Thursday, July 24, 2014

Beep Beep

photo 3 (2)

The Chase. The endless effort to reach that which is just beyond our grasp has piqued our imagination since we, as small children, watched the Coyote try to capture the Roadrunner. We knew, instinctively, that the Coyote would never succeed. But what if he did? What if the Coyote actually had his arms wrapped around the Roadrunner? Would he know what to do?

The Coyote’s struggles are humorous entertainment. The Republican’s efforts to eliminate or destroy the Patient Protection and Affordable Care Act (PPACA) have been just as entertaining if your tastes run towards political drama. John Boehner and the Republican controlled House of Representatives have been chasing the PPACA for nearly four and a half years. What would Boehner do if he actually got his hands on the PPACA, if the law was crippled or repealed? We may soon find out.

This blog has long contended that the PPACA is a poorly written law in desperate need of tweaking. Today’s problem revolves around the issue of subsidies. The law was designed, in part, to help the working poor to acquire and PAY for quality health insurance. The law’s framers envisioned individuals and families accessing a system of simple, online, state-based marketplaces and, when appropriate, tax credit subsidies to help with the premiums. The process wasn’t all that easy and over two thirds of the states decided not to build an exchange.

Creating a state-based exchange requires an incredible amount of time and energy. Some states see this as a huge waste of resources. Others, like Oklahoma, have no interest in participating in the PPACA. The federal government created the much beloved so that the millions of residents in states like Ohio could purchase coverage and qualify for the tax credit subsidies.

This past Tuesday the U.S. Court of Appeals for the District of Columbia ruled (2-1) that people purchasing coverage through the federal exchange are not eligible for the subsidies. Sure, a couple of hours later the 4th U.S. Circuit of Appeals in Richmond, Virginia reached the opposite conclusion (3-0) on a similar case, but the door had been flung open. One side or the other can still appeal, but the conflicting decisions, alone, may be enough to get this matter before the Roberts’ Supreme Court.

Could the Supreme Court eliminate the tax credit subsidies, the only way millions of Americans can afford to pay for health insurance? Yes, they could. Would the Supreme Court gut the PPACA? Who knows? Based on the Court’s recent decisions, any outcome is possible.

If the Supreme Court takes this case, I suspect that it won’t be until the fall of 2015. That means that a decision would be handed down in June 2016, right in the middle of a Presidential election. So let’s explore what would happen if the Supreme Court ruled that tax credit subsidies were only available on policies purchased on state-based exchanges.
  • The immediate effect would be the elimination of assistance to approximately 5 million Americans.
  • The Employer Mandate, a rule predicated on the availability of affordable (subsidized) coverage, would be shelved.

Republicans, having finally caught the PPACA, would be forced to actually do something.

There would be nowhere to hide. Both parties would have to state clearly how they would solve this problem. The quickest way to solve this specific issue would be to amend the law and allow subsidies for policies purchase on either the state or federal exchange. Another option would be for the states could form their own exchanges or contract with a third party to piggy back on the federal exchange. OR, we could just let everyone fend for themselves as we review the long-awaited Republican alternative.

The Republicans lose under all these scenarios.

If they fix this and a half dozen other major flaws in the law after six years of demonization, they will appear to be weak and hypocritical to their base. The few Republican members of the House and Senate needed to pass the legislation will be pilloried on FOX and by the right-wing opinion makers. It was Eric Cantor who originally introduced the “Repealing the Job Killing Health Care Law Act” HB 2 in January 2011. He will be long gone before the summer of 2016, but Paul Ryan and Ted Cruz will still be in Congress and neither could let a fix get through Congress if they still have Presidential aspirations.

The state governors face a similar problem. Republicans pushed through constitutional amendments in Ohio and other states that make the creation of a state-based exchange difficult if not impossible. Many of the Republican governors are defined by their anti-Obama/Obamacare position. They can’t bend.

The average tax credit subsidy is $5,000 per year, over $400 per month. I’m not sure which would be worse, the actual suffering caused by the repeal of the subsidies or the inevitable hair on fire commercials about the suffering. Hell, I’m suffering just thinking about it.

The Patient Protection and Affordable Care Act is almost within John Boehner’s grasp. The House has voted to repeal or change the PPACA over 50 times. But it may be the framers’ own mistakes, punished by a highly politicized Supreme Court, that will be the law’s undoing. A victory he doesn’t want over a law he loves to hate. Poor Mr. Boehner. No matter where he goes the only sound he hears is “Beep Beep”.


Monday, July 14, 2014

Muhammad Ali

The late George Carlin had a great bit about the Champ, Muhammad Ali, who was prosecuted by the federal government for refusing to participate in the draft and take a free trip to Vietnam. As Carlin pointed out, Muhammad Ali’s career involved beating people up. The government wanted him to change jobs. They wanted him to kill people. Ali said that that was where he drew the line. He’d beat them up, but he wouldn’t kill them. So the government said, “if you won’t kill ‘em, we won’t let you beat them up”.

The House of Representatives has voted to repeal the Patient Protection and Affordable Care Act (PPACA) over fifty times since January 2011. Repeal. Tear it up. Throw it away. The Republicans hate the law and want to eliminate it.

