(This is the last of a series of articles focusing on topics presented at the Cato Policy Perspectives 2011 conference held at New York’s Waldorf Astoria hotel on Friday, April 8, 2011)

“What a difference a year makes” is short assessment of ObamaCare presented by Michael Cannon of the Cato Institute. “It cannot be fixed, it has to be repealed,” was his blunt conclusion.

As long as you are not Rip Van Winkle you should know by now that as Nancy Pelosi famously said, “We have to pass the bill, to find out what is in it.” Well, we’re finding out. We found out that it was true ObamaCare does double count $500 billion in savings, there are thousands of organizations asking for waivers from the program, and the individual mandate has been struck down by several courts.

Mr. Cannon pointed out that the indivdual mandate requires people to obtain more healthcare than they want and he also described several case studies:

• Deamonte Driver — He was on Medicaid. He had a toothache. He couldn’t find a dentist that took Medicaid patients. The infection from his abscess spread to his brain. He died.
• Draven Smith — He was expelled from school twice in four years. He could not find a doctor under Medicaid to deal with his behavioral health problem.

ObamaCare is pitching bringing all uninsured people under Medicaid and Medicare. This was the big solution to our national health care problem. I don’t think Deamonte or Draven would agree.

Two other case studies pointed to the perverse incentives for insurance companies to drop certain kinds of coverage such as 24 hour nursing service because it attracts sick people. Child only coverage is being dropped across the country. Doctors are seeing reimbursement rates being curtailed so they are not accepting Medicare patients.

It is almost as if ObamaCare is designed to destroy the health care system we have in this country so that a government run system will have to step into the void. As an example, it effectively killed an insurance product that would have guaranteed that the insured could get coverage at some time in the future. Isn’t that one of the major complaints about our current health care system? The free market came up with a solution, but it has since been dropped because of ObamaCare.

Repeal and replace.

Not to leave this subject on a grim note, I had the privelage of meeting economist Mark Skousen at the event and he told me that he was the star of a recent video I had seen parodying ObamaCare. I share it with you here.

httpvh://www.youtube.com/watch?v=rkH_aaaSOP0&feature=youtu.be&hd=1

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. – Judge Roger Vinson opinion in STATE OF FLORIDA v UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

Perhaps the most arrogant, condescending act of Congress was the passage of ObamaCare. Opinion polls consistently counted the American public to be strongly against it. Town hall meetings during the summer before its passage were raucous and united in opposition as politicians cowered before their constituents. Many politicians who voted for the bill stopped holding town hall meetings, choosing instead to hide under their desks. During the fall 2010 elections, rare was the Democrat who boldly campaigned on ObamaCare.

But that did not stop Nancy Pelosi.

 We will go through the gate. If the gate is closed, we will go over the fence. If the fence is too high, we will pole vault in. If that doesn’t work, we will parachute in. But we are going to get health care reform passed …– Nancy Pelosi

The electorate be damned. Nancy Pelosi makes King George III sound reasonable. In Massachusetts Scott Brown won the special election to succeed Ted Kennedy, specifically running against ObamaCare. That didn’t seem to drive home the point to the hard charging left wing Congress. They took whatever the Senate had already passed and rubber stamped it in the House, because if it had to go back to the Senate, with the new Senator Brown sworn in, it would not pass.

Judge Roger Vinson, in his thorough analysis and opinion, gave a split decision. On the point that the changes in Medicaid were harmful to the states and coercive, because the cost of opting out would be prohibitive, he found in favor of the Obama Administration. States do have the right to opt out of Medicaid, and so it is not coercive.

However, on the issue of the individual mandate that requires everyone to buy health care insurance or pay a penalty, he could not repeat the administration’s alchemy of changing inactivity into activity and throughout our country’s history the courts have only applied the Commerce Clause to activity. Therefore, he ruled, that Congress does not have the Constitutional authority to compel someone to take action and buy a product or service, if they chose not to.

