Jan 10, 2014

What happens to federal benefits awarded to same-sex couples from Utah if the Court reverses Judge Shelby?

According to Attorney General Holder’s directive (err press release), the United States government will offer the full panoply of marital benefits to those couples married during the period between Judge Shelby’s opinion and the Supreme Court stay.

“In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.  These families should not be asked to endure uncertainty regarding their status as the litigation unfolds. In the days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled – regardless of whether they are in same-sex or opposite-sex marriages.  And we will continue to provide additional information as soon as it becomes available.”

So what happens if the Supreme Court reverses Judge Shelby? Let’s consider a few examples. Say a couple applies for social security benefits as a married couple. Would they have to reimburse the government with the additional amount received? Or, say someone facing deportation applies for citizenship based on their marriage. Would the proceedings begin again if the marriage is nullified? (Or even worse, could the citizenship be revoked). What if a federal tax return filed jointly results in a refund, whereas a return filed individually would result in a debt? Would the refund have to be returned? What if a federal employee obtains benefits for his or her spouse? Would those benefits be terminated?

So many questions.


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Jan 10, 2014

Half of Americans Think Obamacare “will make the healthcare situation in the U.S. worse in the long run”

The latest report from Gallup shows little change from November in the percentage of Americans who think the Affordable Care Act will make our healthcare situation “worse.” In January 2014, 48% thought it would make things worse. Only 12% think it will make it better.



And this is before the law has even affected people! 66% of Americans say the law hasn’t impacted them or their families yet.

Sixty-six percent of Americans say the law has not — so far — affected them or their families. The unaffected group is smaller by only a few percentage points than it was in two polls from last year. The relative few who say the law has affected them are more negative than positive about it, with 19% saying the law has hurt them and 10% saying it has helped them.


Of course, these numbers are before the individual mandate kicks in, premiums increase due to imbalanced rate pools, networks shrink, high deductibles are experienced, the business mandate kicks in next year resulting in more shakeups in employment, and the Cadillac tax hits in 2018 devastating most generous insurance plans.

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Jan 10, 2014

Insurance Executive: Failure to Bail Out Insurance Companies Will Lead to Single Payer

I’m sure everyone who read the 2,700 page Affordable Care Act is familiar with the “risk corridor and reinsurance program,” right? Of course you have. That’s the provision that gives the Administration absolute discretion to compensate the insurance companies for any losses they suffer due to Obamacare.

Now, Republicans are fighting back against this provision, which allows the Administration to effectively bail out the insurance industries that Obamacare ruined.

So, as one would expect, the insurance companies are gearing up to fight back! Buzzfeed has the report:

Blue Cross Blue Shield Association CEO Scott Serota asks members to lobby the Hill against repeal of the “risk corridor and reinsurance program” that Republicans believe is an insurance company bailout. The repeal “jeopardizes the entire private health insurance market and will ultimately lead to a single-payer system,” he writes.

Seriously. If the insurance industry is not bailed out, Obamacare will collapse and we will be stuck with single payer.

In attached talking points, seemingly directed at Republican lawmakers opposed to risk corridors and reinsurance, BCBSA is asking members to argue that eliminating the risk corridors will lead to the eventual downfall of Obamacare and lead to a single-payer system: “It jeopardizes the entire private health insurance market and will ultimately lead to a single-payer system. Furthermore, it will close the door to pro-competitive health care reform alternatives.”

One bolded talking point, “use with appropriate audiences only,” charges that “eliminating these programs will result in massive premium increases and could cause private insurers to become insolvent.” In Serota’s email, however, this point is intended for Democrats only.

This would be comical if it wasn’t so sad. Now the insurance executives are trying to convince the Republicans *not* to stop their bailout.

“We are becoming increasingly concerned about momentum that is quickly building among some leading conservatives for elimination of the risk corridor and reinsurance programs,” Serota wrote.

Serota specifically cited several high-profile bills introduced in the House and Senate to repeal the programs and a column by Charles Krauthammer calling for immediate congressional action on the bills.

Serota told members that he would be meeting with Majority Leader Eric Cantor and Speaker John Boehner next week to try to convince them repeal of the risk corridors not be “part of their ACA strategy.”

Here are the highlights of the memo:

Eliminating these programs will result in massive premium increases and could cause private insurers to become insolvent. [ Use with appropriate audiences only.

