Pelosi Health Bill Would Expand Fraud, Undermine Federalism

Anyone who thought the defeat of Sen. Bernie Sanders in the Democrat presidential primaries ended the left’s quest for government control of health care should think again. Legislation introduced last week by House Democratic leaders, to be voted on by the House this week, would substantially expand Washington’s role in the welfare state, encouraging wasteful and fraudulent Medicaid spending and undermine the constitutional principles of federalism.

It seems bad enough that House Democrats decided to raid Medicare to the tune of nearly half a trillion dollars to fund their legislation. That these raided funds would go towards more than $200 billion in new Medicaid spending on individuals potentially ineligible for the program seems especially irresponsible.

Increased Fraud Risk

While expanding federal subsidies for exchange plans, the legislation would accelerate Obamacare’s movement to federalize Medicaid by placing additional requirements and mandates on states. For instance, the bill requires all Medicaid plans — even in states with approved Medicaid waivers — to cover individuals determined eligible for a minimum of 12 months.

Government audits have demonstrated that this policy of continuous eligibility leaves Medicaid programs ripe for waste, fraud, and abuse. In November 2018, Louisiana’s legislative auditor published a study showing individuals initially deemed eligible for Medicaid remained on the rolls despite having incomes as high as $145,146. Following the audit, Louisiana began more frequent eligibility checks and removed more than 30,000 ineligible individuals from the rolls — including at least 1,672 with incomes of over $100,000 — saving taxpayers approximately $400 million.

Broader economic studies confirm the experience of Louisiana. One report released last summer found that most of Obamacare’s coverage gains came from Medicaid and not insurance exchanges — even at income levels well above the threshold for Medicaid expansion. At a time a growing amount of evidence suggests millions of ineligible individuals are enrolling in Medicaid, the new House bill would sharply restrict states’ ability to remove ineligible individuals from the rolls.

On Friday, the Congressional Budget Office released its fiscal analysis of the Democrat legislation. The CBO concluded the continuous eligibility provision alone would result in $216.8 billion in new federal spending plus additional unfunded costs on states. A descriptive analysis of this provision was not provided by the CBO, but it is likely much of the $216.8 billion would fund Medicaid spending on individuals who beforehand would have lost eligibility for the program.

Unconstitutional Orders on States

Importantly, the bill undermines the flexibility of states in other ways, punishing any that have not accepted Obamacare’s Medicaid expansion to able-bodied adults. It would phase in a 10-percentage point reduction in non-expansion states’ federal match rate for administrative expenses — even as it imposes more administrative costs in the form of new reporting requirements. The move directly violates the Supreme Court’s 2012 opinion in NFIB v. Sebelius, which said Congress cannot “penalize states that choose not to participate in that new program [i.e., Medicaid expansion] by taking away their existing Medicaid funding.”

In permanently extending the State Children’s Health Insurance Program, the bill would eliminate the caps on federal funding that have defined the program since its creation nearly a quarter-century ago. It would also perpetually expand provisions first included in Obamacare that prohibit states from restricting eligibility. Together, these changes would essentially convert a program originally designed as a block grant into a permanent entitlement for states and individuals.

Wasteful Spending Is Obamacare on Steroids

Despite all these new restrictions on Medicaid and children’s health insurance programs, the bill does expand state flexibility in one important way: by eliminating all income eligibility thresholds for children. If states want to provide government-funded health care to the children of millionaires, the legislation would give them federal funds to do so, demonstrating that House Speaker Nancy Pelosi and her fellow Democrats only support Medicaid flexibility when states expand the number of people receiving government health care.

As Pelosi argues for a trillion-dollar bailout of state and local budgets, she has offered an excellent reason for Congress to reject both the bailout and the Obamacare “enhancement” act. Rather than giving states additional flexibility to remove ineligible individuals and narrow their budget gaps, the bill’s additional — and in at least one case, unconstitutional — mandates would cause Medicaid spending to balloon, leading to more state bailouts in subsequent years. Both taxpayers and the Constitution deserve better than this latest plan to put Obamacare on steroids.

This post was originally published at The Federalist.

End the Absentee Congress

When House Speaker Nancy Pelosi (D-CA) met with protestors on the East Front of the Capitol last Wednesday, she echoed the nation’s outrage over the horrific killing of George Floyd while in police custody. She also provided ample justification for ending the constitutionally questionable experiment in proxy voting that the House recently authorized.

It raises an obvious question of double standards: If Pelosi can gather with masses of protestors in Washington, why can’t she convene Congress in person? Officials in Congress have come up with numerous protocols to protect members of Congress as well as their staff from contracting the coronavirus—measures not always used by the protestors. Yet in the past week, several members who refused to travel to Washington for votes in late May personally attended protests in their districts.

These elected officials have their priorities backward. If members can protest in mass gatherings with their constituents, they can engage in another mass gathering to represent their constituents—by flying to Washington and doing the job that taxpayers paid them to do.

