King vs. Burwell, and other stuff

by on June 26, 2015 at 7:42 am in Current Affairs, Economics, Law, Medicine | Permalink

I have not been a fan of Obamacare, which I consider to be a highly inefficient form of wealth insurance.  Nonetheless, had this decision gone the other way at this point we would have ended up with something worse, or ended back at “Obamacare as know it,” but only after a lot of political stupidity and also painful media coverage.  So on net I take this to be good news, although arguably it is bad news that it is good news.

From the decision, insurers gained $3 billion in market value, and hospital stocks surged about ten percent, make of that what you will.

I found the remarks of Robert Laszlewski to be most to the point.  Philip Wallach had some excellent legal and constitutional points, see also Cass Sunstein.  I am very much a legal outsider, but it seems to me this does indeed rejigger something or other looking forward.

Elsewhere in the world, Schaueble does his best Scalia impression and tells us that June 30 is June 30, not July 1.  Greece hasn’t exploded — yet — and everyone is wondering how much time is left on the shot clock.  I’m still predicting an agreement, albeit one which will break pretty quickly.

TPP received fast track approval.

It’s been one of the best political weeks in years, although disconcertingly most of the good news has been avoiding even worse outcomes, not actual forward political progress of the kind one would like to be celebrating.

In Berlin, you can rent the smallest house in the world for one euro a night.  And here is a baby owl, learning to fly, or so one would expect.

1 prior_approval June 26, 2015 at 7:59 am

‘So on net I take this to be good news, although arguably it is bad news that it is good news.’

So, the Straussian reading remains that poorer Americans receiving over-priced American health care is too expensive for American society to afford? A perspective running throughout this link – http://marginalrevolution.com/marginalrevolution/2014/07/how-will-we-know-if-the-aca-is-working.html

2 mulp June 26, 2015 at 12:13 pm

Is Obamacare delivering on bending the cost curve down?

Have health insurance premiums doubled while Obama has been president like it did while Bush was president?

When someone delivers statistical evidence that health insurance costs are rising significantly faster or the same as over the Bush terms, then you can make a case for failure.

But then, what is your alternative and what evidence can you provide for it delivering better results.

Obamacare is so complicated because it includes all the ideas offered by conservatives:
1. for profit private insurers competing in a marketplace
2. making people explicitly shop in a marketplace
3. don’t change what works for 80% of the people
4. make individuals pay more out of pocket to limit over use of system
5. give control to States instead of a one size fits all preventing limits nationwide markets
6. States rights preventing jackboot Federal takeover of entire tort law system

Conservative critics are stymied in proposing an alternative to Obamacare because everything they propose to replace Obamacare is in Obamacare.

Only leftist critics of Obamacare offer real alternatives to Obamacare, proposing one of a number of working models with better coverage and lower costs than both Obamacare and the “system” before it. The UK’s NHS until circa 1990, Canada’s Medicare, Germany’s highly regulated insurance system and regulated providers, Israel’s HMO system, Japan’s system, Taiwan’s government system adopted in the 90s after review of other nations including the US which was rejected as totally inefficient and unfixable.

Conservatives keep shouting “free markets” as if they think “free” means everything is free of cost to everyone, even if born with a bad gene like Stephen Hawking, leading Sarah Palin to claim he would be dead if he were born in the UK instead of the USA.

I keep pointing out that Africa is where free market health care reigns, so conservatives need to point out how great things are in Africa where some people live longer than many in the USA, thus proving that if you want a superior health care system, then move to Africa. If you chose the right lifestyle you can live a long life in Africa. If not, you die – creative destruction.

3 A Definite Beta Guy June 26, 2015 at 2:32 pm

Obamacare is so complicated because it includes all the ideas offered by conservatives

Have you ever thought healthcare itself is complicated? Or pretty much any industry of sufficient scale?

