Showing posts with label Going. Show all posts
Showing posts with label Going. Show all posts

Monday, September 9, 2013

Obamacare’s Big Question: What’s It Going To Cost Me?

Ten-dollar bills Americans will be counting to determine whether health care costs change for them under the new law. | B.K. Bangash/AP

WASHINGTON — The cost of health coverage under Obamacare remains one the biggest mysteries of the nation’s health care overhaul.

But nagging cost questions will slowly be answered this summer as insurers and state officials set 2014 health plan rates for people who buy coverage outside of work or purchase it through small employers.

Those two coverage areas – the individual and small group markets – face the biggest rule and cost changes next year, when the main provisions of the Affordable Care Act finally kick in.

Early rate proposals around the country are a mix of steep hikes and modest increases. The numbers will change in coming months as state and federal regulators use their new authority under the health care law to review rate-hike requests of 10 percent or more and insurers vary their rate proposals based on competitors’ prices.

The new rates and rules for individual and small group coverage won’t directly affect roughly 84 percent of Americans with job-based health insurance – about 125 million people. But the changes will resonate throughout the health insurance universe and will go a long way toward shaping, and possibly changing, public opinion about Obamacare.

“This is a very, very big deal,” said Doug Holtz-Eakin, the president of the American Action Forum, a conservative research center. “The implications are enormous for the future of American health insurance, and its importance is not best measured by the fraction of people currently covered in the small group or individual markets.”

About 24.5 million people have small-group coverage through companies with 50 or fewer employees, according to federal estimates.

Just 15.4 million people purchase individual coverage, according to the nonpartisan Kaiser Family Foundation, a nonprofit health care research center. But that number will increase substantially next year, when premium tax credits become available to help people buy individual coverage through the new online insurance “exchanges” in October.

The individual, or "non-group," market is the most troubled sector. It’s known for high customer dissatisfaction and turnover, high coverage denial rates, lean benefits and premiums that are subject to frequent increases.

The health care law will engineer a complete makeover of individual coverage next year through a series of revisions that are designed to make newly issued policies more generous, accessible, affordable and transparent.

The new rules guarantee access to individual coverage regardless of current or past health problems, require each plan to cover at least 60 percent of costs and limit annual out-of-pocket costs such as co-payments and deductibles.

They also require beefed-up mandatory benefits, limit the amount that older plan members may be charged, outlaw annual benefit-spending limits and no longer allow insurers to vary rates based on a person’s gender, occupation or medical claims history.

Small group plans face the same changes, but they’re more likely to already meet some of the law’s new requirements, such as guaranteed access to coverage. So rate changes in small group plans won’t be as significant as those in the individual market, experts say.

The health law’s “individual mandate” requires all Americans to have health insurance beginning next year or face a fine. The law will bring insurers 25 million new customers over the next decade, according to federal estimates.

The law also requires that all individual and small-group health plans in 2014 cover 10 “essential health benefits,” including substance abuse services, pediatric dental and vision care, mental health treatment and other services often excluded from current policies.

Individual and small group policies that were in effect before the measure was signed into law in March 2010 – known as "grandfathered plans" – aren’t required to meet some of the new rules and consumer protections. Consumers in those plans who want the new protections will have to reinsure under new policies next year.

Premiums: Higher for some, lower for others

Experts say those improved benefits and the guaranteed availability of coverage will increase average premiums for healthy people in the individual market next year.

Those in poor health with the same coverage, however, very likely will see lower rates, on average, as their once-higher premium burden is redistributed among all enrollees. The law prohibits insurers from segregating higher- and lower-cost members into separate risk pools.

A provision that prohibits women from being charged more than men solely because of their sex will shift costs between men and women to eliminate gender variances in states that currently allow it.

New age-rating restrictions that limit older plan members from being charged more than three times as much as younger ones probably will increase individual and small-group premiums for young people and lower them for older people.

