Health Care Policy Chaos

We were assured by Nancy Pelosi that we would have to pass health care reform in order to find out what was in it. We did, and most of the revelations about the details of the bill have been disquieting, to say the least. But at the very least, we're no longer information-starved, right?

Alas, wrong:

Alabamians hoping to find health insurance through a new federally developed insurance marketplace won’t get any details before October, when the insurance options are scheduled to go online.

The U.S. Department of Health and Human Services reports it is working on completing the list of health insurance plans that will be made public Oct. 1, when people can begin signing up for coverage that will start Jan. 1. That gives the uninsured a three-month window to comply with the Affordable Care Act’s mandate for individuals to have health insurance by Jan. 1 or face penalties at tax time in April.

“It’s frustrating that we are not going to be able to get a preview,” said Jim Carnes, spokesman for Alabama Arise, a Montgomery-based organization that addresses issues affecting Alabama’s poor. Because of that, Carnes predicts a slow start to people signing up.

I am betting that Alabamians are not alone in wondering what is in store for them. Meanwhile, yet another news item telling us that the health insurance exchanges are not ready for prime time. And another unwelcome wrinkle in the law reminds us just how poorly constructed it is:

A "family glitch" in the 2010 health care law threatens to cost some families thousands of dollars in health insurance costs and leave up to 500,000 children without coverage, insurance and health care analysts say.

That's unless Congress fixes the problem, which seems unlikely given the House's latest move Friday to strip funding from the Affordable Care Act.

Congress defined "affordable" as 9.5% or less of an employee's household income, mostly to make sure people did not leave their workplace plans for subsidized coverage through the exchanges. But the "error" was that it only applies to the employee — and not his or her family. So, if an employer offers a woman affordable insurance, but doesn't provide it for her family, they cannot get subsidized help through the state health exchanges.

That can make a huge difference; the Kaiser Family Foundation said an average plan for an individual is about $5,600, but it goes up to $15,700 for families. Most employers help out with those costs, but not all.

"We saw this two-and-a-half years ago and thought, 'Has anyone else noticed this?'" said Kosali Simon, a professor of public affairs at Indiana University who specializes in health economics. "Everyone said, 'No, no. You must be wrong.' But we weren't, and that's going to leave a lot of people out."

The issue has recently received attention, especially after former president Bill Clinton highlighted it in a recent speech.

"The family glitch is definitely a drafting error that Congress made that needs to be fixed," said Joan Alker, executive director of the Georgetown University Center for Children and Families. "But that seems unlikely."

New rules state that those families will not be penalized for not purchasing coverage, but the point of the law was to make coverage affordable for families.

Jonathan Adler offers apt commentary: "It’s almost as if no one carefully read the bill that was passed. After all, this is hardly the only instance in which the text of the statute does something different than what the supporters had hoped."

A Much Needed History Lesson on DOMA

Many of the Democrats celebrating the Supreme Court's decision on DOMA would have you believe that they opposed the law from the outset. Zenon Evans performs a mitzvah by reminding all and sundry of what those Democrats desperately want all and sundry to forget:

. . . In response to the ruling, Bill Clinton tweeted that he is “grateful to all who fought tirelessly for this day.” He also released an official statement condemning the discriminatory nature of DOMA. What Clinton failed to mention was that he signed the act into law.

He wasn't alone in his silence. Other leading Democrats who supported it include Vice President Joe Biden, who voted for DOMA as a senator. Sen. Harry Reid (Nev.), who said, “The idea that allowing two loving, committed people to marry would have a negative impact on anyone else, or on our nation as a whole, has always struck me as absurd,” also forgot to note that he voted for DOMA. Sen. Chuck Schumer (N.Y.) released a statement praising the forward thinking of the Supreme Court. “The march towards equality... moved forward again today... The Supreme Court did the right thing here and helps us understand that the march to equality in America is unstoppable.” He made no mention of the fact that he, too, voted for the act and against "the march to equality." Sen. Bob Menendez (N.J.) patted himself on the back: “As a member of Congress who signed the amicus brief urging this decision [to repeal DOMA], I am thrilled that the Supreme Court took a strong stand for marriage equality." Menendez saw no need to clarify that this was only after he voted for DOMA in the first place. Sen. Tom Harkin (Iowa) voiced his support yesterday saying, "I am glad that the court recognized that all American families deserve the same legal protections," but made no mention of why his point of view flipped.

As in so many such cases, it is as though some people believe that their past positions cannot be accurately Googled by others.

