The Audacity Of Blame

Molly:     I take it you’re a feminist.

Roy:        I’ve been called many things, but I ain’t never been saddled with that one.

Molly:      You should try being saddled sometime; smell of leather, sting of a whip.

        —Rene Russo as Dr. Molly Griswold, and Kevin Costner as Roy “Tin Cup” McAvoy in Tin Cup


If you like watching the Progressive Left fail and flail, FUBARCare is already proving to be the gift that keeps on giving.  In recent developments: 

  • HHS’ Henry Chao testified before Congress that 30% to 40% of the FUBARCare website hasn’t even been built yet, including the mechanisms to allow you to pay for your new medical insurance policy (thus ensuring that you are actually covered), despite the law having been passed nearly four years ago, scheduled for launch October 1 (some 7 weeks ago), and the policy requirements taking effect 40 days from today;
  • Several cybersecurity experts testified before Congress that the website has major security flaws and is so badly at risk that it should be shut down;
  • The Leftist and cyber-savvy People’s State of Oregon has signed up exactly zero people on its State exchange to date;
  • A single mother in Washington State whom Obama hailed as an anecdotal FUBARCare success story had to drop her new coverage after changes in her subsidy made it unaffordable; and my personal favorite:
  • The website crashed on HHS Secretary Kathleen Sebelius when she tried to help a woman sign up during a staged-for-the-media event in Miami.

And that’s just some of the headlines from the last couple of days. 

CBS News, of all places, now reports Obama’s approval rating at 37% and dropping, while 61% now disapprove of FUBARCare.  Both are all-time lows.  7% somehow manage to say they think FUBARCare is working well, but I’ll bet you dollars-to-donuts 99% of them don’t know what it is, and the other 1% are Congressional Democrats.  Fully on the defensive, Obama on Tuesday amazingly actually had the steel kiwis to try to blame all the problems with FUBARCare on the Republicans

Are you kidding me?  The Republicans are to blame for FUBARCare?  Really?

Even for Obama, that level of impudence in refusing to accept responsibility for anything is breathtaking.  I’m half surprised he isn’t trying to blame George Bush specifically.  But, following up on a post from last week, here is where the GOP needs to ramp up its messaging and hoist Obama and the Democrats on their own petard.

I would launch a media blitz making sure the public understands what’s going on with this thing and who owns it.  First, I would stop calling it “Obamacare” and refer to it as “DemocratCare” (I prefer my “FUBARCare” label, but that won’t work for this purpose).  Then I would take to every conceivable media outlet and even take out TV time to point out:

  • Not one Republican participated in the drafting of DemocratCare—the Democrats wouldn’t permit it;
  • Not one Republican voted to pass DemocratCare—to the contrary, they did just about everything they could to prevent it;
  • Not one Republican participated in creating the tens of thousands of pages of regulations implementing DemocratCare;
  • Not a single Republican in Congress participated in the creation—or lack thereof—of the failing website, nor are they the ones crashing it;
  • Republican governors sued to try to stop DemocratCare;
  • Republicans in Congress tried to repeal DemocratCare–the Democrats in the Senate wouldn’t even take up debate;
  • Republicans in Congress tried to stop DemocratCare by defunding it—the Democrats shut down the government until that effort was ended; and
  • Republicans in Congress tried to delay DemocratCare—the Democrats refused, despite knowing since March that the website wasn’t ready and wouldn’t be ready.

The President is trying to shift the blame for this mess to the GOP, when the GOP had literally nothing to do with it.  To the contrary, the Republicans tried at every opportunity to protect you from this; it was the Democrats who forced this upon you over Republican opposition:

  • It was the Democrats who wrote DemocratCare behind closed doors;
  • It was the Democrats who told you DemocratCare had to be passed before you could even find out what’s in it;
  • It was the Democrats who passed DemocratCare in the Senate in the middle of the night without anyone having read the thing;
  • It was the Democrats who bragged that DemocratCare was “a big f#cking deal”;
  • It was the Democrats who campaigned in 2012 on how great DemocratCare was going to be.

Well, DemocratCare was passed and we’re now seeing what’s in it.  How’s that working?

  • It was the Democrats who, with nearly four years to work on it, couldn’t competently manage the construction of a website (even Al Jezeera, Al Qaeda, ebay, Amazon, the Girl Scouts, and the endless Obama campaign manage to do that);
  • If you are one of the millions who under DemocratCare have now lost a medical insurance plan you liked, or the 50 to 100 million now projected to lose their coverage in the future, it was the Democrats who lied to you that you’d be able to keep it;
  • If you are one of the millions who have seen a dramatic increase in the cost of your medical insurance, it was the Democrats who lied to you that DemocratCare was going to decrease costs for most Americans;
  • If you are one of the millions whose doctors are not included in the only medical insurance plans now available to you under DemocratCare, it was the Democrats who lied to you that you’d be able to keep your doctor;
  • If you are one of the millions who have either lost your job or had your hours reduced so your employer could avoid DemocratCare’s mandate for businesses with 50 or more full-time employees, it was the Democrats who lied to you that DemocratCare would create jobs;
  • If you become one of the millions who have to pay a penalty—er, tax—it was the Democrats who lied to you that DemocratCare would not increase taxes;
  • If you have children who will now be saddled with trillions of dollars of additional debt (that’s almost all of you), it was the Democrats who lied to you that DemocratCare would not add a dime to the deficit;
  • If you or someone you love becomes one of those who ends up dying because a shortage of doctors prevents you from obtaining a necessary procedure, it was the Democrats who lied to you that this kind of thing wouldn’t happen under DemocratCare;
  • And even if you’ve been fortunate enough not to have been personally impacted by DemocratCare (and you’re not, you just haven’t realized it yet), if you voted based on what you were told about it, it was the Democrats who lied to you about it all (and, for the more inquisitive among you, ask yourself “why did they lie to me about all these things?”).

And I’d intersperse these messages with Max Headroom-style stuttering sound bites of the President, Secretary Sebelius, DNC Chair Debbie Wasserman-Schultz and any other Democrat I can find saying “I-I-I-I-I-I’m responsible-I’m responsible-I’m responsible for this.”

The Democrats own this, and the Republicans have to be able to message it.  It’s a winning issue that should cripple the Progressives for decades, but the GOP has to sell it hard, and sell it now.

If they can’t saddle the Democrats with this, they’re done.  And so are all the rest of us.


Your Liberty Is Being Decreed Away

“I don’t want to sell anything, buy anything, or process anything as a career.  I don’t want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed.  You know, as a career, I don’t want to do that.”

      —John Cusack as Lloyd Dobler in Say Anything


Somebody has to put a stop to this.

On Thursday, the President purported to bail out Congressional Democrats drowning in a tsunami of outrage over millions of people losing their medical care insurance due to the minimum coverage requirements of FUBARCare.  Following up on a proposal discussed in the last post, Obama made an executive decree authorizing the continued sale of discontinued policies made illegal under the law.

The trouble is the Democrats, having created the problem in the first place, can’t fix it by reinstating the plans.  They don’t have the constitutional authority to do so, and their insistence on doing it anyway is frightening.

They can’t do it via legislation, as we discussed Senator Mary Landrieu (D-LA) pushing.  The one thing Chief Justice John Roberts got right in his majority opinion in National Federation of Independent Business v. Sebelius was that the Commerce Clause does not give Congress the power to compel economic activity.  Because of that, it could not be used as a constitutional basis for upholding the individual mandate.  Senator Landrieu’s proposal simply amounts to an insurance company mandate, and the same analysis would apply.

I suppose one could argue that an insurance company mandate could be supported like the individual mandate was by enforcing it via a tax—Roberts was still wrong on that, by the way—but as a practical matter I don’t see how you would make that work.  It’s one thing to require individuals each of whom has to file their own tax return to submit proof of insurance with the return or have to pay their individual penalty.  But how do you enforce a tax on an insurance company to compel the reinstatement of hundreds of thousands of canceled policies?  How would you even compute such a tax, particularly when some people may have made other arrangements and don’t renew?  And there remain the disastrous long-term economic effects of compelling reinstatement, which we touched on in the last post.

