United Liberty

Scot Turner is a member of the Georgia House of Representatives, representing the 21st District. He was first elected in February 2013 in a special election, taking 60% of the vote over an establishment-backed candidate. Rep. Turner is part of a group of legislators who introduced the Georgia Health Care Freedom and ACA Noncompliance Act, a measure that cleared the legislature in the final days of its recent session. In this guest post, Rep. Turner tells the story behind the legislation, the difficulties they faced, and how Georgia is fighting Obamacare at the state level.

In the summer of 2013, I was part of a team of state representatives that worked together to tackle the problem that the Affordable Care Act (ACA) was presenting to Georgia. The federal government had just coopted a prominent Georgia institution, the University of Georgia, to help implement the ACA Navigator program without any debate in the Georgia General Assembly.

As a result, we all felt a certain urgency that something had to be done to draw the line in the sand and stand against the largest federal overreach in modern history.

There was some debate within our group as to whether we should approach it from a stance of full on nullification; the theory that a state has the ability to void federal law. Knowing that even of it did pass the Georgia legislature the likelihood that it would withstand judicial scrutiny was virtual non-existent, we pressed on.

“[The President] shall take care that the laws be faithfully executed…” — Article II, Section 3 (The Faithful Execution Clause)

Yesterday’s announcement of additional Obamacare employer mandate delays offers us yet another occasion to turn to actual the law passed by Congress.  When the four statutory Obamacare provisions below are viewed head-to-head against the new Obama Administration/IRS regulatory guidance, it’s clear that one of these things is not like the other.

EXHIBIT I: EFFECTIVE DATE

Statutory Authority - PPACA Section 1513(d):

(d) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2013.

Obama Administration/IRS - Preamble to the February 10, 2014 Final Regulations (Page 106):

Section 1513(d) of the Affordable Care Act provides that section 4980H applies to months after December 31, 2013; however, Notice 2013-45, issued on July 9, 2013, provides as transition relief that no assessable payments under section 4980H will apply for 2014…Notice 2013-45 provides that the employer shared responsibility provisions under section 4980H (and the information reporting provisions) will become effective for 2015.

Sen. Rand Paul (R-KY) decided to use the story of a Kentucky family yesterday to illustrate how the Affordable Care Act, or ObamaCare, has been hurting common Americans.

He took the story of the Mangiones to the floor of the Senate to explain why President Obama’s promise regarding people’s freedom of choice was misleading at best.

When the President announced that if you liked your insurance plan you would be able to keep it, he ensured the public that our freedom of maintaining a plan granting us the type of coverage we find fitting to our lifestyle would be respected. Now that a small number of Americans are buying insurance through the glitchy heath care exchange website, we are learning that the promise the President made hasn’t been kept.

Because individuals are required by law to purchase insurance plans that cover more than what they are willing to pay for, people’s plans are being canceled for not qualifying under the new health care laws. The same plans President Obama once said individuals could keep, if they liked it.

According to Sen. Paul, the Mangiones “had an individual policy they were happy with. They paid $300 a month.” Once they enrolled for ObamaCare, they learned that “they are now going to be asked to pay $900 a month for things they don’t want and they didn’t choose to have.”

Sen. Paul went on to explain how his own experience with signing up for Obamacare was a failure and how important it is for us to tackle ObamaCare’s freedom of choice problem by keeping the law from hurting more families.

Now that the anti-Obamacare defund “strategy” (such as it was) has been tried and failed, many on the right are suggesting we get out of the way and let it be implemented in full, on time, as written, so that it can be allowed to fail on its own. The theory is that when it doesn’t work, runs out of money, and breaks the insurance system, the public will demand its repeal just in time for a Republican president to be elected in 2016 and do just that. This, like “repeal and replace” and defund before it, is an unwise and short-sighted strategy.

What precedent is there for a government program, especially an entitlement, failing and just ending? Social Security is out of money, but no one will touch it. Medicare is out of money, Obamacare cut doctor payments rates under it, but no one will dare to truly reform it. Welfare was reformed, not ended or repealed, in the 1990s. Food stamps have exploded. Medicaid doesn’t work either, but was expanded under Obamacare. But we somehow think that if Obamacare runs out of money or doesn’t work as well as it was intended, it will just go away, unlike every other program ever?

President Obama intervened earlier this month to ensure that his administration’s Office of Personnel Management (OPM) would, through its rulemaking process, preserve Congress’s and its staff’s 72% average employer contribution on the impending ObamaCare exchanges.  The legality of the OPM proposed regulations that shift the Federal Employee Health Benefit Plan (FEHBP) contributions to the exchanges has already been the subject of significant controversy, particularly because it appears to contradict the intent of Sen. Chuck Grassley’s (R-IA) amendment to PPACA (Section 1312) to require that Congress/staff live by the same rules as the rest of us.

But there’s another level to OPM’s rulemaking that directly violates PPACA: Congress/staff’s payments for ObamaCare coverage will be illegally offered on a tax-free basis. PPACA has specific provisions designed to ensure that employees are taxed on ObamaCare exchange coverage.  The OPM rulemaking openly disregards those requirements.

