Tag Archives: Max Baucus

Obamacare, the Constitution, and “Sabotage”

An inside look at an Oval Office meeting between President Trump and Democratic leaders…

 

Donald Trump:           Nancy, Chuck, so good to see you. I wanted to bring you some good news: We’re starting construction on the border wall tomorrow.

Nancy Pelosi and Chuck Schumer:             What? Congress hasn’t appropriated money for the wall. And Congress has the “power of the purse,” not you. How can you say you’ll build the wall when we haven’t signed off on the funding?

Trump:            Because Barack Obama did it for years. What about his actions on Obamacare?

Pelosi:              What do you mean, what about Obamacare? It’s the law of the land—and you should stop sabotaging it!

Trump:            By “sabotaging Obamacare,” you mean failing to spend money on the cost-sharing subsidies to lower deductibles and co-payments…

Pelosi and Schumer: Right!

Trump:            …even though the text of Obamacare itself nowhere includes an appropriation for those subsidies…?

Pelosi and Schumer: Ummm…

Trump:            Let me get this straight: You’re accusing ME of sabotage, because YOU “forgot” to include an appropriation in Obamacare for more than $10 billion per year in spending?

Pelosi:              But “everyone understood” the law provided an appropriation…

Trump:            Even though you couldn’t be bothered to write it down?

Pelosi and Schumer: Ummm…

Trump:            Did either one of you—or for that matter, any Democrat—actually read the bill before voting for it?

Schumer:         I meant to, I swear! But Max Baucus said he hired the best experts, so we didn’t think we needed to.

Trump:            Didn’t those experts read the bill?

Schumer:         They spent all their time cutting deals to get the bill passed. Those Cornhusker Kickbacks don’t write themselves, y’know!

Trump:            Well, your loss is my gain. I’ve read some of the documents in the lawsuit over the cost-sharing subsidies. Do you know that the Obama Administration argued that the structure of the bill implied an appropriation, even though one doesn’t exist…?

Pelosi and Schumer: Yes…

Trump:            And Nancy, you remember the amicus brief you filed in the case right before my election, which said that the courts are “certainly not” the venue for litigating cases when the executive invents an appropriation, as it did with the cost-sharing subsidies…?

Pelosi:              But…but…but…

Trump:            That means I can argue that there’s an appropriation behind any law Congress has passed—like the bill you voted for, Chuck, authorizing construction of the border fence…

Schumer:         What?

Trump:            …And you can’t go to court to stop me!

Pelosi and Schumer: But you requested funding from Congress—and we refused to grant it!

Trump:            You mean, like Congress refused to appropriate funds for the Obamacare cost-sharing reductions, after President Obama requested them…?

Pelosi and Schumer: Ummm…

Trump:            The Obama Administration testified before Congress that it had the authority to spend money on the cost-sharing reductions because Congress didn’t explicitly stop them from spending it, correct?

Schumer:         Yes…

Trump:            And Nancy, your brief said the same thing: That unless Congress explicitly prohibits a President from spending money, the President has free rein to do so…

Pelosi:              But I was trying to protect Obamacare from sabotage!

Trump:            Did you take an oath to support and defend the Constitution, or to support and defend Obamacare?

Pelosi and Schumer: There’s a difference?

Trump:            Yes—and here it is. Thanks to President Obama’s precedent, I can make up whatever appropriations I want—and by your own admission, you can’t go to court to stop me. You could in theory enact a bill prohibiting me from spending money on these phantom appropriations. But because I have a veto pen, you’ll need a 2/3rds majority in each chamber to override me. You don’t have a 2/3rds majority, do you?

Pelosi and Schumer: No, Mr. President.

Trump:            Didn’t think so. So I’ll get my funding for the border wall—and increased defense funding to boot. And maybe I’ll find some other appropriations too. I think the structure of Michelle Obama’s school lunch program implies an appropriation for a new chef at Mar-A-Lago…

Pelosi:              You know, Mr. President, maybe we need to re-think our position on these phantom appropriations. I signed that legal brief the week before the election, not knowing who the next President would be. I thought that power would be safe in her hands…

Trump:            WRONG!

Pelosi:              But executive power has its limits—and Congress should jealously guard its “power of the purse,” regardless of which party holds power at the other end of Pennsylvania Avenue. Otherwise, we could see all sorts of unintended consequences from legislation…

Trump:            You mean, we had to pass the bill so that you could find out what is in it…?

Pelosi:              Well played, Mr. President.