Nor can the President do it.  Like Congress, he doesn’t have the authority to compel economic activity; the Commerce Clause doesn’t even apply to the President.  But he avoided that by not going as far as requiring insurance companies to reinstate policies, only decreeing that they would be permitted to continue selling policies that do not meet the statutory minimum coverage requirements.  He calls it “enforcement discretion,” and it is a power that doesn’t exist under the Constitution.  Scour Article II—you will not find it. 

Once again, we see this President unilaterally amending legislation—legislation he signed into law—creating a line-item veto by executive fiat, a power he simply does not have.  The President is only empowered to execute—that’s what an “executive” is—the laws passed by Congress.  He is not empowered to edit them, nor is he empowered to pick and choose which laws he will execute and which he will not.  One wonders where all those Democrats who little more than a month ago were shrieking at Ted Cruz that “It’s the law of the land!” are now. Thursday’s announcement and whatever order or communication that will go out to implement it are absolutely and unequivocally unconstitutional.

Notice a couple of things about the President’s “fix.”  One, it doesn’t lift the minimum coverage requirements; it only says that the penalties won’t be enforced.  It will remain illegal to have such a policy, and it will remain illegal to sell such a policy.  I don’t know about you, but I don’t know how comfortable I’d be holding or selling an illegal policy based on this President’s (unconstitutional) assurance—revocable at any time at his whim—that I won’t be punished for it.

Two, this “amnesty” plan is only good through 2014, once again conveniently pushing the issue off just long enough to get them through yet another election cycle.  And it likely does little for the millions who have already had their policies terminated.  Like everything else with this President, it’s a substance-less veneer; a cynical mirror hastily erected to divert your attention from the bigger issue.

And that bigger issue resides in the underlying thought process reflected in FUBARCare and the most recent band-aid.  Under FUBARCare, Congress took upon itself the power to compel individual private citizens to purchase a product regardless of whether they wanted it or could afford to pay for it, under penalty of law.  Let’s stop there for a moment; where does that end?  If Congress can make you buy medical care insurance, can’t it through the identical mechanism make you buy any other product or service it chooses to favor with an artificial compulsory market?  Suppose the UAW goes to Congress and says “We need more people buying cars”—what’s to stop Congress from enacting an individual automobile purchase mandate requiring every person over the age of 26 to buy a new car every three years or face a $15,000 fine, er, tax (with, of course, the appropriate federal subsidies, etc.)?

Pressing on, we see that the proposed solutions to the policy cancellation issue simply flip the analytical equation that led to FUBARCare in the first place.  Having compelled people to buy the product, the Progressives’ instinctive fix for the cancellations was then to compel people to sell the product.  True enough, Obama’s illegal exercise of fiat has—for now—stopped just short of compelling private insurance companies to sell the old policies, but compulsory sales was in fact the concept behind Senator Landrieu’s legislative proposal.  She wanted to force insurance companies to continue to sell policies they would otherwise cancel, and do so even at a loss.

Just like compulsory buying, this compulsory sale idea is subject to logical extension, and the place it leads isn’t pretty.  If government—whether via legislation or executive order—can compel a private insurance company to sell a policy, then it can compel any other private enterprise to sell a product, again even at a loss.  And if it can compel a private corporation to sell a product, it can compel any organization to sell a service.  And if it can compel a private organization—a private group of people—to sell a service, then it can compel a private individual to sell a service—force him to work—and again, to do so even at a loss.

Rusty, that’s crazy.  No one would ever suggest the government force individuals to provide a service against their will.

Really?  Well there are Progressives already openly campaigning on the premise that government should force doctors to accept Medicare and Medicaid patients—force them to provide a service—even if those doctors can’t break even under those programs’ payment structures.  It’s not far from there to say that doctors have to accept all patients, regardless of who they are or whether they can pay at all.  And if they can do it to doctors, well guess what, Sport . . .

It’s called a “command economy,” and it’s a hallmark of totalitarian communism.  Once government controls both sides of the transactional equation, once it acquires the power to compel both the purchaser to buy and the seller to sell, then all freedom is lost.  There is no private property, because both your money and your goods are subject to being forcibly exchanged in compulsory transactions; they belong to the government, to be disposed of as it sees fit for the collective good.  There is no liberty, because your labor—your fundamental control over yourself—is subject to being forcibly devoted to the service of someone else, whether you receive adequate compensation in return, or even any compensation at all; it likewise belongs to the government, to be disposed of as it sees fit for the collective good.  We all become slaves, each chained to the other, with the whip hand belonging to the Progressive ruling elite.

The Constitution was meant to protect you from this.  And it’s being openly, contemptuously ignored, with hardly a word in protest.  Once this genie is out of the bottle, friends, there ain’t no going back.  Write and call your Representative and your Senators; tell them they have to speak out and take action in defense of the Constitution.

We have to stop this now.  If it’s not already too late.

Truth And Consequences

“Hey, Howard, I thought you were a gentleman.  Sure it’s gone down a little bit, but you got the tip from your printer, I didn’t.  Yeah, you did.  That’s what you said.  I didn’t tell you to buy it, why would I tell you to sell it?  No, I can’t give it back.  Give it back to who?  You own it!”

      —Charlie Sheen as Bud Fox in Wall Street


Meet Mary Landrieu.

Ms. Landrieu is the senior Senator from Louisiana.  She’s a Democrat.  And she’s up for re-election in 2014 in what is otherwise normally a red state.

Back in 2009 she provided a pivotal late position change in favor of FUBARCare.  Recall that in order to get past a GOP filibuster to pass the thing, Senate Majority Leader Harry Reid (D-NV) needed every one of the 60 Democrats then in the Senate to be on board.  Landrieu was one of the last holdouts.  With time running out, Reid did what Leftists do: 

He bribed her.

Oh, I don’t mean he literally gave her cash (as far as either of us knows).  But in the seedy world of politics, money coming into one’s district—or, in the case of a Senator, state—is almost as good as money coming into your own pocket.  So, in a move that would make Machiavelli proud, Reid arranged for amendments to the FUBARCare bill that were to extend some $300 million in federal Medicaid assistance to Louisiana, originally given in response to Hurricane Katrina; in other words, in order to secure Landrieu’s Aye vote, Harry Reid and the Democrats took millions of dollars from taxpayers in other States and gave it to Louisiana (which, ironically, then joined 26 other States in suing the federal government in an effort to stop FUBARCare).  So if you’re in Ohio, or California, or Texas, you are subsidizing indigent medical care in Louisiana.

But it gets worse.

It turns out that Landrieu’s vote wasn’t bought for $300 million; the price tag was really over $4 billion.  That’s right.  Due to drafting errors in the bill amendment—What?  Drafting errors?  In the FUBARCare bill?  Get real.—instead of phasing out the additional federal subsidy, payments to the State of Louisiana actually increase, resulting in a total federal cost of about $4.3 billion.  All to give Senator Landrieu something about which she could boast to her constituents in exchange for changing her vote.

And to be clear: Senator Mary Landrieu voted for FUBARCare.  She owns it.

Fast forward to 2013.  FUBARCare launched in earnest on October 1.  Leave aside the side-tent freakshow that is the comically inept website rollout.  The real game is in the millions who are being kicked off their existing medical care insurance plans.  Many Democrats who bought into and repeated the President’s assurances (read: lies) that if you liked your insurance you’d be able to keep it are now shocked—shocked—to find out that it just ain’t so.  Of course, many of us have been warning for years, both before and after FUBARCare passed, that this would happen, and it turns out the Democrats really did know it all along.  But many among the more gullible and ignorant voting public are now finding out the hard way, and boy are they pissed.  And Democrats in reddish states who voted in favor of it—by the way, did I mention that Senator Landrieu voted for FUBARCare?—are feeling the heat.

