Oh this is rich, Former House Speaker Nancy “We have to pass the health care bill so that you can find out what is in it” Pelosi, the woman who shut the American people out of the debate over health care reform is now calling for transparency?

House Minority Leader Nancy Pelosi (D-Calif.) said Wednesday that Supreme Court arguments over President Obama’s healthcare law should be televised.

“When the Affordable Care Act is placed before the highest court in our country, all Americans will have a stake in the debate; therefore, all Americans should have access to it,” Pelosi said in a news release.

Right, will all due respect to Rep. Pelosi, it would have been nice if she had included the American people in the debate in the first place. Instead what we got were closed door meetings and an op-ed column calling protests against Obamacare “un-American”.

Call me suspicious, but I suspect the only reason she’s backing C-Span’s request to televise the hearings is because she think Democrats will be able to use portions of the video as a weapon against Republicans during the 2012 elections.

H/T: Doug Powers.

Health and Human Services Secretary Kathleen Sebelius has already suspended indefinitely implementation of the CLASS act — Obamacare’s Long-Term-Care Entitlement because it was financially unsustainable.

And as Jonathan Adler and Michael Cannon explain in today’s Wall Street Journal Obamacare has yet another major flaw that threatens its basic functioning:

Even if ObamaCare survives Supreme Court scrutiny next spring, its trials will be far from over. That’s because the law has a major glitch that threatens its basic functioning. It’s so problematic, in fact, that the Obama administration is now brazenly trying to rewrite the law without involving Congress.

The Patient Protection and Affordable Care Act offers “premium assistance”—tax credits and subsidies—to households purchasing coverage through new health-insurance exchanges. This assistance was designed to hide a portion of the law’s cost to individuals by reducing the premium hikes that individuals will face after ObamaCare goes into effect in 2014. (If consumers face the law’s full cost, support for repeal will grow.)

The law encourages states to create health-insurance exchanges, but it permits Washington to create them if states decline. So far, only 17 states have passed legislation to create an exchange.

This is where the glitch comes in: ObamaCare authorizes premium assistance in state-run exchanges (Section 1311) but not federal ones (Section 1321). In other words, states that refuse to create an exchange can block much of ObamaCare’s spending and practically force Congress to reopen the law for revisions.

The Obama administration wants to avoid that legislative debacle, so this summer it proposed an IRS rule to offer premium assistance in all exchanges “whether established under section 1311 or 1321.” On Nov. 17 the IRS will hold a public hearing on that proposal. According to a Treasury Department spokeswoman, the administration is “confident” that offering premium assistance where Congress has not authorized it “is consistent with the intent of the law and our ability to interpret and implement it.”

Mr. Adler and Mr. Cannon rightly point out the law’s proponents confidence is misplaced… Federal agencies can create rules — but they cannot amend or ignore statutes and the text of the law is perfectly clear, it does not allow premium assistance in federal exchanges.

Simply put without congressional authorization, the IRS lacks the authority to dispense tax credits or spend money… Not that has ever stopped Washington’s regulators from ignoring the will of Congress – just look at Avenal Power Center, L.L.C. v. EPA.

Anyway, the odds that a Republican controlled House will fix a fatal flaw in Obamacare are somewhere around slim and none… the odds aren’t much in the Senate either where many Democrats are facing tough reelection fights and aren’t going to want to go anywhere near one of the most unpopular and polarizing pieces of legislation in recent memory — especially after the trouncing they took in the mid-terms.

Bottom line, the Obama Administration will undoubtedly try to push through their regulatory fix for this flaw only to see it almost instantaneously tossed out in a court challenge.

Related:

• More Americans than not want health law repeal: poll – Reuters

I’m still reviewing the 200 plus page majority opinion from Judges Joel Dubina and Frank Hull, but here’s the conclusion summarizing the court’s findings:

We first conclude that the Act’s Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.

Next, the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce. [fn omitted]

The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operaive after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.

While this is welcome news I wouldn’t celebrate just yet, we’ve still got a long way to go. If nothing else this ruling makes it more likely that this case is headed to the Supreme Court.

Random thoughts:

• Nancy Pelosi wasn’t kidding when she said we had to pass it to find out what was in it… The majority opinion is 207 pages long, most of it is devoted to explaining how the law the works.
• This is the first time a judge appointed by a Democrat has ruled against the individual mandate… Judge Hull was appointed by Bill Clinton, while Judge Dubina is a George H.W. Bush appointee.
• The court didn’t buy the Obama administration’s argument  that the individual mandate is an exercise of the governments taxing powers.  I might be wrong on this, but I think every court that’s considered the matter has ruled against the government on that point.
• The Court points out on page 171 that if it were to accept the Obama administration’s interpretation of the Commerce Clause would mean a limitless federal power:
  

  The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.