With or without the health care overhaul, most experts expect private health insurance premiums to increase next year because of the rising costs. Whether the new law exacerbates or moderates those increases depends on who’s answering the question, what states they’re talking about and which plan members would be affected.

“There are winners and losers in this,” said James O’Connor, a principal at Milliman, an actuarial consulting firm that deals with health care and insurance.

But in New Jersey, New York, Massachusetts, Vermont and, to a lesser extent, Maine, Washington and Oregon, those same individual-plan premiums might see little or no change and may even decline, O’Connor said. Coverage requirements and consumer protections in those states are already similar to what the new law requires.

Keep in mind that while the improvements in coverage will increase premiums for some, they also may lower out-of-pocket spending for deductibles, coinsurance and co-payments. Increased competition among insurers also will help keep premiums in check.

Rate shock

The prospect of higher premiums has fueled concerns about “rate shock,” in which large numbers of young people – who most likely face the largest premium increases – forgo individual coverage altogether and just pay the fine for violating the individual mandate. If that happens, rates would climb for everyone, experts say.

But tax credits available to individuals and families who earn 133 percent to 400 percent of the federal poverty level will help offset the higher premiums for individual coverage. In 2013, the tax credits would go to individuals who earn roughly $15,300 to $46,000 or to four-person families that earn roughly $31,300 to $94,200.

About two-thirds of people age 30 and under who have no coverage or are enrolled in individual coverage and who won’t qualify for Medicaid – the people most likely to face rate shock – would be eligible, according to estimates by Avalere Health, a health care advisory firm

The tax credits are available only for those who get coverage through the new state insurance exchanges. The amount of the tax credit – which is based on income – is revealed after submitting an online application. The money is sent directly to the applicant’s insurance company to be applied to the premiums.

Young adults who don’t qualify for the tax credit but can’t afford individual coverage will have access to “catastrophic plans,” with lower premiums.

Small group coverage

Individual circumstances will determine whether premiums rise or fall next year for people with small-group or small-employer coverage.

“Groups that are made up of younger, healthy males will tend to have higher rate increases than those groups who are unhealthy or are comprised mainly of older people,” O’Connor said.

And low-cost, small-group plans will see the greatest premium increases, “while those with the greatest decreases will be the high-cost groups,” according to recent congressional testimony by Cori Uccello, a senior health fellow at the American Academy of Actuaries.

The health care law requires that deductibles for small-group plans in 2014 not exceed $2,000 for individuals and $4,000 for families.

While people with individual policies and workers with small-group coverage will experience the biggest cost changes next year, the 125 million other Americans with job-based insurance won’t escape unscathed.

The law imposes taxes on the insurance, pharmaceutical and medical device industries to help pay for expanded Medicaid coverage and premium subsidies. Because they’re nondeductible, those taxes, or a portion of them, very likely will be passed on to all consumers with work-based coverage in the form of higher insurance premiums.

Other factors that will affect premiums next year include geographic cost differences, whether large swaths of employers decide to drop coverage, and the demographics and health status of people who do drop job-based insurance for individual coverage.

The wide range of possibilities underscores the difficulty insurers face in trying to synthesize the new rules, predict their effects and price their products competitively and accurately.

Earl Pomeroy, a former North Dakota Democratic congressman and state insurance commissioner, said insurance companies were facing “the most complicated rating challenge” that he’d ever seen.

“It involves the great unknown,” Pomeroy said. “New systems, new market structures and behavior responses from the population that will be impossible to predict."


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Thursday, June 27, 2013

Bloomberg on assault weapons ban: ‘We’re going to get the vote’

New York City Mayor Michael Bloomberg (I) pledged that supporters of an assault-weapons ban would get a vote in Congress.

“We've been fighting since 2007 to get a vote. We are going to have a vote for sure on assault weapons and we're going to have a vote on background checks,” said the prominent gun-control advocate in an interview aired Sunday on NBC’s "Meet the Press."

“If we were to get background checks only, it wouldn't be as good as if we got both, but look, we demanded a plan and then we demanded a vote. We've got the plan, we're going to get the vote,” he said.