Employer Notice of Exchange Highlights Loss of Employer Contribution and Tax-Free Payment

In a supreme example of the saying “Do as I say, not as I do,” the National Treasury Employees Union - the one that represents employees at the IRS - is encouraging its members to contact their congresspeople to protest the possibility that they could be forced to enroll in the Affordable Care Act (ACA) programs. Yes, they are worried about losing their wonderful Federal Employees Health Benefits Program (FEHBP), and have to enroll in health insurance via the exchanges that are a part of ACA. The example letter offered to the employees by their union leaders states in part:

I am a federal employee and one of your constituents. I am very concerned about legislation that has been introduced by Congressman Dave Camp to push federal employees out of the Federal Employees Health Benefits Program (FEHBP) and into the insurance exchanges established under the Affordable Care Act (ACA).

Despite the Obama Administration acting to delay parts of ObamaCare, the White House issued a veto threat yesterday on two pieces of legislation proposed in the House that would delay the individual and employer mandates.

“The Administration strongly opposes House passage of H.R. 2667 and H.R. 2668 because the bills, taken together, would cost millions of hard-working middle class families the security of affordable health coverage and care they deserve,” the White House said in a statement. “Rather than attempting once again to repeal the Affordable Care Act, which the House has tried nearly 40 times, it’s time for the Congress to stop fighting old political battles and join the President in an agenda focused on providing greater economic opportunity and security for middle class families and all those working to get into the middle class.”

“H.R. 2667 is unnecessary, and H.R. 2668 would raise health insurance premiums and increase the number of uninsured Americans,” added the White House. “Enacting this legislation would undermine key elements of the health law, facilitating further efforts to repeal a law that is already helping millions of Americans stay on their parents’ plans until age 26, millions more who are getting free preventive care that catches illness early on, and thousands of children with pre-existing conditions who are now covered.”

“[The President] shall take care that the laws be faithfully executed…” — Article II, Section 3 (The Faithful Execution Clause)

Last week, the Obama administration elevated blogging to new heights.  The Treasury Department used its Treasury Notes blog to announce a one-year delay of ObamaCare’s employer mandate.  This was followed by a post on The White House Blog by Valerie Jarrett, President Obama’s closest advisor, titled “We’re Listening to Businesses about the Health Care Law.”

The administration’s announcement demonstrated that it’s hip to the modern favored form of communication.  But this announcement came on the eve of the July 4th weekend, a time when we reflect on the timeless principles of our founding.   The flashiness of the blog medium and its informal, in-touch style of conveying the ObamaCare delay has not blinded Americans to what underneath amounts to an old-fashioned executive power grab.

ObamaCare’s Employer Mandate Effective in 2014

The problem is that ObamaCare (PPACA), which was passed by Congress and signed into law by President Obama, has a clear effective date for the employer mandate. PPACA section 1513, dubbed “Shared Responsibility for Employers” (the employer mandate), states that the excise tax penalties on employers under IRC Section 4980H “shall apply to months beginning after December 31, 2013.”  End of story.

House Members Weigh-In

It shouldn’t be a surprise by now: under ObamaCare, health-insurance premiums will increase, companies will struggle to stay afloat and doctors will earn less money.

That’s right, physicians will earn less if anybody wants to see ObamaCare thrive.

Washington is taking a step into ensuring that the rates physicians are collecting while working for hospital-owned clinics are lower than the rates they currently collect. According to Medicare Payment Advisory Commission, the current arrangement that ensures hospitals can bill Medicare at higher rates for services provided by their physicians should be invalidated, given that physicians can offer the same services in different settings. The system that served physicians looking for a way to make up for their declining incomes by establishing long-term contracts with hospitals or hospital-owned clinics could soon collapse. Physicians that once saw an advantage in seeing patients at hospitals in order to counterbalance the high cost of running their own medical practice will no longer see any convenience in maintaining the agreement with hospital-owned clinics.

To offset the expensive mandates, insurance providers must limit what healthcare providers are paid by also controlling what they can and cannot do. While the proposal introduced by the MedPAC is still being considered, it could serve as a strong indicator for future policy making.

While doctors might be losing incentives to work with hospitals when ObamaCare kicks in, employers are already losing incentives to keep employees under full-time contracts.

Over at R Street, Andrew Moylan makes a fascinating comment regarding President Obama’s recent speech on climate change and his plan to reduce carbon emissions. To wit: doesn’t matter much what your personal opinion is on carbon emissions and their relationship (or lack of relationship) to the already-defined-as-fact (accurately or not) science of climate change, the issue will be addressed by the federal government:

Moylan concluded by saying, “Regardless of one’s views on climate change, the simple reality is that federal policy is going to address the matter. That can happen through ill-advised regulations, like those proposed by the President today, or it can happen through a vibrant market with clear price signals attached to all fuels. Conservatives should seize the opportunity to once again emphasize the superiority of free markets over central planning.”

On climate change and the President’s plan specifically, it’s hard to accept something that will cost the country hundreds of thousands of lost jobs and $1.47 trillion of lost national income by 2030, according to a report by the Heritage Foundation. And, to Moylan’s point, it’s a situation conservatives, libertarians, and those who lean center-right on economic issues should begin to get in front of by doing the work of presenting their own plans to address something people are convinced needs addressing.