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By Gregory Taggart, March 6, 2015 2:37 pm

So, I’ve mentioned Oyez.org before, but I’m going to refer you again to this great little source of entertainment–if you like to follow the Supreme Court. Today, Oyez.org published the audio of Wednesday’s oral arguments in King v. Burwell, the important challenge to the statutory construction of the Affordable Care Act, commonly known as Obamacare. I have not listened to it, but I will be doing so in a few minutes as I run–yes, you can download the arguments.

You should listen to it too, rather than paying attention to second-hand commentary on the case.

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By Gregory Taggart, March 1, 2014 4:27 pm

I don’t care which side you are (were) on in the recent outcry over Arizona’s SB1062, but I assume you are interested in the facts of what the bill did and did not do. From what I’ve read, the bill was badly misrepresented. And in the process, its proponents were labeled haters and homophobes, while Jon Stewart called the bill repugnant–even though SB1062 did not even mention same-sex marriage or homosexuality and even though it essentially copied laws that are already on the federal books and on the books of 18 states.

In fact, the proposed law would have come into play if, say, the government attempted to force a small business to provide birth control. It would have applied to a government’s attempt to compel a business to pay for abortion services for its employees. If you can think of a case where the government–state or federal–might impose a burden on someone’s sincere religious belief, the proposed law would apply. Yes, it could have come into play had a baker refused to bake a cake for a same-sex wedding.

But the bill WOULD NOT have decided the case. The bakery would still have to pass GO. The owner would still have to demonstrate that he or she was acting out of a sincere religious belief. The same-sex couple would still be able to argue that the baker’s belief was less than sincere and did not justify refusing them service. And a court would ultimately have to decide between the two parties—based on the rules set out in the proposed law. In other words, the bill did not create an exception, so religious people could discriminate willy nilly. It simply sets the standards by which a court would adjudicate such a case.

Don’t believe me? Here, for your reading pleasure, is the best description of the proposed law I’ve read. It’s written by 11 prominent law professors, some of them Republicans, some Democrats; some of them support same-sex marriage, some don’t. Nine of them felt that Gov. Brewer should have signed the bill. Two were unsure. Among the 11 are Mary Ann Glendon of Harvard and Michael McConnell of Stanford, two of the brightest lights in the legal academy.

You can read what they wrote at the link–without any filtering by the press or Comedy Central or by me. The following are three key paragraphs:

SB1062 would amend the Arizona RFRA [Religious Freedom Restoration Act] to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger. (Emphasis supplied)

A few paragraphs later, the 11 law professors summarize the bill’s impact as follows:

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision. (Emphasis supplied)

Did you catch that? Those who are refused service by a business can still sue. Those who are sued can assert the defense of sincere religious practice. And the courts get to sort it out–just like they would have done prior to the bill becoming law. The only difference is that the evidentiary rules governing that courtroom exercise would be codified.

And that’s repugnant? My eye.

Cross posted to GregoryTaggart.com.

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By Gregory Taggart, November 1, 2013 4:01 pm

The New Yorker has its say on the Affordable Care rollout.

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By Gregory Taggart, October 31, 2013 2:48 pm

So a friend asked me to check Moynihan’s thesis against vote tallies for the Civil Rights Act of 1964, another piece of landmark legislation. I don’t know about my friend, but the vote(s) on that bill stunned me. A greater number of Republicans voted for the bill than did Democrats. There were a number of votes (parliamentary procedure is beyond my ken, so I won’t go into them) but basically on both sides of Congress, 80% of Republicans voted for the bill and between 61% and 69% of Democrats went for it, depending on the vote.*

And the Moynihan thesis? It holds here as well. A bi-partisan majority of 73% passed the bill in the Senate. A bi-partisan majority of 70% voted “yea” in the House (on the the Senate version of the bill).

*Of course, Democrat numbers would have been better had it not been for their Southern siblings who voted 8 – yea, 107 – nay on the bill.

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By Gregory Taggart, October 31, 2013 1:17 pm

In a previous post, I discussed the regulations HHS promulgated in June 2010 to implement the Affordable Care Act. I failed to mention that buried in the issue of the Federal Register that contains those regulations, you’ll find the following chart:

You can find the chart and relevant discussion of both group and individual plans on pages 35,552 to 34,553 of this document. Interim-Final-Regulations_HHS-OS-2010-0015-0001_3

Forbes magazine claims that in these pages and with this chart, “Obama Officials [said] In 2010: 93 Million Americans Will Be Unable To Keep Their Health Plans Under Obamacare.” I’m not sure if Forbes’s analysis is accurate, but there’s no doubt that Obama officials knew that lots of people with group and individual health insurance were going to lose their grandfathered status, and thus the health insurance that they presumably liked, by the end of 2013.