But don’t worry, because Senator Landrieu is now sponsoring a brilliant fix to the problem.  She, along with people like Dianne Feinstein (D-CA) are pushing additional legislation that would require insurance companies to continue to offer the policies they’ve been canceling.  That’s right: the solution to an impossibly messed-up unconstitutional federal regulation is . . . yet more impossibly messed-up unconstitutional federal regulation.

Here’s just how perverse this whole thing is.  As we discussed in the last post, the insurance policies that are being canceled aren’t being canceled because rich, profitable insurance companies are mean.  They’re being canceled because under FUBARCare either (1) they don’t provide the requisite minimum coverage, or (2) they become financially unviable.  In other words, these policies are being canceled because they’re made illegal or unprofitable by the very law Senator Landrieu voted to pass.  Now she wants to avoid the political consequences of that action by requiring insurance companies to continue to offer those policies anyway.

The optics of this are silly—we’re going to require everyone to purchase policies with a certain minimum amount of coverage . . . except for everyone who has a policy that doesn’t meet that standard, which we first banned but now we’re going to mandate stay in effect—but the economics are worse.  As mentioned, many of the policies being canceled are being canceled because under FUBARCare they no longer make fiscal sense—that is, the insurance carrier would lose money if it continued the policy.  Senator Landrieu’s “fix” forces those companies to continue the policy anyway, despite the loss. 

The economics of the policies that do meet the FUBARCare minimums depend on the risk pool including all those people who were to be forced off non-qualifying plans.  That was the point of the minimum coverage requirement: to make the coverage proposition work for the insurance companies, they need to be collecting premiums from people who won’t claim benefits.  With Senator Landrieu’s “fix” allowing those people to avoid being forced into the risk pool for the more comprehensive coverage they do not want, the carriers either have to raise premiums even further, or operate at a loss.  The former prices some people out of the policy and forces them onto the publicly-subsidized exchanges or Medicaid, further reducing the insurance companies’ risk pool and thus starting the cycle all over.  The latter obviously has the insurance company losing money. 

Neither situation is sustainable long term, and all of the scenarios have the insurance companies being compelled by law to continue offering insurance at a loss. 

Now, Senator Landrieu may have a fairly astute strategy here from a short-term political point of view.  If Republicans oppose this move, they’ll be cast once again as obstructionists, placing extreme ideology before practical solutions.  Worse, it will effectively allow the Democrats to shift responsibility for the policy losses to the GOP—don’t blame us, we tried to keep you from losing your policy, but the Tea Party racists wouldn’t compromise—as the Republicans’ hopelessly inept messaging will fail to remind voters that Democrats like Senator Landrieu caused the losses in the first place, and will never be able to articulate the disastrous long term consequences of the proposed solution.  It’s potentially win-win for the Dems: Landrieu gets her life preserver, and the Progressives get one step closer to single-payer.

But this shouldn’t work if the GOP stands firm and refuses to bail them out.  Between the website rollout and the millions of lost policies, the Republicans have a tangible real-world story to tell that puts what to this point had only been an abstract theoretical lie into sharp relief.  If they can get their messaging together, this should be a winning issue in 2014.  And the stakes are significant.  In addition to Landrieu, two other Democrat Senators in States that subsequently sued to stop FUBARCare are also up for re-election in 2014: Mark Begich in Alaska, and Mark Warner in Virginia.  Both voted for FUBARCare.  Other Democrat Senators in otherwise red states are also up for re-election in 2014 or are retiring: Mark Pryor in Arkansas (up), Max Baucus in Montana (retiring), Kay Hagan in North Carolina (up), Tim Johnson in South Carolina (retiring), and Jay Rockefeller in West Virginia.  All five voted in favor of FUBARCare.  Together with Landrieu, that’s eight seats up where FUBARCare should be a major sore spot; six seats flips control of the Senate. 

The truth remains:  Senator Landrieu and the Democrats voted in favor of FUBARCare.  They passed it without a single GOP vote in either house of Congress.  They own it.

And in 2014, that should have consequences.


EDITOR’S NOTE:  FUBARCare was supposed to add some 27 million to the ranks of the insured.  After six weeks, HHS’ official enrollment figure—likely grossly inflated—is all of 106,000 and change.  At that pace, FUBARCare will reach the 27 million level . . . in 29 years.

FUBARCare, Rights, and Contracts

And everyone here’s to blame

Yeah well everyone here gets caught up in the pleasure of the pain

Yeah, everyone here hides shades of shame

But looking inside we’re the same, we’re the same

And we’re all grown now, but we don’t know how

To get it back to good

           —Matchbox Twenty, Back 2 Good


In an opinion piece Tuesday on, Juan Williams argues that all the uproar over the President’s lies about you getting to keep your coverage is much ado about nothing, because it’s not the fault of Obama or FUBARCare that people are losing their medical insurance coverage.  As an initial point, it’s interesting that Williams makes no effort to say that the President didn’t say you could keep your coverage, or that the promise was in fact not a lie, but simply that because it’s not Obama’s fault—according to Williams—it’s not a lie that matters.


The more aggravating part of his piece, however, is his central thesis that Americans’ anger over the loss of coverage is misdirected.  To begin with, Williams minimizes the issue, contending that “only” some 2 million Americans are losing their insurance this month, and some will get “better” coverage and government subsidies, which sort of begs the question why we didn’t just go to a subsidy model like food stamps in the first place.  But more to the point, 2 million people is a lot, and at present it’s a whole lot more than the number of people who have gained insurance, which is a more than significant fact when you’re talking about a piece of legislation the central purpose of which was to see to it that more people had medical insurance than did before; Williams conveniently leaves that tidbit out.

Williams nevertheless says anger aimed at Obama and FUBARCare is misdirected, and should really be aimed at the insurance companies for cancelling their policies.  It is no more correct, according to Williams, to say that under FUBARCare government is “forcing” those companies to cancel policies any more than it is to say that government “forces” chemical companies not to dump toxic waste, or that government “forces” people to fix broken windshields.  Well, in point of fact, to the extent that the government via the power of law requires proper disposal of chemical waste or proper repair of vehicles, it indeed does “force” that behavior.  But the real issue is that Williams’ analogy is inapposite, and it reflects his fundamental misunderstanding of the nature of insurance, rights, and obligations.

When government enacts a law relating to waste disposal or vehicle repair, it is doing so to prevent the entities being compelled from engaging in a behavior that harms people.  There is a pre-existing right/obligation relationship in both instances.  I have a right not to be poisoned by polluted water, and the chemical company has a corresponding obligation not to poison me; the anti-dumping regulation merely enforces that pre-existing relationship.  Similarly, I have a right not to be harmed on the road, and you have a corresponding obligation not to harm me; the repair regulation again simply enforces what already exists.    

But there is no similar right/obligation relationship with respect to medical insurance, and this is where Williams leaves the reservation.  He complains that the cancellations are due to insurance companies’ refusal to do what they should have done all along, and that is revise their policies to provide all the “common sense, humane” goodies he says should have been there in the first place; all FUBARCare did was right this “terrible wrong” and stop greedy insurance companies from taking advantage of people and making profits by using “loopholes” to deny coverage.

Williams’ argument presumes that you somehow have a “right” to have your medical insurance policy cover all the things FUBARCare requires, and that the insurance company simply by virtue of existing has a corresponding obligation to provide them to you.  But no such right/obligation exists, and contrary to Williams’ apparent worldview, the insurance industry does not represent some sort of collectively-held natural resource upon which all of society has some right to draw. 

Insurance is a contract—an agreement—and those “loopholes” to which Williams refers are what are otherwise known as the terms of that agreement.  The ONLY right you have, and the ONLY obligation the carrier owes you, is what the two of you have agreed to in your insurance contract.  It is—or was, before FUBARCare—a voluntary arrangement (and don’t bother with the whole I-can’t-help-what-coverage-my-employer-provides thing; individual insurance has long been available, and if it really mattered that much to you, nothing prevents you from changing jobs to one that provides insurance benefits more to your liking); if you want contraception coverage, or a different lifetime cap, those policies were always available.  