Bloomberg’s comments come after Senate Majority Leader Harry Reid (D-Nev.) announced earlier this week that the Senate would vote on a gun control bill after returning from Easter recess. Reid, though, decided not to include a measure for a federal assault weapons ban, a key provision backed by the White House and Bloomberg.

Reid said Sen. Dianne Feinstein’s (D-Calif.) proposal could have hampered passage of other gun control measures. Efforts to heighten restrictions on gun ownership face an uphill struggle, with strong opposition from GOP lawmakers and the nation’s gun lobby.

Bloomberg will also personally fund a $12 million national campaign to target swing state senators to back gun control. The ads are slated to run in 13 states over the Easter recess. But the Bloomberg ads will press for background check legislation, which gun reform advocates believe has the best chance of becoming law, making no mention of assault weapons.

Bloomberg defended his efforts on gun control Sunday, saying that he had a "responsibility" as a public official to push for safer gun laws.

"I think I have a responsibility, and I think you and all of your viewers have responsibilities, to try to make this country safer for our families and for each other," he said. "And if I can do that by spending some money and taking the NRA from being the only voice to being one of the voices, so the public can really understand the issues, then I think my money would be well spent, and I think I have an obligation to do that."

Bloomberg's move though attracted a sharp rebuke from National Rifle Association (NRA) Executive Vice President Wayne LaPierre. 

LaPierre who also appeared on NBC said Bloomberg would realize he "can't buy America."

"He can't spend enough of his $27 billion to try to impose his will on the American public. They don't want him in their restaurants, they don't want him in their homes. They don't want him telling them what food to eat; they sure don't want him telling them what self-defense firearms to own," said LaPierre.

Bloomberg met on Thursday with Vice President Joe Biden to discuss gun control efforts, and at a joint press conference warned that voters would watch Congress closely and expect action on gun control after last December’s traffic mass shooting at an elementary school in Connecticut.

“I don't think there's ever been an issue where the public has spoken so clearly, where Congress hasn't eventually understood and done the right thing,” said Bloomberg on Sunday.

“If 90% of the public want something, and their representatives vote against that, common sense says, they are going to have a price to pay for that. The public is going to eventually wake up and say, ‘I want to put in office somebody that will do the things that I think are necessary for this country,’” he added.

Gun-control advocates believe that legislation to mandate checks on all firearm purchasers has the best chance of passing Congress this session, with an assault weapons ban facing a much tougher fight.

President Obama, though, has made calls for an assault weapons ban a key element of his proposals to stem gun violence. In his weekly address he again urged lawmakers to vote on a series of gun measures including bans on the sale of military-style assault weapons and high-capacity clips.

“These ideas shouldn’t be controversial — they’re common sense,” Obama said. “They’re supported by a majority of the American people. And I urge the Senate and the House to give each of them a vote.”  

This story was published at 7:35 a.m. and has been updated.

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Sunday, January 27, 2013

Gingrich: Obama 'going out of his way to bully House Republicans'

Former House Speaker Newt Gingrich on Tuesday accused President Obama of attempting to "bully" house Republicans with his press conference Monday demanding that Congress raise the debt ceiling.

“This president is deliberately seeking confrontation,” Gingrich told CBS News. “I think he’s going out of his way to bully the House Republicans.”

During the press conference, Obama said the threat of default was "irresponsible" and "absurd," demanding that the House GOP extend the debt ceiling independent of negotiations on a comprehensive debt deal.

“They will not collect a ransom in exchange for not crashing the American economy,” Obama said. “The full faith and credit of the United States of America is not a bargaining chip.” On Tuesday, Gingrich cautioned his former colleagues that they might not have the political ability to win a fight over the debt ceiling.

“I don’t think we should pick fights where we are in a position that we can’t, in fact, in the end, enforce our will, because we have no evidence that Barack Obama’s going to compromise,” Gingrich said. “Nothing he’s done in the last couple of months would imply that he’s going to compromise.”

