Category Archives: States Rights

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

Posted on February 24, 2015 | 3 comments

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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………

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Posted in Healthcare/Insurance, National Politics, State Politics, States Rights

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

Posted on November 23, 2013 | 51 comments

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

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Posted in National Politics, PA Politics, State Politics, States Rights

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Can Obamacare’s “Barrycades” to Insurance Freedom be Crossed?

Posted on October 31, 2013 | 2 comments
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Gettysburg Battlefield Aug 13 2013

Not so unlike the fences, signs and traffic cones used to unnecessarily block Americans from their open space national treasures during the recent Federal Government shutdown, similar “Barrycades” to healthcare and insurance freedom are limiting Americans’ ability to freely enter into contracts on terms they decide are right for them.  As the millions having their health insurance policies cancelled are learning, there is currently not an option to simply pay the tax, if necessary, and even forgo the subsidy for those willing, in order to keep a health insurance policy they may have owned for years.

While the freedom to contract, as provided in Article 1, Section 10 of the United States Constitution may seem clear to many, who likely consider it one of our foundational rights, it has endured a surprisingly rocky history in our courts, and as such, provides no guarantee of support against the impositions of the Affordable Care Act.  In America today, Obamacare is erecting barriers to contract freedom by attempting to restrict terms of health insurance policies to those dictated by powerful government bureaucrats, in total disregard of individual choice or basic considerations of sound personal finance.

Especially hard to understand is that a tax can be paid to legally remain completely uninsured, yet plans not deemed “qualified” are not supported as better than nothing (and in many cases completely adequate) in relieving others of ever having to pick up for those without the resources to fend for themselves.  Wasn’t that the stated goal all along?  Like so much of Obamacare, this makes no sense and can only be about elitist control, a step into socialism Americans used to think only happened elsewhere.

Also, with a growing healthcare freedom movement by doctors to eliminate third party payers entirely, from at least primary care, by the establishment of direct pay cash-only pay-per-use or concierge practice models, other options will be needed for those who choose this interesting, and so far, legal alternative.  The use of still available critical illness insurance, as a proxy for unavailable pure high deductible insurance that would make much more sense in these situations, has been suggested.  Dr. Merrill Matthews, of the Institute for Policy Innovation, in a recent article in Forbes, shows how being wrapped in a cloak of life insurance has allowed the critical illness insurance option to survive, and may be a good choice, if not ideal, for many.

As I wrote in a post last December, the curious Miscellaneous Provisions, Subtitle G, Section 1555 single paragraph in the Affordable Care Act clearly says that issuers of health insurance are not required to participate under the act, nor can fines or penalties be imposed for choosing to not participate.  When this is combined with the option for states to regulate insurance, as has been tradition under authority of the McCarran-Ferguson Act of 1945, questions arise as to what states may still be able to do.

Even under Obamacare currently, states may add to the essential minimum benefit requirements of insurance needed to “qualify”.  So states are still involved in their health insurance regulation, if only to a much reduced degree.  A question is how far that authority goes the other way.  Could a state right now, in answer to the current mess of cancellations along with a failed exchange website, exploit the crisis to require the suspension and reversal of all policy cancellations within its borders until the exchanges are fixed?  Could they allow and even require companies that want to sell health insurance in their state to offer the choice of non qualifying plans along side or in place of (Section 1555) Obamacare compliant plans, sold off the exchange, now and in the future?  Could states take charge of the situation to the point that, if Obamacare cannot be eliminated, there could remain legal alternative insurance options apart from Obamacare, even if the federal tax would be due and subsidies not available?

Senator Ron Johnson of Wisconsin has made an attempt to settle this question at the Federal level, at least for currently existing plans, with the introduction of what he calls the “If You Like Your Health Plan, You Can Keep it Act“.  Current political reality makes actual passage unlikely, of course, returning to the possibility that states could act on their own.

One of those I respect most in the Obamacare debate, Michael F Cannon, at Cato Institute, told me the Supremacy Clause would make my suggested state actions illegal, however one of the attorneys on a panel event I attended at Cato was less dismissive of my suggestion of what states could possibly do.  Adding further speculation is the answer I got from ehealthinsurance.com when I questioned them about a month ago.  Their first contact representative, told me they expect to see some states “go rogue” and attempt to offer non Obamacare compliant choices in the future.

As with the shutdown “Barrycades”, when free citizens defiantly crossed the lines and prevailed, will there arise states that tell the Federal Government they have gone too far and we the people have had enough?