But here’s the thing.  If you didn’t want those things, those policies were available, too.  You and your insurance carrier could enter into an agreement that didn’t cover, say, contraception and abortion services, and if you were a 65-year old who’s had a hysterectomy, it may very well make sense for you to do just that.  But under FUBARCare you can’t do that even if you want to, because Progressive elites like Williams think they know better than you do what coverage is “better” for you.  And this, Mr. Williams, is what’s got people so pissed off:  to the extent you’re talking about people losing coverage they liked—and those are by definition the people to whom the President’s promises about keeping coverage were made, not those who didn’t have insurance, or were somehow being cheated via inadequate coverage—it’s because in closing those “loopholes” you’ve forced them and their insurance company to alter their agreement and add terms neither of them wanted. 

Insurance companies aren’t cancelling policies because they are too evil to live up to their “obligation” to provide all the additional benefits the Left says everyone should have whether they want them or not.  They’re cancelling policies because all those added benefits—benefits FUBARCare now forces them to provide—have a cost, and this is the point that gets lost on people like Williams.  Health care in general, and insurance in particular, aren’t a magic top hat into which you can just reach and pull out whatever benefit you want.  Someone has to provide the services, and someone has to pay for them, and insurance policies are carefully calibrated actuarial propositions—that’s math, Mr. Williams—that ensure that premiums are set at sufficient levels to cover the cost of those benefits over the entirety of the risk pool and afford the profit without which the insurance company would not exist.  When government intervenes to mandate the coverage of additional benefits, the actuarial balance is altered, and either the extra cost of the additional benefits has to be covered by increased premiums and deductibles—as many are seeing—or the policy becomes financially unviable.  

Ironically, it is this very phenomenon that Williams now can’t bring himself to recognize that is the central basis for FUBARCare’s individual mandate.  Because there are increased costs associated with adding these benefits—and all these people who will supposedly be added to the ranks of the insured, if they can ever get on the website—they need people who won’t claim benefits to be enrolled in plans that pay for them anyway.  They need the sterile sextogenerian who will never need The Pill or an abortion paying premiums for those services in order to subsidize providing those benefits for others who do.  And, of course, the only way to get there is to force her out of her existing plan into one she does not want (and more to the point does not want to pay for).

So if you are one of those who liked your prior policy but either got canceled, or now face increased premiums and deductibles—either of which means you didn’t get to keep what you had—that is not because your insurance company simply didn’t want to do the right thing.  It’s because FUBARCare, pushed by Obama and passed to the wild cheering of people like Williams, fundamentally altered the financial mathematics of the deal.

And one suspects Williams really does know this, and what he seeks to avoid is admitting that he’s as much responsible for the lie and the mess as Obama.

Willful Blindness

Valerie:           Liar!  Liar!  Liiiaaarrr!

Miracle Max: Get back, witch!

Valerie:           I’m not a witch, I’m your wife.  But after what you just said, I’m not even sure I want to be that anymore!

          —Carol Kane as Valerie, and Billy Crystal as Miracle Max in The Princess Bride


Some of this would be really, really funny if it weren’t so damn dangerous.

It turns out that some people who thought FUBARCare was a great idea, that it was going to make life all peaches and cream for everybody, and that there was just no way in the world it would result in them losing their medical insurance—and you know who you are—are getting bitten in the ass by it.  In a closed-door meeting—gee, I wonder why it was closed-door?—Senator Joe Donnelly (D-IN) told members that his son had received a notice that his insurance was being canceled; Donnelly voted in favor of FUBARCare in 2009 when he was in the House.  The Washington Post, in a piece on consumer backlash over FUBARCare sticker shock told the story of one disillusioned FUBARCare supporter:

“Marlys Dietrick, a 60-year-old artist from San Antonio, said she had high hopes that the new law would help many of her friends who are chefs, actors or photographers get insured.  But she said they have been turned off by high premiums and deductibles and would rather pay the fine.

‘I am one of those Democrats who wanted it to be better than this,’ she said.

Her insurer, Humana, informed her that her plan was being canceled and that the rate for herself and her 21-year-old son for a plan compliant with the new law would rise from $300 to $705.  On the federal Web site, she found a comparable plan for $623 a month.  Because her annual income is about $80,000, she doesn’t qualify for subsidies.

A cheaper alternative on the federal exchange, she said, had a premium of $490 a month—but it was an HMO plan rather than the PPO plan she currently has.  ‘I wouldn’t be able to go to the doctor I’ve been going to for years,’ she said.  ‘That is not a deal.’”

Meanwhile, unions are striking or threatening to strike over job losses and cuts in hours caused by their employers’ efforts to deal with the compliance requirements of FUBARCare.

Told ya so.

I can almost understand if back in 2009 and 2010 you were one of those true believers, and you were just ignorant about how insurance works.  You could dismiss our warnings as the fear mongering rants of an extreme and racist Right.  But it’s impossible that you don’t see the reality now; and frankly you should be embarrassed at what is now the Obama administration’s doubling-down on the lie.

By now you’ve heard over and over again the reminders of the President’s promise that if you liked your medical plan and your doctor, you’d be able to keep them.  A large part of the reason you’re hearing about it over and over now, is, well, because he said it over and over.  Yesterday, unable to keep running from that pledge, the President took the position that he never actually made it; that what he really said was “you could keep it if it hasn’t changed since the law was passed.”  The trouble is, in the nearly thirty-odd times he’s gone on record with the if-you-like-it-you-can-keep-it promise, not once has he ever included that caveat. 

Not once.

In fact, on at least one occasion—in a 2009 speech praising the AMA for its support—he was beyond crystal clear that your ability to keep what you had was absolute:

“So let me begin by saying this:  I know that there are millions of Americans who are content with their health care coverage—they like their plan and they value their relationship with their doctor.  And that means that no matter how we reform health care, we will keep this promise:  If you like your doctor, you will be able to keep your doctor.  Period.  If you like your health care plan, you will be able to keep your health care plan.  Period.  No one will take it away.  No matter what.”

There was no hedging, no qualifying, no beating around the bush.  No matter how we reform health care—i.e., regardless of what’s in that law once we pass it to find out—you will keep your plan and your doctor, and no one will take it away no matter what.  Period.  Period.  He was trying to assuage the fears of people who wanted to keep the insurance and doctors they had, and he wanted them to understand and believe that they would be able to do so; he wanted them to rely on that assurance in choosing to support FUBARCare. 

In the law, we call that “fraud.”

For Obama now to argue that he was simply not as clear as he would have liked, and that what he was trying to convey was anything other than the plain, absolute assurance that no one would lose coverage under FUBARCare is pure fantasy.  He flat lied about you keeping your insurance.  It’s that simple.  He lied about it on purpose.  And now he’s lying about having told the lie in the first place.

The doublespeak spin on this is so childish, and so crude, that you should find it insulting.  People aren’t being canceled, they’re being “transitioned.”  People aren’t being screwed over in the transition, because although they liked their prior coverage and wanted to keep it, the new alternative coverage they don’t want that costs a hell of a lot more than their old coverage they did want is, in the Left’s infinite wisdom, “better.”  The FUBARCare website isn’t crashing, it’s just running slow.  And now the President says he didn’t really promise you could keep it, but only that you could keep it unless and until, and he just forgot to say the unless and until part.

You gonna believe me, or your lying eyes?

Yes, they think you’re that stupid, and only through an impossibly desperate act of self-deception can you not see that.  And it’s not the first time this Administration has brazenly denied the President said what 300 million people plainly saw and heard him say (and got him on videotape doing it).  They denied Obama told small business owners that they “didn’t build that.”  They denied Obama drew a “red line” on Syria.  But this latest attempt to deny ever making what was the repeated central sales pitch of Obama’s signature “achievement” would make even Eddie Haskell blush.  And yet his capacity to lie nonetheless appears to know no bounds.