Rather, Gingrich recommended using continuing resolutions and the threat of the automatic sequester, set to be implemented at the end of February.

"There are dozens of places you can dramatically change spending without having to get involved in a general crisis over the U.S. debt," Gingrich said.

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Friday, April 27, 2012

The Way Things Are Going, They’re Gonna Crucify Me.

Apologies to John Lennon. Concept by Al Armendariz, Administrator of EPA Region VI. Repair Man Jack posted the video with analysis here.

No apology is necessary, Mr. Armendariz. In a perverse way, your comments reveal the tactics of your agency, and more importantly, the philosophy which motivates Mr. Obama’s entire Administration.

It also speaks of the arrogance of a government that thinks its citizens are its subjects, and whose middle managers find amusement in crushing people’s lives and livelihoods.

One more thing about the Roman analogy — mmm, as I recall, that strategy didn’t work out too well for the Romans. Does Mr. Obama play the fiddle?

If it sounds like I take this issue personally, I plead guilty.

My employer is a small oil and gas company. All of our operations are in EPA Region VI which Mr. Armendiaz oversees. I’m the operations manager, so the threat of crucifixion falls squarely upon me.

Rush Limbaugh characterized the crucifixion comment as a vendetta against Big Oil.

Wrong-o. EPA is after smaller oil and gas companies, like Range Resources (800 employees) and my company (24 employees). Big Oil has unlimited resources and staff attorneys to fight back. EPA can much more effectively achieve their goals by singling out the little guy who they can crush like a bug.

Or crucify, as it were.

I am a citizen. I am a taxpayer.

You work for me.

Don’t threaten me with crucifixion.

This guy Armendariz needs to go. His boss need to go – Armendariz’s comments were recorded in 2010.

We’ll take care of the Big Guy in November.

Cross-posted.

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Thursday, April 26, 2012

“It’s pretty clear Governor Romney is going to be the nominee.”

Yesterday, Governor Romney swept all five primaries, including Delaware, which was Newt Gingrich’s last best hope for continuing his campaign – and in Delaware, he got stomped.  Today, Gingrich announced that he is ending his campaign for the Presidential nomination.

In his announcement, Newt had some pretty interesting things to say – things that we all should be paying close attention to.  From the CBS News report:

“I think you have to at some point be honest with what’s happening in the real world, as opposed to what you’d like to have happened,” Gingrich said. “Governor Romney had a very good day yesterday. He got 67 [percent] in one state, and he got 63 in other, 62 in another. Now you have to give him some credit. I mean this guy’s worked six years, put together a big machine, and has put together a serious campaign.

“I think obviously that I would be a better candidate, but the objective fact is the voters didn’t think that,” Gingrich said. “And I also think it’s very, very important that we be unified.”

(bold is mine)  As has been written here on these pages several times, the voters are the ones who chose Governor Romney.  He is going to be our nominee.  And as Newt says, it IS very important (now that the primaries have indicated our choice) that we are – or become – unified.

This has been a pretty nasty GOP primary season.  There are a lot of us (myself included) who don’t particularly like Mitt Romney as a candidate.  But our candidate he is.  We can lament what might have been and we can fret a bit about what kind of president Mitt might be.  But in the end the mission is now to focus all of our efforts on defeating Barack Obama by supporting Mitt Romney as our nominee.  And it’s not just the “us” here at Redstate and in the trenches of the electorate…it’s also the other former candidates:  Perry, Cain, Bachmann, Santorum, Huntsman -  and Gingrich.  The GOP must now line up behind Romney.

But that doesn’t mean we don’t push Romney to adhere as closely as possible to conservative principles.  He doesn’t just get a pass.  Daniel made a good point earlier in his diary “Romney Must Coalesce Around Conservatives…”  He’s making the case to us, not the other way around.  Let’s keep the pressure on…but remember who the real target is, now that the primaries are pretty much over.