Past as Prologue? A Review of “The System”

A young president promising hope and change takes over the White House. Immediately embarking upon a major health-care initiative, he becomes trapped amidst warring factions in his party in Congress, bickering interest groups, and an angry public, all laying the groundwork for a resounding electoral defeat.

Barack Obama, circa 2009-10? Most definitely. But the same story also applies to Bill Clinton’s first two years in office, a period marked by a health-care debate in 1993-94 that paved the way for the Republican takeover of both houses of Congress.

In their seminal work “The System,” Haynes Johnson and David Broder recount the events of 1993-94 in detail—explaining not just how the Clinton health initiative failed, but also why. Anyone following the debate on Obamacare repeal should take time over the holidays to read “The System” to better understand what may await Congress and Washington next year. After all, why spend time arguing with your in-laws at the holiday table when you can read about people arguing in Congress two decades ago?

Echoes of History

For those following events of the past few years, the Clinton health debate as profiled in “The System” provides interesting echoes between past and present. Here is Karen Ignani of the AFL-CIO, viewed as a single-payer supporter and complaining that insurance companies could still “game the system” under some proposed reforms. Ironic sentiments indeed, as Ignani went on to chair the health insurance industry’s trade association during the Obamacare debate.

There are references to health care becoming a president’s Waterloo—Johnson and Broder attribute that quote to Grover Norquist, years before Sen. Jim DeMint uttered it in 2009. Max Baucus makes an appearance—he opposed in 1994 the employer mandate he included in Obamacare in 2009—as do raucous rallies in the summer of 1994, presaging the Obamacare town halls 15 years later.

Then there are the bigger lessons and themes that helped define the larger debate:

“Events, Dear Boy, Events:” The axiom attributed to Harold Macmillan about leaders being cast adrift by crises out of their control applied to the Clintons’ health-care debate. Foreign crises in Somalia (see “Black Hawk Down”) and Haiti sapped time on the presidential calendar and press attention, and distracted messaging. During the second half of 2009, Obama spent most of his time and energy focused on health care, leading some to conclude he had turned away from solving the economic crisis.

Old Bulls and Power Centers: “The System “spends much more time profiling the chairs of the respective congressional committees—including Dan Rostenkowski at House Ways and Means, John Dingell at House Energy and Commerce, and Patrick Moynihan at Senate Finance—than would have been warranted in 2009-10. While committee chairs held great power in the early 1990s, 15 years later House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid called most of the legislative shots from their leadership offices.

Whereas the House marked up three very different versions of health-care legislation in 1993-94, all three committees started from the same chairman’s mark in 2009. With Speaker Paul Ryan, like John Boehner before him, running a much more diffuse leadership operation than Pelosi’s tightly controlled ship, it remains to be seen whether congressional leaders can drive consensus on both policy strategy and legislative tactics.

The Filibuster: At the beginning of the legislative debate in 1993, Robert Byrd—a guardian of Senate rules and procedures—pleaded for Democrats not to try and enact their health agenda using budget reconciliation procedures to avoid a filibuster. Democrats (begrudgingly) followed his advice in 1993, only to ignore his pleadings 16 years later, using reconciliation to ram through changes to Obamacare. Likewise, what and how Republicans use reconciliation, and Democrats use the filibuster, on health care will doubtless define next year’s Senate debate.

Many Obama White House operatives such as Rahm Emanuel, having lived through the Clinton debate, followed the exact opposite playbook to pass Obamacare.

They used the time between 1993 and 2009 to narrow their policy differences as a party. Rather than debating between a single-payer system and managed competition, most of the political wrangling focused on the narrower issue of a government-run “public option.” Rather than writing a massive, 1,300-page bill and dropping it on Capitol Hill’s lap, they deferred to congressional leaders early on. Rather than bashing special interest groups publicly, they cut “rock-solid deals” behind closed doors to win industry support. While their strategy ultimately led to legislative success, the electoral consequences proved eerily similar.

Lack of Institutional Knowledge

The example of Team Obama aside, Washington and Washingtonians sometimes have short memories. Recently a reporter e-mailed asking me if I knew of someone who used to work on health care issues for Vice President-elect Mike Pence. (Um, have you read my bio…?) Likewise, reporters consider “longtime advisers” those who have worked the issue since the last presidential election. While there is no substitute for experience itself, a robust knowledge of history would come in a close second.