4 Douglas Levene June 26, 2015 at 8:03 am

It seems to me that King could well be seen someday as the beginning of the end of Chevron deference. Roberts draws a distinction between cases where the courts will defer to administrative interpretations of the law versus cases where they won’t defer, but this distinction is untenable and it seems likely that over time the exception will swallow the rule. Prof. Sunstein seems to fear this result as much as I would welcome it since it would greatly reduce the power of the administrative state.

5 Nebfocus June 26, 2015 at 8:48 am

But at the cost of the court using the precedence set here. Redefining the text to mean something other that what it says is a pretty amazing new power.

6 Nebfocus June 26, 2015 at 8:52 am

But it was 6-3. If Kennedy was for before Roberts, Roberts may have agreed just to write the opinion and cut down Chevron a bit. If he didn’t we’d have the terrible reasoning, without touching Chevron (or even strengthening it).

7 HoffB June 26, 2015 at 11:53 am

> “… is a pretty amazing new power.”

SCOTUS malfeasance from year 1803 ain’t really new.

The “principle” of judicial review–that the Supreme Court gets to
determine what’s Constitutional– is not stated anywhere in the U.S. Constitution. SCOTUS invented this dictatorial power from thin air in Marbury vs Madison.

“Judicial Review” power asserts that whatever a SCOTUS majority ‘decides’ is what the Constitution ‘says’.
{…so much for having a ‘written’ constitution & laws}

This method leaves the Justices & nation with no objective basis for deciding what is or is not Constitutional. Subjective whims of a temporal SCOTUS majority are ultimate “law”.

So it’s been quite a roller-coaster ride sharply away from the fundamental rule of law for last 2 centuries. America is ruled by a small group of men on the Potomac… many Americans somehow view that as a good thing.

8 mulp June 26, 2015 at 12:57 pm

You are arguing that the government protecting individual liberty is a horrid thing?

You are arguing that giving individuals certain rights is a horrid thing?

Why do you think the US would be better if Clarence Thomas were not only prevented from marrying and sleeping with the woman he loves, but was the property of a white man?

I found the statements of the attorney general of Virginia, Cuccinelli ironic because he was arguing he should be able to arrest and prosecute Justice Thomas for the Virginia crime of miscegenation. Except SCOTUS had destroyed traditional marriage in Virginia giving Justice Thomas a right that is contrary to the bible and the will of the people of Virginia.

9 A Definite Beta Guy June 26, 2015 at 2:33 pm

but was the property of a white man?

The 13th Amendment was a Constitutional Amendment, not a Supreme Court decision.

10 Albigensian June 29, 2015 at 12:46 pm

“The 13th Amendment was a Constitutional Amendment, not a Supreme Court decision.”

And the 19th also.

11 JonFraz June 26, 2015 at 2:36 pm

That courts must interpret the law is baked into the cake. What are courts supposed to do when they find an ambiguity in statutes? Or when a law really is grossly unconstitutional? In the former case would you expect them to halt all proceedings until the legislature can straighten things out? In the latter if the Constitution is really the supreme law of the land don’t courts have a duty to follow it when it conflicts with statutes?

12 Albigensian June 29, 2015 at 12:50 pm

The Constitutional remedy for judicial over-reach is impeachment.

The Founders probably thought Congress would actually use impeachment to keep federal courts honest, yet although some federal judges have been impeached, as far as I know none has been impeached for acting beyond their legitimate authority.

Then again, it’s been said that past performance shouldn’t be used as a guide to future performance …

13 mulp June 26, 2015 at 12:38 pm

“Redefining the text to mean something other that what it says is a pretty amazing new power.”

You mean like rewriting “arms” to “handguns” because that was obviously a typo, because the intent was obviously not to give an individual right to cannons, rockets, shoulder surface to air missiles, hand grenades, backpack nukes, hand launched armed drones, body armor and Kevlar in the second amendment.

I remember all to well the Reagan administration classifying microcomputers and software algorithms as “arms” which thus brought them under the export controls regime over arms to enemies. Employees of my employer were investigated for felony trading with the enemy because they signed off on shipments of minicomputers to resellers who were selling to Russia and similar “enemies”.

