Ilya Shapiro, of the CATO Institute, has a fantastic article published at The Daily Caller about President Obama's Top 10 Constitutional violations. On that list, are four instances related to Obamacare, including:

1. The Individual Mandate
2. ObamaCare's Medicaid Coercion
3. ObamaCare's IPAB - Independent Payment Advisory Board
4. Waivers issues by HHS

Read Shapiro's full article here.

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Mitt Romney has repeatedly said that if he were elected President he would issue an executive order that would give an ObamaCare waiver to every state and that would effectively repeal ObamaCare. The problem with this approach is that the EO would be unlawful. 

When Congress creates a law, agencies are required to implement the law as Congress has written. Now, Congress has routinely delegated certain authorities to the President, a Secretary or an Agency head allowing an official in the Executive Branch and this has included discretion as to how to implement a law and the power to promulgate regulations in furtherance of Congressional intent. Congress has also given the Secretary of HHS the express power to issue waivers, for example, related to a state's Medicaid program. 

As AHEC has previously explained, the problem with HHS's issuance of waivers under ObamaCare is that Congress did not give HHS any authority whatsoever to issue waivers related to the minimum coverage requirements of ObamaCare. Where, then, does HHS Secretary Sebelius derive her so-called "authority" to issue waivers? Contrary to federal law - she bestowed that power upon herself by issuing regulations that granted her that power. This is an unlawful grant of authority and the exercise of this authority is a direct violation of federal law (waivers have been issued for political purposes - to isolate groups from the affects of ObamaCare in advance of the 2012 election).

So, as Michael Cannon from CATO, explains the proposed RomneyCare waiver is equally unlawful. Cannon also explains an alternative that the next President could take that would dramatically undermine ObamaCare. Canon writes:

"there is one executive order that could effectively block ObamaCare, and that lies well within the president’s powers. The Obama administration has issued a proposed IRS rule that would offer 'premium assistance' (a hybrid of tax credits and outlays) in health insurance 'exchanges' created by the federal government. The only problem is, ObamaCare only authorizes these tax credits and outlays in 'an Exchange established by the State.' The administration did so because without premium assistance, ObamaCare will collapse, at least in states that do not create their own Exchanges. Yet the executive branch does not have the power to create new tax credits and outlays. Only Congress does. So if the final version of this IRS rule offers premium assistance in federal Exchanges, it will clearly exceed the authority that Congress and the Constitution have delegated to the executive branch. In that case, the next president could issue an executive order directing the IRS either not to offer premium assistance in federal Exchanges or to rescind this rule and draft a new one that does not."

UPDATE: The IRS has sent a letter to at least one Member of Congress saying it will move ahead and allow exchange subsidies to be handed out from federal exchanges (despite the clear lack of authority).

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AHEC has recently completed an extensive fiscal and policy review of the Health Care Compact (HCC or compact), legislation that has been introduced in several states. The conclusion of our fiscal review of the HCC is that the compact's funding formula is fatally flawed and that it will shift $3 trillion of healthcare liabilities from the federal government onto the backs of the states. Our report even provides a break down of the fiscal shortfall that will be created in each state if the compact were to be widely adopted.

Ironically, the group pushing the HCC has confirmed AHEC's $3 trillion figure but has failed to inform state legislators of how this will impact their state's budget. It would be the height of fiscal irresponsibility for a state to pass the compact given the obvious flaws in the funding formula, particularly if a state does not have a plan in place to ensure that the state's most vulnerable citizens will not receive proper health care. Yet some states (Texas, Oklahoma, Georgia and Missouri) have done just that.

READ AHEC'S FULL REPORT ON THE HCC HERE.

AHEC has previously discussed the myriad of problems with the Health Care Compact.  You can read much of AHEC's previous work on the HCC in the following places:

1. AHEC's Blog: The Connection of the HCC to Efforts to Enact Socialized Medicine
2. AHEC's Blog: The HCC will lead to Taxpayer Funding of Abortions and Free HealthCare for Illegal Aliens
3. A Line of Sight: A Conservative Assessment of the HCC

If you are concerned about the implications of the Health Care Compact, please call your state legislators (especially in Tennessee, Wisconsin, Florida, Ohio, Pennsylvania and Michigan and tell them to oppose the Health Care Compact).

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Earlier this week, David Frum wrote an article in which he essentially urged the GOP to accept ObamaCare but with some minor tweaks. Michael Cannon with The Cato Institute has deconstructed Frum's article to explain why Frum's idea is not just bad policy but completely unworkable and that it simply can't be fixed.

Cannon sums up Frum's "plan" as follows: "Frum’s GOP-palatable alternative to ObamaCare is … ObamaCare. But maybe more coercive. And implemented sooner. With higher taxes. And less vulnerable to legal challenges. And with Republicans playing the bad guy."  AHEC's applauds Cannon's insight into the issue.

You can read Cannon's full article here.

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Last week, the Department of Health & Human Services denied the request of the State of Delaware for a waiver from the medical loss ratio (MLR) requirements of ObamaCare.  HHS stated the waiver was inappropriate despite the arguments of the state that MLR would pose a serious problem for insurers in their state. 

