Examining the Origins of “Robertscare”

In the end, applesauce won over baseball. Fourteen years ago, during Senate hearings regarding his nomination as chief justice of the United States, John Roberts used a baseball metaphor to explain his view of judges’ modest role:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire…I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

On two major cases related to President Obama’s signature health care law, however, Roberts violated his 2005 pledge, wriggling himself into lexicographical contortions to uphold the measure passed by Congress. As his then-colleague Justice Antonin Scalia noted in the second ruling—which posited that the phrase “Exchange established by the state” applied to exchanges not established by states—upholding Obamacare caused Roberts to embrace “pure applesauce.”

Political Flip-Flop

She writes that he initially voted with the four other conservatives to strike down the ACA, on the grounds that it went beyond Congress’s power to regulate interstate commerce. Likewise, he initially voted to uphold the ACA’s expansion of Medicaid. But Roberts, who kept the opinion for himself to write, soon developed second thoughts.

Biskupic, who interviewed many of the justices for this book, including her subject, writes that Roberts said he felt ‘torn between his heart and his head.’ He harbored strong views on the limitations of congressional power, but hesitated to interject the Court into the ongoing health-insurance crisis. After trying unsuccessfully to find a middle way with Kennedy, who was ‘unusually firm’ and even ‘put off’ by the courtship, Roberts turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision that upheld the ACA’s individual mandate under Congress’s taxing power, while striking down the Medicaid expansion.

On the day of the ruling in June 2012, Chris Cillizza, then writing for The Washington Post, claimed that Roberts’ opinion “made good on his pledge to referee the game, not play it.” But the story Biskupic tells, which confirms prior reporting by Jan Crawford published shortly after the ruling, contradicts Cillizza’s view entirely. Roberts’ entire approach to the case consisted of playing games—and highly political ones at that.

The tenor of the passage reinforces how Roberts abandoned his stated principles in NFIB. Over and above talk of “the ongoing health insurance crisis” (perhaps a rhetorical flourish inserted by a liberal Atlantic writer) Roberts had no business feeling “torn between his heart and his head,” let alone stating as much to a reporter. Judges can feel both empathy and sympathy for parties in the courtroom and at the implications of their rulings. But facts remain facts, the law remains the law. Lady Justice remains blind for a reason.

An umpire—or a good umpire, at least—should make calls without fear or favor. If that means calling a third strike against the star slugger for the last out of the World Series, so be it. By his own admission, Roberts let factors outside the law determine his vote in the case. He abandoned his key test at a time when he should have followed it most closely.

Roberts’ Judicial Arrogance

I took that position not because I agree with Obamacare, but because Congress in 2017 decided to set the mandate penalty to zero while maintaining the rest of the law. Of course, Congress had taken no such action clarifying its intent on the law at the time of the ruling in NFIB v. Sebelius.

If the current lawsuit represents judicial activism, asking judges to take an action that Congress explicitly declined to embrace, then Roberts’ 2012 decision to uphold the individual mandate represents an act of judicial cowardice, running for cover and hiding rather than taking the decision that the law requires. For that reason alone, conservatives should refer to the law as “Robertscare”—for the justice who went out of his way to save it—rather than Obamacare. It shall stand as his epitaph.

This post was originally published at The Federalist.

A Retiree Health Care “Fix” That Isn’t

Since the Affordable Care Act became law in 2010, supporters and opponents have argued about whether the measure would lead employers to drop health coverage for workers. This issue has returned to the news; Wal-Mart recently decided to drop coverage for some of its part-time workers, and The Wall Street Journal reported this week that some firms, seeking to avoid employer penalties under the law, have encouraged employees to enroll in Medicaid.

While their private-sector counterparts have received more attention, public-sector employees–particularly retirees–could face similar problems with dropped coverage. The Atlantic reported last week on the trend of cities in financial distress, from Detroit to Chicago to Sheboygan, Wis., reducing or eliminating coverage and seeking to use the insurance exchanges to get out of their health-care obligations to retirees. As one pension expert quoted in the Atlantic noted, “every public-sector employer is looking at the exchanges as a potential way to get out of the unfunded liabilities that the public sector is bearing.”

But transferring state and municipal retirees to insurance plans on the exchanges doesn’t reduce the amount of unfunded liabilities; it shifts the cost from state and local governments to Washington. Many of the retirees in question could qualify for federal premium and cost-sharing subsidies for their exchange insurance policies. Even by Washington standards, the magnitude of the problem is daunting: A 2012 Pew study found that state governments held $627 billion in unfunded retiree health obligations; adding local government health plans could push those obligations toward $1 trillion.

State governments are grappling with a difficult revenue environment, while the federal government faces long-term fiscal challenges caused by demographic shifts. Given these dynamics, what looks to some mayors like a quick fix to their budget woes–shifting retirees to the federal exchanges–could, in the broader fiscal sense, amount to shifting deck chairs on the Titanic. If efforts by cities and states ultimately encourage private-sector firms to drop health coverage for their workers and retirees, they will add to our nation’s collective entitlement obligations—and could end up sinking our federal fiscal ship.