Computer and network security today are so poor because in the 80s the big security problems of today were foreseen but impossible to implement in computer system in the 80s because the second amendment did not give individuals a right to strong encryption, a restricted and prohibited “arms” under the “free market” global economy rules of the Reagan administration.

14 Yancey Ward June 26, 2015 at 11:16 am

Suppose that was Roberts’ goal- then it is meaningless. I find it very difficult to believe (or to even construct a logical argument) that Roberts would have voted the same as yesterday if the plaintiffs and the administration had been arguing opposite sides of the case- hypothetically, the IRS limited subsidies to State exchanges and private plaintiffs argued for subsidies on federal exchanges. I think Roberts defers to the IRS in the hypothetical case, as well.

15 Richard Shockey June 27, 2015 at 12:43 pm

I disagree that King could be the end of Chevron deference but I can assure you the entire Telecommunications Industry is watching the interplay between King and FCC vs Arlington to try and figure out what A. what is Deference and when should it be used and B. what will happen to Net Neutrality when it eventually ends up at SCOTUS. King has just given the Telecom Industry a powerful new argument with “Chevron Step Zero”

16 The Anti-Gnostic June 26, 2015 at 8:14 am

Re: TPP, I admire the Democrats more than I do the Republicans. The former pander to their base, while the latter s*** on theirs. If the Democrats didn’t loathe the working class as too white, too armed and too religious, they’d easily sweep national elections. They probably will any way as increasing numbers of citizens just stay home on election day.

Re: King v. Burwell, Scalia is right. Congress passes impossibly complicated laws drafted by armies of lobbyists and a few bureaucrats in another marble building patch things over, or not, depending on their whims. They really are just making it up as they go along at this point. Late stage-empire.

17 Jan June 26, 2015 at 8:20 am

Governing is not simple. If simple was the main goal it could be easily achieved, just with poor outcomes. In this case, reading the obvious intent of the law was in fact simple.

18 The Anti-Gnostic June 26, 2015 at 8:31 am

Which is my whole point: if it’s always just “the thought that counts,” then government is by decree instead of constitutional process.

IOW, as Vox Day puts it, the law of rule, as opposed to the rule of law.

19 Jan June 26, 2015 at 8:39 am

Not saying it is just the thought that counts. I am saying that for Congress to address big problems and actually govern, some things must be complex. I know that is not preferred by some. Applying reasonable interpretation of obvious intent in a clause n legislation is ok. That is one reason we have an independent judiciary.

20 RPLong June 26, 2015 at 10:11 am

Yes. You nailed it on this one.

21 Cliff June 26, 2015 at 10:45 am

I think the intended outcome was obvious but not the intended meaning of the language in question. Don’t you think they hoped to use it to force the states to open exchanges and were very surprised when the states didn’t do it? So the law did not work out as they intended, but in my opinion that should not be a basis to re-write the law itself.

22 mulp June 26, 2015 at 1:24 pm

What evidence do you find for that claim in the 14 months of discussion and debate on the law as drafted and debated and amended?

Do you think the intent was to depend on corporate money to force States to set up State insurance marketplaces? If this was the secret plan, what was the point of keeping it secret from the insurers and hospital corporations so they would be using their money to get laws passed in 2011 in the States and when that failed, using their money to defeat the Republicans blocking implementation?

Your argument reminds me of Dr Strangelove and the reaction to the description of the doomsday machine – how was the doomsday machine supposed to prevent nuclear war if it was secret?

23 Agra Brum June 29, 2015 at 11:10 pm

Hah! This may be the best analogy I’ve yet to hear about the whole debate. “Of course, the whole point of a Doomsday Machine is lost, if you *keep* it a *secret*! Why didn’t you tell the world, eh!?”
This is right up there with “the card said ‘Moops'” analogy to the opponents theory of judicial interpretation.
Of course, you are trying to argue rationally with people who are not only claiming the card said Moops, but the that the Moops actually invaded spain…

24 Just Saying June 26, 2015 at 8:35 am

Your tears taste like unicorn milk

25 The Anti-Gnostic June 26, 2015 at 8:38 am

Actually, I really do hope we all get free medical care, powered by rainbows and unicorn farts.