Resolution Passed in May

On May 15, Democrats in the House of Representatives voted along party lines on a resolution permitting the speaker to authorize remote voting by proxy for 45-day periods. The following week, Pelosi issued such an authorization, citing health issues surrounding the coronavirus. The House utilized proxy voting during three sessions from May 26-28, after which House Democratic leaders said they would keep the chamber in recess for most of June.

Pelosi did not count herself alone among House Democrats in deciding the Floyd protests superseded prior health concerns over large public events. A review of their Twitter accounts reveals that at least one-fifth of the 70 House Democrats who utilized proxy voting to avoid assembling in Washington attended some form of mass gathering—whether a roundtable, press conference or protest—in the days following Floyd’s killing.

Pelosi wore a mask when meeting with the protestors, and many of the House Democrats who attended protests did likewise. But particularly given the new social distancing precautions at the Capitol, it becomes difficult to square the notion of voting by proxy, or keeping the House in recess, to avoid gathering 435 House members in Washington during the pandemic when some of those very same folks attend even larger gatherings in their home districts.

The ironies of these circumstances abound. House Democrats who voted to impeach President Trump for abuse of power have increased the authority of Pelosi and House leaders, passing a resolution that permits as few as 20 members physically present in Washington to convene the House of Representatives. Those protesting systemic injustices have temporarily curtailed their ability to change that system, by absenting themselves from Washington for weeks at a time.

A Better Alternative

Of course, some members of Congress have understandable health-related reasons for avoiding travel to Washington. Others may feel a need to quarantine to protect vulnerable family members, or after possible exposure to the virus themselves.

In those circumstances, the longstanding legislative custom of pairing can allow members on both sides of an issue to express their views in a way that will not affect legislative votes. For instance, in October 2018 Sen. Steve Daines (R-MT) wanted to support the Supreme Court nomination of Brett Kavanaugh—but his daughter’s wedding prevented him from making the Saturday vote. In this case, Sen. Lisa Murkowski (R-AK), who opposed the nomination, voted “present” rather than “no,” so that her vote would essentially “cancel out” Daines’ non-vote.

End the Proxy Charade

Proxy voting in Congress presents numerous issues. For one, it raises questions about whether members not physically present in Washington count towards the quorum required by the Constitution for each chamber of Congress to conduct business. House Republicans have already filed a lawsuit against the proxy voting system on that basis.

Proxy voting also empowers party leaders over the rank-and-file, by keeping the latter more distant from the Capitol for long periods. The bosses in Congress make too many decisions unilaterally as it is—House members should halt the Pelosi power grab by stopping the charade of proxy voting.

For those whose health issues preclude travel, both parties should facilitate a pairing process through the usual channels. In all other cases, Congress should return to in-person voting, with appropriate social distancing and health protocols in place. It’s time to end proxy voting, and nix Pelosi’s Potemkin Congress.

This post was originally published at The Federalist.

The Bigger Problem with SCOTUS’ Obamacare Bailout Ruling

I’ll start with the bad news: The Supreme Court granted insurers nearly $12 billion in Obamacare bailout funds. And now the worse news: It allowed the executive to stick Congress with the bill for unconstitutional actions lawmakers never authorized.

The ruling, issued on Monday after the Court heard oral arguments in December, made the case sound simple: Obamacare created an obligation on the federal government to pay insurers’ risk corridor claims. Congress refused to appropriate the money. Therefore insurers can go to court and obtain the $12 billion in question from the Judgment Fund, which has a permanent, unlimited appropriation to pay legal claims against the government.

But the reality doesn’t match the ruling’s cut-and-dried approach. Unilateral actions by the executive paved the way for risk corridors’ massive losses, a fact neither insurers nor liberal Obamacare supporters like to admit.

The Bailout’s Origins

In many ways, the Supreme Court case has its roots in guidance released by the Obama administration in November 2013. At that point, millions of people had received plan cancellation notices, but couldn’t buy health insurance plans while healthcare.gov remained in meltdown. President Obama faced withering and justified criticism for his “Lie of the Year”—the promise that “If you like your plan, you can keep it.”

The Department of Health and Human Services (HHS) tried to stanch the political bleeding. Instead of sending cancellation notices, states and insurers could allow individuals to retain plans purchased after Obamacare’s March 2010 enactment, but before the major insurance regulations went into effect on January 1, 2014.

Coming at a very late date, HHS’s unilateral action threatened to create more chaos for insurers. The carriers had priced their policies assuming millions of individuals with pre-Obamacare policies would lose their existing plans and sign up for exchange coverage. Instead, these largely healthy individuals would remain outside of Obamacare, as millions of sicker individuals flooded onto exchanges to obtain the richer Obamacare coverage.

How did HHS propose to offset insurers’ potential losses from this late change to their enrollee profile? The same November 2013 guidance allowing pre-Obamacare policies to remain in place proposed risk corridors as the solution:

Though this transitional policy was not anticipated by health insurance issuers when setting rates for 2014, the risk corridor program should help ameliorate unanticipated changes in premium revenue. We intend to explore ways to modify the risk corridor program final rules to provide additional assistance.