Note: This post shared to WatchdogWire-Pennsylvania

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Posted in Healthcare/Insurance, Politics, States Rights

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Resisting Obamacare and Confronting the Dangerous “Other” Complicity – There IS a Way Out

Posted on December 10, 2012 | 10 comments

With the deadline for states to convey their intentions on Obamacare exchanges to HHS only days away at this writing, much attention is centered on what they will do.  It is possible that half the states will decline to participate leaving the Feds alone in a task some think may not go well.  The point that the States have the option of participation cannot be lost.  The crafters of Obamacare were in some ways cognizant of the limits of Federal power and, thereby, sometimes reliant on willful submission and complicity to achieve their goals.  In the past few weeks I’ve discovered that exchanges were not the only situation where Obamacare recognizes its potential limitations vis-a-vis the states, opening the door to the potential for significant new legal non compliance options.

On November 29 I received an email from Donna Rovito, fellow Pennsylvanian, National leader in  healthcare freedom issues, and founder of the Lehigh Valley Coalition on Healthcare Reform.  It included a link to a Citizens’ Council for Health Freedom (CCHF) page featuring commentary from its president Twila Brase.  Her topic was a section of Obamacare that drew notice of at least one attorney at the Goldwater Institute.  It’s found in Subtitle G – Miscellaneous Provisions, specifically Section 1555 which reads:

“No individual, company, business, nonprofit entity, or health insurance issuer offering group or individual health insurance coverage shall be required to participate in any Federal health insurance program created under this Act (or any amendments made by this Act), or in any Federal health insurance program expanded by this Act (or any such amendment), and there shall be no penalty or fine imposed upon any such issuer for choosing not to participate in such programs.”

The question raised was whether Section 1555 leaves individuals the right to opt out of Obamacare or is restricted to issuers of insurance, accepted as understood.  I hope to show why this distinction is of minor concern.

Only a few more pieces of this puzzle need to be considered to understand its importance, mostly falling under the heading of what I’ve been calling the “other” complicity.

The other complicity is the unchallenged acceptance of Obamacare coverage mandates and regulations into policies as they even now exist before the exchanges are set to begin.  This would include everything that defines how health insurance must look, from the phony deceptive “no cost sharing” first dollar mandates (including “free” contraception) to the age 26 requirement and bans on exclusion of preexisting conditions, from minimum loss ratio requirements to actuarial value restrictions and more.  All this defining by the feds is in a direction 180 degrees from anything that makes sense and will add hugely to health insurance premiums within the exchanges.  Michael Cannon at the blog Cato @ Liberty just presented some stunning information on the magnitude of these premium increases.  We are looking at 30-40% and in some cases more.

While the Federal Government may be able to define the parameters of insurance within Obamacare there still exists a world outside, separate and apart, or at least there can and should.  That world is the authority and responsibility of the states to regulate insurance sold within its borders granted to it by the McCarran-Ferguson Act of 1945.  Under McCarran-Ferguson insurance was exempted from Federal anti-trust law and its regulation was left to the states, and remains in effect to this day.  There is nothing about Obamacare that strips states of this right and insurance companies cannot claim that they are bound to participate in the dictates of Obamacare, as Subtitle G-Section 1555 makes clear they are not.  Insurance companies were given the choice to partcipate, but states, through their insurance departments, and the authority of McCarran-Ferguson, reserve the right to require the continuance of non Obamacare compliant health insurance outside the exchanges, no matter what form the exchanges take.  So long as states do NOT go for the purchase of health insurance across state lines, they have the defense, even in the face of the modern skewed interpretation of the Commerce Clause, to keep it this way.  States must see Obamacare not as an imposition upon them but as a federal program layered over them for those who want it.  They hold the keys to the maintainance of the availability of sensible health insurance policies, outside the federal program, firmly in their hands.

States, by using the authority they have, can even require a movement to true high deductible insurance where everything covered conforms to the deductible, among its choices outside Obamacare, thus setting the stage for many to pay the tax for non participation in the exchange, purchase sensible real insurance outside it, stash money into a HSA, and still have money left over in the end.

My take is that Obamacare is so reliant on willful complicity as to be a paper tiger that only gets teeth that are handed to it.  All of the above along with the adoption of Healthcare Freedom measures as 17 states so far have, will determine how far states will permit the federal power grab that is Obamacare to go.  A tradition of states exerting those powers they have needs to be rekindled, and there is no better time than now, on this issue, to do it.

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Posted in Healthcare/Insurance, Politics, States Rights