This is what happens when you get blinded by your own ideology.  Reality will always be reality, and all your wishing and wanting won’t change that.  You’ve been lied to.  Some of us tried to tell you, and if you made a mistake that’s one thing.

But if you can’t at this point admit the reality that Obama lied to you, then you are a liar, too. 

Can You Hear Me Now?

Edwards:       Drop the weapon and put your hands on your head.

K:                    I warned him.

Edwards:       Drop the weapon!

K:                    You warned him.

Edwards:       Don’t make me kill you.

Jeebs:              You insensitive prick!  Don’t you know how much that stings!

—Will Smith as Edwards, Tommy Lee Jones as K, and Tony Shalhoub as Jack Jeebs in Men In Black

OK, everybody who’s surprised by the colossal failure of the rollout of FUBARCare raise your hand.

Mr. Obama, you can put yours down.

Amazingly, the Progressives are still trying with a straight face to defend this thing, and some are even having the brass stones to blame Republicans for the problems.  But by now it is impossible for any remotely rational person not to see what a pack of lies this has been:

But the FUBARCare debacle over the last week is hardly surprising; to the contrary, it was utterly predictable, because it is merely the most recent illustration of this Administration’s consistent display of incompetence and deceit.  Indeed, is there anything this Administration has touched that hasn’t turned out to be a gigantic steaming pile of cow flop covered with (f)lies?


The primary goal of our military involvement in Afghanistan was to “get” Osama Bin Laden.  That was achieved—in Pakistan—on May 2, 2011, over two and a half years ago, yet Americans are still dying in Afghanistan.  At last count, over 700 Americans—more than during the entire Bush administration—have been killed there since Bin Laden’s death.  Why?  Perhaps if Obama attended a security briefing once in awhile he’d be aware that our armed forces are still engaged in that theater.


On September 11, 2012, four Americans, including Ambassador Chris Stevens, were killed in a series of military-style assaults on our consulate—sovereign U.S. soil—in Benghazi, Libya.  Although Stevens had repeatedly warned of the deteriorating situation and requested additional security, although escalating incidents over the preceding several months had led the British to close their facility, and although the 9/11 anniversary posed an obvious symbolic targeting date, the Administration refused to bolster security and left the diplomatic personnel in place.  Although the President knew about the attacks less than 90 minutes after they began, and although they took place over a period of some nine hours as the President and his staff watched in real time via surveillance drone, the President did nothing.  That weekend, Obama sent U.N. Ambassador Susan Rice all over the Sunday talk shows with a series of talking points blaming a silly internet video when they knew it was an al-Qaeda affiliated terrorist assault, while he ran around to multiple campaign fundraisers.  Obama later pledged to hunt down those responsible and bring them to justice, yet to date the only person jailed as a result has been the producer of the irrelevant internet film (who just recently got out of prison); no one in Libya has been arrested, and the Benghazi raid isn’t even among the crimes for which the Administration is offering a reward for information.

Economy and Budget

We’ve been told for several years now that we’re in a “recovery” from the Bush recession.  Obama has repeatedly said that he was focused like a laser on jobs, and that he “will not rest” until everyone has one.  Yet as of September, a full ten million people have left the workforce since Obama took office.  Workforce participation is now at a paltry 63%.  A recent Census Bureau report counts more people receiving means-tested government benefits (read: welfare) than with full-time jobs.  Meanwhile the national debt now exceeds $17 trillion, nearly double what it was when Obama took office (just under $10 trillion), Obama is continuing to spend at around a $4 trillion/year clip, and Harry Reid says “everybody” wants to pay more in taxes.

This is some rescue.

Fast & Furious

On December 14, 2010, U.S. Border Patrol agent Brian Terry was killed in a gun battle with Mexican drug runners.  Guns used in the fight were traced back to Operation Fast & Furious, a Justice Department action in which illegal guns were deliberately permitted to be sold and transported outside the U.S. in an effort to track them to Mexican cartels.  Despite multiple memos and emails to Attorney General Eric Holder mentioning the program—including some from before Terry’s murder—Holder has steadfastly denied (read: lied) knowing anything about it.  Since then, he and the President have spent the better part of the last three years doing everything possible to avoid providing Congress, the American people, or the Terry family any information about it.

Government “Investments”

Obama the investment banker, in his infinite wisdom, illegally diverted $80 billion in TARP bailout money effectively to nationalize GM and Chrysler.  On the GM side alone, taxpayers are still out nearly $20 billion, and the GM stock still held by the government would have to triple in value for John Q. Public just to break even.  To put that in perspective, the first time in our entire history that the total federal budget reached $20 billion was 1942, and here we’re talking about the loss on a single piece of a single program.  Meanwhile as I have reported previously, Obama’s Energy Department has lost billions making high-risk loans to unproven “green energy” firms—many, not coincidentally, owned by huge Obama donors—that have gone belly-up.  And the few jobs “created” through the bailout and loans have in large part been overseas.  Not a particularly good rate of return.


When the IRS hasn’t been gearing up to serve as the jack-booted enforcers of FUBARCare, it turns out they’ve been selectively targeting conservative political groups to delay or deny them tax-exempt status.  Originally passed off as the isolated action of a couple of rogue low-level employees in Cincinnati, it is becoming increasingly clear that this was actually a deliberate program to weaponize the IRS as a political tool for the Left, overseen at the highest levels.  Meanwhile, we’re learning that the NSA has been—without a warrant—effectively spying on millions of innocent private U.S. citizens.  Once again, however, the Administration absolutely refuses to discuss either issue with Congress or the American people.

World Image

Obama took office pledging to restore America’s image in the world.  Then in his first official act, he embarked on a global apology tour, basically denouncing everything America has ever been or done.  Since then, he has displayed a breathtaking lack of leadership in the Middle East, he’s been horrifyingly weak in dealing with Russia, and he’s alienated and offended our European and Western Hemisphere allies by repeatedly getting caught spying on them (compounded by the fact that he never sits down with those leaders one-on-one to foster those relationships).  The Saudis have recently severed diplomatic ties.  And Obama’s relationship with Israel is so deteriorated that one suspects the only circumstance in which he wouldn’t piss on Benjamin Netanyahu is if the Prime Minister were on fire.  If there is left any nation that would count us as a friend, or at least acknowledge any respect for us, I don’t know who that would be.

At this point the grim reality has to be inescapable.  Even the true believers on the Left can’t avoid recognizing—without engaging in an unconscionable self-fraud—that this President is an embarrassingly epic failure.  He has accomplished exactly nothing positive, and the level of arrogance, ignorance, incompetence, and paranoia that permeates this Administration is unlike anything we’ve ever seen.  At the end of the day, we’re left with nothing but angry lectures, empty platitudes, cheesy staged political stunts, fundraisers, and golf.

And lies.  Upon lies.  Upon lies.

This is what you get when you elect a community organizer with literally zero real-world experience, whose sole drivers are a blind adherence to radical ideology, and a limitless thirst to erect a monument to his own ego, real-world results and consequences be damned.

Some of us tried to tell you . . .

Civics 201: What Might Have Been

“Oh, Brad!  Brad, my darling, how could I have done this to you?  Oh, if only we hadn’t made this journey.  If only the car hadn’t broken down.  If only we were amongst friends . . . or sane persons.  Oh, Brad, what have they done with him?”

            —Susan Sarandon as Janet Weiss in The Rocky Horror Picture Show


God bless my junior Senator, Ted Cruz, for being one of the very few in the Senate GOP contingent with the stones to stand up and try.  I have no idea what John Cornyn—who is all over his website and social media saying he supports defunding Obamacare—is doing leading the effort to stop him.  Voting for cloture and ending Cruz’s filibuster—which requires 60 votes Harry Reid doesn’t have without Cornyn’s help—only allows the Democrats to get to a vote on an amendment adding the funding back in, where Cornyn knows full well Reid does have the 51 votes he needs even over Cornyn’s objection; Cornyn’s Nay at that point is a hollow gesture, and for my life I don’t understand why Cornyn and the GOP establishment in the Senate would be so willing to cast down the only weapon they have left and quit the field.