• The court basically punted on the issue of severability:
  

  The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.

  Maybe I’m missing something, but it’s my layman’s understanding the standard for “presuming” something being “severable” in a law is that it includes a specific severability clause. Regardless from what I remember, the government’s argument to Judge Vinson was that the individual mandate was not severable, it was necessary for the law to function as intended.

The complete ruling is here.

WASHINGTON — Removing a potential political distraction ahead of next year’s elections, the Obama administration Friday announced an early end to a health care waiver program that has come under fire from congressional Republicans.

Political considerations were “absolutely not” part of the decision, said Steve Larsen, head of a section of the Health and Human Services department that oversees President Barack Obama’s health care law.

Larsen said no new applications for waivers will be considered after Sept. 22. Approvals or renewals received by the deadline will be good through 2013. Starting in 2014, the main coverage provisions of the health care law will take effect, and such waivers will no longer be needed.

Heh, of course this has nothing to do with mounting criticism of the process or the fact that HHS has no statutory authority for granting these waivers.

To be honest I stopped paying attention to the whole Obamacare waiver mess shortly HHS granted a wavier to the entire state of Maine… Anyway, it looks like the White House transparency wizards have finally realized just how damaging the public backlash over these waivers has become and is now in CYA mode… In short: no more disclosures, no more public scrutiny and no more headaches for them.

Related

• House Hearing Reveals the Truth About the Obamacare Waivers – Heritage Foundation
• Obama administration to end monthly healthcare law waiver approvals – The Hill

The federal government Tuesday granted Maine a waiver of a key provision in President Barack Obama’s health care overhaul, citing the likelihood that enforcement could destabilize the state’s market for individual health insurance.

The U.S. Health and Human Services department said in a letter it would waive the requirement that insurers spend 80 cents to 85 cents of every premium dollar on medical care and quality improvement. Instead, the letter said, the state could maintain its 65 percent standard for three years, with the caveat that HHS intends to review the figures after two years.

The decision makes Maine the first state to receive a waiver of the requirement. Similar requests are pending from Kentucky, Nevada and New Hampshire.

There’s a lot of things I could say here, but instead I’m going to point you to Jon Hall’s American Thinker piece ‘Waiving’ goodbye to the Constitution. Mr. Hall very rightly points out that these waivers go to the very heart of what “a nation of laws, not men” is all about. In short, they violate the Constitution’s equal protection clause… As Mr. Hall notes: “The law is the law only if it applies to everyone.”

The number of temporary healthcare reform waivers granted by the Obama administration to organizations climbed to more than 1,000, according to new numbers disclosed by the Department of Health and Human Services.

HHS posted 126 new waivers on Friday, bringing the total to 1,040 organizations that have been granted a one-year exemption from a new coverage requirement included in the healthcare reform law enacted almost a year ago. Waivers have become a hot-button issue for Republicans, eager to expose any vulnerabilities in the reform law.

That’s right folks the Department of Health and Human Services granted 1,040 temporary waivers from burdensome requirements of the President’s signature piece of legislation.

So who’s getting all these waivers? According to the Centers for Medicare and Medicaid Services web site the waivers have gone to Self-Insured Employers (423), Health Reimbursement Arrangements (322), Multi-Employer Plans (237), Non-Taft Hartley Union Plans (23), Health Insurance Issuers (29), State-Mandated Policies (4) and Association Plans (2). You can see the full list here.

from The Wall Street Journal:

A federal district judge sided with the state of Virginia in its challenge to the health law passed in March, saying Congress exceeded its “constitutional boundaries” when it required most Americans to carry health insurance or pay a fine.

Judge Henry E. Hudson of the Eastern District of Virginia said the provision in the bill, known as the individual mandate, “would invite unbridled exercise of federal police powers.”

The ruling is perhaps the most significant so far among a slate of state-based legal challenges to the law, which faces a broad attack by newly resurgent Republicans in Congress. More than 20 federal lawsuits have been filed against the health overhaul since President Obama signed it in March. The individual mandate doesn’t take effect until 2014.

Judge Hudson’s ruling deals serve blow to health care reform advocates. Saying in part:

“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” he wrote. “In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I .”

Judge Hudson’s ruling will undoubtedly be appealed. A separate suit filed by 20 states still pending before federal Judge Roger Vinson in Pensacola, Fla., who will hear arguments in the case on Thursday.

FOX News contributor Tracy Byrnes sums things pretty well:

“The bottom line here is that they gave out waivers is an admission of guilt. Basically they’re saying, “You’re right. We screwed up.” That’s the bottom line here. They did not create a law that benefits all of us.”

Heh, they didn’t pass a law that benefits any of us… If this turkey isn’t repealed it will ultimately destroy private health insurance and private health care in this country.