In theory, risk corridors required plans with outsized profits on Obamacare policies to subsidize insurers with outsized losses. But because many insurers kept their pre-Obamacare policies in place, many more insurers suffered losses than gains. The program suffered approximately $12 billion in losses during its three years (2014-16), losses which prompted insurers’ suit, to recover the billions they consider themselves owed.

Unconstitutional Actions

But as law professor Nicholas Bagley (an Obamacare supporter) and others have pointed out, HHS’s November 2013 guidance came with a big catch: It violated the president’s constitutional duty to “take care that the laws be faithfully executed.” In essence, the Obama administration had stated that it would not enforce the law—the new insurance regulations coming into effect, which had led insurers to send the cancellation notices in the first place—because it found doing so politically inconvenient. (Sadly, the Trump administration has continued the unconstitutional behavior, by similarly allowing the plans to remain in effect.)

Those unconstitutional actions imposed major financial losses on insurers, an assertion that comes not just from the HHS guidance quoted above, but from the insurers themselves. An amicus brief submitted in the Supreme Court case by Americans for Prosperity noted that the insurer plaintiffs themselves admitted the administration’s unilateral actions represented the root cause of much of their financial losses:

As one Petitioner notes, this ‘unexpected policy change had marked and predictable effects.’ It lowered enrollment and since ‘the announcement came after premiums had been set[,]’ Petitioners were stuck with the prices they set, forced to ‘[b]ear greater risk than they accounted for[.]’ Petitioners argue that HHS recognized ‘that its unexpected policy shift could subject insurers on the exchanges to unanticipated higher average claims costs … [b]ut,’ the agency allayed their fears by providing reassurance that the risk corridors program would cover any losses. The Petitioners go through a lengthy history of HHS’s actions, pinning much of the blame on HHS’s ‘rosy scenario’ of how things would work out. [Internal citations omitted.]

Sticking Taxpayers with the Tab

Insurers could have responded in a different manner to the HHS guidance. They could have cancelled all their pre-Obamacare policies anyway, or they could have challenged the guidance in court. Some took the former action, because some states forced carriers to cancel all pre-Obamacare plans—but none took the latter course. In the main, insurers decided to take their chances, roll the dice, and not take a confrontational tack with the Obama administration, largely hoping they would receive the risk corridor bailout HHS alluded to in its guidance.

But Congress can, and should, have a say in the matter. A policy enacted unilaterally, and unconstitutionally, by HHS resulted in a financial impact (in the form of risk corridors) to the tune of billions of dollars.

Yes, Congress could have passed more stringent language blocking any appropriation for a risk corridor bailout. But following that logic to its conclusion would have effectively turned the Constitution on its head: The executive can make a unilateral, and unconstitutional, change, and both Congress and taxpayers have to pay the bill for it—unless and until Congress passes legislation by a veto-proof majority to undo the financial consequences of an action the executive never had authority to take in the first place.

A Costly ‘Bait-and-Switch’

Insurers decried the risk corridor funding shortfall as a “bait-and-switch” by Congress: Lawmakers authorized the payments as part of Obamacare, but never ponied up an appropriation for an obligation Congress created.

Risk corridors did suffer from a “bait-and-switch,” but it came from the Obama administration, not Congress. HHS changed the rules of the game, causing insurers major losses on their Obamacare plans—and sticking taxpayers with much of that tab via risk corridors.

But neither the majority opinion in the Supreme Court ruling, nor Justice Alito’s dissent, addressed the Obama administration’s “bait-and-switch.” As a result, the court created a bad precedent that empowers the executive, further diminishes the role of Congress, and places taxpayers at risk for more unilateral bailouts in the future.

This post was originally published at The Federalist.

Why Pete Buttigieg’s Health Plan Might Be More Radical than Bernie Sanders’

During the most recent Democratic primary debate in New Hampshire, former South Bend Mayor Pete Buttigieg claimed that his health-care plan, unlike the single-payer proposal advocated by Vermont Sen. Bernie Sanders, would “not polarize the American people.” But contra the candidate’s claims, Buttigieg’s health plan advocates a policy—government price controls on the entire health-care sector—even more far-reaching than Sanders’s socialist approach.

Others have exposed how Buttigieg’s plan would force people to buy insurance costing thousands of dollars, whether they want it or not. But his proposal for government price controls across a $4 trillion health-care sector represents the most radical idea yet—because, unlike Sanders’s plan, individuals appear to have no way to opt out.

National Price Controls

Buttigieg’s plan, released in September, would “prohibit health care providers from pricing irresponsibly by capping their out-of-network rates at twice what Medicare pays.” (Upon entering the race for the Democratic presidential nomination last November, New York Mayor Michael Bloomberg also adopted this rate-capping provision in his health plan.) Buttigieg admits that, by capping out-of-network rates, his proposal would give insurers leverage to demand lower prices for in-network care, creating a de facto system of national price controls for the entire health-care sector.