It is very misleading to characterize the program as a bailout of insurance companies. Forexample, the risk corridor program not only protects insurance companies from losses, italso requires insurers to pay the government if they make too much money.
 In the not-so-long run, eliminating risk corridors and reinsurance doesn’t just lead to thefailure of the ACA. It jeopardizes the entire private health insurance market and willultimately lead to a single-payer system

The havoc the ACA is wreaking is, well, unpreceented. If they are already talking about single payer two weeks after the thing launched, we are screwed. I don’t know if I will ever make it to a third book. People keep asking me if Obamacare can be repealed. The answer may be no. Will it implode? Maybe.

I was talking about this with a colleague recently, and he said the insurance companies made their deal with the devil, let them pay the consequences. Of course, if they fail, then we are primed for single payer.

Update: Here is an excerpt from Unprecedented, where I talk about how Obamacare will eventually lead to the collapse of the insurance market, and pave the way for single payer. I expected this to take a generation. Not a few months.

If the ACA continues to result in higher premiums and the consequent price controls aimed at controlling these rates nudge insurers to exit the market (insurers are already opting out of California’s exchanges), the mandate may serve as a mere pit stop on the road to single-payer health care (what progressives wanted but did not get in 2009).

Here is the memo.

CEO Talking Points on Risk Corridor Repeal by Chris Geidner

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Jan 10, 2014

Justice Alito Recuses in 3 of the 8 Cases Granted Today

He has recused in ABC, Inc., v. Aereo, Inc., POM Wonderful v. Coca-Cola , and Limelight Networks v. Akamai Technologies. None of these cases came from the 3rd Circuit (assuming an issue could linger that long), so I can’t see any other conceivable reason to recuse, other than financial interests. Earlier this term he recused in a case involving Oracle. That’s four (by my count) recusals in a single term. By contrast, I think Kagan has recused in two (and she was the Solicitor General not too long ago).

He has also recused in cases involving AT&T and Chevron.

Justice Alito would do the nation a service by divesting himself of whatever stocks require him to recuse in so many important cases. Index funds Justice Alito, index funds.

Update: I should note Breyer is also recused in the POM Wonderful Case. We are dealing with 7 Justices. That’s a shame.

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Jan 10, 2014

Ford Knows Everything About How We Drive. “By the way, we don’t supply that data to anyone.”

This privacy policy from the global vp of marketing and sales at Ford is really, really reassuring:

Because of the GPS units installed in Ford vehicles, Ford knows when many of its drivers are speeding, and where they are while they’re doing it.

Farley was trying to describe how much data Ford has on its customers, and illustrate the fact that the company uses very little of it in order to avoid raising privacy concerns: “We know everyone who breaks the law, we know when you’re doing it. We have GPS in your car, so we know what you’re doing. By the way, we don’t supply that data to anyone,” he told attendees.

He then “walked back” his statement:

“I absolutely left the wrong impression about how Ford operates. We do not track our customers in their cars without their approval or their consent,” he says. “The statement I made in my eyes was hypothetical and I want to clear this up.”

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Jan 10, 2014

Humana: Obamacare Delay Resulted in Exchanges Being “more adverse than previously expected”

As a result of the President’s decision to grandfather old plans from last year, Humana has reported in an SEC filing that the risk pools are “more adverse” than selected. This means that the balance between health people and sick people is off-kilter, and that more people with higher costs are in the pools.

The insurance giant Humana is blaming the Obama administration’s proposal to allow people to keep their existing coverage for an “adverse” mix of ObamaCare enrollees.

In a Securities and Exchange Commission filing on Thursday, Humana said that President Obama’s offer to allow states to continue offering plans that don’t meet ObamaCare’s mandated requirements was causing an unbalanced risk pool.

“As a result of the December 2013 federal and state regulatory changes allowing certain individuals to remain in their previously existing off-exchange health plans, the Company now expects the risk mix of members enrolling through the health insurance exchanges to be more adverse than previously expected,” the company said.

The administration proposed the executive action to quell the bipartisan outcry that the healthcare law doesn’t comply with the president’s promise that you can keep your plan if you like it.

The executive action has received a cool reception from some liberals, state insurers and industry groups. Democrats worry that the proposal could undermine the law by allowing limited healthcare policies to compete with the beefier, and often more expensive plans offered through the state and federal exchanges.

