Category Archives: National Politics

Imagine THIS Obamacare Replacement & Understand WHY It Makes So Much Sense [GOP!]

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The Bipartisan Solution ALL Could Accept?

It’s been almost 10 months since I published “The Case FOR Conservative Market-Based Universal Healthcare Reform“.  I’ve wondered if “The Voluntary Universal Access Public Option” wouldn’t have been a more effective title.  Either way, the words are intentional for a purpose, which should become obvious without further explanation.  For those unfamiliar, reading the original post may prove useful but not essential.

The March, 2016 post has achieved over 800 views.  Response has been mostly positive but mixed, with some of the harshest criticism coming from hyper sensitive market allies who trip up on the word “universal”.  I remember one response simply said, “This just makes so much sense!”  Of course, though biased, I agree!

I know it’s been viewed by several very influential thinkers as evidenced by re-tweets or likes of tweets with the link, including Sally Pipes of Pacific Research Institute; Dr Scott Gottlieb, American Enterprise Institute; John Goodman, Goodman Institute & father of the Health Savings Account; and Michael Cannon, Cato Institute & inspiration for Rep Dave Brat’s and Sen Jeff Flake’s Health Savings Account Expansion Act HR5324 and S2980 respectively (114th congress), the only proposal from the GOP so far that completely makes sense.  None have criticized (or publicly praised) the Market Universal concept, but Michael Cannon did surprisingly say in my  presence “What’s not to like?”.  I’ll attempt to confirm his observation by explaining the many advantages of this unique concept.

Market Universal (or The Universal Access Public Option), is an expansion of a suggestion to fix Medicare in David Hogberg’s 2015 book, Medicare’s Victims.  In that regard it should be called the Hogberg solution.  By simply putting people in charge of the money, with incentives to be frugal in its use, it more than any other proposal from the GOP,  most effectively addresses the simple three word solution central to any meaningful healthcare reform – Maximize Direct Payment.

It combines actual direct payment with money a voluntary participant must set aside from income into a personal HSA, with simulated direct payment beyond that from a shared 3 tiered participant funded pool, used only when the personal HSA is exhausted. Incentives to use pooled funds wisely are in the form of percentage rebates of unspent portions annually.  Because participation is voluntary, the mandate to contribute to an HSA is not, as some have suggested, coercive, anymore than the requirement to make payments when voluntarily entering into an insurance or mortgage contract.

Since annual pooled fund availability totals $75,000 it is the minimum even the poorest participant has available each year.  Note that the risk to the pool is limited, but the need to ration is eliminated by creation of very low cost private personal stop loss insurance to cover any really big events.  While $75,000 can be consumed very quickly currently, it will go much farther with the change to direct payment by individuals making choices in their self interest.

The advantage of mostly direct payment leads to huge cost elimination on many fronts….

Imagine the difference when doctors no longer have to incur the considerable cost of getting paid for their services, that some estimates claim reaches 30% or more.   This figure becomes quite believable listening to subscription-based direct primary care pioneer Dr Josh Umbehr of AtlasMD in Wichita KS state (at ~6:30) overhead at their practice, completely third party payer free, runs less than 30%, while overhead at insurance involved primary care practices hovers around 60%.

Imagine when ever more complex coding is a thing of the past and practices no longer have more employees dealing with third party payers than clinicians treating patients.

Imagine  when doctors or surrogates no longer waste time with pre-authorizations and fighting off rejections, before finally getting permission to treat and then paid, which often itself involves long waits and then arrives in bundles that make it difficult to identify individual case reimbursement errors as opposed to being paid directly at the time of service by the patient at a mutually agreed price.

Imagine how a new paradigm of near ubiquitous direct payment will direct everyone to honest transparent pricing and competition for patients based on price and quality, without being forced by law, like all medical services not traditionally covered by third party payment, such as Lasik, cosmetic surgery, or dental implants, where quality has gone up as prices (often seen on billboards or newspaper ads), have come down.  It would not be unreasonable to see the combination of eliminating the cost of getting paid and effects of innovation driven by true competition drive prices down by at least half.

Imagine when third party payer network arrangements with doctors (effectively cartels) become a thing of the past, especially for those with Medicaid, where in some locations accepting doctors can be very hard to find.  This means doctors will price their services based on what it costs to provide them, and the same price will be paid by anyone who walks through the door. Each will enjoy the same dignity of access as anyone else.  With each doctor currently having a separate network arrangement with each different plan from each insurance carrier, as well as dictated reimbursements for Medicare and Medicaid, and differing cumbersome regulations and requirements imposed by all, it’s no wonder doctors have so little time to spend with patients.  It doesn’t have to be this way, but continuing down a road of embracing what has become traditional third party payment will only continue our enslavement to it and its considerable costs to treat no one, both for doctors and the rest of us as patients.

Imagine when the lowest earners among us can participate in the same Market Universal Access Public Option as anyone, instead of another demeaning program (Medicaid) with its benefit cliff adding another cage of dependency.  After all, in America most earners do not have to stay low earners and should never be encouraged to do so.

Imagine a voluntary program based on expanded health savings accounts that allow for passing to a beneficiary upon death.  Within or without participation in Market Universal, this can present the potential to build family healthcare trusts that also further protect pooled funds by those who continue to opt for Market Universal.

Imagine we can reverse another troubling trend.  Fewer and fewer doctors are willing or able to put up with the increasing burden of third party payers and their and government payer regulations, paperwork, and cost to get paid.  I’ve heard doctors say 1/3 of their time seeing a Medicare patient involves government paperwork.  To escape, they are becoming employees of growing hospital systems, where they feel some relief but are still trapped in a system that demands they see more patients in less time and only make referrals within the family of connected practices, further challenging those who wish to remain independent.  Again it doesn’t have to be this way.

That these highly trained professionals we depend on so much can serve our medical needs better at lower cost in a system of freedom and markets is not just fanciful theory.  It’s being proven by market pioneers who have been rejecting the third party payer juggernaut for the clarity and peace of honest cash priced practice.