This post was originally published at the Wall Street Journal Think Tank blog.

Another Reason to Oppose Obamacare’s Taxes

An interesting article at the Atlantic’s website last week noted that the Supreme Court’s ruling that Obamacare’s mandate is a tax doesn’t just violate the President’s “firm pledge” not to raise taxes – it could also undermine Obamacare itself.  Based on research in behavioral economics, George Washington University professor Naomi Schoenbaum concludes that calling the mandate a “tax” and not a “penalty” means fewer Americans are likely to comply with it:

If the mandate is framed as a tax, this could cut in several directions, all of which would reduce health insurance coverage.  It could lead people to suspect that others are neither paying the tax nor purchasing health insurance, leading them to try this strategy themselves.  Or, given that purchasing health insurance is several times more expensive than paying the tax (which, in 2014, will be only $95 or 1% of income), people might decide to pay the tax rather than purchase the more expensive health insurance.  And this phenomenon can build on itself: once an impression of low compliance with the mandate is forged, fewer people will comply, further reinforcing the low compliance impression, and so on.

In either situation, the tax label could lead significantly fewer Americans to purchase health insurance than the penalty label would. The success of Obamacare depends crucially on people buying health insurance under the mandate rather than making a payments to the government….The only way to keep costs from skyrocketing or insurance companies from dropping out of the market, or both, is either to get more healthier, cheaper folks to join the insurance pool, or have them pay an equivalent dollar amount.  With the tax frame, though, individuals are less likely to buy health insurance.  And the mandate as currently structured forces them to pay only a small amount for the failure to do so.

The article argues that the difference between the mandate as a “tax” and the mandate as a “penalty” will have a major impact on compliance with the law – with the mandate’s tax status making it more likely the law will be undermined.  But in its re-estimate of the health care law in light of the Supreme Court’s ruling, the Congressional Budget Office said the ruling that the mandate was a tax and not a penalty did not change its assumptions about compliance with the mandate at all:

CBO and JCT’s original assessment of the effects of the coverage requirement was strongly rooted in comparisons with other taxes and penalties, drawing heavily from the academic literature on tax compliance.  In earlier estimates, CBO and JCT expected that individuals would perceive the mandate as a requirement to purchase insurance or pay a penalty tax administered by the Internal Revenue Service.  Because the Court upheld the constitutionality of that arrangement, CBO and JCT continue to expect similar behavioral responses to the insurance requirement.

Put another way, the Atlantic piece emphasizes how CBO’s score of Obamacare – by assuming strong compliance with the unprecedented individual mandate – is an optimistic, and possibly unrealistic, prediction of how the law will be implemented and enforced.

“Educating” Seniors about the Health Care Law

Yesterday the National Council on Aging released a poll highlighting seniors’ views on the health care law.  The poll was funded by a grant from the Atlantic Philanthropies, a liberal foundation headed by a Huffington Post blogger and focused on “enduring social change.”  Perhaps unsurprisingly given the poll’s sponsor, the survey contained a number of “objective” questions where the facts, as categorized by non-partisan experts, vary significantly from the “correct” answers asserted by the pollsters:

  • The survey says that the law will not “result in future cuts to your basic Medicare benefits,” but the Medicare actuaries concluded that about 15 percent of hospitals and related Medicare providers could become unprofitable within ten years, “possibly jeopardizing access to care for beneficiaries.”
  • The survey says that the law will not “increase the federal budget deficit over the next ten years and beyond,” but the Medicare actuaries found that the Medicare savings provisions “are unlikely to be sustainable on a permanent annual basis,” and the Congressional Budget Office concluded that many of the law’s major savings provisions “might be difficult to sustain for a long period,” and should not be expected actually to occur.
  • The survey says that the law will extend the solvency of the Medicare trust fund, but the Congressional Budget Office found that the provisions “would not enhance the ability of the government to pay for future Medicare benefits.”
  • The survey says that the law “will improve the availability of long-term care at home for seniors with disabilities,” but the Medicare actuaries found the law’s new long-term care entitlement, the CLASS Act, “faces a significant risk of failure;” even one leading Democrat called the CLASS Act “a Ponzi scheme of the first order, the kind of thing Bernie Madoff would have been proud of.”
  • The survey says that the law may or may not lead Medicare Advantage plans to “cut benefits and increase premiums,” but the Congressional Budget Office found that extra benefits for seniors would fall by an average of more than $800 per year by 2019 – and millions more seniors will lose their Medicare Advantage plan entirely.

Given the vast inconsistencies between the survey’s supposed “facts” and the assessments of independent observers, some may be encouraged to know that not a single person got all the “correct” answers defined by the poll’s sponsors.  But others may question the implications of announcing a “Straight Talk for Seniors” campaign that, based on the questions above, relies on incomplete, inaccurate, or misleading assertions – and fails to consider the impartial statements of the non-partisan Medicare actuaries and CBO.  Liberal groups supporting the law are entitled to their opinions, but not their own facts.