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Part-satire, part-serious, this op-ed offers a speech the President should have given in November 2009, right before the bill passed the Senate, to offer full disclosure of what the Affordable Care Act would do.

Here is a sample:

Second, throughout the past several months, I have repeated over, and over, and over again, “If you like your health insurance plan, you can keep it.” This is true. But, I now realize that my message was not as clear as it could have been.

Look at it this way. Our healthcare system is broken. There are over 40 million people without insurance. At the same time, it is not fair for some people to have very generous plans that are subsidized by employers. Further, it is also not fair for young and healthy people to have cheap, bare-bones plans that do not contribute to the insurance pools. What we need is a way to equalize things.

So, under the Affordable Care Act, generous health insurance benefits, so-called “Cadillac plans,” will be heavily taxed to create incentives for your employer to drop them, so you will be forced to buy normalized insurance on the health care markets. Bare-bones plans that only cover catastrophic needs will not be compliant with the ACA. If you have one of these, particularly if you are on the individual market, it will be cancelled. Plus lots of other modest plans will also be cancelled. (We estimate this will affect at least ten million Americans.) If you do not have insurance, and you can afford to buy it, we will penalize you if you decide to go uninsured. We cannot maintain the “status quo” of the broken healthcare system.

This is a large part of how the ACA will fix this national problem. We need you, especially young and healthy people, to purchase more comprehensive, and more expensive plans, so you can subsidize the risk pools, and make health insurance more available for our fellow Americans who need it the most.

In order for the forty million uninsured Americans to gain insurance, the rest of us must sacrifice a bit of what we have. So yes, tens of million of plans will be cancelled. Employers will drop coverage, and force people onto the exchanges. While this may be a massive inconvenience for some Americans, our moral obligation to those less fortunate compels us to take this action and move forward. We promise it will be easy and affordable to buy new, more comprehensive coverage. And if our plan works, it “will finally reduce the costs of health care.” When “you spread the wealth around, it’s good for everybody.”

It is pivotal that the American people and their representatives understand this critical social compromise before the law is voted on. We should tell the American people where we are headed. A frank discussion on these issues is essential to an informed debate on healthcare reform. We all have to be in this together for it to work.

This law was sold on many false promises, that the Administration knew was false.

Have a wonderful Thanksgiving everyone.

Update: I’m right below the Ann Coulter splash on the Opinion homepage.

 

Update: Thanks for the link from Volokh, Randy.

By the President of the United States of America, a Proclamation.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor– and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be– That we may then all unite in rendering unto him our sincere and humble thanks–for his kind care and protection of the People of this Country previous to their becoming a Nation–for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war–for the great degree of tranquility, union, and plenty, which we have since enjoyed–for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted–for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions– to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually–to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed–to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord–To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us–and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

Given under my hand at the City of New York the third day of October in the year of our Lord 1789.

Go: Washington

 

I would include a Thanksgiving Proclamation from our third President, but Thomas Jefferson refused to deliver one.

Keep an eye on the helpful ACADeathSpiral Blog from U of H Law Prof Seth Chander. Seth reports on a nugget buried in a 225-page HHS document released last week.

Many individuals, including me, have claimed that President Obama’s recent decision to permit insurers to “uncancel” certain individual plans that do not contain Essential Health Benefits could destabilize insurance markets. The Notice of Benefit and Payment Parameters just released appears to validate that assertion. Stripped of bureaucratese, the HHS document basically says that insurers are right to be disconcerted by the President’s about face.

Here is the key paragraph:

If lower health risk individuals remain in a separate risk pool, the transitional policy could increase an issuer’s average expected claims cost for plans that comply with the 2014 market rules. Because issuers would have set premiums for QHPs in accordance with 45 CFR 156.80 based on a risk pool assumed to include the potentially lower health risk individuals that enroll in the transitional plans, an increase in expected claims costs could lead to unexpected losses.

Seth summarizes in plain English what is going on here:

So, the government wants help in figuring out what to do. One method it is contemplating involves technical adjustments the Risk Corridors program in a way that would get insurers more money (pp. 101-105).  Although I will confess to considerable difficulty in understanding exactly what it is that HHS suggesting, the basic idea, as I understand it, would be to assume that those who, by virtue of the President’s about face, “uncancel” their policies would have had claims expenses equal to 80% of the average claims of the rest of the pool (page 103-04). HHS will then, on a state-by-state basis figure out what the position of the insurer would have been and try to adjust Risk Corridors in such so that the position of the insured after application of adjusted Risk Corridors is similar to that which it would have been in had these persons who pay the same premium as the rest but who tend to have only 80% of the claims expenditures enrolled in their plan.