But looking at the split between my State’s two Senators got me thinking: but for a grossly unfortunate Constitutional turn a century ago, we might well be in a different position today.  So I wanted to backtrack and cover a little history and civics.

Recall that the attendees at the Constitutional Convention in 1787 were not sent as at-large representatives of the population.  They were sent as delegations selected by their respective State legislatures, and their specific task was to represent those States as independent sovereign entities.  Indeed, one of the primary sticking points in the Constitutional debates was how these States, particularly smaller ones, would be able to protect their sovereignty once power was ceded to a central federal government.

The Framers’ solution, in their wisdom, was to create a bicameral legislature; two houses, with the Senate being the chamber in which the States, as States, would be represented.  As James Madison explained in Federalist No. 10:

“The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate[.]”

Thus, Article I as originally written provided that the Senate would be comprised of two Senators from each State, “chosen by the Legislature thereof.”   This gave each State as an independent sovereign equal representation within the federal government, embodied in members selected by, and ultimately responsible to, the governments of those States.  That was to be the safeguard of the States’ sovereignty and their retained powers under the 10th Amendment.  That, ultimately, is what federalism is.

But a funny thing happened on the way to Utopia.

Progressives recognized that this structure posed a barrier to the imposition of their agenda.  Wouldn’t it be simpler if they could bypass the buffer of the State legislatures so they could use their populist rhetoric to elect Senators directly by popular vote?  So in 1913 they pushed through the 17th Amendment, which substituted at-large elections in place of the selection of Senators by the State legislatures, and with it eliminated any responsiveness the Senate had to the States as sovereigns.  The entire point of a bicameral Congress was defeated.

So what does this have to do with Obamacare and Ted Cruz?

At 7:05 a.m. on Christmas Eve 2009, the Senate passed a 2,000+ page bill none of them had read by a vote of 60-39; that bill would become Obamacare.  That fact might seem of little importance by itself.  But shortly after the President signed the bill into law in 2010, several States sued the federal government to stop its implementation.  By January 2011, the number of States that had joined those lawsuits or filed their own had grown to 27.  Interestingly, of those 27 States suing the federal government to stop Obamacare, 15 of them had at least one of their Senators vote Aye back in 2009—seven had both Senators vote in favor—22 Ayes in all.  In other words, nearly a quarter of the entire Senate voted in favor of legislation that so upset their home State governments that those States joined in litigation to un-do it.

How different might that Christmas Eve vote have been had there been no 17th Amendment, such that those Senators were representative of, and responsible to, their home State governments?  I have no illusions that you would have seen a much different result for the delegations from Washington or Colorado, both of which have wholly lurched Leftward in recent years.  But consider the State-level environment in the remaining 13 States suing the government to un-do a vote by their own Senators.  Every one of those States—Alaska, Florida, Indiana, Louisiana, Michigan, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Dakota, Virginia, and Wisconsin—have Republican governors, and legislatures controlled by the GOP. 

One has to think that under those conditions, a Senate with members subject to selection by those State governments would have yielded a very different vote.  Even if you indulge in the assumption that the Senate delegations for Michigan (2 Ayes), Nevada (1 Aye), and Pennsylvania (2 Ayes) would have voted the same way, you still get a flip of 13 votes, resulting in the bill being defeated 47-52.  You could further assume—although I think it unlikely—that both Virginia Senators would still have voted Aye, and the Democrats still would have come up one vote short.  And recall that the 2009 Senate vote was on strict party lines; the Democrats had no defections, meaning that in a closer or losing vote, they had no arms left to twist.  Meanwhile, Jim Bunning (R-KY) missed the vote, and one suspects if he were going to have been the difference-maker the GOP could have found a way to persuade him to come in from the bullpen.

But for a little-known alteration in the fundamental structure of the Republic, Senator Cruz might not have found himself in the well of the Senate, all-but alone on the front line of a fight he shouldn’t have had to be fighting.

Go get ‘em, Ted.  Some of us citizens are behind you all the way.

Promises, Promises

On and on, we laughed like kids

At all the silly things we did

You made me promises, promises

Knowing I’d believe

Promises, promises

You knew you’d never keep

            —Naked Eyes, Promises, Promises


We’ve discussed any number of times what a disaster Obamacare was going to turn out to be.  But I didn’t see it being this bad, this quickly.

One of the major concerns has been that if Obamacare actually achieved its stated goal of bringing health care to some 50 million uninsured Americans—it hasn’t and it won’t, but let’s indulge the fantasy for a minute—there would be a shortage of doctors. 

Pooh-pooh, they said.  Just a bunch of right-wing hate-mongering hysteria.

Actually, the cause-and-effect should be obvious here, and as Obama would say, it’s just math.  When you add 50 million to the potential patient pool, you raise the demand side of the economic equation by about 20%, an enormous increase.  But the simple fact is there are a finite number of doctors, meaning that the supply side of that equation is relatively fixed.  Without a corresponding increase in supply—the number of doctors—to match the increased demand, there’s necessarily an imbalance: a greater number of patients divided into the same number of doctors means fewer doctors to go around. 

To put some hard figures on it, the Bureau of Labor Statistics says that as of 2010 there were just under 700,000 physicians and surgeons in the U.S., or about 1 doctor for every 350 or so potential patients.  Increasing the patient pool as Obamacare was supposed to do changes that ratio essentially overnight to 1 doctor for about every 440 patients.  In practical terms the real ratio is actually much worse, because half or more of those doctors are specialists of one sort or another, and not primary care physicians.

Here’s the problem.  Even without Obamacare, there was already predicted to be a significant shortage of doctors looming ahead.  An aging Baby Boomer cohort is going to place increasing demands on the medical care system.  Lagging medical school graduation rates and a coming increase in the number of doctors retiring was going to leave an inadequate supply of doctors to handle that increased demand as it was.  Adding tens of millions of new patients through Obamacare only makes that situation worse.

Now, if the laws of economics were left unfettered, one or both of two things would happen.  With the demand curve shifted, either prices—i.e., the cost of care and the salaries paid to doctors—would rise until demand was reduced and/or new people would be attracted into the medical profession—i.e., supply would increase—sufficiently to establish a new equilibrium point; a new balance between supply and demand. 

But those laws are not left unfettered.  Medicare and Medicaid—which will be the means of covering many, if not most of the added patient load under Obamacare—already severely limit what doctors can charge.  Insurance limitations under Obamacare will make that worse.  As a result, a survey last summer reported that 83% of doctors were considering quitting their practices altogether.  While I don’t think anything like that sort of mass exodus will happen, I bet at least some will quit.  If even 10% of those who consider quitting follow through on that, it will be a crippling blow to an already overtaxed supply of doctors.  Of those who continue to practice, many will choose simply not to take people on Medicare or Medicaid—many doctors already refuse—and some will stop accepting insurance.

What good is getting coverage you didn’t have before, or being able to keep the coverage you like, if no doctor will accept it?

The laws of economics are not left free to establish a new equilibrium; demand will continue to exceed supply, meaning there will be shortages.  Just like there are in the U.K.  Just like there are in Canada.  So how do you deal with that?

One way—and the market default—is you ration care.  When supply can’t meet demand, it means some people go without; the only question is deciding who gets denied.  You could do it officially with a government triage board actually reviewing cases and deciding who gets treatment and who doesn’t.  Even without that, at a practical level there will still be rationing.  A serious doctor shortage means waiting in line, and in many cases—either because a condition resolves itself or the patient dies before their turn with the doctor comes up—that will mean people are denied care.

But the alternatives should also really get your attention.