Those who underestimate the task facing congressional Republicans would do well to read “The System.” Having read it for the first time the week of President Obama’s 2009 inauguration, I was less surprised by how that year played out on Capitol Hill than I was surprised by the eerie similarities.

George Santayana’s saying that “Those who cannot remember the past are condemned to repeat it” bears more than a grain of truth. History may not repeat itself exactly, but it does run in cycles. Those who read “The System” now will better understand the cycle about to unfold before us in the year ahead.

This post was originally published at The Federalist.

When CMS Post Opens Again, Will Obama Step Up?

When Marilyn Tavenner steps down as head of the Centers for Medicare and Medicaid Services this month, one of the federal government’s most powerful positions will once again come open. History and President Barack Obama’s actions toward the post suggest that finding a replacement might prove difficult.

Before Ms. Tavenner was confirmed in May 2013, CMS had gone without a permanent, Senate-confirmed administrator for nearly seven years—since Mark McClellan left the agency in the fall of 2006. The Bush administration nominated Kerry Weems, a career civil servant, to replace Mr. McClellan; Mr. Weems received a polite hearing from the Senate Finance Committee in July 2007, but a CMS policy memo issued shortly afterward regarding the Children’s Health Insurance Program angered Senate Democrats. The committee’s chairman, Max Baucus (D-MT), refused to bring the nomination to a vote, and Mr. Weems served as acting administrator for the rest of the Bush administration.

Upon taking office, President Obama waited nearly 15 months—until his health-care legislation was passed—to nominate Don Berwick to run the agency that would oversee much of the law’s implementation. Mr. Berwick’s history of writings proved so inflammatory that Democrats, despite having an overwhelming Senate majority, refused to advance his nomination. Mr. Berwick received a controversial recess appointment from President Obama in July 2010 but was forced to leave CMS in December 2011 when his temporary appointment expired because the Senate had not voted on his confirmation.

While serving in the Senate in 2007-08, Mr. Obama stood by as Sen. Baucus and Majority Leader Harry Reid (D-NV) put Mr. Weems’s confirmation on ice. And as president, Mr. Obama failed to demand a vote from his fellow Democrats when they decided not to advance Mr. Berwick’s nomination, likely seeking to spare vulnerable incumbents from taking a position on a nominee with a controversial record. Given the president’s history of remaining quiet about a Democratic Senate not confirming CMS nominees, he has little standing to complain should the Republican-controlled Senate choose not to advance his choice to succeed Ms. Tavenner.

Even before Obamacare, the Centers for Medicare and Medicaid Services had a budget larger than that of the Pentagon; since the law passed, its subsidies, regulations, or both affect the insurance of basically every American with health coverage. The CMS administrator’s job is critical. But President Obama’s actions have contributed to a lack of permanent leadership in CMS for most of the past eight years. We’ll see whether that pattern persists after Ms. Tavenner departs.

As a health policy analyst for the Senate Republican Policy Committee from January 2010 through April 2012, Chris researched Don Berwick’s nomination to the Centers for Medicare and Medicaid Services.

This post was originally published at the Wall Street Journal’s Think Tank blog.

Obamacare and the Pitfalls of Congressional Legislating

Weeks before Congress embarked on its final push to put Obamacare on the statute books, then-House Speaker Nancy Pelosi infamously stated that Congress had to pass the bill “so that you can find out what’s in it.” But last week, a staffer at the heart of drafting the legislation admitted that Congress itself failed to comprehend the implications of the provisions it imposed upon the American people.

On Friday, a Capitol Hill newspaper published a story outlining the history of Obamacare’s employer mandate and whether the administration might delay its implementation still further. In the article, Yvette Fontenot—a lobbyist who helped write the bill for then-Senate Finance Committee Chairman Max Baucus and later worked on implementing the legislation at the White House—admitted that when Mr. Baucus’s staff drafted the employer mandate, “we didn’t have a very good handle on how difficult operationalizing the provision would be at that time.”

Indeed, the employer mandate has proved difficult to implement. Defining who counts as a full-time employee across a variety of industries and creating databases to track employees’ hours have taxed regulators and companies alike. While the administration has cited these difficulties in twice delaying the mandate’s implementation, the law’s critics take a different view—believing the administration postponed the mandate to avoid potential stories about job losses prior to the 2014 elections.

Likewise, the import of Ms. Fontenot’s admission. Liberals and supporters of a strong executive might argue that her comments highlight the need for agency rulemaking, rather than placing final authority in the hands of inexpert legislators and overtaxed congressional staff—essentially saving Congress from itself. House Speaker John Boehner obviously disagrees. The Ohio Republican views the impending House vote exploring legal action against the administration as one way for the legislature to regain its authority.