And what authority does HHS have to do this, in our “nations of laws,” as the President put it?

It is not clear to me where the statutory authority to make this change comes from. Section 1342 of the ACA (42 U.S.C. 18062) does not define its key terms of “target amount” and “allowable costs” in a fashion that would appear to my eye to extend to hypothetical costs and hypothetical premiums. I will also confess to being unsure as to who would have standing to challenge this proposed give away of taxpayer money to the insurance industry.

And what will this cost? HHS has no estimate.

Because of the difficulty associated with predicting State enforcement of 2014 market rules and estimating the enrollment in transitional plans and in QHPs, we cannot estimate the magnitude of this impact on aggregate risk corridors payments and charges at this time.

Seth gives it a go.

What is clear to me, however, is the proposed reform, by necessity, will result in greater previously unbudgeted expenditures by the federal government. If we are really talking about making insurers whole and the people in question might have profited insurers something like $1,000 a person, the federal government appears to be suggested a change in regulations that could cost it hundreds of millions of dollars.  The HHS Notice declines to put an exact figure on the cost of the change:

…HS is probably correct in saying it is difficult to estimate the cost of the proposed changes to Risk Corridors.  I don’t think we have a good feel for how many people will return to the plans President Obama has carved out for special treatment.  It does look, however, as if a floor of a couple of hundred million dollars on the cost of the proposal would be quite reasonable. This, of course, could give some ammunition to those, such as Florida Senator Marco Rubio, who have called for repeal of the Risk Corridors provision as an insurance “bailout.” (For a discussion, look here, here and here)

Thanks to Seth for doing the analysis HHS hopes no one does.

Insight Labs has an important interview with Dan Katz, the co-founder of the ReInvent Law Lab at Michigan State. If you are at all interested in the future of the legal profession, take the time to read Dan’s take. There is a lot of important stuff here.

Here are a few highlights.

What will the legal profession look like in a decade?

What would be the most interesting kind of firm to catch a glimpse of ten years from now?

Daniel Katz: It would be the next level down, the niche-building firms. It would be the AmLaw 200 below the top 50. A great deal of legal work will be subject to automation — that’s where that’s going to happen, that’s where the impact is going to be felt. They may be able to capture some of the top 50′s work because automation will enable them to compete on price. So I think it would be interesting to look at a firm of that size, because it could go really well but also go really badly.

There’s a generational factor too. A lot of those firms are run by people who by 2023 will not even be in the building.  They will be on a beach somewhere – perhaps in Florida. That raises questions about for whom these organizations are actually being managed. Is it being managed for the 44-year-old who is about to have a first chance to be an equity partner? Or is it being managed for the 57-year-old who in ten years is going to be getting a gold watch? I would say that almost exclusively, it’s being managed for the 57-year-old. The interesting question is what the 44-year-old is going to do about that. …

No one is good at admitting that they don’t know about something. It’s easier to say, “That stuff doesn’t matter. We’re doing okay right now.”

On why law firms should have R&D departments:

That’s right. You’re basically asking, “Why don’t law firms have R&D departments?” Some of them are getting those, but that’s a very recent development. And the reason they’re doing it is that they found some way to monetize it — they’ve figured out some innovation and they’ve found a way to sell that innovation, either through marketing or some sort of third-party arrangement. That’s probably the most interesting development in the market right now for me.

If you’re a partnership, you can’t really raise capital, not in the United States. Lawyers can’t share profits with non-lawyers. So if you have a good idea, you can’t really monetize it in the way you would in other industries. Because you’re stuck with your partners and your client list, your idea can never really achieve scale.

So this sort of thing is either coming out of firms that by some miracle have figured it out or who are startups themselves. They’re the ones who are saying, yes, we have a partnership and the partnership will deliver the actual legal services, but we also have a company that is owned by the partners that can raise capital and sell technology. So that company isn’t splitting the profits gained by legal services. … There are companies that are doing things like developing technological platforms first, raising money for that, and then only afterwards forming the partnership that provides the legal services.

On automation:

They could do it right now! There’s no legal impediment stopping them. But they don’t have the right attitude. They think, “I’m here to be a lawyer, not to do this other stuff.” They often don’t have an engineering bone in their bodies. When they have the same problem fifty times, they don’t say, “How can we solve this? How can we invest in a process so we only have to solve it one time?” It’s not how they operate.

We try to inculcate students with some of that perspective, with the idea that the repetitious use of time on something you could automate is silly. But it’s not so silly when you make your money off of it, when you have to cannibalize it today to prepare for tomorrow.

