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With the insurance enrollment period ending in mid-December, Healthcare.gov announced that 8.2 million Americans selected plans for 2016 in 38 states. The Administration is touting the 8.2 figure as a “success” by comparing it to the 6 million plan selections by the same time last year. There was no mention, however, of how the 8.2 million number falls exceedingly short of the 21 million projected to be Obamacare users.
One amusing point is how the Administration parsed its words. “Plan selection” is an important phrase in Obamacare-speak. It means that many people chose these plans, filled out the forms, and submitted them — but did not necessarily pay for them. This is why they didn’t use the term “enroll” when describing the Obamacare figures. In order to be considered to be actually enrolled, one must pay the first month’s premium. Not everyone will actually go ahead and pay their premium, and the federal Obamacare numbers will inevitably be even smaller because of it.
The current figure excludes the state insurance exchanges. When these are added to the federal numbers, the Obama Administration is hoping that will get them over the 10 million mark for this year — half of what was touted when Obamacare was passed. If they do hit that number, it still means that only about a million people were added to Obamacare this year, as last year’s enrollment ended up being about 9.1 million users.
In the debates leading up to Obamacare, it was argued that Obamacare should be voted for because it would get eventually get 28 million of the uninsured 45 million Americans (15% of the 315 million population). At that projected target, the 28 million would only be covering 70% of the then-uninsured, which is decent but not excellent. It is clear now that NOBODY would have voted for Obamacare if they only expected to cover 10 million (or barely more than 20%) of the then-uninsured, which is where we currently are. That is the key, salient point that is now being lost in the discussions.
The ACA continues to be a disaster for all taxpayers.
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As part of the “Working Paper Series” published by the Congressional Budget Office (CBO), the CBO just released their latest work entitled, “How CBO Estimates the Effects of the Affordable Care Act on the Labor Market.” Essentially, the CBO projects that the labor force will be about 2 million full-time-equivalent workers smaller ten years from now, in 2025, than it would have been without the implementation of the Affordable Care Act (ACA).
“The Affordable Care Act (ACA) will make the labor supply, measured as the total compensation paid to workers, 0.86 percent smaller in 2025 than it would have been in the absence of that law, the Congressional Budget Office estimates. Three-quarters of that decline will occur because of health insurance expansions, which raise effective tax rates on earnings from labor — for instance, by phasing out health insurance subsidies as people’s income rises—and thus reduce the amount of labor that workers choose to supply. The labor force is projected to be about 2 million full-time-equivalent workers smaller in 2025 under the ACA than it would have been otherwise. Those estimates were based mainly on CBO’s calculations of the effects of the law’s major components on marginal and average tax rates and on the agency’s analysis of research about the change in the labor supply resulting from a change in tax rates. For components of the law that were difficult to express in terms of changes in tax rates, CBO based its estimates on a review of the available literature about similar policy changes.”
“All told, CBO estimates that in 2025, the ACA’s reduction in the labor supply, measured as total compensation, would range from 0.4 percent to 1.3 percent. The agency’s central estimate is 0.86 percent. In other words, the effect could be about 50 percent smaller or 50 percent larger than the agency’s central estimate because of potential variations in labor supply responses to the ACA’s provisions. Accounting for potential variations in other aspects of the estimates would widen that range.”
You can read the entire paper, about 20 pages long, here.
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The next open enrollment period for Obamacare begins in a few weeks. “Health and Human Services Secretary Sylvia Burwell announced Thursday that an expected 10 million Americans will be covered by late 2016 by health plans they bought on the federal and state insurance exchanges created under the law.”
This is a far cry from the CBO projections when Obamacare was passed. Last year, we saw lower revisions for enrollment from 13 million to a hopeful 9.1 million. Obamacare may have barely hit THAT target; the Washington Post reports that the number looks to be around “9.1 million Americans the administration believes will have ACA health plans by the end of this year.”
This is stunning news. To say that 10 million will be covered by 2016 means that the Obama Administration predicts a mere 1 MILLION enrollees this year. As the Washington Post reminds us, 10 million is “just half the most recent forecast by congressional budget analysts, who have long expected 2016 to usher in the biggest surge in enrollment.”
CBO forecasts had predicted 21 million enrollees in 2016, and 32 million by 2019. As expected, there are a litany of excuses for the abysmal numbers:
Still, substantive forces are at work behind the calculation. According to HHS estimates, about 10.5 million uninsured people are eligible to buy a health plan on the exchange, and they are proving more difficult to reach than those who bought coverage early on.
In addition, federal health officials point out that the dynamics of insurance coverage have not been playing out as analysts expected. Fewer employers have dropped health benefits for their workers, and fewer consumers have switched from older policies they purchased on their own. Both factors, HHS officials say, play into their projection of how many people are likely to gravitate to the exchanges.
HHS contended on Thursday that exchange enrollment, originally pegged to reach 24 million within several years, is not plateauing but is instead on “a much longer path towards equilibrium,” as a senior official said.”