From here on out, I support Mitt Romney for President.


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Sunday, April 1, 2012

Day Two: Obamacare is Going Down

From the diaries…


Wow.  To continue with Handicapping Health Care.


Bottom line, I stand by what I said in Handicapping Health Care; however, I increase the odds.  I would handicap it at 65% unconstitutional.  The vote is likely 5-4, but plausibly 6-3, and remotely 7-2.  If the vote is Constitutional, it will be 5-4 (95% chance) and 6-3 (5% chance).


The Solicitor General began horribly, sounding as if he had a cold for several minutes.  While he recovered his style, he lost his arguments, becoming flustered at questions from the CJ (for a couple minutes).  Justice Sotomayor  rescued him with a wonderful soliloquy, but no question other than “Don’t you agree?”


Mr. Toobin at CNN overstates the disaster for the government, as does Drudge.  The first 45 minutes was indeed a government disaster on the Commerce Clause, along with a one or two minute throw-away on the Taxing Power.  Essentially, the government has conceded that the ACA cannot be justified under the Taxing Power.  But the remaining 75 minutes were, at time, dicey for the states and other opponents.


Justices Ginsberg, Sotomayor, and Kagan were tough with Mr. Clement, who represented the States.  He performed brilliantly and almost flawlessly.  He could have better answered Justice Ginsberg’s questions regarding Social Security, but otherwise, he was nearly perfect.


That said, I see Justice Kennedy teetering a bit.  One must listen to the entire argument and read the entire transcript.  Justice Kennedy is almost sold, but not quite.  I believe Justices Scalia and Alito, along with Thomas, are sold: this is unconstitutional.  The CJ is close behind, but not quite as open.  I would be very surprised if any one of them voted to uphold.


This is mostly going to be about Justices Kennedy and Breyer, but we always knew that. Each asked tough questions.  Justice Kennedy appears to want to find it unconstitutional, but wants to think more, which is good.  Justice Breyer appears to be the opposite, but struggling.  He suggested Congress has the power to compel the purchase of cell phones and similar items.  I have doubts he was serious.  I suspect he was attempting to provoke a response from the Solicitor General.  Throughout both days, Justice Breyer questioned both sides very well and appeared reachable.


Justice Sotomayor, for the most part, appears (as one would expect) to support constitutionality; however, she also appears open.  I doubt she will vote for unconstitutional, but it is not unthinkable.  Justice Kagan is, I believe, probably lost, which is no surprise.  I feel better today about Justice Ginsberg, but I wish someone would have answered her questions on Social Security.  Let me do so.


Justice Ginsberg, Social Security and Medicare are very different from the ACA.  SS and Medicare are constitutional income taxes on people who choose to earn wages or who self-employ.  They are also constitutional excises on employers.  As an entirely separate matter, both involve Congress’ spending power, which it annually uses to pay money for the general welfare for old age, survivor’s, disability, and health care benefits.  Congress could constitutionally repeal all the benefits tomorrow and keep the taxes, both past and future.  The two are entirely separate.  Thus neither Social Security nor Medicare is an insurance program.  In contrast, the ACA compels people to purchase real health insurance from a real private party.  It then directly taxes people who have no insurance, but does so in a manner which is not apportioned.  Both aspects are unconstitutional.  The first compels commerce, which violates the commerce clause.  The second is an impermissible unapportioned direct tax and thus violated the Taxing Power.  For Social Security and Medicare, the notion that the two halves (the tax and the benefits) are connected is a myth.  They are not.  Indeed, each is constitutional separately under different powers.  For the ACA, the two are connected and each is unconstitutional – both together and separately.  In sum, the ACA is about the health insurance market.  Neither social security nor medicare have anything to do with insurance: that they do is a myth . . . and a fraud – a sometimes difficult-to-understand myth, but a myth nevertheless.