He also ruled that because the individual mandate was so intertwined with the rest of the act that holding the individual mandate to be unconstitutional rendered the whole act unconstitutional. On this he made several clarifications:

• The act did not have a severability clause that would typically state that if any part of the bill is invalid, it does not invalidate the whole. Such a clause was included in the legislation at one point and later removed, which would indicate its absence was not an oversight.
• Courts are not required to invalidate a whole act, if a severability clause is not present, in fact just the opposite is the norm. Courts should try to limit the extent of a ruling. In taking this approach the court has to ask if the rest of the act can stand without the invalidated part. The court also has to rule on the intent of Congress. That is, would Congress want the rest of the act to stand without the invalidated part? On the first point, he said it would be unrealistic for a federal judge to go through a two thousand, seven hundred page bill and determine point by point, this is in, this is out, and get it right to the satisfaction of Congress. On the second point, considering that the Congress had included the severability clause early on and later removed it, indicated that the Congress wanted an “all or none” ruling.

 Therefore Judge Vinson, invalidated the entire act.

Let the wailing and gnashing of teeth to begin, if it hasn’t already, from the main stream media. This will go on to the Supreme Court, without a doubt. But for now, let’s breath in the fresh air of liberty for another day.

That’s my opinion; I’d like to know yours.  Please comment below.

The other day we read reports of Democratic Senators scrambling to create an oversight panel to prevent health care providers from dramatically increasing premiums over the next four years because, shockingly, costs are supposed to go down not up.

Yesterday, the Department of Health and Human Services released a report analyzing the effects of ObamaCare:

The sobering assessment by the Centers for Medicare and Medicaid Services concludes what Republicans had warned about during heated debate — that the double-counting of Medicare spending — as both savings and as a means to shore up the debt-ridden government fund for seniors’ health care — means the cost is unrealistic.

The analysis also found that the law falls short of the president’s twin goal of controlling runaway costs, raising projected spending by about 1 percent over 10 years, or $311 billion, up from the $222 billion previous estimated.

Excuse me, captain, but was that an iceberg we just hit?  We all know the Titanic sank on her maiden voyage, and it looks like ObamaCare is taking on water only weeks after being launched.  As Congressman John Boehner said:

“According to his own administration’s analysis, the health care law the president signed one month ago today would violate his pledge to ‘bend the cost curve’ and force millions of seniors off their current Medicare coverage. This is in addition to what we already know about how this new law is squeezing employers with job-killing tax hikes and leaving middle-class families to brace for higher premiums,” he said. 

When talk turns to repealing this law is Obama still smugly saying, “Bring it on”?

As President Obama said while campaigning to be President of the United States, “You can put lipstick on a pig, but it’s still a pig!”  How true.  Yesterday President Obama reached for the lipstick to dab on four proposals suggested by the Republicans to the massive pig of a health care proposal clinging to life.  The four proposals are:

1. Use undercover medical professionals to conduct investigations to fight waste and fraud in Medicare, Medicaid and other Federal programs.
2. “Demonstrations of Alternatives” to the current malpractice mess.
3. Increasing doctor reimbursement for Medicare.
4. Expanding Heath Savings Accounts (HSA).

The pig smiled.  She thought she looked beautiful.  Just don’t try to put a bikini on her because, as President Obama famously said, she’s still a pig.  Let’s look at the President’s magnanimous attempt at bipartisanship in detail.

1)  Undercover Medical Professionals to Uncover Fraud

It is estimated that somewhere in the neighborhood of $100 billion is lost or stolen each year from Medicare and Medicaid.  This program has been in place for 40 years.  If those numbers are consistent over that period, that’s $4 TRILLION.  Gone. Stolen from you and me.  How much better shape would we be in if we had that money back?  That’s government efficiency for you.

The President of the United States is the chief law enforcement officer in the country.  The amount of Medicaid and Medicare losses each year are four times the entire budget of the Department of Justice.  How’s this for a proposal?  Create a Medicare/Medicaid fraud unit within the FBI and fund it so that we can stop these losses.  If you stop the fraud, it’s free money.  What you save in fraud should more than pay for the FBI funding.  Why take medical professionals and give them law enforcement duties.  Are you going to ask police to operate on you?  Mr. President it’s your job to enforce the laws and prevent this widespread fraud.  You don’t need a new act of Congress.  Just Do It!

