem more funding won’t solve.
• The benchmark of real reform at the VA is an effort to solve the real problem, which is Congress’ failure to empower VA officials to manage, and Congress’ failure to give veterans real choices. Both of those problems can be solved by making it easier for VA officials to fire bad actors and by giving veterans real choices and spending power when they face long wait times.

NCPA: Consumer-Driven Health Care Round Up

• AHIP released its latest version of the annual HSA enrollment census. The results are impressive, though still understated since they only received responses from 71% of the companies. It finds enrollment growth of about 15% every year, now reaching 17.4 million. Perhaps the most interesting aspect is the state-by-state breakdown of market penetration. The old Red State/Blue State divide does not hold up when it comes to market behavior. Some of the states with low enrollment include Mississippi, Alabama, and South Carolina, while some of the highest enrollments are found in Minnesota, Illinois, and Maine.
• AHIP also released, along with the American Bankers’ Association, a report on HSA account activity. One notable tidbit from this report is the size of the contributions, both personal and from employers. The average personal contribution in 2012 was $2,337, and the average employer contribution was $1,142. Also interesting is that only 19% of all the accounts had $0 balances at the end of the year, indicating that most people are retaining funds in their accounts at least for future use, if not for long-term savings.
• Reno County, Nevada expects to save $327,000 in insurance costs next year, the third year in a row its costs have actually gone down as a result of switching to HSA coverage combined with a wellness program.