26 mulp June 26, 2015 at 1:15 pm

It would have taken perhaps ten pages to simply extend Medicare to cover everyone from birth. Remove the age requirement and work credit requirements, which would have been a few pages, and then a few pages to hike the Medicare tax and extend it to all income, like ACA does, but at a higher rate.

All the rest of the stuff involving credits and such for/to employers providing health benefits to workers eligible for Medicare would simply apply to 200 million people instead of 10 to 20 million.

Oddly, no conservatives called for a simpler solution to health care problems than the overly complicated Obamacare which included pretty much every feature conservatives claimed would deliver a superior system: profits, free markets, forcing everyone into the market instead of letting people depend on the Reagan bailout for bad choices.

I find it ironic that Republicans adopted the defense against the need for Obamacare by citing EMTALA which mandates free health care be delivered by hospitals to the irresponsible who chose to be reckless.

Why don’t Republicans and conservatives call for creative destruction as the solution for insolvent patients. The providers can recover sunk costs of stabilizing someone until financial ability to pay can be determined, at which point the insolvent can be euthanized and their body parts sold to pay for the sunk costs of the EMTs and trauma care. Free market health care should be like free market auto care.

27 JonFraz June 26, 2015 at 2:39 pm

A quibble: EMTLA does not demand hospitals extend free healthcare to anyone. They must extend healthcare to people in extremis, but they can still bill for it until an individual declares bankruptcy.

28 Jan June 26, 2015 at 8:17 am

Critiques of the ACA without proposals for viable (including politically feasible) alternatives are not necessarily helpful. And “return to the pre-ACA health system” is not an answer.

29 DJF June 26, 2015 at 8:26 am

“”And “return to the pre-ACA health system” is not an answer”””

Why not, I was fine under the previous law and so were most Americans?

30 Jan June 26, 2015 at 8:33 am
31 The Anti-Gnostic June 26, 2015 at 8:39 am

Solution to inherently unworkable “health” insurance = more insurance!

32 Jan June 26, 2015 at 8:40 am

We are laying it on the table here, AG. What is your specific proposal?

33 FUBAR007 June 26, 2015 at 10:38 am

@Jan:

They don’t have one because, at bottom, they don’t think there’s any need for one.

The difference between conservatives and progressives on this is one of first principles. Deep down, the latter believe access to health care is a fundamental human right; at bottom, the former think health care is no different than iPads, cheeseburgers, or any other consumer good and as such should be left to the market, full stop.

There’s no conversation or compromise to be had. On this one, either the progressives are going down, or the conservatives are.

34 Cliff June 26, 2015 at 10:52 am

There’s no chance of a free market in health care. The obvious solution would be a free market with national catastrophic coverage and basic income, but we’ll never get that.

35 Dan Weber June 26, 2015 at 10:48 am

Taking something away from the people is a political non-starter.

Which is one big big problem with PPACA. If it turned out, somehow, to be a bad idea, it would’ve been politically impossible to undo.

But that’s done now. My argument was a great reason not to pass PPACA, but it’s 100% useless at trying to repeal it. Game over, for better or for worse.

36 John June 26, 2015 at 10:53 am

Always remember that most people are healthy, and thus do not actually know the cost or quality of the medical care available to them. It is only when you get expensively sick or injured that you learn the costs, gaps and limits to the health care available.

Remember also that the typical complainer about Obamacare was a young person saying “I don’t need insurance.” Well, you don’t, until you crash your snow machine.

37 mbutuomalley June 26, 2015 at 2:21 pm

I thought young people were the champions of Obamacare and they didn’t know how much it was truly going to cost them. Although I don’t pretend to know what the young people think.. http://i.imgur.com/CIr7TvC.jpg

38 Boonton June 26, 2015 at 2:58 pm

Why not, I was fine under the previous law and so were most Americans?