In the People’s Republic of California, legislation has been introduced to expand the scope of licenses granted to nurses, pharmacists, and optometrists to allow them to open independent primary care practices.  In other words, act like doctors, but with no doctor actually present.  So apparently not only may you in fact not be able to keep your doctor under Obamacare, you may not be able to see a doctor at all.  Now, I don’t know about you, but if I have a sick child I don’t want to take her down to Texas State Optical to get her treated. 

Another alternative I saw this week is perhaps even more bizarre.  Apparently there’s a growing trend towards group medical treatment.  Instead of sitting in an exam room by yourself for a private session with your doctor, you sit in a room with as many as a dozen others with the same type of complaint, and you all visit with the doctor together.  Advocates tout the benefits of hearing the “diversity of issues discussed,” and the idea that you get a great deal more time with the doctor than you would in an individual appointment (2 hours with 12 people still works out to 10 minutes apiece, by my poor Rice math).  Normally we go to some lengths to protect patient privacy—the federal law on the subject is called the Health Insurance Portability and Accountability Act, or HIPAA, and it imposes stringent penalties for the disclosure of private medical information.  Now we’re going to have what amounts to public medical examinations.  Do you want to go get a prostate exam with 10 other guys? 

Gentlemen, bend over.

I’m left trying to figure out whether there’s anything they told us about Obamacare that’s true:

  • They told us Obamacare was needed to insure 46 million uninsured Americans.  The Kaiser article on group appointments linked above estimates that only about 27 million will be added under Obamacare, a little better than half that number, and there’s still a doctor shortage.
  • They told us Obamacare was not a government takeover of the health care industry.  Maybe not in so many words, but check out the seven-and-a-half-foot high stack of federal regulations (over 20,000 pages) issued under Obamacare, and that’s just to date.
  • They told us Obamacare wouldn’t increase taxes.  The Supreme Court has ruled as a matter of law—agreeing with the Obama administration’s lawyer—that the individual mandate is a tax.  That’s in addition to the outright new taxes on medical devices and out-of-pocket medical expenses, surtaxes on capital gains and dividends, increased Medicare payroll taxes, and sales taxes on insurance itself.
  • They told us Obamacare would reduce premiums (hence the name: Patient Protection and Affordable Health Care Act).  Turns out it’s actually going to increase premiums.
  • They told us Obamacare wouldn’t add to the deficit.  The non-partisan CBO estimated that Obamacare will cost the federal government over a trillion dollars over the next 10 years, and a GAO report now says Obamacare will add $6.2 trillion to the deficit long-term.
  • They told us if you liked your coverage you’d get to keep it.  We’re now already seeing employers dropping coverage in favor of paying the cheaper penalty—er—tax.
  • They told us Obamacare would create jobs.  In fact, those who needed the help most are seeing their hours cut back, if not being laid off altogether.
  • They told us—more particularly they told holdout Representative Bart Stupak (D-MI)—that no federal money would be used to fund abortions under Obamacare.  That, of course, has turned out to be a joke, and furthermore Obamacare is mandating that private employers also fund insurance coverage that includes abortions and contraceptives.

And they also told us that under Obamacare you’d be able to keep your doctor.  Apparently now even that may not be true.  Unless you share your appointment time.

Ain’t it great when the Left makes a bunch of promises?

The New Obamacare Trap

“Relax,” said the night man, “we are programmed to receive.”

“You can check out any time you like, but you can never leave.”

            —Eagles, Hotel California

I know then-Speaker of the House Nancy Pelosi (D-CA) told us we’d have to pass Obamacare to find out what’s in it.

But wait ‘til you get a load of this.

Most of the discussion over the last couple of years about Obamacare has centered on the individual mandate and the contraception coverage requirement.  But while the public attention has been focused on those issues, somewhat under the radar most of the attention of the benefits professionals who have to understand and implement the mechanics of Obamacare has been focused on the obligations the new law places on the employers who will have to provide most of the mandated coverage.

Without getting too deep into the weeds, under Obamacare, all employers with 50 or more full time employees (“full time” defined for these purposes as 30 or more hours per week) must offer health care coverage meeting minimum federal standards.  Any that don’t must pay a fine of $2,000 per employee after the first 30.  This was always the first problem with Obamacare and the President’s outright lie that “if you like your coverage you can keep it,” because in many instances it’s cheaper for the employer to pay the fine than to provide the coverage.  With this as the new environment beginning in 2014, some businesses will make the very rational, and in some cases economically necessary, decision to drop coverage—coverage their employees may well have liked—in favor of simply paying the penalty.

But in some lower-margin industries like the restaurant business, even paying the penalty simply isn’t a viable financial option.  Well, if you’ll look again at the defining threshold for triggering the requirements, there are a pair of obvious alternatives for businesses that find themselves in that situation.  One is to lay off employees until they get below 50 (or, for a growing business, stop hiring at 49).  The other is to cut employee hours to a maximum of 29 hours a week so they’re not “full-time.”  Either option gets the business under the threshold of 50 full time employees such that the mandate doesn’t apply.  And many businesses—Dardens Restaurants (Olive Garden, Red Lobster), and some Wendy’s and Taco Bell franchises, among others—are now starting to do precisely that.

As an aside, notice the perverse “unintended” effect here.  Employees in these businesses are typically low-income people: fry cooks, waiters, etc.  These are the very people Obamacare was supposed to help by getting them employer-sponsored coverage.  Instead, as a direct consequence of Obamacare not only do they not get the employer-provided medical insurance they were promised, they’re having their already low incomes reduced by having their hours cut or losing their jobs altogether.  With lighter or nonexistent paychecks, they’ll then be shunted off into Medicaid under the individual mandate.  Of course the real irony here is you know the majority of these people voted for this crap.

Be careful what you wish for, ‘cause you just might get it all.

There’s a similar phenomenon happening in the medical device industry, which employs some 400,000 people in the U.S.  Now, these are typically higher income earners, but the essential problem is the same.  Medical technology companies are faced not only with the mandate to provide coverage or pay the penalty, but effective the first of this year they also must pay an additional 2.3% excise tax under Obamacare.  In response, publicly traded medical device companies cut 7,000 jobs in 2012.  A recent survey indicates that 62% of those surveyed plan additional layoffs or reduced hiring in 2013.  All to offset the tax.

Well, it appears that all this hasn’t been lost on the Obama administration, and it’s not going to let them get away with it.  The IRS has now released a 144 pages of new regulations that included an announcement that measures would be coming to stop employers from taking these steps to avoid the impact of the Obamacare employer mandate.  What does this mean?  It means the IRS will begin levying penalties against employers who initiate layoffs or reduce hours in order to get below the thresholds that trigger the mandate/penalty dilemma.

Of course, all of this only applies if you’re already over the 50 full-timer limit; if you have only 49, none of it matters to you (as long as you don’t grow your business).  As a result, you could see an Olive Garden with 50 employees facing tens of thousands of dollars in federally-mandated additional costs, while the Chili’s next door with only 49 employees incurs none of those costs, and the Olive Garden has no way to correct the competitive imbalance; once over 50, always over 50 (at least as far as the fines are concerned).

So here’s the trap in which some businesses will now find themselves caught:

  • The government requires them to provide health insurance they can’t afford.
  • If they don’t provide it, they’ll have to pay a penalty they can’t afford.
  • If they try to trim staff so the law doesn’t apply, they’ll have to pay a different penalty they can’t afford.

That doesn’t leave many options, and the simple fact is that some businesses won’t be able to afford any of it; they’ll be forced to close.  I expect more than a few business owners who could afford the penalty will refuse to pay it and close out of spite.

This is truly terrifying.