The Supreme Court and Same-Sex Marriage

I support the policy outcomes in both of the same-sex marriage cases before the Supreme Court. I believe that the Defense of Marriage Act was bad law that treated people differently for no good reason whatsoever, and I am glad to have seen it overturned in the Court's decision in Windsor. As law professor Randy Barnett, who wrote an amicus brief in the Windsor case, points out,

. . . DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.  By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.  But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection:  (c) DOMA’s sweeping and indiscriminate application to over a thousand federal statutes could not pass any level of equal protection scrutiny, even the most deferential, because Congress failed to identify a federal interest why each of these disparate federal laws should not track state laws defining marriage, as had previously been the case.

I agree with this reasoning, and although--as Professor Barnett points out--Justice Kennedy's opinion adopted this reasoning "with a twist," the fact remains that "federalism wins out in theory as well as in practice" when it comes to the same-sex marriage cases, which is good both for federalism, and for the cause of equality in general.

A very good analysis of the DOMA case is offered by Timothy Sandefur, who--while agreeing with the policy outcome of the case--does state his belief that "the Court went out of its way to escape the long-standing limits on its jurisdiction in order to issue this precedent." And I also agree with the way that Ilya Shapiro has put things:

Today, the Court upheld the equal liberty and dignity of all individuals, regardless of sexual orientation with its ruling in United States v. Windsor. This represents a major victory for gay rights, of course, but more broadly vindicates a robust view of individual liberty as protected by the Constitution. It should be axiomatic that the federal government has to treat all people equally, that it has to accept the several states’ sovereign laws on marriage (and many other subjects), and today there were five votes at the Supreme Court for that proposition.

It is now clear that there was simply no valid reason to uphold DOMA Section 3, no reason to deny the equal protection of more than 1,000 federal laws. As Justice Kennedy wrote for the unified majority, “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

This is exactly the result we were hoping for.

As for the Perry case, which leaves California's Proposition 8 invalidated due to a standing issue, I am glad that the decision functionally means that same-sex couples are able to get married in California, but of course, the fight in California is not over. I imagine that opponents of same-sex marriage will try to find another way to invalidate same-sex marriage in California, and I think that the only decisive way to beat back such an effort is for proponents of same-sex marriage to win a ballot fight on the issue at the polls. In fact, in general, it is preferable for same-sex marriage advocates that this issue is fought and won at the polls from now on, and kept out of the courts as much as possible. Only by winning at the polls will same-sex marriage advocates be able to show that their cause--which I support--is supported by the American people in general; any victory in the courts, no matter how decisive, will continue to cause opponents of same-sex marriage to claim that the right is being validated because of the actions of unelected judges.

Oh, and two quotes that I saw on Facebook are worth repeating here. Here is the first: 

Clinton signed DOMA into law. The Koch Brothers favored same-sex marriage before it became fashionable. But it's not like you'll update your priors based on that.

The second one makes the same point, and is from law professor Jonathan Adler: 

Nice to see so many friends of mine on the Left cheering a Supreme Court decision striking down a federal law enacted by a broad, bipartisan majority and signed into law by President Clinton. (Oh, and did I mention that this decision was supported enthusiastically by the Koch Brothers and urged by Koch-funded entities?)

A War in Syria?

There have been a number of developments regarding the civil war in Syria. For one thing, the Obama administration has come to the conclusion that the Syrian regime used chemical weapons against Syrian rebels, and now believes that it must arm the rebels against the regime.  It ought to go without saying that the use of chemical weapons is A Bad Thing, but everyone ought to understand that the arming of Syrian rebels may not represent the end of American involvement in Syria. Rather, it may only represent the beginnings of that involvement, and we may not like what comes next. For the moment, as the New York Times story indicates, the Obama administration has ruled out the implementation of a no-fly zone in Syria, which itself would constitute a military action; a no-fly zone is maintained through denying the enemy the ability to fly aircraft in the zone, of course, but it is also maintained by taking out enemy anti-aircraft batteries and missiles, and enemy radar that might undermine the maintenance of a no-fly zone by aircraft flown to enforce the no-fly rule.

The problem with arming the rebels, however, is that we may be arming elements we don't particularly like. I referenced this danger in the past. Forgive the fact that I am quoting myself immediately below, but I think it might be called for in this case:

There are calls for the administration to send arms to the Syrian opposition, but aiding the Free Syrian Army comes with a significant set of risks. There are allegations that armed opposition groups in Syria have engaged in significant human rights abuses, and offering aid to those groups might inadvertently benefit Islamists who are hostile to the United States and to American interests. Indeed, at least one UN official believes that anti-regime forces have used chemical weapons. The United States should not be eager to jump into bed with the Syrian opposition by giving arms and aid to religious fanatics and egregious violators of the laws of warfare.

I am sorry to report that my concerns on this score may have been justified: 

When a 14-year-old boy from the Syrian city of Aleppo named Mohammad Qatta was asked to bring one of his customers some coffee, he reportedly refused, saying, “Even if [Prophet] Mohammed comes back to life, I won’t.”