I was fine in 1994. Why can’t I demand we just roll back everything to 1994?

39 mulp June 26, 2015 at 5:09 pm

“Why not, I was fine under the previous law and so were most Americans?”

You were fine with health insurance costs going up about 10% every year year after year?

You had no problem with employers faced with insurance costs doubling every 7-8 years on average shifting costs to the individual with higher deductibles, etc?

If you were so ok with rapidly rising health insurance premiums and more out of pocket costs for medical costs while Bush was president, what is your objection to Obamacare exactly???

40 Todd June 26, 2015 at 8:23 am

The Wallach post seems the most correct stance. Congress has become more or less incompetent. Drafting errors and vague/problematic language are not uncommon in the age of complex legislation. Prior Congresses, however, were usually able to quickly resolve these minor issues with a quick fix bill, even if the political make-up of the current Congress had changed from the one that passed the original legislation. The “gotcha” mentality currently in vogue in Congress makes it nearly impossible for the body to perform even its most basic functions. So much gnashing of teeth and wasted judicial resources for what could have been easily solved by a two line bill passed by both houses of Congress on a voice vote.

41 DJF June 26, 2015 at 8:30 am

But the Supreme Court stepped in and ‘rewrote’ the law and now Congress is left out.

The Supreme Court job is to judge the law, not rewrite it so they have bypassed the new Congress.

42 Todd June 26, 2015 at 8:37 am

I don’t agree with that. Statutory interpretation is a basic function of a high court. Despite Scalia’s breathless cassandra-ing, this was not really a close case. One vague/problematic phrase vs. the rest of a massive piece of legislation, its entire legislative history and common sense. Even the plaintiffs didn’t really believe their main claim, which is why they also claimed that it was actually Congress’s intent to deny subsidies to those individuals in states with federal exchanges (a claim for which they were appropriately ridiculed).

43 The Anti-Gnostic June 26, 2015 at 8:43 am

Actually, that was the intent, and I recall one of the law’s drafters said so on national TV.

44 Todd June 26, 2015 at 8:49 am

sure. no doubt, some massive conspiracy to hide this is afoot.

45 Jan June 26, 2015 at 9:17 am

Which legislator was that?

46 CM June 26, 2015 at 9:55 am

No legislator ever said that. This idea is a purely made-for-litigation argument. As Olympia Snow recently told the NY Times, the notion that subsidies would not be available on federal exchanges is ridiculous and was never discussed.

http://www.nytimes.com/2015/05/26/us/politics/contested-words-in-affordable-care-act-may-have-been-left-by-mistake.html?_r=1

Moreover, use a little common sense. You can’t coerce someone into doing something if you don’t articulate your threat. Until lawyers trying to undermine the ACA discovered the poor drafting of the subsidy provision, no one, including the CBO, which would have scored the cost of the bill much differently if the subsidies were not available, or the States, which needed to hear this supposed threat in order to be coerced, believed that subsidies would not be available on federal exchanges.

47 Boonton June 26, 2015 at 3:06 pm

Actually it was not a lawyer or legislator who said anything like that on national TV. It was a healthcare analyst who was most likely reacting to the poorly worded text in the law.

There is nothing special about who sets up the exchange. The idea of the ACA is pretty simple. Move people towards whatever system they happen to be closest too. For very low income, that would be Medicaid. For people who are old, that would remain Medicare. For working people that would mostly be employer provided insurance. For the smaller number of people whose employers don’t provide coverage, or who don’t like their employers coverage or who simply need to buy coverage themselves (think freelancers), they buy from the exchange where private insurance companies offer policies that compete with each other.

Who sets up the exchange is totally irrelevant. There’s no reason an advocate of the ACA would especially want the states to set up exchanges versus the Feds doing it. So there’s no reason to build some massive penalty into the law for states that don’t.