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Jan 10, 2014

Video: “What Happens if Data is Speech”?

This past weekend, I was fortunate enough to present my paper, “What Happens if Data is Speech,” at the Federalist Society Faculty Conference. Here is the video:

This paper will be published in the University of Pennsylvania Journal of Constitutional Law’s online supplement, Heightened Scrutiny.

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Jan 10, 2014

Today I will Be Giving A Talk on Unprecedented to the Houston Lawyers Federalist Society Chapter

The event starts at 11:30 at Akin Gump at 1111 Louisana St on the 44th Floor. Details are here (you can sign up at the door). See you there!

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Jan 10, 2014

Philadelphia Inquirer Reviews Unprecedented

The Philadelphia Inquirer offers this review of Unprecedented, as well as a discussion of my recent talk at the Philadelphia Lawyer’s Federalist Society Chapter (video here). Here is the intro:

Josh Blackman is a young, conservative law professor who has been getting plenty of attention for his history of the legal fight over Obamacare.

Legal experts across the spectrum, including Harvard University’s Lawrence Tribe and Georgetown University Law Center’s Randy Barnett, a leading libertarian, have heaped praise on Blackman’s book, Unprecedented: The Constitutional Challenge to Obamacare.

It provides a granular account of how the legal – and political – battle over the Affordable Care Act was joined, and how so much about the fight departed from past pattern.

So when Blackman walked to the lectern Monday in a conference room on the 26th floor of an office tower near Logan Square to address the city’s chapter of the conservative Federalist Society, the audience seemed ready to hang on every word.

But for conservatives, it wasn’t a happy talk. And maybe not for liberals, either.

All of 29 years old, Blackman – who did his undergraduate work at Pennsylvania State University, and clerked for U.S. District Judge Kim R. Gibson in Johnstown after graduation from George Mason University Law School – is a bit of a legal polymath. He can, with seeming ease, assimilate disparate streams of legal analyses, facts, political events, and government policy in service of his arguments.

I really enjoyed working with the author of the piece, Chris Mondics. He was a very careful journalist who took the time to make sure he got the law right.

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Jan 10, 2014

Assassins Reinventing Big Law

Law Technology News has a report about my good friends at ReInvent Law, and their efforts to shake up the legal field.

You might think Daniel Martin Katz was running for office. His blog, computationallegalstudies.com, highlights his “Campaign Trail,” with tightly scheduled conferences across the globe. In December, it was ReInventLaw Dubai 2012; then six events before ReInventLaw in Silicon Valley in March and a quick stop in New York for an intimate program at Fordham University School of Law, followed by an April keynote at Stanford Law’s CodeX Conference in April.

Katz is among the growing number of evangelists preaching the “New Normal” — that corporate counsel are fed up with the status quo of Big Law, and if firms don’t start acting like businesses rather than a tony club, and use technology to reduce costs and increase productivity, even more law firms will fail.

Assistant professor of law at Michigan State University’s College of Law, Katz is the co-director of ReInvent Law, which he calls a “law laboratory” devoted to “innovation, technology and entrepreneurship.” He also teaches “Quantitative Methods for Lawyers,” “Legal Information Engineering,” “E-Discovery,” “Entrepreneurial Lawyering,” “Law Practice Innovation & Entrepreneurship,” “Sports Law,” and, oh yeah, “Criminal Procedure.”

Katz stole the Fordham show, pronouncing that “I’m developing a group of assassins who are going to [reform] the profession.” His presentation was a love fest to California’s Silicon Valley, with its fast-paced, impatient venture capitalists who are funding technology startups that are eager to improve legal processes. “It’s game on in the Valley!” he declared enthusiastically.

A key challenge for Big Law, explained Katz, is what he calls “the under-investment problem.” Equity partners have “different time horizons” than younger lawyers, and often aren’t willing to defer compensation to underwrite technology projects — especially if those projects “have significant upfront costs” and positive returns are on the far horizon. “Partnership is a business model with a serious inherent weakness,” declared Katz. At risk is not a company’s money, but the partners’ money, he observed. “There are strong incentives to under-invest in training, software, and marketing [and] a strong incentive to maximize in the present and trade away the future,” said Katz.

I’ll see everyone at ReInvent Law in New York in February.

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