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Late last week, the Obama Administration announced they would end the program that granted waivers to insurance plans that did not comply with ObamaCare's ban on annual coverage limits.  Most of these waivers benefitted insurance plans for union members. Avik Roy at the Apothecary has also commented on this development. The New York Times reports that HHS will stop accepting waiver applications on September 22.

As AHEC has previously noted, the waivers are highly controversial.  ObamaCare does not grant the HHS Secretary waiver authority, rather she (illegally) conferred that power on herself by issuing regulations. (For more on Secretary Sebelius' abuse of power, see here).  

The Administration has so far granted 1,433 waivers affecting 3.2 million insureds.  Newly issued waivers will run through 2103.  This is a naked attempt by the Obama Administration to play election year politics by buying off needed allies and favored groups for the 2012 election while ending the program more than a year before the election in an attempt to isolate the President from critics.

With the announcement that the Waiver Program would be ending, House Ways and Means Committee Chairman Dave Camp (R-MI) and Senate Finance Committee Ranking Member Orrin Hatch (R-UT) issue a statement that included the following: "The Democrats instituted the waiver program to cover up the fact that their failed law would increase costs and force people out of the plan they have and like. Now, they are shutting it down because it’s become clear that the only way to keep what you have and like is to be exempted from the very law they said would lower costs."

UPDATE (6/27/2011):  Doug Bandow of the Cato Institute has a new commentary on the waiver program that can be found here.


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Senator Joe Liberman (Independent-CT) has offered a plan to reform Medicare and, he says, extend the solvency of the program for another 20 years. The fact that he has offered a plan for reform proves that reform is absolutely necessary to save this vital program for seniors. He joins Republicans for calls to reform Medicare.  Noticeably absent, however, are the President and Congressional Democrats.

Lieberman offered the details of his plan in The Washington Post.  The plan includes the following:

1. Raising the age for Medicare eligibility, starting in 2014, by two months until it reaches 67 in 2025. For someone who turns 65 in 2014, Lieberman says, they will wait an additional 60 days before becoming eligible for Medicare. Lieberman says, "that’s a small sacrifice to ask for the benefits you will receive from a healthy Medicare program for the rest of your life."
2. Reforming "the complex Medicare benefit structure" by creating a single Part A and Part B deductible; requiring co-pays for all Medicare services; while capping out-of-pocket costs.
3. Raising premiums for new enrollees in Part B (doctor’s services) and Part D (prescriptions) "starting in 2014 to 35 percent of program costs."  Lieberman points out that: "asking Americans to pay more won’t be popular, but doing nothing and allowing Medicare to go bust won’t be popular either."
4. Reforming Medigap (but Lieberman does not offer specific for reforms in this area). 
5. Increasing taxes on "higher-income Americans" forcing them to "pay an additional 1 percent of every dollar they earn over $250,000 to help save the program."

Politico reports that ObamaCare's rationing board, the Independent Payment Advisory Board or IPAB, which is supposed to consist of 15 members empowered to make sweeping decisions about seniors access to care under Medicare and set prices is swiftly losing support among Democrats.

According to Politico: "several House Democrats have signed on to support a bill to repeal the Independent Payment Advisory Board, a panel created by the law that is supposed to help control rising costs in Medicare. The National Committee to Preserve Social Security and Medicare, a prominent supporter of the law, is now actively lobbying for its repeal, too."  Just last month, President Obama proposed giving IPAB even greater authority to make cuts in Medicare as part of his revised budget proposal.

A few observations about IPAB and ObamaCare:

(1) Opposition to IPAB by House Democrats makes it politically impossible for Congress to enact the President's latest proposal in his budget.  If the board lacks support now, the President's proposal to give more power and authority to an unelected board of 15 bureaucrats who have control over individual American's health care decisions will never pass.  This means that the President STILL has yet to put forward any realistic, workable plan to rein in spending and to reduce the deficit.  Despite this, the President and his party continue to demagogue the only viable plan to rein in spending - the House Republican's Path to Prosperity budget.

(2) The elimination of IPAB, which seems increasingly likely, reveals that ObamaCare and the means to "pay for" it is nothing but a house of cards.  First, during consideration of the bill, Democrats proposed cutting Medicare Advantage to "pay for" ObamaCare's new entitlement program.  Secretary Sibelius has since admitted that the Administration had double counted these savings (first to "save" Medicare and second to finance ObamaCare vouchers).  Second, Congress repealed the 1099 tax provision which was supposed to raise revenue to pay for ObamaCare but proved to be an unworkable revenue provision, the inclusion of which in ObamaCare was nothing more than a sham revenue provision.  Third, the IPAB which was supposed to rein in spending to ensure entitlement costs don't get even more out of hand but that provision is proving unpopular and history will show unworkable as well.

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Senator Orrin Hatch (R-UT), Ranking Member of the Senate Finance Committee, and Rep. Dave Camp (R-MI), Chairman of the Ways and Means Committee, are demanding the HHS provide far greater information to the public about the use of the waiver process.  They note the lack of transparency and communication to the business community about how to apply for a waiver and the refusal of the Obama Administration to disclose which companies have been denied a waiver.

The letter from Camp and Hatch can be found: here.     

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