48 Cliff June 26, 2015 at 10:54 am

Usually you don’t get to intent unless the language is ambiguous

49 msgkings June 26, 2015 at 12:20 pm

@ Todd: very well said. SCOTUS (and POTUS) is filling the vacuum left by the completely fucked up Congress. One of the three branches of government isn’t working properly. This isn’t a left or right thing, it’s not functioning full stoip. I think most would prefer a viable Congress with smaller roles for the other two branches, but that ain’t what we got right now.

50 A Definite Beta Guy June 26, 2015 at 2:47 pm

So SCOTUS can intervene whenever it feels Congress and the President aren’t doing their job? Where does it say THAT in the Constitution? Although I must admit, I look forward to General Scalia shoving an armored division down someone’s throat.

51 msgkings June 26, 2015 at 3:03 pm

I’m not saying it’s a good thing we are where we are, but nature and especially government abhors a vacuum, so while the legislature is a clown show the executive and judicial branches move in.

52 Jay June 26, 2015 at 7:36 pm

…and they keep getting reelected, its almost as if the other 50% don’t agree that it’s a clown show (most of the time). I forgot this is the first time we’ve had split government.

53 msgkings June 26, 2015 at 7:56 pm

Split government was a different animal in the past. The two sides used to be able to oppose each other and yet still compromise, and come together on common sense items, and approve presidential appointees, and do things like fix a few words in a bill. What we have now is not just ‘split government’. What we have is an institutional crisis. I am hopeful that eventually the pendulum will swing back, but in the meantime the other 2 branches that still function have to pick up the slack.

54 FC June 26, 2015 at 8:52 am

Today my juridcally-based hedge fund is short raisins and Uber, long health insurers, and leveraging everything to buy Chinese intellectual property . Tomorrow, the deluge.

55 Dude June 26, 2015 at 1:38 pm

I like your style. You win this thread.

56 RPLong June 26, 2015 at 10:13 am

The more I think about it, the more I think that this pushes the American health care system closer toward the Canadian system. Some leftists might like the sound of that, but the truth is that there are far better versions of government medicine out there.

57 John June 26, 2015 at 10:58 am

I thought the Canadian system was single-provider, and that we are already closer to choose an HMO.

(Eliminate PPOs and you’ll eliminate much cost, but of course *that* might be hard to clear K Street.)

58 JonFraz June 26, 2015 at 2:41 pm

The Canadian system is single payer, multi-provider.

59 RPLong June 26, 2015 at 3:09 pm

As JonFraz notes, the Canadian system is delivered by the Provinces, from Federal funding, except in those Provinces (and territories) that cannot afford their own delivery system. In that latter case, the Federal government steps in and provides health care on their behalf. From this, you should be able to see what I meant in my original comment.

What isn’t yet on Americans’ radar is what is ongoing in Canada, which is the struggle between Provinces (States) and the Federal government to maintain control of the delivery system. Right now, leftists are smugly congratulating the states that chose to set up their own exchanges and gloating over the (practical) result of the SCOTUS decision. But those states will be on the front lines of the coming power struggle over who should “control” the exchanges.

And the ironic part of it is that it will be conservatives who will argue in favor of the States’ right to control the exchanges, while liberals will favor a full-on central government take-over. Had the liberals had a little more foresight, they would have refused to set up their own state exchanges and achieved this centralization of power immediately. Oops. Now they have to fight for it.

60 Boonton June 26, 2015 at 3:24 pm

Right now, leftists are smugly congratulating the states that chose to set up their own exchanges and gloating over the (practical) result of the SCOTUS decision

1. Actually the winners are the states that DID NOT set up their own exchange. From the POV of a state, setting up an exchange may be nice if it all works out well but there’s a lot of potential downside (all web tech guy will tell you they will make you a great site….after you pay them you may or may not have a great site). If the decision had gone the other way then states that set up their own sites would have been in great shape but lots of other people would have been hurt.