What’s even less clear is how how this affects the budget projections and funding of Obamacare. An article last month in the Washington Times outlined how the enrollees for 2016 needed to double to stay solvent. On top of that, the penalty for not having insurance increases begins to increase sharply. The penalty during the first year was $95 or 1 percent of income above the filing threshold — a relatively minor bite. For tax year 2015, the penalty will be $325 or 2 percent of income, and for 2016 it will be $695 or 2.5 percent of income. Per person.
Remember when we were told that Obamacare would help millions to have insurance and also save Americans $2500/family? Me too.
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During oral arguments of the Burwell v Obamacare case before the Supreme Court, the U.S. Solicitor General Donald Verrilli made the case that the “court should defer to the interpretation of the Internal Revenue Service, which said the tax credits apply nationwide.” When the Obamacare decision was announced, it is clear that SCOTUS did apply deference, which was absolutely the worst possible solution.
The idea of “deference” refers “ to “Chevron deference,” “a doctrine mostly unknown beyond the halls of the Capitol and the corridors of the Supreme Court. It refers to a 1984 decision, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and it is one of the most widely cited cases in law. Boiled down, it says that when a law is ambiguous, judges should defer to the agency designated to implement it so long as the agency’s decision is reasonable.”
Given the current catastrophic state of the IRS, SCOTUS should have run from this idea as quickly as possible. The IRS has proven overwhelmingly in the last few years that no decision it makes is “reasonable” and therefore cannot be trusted as an unbiased, independent agency capable of carrying out a professional opinion on this or virtually any manner.
Even more unfortunately, not only did SCOTUS apply deference, which allowed the IRS rule to stand, it did so by taking expanding the concept of “Chevron Deference” even further in order to validate its decision. George Will, in a column written just after the Obamacare ruling was handed down, described how the decision now allows the executive branch to apply deference in situations that are not just ambiguous, but also “inconvenient for the smooth operation of something Congress created.” This is not interpreting law — this is legislating.
Therefore, the actions of the IRS — that is, willy-nilly creating rules which expanded the scope of Obamacare beyond its text — were indeed endorsed and given political cover by Roberts and his majority as they applied Chevron Deference. Instead of sending Obamacare back to the legislature for clarification, the judicial branch decided to step in and interpret the law for the sake of alleviating “inconvenience”. But this is wrong. Convenience, ease, and expediency should never be a rationale for the judicial branch to go beyond the scope of deciding whether or not a law is constitutional, as they did here.
The judicial branch, with this decision, seemed to act more in harmony with the legislative and executive one, instead of serving as a check against the others. What’s more, “besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution. It would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.”
Will summed up the damage Roberts has done, which is likely to have lasting effects in the courts for years to come. Roberts goes “beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions. By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.”
How the Supreme Court uses and applies Chevron Deference in the coming years, in the way they did with this decision, will be especially interesting, given the expanded roles of many government agencies such as the EPA and FCC.
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I really enjoyed this column by George Will, which was published soon after the Obamacare decision. Will explores how the decision exemplifies how Chief Justice Roberts embraced and expanded the concept of “Chevron Deference”, which, he contends, will have a lasting affect on future court decisions.
For those of you who don’t know, Chevron Deference basically says that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. Will charges that the decision now allows the executive branch to apply deference in situations that are not just ambiguous, also “inconvenient for the smooth operation of something Congress created.” Check out the column below:
Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit.
The court says the ACA’s stipulation that subsidies are to be administered by the IRS using exchanges “established by the State” should not be construed to mean what it says. Otherwise the law will not reach as far as it will if federal exchanges can administer subsidies in states that choose not to establish exchanges. The ACA’s legislative history, however, demonstrates that the subsidies were deliberately restricted to distribution through states’ exchanges in order to pressure the states into establishing their own exchanges.
The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.
The court’s decision flowed from many decisions by which the judiciary has written rules that favor the government in cases of statutory construction. The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging.
Roberts writes, almost laconically, that the ACA “contains more than a few examples of inartful drafting.” That is his artful way of treating “inartful” as a synonym for “inconvenient” or even “self-defeating.”
Rolling up the sleeves of his black robe and buckling down to the business of redrafting the ACA, Roberts invents a corollary to “Chevron deference.”
Named for a 1984 case, Chevron deference has become central to the way today’s regulatory state functions. It says that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. While purporting to not apply Chevron, Roberts expands it to empower all of the executive branch to ignore or rewrite congressional language that is not at all ambiguous but is inconvenient for the smooth operation of something Congress created. Exercising judicial discretion in the name of deference, Roberts enlarges executive discretion. He does so by validating what the IRS did when it ignored the ACA’s text in order to disburse billions of dollars of subsidies through federal exchanges not established by the states.
Chevron deference does for executive agencies what the “rational basis” test, another judicial invention, does for legislative discretion.
Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a rational basis. Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate. This fulfills the Roberts Doctrine that it is a judicial function to construe laws in ways that make them perform better, meaning more efficiently, than they would as written by Congress.
Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights. Besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution. It would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.
Roberts says “we must respect the role of the Legislature” but “[A] fair reading of legislation demands a fair understanding of the legislative plan.” However, he goes beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions. By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.
