Patterico's Pontifications

11/6/2013

Another Sad Cancellation Story — Happening to Fervent ObamaCare Supporters

Filed under: General — Patterico @ 8:29 pm

I have to say, I’m having a hard time feeling sorry for people like this. I’ll save my sympathy for the people who opposed this trainwreck and are getting screwed anyway. Anyway, when lefties get the short end of the stick, I guess it’s news. So here you go:

The couple — Lee, 60, and JoEllen, 59 — have been paying $550 a month for their health coverage — a plan that offers solid coverage, not one of the skimpy plans Obama has criticized. But recently, Kaiser informed them the plan would be canceled at the end of the year because it did not meet the requirements of the Affordable Care Act. The couple would need to find another one. The cost would be around double what they pay now, but the benefits would be worse.

“From all of the sob stories I’ve heard and read, ours is the most extreme,” Lee told me in an email last week.

I’ve been skeptical about media stories featuring those who claimed they would be worse off because their insurance policies were being canceled on account of the ACA. In many cases, it turns out, the consumers could have found cheaper coverage through the new health insurance marketplaces, or their plans weren’t very good to begin with. Some didn’t know they could qualify for subsidies that would lower their insurance premiums.

So I tried to find flaws in what Hammack told me. I couldn’t find any.

  • The couple’s existing Kaiser plan was a good one.
  • Their new options were indeed more expensive, and the benefits didn’t seem any better.
  • They do not qualify for premium subsidies because they make more than four times the federal poverty level, though Hammack says not by much.

Of course, there is the more fundamental question of who gets to decide which plan is “better” for you: the government, or you? But bypassing that niggling little question of personal autonomy and freedom, it turns out that many folks aren’t getting “better” plans . . . even under the central planners’ view. They are, simply, getting hosed.

The Obama supporters’ plan? Make less money.

So what is Hammack going to do? If his income were to fall below four times the federal poverty level, or about $62,000 for a family of two, he would qualify for subsidies that could lower his premium cost to as low as zero. If he makes even one dollar more, he gets nothing.

That’s what he’s leaning toward — lowering his salary or shifting more money toward a retirement account and applying for a subsidy.

We’ve discussed the idea of a sudden cliff before, and some have expressed skepticism about the notion that the cliff is that sudden. But this story provides further evidence that, at least for older folks, the cliff is absolutely precipitous. Apparently, there is a point above which you get zilch, and below which you get thousands of dollars. Gee, do you think that will create an incentive for people to avoid being productive and making a single dollar above that cutoff?

P.S. Charles Ornstein, the reporter, favorably links a Michael Hiltzik piece purporting to “debunk” one well-known example of a cancellation where someone got hosed. There is an excellent piece that I didn’t have time to link when it came out, which took Hiltzik apart on this exact issue. (Thanks, M. Scott Eiland!) And Hugh Hewitt slapped Hiltzik around some too, on the radio. (Entertaining transcript here.) It was all good stuff, and the links are worth following.

Debbie Wasserman Schultz Has MY-zeld Nobody!

Filed under: General — Patterico @ 8:09 pm

I’m catching up to a few things after an intense period at work, but I keep coming back to this priceless clip of Debbie Wasserman-Schultz saying that nobody has “MY-zeld” (misled) anyone on ObamaCare:

Andy Levy says here exactly what I was thinking: she’s reading from a TelePrompTer — isn’t she?!

Read the word “MISLED” and look at the word “isle” in the middle, and you can see how someone could make this mistake . . . if they’re not very bright, and if they’re reading the word.

I just wanted to have a post about this because I think MY-zeld is going to become a catch phrase, and I need a post to link when I use it in the future.

Extra! Extra! Barack Obama Continues to Lie

Filed under: General — Patterico @ 7:21 am

I know, I know: it’s not really news. We still have to keep reporting it.

Los Angeles Times:

The president also has added caveats to his once-unqualified promise that no one will be forced to change their insurance plans. It’s now clear that more than a million Americans who buy insurance on the individual market may be forced to find new policies because their old ones do not offer benefits required under the Affordable Care Act.