Imposing price controls on nearly 20 percent of the American economy, and linking those price controls to Medicare rates, would have substantial distortionary impacts. For starters, Medicare often does not reimburse medical providers at a rate to recover their costs. The Medicare Payment Advisory Commission estimated last March that hospitals would incur a -11 percent margin on their Medicare patients in 2019.

Moreover, because Medicare payment rates reflect the cost of treating the over-65 population—not many Medicare beneficiaries need maternity care, for instance—even supporters of capping rates have questioned the wisdom of linking such caps to Medicare levels.

More broadly, a national system of price controls could create health-care shortages. Facing reductions in pay, doctors could decide to retire early, and aspiring physicians could avoid the profession entirely. With the United States already facing a shortage of up to 121,900 physicians between now and 2032, Buttigieg’s price controls would reduce the physician supply still further.

Pathway to Single Payer—With No Exit

Despite the contrast he attempts to draw with Sanders’s plan, Buttigieg’s price controls would likely lead to a fully government-run system. Buttigieg admits a desire for his plan to provide a “glide path” to single-payer; its price controls provide an easy mechanism for such a transition.

By reducing the payments that private health insurers can offer doctors and hospitals, Buttigieg would slowly sabotage individuals’ existing coverage, throwing all Americans into a government-run health system. Indeed, his price caps provide an easy mechanism to force more and more individuals off their private coverage. While Buttigieg says he wants to cap payments at double Medicare rates, he could lower that cap over time. Of course, capping private health-care reimbursements at less than Medicare rates would all-but-guarantee private health insurance would cease to exist, because few doctors would agree to accept it.

Patients facing long waits for care would have no way to get around queues created by Buttigieg’s socialistic price controls. Sanders’s single-payer legislation allows physicians and patients to contract privately by paying cash for health-care services. But Buttigieg’s plan does not envision a mechanism for Americans to opt out of his price control regime. If Medicare pays $50 for a service, a patient could not pay a physician more than $100 for that service—no matter how experienced or qualified the physician, and no matter how desperate the patient.

The questionable constitutionality of Buttigieg’s plan belies its purportedly moderate nature. On the one hand, he would compel all individuals to pay for health insurance—whether they want it or not, and whether they use it or not. On the other, he would prohibit individuals from engaging in private transactions with their own doctors and hospitals if the amounts of those transactions exceed federally defined limits.

Differences in tone notwithstanding, Sanders and Buttigieg represent two halves of the same general approach to health care, expanding a technocratic leviathan that will attempt to micromanage nearly one-fifth of the economy from Washington. Doctors and patients, take note.

This post was originally published at The Federalist.

Three Ways Pete Buttigieg Is No Moderate

In recent weeks, former South Bend Mayor Pete Buttigieg has enjoyed a boomlet in polls for the Democratic presidential nomination, helped in no small part by fawning press coverage. Politico and others have examined the candidate and his supposedly “moderate” message.

Rhetoric aside, however, the substance of Buttigieg’s policy plans seem anything but moderate. On multiple issues, Pete has embraced positions far to the left of anything Hillary Clinton dared endorse in her campaign four years ago, and which seem “moderate” only in comparison to the socialist delusions of candidates like Sen. Bernie Sanders (I-Vt.).

1. Big Tax Increases on the Middle Class

As I first noted last month, Buttigieg has supported at least one, and quite possibly several, tax increases on the middle class. His retirement security plan included one explicit tax increase on working families, endorsing legislation that would raise payroll taxes as part of a new regime of paid family leave.

The retirement white paper, released just before Thanksgiving, implicitly endorsed a second tax increase on the middle class as well. The plan proposed a new entitlement program, Long-Term Care for America, designed to replace the CLASS Act included in Obamacare, but which Congress repealed prior to its implementation due to solvency concerns. Buttigieg’s paper didn’t say how it would pay for the new spending created by the program, but other studies cited by the campaign did: They proposed another increase in the payroll tax, which would also fall on middle-class families.

I wrote about Buttigieg’s tax plans in the Wall Street Journal last month. Yet following that article, no one from the Buttigieg campaign bothered to refute, smack down, or otherwise correct my assertion that their candidate wants to tax middle-class families.

The deafening silence from the Buttigieg campaign regarding my op-ed suggests the candidate does indeed want to raise taxes on the middle class—he just hopes that no one will notice that fact. It seems like an ironic bit of silence, given that Buttigieg attacked Sen. Elizabeth Warren (D-MA) for being “extremely evasive” on the issue of middle-class tax increases last fall.

2. ‘Insurance, Whether You Want It or Not’

Buttigieg likes to advertise his health care plan as “Medicare for All Who Want It,” but as several stories over the holiday revealed, it comes with an intrusive twist. While his plan says that “individuals could opt out of public coverage,” they could do so only “if they choose to enroll in another insurance plan.”

