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University of Houston LawProf Seth Chandler continues his cutting-edge blogging about the economics of Obamacare. Seth explains that in 2016, Houstonians buying policies on the Obamacare exchanges will have virtually no choice of selecting doctors. Why? The exchanges no longer offer any PPO plans, which afford the “greatest choice of doctors,” and the so-called platinum plans are “on their way to extinction.”

In 2015, there were 19 PPOs available in Harris County, 12 from Blue Cross Blue Shield and 7 from Cigna Healthcare.  In 2016, according to the preliminary data available on healthcare.gov and released Sunday, there are none.   Nor does the matter improve my considering POS plans, which also offer a greater degree of choice of doctor than does an HMO.  In 2015 there were17 such plans in Harris County, 10 from Aetna and 7 from Humana.   Those are gone too in 2016.  So, basically, it is no longer true in Harris County that you have a choice of doctor if you purchase an Obamacare plan.  You get what the HMO or EPO gives you.

Platinum plans are now almost extinct. In 2015, there were three platinum plans available in Harris County, an HMO and POS offered by Humana and and EPO offered by United Healthcare.  According to the preliminary information released Sunday, only the Humana HMO survives. Thus, you can get a plan that has minimal cost sharing, but no longer one that offers great choice of medical practitioners. The Humana POS and the United EPO are gone.

PPO plans dropped from 19 to 0. Platinum plans dropped from 3 to 1. Why is this happening? Seth explains:

All of this is the very predictable consequence of a design flaw in the ACA.  It heralds an unraveling of the Obamacare market. Who is willing to pay the extra cost of a PPO: generally people who value a long term relationship with their physician.  And those people are disproportionately less healthy than others.  Hence, the PPO pool tends to be populated by people who are expensive to treat.  Although insurers could, in theory, compensate for this by raising premiums to very high levels, in fact that does not work for long because, with premiums yet higher, only the least healthy of the least healthy persist, and the pressure on premium grows. Insurers, seeing the handwriting on the wall, thus kill off these plans before they technically implode.

…

When the Obama administration releases its data in a form that is more susceptible to in depth analysis, we’ll be able to see if Harris County is representative or an anomaly. Although the trend may be stronger or weaker in other areas, I predict it will not show there is much special about the Houston, Texas area in its vulnerability to a death spiral.

As I work on Unraveled, I will leave the final chapter unwritten. As we hurdle towards 2016, the long-term fate of Obamacare will be decided not by the Supreme Court, but by the law itself–and how the next President approaches it.

 

Last week Harold Koh attempted to justify President Obama’s threatened veto of the NDAA on constitutional grounds. In short, Koh explains that Congress cannot place limits on the President’s power to transfer the remaining detainees from Guantanamo. Jack Goldsmith fisks Koh’s analysis, by noting that he fails to discuss leading precedents, including “discuss Hamdan, Hamdi, Youngstown, or Judge Kavanaugh’s analysis” in Kiyemba, as well as several OLC opinions. Goldsmith’s last paragraph sums up the issue:

In short, the arguments for a comprehensive presidential disregard of the homeland transfer restrictions are much more challenging than Koh portrays.  And of course there are larger questions beyond these Article II legalities.  The President obviously wants to fulfill his first-week-in-Office pledge to close GTMO.  Assuming he can find an executive branch lawyer to write the opinion, is he really going to exercise a very controversial presidential power to disregard transfer restrictions that have been on the books for six years, and that enjoy wide congressional support, just as he is leaving office?  And if he does, will he also direct Executive branch employees to spend millions of dollars in un-appropriated funds on the creation of detention-worthy U.S. facilities?  And will executive officials follow such orders despite the possibility of criminal culpability under the Anti-Deficiency Act?  And will the Attorney General alleviate these concerns by issuing a formal opinion guaranteeing no ADA prosecutions?  I think the answers to all of these questions are “no.”  If I am wrong, it will be high constitutional and political theater like we have not yet seen in the Obama years.

In remarks at Harvard Law School, Justice Kennedy insists that he isn’t a swing vote.

Kennedy, LL.B. ’61, whose views on the court reflect a preoccupation with liberty and dignity, has often been described as the high court’s swing vote on major issues. But during his talk with Minow, he said he hated to be depicted that way.

“Cases swing. I don’t,” he quipped, as the room erupted in laughter.

And whose vote swings the cases?

Today we will continue our coverage of zoning, with a focus on aesthetics (a word I am incapable of spelling without spell check).

The lecture notes are here.

For the first case, State ex rel Stoyanoff v. Berkely, Ladue, MO is the wealthiest suburb of Missouri (anyone know what ex rel means?). The media income was $141,000. Check out the property values on Zillow–most houses are over $1 million. Ladue, also the site of the third case, City of Ladue v. Gileo, has particularly high property values in the Willow Hill subdivision.

This is a rendering of the Stoyanoff house:

For you Rand fans, the Stoyanoff case may remind you a bit of The Fountainhead.

Roark, the architect in the Fountainhead was inspired by Frank Lloyd Wright who designed Falling Water.

For the second case, Anderson v. Issaquah, you can learn more about Issaquah, Washington here. Here is a map of 145 N.W. Gilman Blvd, Issaquah, WA. It seems to be an Auto Tech store now.

View Larger Map

 

The lecture notes are here.

Substantive Due Process and Economic Liberty

• Due Process of Law (1443-1444).
• Due Process and Separation of Powers (1444-1446).
• Substantive due process (1463-1464).
• Lochner v. New York (1465-1473).
• West Coast Hotel v. Parrish (1473-1476).
• Rehabilitating Lochner, by David Bernstein

 

Lochner v. New York

Standing on the right is Joseph Lochner.

Here are photographs of Lochner’s bakery in Utica, New York.

Here is the cover of a recent book aimed at rehabilitating Lochner, which depicts Justice Rufus Pekham, author of the majority opinion, knocking out Justice Oliver Wendell Holmes, author of the famous dissent.

Through sleuthing at the Oneida County Clerk’s Office, I discovered this advertisement for Lochner’s bakery. According to the ad, Lochner’s Home Bakery “is one of the oldest and most reliable bakeries in Central New York. We pride ourself on Uniformity, Purity, Cleanliness.”

Muller v. Oregon

Here is the Lace House Laundry from Muller v. Oregon.

Here are workers inside the Lace House Laundry, courtesy of the Oregon Historical Society.

West Coast Hotel v. Parish

This is the West Coast Hotel is Wenatchee, Washington.

United States v. Carolene Products

First, here is Carolene Product’s famous footnote four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.

I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.

As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”

 

Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.

Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.

Who want’s some frizzled dried beef or baked ham slice?

As well, here is the history of the Carolene Products company from MilnotMilk.com, with some interesting photos.

The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).

Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.

Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.