I doubt anyone will reach Justice Ginsberg, either in argument, in brief, or in discussion on the Court.  I doubt anyone will convince Justice Kagan, either.  I thus predict the vote will be 5-4 or 6-3 unconstitutional, with a remote chance of 7-2 unconstitutional.  I predict it will be on commerce clause grounds, but with at least a concurring opinion on the Taxing Power.


I take some pride in believing my co-author and I destroyed the taxing power argument so thoroughly (in four articles and four briefs), the government relegated it to a minute or so.  They gave up because they could not defend it.  I wish the opponents had seized upon that opening and hammered the Taxing  Power argument, but they did not.  Had they done so, I would be predicting better odds. I did not think they would.  But, Mr. Clement performed so well, I can hardly be disappointed.


I am confident, this act is going down.


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Friday, March 30, 2012

Here’s What The Court’s Going To Do On ObamaCare

It would be nice if the future of federalism did not rest on what Anthony Kennedy had for breakfast –- if Senate Republican Leader Mitch McConnell did not spend all of December, 2009, giving Harry Reid back-to-back votes on issues which allowed Reid to buy off swing senators.


But we are where we are. So…


THE OBAMA ADMINISTRATION HAS ONE ARGUMENT STANDING ON BEHALF OF THE CONSTITUTIONALITY OF OBAMACARE: 116 BILLION.


That is the amount of cost-shifting Obama now claims occurs as a result of treating uninsured individuals.


Four problems:


First, 116 billion is nothing but a politicized magnification of the amount (43 billion) which the insurance companies claimed in cost-shifting from the uninsured to policy-holders during their ObamaCare lobbying campaign. (The 43 billion figure is where the $1,000-per-policy cost-shifting figure comes from.) But both the 116 billion and the 43 billion figures are fraudulent numbers which interested parties simply pulled out of the air.


Second, the administration understands the inherent bias in insurance company numbers when it suits its purposes. When Price-Waterhouse, in the eve of the passage of ObamaCare, estimated that it would increase the price of family policies to almost $25,000 a year by 2019, the Obama administration mercilessly attacked the number. 116 billion -– or 43 billion -– or $1,000 per policy — is no different. In their hearts, the administration understands it is lying to the court.


Third, whatever cost-shifting problems there are, over 68% of them are due, not the “young invincibles,” who are nothing but, once again, hapless “cash cows” who are being bled to fund a system which transfers their assets to those who, in some cases because of their own choices, are less healthy than they are. Rather, current cost-shifting problems, to the extent they exist, are as a result of the poor. But here’s the problem: Under ObamaCare, the poor (anyone with an income under 133% of the poverty level) would be put on Medicaid — AND TURNED FROM DE FACTO “FREE RIDERS” INTO STATUTORILY MANDATED “FREE RIDERS.”


Which leads to: Fourth, everyone understands that the reason for the mandate was not to address the “free rider” problem (which could have much more easily been done by modifying the 1986 treatment mandate in minor ways), but rather to bribe the insurance companies into not running Harry & Louise ads.


NOW FOR A LITTLE LEGAL REALISM


The justices are only human.


And conservatives have fallen down in failing to make a bigger issue over liberal attempts to threaten and intimidate the court -– first, in the New York Times, then in the Washington Post [“Will Conservatives save Obamacare?” by Robert Barnes, the Washington Post, March 18, 2012, page B1] -– and repeatedly by Bob Beckel and others on Fox.


All of the threats are thinly veiled (“Roberts is protective of the court’s reputation, however, and sensitive to the perception that its decisions are politicized.”), but they are nothing more or less than disguised threats to attack the court if it doesn’t do as liberals want.


Interestingly, speaking of politicized justice, both the New York Times and the Washington Post, in their court “vote-counting,” start with the proposition that the four liberals on the court will “jump” when told to by the Obama administration. This is hardly a ringing endorsement of the independence or the judicial integrity of Ginsburg, Breyer, Sotomayor, and Kagan.