In primary care this rejection of the third party payer is being done both by fee for service and subscription based direct primary care arrangements.  Without the considerable overhead of engaging the external payers they can offer services at greatly reduced rates and spend much more time with patients, so important at the primary care level especially.  Many use their extra time to run in house pharmacies, labs, or imaging at a fraction of the usual cost, or arrange low cost services with outside vendors.  Many make house calls and offer direct access by email, cellphone, Skype, etc.  Appointments are scheduled in excess of half an hour for the same or next day.  They also can perform the wide range of procedures they are trained to do but which are often offloaded to specialists when they must see 30 patients in a day for 10 minutes each to make ends meet.  To easily find a direct primary care practice go here.  For one example of the growing number that offer remarkably affordable pricing go here.  Most importantly these doctors, without exception are happy.  I don’t want a mechanic working on my car who hates his job!

Yet how many, in our current system, on their own, can afford specialist care and complex surgeries for cash?  As it turns out over 60% of employers that provide health benefits self fund.  They are simply bill payers and, even as the plans are set up to look just like insurance to the employee, they are really not.  Led by pioneers like Dr G Keith Smith at Surgery Center of Oklahoma, whose practice has posted low honest bundled cash prices on the internet since 2009 and lowered prices five times, they have been able to reject third party payers entirely by contracting directly with self funded employers (while also accepting individual cash payers), under arrangements where the employee saves as well by having their copay and deductible waived when they choose to use their high value option.  In fact, in this report from Dr Smith, he explains how SSO saved their self funded county (and hence taxpayers) over $1 million in the first 9 months and a new contract with the state may save state taxpayers $95 million.  Even though it’s not quite like the doctor and patient dealing directly, the benefits of this form of direct payment are enormous and it’s become a growing movement, with cash priced facilities even competing against each other at sites like pricinghealthcare.com.  With Market Universal as an option, more individuals will be in the position of self funded employers to choose where to spend based on price and quality.  It’s time politicians take notice of these positive developments and understand good policy that lowers costs resides in trusting markets and free choice rather than bureaucratic control.

It’s important to understand Market Universal (or the Universal Access Public Option) is proposed as a voluntary program that precludes nothing else.  It starts by putting the Expanded Health Savings Account concept of the Brat or Flake bills, themselves inspired by Cato’s Michael Cannon’s Large HSA concept, at its core.  Thus replace should start with expanded HSAs, which alone can inspire many positive changes as employers likely will voluntarily and gladly move from defined benefit to defined contribution health benefits, thereby keeping (but not requiring) the employer connection to health insurance while removing its toxic provision. Employer matches of employee contributions to a personal HSA will then likely become as common as to 401k plans.  Whether employees choose to use their HSA to fund medical services only, purchase medical insurance products they own independent of employment, or become a participant in the Market Universal Healthcare program is entirely up to them.

Market Universal is intended as a lifetime commitment, and following an open period upon initial availability, participants would have to sign on after age 18 and before age 25.  The mandate to contribute to an HSA, up to set balance limits, is within an entirely voluntary program, thereby a freely accepted obligation.  Participants only would be flat taxed sufficient to fully fund the shared pool, which could be kept separate from government hands and administered by private contracted book keepers much like the Federal Thrift Savings retirement plan.  Participants would have the opportunity to exit at any time but reentry would not be allowed.

Keep in mind Market Universal is an option that at once replaces Medicare and Medicaid so the current Medicare tax ends, and states no longer have to tax to fund  their portion of Medicaid.  Since networks become irrelevant, low earning participants have the same access to care as anyone, but the same obligation to direct a portion of earnings, including any government transfer payments or unemployment compensation, to a personal HSA.  While low earners pay less into their personal HSA, they will be more likely to use pooled funds, as higher income participants contributing more to HSAs will be less likely to take from pooled funds. Likewise those with higher incomes will contribute much more to pooled funds but, since also contributing more to their HSA, will less often use pooled funds and more often be rebated incentive payments for what they do not spend.  Beyond the pool’s annual limit, all will have the option to buy ultra high deductible (pooled funds + HSA balance + other personal savings available) personal stop loss protection, which due to its infrequency of use, should be very inexpensive, even at the minimum $75,000 deductible level and be much less vulnerable to the negative effects of community rating, which itself would be tempered by many older individuals having accumulated more in their HSAs, sufficient to safely allow its inclusion.  Guaranteed issue though would still require restriction past initial entry into the program, possibly by surtax to the pool or some other mechanism for those who wait.

No one would be forced into the Market Universal program.  Traditional insurance could coexist.  Those who now enjoy the Obamacare exempt faith based medical sharing arrangements could continue as is, and new ones, faith based or otherwise could be formed.  In many aspects, Market Universal is an institutionalized version of such arrangements.  As stated earlier, Market Universal precludes nothing else, as it provides an attractive option, especially with the ending of Medicare and Medicaid programs.

While socialist aspects are admittedly present, as they are by degree in the health systems of every other nation (and indeed are central to insurance itself), they will be under a layer of market discipline and individual responsibility first and foremost.  Market Universal can be an uniquely American concept that dares to trust market forces and personal choice to set prices, lower costs, and best direct scarce resources in an area where fellow humans’ lives and health are at stake.  It’s not the same as losing a car or house to lack of insurance or inability to pay, and it’s time conservatives recognize this.  A great overview of how countries around the world approach healthcare can be found in Chapter 3 “In Search of the Best Health Care System in the World” of James Bartholomew’s intriguing new book “The Welfare of Nations“.

To conclude, perhaps the biggest advantage of Market Universal (or the Universal Access Public Option) is that such an Obamacare replacement proposal would almost certainly garner some support from the Left, allowing passage in bipartisan fashion, as it supplants and roadblocks their otherwise never ending desire for single payer universal healthcare in a way no other suggested replacement plan can do.

The Right has said they seek a market solution, while the Left screams for universal coverage or at least a public option.  Under unique Market Universal alone, it is possible to do both!

 

 

The Case FOR Conservative Market-Based Universal Healthcare Reform

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Not Only Possible but Preferable to Anything Put Forward to Date

 

Say what?  Again?  Universal coverage?  Is Bernie Sanders on to something?  Well, in a way yes, as far as good intentions go.  What will be explored here, is the possibility and preferability of achieving the good intention, not by methods of command and control central planning, but government policy that embraces market forces and trusts individuals, making free choices in their self interest, enticed, even when using the money of others, to act as if it is their own, thus avoiding the proverbial road to hell.

The Inspiration

The policy concept presented here, though original, does not deserve to be called The FreeMktMonkey Solution.  It is the expansion and adaptation of  a seed idea presented in the final chapter of David Hogberg’s 2015 book, Medicare’s Victims: How the US Government’s Largest Health Care Program Harms Patients and Impairs Physicians.  In deference to Hogberg’s brilliantly simple but arguably far too timid, solution to Medicare’s flaws, the idea of conservative universal as a replacement to Obamacare, will be presented as the Hogberg Solution, from which it arises.