Last July the Administration chose to postpone for a year one of the most complicated and confusing portions of the new law, the employer mandate. So what do the Republicans want to do about President Obama choosing to hold off part of the implementation of this law that they hate? The Speaker of the House, John Boehner, wants to sue the President.

Even though the House has tried to postpone and/or eliminate the employer mandate, the Republicans are really offended that the President did it without them. It doesn’t seem to matter to the Boehner and his team whether this was necessary. It is strictly political for them.

All or nothing. Enforce the entire law including all of the mandates, or none at all. Except contraception, but that’s a different issue.

No President has ever delayed the implementation of a law, especially a health care law, on his own without Congressional approval. None, as long as you don’t count George Bush and the Medicare Part D (Rx) rollout in 2006.

At some point we are going to get a Congress interested in governing. This sideshow does nothing to solve the problems with This lawsuit or threat of legal action will not help even one more American have access to care.

The Supreme Court’s decision of June 28, 1971 recognized the Champ’s Conscientious Objector status. We have faith, as a country, that the Supreme Court will normally get it right. Normally, but not always.

And soon we will have the spectacle of John Boehner - a man who doesn’t want to be President, he just doesn’t want anyone else to be President – suing Barack Obama. And we are left to wonder if all of this could have been avoided if the President had just taken Boehner golfing more often or if he had invited him to build a snowman.

I know George Carlin would have been amused.


Thursday, July 3, 2014

Corporations Are People (When It's Convenient)

Bar Mitzva Invite

You are cordially invited to a very special Bar Mitzvah as Bogart, Cunix & Browning LLC becomes a man. Please join us at Temple Azrikim Hamochdim (Temple Citizens United) on Saturday, January 7, 2023. Services begin at 10 AM. The Torah will be removed from the Ark at 11. A Kiddush and Reception in the Romney Social Hall will follow the conclusion of services.

It was Mitt Romney who famously declared that corporations were people. He was derided for that comment. So many of us knew that corporations, especially closely held corporations, were artificial entities created by people for tax or liability purposes. Few of us ever imagined that this small stack of paperwork, $1,000 of attorney’s fees, would one day be considered to have the same rights and religious convictions of its creators.

And soon Bogart, Cunix & Browning LLC, our little BCB, will be a man.

The actual definition of corporation (click here) from Merriam Webster doesn’t speak of Bar Mitzvahs or Christenings. In the old days (pre-Citizens United January 2010) corporations were mainly entities created to help businesses function efficiently. Political spending by corporations in candidate elections had been prohibited. The immediate impact of the decision was the deluge of corporate sponsored attack ads over the last four years. The Hobby Lobby decision is simply the next step to dehumanize individuals while we anthropomorphize corporations.

In a 5-4 decision, the Supreme Court has decided that closely held corporations are capable of having sincere convictions and that providing all twenty forms of federally mandated contraception imposes a “substantial burden” on Hobby Lobby’s ability to exercise its religion.

I have included the link to the actual Supreme Court decision as well as to Amy Howe’s excellent analysis on ScotusBlog. As I have noted in previous posts, ScotusBlog is the first place to visit after any important Supreme Court decision if you want a plain English explanation.

Bad Law

Oliver Wendell Holmes, Jr. opined that great cases like hard cases make bad law. In its fight against a few forms of birth control, Hobby Lobby may give birth to numerous bad laws. Justice Kennedy wrote in a separate concurring opinion that this ruling was narrow and limited. Justice Ruth Bader Ginsburg is probably closer to the mark on this point. Why won’t every business owner with strong opposition to blood transfusions, same-sex marriage, or even women driving not seek to have their day in court? And how will the Supreme Court decide what is a “substantial burden” and what is not?

Even before the decision was read I had heard from clients interested in opting out of certain coverages. Some of this, as noted in Isn’t That Convenient (May 2012), is simply about employers looking to save a buck. But not all. Some business owners now see a way to express (PUSH?) their values through their business.

The first out of the gate may be businesses concerned about the Employment Non-Discrimination Act and whether it may force federal contractors to not discriminate against lesbians, gays, bisexuals and transgenders (LGBT). Will businesses owned and controlled by Christian Scientists eliminate coverage for blood transfusions? It is too early to say and there is nothing up on the Church’s official website.

It is important to remember that this is a fight that the Obama Administration wanted. Not once does the Patient Protection and Affordable Care Act (PPACA) mention an IUD. The law included 100% coverage for Preventive Care. It was Kathleen Sebelius, then the Secretary of Health and Human Services, who chose to define birth control pills, IUD’s, and the morning after pill as part of Preventive Care. Good decision? Bad decision? Either way it is important to note that it was a DELIBERATE DECISION. This, as is the case with so many of the sticking points of the PPACA, is a regulatory issue.

Hard Cases + One sided Regulations = Really Bad Law

Today the ruling applies simply to closely held corporations, but Ted Olson, the attorney who successfully argued the Citizens United case before the Supreme Court scoffs at the notion. And one day we will have corporations of any size and any religion. And these corporations will need the free exercise of their sincerely held beliefs.

Will future theologians debate whether a Christian corporation’s pathway to Heaven is through Grace or Works? And speaking of Heaven, if a Muslim corporation executes a successful hostile takeover, are there 72 shareholders waiting for it in Heaven?

I am positive of one thing. Should Hobby Lobby ever decide to convert to Judaism, there will a long line of people volunteering to perform the Bris.