According to a story reported by two grassroots Syrian opposition groups, the Syrian Observatory for Human Rights and the Aleppo Media Center, Qatta’s words got him killed. A group of Islamist rebels, driving by in a black car, reportedly heard the exchange. They stopped the car, grabbed the boy and took him away.

Qatta, in refusing to serve a customer coffee – it’s not clear why – had used a phrase that the Islamist rebels took as an insult toward the Prophet Mohammed, the most important figure in Islam. That offhand comment, made by a boy, was apparently enough for these rebels to warrant a grisly execution and public warning.

The rebels, according to ABC News’ reconstruction of the Syrian groups’ reports, appear to have whipped Qatta. When they brought him back to where they’d taken him, his head was wrapped by a shirt.

The rebels waited for a crowd to gather; Qatta’s parents were among them. Speaking in classical Arabic, they announced that Qatta had committed blasphemy and that anyone else who dared insult the Prophet Mohammed would share his fate. Then, the shirt still wrapped around the boy’s head, the rebels shot him in the mouth and neck.

And more:

A Syrian rebel group's pledge of allegiance to al-Qaeda's replacement for Osama bin Laden suggests that the terrorist group's influence is not waning and that it may take a greater role in the Western-backed fight to topple Syrian President Bashar Assad.

The pledge of allegiance by Syrian Jabhat al Nusra Front chief Abou Mohamad al-Joulani to al-Qaeda leader Sheik Ayman al-Zawahri was coupled with an announcement by the al-Qaeda affiliate in Iraq, the Islamic State of Iraq, that it would work with al Nusra as well.

Lebanese Sheik Omar Bakri, a Salafist who says states must be governed by Muslim religious law, says al-Qaeda has assisted al Nusra for some time.

"They provided them early on with technical, military and financial support , especially when it came to setting up networks of foreign jihadis who were brought into Syria," Bakri says. "There will certainly be greater coordination between the two groups."

The United States, which supports the overthrow of Assad, designated al Nusra a terrorist entity in December. The Obama administration has said it wants to support only those insurgent groups that are not terrorist organizations.

As though it will be easy to ensure that money goes only to those rebel segments that the Obama administration happens to like. More:

When the group Jabhat al Nusra first claimed responsibility for car and suicide bombings in Damascus that killed dozens last January, many of Syria’s revolutionaries claimed that the organization was a creation of the Syrian government, designed to discredit those who opposed the regime of President Bashar Assad and to hide the regime’s own brutal tactics.

Nearly a year later, however, Jabhat al Nusra, which U.S. officials believe has links to al Qaida, has become essential to the frontline operations of the rebels fighting to topple Assad.

Not only does the group still conduct suicide bombings that have killed hundreds, but they’ve proved to be critical to the rebels’ military advance. In battle after battle across the country, Nusra and similar groups do the heaviest frontline fighting. Groups who call themselves the Free Syrian Army and report to military councils led by defected Syrian army officers move into the captured territory afterward.

The prominence of Nusra in the rebel cause worries U.S. and other Western officials, who say its operations rely on the same people and tactics that fueled al Qaida in Iraq – an assertion that is borne out by interviews with Nusra members in Syria.

Why are we giving arms to rebel elements when there is no guarantee whatsoever that those arms won't end up in the hands of terrorists who have professed hostility towards the United States and towards American interests, and who have actually carried out terrorist operations against the United States?

Policymaking is not made any easier by the fact that former president Bill Clinton is double-dog daring the Obama administration to be tough in Syria, lest President Obama look like "a fool" or "a wuss."  I don't even pretend to understand the logic here. Surely, Bill Clinton knows that many of the Syrian rebel groups are non-fans of the United States and don't profess our moral values. Surely, he understands that our willingness to dip our toes into the waters of war in Syria might lead us to wade in those waters further in the future. Surely he realizes that there are no American national security interests at stake here--indeed, from an exceedingly cold realpolitik standpoint, if the United States really wanted to see its interests served, it would do everything within its power to ensure that the civil war in Syria goes on for as long as possible (the better to bleed Iran dry as it seeks to prop up the Assad regime and throws good money after bad in the process). And surely the former president realizes that while the human carnage in Syria is nothing short of horrific, there may be very little that the United States can do about that short of engaging in a full-scale war which would involve boots on the ground--a proposition for which there is no support whatsoever in the United States. Maybe the plan is that Hillary Clinton will eventually embrace all this tough, anti-fool/anti-wuss rhetoric in any run for the presidency, thus making her appear to be strong and resolute in the view of American voters. That may make for great politics, but it would make for a terrible foreign/military policy.