2. I’m not sure what type of ‘power’ you think it is to set up an exchange. It is essentially a web site. Private insurance companies choose what types of policies they will offer and people choose what they will buy. In fact you don’t even need an exchange. You can go directly to an insurance company, ask what policies they sell that meet the mandate requirement and buy directly if you want too. But in the larger perspective the exchanges are a small piece of the system. The bulk of people will get healthcare from their employer if they are under 65 or from Medicare if they are not.

61 RPLong June 26, 2015 at 5:01 pm

It’s not that I disagree with you, it’s that I’ve got my eye on the long game here. One simple way exchanges enable those running them to control health care is by giving them a means by which they can exclude providers from the website.

The requirements can be silly (e.g. “Your logo was submitted in a file format and/or pixel resolution that is not supported by our enterprise system.”) or more tangible (e.g. “Only those providers that meet all of the federal requirements and a few I just thought up right now will be listed on our exchange.”).

The above is inevitable. It simply will happen, if it hasn’t already. Once entrenched, then you potentially have as many different sets of requirements as there are exchanges. Now, in response to politicking, the federal government will have a reason to “standardize” the requirements in the name of “efficiency,” and then it will only be a matter of time before someone floats the idea of simply having the Federal government provide the exchanges to all states. (“Hey, we’re already providing the subsidies…”) Or maybe they’ll just withhold subsidies from those state exchanges deemed to be “non-compliant.”

Anyway, the scope of the government’s role in health care is sure to grow, and we are now getting a look at the basic framework from which it will grow. And, by my estimation, it’s a framework that looks more like Canada’s health care system than, say, the prevailing European model..

62 Boonton June 27, 2015 at 10:29 am

The requirements can be silly (e.g. “Your logo was submitted in a file format and/or pixel resolution that is not supported by our enterprise system.”) or more tangible (e.g. “Only those providers that meet all of the federal requirements and a few I just thought up right now will be listed on our exchange.”).

Yea, insurance is like around $3-$5K per person per year. I’m sure even smaller insurance companies would simply opt to pay a web designer to submit their logo in whatever format the state wants to require.

I’m not sure states can add to the requirements of the coverage but insurance is already highly regulated by states. I don’t think there’s any additional power being added to the mix here.

63 collin June 26, 2015 at 10:30 am

So Tyler Cowen believes in Creative Destruction but not too much Creative Destruction at one time.

Considering the US paid significantly more for Healthcare than any other nation, what would have Tyler recommended?

64 ChacoKevy June 26, 2015 at 11:25 am
65 RPLong June 26, 2015 at 5:20 pm

“Paid more for health care” is not a particularly useful thing to say. Rich people pay more for real estate than anyone else – but do you think they’re complaining? Sometimes paying more means getting more.

66 Adam June 26, 2015 at 11:12 am

And to think Tyler wrote this post before the gay marriage ruling. Quite a week indeed!

67 John June 26, 2015 at 11:16 am

I blame cancer?

68 Patrick June 26, 2015 at 11:26 am

How does one evaluate whether it’s good or bad news without mentioning the new powers granted to the Supreme Court by the Supreme Court?

69 Art Deco June 26, 2015 at 2:02 pm

Libertarians are not your friend.

70 Floccina June 26, 2015 at 11:48 am

A friend’s son decided to pay the penalty rather than the tax. I ask about it because it seems interesting to me. He is young and had really cheap insurance before but the PPACA 3 to 1 limit plus lower deductible, made the difference in his premiums greater than the penalty and so he paid the penalty and went without insurance. I think that the politicians need to fix that. The difference in the premiums is really a tax on young healthy people but it is bigger that the tax for not having insurance, that seems to me like a bad incentive. BTW the son makes enough money to not get a subsidy and used to carry a $10 deductible insurance with a very small premium..

71 Slocum June 26, 2015 at 1:15 pm

But he does have insurance of a sort — PPACA is there as a backstop should he ever need it (and there are ways to sign up outside the open enrollment periods). So it’s a form of catastrophic coverage. And, in a weird way, it might even cost him less if he did get sick, because then he could choose the plan that will pay the highest percentage of his costs (which he couldn’t do if he’d previously signed up).