Starting Points

  1. Just because it’s a policy of the central government does not preclude the possibility of protective legislation that insures and embraces natural forces of voluntary free exchange in the marketplace to achieve desired solutions superior to central control.
  2. The market best achieves optimal setting of prices, and allocation of scarce resources through the direct interaction of the seller and the buyer,  not via the seller and a third party agent of the buyer, who will never share the same level of self interest as the buyer directly.
  3. A person’s life and immediate need for necessary treatment to maintain and extend it is not the same as losing a car to a crash or a home to a fire, or investment to bad advice of a broker.  It’s a tough position for anyone of compassion, including conservatives to stand for denial of treatment in someone’s moment of need, when life is at stake, due to inability to pay.  Accepting this, is to make a strong argument for an individual mandate, that “shared responsibility payment” thing in Obamacare, as an acknowledgement of the implied responsibility of each individual to accept their part, to the limit of their ability,  to protect their neighbor from the potential to have to pick up after their inability to pay.
  4. Medical science has made very rapid advances over the last century.  There are many more treatments, medications and devices available that have drastically improved both quality of life and longevity.  This alone will involve more spending simply because of availability.  It’s sometimes hard to believe that routine use of antibiotics, did not commence until the early 1930s, still about 15 years from being one century ago.
  5. While condition of health is clearly within control for most, it is certainly not for all.  Thus the ability, by healthful living, to protect others from an obligation to have to cover one’s own inability to pay for treatment, is limited.  Sudden unexpected disease, injury, or congenital defects can affect anyone.
  6. As outlined in what remains a gold standard June 1994 study, by Stan Liebowitz, writing for Cato Institute, Policy Analysis No. 211, Why Healthcare Costs Too Much, central to the mess we have in costs of US healthcare, is overreliance on third party payment.  The illusion of free or almost free, in coverage of what can normally be afforded otherwise, adds significant cost by promoting overuse (that must be baked into premium) along with expense to interact, often combatively, with third party payers, to obtain payments that should be made efficiently, directly, at the discretion and choice of the buyer, in direct dealings that preserve the purity of the doctor-patient relationship.  The Cato study suggests the solution is utilization of the highest level of direct payment possible, by health savings accounts and catastrophic insurance.
  7. Only a small percent of healthcare spending is for emergency situations, where there is no time or opportunity to check prices or treatment options, and make informed choices on how to direct resources.  Even this Brown University study that claims previous reports of emergency spending have been far too low, at most estimates emergency spending does not exceed 10% of our total $2.6 trillion.  This argument is often made by those favoring a government single payer system as evidence of why a market in medical treatment cannot exist.
  8. In both the Medicare and non government civilian healthcare markets, use is heavily concentrated into a very small percent of the respective populations, with little of that being priced by normal market forces through the direct interaction between the buyer and seller of services.  This argues for insurance or some backstop protection for the big items, even as the vast majority in most years would have no trouble paying their entire bill without it, and over the long haul, most would be better off by banking premium otherwise spent.
  9. Only small minorities of buyers need to be active in finding the best deal possible to elicit response from sellers that benefits all market participants.  Hogberg notes this as the concept of “marginal consumers” that drive the market, producing price and quality benefits for the non-marginal majority.  This truth is central to the viability of Hogberg’s solution for Medicare (and its extension to universal).
  10. It may not be necessary for buyers to spend their own money to achieve the benefits of the marketplace,  if means can be employed to entice them to spend the money of others as if it was their own, through a system of rewards, that more effectively produces desired results than schemes of central planner bureaucrats.

The Solution

Hogberg comes to the conclusion in Chapter 8, after noting typical failed attempts to get a handle on Medicare spending involve politicians, bureaucrats, and all manner of experts, engaged in elitist planning, at the exclusion of spontaneous order that arises through market forces of individuals freely making choices in their best interest.  He states, “It never seems to occur to them that the best way to align incentives is to let the patient control the money that pays for the care.”  But how to do that in a way that does not promote waste and abuse when it may not be their money?

This is where Hogberg encounters sheer brilliance, that if not so timid with the idea, could have led him to propose an extension of his Medicare Solution pre-Medicare to the entire healthcare sector of our economy, opening the potential to achieve the universal coverage goal of the left in a way that does not make healthcare a right without obligation.

Hogberg’s solution is simple.  Pay the patient, through incentive rewards, to do a better job than various schemes, by CMS, to fix prices, assess quality and value by questionable metrics, determine reimbursement, even direct treatment, all by artificial means far worse than a free market would accomplish on its own.

To do this Hogberg suggests, since we spend all this public money anyway, provide each Medicare beneficiary with 2 annual accounts: a basic account of $5000, and a major medical account of $70,000.  For anything not spent out of the basic account the beneficiary would be paid 10% at the end of the year to use for any purpose whatever.  For anything not spent out of the major medical account 1% would be paid to the beneficiary.

Here is where Hogberg makes a flaw, as he suggests the 1% from the major medical account would only be paid if that account was reached following total depletion of the basic account.  He recognizes the moral hazard of this in producing an incentive to spend out the basic account ($500 max rebate) to get to the $700 max rebate of the major medical account’s 1% rebate.  The obvious way to correct this would be inclusion of both rebates, so the individual who spent nothing in a given year would get $1200, with perhaps only the $500 going to any purpose and the $700 dedicated to an HSA for future medical expenses, also protecting future rebates.

He points out that in 2012 25.7 million of 37.7 million (68%)  Medicare recipients spent <$5,000, and only 3.9million (10%) spent over $25,000, with their average about $57,000; so a $75,000 total account would be more than adequate for most beneficiaries in any given year.  Expenses beyond that could be covered with a private personal $75,000 (or greater) stop loss policy.  This, due to its low cost due to low use, would likely attract widespread voluntary choice, thereby allowing limited government exposure without the need for rationing either by availability or delay.

Hogberg also missed, or was too timid, to entertain a logical extension of his concept pre-Medicare as a solution to the entire national system, unique in all the world, and compatible with extra governmental market solutions being developed and growing rapidly by efforts of pioneers such as Surgery Center of Oklahoma in transparent honest competitively priced surgery or Atlas MD in Wichita KS, leading development of models of Direct Primary Care, both now entering into direct cash relationships with self paying individuals and the approximate 60% of employers who self fund health benefits they provide their employees, bringing competition, quality and value as seen nowhere else.