“What we said was, you could keep it if it hasn’t changed since the law was passed,” Obama told supporters Monday night.

I’m not sure what this “it’s now clear” business is. Maybe it was unclear to you, L.A. Times editors, but it has always been clear to us.

This is kind of obvious, but sometimes restating the truth is necessary even when it is obvious. This “what we said was” business is flatly false. That qualification Obama wants to pretend he gave us? Didn’t happen. Here, once again, is the proof:

To recap, as Ellison used to say:

Barack Obama then: “We will keep this promise to the American people. If you like your doctor, you will be able to keep your doctor. Period. If you like your health care plan, you will be able to keep your health care plan. Period.”

Barack Obama now: “What we said was, you could keep it if it hasn’t changed since the law was passed.”

Stop lying, Mr. President.

Stop lying.

Election Results: Chris Christie, Terry McAuliffe Win

Filed under: General — Patterico @ 7:10 am

Hey, at least Anthony Weiner is not the mayor of New York. That’s something, right?

Emily Bazelon and Dahlia Lithwick Completely Misstate Holding of Controversial ObamaCare Opinion

Filed under: General — Patterico @ 6:31 am

UPDATE: Ed Whelan posted about this three days before Olson did, and appears to have been the one who triggered the non-correction correction. Ed’s post opened:

Wow. Is it too much to ask that those condemning a decision actually read it enough to have a basic understanding of it?

Indeed. Apparently it is.

Apologies to Ed for failing to give him credit for being (as far as I can tell) the first analyst to bust Bazelon and Lithwick on their misstatements. Here is the original post:

The redoubtable Walter Olson of Overlawyered hits it out of the park with this excellent post at PowerLine. In the post, Walter demonstrates that Emily Bazelon and Dahlia Lithwick of Slate flatly misstated the holding of a controversial ObamaCare opinion by Janice Rogers Brown. Olson’s post opens with this paragraph:

What happens when the legal analysts at Slate get things flatly wrong, in the service of generating a desired ideological frisson for their liberal-minded readers? Does anyone act embarrassed or make humble noises about not letting it happen again? These questions arise following a November 1 column in which Emily Bazelon and Dahlia Lithwick baldly, flagrantly misstate the holding of a new opinion by Judge Janice Rogers Brown deeming the Obamacare contraceptive mandate in present form to violate the Religious Freedom Restoration Act (RFRA). (RFRA, enacted in 1993, requires government to take certain steps to avoid, when it can readily do so, substantially burdening religious observance.)

Brown’s opinion (.pdf) ruled that the contraceptive mandate in ObamaCare violated the free-exercise rights of the owners of a company. Because the owners have a religious opposition to contraception, Brown wrote, the mandate infringed on their right to exercise their religion by requiring them to do an act — paying for contraception — that violated their deeply held religious beliefs.

In addition, the plaintiffs argued that the company itself was entitled to argue that its rights were violated. If a corporation’s free speech rights under the First Amendment are protected, the argument went, the corporation should also be able to assert free-exercise rights under that very same First Amendment. Not a crazy argument, right?

But Brown’s opinion rejected that argument, allowing only the individuals in the company — and not the company itself, to assert free exercise rights. Brown said that the Free Exercise Clause can extend to religious organizations and entities, such as churches. But, Brown wrote, the company in question was not a religious organization. And so, while it is not impossible that the Supreme Court could one day grant free-exercise rights to a non-religious corporation, Brown wrote that the precedent for doing so was too thin:

While we decline the Freshway companies’ invitation to accept Townley’s ipse dixit that closely held corporations can vindicate the rights of their owners, we understand the impulse. The free exercise protection—a core bulwark of freedom—should not be expunged by a label. But for now, we have no basis for concluding a secular organization can exercise religion.