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By Gregory Taggart, October 31, 2013 9:52 am

In a previous post, I told the following story about the late Daniel Patrick Moynihan’s advice to the Clintons:

Twenty years ago, when he was trying to persuade Bill and Hillary Clinton that universal health care was a politically unrealistic goal, the late Sen. Daniel Patrick Moynihan repeated one insistent warning: Sweeping, historic laws don’t pass barely.’They pass 70-to-30,’ he said, ‘or they fail.’ [Rahm Emanuel gave President Obama similar advice.]

Later I began to wonder, what was the vote on the original Social Security bill? Medicare and Medicaid?

Social Security:

The Ways & Means Committee Report on the Social Security Act was introduced in the House on April 4, 1935 and debate began on April 11th. After several days of debate, the bill was passed in the House on April 19, 1935 by a vote of 372 yeas [including 81 of 102 Republicans], 33 nays, 2 present, and 25 not voting. . . .

The bill was reported out by the Senate Finance Committee on May 13, 1935 and introduced in the Senate on June 12th. The debate lasted until June 19th, when the Social Security Act was passed by a vote of 77 yeas [including 16 of 25 Republicans], 6 nays, and 12 not voting. (Emphasis added)

Medicare and Medicaid:

H.R. 6675, The Social Security Admendments of 1965, began life in the House Ways & Means Committee where it passed the Committee on March 23, 1965 (President Johnson issued a statement in support of the bill after the favorable Committee vote) and a Final Report was sent to the House on March 29, 1965. The House took up consideration of the bill on April 7th, and passed the bill the next day by a vote of 313-115 [including 70 out of 140 Republicans] (with 5 not voting).

The Senate Finance Committee reported the bill out on June 30th and debate began on the Senate floor that same day, concluding with passage on July 9, 1965 by a vote of 68-21 [including 13 out of 32 Republicans] (with 11 not voting). (Emphasis added)

For those without a calculator, Social Security passed with 86% of the vote in the House and 81% in the Senate. Medicare passed with 71% of the vote in the House and 70% in the Senate. Both bills had strong, bi-partisan support. In contrast, the Affordable Care Act garnered just 50.57% of the vote in the House and 60% in the Senate–without a single Republican vote.

I repeat, it was hubris that killed the beast.

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By Gregory Taggart, October 30, 2013 11:44 am

Here’s the relevant provision in the Affordable Care Act, a provision that President Obama touted again and again and again and again:

(a) No changes to existing coverage
(1) In general Nothing in this Act (or an amendment made by this Act) shall be construed to require that an individual terminate coverage under a group health plan or health insurance coverage in which such individual was enrolled on March 23, 2010.[42 USC Sec. 18011 (a)(1)] (Emphasis supplied)

Nope, the Affordable Care Act doesn’t require you–the individual–to terminate that health insurance plan you like. Nope, you don’t even have to get up from the couch. Your friendly federal government, in the form of regulations promulgated by Health and Human Services, will terminate it for you, if your insurance provider or group plan:

-eliminat[es] of all or substantially all benefits to diagnose or treat a particular condition,

-increase[s] . . . a percentage cost-sharing requirement (such as . . . [your] coinsurance . . .),

-increase[s] . . . a fixed-amount cost-sharing requirement other than a copayment (for example,deductible or out-of-pocket limit). . . if the total percentage increase in the cost-sharing requirement . . . exceeds the maximum percentage increase (as defined in paragraph (g)(3)(ii) of . . . [S]ection 54.9815–1251T),

-increase[s] . . . a fixed-amount copayment [by greater than essentially the medical inflation plus $5.00],

-impose[s] . . . [or] decrease[s] an overall annual limit on the dollar value of benefits, [or]

-[if an employer] decreases its contribution rate [essentially, by more than 5%].

(Some emphasis and incidental formatting/punctuation supplied)

Those who are gluttons for punishment can read HHS’s summary of the sordid details here. If you want to read the fine print, click on the link at the very end of the summary. (Oddly, the other links, or at least the ones I tried, don’t work.)

Or you can read my copy here (scroll down until you find the yellow highlights). Have fun: Interim Final Regulations_HHS-OS-2010-0015-0001

A final comment. The HHS regulation makes sense. The Affordable Care Act is supposed to deliver better healthcare–supposed to. And the regulation is an attempt to deliver on that promise to those with existing plans that they like and want to keep. Each of the reasons for terminating your coverage makes sense if you accept the premise that the requirements represent a safety net, a blockade to prevent your health insurance company from reducing your benefits. But that’s not how President Obama sold the Act. As the videos linked to above demonstrate, he promised unequivocally that you could keep your health insurance, no if, ands, or buts, and knowing full well that you probably would not be able to.