Indeed, Hogberg’s suggestion of a demonstration project for Medicare, belies his otherwise strong faith in the power of market forces, such that it is Medicare itself that may better serve as the demonstration project to extend his seed idea to the entire healthcare sector of our economy.

Such an extension would also be compatible with the single best reform proposal of any to date that respects freedom, that of Cato’s Michael Cannon, with his 2008 Large Health Savings Accounts concept, or as published here in July 2014,  after noting the failure of Republicans or conservatives, now in almost 8 years following the election of Obama, to develop a plan of their own that doesn’t dictate purchase of a qualifying product to obtain benefits from the government or retain a large proportion of third party payment, the post “GOP Stuck in ACA Replacement ‘Plan Trap’ as Magic Bullet Solution Hides in Plain Sight“, written prior to any knowledge of Cannon’s proposal, but very similar in approach and expected outcomes.

The Hogberg Solution as applied to the whole US system, as presented here, would require modification to Dr Hogberg’s seed concept, but allow market based universal to become a reality that would significantly, instantly create a system of near ubiquitous direct payment.  This is the game changer, as no other proposal to date has suggested such a virtuous possibility exists, and assuming sufficient popularity, could allow for voluntary participation.

Here’s how it would work.  Every participant would be required to pay a percent of all income into a personal health savings account to a limit.  To start, then periodically adjusted for inflation,  this may be 7.5 of all income to a $50,000 balance, then 5% of all income to a balance of $100,000, which would from that point only have to be maintained.  Employers, as enticements, could agree to match employee inputs.  A national tax would be required to cover additional expenditures, but factoring in market induced competitive savings plus elimination of 3rd party payment processing expense, may be little more than total taxes required to fund Medicare and Medicaid currently, and would replace those taxes.

Hogberg’s suggested Medicare accounts would be modified for the universal system.  For working people they would be accessed, only after exhaustion of personal health savings accounts.  One modification would be the creation of three layers of account.  The basic $5,000 with 10% of any unused portion rebated for any use would remain.  Then an intermediate account of $25,000, followed by a $45,000 major account would apply.  Unused portions of these accounts would be rebated at 2% ($500), and 1% ($450) respectively, but not for any use.  These rebates would apply to the personal health savings account, both providing future protection to the public accounts and allowing reaching one’s mandatory individual funding limits sooner as well as protection of future rebates.  Of interest, $950 is sufficient to fund unlimited direct primary care at many of the growing list of doctors offering this choice.

For anyone still working who exhausts their mandated HSA and taps the government pool, continuing work related payments to their HSA would always precede any government pooled funds in paying for services as used and bills come due.

As percentages of any other government cash assistance transfers (welfare) would be directed into individual health savings accounts as well, both Medicare and Medicaid would be rolled into the new universal system.  Opt outs could be allowed but then initial entry or reentry would be have to be prohibited lifetime.  The idea in the mandate is a requirement to buy nothing, just forced budgeting to protect others in a system where we can agree no one will be left “dying in the streets”, as Donald Trump has stated.  It raises the question also if a tax is not a tax, when that set aside is available for that person’s and their immediate family’s exclusive use.

The game changing nature of this extended Hogberg Solution should be obvious.  Price transparency would happen organically overnight as well as huge savings just from elimination of the cumbersome third party payment mechanism in place now.  Providers of treatment and devices would be instantly responsive to concerns of price and quality.  Even well past normal working years for many, into what are Medicare years now, carried HSA balances would continue to protect the government pooled funds, themselves limited without the need for rationing, by personal stop loss private insurance.  Any remaining HSA balances at death could be transferred to a beneficiary.

Private insurance protection expense beyond the government pool could be further lessened in cost by allowing stop loss policies in excess of $75,000 by including other personal sources, such as one’s HSA balance or other assets willing to be spent first.  Thus a person with $100,000 in their HSA and $25,000 in other assets available for medical expenses, along with the $75,000 government funds, would only need a personal stop loss policy to cover expense exceeding $200,000, very unlikely and very inexpensive.

By trusting individuals with control of the money, acting freely in their self interest, and having faith in the predictability of their response to properly presented economic incentives and constraints, along with a system of rewards, we can create a government devised system that respects the marketplace, innovation, and choice, while keeping government command and control decision making out of the equation.

For more please see followup Jan 09, 2017 article here.

Opportunity for GOP in Scalia’s Death – If Statesmanship Can “Trump” Egos

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AS ONE DOOR CLOSES,  ANOTHER ONE OPENS……..

 

UPDATE 2/21 — Friday, Feb 19, the US Circuit Court of Cook County in Chicago agreed to hear a challenge to Ted Cruz’s eligibility to become President.  Since no one knows for sure how the court will rule, and how messy it could get, the  argument set forth in this op-ed is only strengthened as “natural born” is not a qualification to serve on the Supreme Court.

 

Make no mistake, the events of Saturday February 13, 2016 will be remembered when future histories of the United States of America are written.  News of the unexpected death of Supreme Court Justice Antonin Scalia, has rattled the nerves of conservatives who see a narrowly divided court shifting to the death of Conservatism for a long time.  Monica Crowley, typical of the immediate response, tweeted on learning the news, “The worst possible news.  Oh my Lord.”

As the dust settled, an epic political struggle, ahead of a pivotal Presidential election, has been defining itself, with the GOP vowing to block any nomination Obama may put up until after the election and a new president takes office.  That the debate will get heated is certain, as Obama quickly announced he will nominate a replacement soon and Democrats claim the Senate has no right to delay, even as the GOP exposes precedent, where Democrats have taken a similar stance.  Truth being, it’s politics.

GOP delay is not without risks either, as the cost could mean loss of the Senate; and as evidenced by the South Carolina debate the evening of Scalia’s death, the GOP has their own problems with increased infighting that could lead to Donald Trump walking away with the nomination, then losing the general election to either Hillary Clinton or Bernie Sanders.  In fact, the GOP was facing a whole lot of potential trouble absent Scalia’s passing.