I gleaned the above by reading the opinion. Evidently, Bazelon and Lithwick did not read the opinion — or, if they did, they either didn’t understand it or consciously chose to lie to their readers about its holding. It’s worth quoting Bazelon and Lithwick at length to see just how brazen their misstatement is:

On Friday, morning, it was the turn of another extremely conservative woman chosen for the bench by Bush, Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit. Brown handed down a similarly dramatic decision holding that the provision in the Affordable Care Act that requires companies to provide health care coverage that includes contraception “trammels” the religious freedom of an Ohio-based food service company, Freshway Foods, through its two owners, who claimed that the mandate violated its Catholic faith. This is a company we are talking about, not its owners. But following headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United that corporations are people, too, Brown found that the mandate violates the company’s strongly held religious convictions. To make the company provide a health care plan—from an outside insurer—that offers contraceptive coverage is a “compel[led] affirmation of a repugnant belief,” Brown wrote. The argument that a for-profit secular company has a religious conscience—separate and apart from the religious beliefs of its owners—is a notion that vaults the concept of personhood from the silly (“corporations are people, my friend”) to the sublime (also they pray).

It’s also a notion that Brown rejected as a legal matter. You see that quote above from the opinion? Here again is the part I bolded: “we have no basis for concluding a secular organization can exercise religion.” That is the exact opposite of Bazelon and Lithwick’s claim: that Brown argued that secular companies “pray.” Here is more from the Brown opinion, showing that Brown was not saying that secular corporations pray:

Perhaps Appellants’ constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free-exercise right, will ultimately prevail. But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. See Conestoga Wood, 724 F.3d at 384. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.

As you can see, far from “following headlong in the wake of” Citizens United, Brown drew and explicit and quite clear distinction between corporations’ ability to exercise free speech rights and their ability to claim free-exercise rights.

Bazelon and Lithwick could have written that Brown had rejected free-exercise rights for the company, but conferred them upon the company’s owners. They could have argued that this was a distinction without a difference. They could have said that allowing a company’s owners to raise constitutional objections to a mandate directed at a company in effect confers free-exercise rights on the company. In my view, that would be a losing argument, but at least it would not be a dishonest one.

But that is not what they argued. Instead, they told readers “[t]his a company we are talking about, not its owners”; and said Brown had “follow[ed] headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United”; and indicated that Brown had ruled that a for-profit secular company is a person that prays — when Brown had said the exact opposite.

In short, they blatantly misstated the contents of the opinion to their readers. As Olson notes, it is as if they had their laugh lines written in advance, and they were going to be damned if they were going to let a little thing like the holding of the opinion cause them to rewrite their snark. And anyway: isn’t it easier to make fun of the ruling when you can conjure up the image of a corporation getting on its knees in church? If the judge rules the corporation isn’t a person for purposes of the Free Exercise Clause, there goes that cheap way to attack the opinion. Then you have to make a subtle argument equating owners’ rights with that of the corporation, and subtle arguments iz hard.

So: what did Slate do when they got caught? Slate vaguely admitted a misstatement (good) — but hid the magnitude of the error (bad), and pretended that the argument made in the column was “effectively” correct (awful). Here is the “correction” now appended to the end of Bazelon and Lithwick’s column:

Correction, Nov. 3, 2013: This article originally said the contraception mandate is losing 2–1 in the federal appeals courts. In fact it is tied 2–2. (Return.) It also misstated that the D.C. Circuit ruled that the contraception mandate in Obamacare “trammels” the religious freedom of the company Freshway Foods, and conferred personhood on the company. The court found that the contraception mandate violates the Religious Freedom Restoration Act because Freshway Foods is a closely held company, so the mandate violates the rights of its owners. The ruling effectively confers personhood on the company rather than directly doing so.

See? Brown’s opinion, we are told, “effectively” did that which it absolutely did not do. And the “correction” still does not tell readers that Brown rejected the notion of personhood for the company for purposes of the Free Exercise Clause. Readers will have to go to Olson at PowerLine, or (horrors!) the language of the opinion itself, for that.

It is hard to put into words how shoddy this piece was, and how dishonest the “correction” is. This is an utterly embarrassing travesty for Slate, Bazelon, and Lithwick, and they should be reluctant to show their faces in legal blawgland for some time to come. Kudos to Olson and PowerLine for giving them the whacking that they so richly deserved.


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