2) Tort Reform –No; “Demonstrations of Alternatives” — Yes

Trial lawyers are one of the biggest contributors to the Democratic Party.  Do you think such “Demonstrations of Alternatives” will amount to anything other than hush money?  “Shut up , we’re looking into tort reform.”  The counter argument is that Americans have a right to their day in court when they have been injured.  True enough, and I am reluctant to arbitrarily limit their awards through a fixed dollar limit.  I would take aim squarely at the lawyers.

John Edwards, one-time Senator and presidential candidate, was involved in about 63 cases as a personal injury attorney and amassed a fortune of about $70 million.  In one particular case, he stood before the jury and took on the persona of a child in the womb crying out for oxygen to appeal to the emotions of the jury and win the case.  Oddly enough he voted against a ban on partial birth abortion.  Gee, in the once case it’s a child who can actually speak while still in the womb!  But on the other hand it is just a mass of tissue at birth that can be disposed of with the trash.  We have learned a lot about the moral character of John Edwards.  He is the poster boy for the old joke, “How do you know a lawyer is lying?  His lips are moving.”

Here is a simple solution to tort reform.  Fixed fees for attorneys and loser pays.  The lawyers should set their hourly rate and bill according to hours worked, not how much they can squeeze out of the jury.  The award should be for the benefit of the injured party, not the lawyer.  The second part is to prevent frivolous lawsuits.  The loser pays the legal fees of the winner.  The argument here will be that the tables will be turned and no one will sue corporations for damages because of the risk of paying their legal fees.  Right now lawyers are running a lottery fishing for lawsuits of any kind because they know that most corporations will settle for less than it would cost to defend the suit, even if they know they are right.  All customers of that corporation pay more for their products (e.g., drugs, medical devices) and the lawyer gets rich.  I am sure that if such a proposal as this gets passed a new market for “legal fee insurance” will open up where a plaintiff with a strong case can buy insurance to cover the cost of the other sides legal fees if they do lose.

3) Increasing Doctor Reimbursement for Medicare

So much for bending the cost curve down.  The real way to curtail spending on health care is to eliminate 3rd party payers.  (see It can be done).

4)  Increase Health Savings Accounts

These plans exist today, however, they are not all available across state lines (see It can be done).  I had such a plan in New York while employed by a company, but when I went out on my own I could not buy the same plan in New York State.  We don’t need ObamaCare, we just need states to allow these plans to exist within their borders or allow individuals to buy across state lines.

The Pig Lives!

Three of the  four Republican proposals that President Obama likes don’t cost anything.  But he $1 trillion to $2 trillion health care catastrophe is still alive and until we slay that beast and start over we will go from a serious health care problem to a fiscal crisis and end up with both.  If you don’t believe me, read how the model for ObamaCare is working in Massachusetts.

If you look at President Obama’s record on what he says one day and one he says later when reality sets in, are we really ready to believe him when he says,

“Whatever plan we design upholds three basic principles,” he said. “First, the rising cost of health care must be brought down; second, Americans must have the freedom to keep whatever doctor and health care plan they have, or to choose a new doctor or health care plan if they want it; and third, all Americans must have quality, affordable health care.”

He told us we absolutely had to pass his $787 Billion stimulus package or the unemployment rate would hit 9%, but if the package passed, the unemployment rate would be held to 8%.  It didn’t work.  Unemployment is at 9.1% and climbing.  He said bankruptcy for the auto companies would be disastrous for the economy.  After pouring billions into the auto companies, where are they?  In bankruptcy.  It is estimated that his health care “solution” would cost between $1 and $1.6 trillion. Why should we believe it?  What has he told us he would do that has actually come to pass?  North Korea?  Iran?

What confidence do we have that the government can do anything, other than national defense, better than private industry?  The postal service?  Amtrak? Farm subsidies? Earmarks? Speaking of healthcare what about Medicare and Medicaid?  In a report from March 2008:

“We need to act quickly and effectively to address Medicare’s fiscal health, including enacting the steps proposed in the President’s budget, which would postpone the insolvency date of the Part A trust fund for ten years,” said Health and Human Services Secretary Mike Leavitt.

A Modest Proposal

Before attempting to overhaul one-sixth of the U.S. Economy, why doesn’t the Obama Administration fix Medicare and Medicaid?  Show us your stuff Mr. President. Not your charm, not your winning smile. The campaign is over.   Prove that you can make these government programs work before you take on any more massive health care undertakings.