A February 2-3 poll of 1,236 registered voters nationwide, conducted by Public Policy Polling (PPP) paints the current troubling picture for the GOP.  In head to head matchups with either Clinton or Sanders, only Marco Rubio beats either.  Considering only Trump, Rubio and Cruz as the Republican likely nominees, Trump loses the worst against either likely Democratic opponent.  Plus Trump’s favorable-unfavorable rating, at 63% unfavorable, seriously lags any of the other Republican hopefuls, by this latest poll.

But for the optimist, who believes when one door closes another often opens, or the faithful who may see divine intervention, Scalia’s death, oddly may have presented an opportunity for the Republican party to escape their mess, by a deal that could trump even Donald Trump himself.  American history is known for grand compromises in times of crisis, and this one would fit among those of our past, if the individuals can rise to a rare level of statesmanship ahead of their own selfish egos.

Here’s how that could happen, from one who started out favoring Carly Fiorina, then moved to support of Ted Cruz, and never trusted Donald Trump.

National polls from whatever source show Trump between 30-40% approval.  This, of course means 60-70% of likely GOP voters favor another candidate or are still undecided, with most of that support either for Cruz or Rubio.  Unconventional times call for unconventional methods to deal with the situation, and this solution would certainly be unconventional, as it constructs a unified path to victory in November, quells the toxic circus atmosphere of the last debate, and takes care of the Supreme Court question simultaneously.

With apologies to Ted Cruz supporters, he needs to step aside, throwing all his support to Marco Rubio.  Rubio, in return, as his part in this Statesmanship Deal, must commit to nominating Ted Cruz to the Supreme Court, either to fill the current vacancy if not filled, or the immediate next one that arises.  Every effort should be made to get the remaining candidates, Bush, Kasich and Carson to support the deal.  Both Rubio and Cruz would come away winners, and Donald Trump’s future would become very clouded.

The deal should not be behind a cloak of secrecy, but be made public and defended.  As participants, though, both Rubio and Cruz, as Senators, would have to stay out of the effort to delay Obama’s nomination, leaving that job to Mike Lee, Rand Paul, or Mitch McConnell if he can maintain his spine.

To extend this unconventional approach one step further, in an effort to seal the deal for November, Rubio should then immediately name Carly Fiorina as his running mate if nominated, and she should join him on the campaign trail as soon as possible.  This demonstration of ability to come together with a unified approach to victory would be a big problem for the Democratic Party.

Finally, on the gang of eight issue, Rubio hopefully is being genuine in seeing the error of his ways and accepting the political realities of the issue, as he has expressed.  He still has some other conservative flaws, like support of sugar subsidies, but then conservative plusses also, namely his significant effort to undermine and cripple Obamacare, by restricting bailouts of insurers in the budget deal that Obama signed.

Meanwhile Ted Cruz, a Catholic also (correction I’ve been informed he’s Baptist), at under 50 years old, could be the ideal replacement for Antonin Scalia, upholding our Constitution faithfully for another 30+ years.  One door closes.  Another door opens, and the Republic is spared a progressive avalanche.

 

Does Obamacare Contain a Serious Violation of the 14th Amendment?

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Is another challenge in its future?

While I’m neither a lawyer nor a legal scholar I do have an interest in things legal.  I also have an interest in the healthcare issue and have posted many original articles and op-eds on this blog.  So when I noticed something at Healthcare.gov that seemed weird and just not right it stuck in my mind.  I bounced my thoughts around with friends and organizations via social media.  Finally when Pacific Legal Foundation tweeted that they were combing through the issue and would address it in a weekly podcast, I felt validated, humbled and eagerly await their opinion.

So what is the issue and could it eventually provoke a fourth (more on that later) Obamacare challenge to reach the Supreme Court?  From the home page of Healthcare.gov, rolling over “Get Answers”, then under “Coverage for…”, finally clicking “American Indians and Alaska Natives” a story of unequal special treatment for one group over others unfolds.

The level of special treatment is shocking in regard to our Constitution’s 14th Amendment which requires equal protection under the law for all citizens.  Qualification comes with membership in a Federally recognized tribe or being an Alaska Native Claims Settlement Act (ANCSA) Corporation shareholder.

American Indians and Alaska Natives most favorably have no closed season under the ACA.  They can sign up for a health plan on the exchange anytime they want and even change plans once per month.  They can choose to have no insurance at all without paying the tax penalty.  On top of that, up to 300% of federal poverty level (up to around $70,650 for a family of 4) they pay ZERO copay or deductible.  How is this equal treatment under the law?

Every other group not exempted from the law by provisions in the law, generally based on religious beliefs, is subject to the same rules governing the exchanges as anyone else.  This includes a closed season three quarters of the year, a hefty tax for choosing to go uninsured, and reduced copays and deductibles only up to 250% of the federal poverty level on silver plans.

Closed seasons, when there’s guaranteed issue as with the ACA, prevent gaming the system exactly as the special provisions for American Indians and Alaska Natives allow.  No closed season opens the door to only signing up for insurance after the discovery of a serious illness.  This is precisely why employer provided health benefits, which have long been guaranteed issue, have an annual open season for about a month each year, barring specified life event exceptions.  For such plans to work time commitment at all times must be required of everyone.

There is an Indian Health Service already on reservations where Indians can get free healthcare from Indian healthcare providers or others if referred by one, but Healthcare.gov discusses advantages of additionally obtaining plans in the exchanges, suggesting better access to programs not provided by other Indian health programs.  They also suggest this will help the tribe by allowing more services to others, suggesting tribal programs run on a globally limited budget.  Think rationing of services or extended waiting times that accompany such approaches and perhaps the ineptitude of the Veterans Administration as well.

This raises questions of possible reasons if American Indians and Alaska Natives could or should be treated unlike ordinary citizens under the Constitution.  Are they citizens at all?  Aren’t Indians sovereigns within our country, nations within a nation?  The answer seems to be to a point.  The “FAQ” section of the Bureau of Indian Affairs website provides many clues and answers.

First let’s consider eligibility.  Described in the FAQ, membership in a federally recognized tribe is determined by each tribe.  It makes clear that “there is no single federal or tribal criterion or standard” and eligibility for membership “will differ from tribe to tribe”.

If this doesn’t seem loose enough, the FAQ tells us that “blood quantum” is not the only means by which a person is considered, including “how strongly a person identifies himself or herself as an American Indian or Alaska Native”.  As it’s becoming popular to identify outside one’s race or even gender, it appears any of the 561 recognized tribes could open membership to anyone willing to learn the history and customs and believe enough, perhaps even paying a hefty entry fee in the process, thereby granting them special benefits under Obamacare too!