In other words, Buttigieg would compel people to buy insurance—whether they want to or not, enforcing this revived individual mandate through the tax code. On April 15, individuals who didn’t enroll in health insurance the previous year would get a bill for coverage, which could total $5,000 or more, whether they wanted that coverage or not, and whether they knew they had that coverage or not.

It’s far from clear that this new “mandate on steroids” would pass constitutional muster. In 2012, the Supreme Court under Chief Justice Roberts blessed Obamacare’s mandate as a tax in part because “for most Americans the amount due will be far less than the price of insurance…It may often be a reasonable financial decision to make the payment rather than purchase insurance.”

Roberts justified Obamacare’s mandate as a tax because it gave the public a genuine choice: Buy insurance, or pay the IRS a tax. Buttigieg’s plan would give the public a Hobson’s choice: Buy insurance, or have insurance bought for you. It represents a significant increase in federal powers—one courts could (and should) strike down.

3. ‘Glide Path’ to Socialized Medicine

Notwithstanding his use of a strengthened individual mandate, Buttigieg ultimately wants to end up with a single-payer system of socialized medicine. He has made no bones about his objective, claiming that his health-care plan would provide a “glide path” to socialism.

As with most of the 2020 Democratic candidates who haven’t endorsed single payer explicitly, Buttigieg’s plan contains several characteristics designed to promote the growth of government-run health care. For instance, he would automatically enroll millions of individuals into the government-run health plan. (He claims Americans could opt out of the government plan, but if he wants the system to end in single payer, how easy would he make it for them to do so?) And he has proposed capping the amount that both private and public insurers can pay physicians and hospitals for health treatments, another way to funnel Americans into the government-run system.

Buttigieg’s plan would create the architecture to create a government-run system of socialized medicine. He just would build that edifice slightly more slowly than Sanders would. It represents but one of the big-government dreams of a candidate who, despite soothing rhetoric, has little in the way of policies to justify the term “moderate.”

This post was originally published at The Federalist.

Unanswered Questions on Single Payer

This month’s Democratic presidential debate will likely see a continued focus on the single-payer health care proposal endorsed by Sens. Bernie Sanders of Vermont and Elizabeth Warren of Massachusetts. But for all the general discussion — and pointed controversy — over single payer at prior debates, many unanswered questions remain. The moderators should ask Sanders and Warren about the specific details of their legislation, such as:

►Section 901(A) of the bill states that “no benefits shall be available under Title XVIII of the Social Security Act” — i.e., Medicare. And an analyst with the liberal Urban Institute has said that “you can call (the bill) many things — from ambitious to unrealistic. But please don’t call it Medicare.” Why do you insist on calling your proposal “Medicare for All” when it would bear little resemblance to the Medicare program and, in fact, would abolish it outright?

►You have claimed that single payer will make health care a human right. But the bill itself does not guarantee access to a doctor — it only guarantees that patients will have their care paid for if they can find a doctor or hospital willing to treat them. In fact, in 2005, the Canadian Supreme Court ruled that “access to a waiting list is not access to health care,” because patients in that country’s single-payer system could not access care in a timely fashion. Why are you promising the American people access to care when your bill falls short of that promise?

►The Urban Institute estimated that a similar single-payer plan would raise national health care spending by $719.7 billion a year, because abolishing cost-sharing (e.g., deductibles, copayments, etc.) will increase demand for care. But the People’s Policy Project called Urban’s estimates “ridiculous,” because “there is still a hard limit to just how much health care can be performed because there are only so many doctors.” Which position do you agree with — the Urban Institute’s belief that individuals consuming more “free” health care will cause spending to rise, or the position that spending will not increase because at least some people who demand care will not be able to obtain it?

►Countries like Canada and Great Britain, both of which have single-payer health care systems, permit individuals to purchase private insurance if they wish — and many Canadians and Brits choose to do so. Why would you go beyond Canada, Britain and other countries to make private health insurance “unlawful” — and do you believe taking away individuals’ private insurance can pass constitutional muster with the Supreme Court?

►Four years ago, your Senate colleague Robert Menendez, D-N.J., was indicted for accepting nearly $1 million in gifts and favors from a Florida ophthalmologist. Menendez had tried to help that ophthalmologist — who was eventually convicted on 67 counts of defrauding Medicare — in a billing dispute with federal officials. Given this ethically questionable conduct by one of your own colleagues regarding the Medicare program, why does your legislation include no new provisions fighting fraud or corruption, even as it vastly expands the federal government’s power and scope?

►You have criticized President Donald Trump for his supposed attempts to “sabotage” the exchanges created under President Barack Obama’s health care law. How, then, would you stop a future Republican president from sabotaging a single-payer system when your legislation would vest more authority in the federal government than President Trump has?

Once Warren and Sanders finish answering these questions, the American people will likely recognize that, the senators’ claims to the contrary notwithstanding, single payer doesn’t represent a good answer for our health care system at all.

This post was originally published at USA Today.