On the MIT school of law:

 There’s a lot of reasons for that. We like to ask if there is going to be math on the exam. There is the training and the socialization. There is a selection effect, a treatment effect, and ongoing treatment effect that encourages a humanistic take on everything. It’s this view that what we do is special, that it can’t be understood by metrics — eventually we start to believe those things. Start with the selection — the type of people who could be medical students don’t go to law school, as a general matter. Then there’s the training, which feels more like Swarthmore than MIT all the way through.

Having a lot of data would help so much in the law — you could train people to see the arc of experience through data, so they don’t have to go through it thousands of times themselves in order to understand it.

I’m currently writing a paper that imagines the “MIT School of Law” as a thought-experiment. Because people are always talking about how they’re going to reorganize law schools entirely around practical training. I think this is a bad idea and will not be successful. They need to realize that there’s already a better model out there — it’s called polytechnic. No one is going to accuse MIT of not being a world-class school. No one is going to accuse them of being insufficiently theoretical. They’ve just built a model where you spend your time asking, “What theories are relevant for what I’m trying to do in my profession?”  Less Foucault and more Claude Shannon – that’s for damn sure. …

I’m not against the humanities at all, especially for undergrads — I just want to make that clear. But we’re talking about professional education.

And on doing stuff:

But in 2014, we’re going to be teaching a class on legal analytics where students are actually going to be asked to predict things using machine learning. Because I’m less interested in talking and more interesting in doing stuff.

Bill Henderson comments on Dan’s amazing drive for change.

Fortunately, for Dan Katz, all of these factors appear to be in alignment. Katz is acutely aware of his timing and the myriad of factors that enable innovation to take hold.  He is also young (35 years old) and has the courage to place very large bets — the largest bet being that he is not waiting to get tenure before starting his life’s work.  He is doing it now in his third year of teaching.

But to mind, there is some additional secret sauce.  What makes Katz so disruptive is his 100% personal commitment to the growth and potential of his students. He is awaking the sleeping giant — hope and a sense of purpose for young people.  Specificially law students.  If you are in his ReInvent Law Labratory, you see a different legal landscape with a whole lot more options. But to tap into that hope, Dan makes you do the work.  You have to challenge yourself.  And you have to shed the bullshit phobia over basic math. He is building a community of interest that has the potential to morph into a movement driven by young lawyers and law graduates.

I couldn’t agree more. I’ve known Dan now for about two years, and there aren’t many other people so tirelessly committed to reforming and pushing the boundaries of this profession. I’ve been honored to speak at several of the conferences that he and Renee Knakee have put on, and am working on some cool analytics stuff with Dan now. Further, to Bill’s point about not waiting for tenure before doing cool stuff, I say amen to that. Being in this position in the academy is a powerful one. We have the ability to effect change, and make a difference.

Personally, I take a similar approach. More than one professor told me I was insane for writing a book during my first year of teaching. Wait for tenure they said. More than a dozen professors told me not to write about constitutional law. Take up tax, they said. I’m happy every day because of the decisions I made, because I know what I’m doing makes a difference. I can say the same for Dan.

 

Following a mass shooting by a person who is mentally disturbed, there is usually movement to try to prevent those, with psychological problems who are prone to violence, from owning firearms. This is an eminently reasonable position. I have written that those who have shown a propensity for violence have a much higher burden to exercise their Second Amendment rights. But how are we to know who has this propensity?

The Sandy Hook Report contributes to this discussion. Adam Lanza, who spent time with mental health professionals, was not flagged as a violent person. Reason sums it up succinctly:

Nor was there evidence that Lanza himself was prone to violence. “Those mental health professionals who saw him did not see anything that would have predicted his future behavior,” the report says. “Investigators…have not discovered any evidence that the shooter voiced or gave any indication to others that he intended to commit such a crime.”

Lanza did not have the sort of psychiatric (or criminal) history that would have disqualified him from owning firearms, which is one reason strengthening the background check system for gun buyers makes no sense as a response to the Sandy Hook massacre.

In other words, even if the psychological background checks were in place in Connecticut, nothing would have stopped Lanza from buying a gun. He did see mental health professionals, but none pegged him as violent. (Plus, the firearms he used were his mother’s and were lawfully acquired.)

Now, you may say, we should err on the side of caution. But there is a serious potential over-breadth problem. How do we ensure that anyone with mental health issues, but has no proclivity to harming others, is not unduly denied their right? Further, if a person is discouraged from seeking mental health treatment, or holds back information, out of fear of losing his rights, that would be a serious detriment to his or her treatment (similar to the Docs with Glocks case). I’ve read that some mental health groups were concerned after Sandy Hook that their members would be stigmatized and ostracized for seeking help.

These are all very, very difficult issues to discuss.