Even among those with sufficient blood quantum, estimated by the Census Bureau to be 4.5 million in 2007, enrolled tribal members are around 2 million, less than one half.  Of the total population more than half do not live on reservations, and can be integrated into the larger society to any degree, while still maintaining tribal membership.

It’s worth noting some of the other facts provided in the FAQ as follows:

American Indians are citizens of the United States and the states in which they reside, and have been so, generally, since 1924.

American Indians have the right to vote.

American Indians can run for and hold any public office as any other US citizen.

American Indians do not have special rights different from other US citizens unless based on treaties or other arrangements.

American Indians do pay taxes like everyone else with the exception of state taxes when living or conducting business on a reservation.

Laws that apply to non Indians also apply to Indians except on reservations where only federal and tribal laws apply to members.  Only state laws do not apply to members when living on a reservation.

American Indians do serve in the armed forces of the United States.

So what is the takeaway of all this?  It seems proper application of the 14th Amendment would back and provide standing for any uninsured non Indian to be exempt from the individual mandate and its tax or require American Indians and Alaskan Natives to be subject to it.

It also seems that any uninsured non Indian tribal member who encounters a serious illness outside the open season without a qualifying event, would have standing to claim harm by being denied immediate access to insurance on an exchange as is afforded American Indians or Alaskan Natives primarily as a result of their ethnicity.  It’s with this I await what the legal minds at Pacific Legal have to say.

Pacific Legal Foundation, which has been defending against government impositions on property rights and liberty since 1973, is involved with another Obamacare case, Sissel vs HHS, that could invalidate the entire law as a violation of the origination clause, and is now under appeal to the Supreme Court.  If accepted it will be the 3rd challenge, hence the chance a possible violation of the 14th Amendment outlined here could eventually become number four.

Pacific Legal produces a weekly podcast each Wednesday and maintains an informative website, both with stories and updates on the many fascinating cases they agree to accept.  Importantly and impressively they represent every client and every case at no charge.  Liberty minded individuals would do well to consider supporting them with a donation.

King v Burwell, Marijuana, and a Path to Marginalize Obamacare in its Presence

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States Should Start It / If Weed is Worth it……..

Short of repealing Obamacare the next best thing would be finding a method to marginalize it in its presence.  Oddly King v Burwell, along with 23 states plus DC that approved medical use of marijuana and three plus DC that approved recreational posession and use of the plant, may provide a path to doing just that if King prevails.

King v Burwell is the case challenging whether government subsidies can apply to qualified health insurance sold on exchanges run by the federal government.  Proponents of King, led by Michael Cannon of Cato Institute, and Jonathan Adler of Case Western Reserve University School of Law, contend the law is clear that subsidies can only be applied in exchanges established by the states.  As the issue was raised, the IRS simply declared that federal exchanges too are eligible for subsidies.

Four separate but related court cases challenged this IRS decision, and in November the Supreme Court agreed to hear King.  The case is scheduled to be heard March 4th, with a decision sometime in June.  In the event King prevails, most agree there will ensue chaos of a sudden affordability vacuum if the approximately 5 million people who own qualified health insurance bought in states with federal exchanges lose their subsidies.  This will likely bring intense political pressure to find a fix, even as businesses, relieved of penalties triggered by employees obtaining subsidies will argue for other remedies.

In addition, many individuals will find the cost of unsubsidized ACA triggering plans now exceed 8% of their income, relieving them of the individual mandate and its tax for not buying insurance, except they will then either have to scrape to find the unsubsidized premium or be left uninsured with no other choices.

Several Republican governors of federal exchange states, including rising star Scott Walker are feeling nervous about a King win, and don’t seem to know what they may be able to do.  At a National Governors Association event, they took to saying that it’s Congress’s job to deal with any fallout.  None expressed any ideas of what states may be able to do short of somehow restoring the subsidies.

So what if federal exchange states, rather than looking to Congress, switching to a state exchange or piggybacking on another state’s successful state exchange, as has been suggested, would simply make alternate, non ACA qualified, more affordable choices available off the exchange?

Since I had never seen evidence to the contrary and had been told by both Andrew Schlafly, attorney with the Association of American Physicians and Surgeons, and Oklahoma Attorney General Scott Pruitt, whose name is on one of the other three cases, that they knew of nothing in the ACA to prohibit states from making available non ACA qualified choices off the exchange, I heretofore thought this was possible and within the law.

My take had been that the ACA only defined what must be in health insurance plans to be on the exchange, qualify for subidy, and avoid paying the mandate tax, making possible, with or without King, state provision of a parallel free system along side the government control system, allowing states, with their retained authority to regulate insurance through their insurance departments, the potential to allow or even require the availability of alternate choices off the exchange, understanding non qualified plans would not avoid the mandate tax.

I thought this may be especially attractive to those individuals discovering low cost direct primary care arrangements, where an increasing number of primary care physicians are offering unlimited care for a monthly fee.  Here is a rapidly growing need for pure catastrophic insurance as a compliment, that ACA qualified plans have shut down.

I believed all this.  Then, February 9, in a twitter exchange with Phil Kerpen, President of American Commitment, he sent me a link indicating otherwise.  There is indeed federal code that prohibits what I thought was possible.  The office of my Congressman, also previously unaware, identified it as a law from the 1940s that had been amended by Obamacare.  Talk of leaving no stone of iron fisted control unturned!

So what to do now?  State offer of non ACA compliant health insurance off the exchange, no matter how welcome, or as immunization against the affordability aspects of a King win in 37 federal exchange states, would run afoul of Federal law.  It would be an act of defiance, but isn’t this what 23 states plus the District of Columbia did when they approved the medical use of marijuana?  Taking it further, isn’t this what Colorado, Washington, and now Alaska and DC did by approving the recreational use of marijuana?  So far, for those state actions, the feds have chosen to stand down.  If legal weed is important enough to risk federal admonishment, how is offering citizens, still willing to pay the mandate tax, the choice of affordable non ACA qualified options off the exchange not?  It would seem.

More likely, on an Obamacare challenge, the feds would push back hard, but states would have arguments in defense, as well as significant public support that may even exceed weed, especially if King prevails, subsidies are lost, and a sudden affordability vacuum ensues.  While the stand down on marijuana would mean nothing in a legal sense, it may help state defiance on Obamacare play well in the court of public opinion, giving state officials more backbone to act.