True, Kennedy has shown, in Massachusetts v. EPA, that he is not oblivious to a firestorm of public opinion swirling around him. But, with Gallup showing that between 72% and 76% of the public believes ObamaCare is unconstitutional, and with other polls showing that 67% of Americans believe that either ObamaCare or the mandate is unconstitutional, liberals are making a threat which they can’t enforce.


And, lest anyone believe that liberals believe their vote-counting bravado, Friday, two Columbia Law professors [Abbe Gluck and Michael Graetz] published an op-ed in the New York Times arguing that, should the mandate be overturned by the court, the statute should nevertheless be severed. (More on this later, but what does that tell you about their assessment of the likelihood of success?)


They understand, as do most court-watchers, that there are legal realities which are never vocalized, but are true nonetheless:


WICKARD V. FILBURN DOESN’T REALLY GIVE YOU ANY CLUE ABOUT WHAT THE COURT WILL DO: This is the 1942 case where a farmer was penalized for growing wheat for his own consumption because, were everyone to do the same, it would impact commerce.


This is taught in law schools as a “can-you-believe-that?” case. It was the high water mark of politicized New Deal jurisprudence, and is now generally viewed by conservatives as the epitome of what was wrong with the Roosevelt court. And it would have to be extended even further to apply to someone who didn’t even grow wheat -– and, in fact, did nothing.


GONZALES V. RAICH DOESN’T REALLY GIVE YOU ANY CLUE ABOUT WHAT THE COURT WILL DO: This was the case about whether the federal government could preempt state laws on medical marijuana.


If you look at the way the court deals with “law-and-order” cases, it differs from its approach to other appeals. There was no way the court was going to, effectively, legalize all drugs in order to overturn Wickard. And the fact that it considered doing that tells you something.


THE FACT THAT THE COURT, IN THREE POLITICALLY DIFFICULT CASES, FAILED TO FIND A COMMERCE CLAUSE JUSTIFICATION FOR GUN-FREE SCHOOL ZONES, PARTS OF THE VIOLENCE AGAINST WOMEN ACT, AND PARTS OF THE BRADY LAW DOES TELL YOU SOMETHING ABOUT THE COURT’S -– AND KENNEDY’S -– PREDISPOSITION ON ARTICLE I, SECTION 8, ISSUES.


THREE OBSERVATIONS ON SEVERABILITY


THE FACT THAT THE COURT SET ASIDE AN HOUR TO ARGUE SEVERABILITY, WHILE NOT DISPOSITIVE, IS MORE SIGNIFICANT THAN LIBERALS WOULD LIKE TO BELIEVE.


NOTWITHSTANDING EVERYTHING, I WOULD BET THE COURT WOULD REMAND THE CASE FOR AT LEAST SOME OF THE SEVERABILITY DELIBERATIONS.


WANT TO KNOW WHY THE SEVERABILITY CLAUSE IN EARLIER DRAFTS “MYSTERIOUSLY” DISAPPEARED? I have gone round-and-around with both House and Senate Legislative Counsel over this issue. And one or the other will regularly remove severability language from a draft because, while not irrelevant, it is not dispositive. It is a way that the Leg Counsel’s office asserts its authority against congressmen who “dare” to draft their own legislation.


Of course, as the mandate became more controversial at the end of the process, senators did begin to notice that the severability clause had disappeared.


Had Jim DeMint not objected to waiving the nine-day process necessary to send a bill to conference, the severability clause could have been easily reinserted in conference. But he did; and it wasn’t.


Finally, there was the opportunity to reopen the bill to further amendments, including an amendment on the severability clause, to assuage Democratic moderates like Ben Nelson, after the manager’s amendment had been presented. But, again, this would have required chopping apart the “tree” constructed to block DeMint, and that would have kept the Senate in session until well past Christmas. So that wasn’t done either.


But the point for the court to consider is that senators knew they had an opportunity to reinsert the severability clause, but with considerable pain, and chose not to.


by Michael E. Hammond, former General Counsel Senate Steering Committee 1978-89 and a Dunbarton, New Hampshire resident.


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