Would the Act have passed if he had been up front about this? I don’t think so.

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By Gregory Taggart, October 30, 2013 9:51 am

I’ve been watching the Sebelius/Obamacare hearings this morning. The Secretary keeps reminding us that the ACA is the law of the land. Her choir members on the dais use their solos to remind viewers that Republicans should be rooting for the ACA rather than gloating over the website’s failures. And they may be right.

But then there’s this: the ACA passed on the barest of majorities. In the House, the vote was 219-212–with not a single Republican saying yes. In the Senate, it was 60-39, again with no Republican (Senator Jim Bunning, R-Ky, did not vote). If you prefer your votes in terms of percentages, the vote in the House was 50.57% to 49.43%, in the Senate, 60% to 39% (and that vote ignores the shenanigans the Senate employed to act before Scott Brown joined that august body). Add all the ayes together, and you’ll find that 50.15% of Congress voted for the law, and 46.92% said no. And with that and President Obama’s signature, the Affordable Care Act did, in fact, become the law of the land, and the Federal government assumed control of 1/6th of the economy of the United States.

All that to say this, or rather, to repeat an anecdote about Senator Daniel Patrick Moynihan and some advice he gave President Bill Clinton:

Twenty years ago, when he was trying to persuade Bill and Hillary Clinton that universal health care was a politically unrealistic goal, the late Sen. Daniel Patrick Moynihan repeated one insistent warning: Sweeping, historic laws don’t pass barely.’They pass 70-to-30,’ he said, ‘or they fail.’

Moynihan was not alone in this opinion. The Politico story continues:

Four years ago, when he was trying to persuade Barack Obama that he would pay a terrible price for jamming health care reform through a reluctant Congress on a partisan vote, White House chief of staff Rahm Emanuel begged his boss to settle for a vastly scaled-down plan.

If the Affordable Care Act fails, it will not be because Republicans opposed it. It will be because Democrats ignored the advice of Moynihan and Emanuel: massive, historic legislation requires massive, bipartisan support. If you don’t have it, you suffer the consequences.

Hubris. It was hubris that killed the beast.

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By Gregory Taggart, October 22, 2013 2:05 pm

Third, we are doing everything we can possibly do to get the websites working better, faster, sooner. We got people working overtime, 24/7, to boost capacity and address the problems. Experts from some of America’s top private-sector tech companies, who’ve, by the way, have seen things like this happen before, they want it to work.

They’re reaching out. They’re offering to send help. We’ve had some of the best IT talent in the entire country join the team. And we’re well into a tech surge to fix the problem. And we are confident that we will get all the problems fixed.

President Obama, yesterday in the Rose Garden.

Yeah, but . . .

The second fallacious thought mode is expressed in the very unit of effort used in estimating and scheduling [a programming job]: the man-month. Cost does indeed vary as the product of the number of men and the number of months. Progress does not. Hence the man-month as a unit for measuring the size of a job is a dangerous and deceptive myth. It implies that men and months are interchangeable.

When a [programming] task cannot be partitioned because of sequential constraints, the application of more effort has no effect on the schedule. The bearing of a child takes nine months, no matter how many women are assigned. Many software tasks have this characteristic because of the sequential nature of debugging.

Frederick P. Brooks, “The Mythical Man-Month.”

And for good measure.

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By Gregory Taggart, April 23, 2013 11:49 am

The Washington Post recently ran a piece titled “Five Myths about Abortion,” part of an on-going series titled “Five Myths: Challenging Everything You Think You Know.” And surprise! Some are challenging author Rickie Solinger on her use and abuse of abortion facts and statistics.

First comes Ramesh Ponnuru, who avers that “The Washington Post’s ‘five myths’ column propagates myths at least as often as it debunks them, and today’s ‘five myths about abortion’ adds to that dismal record,” then proceeds to dissect Solinger’s attempt at myth making.

Then comes Jonathan Adler, who likewise has his bones to pick with Ms. Solinger, in this case regarding myth #3: that Roe led to a huge increase in the number of abortions. According to Adler, “Solinger purports to be correcting a ‘myth.’ Yet nothing in Solinger’s account is directly responsive to the claim she purports to correct.”

In brief, Solinger’s piece doesn’t hold up to scrutiny. You can read the long version at the links.