Many of us on the Right, like voices crying in the wilderness, tried to warn about this.  You now have a federal government that although it lacks the power under the Commerce Clause to compel you to engage in a commercial transaction, it can tax you if you don’t.  That same federal government is forcibly imposing costs on businesses, then threatening to impose fines if those businesses try to restructure themselves to get out of it.  We gotcha now.  And here’s the really sick part:  Obama and the Democrats created this Frankenstein’s monster of a health care law, and now the administration is sending the IRS after people to fine them for acting under the terms of the law as Obama and the Democrats wrote it.  Not only are they over-regulating, but now you can’t even avoid their laws/fines by complying with them.

Obamacare is a disaster.  It is a vicious assault on individual economic liberty and religious freedom.  It is an unconscionable abuse of the Constitution.  It will prove to be a strangling albatross around the neck of the economy.  And not only will it never achieve the stated objective of providing health care insurance to [pick your number] of uninsured Americans, it will actually be counter-productive to that end.

We’re caught in a trap; we can’t walk out.

Where Do We Go From Here?

Inigo:  I am waiting for you, Vizzini.  You told me to go back to the beginning, so I have.  This is where I am, and this is where I will stay.  I will not be moved.
Brute: Ho there!
Inigo:  I do not budge.  Keep your “Ho there!”
Brute: The Prince gave orders.
Inigo:  So did Vizzini.  When the job went wrong you went back to the beginning.  Well, this is where we got the job, so it’s the beginning.  And I am staying ‘till Vizzini comes.        
            —Mandy Patinkin as Inigo Montoya, and Paul Badger as the Brute in The Princess Bride
One of the great lessons of golf is that you must learn to play the ball where it lies, however bad a position that may be, and however unfair the circumstances under which it came to be there.  Denial and panic are counter-productive.  Sometimes you have to accept bogey, chip back into the fairway, and try to make it up on the next hole.
Obamacare has passed Congress and been upheld by the Supreme Court.  Rightly or wrongly, that’s where the ball now lies.  The question we must focus on now is:  What do we do about it?
A number of possibilities come to mind.
Two are already more or less in progress.  The obvious option of repeal by the Congress is front burner, but until 2013—and then only if the GOP gains at a minimum a decisive majority in the Senate, which is unlikely—it is nothing more than moot political theater, because at present a repeal bill can’t see the light of day in Harry Reid’s Senate, and would inevitably be vetoed by the White House.  Slightly less obvious is simple defiance at the State level, where GOP governors in several States are telling the federal government “no,” and simply refusing to implement the law.  John Roberts has made his ruling; now let him enforce it.  This won’t stop Obamacare, as the feds will take over, but it will slow it down.  Neither option has much promise of actually correcting the problem any time soon.
You could try to pack the Court if Romney wins the White House.  Nothing in the Constitution fixes the size of the Court at nine justices.  Congress—presumably and historically, but the Constitution is actually silent on this point—has the power to change the number of Supreme Court justices.  But this would still leave Obamacare on the books.
I’ve heard some talk about a process called “nullification.”  The idea is that because the Constitution is a compact between the States as sovereign entities—and thus the federal government is a creation of the States, they retain an inherent power to un-do acts of the federal government.  While I generally agree in theory with the concept, the problem is it isn’t expressly found in the Constitution, and there is a wealth of Supreme Court precedent (incorrectly, in my judgment) rejecting its underlying premise.  Given what we’ve now seen from the Roberts Court in its current composition, I have no confidence you would ultimately get anywhere with an attempt at nullification.  Further, you can be sure that the Obama administration would ignore nullification by executive order anyway.
The more basic problem with any of these options is they don’t address the real disease, which is that our Constitution itself has become perverted in its application beyond recognition.  Several years ago my orthopedic surgeon told me, when we had run out of lesser treatment options for my knee, that “mechanical problems require mechanical solutions.”  While it shouldn’t have been necessary, all three branches of the Beast have so broken the original language of the Constitution that it’s going to require fixes to that language itself to heal the damage. 
To that end, let me offer some suggestions.  We can call it the “Bill of Clarification.”
Article XXVIII (eliminating the “general welfare clause,” which was a statement of purpose and never intended to confer power)
The Preamble to the Constitution of the United States is amended to read as follows:  “We the People of the United States do ordain and establish this Constitution for the United States of America.”  All other language in the Preamble is deleted.
Article XXIX (clarifying that when we said enumerated powers, we meant it)
Section1.  The Constitution of the United States is to be interpreted and applied according to the plain meaning of the language actually written. 
Section2.  Congress has no powers, rights, or authority beyond those expressly granted in the Constitution of the United States, and any powers, rights, and authority not expressly granted to the Congress therein are expressly denied to Congress.    
Section3.  The President has no powers, rights, or authority beyond those expressly granted in the Constitution of the United States, and any powers, rights, and authority not expressly granted to the President therein are expressly denied to the President. 
Article XXX (limiting what Congress can do)
Section1.  Every Bill passed by the Congress must include a citation to the provision or provisions of this Constitution of the United States conferring upon the Congress the authority to enact it.  This citation must be specific and limited to the actual authorizing provision or provisions; a blanket quotation of this Constitution as a whole or of an Article substantially in its entirety is not sufficient, and will render the Bill void.  No Court, Federal or State, may uphold the constitutionality of any Bill on any basis other than that articulated by the Congress in the Bill.
Section2.  Congress may not appropriate or authorize the spending of money for any calendar year in excess of actual revenues for the same period, nor levy taxes totaling in the aggregate in any calendar year more than 25% of Gross Domestic Product for that year.  Not more than once every fourteen years Congress may, by a vote two-thirds of each House, suspend the application of this Section 2 for a period not to exceed four years.
Section3.  The power of the Congress to regulate commerce among the several States is limited to preventing individual State commercial policies creating distinctions, preferences, or exclusions affecting the flow of goods or services between the States; this power does not extend to private transactions within a single State, nor may the Congress compel any person to engage in any commercial transaction.  The power of the Congress to lay and collect Taxes is limited to excise taxes on transactions, direct capitations apportioned among the States in proportion to the Census, and taxes on incomes; Congress is not authorized to lay or collect any other Tax.
Section4.  Congress may not pass any Bill containing provisions not reasonably related to the purpose of the Bill, nor any Bill to any part of which the members of Congress are exempt by virtue of their office.
Section5.  The veto power of the President may extend to all or any part of a Bill.
Article XXXI (term limits, and restoring the Senate to the States)
Section1.  No person may be elected to the House of Representatives more than four times, and no person who has held the office of Representative for more than six months of a term to which another person was elected Representative may be elected to the House of Representatives more than three times.  No person may be elected to the Senate more than twice, and no person who has held the office of Senator for more than three years of a term to which some other person was elected Senator may be elected to the Senate more than once. 
Section2.  The seventeenth article of amendment to the Constitution of the United States is hereby repealed.
Section3.   The Supreme Court of the United States consists of nine Justices, divided into three classes of three.  The term of the first Class, comprised of the three Justices with the longest term of service on the Court at the time this Article is adopted, expires at the end of the third year after the adoption of this Article.  The term of the second Class, comprised of the three Justices with the second-longest term of service, expires at the end of the sixth year after the adoption of this Article.  The term of the third Class, comprised of the three Justices with the shortest term of service, expires at the end of the ninth year after the adoption of this Article.  No person may serve as a Justice on the Supreme Court for more than nine years, except that a person appointed to replace a Justice prior to the expiration of a term may serve out the existing term and then be re-appointed and confirmed as provided in Article III of this Constitution of the United States for a term not to exceed nine years.
Section4.  No person may serve as a Judge on any inferior Courts established by Congress for more than a combined twelve years.
Article V provides two mechanisms to make this happen.  One is by two-thirds vote of both Houses of Congress.  I have no illusions that that’s going to happen in our lifetime.  The other is by convention called by the legislatures of two thirds of the states.  This Constitutional Convention route is the only means by which we can realistically hope to mend the damage done to the text of our Constitution.  Even then we’re only as healed as the Beast’s willingness to stay within the letter as written.  If Amendment fails to constrain the Beast, there aren’t but a couple of alternatives left.
Food for thought.