But more broadly, conservatives would argue that Ms. Fontenot’s comments highlight the need for a more deliberative—and more humble—Congress, one quicker to acknowledge its own flaws, and change its processes accordingly. Recall that Max Baucus—the prime congressional author of Obamacare—said four years ago that he didn’t want to “waste my time” reading the legislation, because “we hire experts.” But one of those “experts” now says she didn’t understand how one of the major portions of the bill would work. It makes a very compelling argument that Congress, rather than relying on agency employees to resolve its self-imposed problems, should instead revert to the Hippocratic oath, and focus first and foremost on doing no legislative harm.

This post was originally published at the Wall Street Journal’s Think Tank blog.

Flush with Federal Cash, Obamacare Supporters Spending Money on…Porta-Potties

Even among the law’s supporters, Obamacare is in the toilet. Quite literally.

As The Washington Post reports, states implementing Obamacare’s exchanges are considering all kinds of methods to promote Obamacare. Reporter Sarah Kliff spoke with Michael Marchand, the head of Washington State’s exchange:

Marchand has been thinking up all sorts of ways to make sure young people hear about the new health program. Perhaps in music-heavy Washington state, it’s no surprise that his thoughts have gravitated toward outreach at concerts and music festivals.

“We’ve talked about everything we could use, even whether we could do some branding on porta-potties,” he said. “I want to sponsor charging stations, too. Talk about a captive audience. They’re standing there, charging their iPhones.”

Kliff reports on other states’ plans to “educate” their citizens about Obamacare, all using federal dollars provided through exchange grants. For instance, “Oregon may reel in hipsters with branded coffee cups for their lattes.” And Connecticut’s exchange “plans to head to the beach this summer” to promote Obamacare:

Officials will hand out sunscreen customized with a “get covered” slogan and hire an airplane to fly over beaches with a banner that advertises the new agency.

No word yet on whether Senator Max Baucus (D-MT) has suggested state exchanges partner with Amtrak, given his recent comments about the state of Obamacare implementation.

Jokes aside, the gusher of federal spending on exchange grants and related promotional activities demonstrates the problem with Obamacare. At a time when our nation’s debt is approaching $17 trillion, using taxpayer funds to buy latte cups, sunscreen, and portable toilets represents a massive amount of waste. It’s yet another reason why Congress should act to defund Obamacare and refuse to spend a single dime on such frivolous expenditures.

This post was originally published at the Daily Signal.

More Evidence That Employers Will Drop Coverage

The Wall Street Journal reports this morning on a study by consultants at Deloitte showing that a large number of businesses are viewing Obamacare as an opportunity to “head for the exits” and stop offering health insurance coverage altogether:

In all, 9% of companies in the Deloitte study said they expected to stop offering insurance in the next one to three years….But around one in three respondents said they could decide to stop offering health coverage if they find that the law requires them to provide more generous benefits than they do at the moment; if a tax on high-cost plans takes effect in 2018 as scheduled; or if they conclude that the cost of penalties for not providing insurance could be less expensive than paying for benefits.

The Deloitte survey further reinforces the numerous prior studies, papers, briefs, reports, employer questionnaires, consultant presentations, surveys, op-eds, interviews, quotes, and comments from other prominent Democrats suggesting that employers will drop coverage in numbers far greater than the White House lets on, resulting in trillions of dollars of added federal costs.  Even Jon Stewart, in an interview with Secretary Sebelius in January, would not believe the Administration’s line that employers would keep offering coverage: Stewart stated that there would likely be a “big dump” by employers into Exchanges, meaning Obamacare would become “sort of, a back door, of government, not a takeover necessarily, but of a government responsibility for the health care.”

On a related note, a brief follow-up to last week’s post on consulting firm Truven’s “analysis” of whether employers will benefit from dropping health coverage for their employees or not.  We pointed out at the time that the report did NOT take into account the impact of federal insurance subsidies on firms’ drop-or-no-drop calculus.  Sarah Kliff responded by saying that according to Truven, most people in the study will not qualify for insurance subsidies due to their income.