States can point to their continued regulation of health insurance where the feds have found it convenient to not supplant them.  State coverage mandates in excess of ACA essential minimum coverage rules still apply, as do their definitions of regional pricing zone boundaries.  They can question also why their regulation of all other types of insurance remains intact, without federal meddling.

There’s the argument McCarran-Ferguson 1945 still gives states the authority to offer alternatives, so long as they don’t attempt to eliminate the federally designed plans.  They could claim restriction only to such limited choices represents overbearing federal imposition and violates the Constitutionally protected freedom of their citizens to contract.  They could point to a long standing tradition of state regulation of insurance in return for insurance being exempt from federal antitrust law.

Perhaps as important, since the ACA unquestionably allows doing absolutely nothing upon payment of the mandate tax, any opposition would be forced into the absurd argument that doing something substantially more than nothing in protecting others from one’s potential inability to pay their medical bills should be prevented, so long as the tax is paid.  In fact, Congress, seeing this argument play out, may be motivated to specifically allow non ACA qualified offerings and reduce or eliminate the mandate tax for buyers, in recognition of their obvious reduction in potential liability to others by their actions.

If only one state or a few, federal exchange or otherwise, would boldly take this course of action, we would present, at least the opportunity to embark on a path to marginalize Obamacare in its presence.  A parallel free system, alongside the government control system could be created, and repeal would no longer be necessary as people could freely choose which system they prefer.

The sudden chaos of a King win would be the perfect time to have alternate choices available, as the potential to quickly attract sufficient numbers to spread the risk enough to insure viability would be most opportune.  If weed is worth it………

GOP Stuck in ACA Replacement “Plan Trap” as Magic Bullet Solution Hides in Plain Sight

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Best Plan is NO Plan

Whether by reaction to charges from Obamacare supporters on the Left, or by their own lack of faith in freedom over planning, Republicans, not one of whom voted for the Affordable Care Act, along with conservative allied groups, think tanks, or prominent individuals, are, by last count, now promoting close to a dozen different concepts of how to replace one version of federal government planning with another less abrasive one.  Despite many replacement proposals, Republicans in congress seem unable to coalesce around any one approach, still leaving the impression they have none.

Some of the proposals are introduced bills. Others are wish lists of items to be in bills.  All have myriad suggestions that either move money around by extending tax deductions or refundable credits, allow formation of small business associations, require price transparency, reform medical malpractice, enhance health savings accounts, shuffle money to states for high risk pools, or various changes to Medicare and Medicaid, among others.

Far away the most popular inclusion is selling health insurance across state lines, itself a dangerous (and here) invitation to Federal micromanagement under the twisted  modern interpretation of the Commerce clause.

Such is the pressure and propensity for government to “do something” that bears on both sides of the political spectrum.  This is the plan trap.

Rarely is there a peep from anyone suggesting that no plan is the proper path, that simple policies to promote, restore, and support the proper functioning of the free market, usually by removing government intrusion rather than supplanting it, should be the goal.  One lone voice, Association of American Physicians and Surgeons past-president Dr Alieta Eck, GOP candidate for the 12th Congressional district from New Jersey, wrote an article defending freedom over planning in January 2014.  She opens:

We constantly are told that “while ObamaCare might not be perfect, the right has not come up with a better plan.” Is it possible that we do not need a “plan” at all?

Think about it. Has the federal government set up a food plan for all? A housing plan? Is the Secretary of Whatever empowered to decide what and when we eat? What kind of house each of us lives in? Of course not. We work, we plan and we buy what we need, saving up for the big-ticket items. Government does not control us, nor should it.

Yet one element contained in a few of the plans and wish lists can be the basis for a market revolution.  Unfortunately, no one seems to have grasped the power of its singular focus.  Had Dr Ben Carson simply stopped at Step 1 of his still in progress 5 step plan he would be almost completely there.

Relatively simple modification, enhancement, and expansion of tax policy surrounding HSAs, done right, has the power to be a true game changer by its potential to encourage employers to drop their long standing provision of health insurance in favor of a defined contribution approach.  It is the magic bullet.  It hides in plain sight, and here is how to get there:

Please follow these simple policy modifications:

1) Decouple HSAs from the requirement to be attached to any insurance policy.  While HSAs could still be attached to insurance (suitable for many), anyone should be allowed (and perhaps even required) to have an HSA.  Monies in HSAs receive rare triple tax advantage and protect others from the owner’s potential inability to pay for needed medical services.

2) Allow the purchase of health insurance or medical services through an HSA.  This establishes favored equal tax treatment without the need for separate legislation.

3) Greatly expand contribution limits to allow #2 to happen.  The HSA can be the tax advantaged conduit for all medically related purchases allowed under it.

4) Allow employers to contribute pre tax to an employee’s private HSA.  This is the crucial trigger for a spontaneous move of employers away from policy provision to defined contribution.  Resulting individual ownership solves portability and suitability issues for those who choose to buy health insurance in the open market through their HSA.  Employers could offer direct contributions or matches to employee HSAs.  Contributions from several employers could be combined, as well as HSA assets among family members’ accounts to purchase one insurance contract if desired.

5) Establish a permanent mechanism whereby Americans can look to each other rather than government for assistance by allowing gifting from one HSA to another both within and beyond family connections.  This is similar to the medical sharing ministry concept without the structure of membership or formal organization.  Any groups could pledge to come to the assistance of each other as needed. Such transfers could keep some people away from Medicaid, where access problems are well known or safely allow lower cost policies with higher deductible amounts.

6) For those in need fund a portion of all government assistance transfer payments into personal HSAs to be used ahead of Medicaid.  The power and influence of ownership is stronger than artificially concocted restrictions on use.  Funds from HSA extend dignity of choice and equal access until exhausted

Nothing more at the federal level may be necessary.  States would have to do their part by discovering their proper constrained regulatory role, requiring sufficient reserves to pay claims and enforcing rather than defining terms of health insurance contracts buyers and sellers find right for them.  All this, of course, requires and follows total Obamacare repeal.

While the benefits of defined contribution in a free market (not to escape or game Obamacare) have been recognized (tops list in American Doctors for Truth Plan) and discussed, no one has suggested a good way to transition. Less attention has been paid to the damage done by employer provision of health insurance, which itself was propelled by government tinkering with wage controls in World War II.