Analyzing the Gimmicks in Warren’s Health Care Plan

Six weeks ago, this publication published “Elizabeth Warren Has a Plan…For Avoiding Your Health Care Questions.” That plan came to fruition last Friday, when Warren released a paper (and two accompanying analyses) claiming that she can fund her single-payer health care program without raising taxes on the middle class.

Both her opponents in the Democratic presidential primary and conservative commentators immediately criticized Warren’s plan for the gimmicks and assumptions used to arrive at her estimate. Her paper claims she can reduce the 10-year cost of single payer—the amount of new federal revenues needed to fund the program, over and above the dollars already spent on health care (e.g., existing federal spending on Medicare, Medicaid, etc.)—from $34 trillion in an October Urban Institute estimate to only $20.5 trillion. On top of this 40 percent reduction in the cost of single payer, Warren claims she can raise the $20.5 trillion without a middle-class tax increase.

The Left’s Health Care Vision a Prescription for Brute Government Force

Even as Democrats inveigh against President Trump for his alleged norm-shattering and contempt for the rule of law, their health care plans show a growing embrace of authoritarianism. For instance, Rep. Adam Schiff (D-CA) recently dubbed the President’s July 25 call with Ukrainian President Volodymyr Zelensky “a classic mafia-like shakedown.” He knows of which he speaks, because the Democratic agenda on health care now includes threats to destroy any entities failing to comply with government-dictated price controls.

The latest evidence comes from Colorado, where several government agencies recently submitted a draft report regarding the creation of a “state option” for health insurance. The plan would not create a state-run health insurer; instead, it would see agencies dragooning private sector firms to comply with government diktats.

The plan would “require insurance carriers that offer plans in a major market,” whether individual, small group, or large group, “to offer the state option as well.” In these state-mandated plans insurers must offer, carriers would have to abide by stricter controls on their administrative costs, in the form of medical loss ratio requirements, than those dictated by Obamacare.

For medical providers, the Colorado plan would use “payment benchmarks” to cap reimbursement amounts for doctors and hospitals. And if hospitals decline to accept these government-imposed price controls, the report ominously says that “the state may implement measures to ensure health systems participate.”

In comments to reporters, Colorado officials made clear their intent to coerce providers into this price-controlled system. Insurance Commissioner Michael Conway admitted that “If our hospital systems don’t participate, this won’t work….We can’t allow that to happen.” The head of Colorado’s Department of Health Care Policy and Financing, Kim Bimestefer, said that “if we feel that the hospitals are not going to participate, we will require their participation.”

State officials did not elaborate on the mechanisms they would use to compel participation in the state option. But they could attempt to require hospitals and insurers to participate in the new plan to maintain their license to operate in Colorado—a likely unconstitutional condition of licensure.

In threatening this level of coercion—agree to price controls, or we’ll shut down your business—Colorado Gov. Jared Polis imitated his fellow Democrat, House Speaker Nancy Pelosi. Pelosi’s proposed drug pricing bill, up for a vote in the House as soon as next month, would impose excise taxes of up to 95 percent of a drug’s sale price if companies refuse to “negotiate” with the federal government.

In its analysis of Pelosi’s legislation, the Congressional Budget Office (CBO) noted that, because drug makers could not deduct the 95 percent excise tax for income tax purposes, “the combination of income taxes and excise taxes on the sales could cause the drug manufacturer to lose money if the drug was sold in the United States.” Perhaps unsurprisingly, CBO concluded that the excise tax would not generate “any significant increase in revenues,” as “manufacturers would either participate in the negotiating process”—because they have no effective alternative—“or pull a particular drug out of the U.S. market entirely.”

CBO also noted, in a classic bit of understatement, that Pelosi’s bill “could result in litigation,” for threatening losses on any company that dares defy the government’s offer of “negotiation.” But the left seems uninterested in abiding by limits on government power—or the consistency of its own arguments. As I noted this spring, other proposed legislation in Congress would abolish the private health care market. Less than one decade after forcing all Americans to buy a product for the first time ever, in the form of Obamacare’s insurance mandate, liberals now want to prohibit all Americans from purchasing care directly from their doctors.

These recent proposals continue a virulent strain of authoritarianism that has permeated progressivism’s entire history. Franklin Roosevelt threatened to invoke emergency powers during his first inaugural address, and Rahm Emanuel infamously said during the Great Recession that “you never want a serious crisis to go to waste.” Make no mistake: The health care system needs patient-centered reform. But the true crisis comes from the progressives who would utilize blunt government force to seize control of one-fifth of the nation’s economy.

This post was originally published at The Daily Wire.

Three Obstacles to Senate Democrats’ Health Care Vision

If Democrats win a “clean sweep” in the 2020 elections—win back the White House and the Senate, while retaining control of the House—what will their health care vision look like? Surprisingly for those watching Democratic presidential debates, single payer does not feature prominently for some members of Congress—at least not explicitly, or immediately. But that doesn’t make the proposals any more plausible.