You can view the list chosen few on the HHS web site.

I should also mention that out of the 375,000 or so Americans with pre-existing conditions HHS said would apply for coverage in the first year of ObamaCare only 8,011 have done so.

From the Hartford Courant:

The state’s largest insurer has been approved to raise health premium rates by 41 percent to 47 percent for some of its policies sold to individual buyers, in the largest price hikes yet seen in Connecticut since the adoption of national health care reform.

For all of its individual market plans, Anthem Blue Cross and Blue Shield has received approval to raise rates by at least 19 percent — including a range of 30 percent to 44 percent for the brand of plans in the individual market that was most popular in 2009, Century Preferred.

The reason for the increases is the new federal health reform mandates, according to Anthem and the state Department of Insurance, which is defending its approval against charges by Attorney General Richard Blumenthal. Those reforms took effect Sept. 23.

These increases shouldn’t come as a surprise to anyone with even a bit of common sense… The thing liberal politicians never seem to grasp is Newton’s third law of motion, “Every action has an equal and opposite reaction”, applies as readily to economics as it does to physics… Simply put, as Anthem spokeswoman, Sarah Yeager explains these costs are directly attributable to new benefits mandated in ObamaCare:

“Our [Patient Protection and Affordable Care Act] compliant individual products include expanded benefits such as elimination of lifetime dollar maximums, no cost share for preventive coverage, and extension of dependent coverage to age 26. With this enhanced coverage, pricing levels have also been adjusted to make sure that the cost of claims incurred is offset by the premiums collected, and that we anticipate the cost of future, expected claims. Low cost low benefit plans experienced a higher rate adjustment because with the health care reform provisions the plans now offer richer benefits. Other plans that already offered rich benefits did not experience as much of an adjustment.”

All the new benefits mandated in Obamacare mean insurance companies are assuming higher risks, those higher risks have to be offset by higher premiums or eventually the insurance company will go broke.

Ed Morrissey sums the situation up pretty well over at Hot Air:

Well, Obama’s been busy getting an education at public expense, hasn’t he?  We know what the economic consequences of mandates and broader regulation are.  The political consequences will depend on who’s in charge.  Either Congress will roll back ObamaCare and replace it with a reform that attacks the true cause of escalating health-care costs — the third-party payer structure that is a relic of World War II wage freezes — or the Obama administration will push for price freezes that will utterly destroy the private insurance market.

That’s what makes this election so important, and why conservatives have to ensure that Democrats do not retain control of the agenda in the 112th Session of Congress.  We won’t be laughing if they keep enough of a grip on power to create the final act of nationalization of health care.

This election is one of the most critical in American history, if we can’t break the Democrats hold on Congress and restore some fiscal and regulatory sanity in Washington we’re doomed to years of high unemployment, limited economic growth and diminished liberty.

Related

• Judge lets states’ healthcare suit go forward – Reuters

One of the problems with any proposed law that’s over 1,000 pages long and constantly changing is that much deviltry can lie in the details. Take the Democrats’ proposal to rewrite health care policy, better known as H.R. 3200 or by opponents as “Obamacare.” (Here’s our CBS News television coverage.)

Section 431(a) of the bill says that the IRS must divulge taxpayer identity information, including the filing status, the modified adjusted gross income, the number of dependents, and “other information as is prescribed by” regulation. That information will be provided to the new Health Choices Commissioner and state health programs and used to determine who qualifies for “affordability credits.”

Section 245(b)(2)(A) says the IRS must divulge tax return details — there’s no specified limit on what’s available or unavailable — to the Health Choices Commissioner. The purpose, again, is to verify “affordability credits.”

Section 1801(a) says that the Social Security Administration can obtain tax return data on anyone who may be eligible for a “low-income prescription drug subsidy” but has not applied for it.

Yikes, sec. 1801 is probably the most disturbing. Sections 245 and 431, at least require someone to apply for “affordability credits” before their tax information is shared with health care bureaucrats. Sec. 1801on the other hand gives the government the authority to simply grab everyone’s records and start searching through them, looking for Americans who may not realize they qualify for a “low-income prescription drug subsidy.”

Amazing, simply amazing… Democrats spent much of the last 8 years complaining about the Bush Administration’s alleged trampling of privacy rights and yet here they are proposing a far more direct trampling taxpayer’s privacy rights.

Ed Morrissey’s right, “… if they’re this cavalier about your privacy on tax records, just imagine what they’ll do with your health records.”

Related

• Obama’s Health Rationer-in-Chief – Wall Street Journal
• ‘Cruel and neglectful’ care of one million NHS patients exposed – Telegraph
• Markey: Medicare will take hit – The Coloradoan