Frank Chodorov, in his 1959 book The Rise and Fall of Society, provides clues to understand why employer provision has been the enabling force of most of our problems.  He argues that a natural law of human behavior leads men to seek the highest degree of satisfactions with the least expense of labor to thereby pursue limitless desires, in order to obtain even greater gratifications.  This leads to efficiencies of effort and specialization of tasks via cooperation with others in forming societies.

Unfortunately this natural inclination also presents a weakness to seek something for nothing.  Such is the case when the employer provision of health insurance disconnects the employee from its cost.  As soon as the employee disassociates health insurance with being a part of his employer’s total cost of his employment, rather than realizing he is really giving his employer permission to spend his money in ways that may be against his best interest, he’s in trouble.  He will request or even demand more, without consideration of alternatives that would be likely choices if he was paying directly.

This then is the source of a gradual movement away from direct payment, even for that normally within the ability to easily afford otherwise, to prepayment schemes that defy the normal purpose and function of insurance to protect assets from expenses that are beyond the ability to pay.

This excess third party payment itself bolsters the illusion of getting “covered” services for free or almost free, even as the premium includes the incentivized overuse of others when not getting one’s own.  It is through these false satisfactions that we accept in healthcare what we don’t see anywhere else in our economy, a situation where almost every transaction involves, at least in part, someone else’s money, driving overuse from both the consumer and provider side along with the associated administrative costs to accomplish it.

It’s not hard to imagine how employer provision of car insurance over time would look just as ridiculous.  Oil changes would require a small copay and many other services would be “covered”.  The brake lobby would have used safety as an excuse to convince legislators to require brake “coverage” in every policy issued, all as employees, under the illusion of something for nothing, would keep asking and demanding more “generous coverage” from employers.

On the other hand, employees reconnected to cost through defined contribution, sparked by simple modification of tax policy related to HSAs, in states that likewise get government out of the way to allow multiple market choices, will make wise decisions that fit their specific financial needs.  The abuses of excess third party payment will naturally end and the free market magic bullet solution some say cannot exist will be a reality.  No one thing can accomplish so much by doing so little.

Note: This article shared to Watchdogwire-Pennsylvania

Mount Vernon Assembly December 7, 2013–A Confluence of Forces for Freedom

It was the weekend of November 9-10, just two weeks ago, when I finished reading Mark R Levin’s newest book, The Liberty Amendments: Restoring the American Republic, in which he argues for a first ever Article V amendments convention initiated by the states as the only means to bring America back to its intended path of limited central government that respects the sovereignty of the states and the people.  With this book, true scholar Levin reveals the depth of his connection to the essence of America’s founding principles, how they have been gradually eroded over time, and the urgency to restore them in order that our great nation remains the beacon of liberty and freedom for the world.  I was moved.  I thought of how the teaparty/912 movement should consider dropping everything to focus on making a first ever Article V convention a reality.

Then, on November 10, a brief twitter interaction, led to a two week journey of amazing discovery of information that leaves us today two weeks away from what may be one of the most significant gatherings in America since the days of our nation’s founding.  It started like this:

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That link to a story at The Times of Northwest Indiana, “Indiana Senate leader working toward U.S. constitutional convention”, suggested Levin’s book was having an immediate impact.  It told of a planned gathering at Mount Vernon, George Washington’s home, on December 7, with representatives from various states considering an Article V convention.  I made the assumption that it was Levin’s book that initiated this action, but also found it curious that Mark Levin or The Liberty Amendments was never mentioned in the article.

Monday morning, November 11, I called the author of the article, Dan Carden.  He explained that Indiana has a history of Article V attempts and that President of the Indiana Senate, David Long, started this process well before the August 13 release of Levin’s book.  I noted that Levin was talking about his new book well in advance of its release and still thought there may be some connection.  Carden said he didn’t know.

I then called the office of Senator David Long.  They confirmed that his efforts and Levin’s book coming together at the same time was a coincidence, but certainly not insignificant.  They said they have read The Liberty Amendments, which by the way never mentions Senator Long’s efforts, and are excited about the boost it may bring.

Curiously, Long’s office told me the main source of opposition they have encountered is coming from the very teaparty/912 groups I thought should be its most ardent supporters.  Their fear is of a runaway convention that would completely rewrite our constitution.  Senator Long, however, also recognized this threat and introduced defining and limiting bills as model legislation that has passed the Indiana legislature and been signed into law by Governor Mike Pence.  They are serious and ready to go.

Senator Long’s office also informed me that Senator Long would be on Mark Levin’s radio show Wednesday evening, November 13, in the final hour to discuss the December 7 gathering they are calling The Mount Vernon Assembly.  Of course, I listened to that show, and thanks to Levin’s making available podcasts without subscription, anyone else can too.  Here is the link to this must listen interview.  The Senator Long portion runs from 84:40 to 106:20 and is a very thorough discussion of what is taking place.  Long indicated 26 states, at that point, intend to send delegates to the meeting.

This past Tuesday, November 19, I visited the Pennsylvania state capitol to encourage our legislature, so far absent, to send a delegation to Mount Vernon. While there I discovered that, without knowledge of the December 7 gathering, our liberty loving states rights senator, Mike Folmer, has introduced a co-sponsorship memorandum declaring Pennsylvania’s support of the Liberty Amendments as outlined in Levin’s book.

Finally, I called Senator Long’s office again yesterday, November 22, for any updates.  They told me the state count is now about 30 and that I could check with Wisconsin Rep Chris Kapenga, who is handling RSVPs and keeping tabs on that.  I called Kapenga’s office and they confirmed the count is about 30 states, but they are hoping for a few more, and a room has been reserved in the library.

That room, by the way, is in the Fred W. Smith National Library for the Study of George Washington at Mount Vernon, Washington’s estate.  As if this unlikely confluence of events is not enough to ponder, Washington wrote over 200 years ago of a need for a library to house his works.  This wish was only concluded September 27, 2013 with the library’s dedication.  How’s that for a tingle up the spine?

Would it not be almost incomprehensibly ironic then, if the renewed progressive push and centralization of power by the current administration, with its disregard for our constitution as an outdated, out of touch document of yesteryear, turns out to be a fatal overreach that contributes to a constitutionally provided Article V convention of the states that effects its restoration and solidification for generations yet to come?  Thanks to Mark R Levin, Senator David Long, and every patriot taking this effort seriously!

Note: This post shared to WatchdogWire-Pennsylvania