72 Half Asian Sensation June 26, 2015 at 12:17 pm

I agree.

73 Colin June 26, 2015 at 12:55 pm

The ACA decision rests on an extremely problematic premise. While the result may be good, this decision goes a long way toward eroding the reliance people can place on the meaning of the law. Furthermore, with the judges not just kicking it back to the legislature, they have increased the moral hazard of the legislature passing unconstitutional, internally inconsistent, and/or deeply flawed laws and expecting the courts to clean up their mess. If your argument boils down to “what is written is not what was meant,” then why didn’t you write what you meant. With the tacit approval of a minority of the legislature, the court has just authorized the executive branch to ignore inconvenient laws passed by the legislature. By what principle do you now restrain the executive?

74 anon June 26, 2015 at 8:16 pm

You’re turning what effectively was a typo when taken in context into a giant boogeyman that is far removed from reality.

75 Rich Berger June 26, 2015 at 2:15 pm

“It’s been one of the best political weeks in years, although disconcertingly most of the good news has been avoiding even worse outcomes, not actual forward political progress of the kind one would like to be celebrating.”
At first, I found this strange, but on reflection, I think this reflects Tyler’s cultural affinity with the New York Times, the Washington Post and the types of readers that both attract.

The Supreme Court decisions have been a major disappointment, as they illustrate the fragility of the law and constitution to attack from the left. Obamacare is deeply flawed and is only being kept alive by deception and incomprehensible legal opinions. The denial of subsidies to state exchanges was intentional and it failed in its purpose – period. Given that the law is shot through with incentives and penalties to force desired behavior, this type of failure is likely to be repeated over and over. Without the Supreme Court to repair it, we can expect many future malfunctions. The Democrats hope the noose is tight around our necks and we will become resigned to this steaming pile. Tough luck, Jack, live with it.

The gay marriage decision is reminiscent of Roe v. Wade. There is no right to same-sex marriage in the Constitution; nor is there any prohibition. Five judges have made it up out of nothing (sort of a quantum judicial fluctuation).

As far as giving Obama trade authority, why would anyone trust a proven liar? From “you can keep your doctor”, to Benghazi being caused by a video, to not a scintilla of corruption at the IRS, he has no compunction about lying to your face, as long as it advances his ends. The Obama administration has two modes – malicious and incompetent. Incompetence is on display in the lax security at the OPM, the failures at the VA, even the problems at the Secret Service. It is not important to him, so he doesn’t bother to correct it.

I am beginning to reconsider Donald Trump as a candidate. Yes he is a blowhard and a shameless egotist, but he isn’t afraid to speak his mind. His biggest asset is that not easily cowed, like the current crop of Republican “leaders”.

76 ChacoKevy June 26, 2015 at 3:53 pm

I’m hesitant to categorize this comment as “flawless perfection”, since that’s obviously redundant. But I don’t care. Every word here is flawlessly perfect.

77 Zach June 27, 2015 at 2:51 pm

It’s been one of the best political weeks in years, although disconcertingly most of the good news has been avoiding even worse outcomes, not actual forward political progress of the kind one would like to be celebrating.

Entirely backwards, in my view. The classic devil’s bargain is to get something you could easily achieve by other means, at the cost of something very precious.

Congress could have restored the subsidies with a one sentence fix. We got essentially the same one sentence fix at the cost of the Supreme Court blatantly ignoring the fact that the sentence doesn’t say what it says.

The idea that statutory text can be ignored to ratify executive power grabs has never worked out well, anywhere.

78 Agra Brum June 29, 2015 at 11:15 pm

You have it all backwards. There is no problem with the subsidies, or with the intent of the bill being handled by the administrative state. Instead, some ideologically warriors cooked up an argument to try and destroy the functioning of the ACA, and enlisted a couple of dupes as plaintiffs, and then brought the lawsuit to try and wreck the operations of the bill.
The Supreme Court rejected an act of sabotage – there was nothing that needed fixing absent an affirmation of sabotage.

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