There are several problems with this claim, and the study.  First, most Americans WILL qualify for subsidies.  According to the Census Bureau, there are 266.5 million individuals under age 65.  Of those, 169.2 million, or 63.5 percent, have incomes under 400 percent of the federal poverty level – the threshold under which individuals can receive insurance subsidies.  But at no point in the Truven study does the paper note that the population being studied is asymptomatic from the nation as a whole.  Making supposedly-generalizable claims that “employers who choose to cut plans as a perceived cost-saving measure will not benefit as much as they might assume” – and having those trumpeted in the press – based on an incorrect and faulty premise (i.e., that most workers nationwide won’t qualify for subsidies) is highly misleading, and severely flawed.

There’s also an ironic footnote here.  Some may recall that last year McKinsey put out a study – one which, unlike the Truven analysis, suggested that a large number of employers would drop coverage.  Democrats immediately cried foul, and Max Baucus and others sent letters promising an investigation and demanding McKinsey publicly release its methodology.  Yet surprisingly, given the obvious flaws in the Truven study, Chairman Baucus has yet to issue a similar letter demanding the company explain its highly dubious conclusions.  I only wonder: Why might that be…?

Obamacare Mandate Taxing the Administration’s Powers of Spin

In today’s latest installment of absurd political parsing, the Obama campaign said today that Obamacare’s mandate is not a tax, and is instead a “penalty,” despite what the Supreme Court ruled last week.  The campaign claimed “the Administration ‘never referred to it as a tax’ in court.”

Actually, that’s not exactly true either.  The Solicitor General claimed it WAS a tax increase — because Senator Baucus said it was a tax increase, and Congress upheld it on those grounds.  From page 49 of the transcript of March 27’s oral arguments:

JUSTICE KAGAN:  I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference….And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant?

GENERAL VERRILLI:  I don’t think that that’s a fair characterization of the actions of Congress here, Justice Kagan.  On the — December 23rd, a point of constitutional order was called, too, in fact, with respect to this law.  The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power.  In his response to the point of order, the Senate voted 60 to 39 on that proposition.

Ironically enough, even though the Solicitor General argued that Congress imposed the mandate as a tax increase — purportedly at odds with the President’s (current) position — at no point did the President attempt to contest that legislative history.  President Obama could have vetoed the entire law because Congress said the mandate was a tax increase.  He also could have issued a presidential signing statement clarifying that the mandate was not a tax increase.  He did no such thing.

Recall the case of Obama v. Stephanopoulos, whereby the President claimed that “the fact that you’ve looked up Merriam’s [sic] Dictionary, the definition of tax increase, indicates to me that you’re stretching a bit.”  That’s not “stretching” nearly as far as the Solicitor General’s claim that the mandate is a tax because Congress said it’s a tax – and the President, while disagreeing with that interpretation, signed the law based on that premise and never took an official act to register said disagreement.

At this rate, the next thing the Administration will do is claim the law isn’t a tax increase because you’re not paying the tax increase right this second.  Don’t think a Democrat President could make such a ridiculous claim?  Think again.

Unfortunately, Chief Justice Roberts didn’t condition his ruling upholding the mandate under the taxing power on President Obama first admitting publicly that the mandate is in fact a tax increase. (One only wonders how the President might have responded under those circumstances.)  But there really are only two options here:  The mandate is either unconstitutional, or it’s a multi-billion dollar tax increase.  Pick one.

Democrats Afraid of Obamacare’s Shadow

Politico reported late last week that Finance Committee Chairman Baucus will not schedule a confirmation hearing for Acting CMS Administrator Marilyn Tavenner.  The article provided some hint as to the reasoning behind the Chairman’s position: “If she [Tavenner] did have a hearing, it would likely be dominated by controversial health reform politics.”  In other words, Chairman Baucus and Democrats are shelving confirmation proceedings for a major Administration post — again — because they don’t want to talk about Obamacare.

As noted above, this isn’t the first time that Democrats have attempted to avoid debating the controversial health care law.  With respect to Tavenner’s predecessor, Donald Berwick, Chairman Baucus could also have called a confirmation hearing any time he liked, but chose not to do so.  Even as liberals alleged that “Republicans refuse[d] to even have [sic] a hearing” about Dr. Berwick, the fact remains that Republicans have no power to block the Senate Finance Committee from moving forward on Berwick’s nomination, Tavenner’s nomination, or any other nomination.