Ezra Klein at Vox spent some time talking with prominent Senate Democrats, to take their temperature on what they would do should the political trifecta provide them an opportunity to legislate in 2021. Apart from the typical “Voxplanations” in the article—really, did Klein have to make not one but two factual errors in his article’s first sentence?—the philosophy and policies the Senate Democrats laid out don’t stand up to serious scrutiny, on multiple levels.

Problem 1: Politics

The first problem comes in the form of a dilemma articulated by none other than Ezra Klein, just a few weeks ago. Just before the last Democratic debate in July, Klein wrote that liberals should not dismiss with a patronizing shrug Americans’ reluctance to give up their current health coverage:

If the private insurance market is such a nightmare, why is the public so loath to abandon it? Why have past reformers so often been punished for trying to take away what people have and replace it with something better?…

Risk aversion [in health policy] is real, and it’s dangerous. Health reformers don’t tiptoe around it because they wouldn’t prefer to imagine bigger, more ambitious plans. They tiptoe around it because they have seen its power to destroy even modest plans. There may be a better strategy than that. I hope there is. But it starts with taking the public’s fear of dramatic change seriously, not trying to deny its power.

Democrats’ “go big or go home” theory lies in direct contrast to the inherent unease Klein identified in the zeitgeist not four weeks ago.

Problem 2: Policy

Klein and the Senate Democrats attempt to square the circle by talking about choice and keeping a role for private insurance. The problem comes because at bottom, many if not most Democrats don’t truly believe in that principle. Their own statements belie their claims, and the policy Democrats end up crafting would doubtless follow suit.

Does this sound like someone who 1) would maintain private insurance, if she could get away with abolishing it, and 2) will write legislation that puts the private system on a truly level playing field with the government-run plan? If you believe either of those premises, I’ve got some land to sell you.

In my forthcoming book and elsewhere, I have outlined some of the inherent biases that Democratic proposals would give to government-run coverage over private insurance: Billions in taxpayer funding; a network of physicians and hospitals coerced into participating in government insurance, and paid far less than private insurance can pay medical providers; automatic enrollment into the government-run plan; and many more. Why else would the founder of the “public option” say that “it’s not a Trojan horse” for single payer—“it’s just right there!”

Problem 3: Process

Because Democrats will not have a 60-vote margin to overcome a Republican filibuster even if they retake the majority in 2020, Klein argues they can enact the bulk of their agenda through the budget reconciliation process. He claims that “if Democrats confine themselves to lowering the Medicare age, adding a [government-run plan], and negotiating drug prices, there’s reason to believe it might pass parliamentary muster.”

Of course Klein would say that—because he never worked in the Senate. It also appears he never read my primer on the Senate’s “Byrd rule,” which governs reconciliation procedures in the Senate. Had he done either, he probably wouldn’t have made that overly simplistic, and likely incorrect, statement.

Take negotiating drug prices. The Congressional Budget Office first stated in 2007—and reaffirmed this May—its opinion that on its own, allowing Medicare to negotiate drug prices would not lead to any additional savings.

That said, Democrats this year have introduced legislation with a “stick” designed to force drug companies to the “negotiating” table. Rep. Lloyd Doggett (D-Texas) introduced a bill (H.R. 1046) requiring federal officials to license the patents of companies that refuse to “negotiate” with Medicare.

While threatening to confiscate their patents might allow federal bureaucrats to coerce additional price concessions from drug companies, and thus scorable budgetary savings, the provisions of the Doggett bill bring their own procedural problems. Patents lie within the scope of the House and Senate Judiciary Committees, not the committees with jurisdiction over health care issues (Senate Finance, House Ways and Means, and House Energy and Commerce).

While Doggett tried to draft his bill to avoid touching those committees’ jurisdiction, he did not, and likely could not, avoid it entirely. For instance, language on lines 4-7 of page six of the Doggett bill allows drug companies whose patents get licensed to “seek recovery against the United States in the…Court of Federal Claims”—a clear reference to matter within the jurisdiction of the Judiciary Committees. If Democrats include this provision in a reconciliation bill, the parliamentarian almost certainly advise that this provision exceeds the scope of the health care committees, which could kill the reconciliation bill entirely.

But if Democrats don’t include a provision allowing drug manufacturers whose patents get licensed the opportunity to receive fair compensation, the drug companies would likely challenge the bill’s constitutionality. They would claim the drug “negotiation” language violates the Fifth Amendment’s prohibition on “takings,” and omitting the language to let them apply for just compensation in court would give them a much more compelling case. Therein lies the “darned if you do, darned if you don’t” dilemma reconciliation often presents: including provisions could kill the entire legislation, but excluding them could make portions of the legislation unworkable.

Remember: Republicans had to take stricter verification provisions out of their “repeal-and-replace” legislation in March 2017—as I had predicted—due to the “Byrd rule.” (The provisions went outside the scope of the committees of jurisdiction, and touched on Title II of the Social Security Act—both verboten under budget reconciliation.)