Much as the White House may want to blame Republican obstruction for the delays in confirming a CMS Administrator, the Administration should take a closer look in the mirror at its own party’s actions.  While the White House alleged that Dr. Berwick’s nomination was blocked because senators “put political interests above the best interests of the American people,” it was Democrats who did not want to call a hearing, and were afraid to discuss either Berwick or Obamacare at any point during the second half of 2010, their huge Senate majorities notwithstanding.  Moreover, according to key Democrat staffers, the Administration wanted to appoint a CMS Administrator in 2009, but decided not to, perhaps because it did not want to tell the American people who would actually implement Obamacare prior to its enactment.

Some may find the irony that even as the Administration attempts to sell the unpopular law to the American people, Democrats in Congress appear to have settled on a “Don’t Mention the War” strategy towards the 2700-page legislative behemoth.  Regardless, the net effect will be that unconfirmed bureaucrats have been given control over every American’s health insurance, and a budget larger than the Pentagon’s, for four years without so much as a cursory hearing.

Berwick’s Tenure Rationed With Our Eyes Open

In a holiday edition of “Take Out the Trash Day,” the Administration announced this afternoon that Medicare Administrator Donald Berwick was resigning effective December 2 (next Friday).  Deputy Administrator Marilyn Tavenner has been nominated to succeed Berwick, whose statements in support of the British single-payer system and “rationing with our eyes open” sparked widespread controversy.

It is of course ironic that given the Administration’s mantra of “We Can’t Wait,” the White House took three years to nominate a Medicare chief who might actually be confirmable.  Recall reports from earlier this year suggesting that even Senate Democrats did not want Berwick’s confirmation to go ahead, as Finance Committee Chairman Baucus refused to schedule a hearing on Berwick’s appointment.

On this day before Thanksgiving, all Americans should give thanks that the Obama Administration finally gave in to political and constitutional realities, and submitted the nomination of a new Medicare Administrator to the Senate.  However, many may still be concerned at the circumstances by which an unconfirmed bureaucrat was given control over every American’s health insurance, and a budget larger than the Pentagon’s, for nearly a year and a half without so much as a cursory confirmation hearing.

Health “Reform” in the Supreme Court

And no, it’s not the case you’re thinking about…

Today, on the first day of the Supreme Court’s October term, the nine justices will hear a consolidated set of cases from California regarding Medicaid state payment levels.  The cases center around whether Medicaid providers and beneficiaries have a private right of action (i.e., the right to sue) against state officials regarding reimbursement rates and beneficiary access.

Two key questions related to Obamacare surround this suit.  First, will states face yet another obstacle – namely, persistent lawsuits from provider and/or patient groups – as they try to implement the law’s massive Medicaid expansion?  At a time when states face budget deficits totaling a collective $175 billion, the health care law is imposing new unfunded mandates of at least $118 billion.  States have already protested the massive uncertainty that the Administration’s dithering on important regulations has created for them in trying to implement the massive and cumbersome law.  Will they now be faced with even more uncertainty in the face of a newly empowered trial bar that feels free to sue Medicaid agencies at will?

While the Administration has filed a brief supporting the states’ position, other liberals have sided with the trial bar in favoring the right to sue.  In August, a group of Congressional Democrats – including Leaders Pelosi and Reid, and Chairmen Baucus and Harkin – filed an amicus brief with the Court asking them to sustain a private right of action, arguing that giving beneficiaries the right to sue states “provides impoverished Medicaid patients and the medical providers who serve them a means of redress in the court system that they would often not have in the political battles over budget cuts.”

That then raises the second key question related to Obamacare:  Why do Democrats claim to support allowing lawsuits for Medicaid patients, when these same Democrats voted for a bill (now law) that denies Medicare patients – many of whom are also on Medicaid – the ability to sue to stop treatments being denied them by an unelected board?  Specifically, Section 3403 of Obamacare explicitly DENIES Medicare patients the right to sue over restricted or denied access to care, prohibiting lawsuits against the rulings of the law’s new board of 15 unelected, unaccountable bureaucrats.  What’s more, Medicaid providers and beneficiaries currently have a form of redress – they can (and have) utilized federal administrative processes through Washington to demand changes in state Medicaid programs.  Conversely, Obamacare prohibits BOTH judicial AND administrative review of the board of bureaucrats’ Medicare rulings – making the power of these unelected officials nearly absolute.

The contradictory messages from the Democrat leaders who signed the brief supporting a private right of action indicate an apparent desire to see trial lawyers sue everyone BUT the federal government.  Hopefully the Supreme Court will see through the legal and policy problems associated with such an approach, and provide the states a modicum of certainty in uncertain times by declining to endorse a private right of action for Medicaid patients.