If Republicans had to give up on provisions designed to ensure illegal immigrants couldn’t receive taxpayer-funded insurance subsidies due to Senate procedure, Democrats similarly will have to give up provisions they care about should they use budget reconciliation for health care. While it’s premature to speculate, I wouldn’t count myself surprised if they have to give up on drug “negotiation” entirely.

1994 Redux?

Klein’s claims of a “consensus” aside, Democrats could face a reprise of their debacle in 1993-94—or, frankly, of Republicans’ efforts in 2017. During both health care debates, a lack of agreement among the majority party in Congress—single payer versus “managed competition” in 1993-94, and “repeal versus replace” in 2017—meant that each majority party ended up spinning its wheels.

To achieve “consensus” on health care, the left hand of the Democratic Party must banish the far-left hand. But even Democrats have admitted that the rhetoric in the presidential debates is having the opposite effect—which makes Klein’s talk of success in 2021 wishful thinking more than a realistic prediction.

This post was originally published at The Federalist.

California Is What’s Wrong with Obamacare

In recent days, California lawmakers have finalized their budget. The legislation includes several choices regarding health care and Obamacare, most of them incorrect ones. Doling out more government largesse won’t solve rising health costs, and it will cause more unintended consequences in the process.

Health Coverage for Individuals Unlawfully Present

This move has drawn the most attention, as the budget bill expands Medicaid coverage to illegally present adults aged 19-26. California will pay the full share of this Medicaid spending, as the federal government will not subsidize health coverage for foreign citizens illegally present in the United States.

As to those who disagree with this move, one can study the words of none other than Hillary Clinton. In 1993, she testified before Congress in opposition to giving illegal residents full health benefits, because “illegal aliens” were coming to the United States for health care even then:

We do not think the comprehensive health care benefits should be extended to those who are undocumented workers and illegal aliens. We do not want to do anything to encourage more illegal immigration into this country. We know now that too many people come in for medical care, as it is. We certainly don’t want them having the same benefits that American citizens are entitled to have.

If Clinton’s words don’t sound compelling enough, consider one way that California may finance these new benefits: By reinstating Obamacare’s individual mandate. To put it another way, people who obey the law (i.e., the mandate) will fund free health coverage for people who by definition have broken the law by coming to, or remaining in, the United States unlawfully.

A Questionable Individual Mandate

This issue faces multiple questions on both process and substance. First, the budget bill includes about $8 million for the state’s Franchise Tax Board to implement an individual mandate, but doesn’t actually contain language imposing the mandate. The bill that would reimpose the mandate, using definitions originally included in the federal law, passed the Assembly late last month, but faces opposition in the Senate.

Third, implementing the mandate imposes legal and logistical challenges. I argued in the Wall Street Journal last fall that states cannot require employers who self-fund health coverage to report their employees’ insurance coverage to state authorities. The mandate bill the Assembly passed does not include such a requirement.

Without a reporting requirement on employers, a mandate could become toothless, because the state would have difficulty verifying coverage to ensure compliance—people could lie on their tax forms and likely would not get caught. However, imposing a reporting regime, either through the mandate bill or regulations, would invite an employer to claim that federal labor law (namely, the Employee Retirement Income Security Act) prohibits such a state-based requirement.

More Spending on Subsidies

While the budget bill does not include an explicit insurance mandate, it does include more than $295 million to “provide advanceable premium assistance subsidies during the 2020 coverage year to individuals with projected and actual household incomes at or below 600 percent of the federal poverty level.”

Obamacare epitomized the problems that policy-makers face in subsidizing health insurance. The federal law includes a subsidy “cliff” at 400 percent of the poverty level. Households making just under that threshold can receive federal subsidies that could total as much as $5,000-$10,000 for a family, but if their income rises even one dollar above that “cliff,” they lose all eligibility for those subsidies.

By penalizing individuals whose incomes rise even marginally, the subsidy “cliff” discourages work. That’s one of the main reasons the Congressional Budget Office said Obamacare would reduce the labor supply by the equivalent of 2.5 million full-time jobs.

California decided to replace these work disincentives with yet more spending on subsidies. This year, the federal poverty level stands at $25,750 for a family of four—which makes 600 percent of poverty equal to $154,500. In other words, a family making more than $150,000 will now classify as “low-income” for purposes of the new subsidy regime.

Hypocrisy by Officials

The individual mandate bill gives a significant amount of authority for its implementation to Covered California, the state’s insurance exchange. The bill says the exchange will determine the amount of the mandate penalty, and determine who receives exemptions from the mandate.

Who runs California’s exchange? None other than Peter Lee, the man I previously profiled as someone who earns $436,800 per year, yet refuses to buy the exchange coverage he sells. Or, to put it another way, if the mandate passes, Lee will be standing in judgment of individuals who refuse to do what he will not—buy an Obamacare plan.

If you think that seems a bit rich, you would be correct. But it epitomizes the poor policy choices and hypocritical actions taken by officials to prop up Obamacare in California.

This post was originally published at The Federalist.