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Member since: Sat May 15, 2010, 04:48 PM
Number of posts: 4,996

Journal Archives

Excellent discussion of why delaying the employer mandate was not, s conservatives insist, "illegal"

Delaying Parts of Obamacare: 'Blatantly Illegal' or Routine Adjustment?
The Atlantic
Wednesday, July 17, 2013
Simon Lazarus

When, on July 2, the Obama Administration announced a one-year postponement of the January 1, 2014 effective date for the Affordable Care Act's requirement that large employers provide their workers health insurance or pay a tax, affected businesses "cheered." But anti-"Obamacare" advocates and politicians howled. They saw a "blatantly illegal move" (Brietbart.com pundit Ken Klukowski), a government acting "as though it were not bound by law" (CATO Institute economist Michael Cannon), and an unconstitutional "refus to enforce" a democratically enacted law (Congressional Joint Resolution #45, introduced July 10 by New Jersey House Republican Scott Garrett). In the Wall Street Journal, Stanford Professor Michael McConnell, formerly a George W. Bush appointee to the federal bench, huffed that the decision "raises grave concerns about understanding" that, unlike medieval British monarchs, American presidents have, under Article II, Section 3 of our Constitution, a "duty, not a discretionary power" to "take Care that the Laws be faithfully executed." Following up in the Journal this Monday, David Rivkin and Lee Casey, who helped lawyer last year's legal challenge to the ACA individual mandate, darkly intimated that the new employer mandate delay could trigger litigation that could result in "the whole statute fall while the president's suspension is in effect."

So has President Obama, in fact, broken the law and abused his constitutional authority by delaying the Affordable Care Act's "employer mandate"? This may be the top Republican talking point right now. But what does the law actually say about this?

< . . . . >

In Sunday's Washington Post, Bush II Health & Human Services Secretary Michael O. Leavitt concurred that "The Administration's decision to delay the employer mandate was wise," in light of the Bush Administration's initially bumpy but ultimately successful phase-in of the 2004 prescription drug benefit to Medicare. Though "wise," is the current postponement "illegal"? On the contrary, Treasury's Mazur wrote to Chair Upton, such temporary postponements of tax reporting and payment requirements are routine, citing numerous examples of such postponements by Republican and Democratic administrations when statutory deadlines proved unworkable.

In fact, applicable judicial precedent places such timing adjustments well within the Executive Branch's lawful discretion. To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed." But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering. In deciding whether a given agency delay is reasonable, current law tells courts to consider whether expedited action could adversely affect "higher or competing" agency priorities, and whether other interests could be "prejudiced by the delay." Even in cases where an agency outright refuses to enforce a policy in specified types of cases -- not the case here -- the Supreme Court has declined to intervene. As held by former Chief Justice William Rehnquist in a leading case on this subject, Heckler v. Chaney, courts must respect an agency's presumptively superior grasp of "the many variables involved in the proper ordering of its priorities." Chief Justice Rehnquist suggested that courts could lose their deference to Executive Branch judgment if an "agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." The Obama Administration has not and is not about to abdicate its responsibility to implement the statute on whose success his historical legacy will most centrally depend.

< . . . . >

Posted by markpkessinger | Fri Oct 4, 2013, 11:18 PM (5 replies)

Debunking the Right's Latets Zombie Lie about the ACA

I posted this Facebook note yesterday, after an exchange in which someone asserted one of the right's latest lies about the ACA; namely, that "Congress exempted itself from the ACA."

Debunking the Right's Latest Zombie Lie: "Congress made its members exempt from the Affordable Care Act"
October 4, 2013 at 1:10am

Ever since President Obama took office in January of 2009, right-wing opponents of health care reform have promulgated lie upon lie about its provisions. We are still, three years after its passage into law, being treated, courtesy of the right's ally and propaganda arm, Fox News, to new ones, or variations on old ones. Earlier today, a friend posted a short status update expressing some exasperation with people who are defending the GOP's action in shutting down the government, and with those who suggest it is the President and Congressional Democrats who should 'compromise.' To that status update, someone commented: "If it is so good, how come the congress, unions, etc. asked to be exempted?"

Behold the latest, widely spread zombie lie about the Affordable Care Act!

This claim has been repeatedly and thoroughly debunked, and still people circulate it Here is what Politifact.com has to say about it:

Political scientist Norman Ornstein, a long-time observer of Congress and a resident scholar at the American Enterprise Institute for Public Policy Research, debunked the claim of congressional exemption in a piece he wrote for the Washington newspaper Roll Call.

"On the assertion that Members of Congress are exempt from the provisions of the Affordable Care Act: also false," he wrote. "Members of Congress are subject under the health care reform law to the same mandate that others are to purchase insurance, and their plans must have the same minimum standards of benefits that other insurance plans will have to meet. Members of Congress currently have not a gold-plated free plan but the same insurance options that most other federal employees have, and they do not have it provided for free. They have a generous subsidy for their premiums, but no more generous (and compared to many businesses or professions less generous) than standard employer-provided subsidies throughout the country."

FactCheck.org examined the broader claim that members of Congress "specifically exempted themselves from many of the laws they have passed (such as being exempt from any fear of prosecution for sexual harassment)," and found it "15 years out of date" in 2010.

The reason: Passage of the Congressional Accountability Act of 1995. It specifically made sure a variety of laws dealing with civil rights, labor and workplace safety regulations applied to the legislative branch of government. The independent Office of Compliance was set up to enforce the laws in Congress.

The act specifically prohibits harassment based on sex, race, color, religion, national origin, age and disability.

Ornstein, who has been sharply critical of Congress (and only last month co-authored a piece for Foreign Policy magazine titled "Yes, Congress Is That Bad") said it is "not surprising that, in tough times, Americans would be inclined to believe the absolute worst about their elected officials.

"But at least," he added, "let the criticism be fair and based on facts instead of persistent urban legends."

(see http://www.politifact.com/ohio/statements/2013/jan/16/chain-email/did-members-congress-exempt-themselves-complying-h/ )

And here is an article from just two days ago on the site, MediaMatters.org: http://mediamatters.org/research/2013/10/01/fox-greets-first-day-of-health-care-exchanges-w/196197 .

And there is this very good piece from Factcheck.org: http://www.factcheck.org/2010/01/congress-exempt-from-health-bill/ .

Look, it is true that the 'individual mandate' does not apply to folks who have employer-provided insurance (as indeed members of Congress have). But it DOES apply if one either doesn't have health insurance through one's employer, or if one decides (for some inexplicable reason) not to accept the insurance an employer provides. And the insurance plan that covers members of Congress is subject to the same regulations as any other insurer. It is also true that members of Congress receive a rather generous premium subsidy, but take note: virtually everybody who has employer-provided health insurance company receives a premium subsidy from their employer, over and above whatever the employee contribution happens to be. But the premium subsidy for members of Congress, while generous, is not out of line with that provided by most Fortune 500 employers to their employees.

So how is it that after years of reading or hearing about outrageous, horrible things, purported to be part of the Affordable Care Act, only to later see those claims exposed as either outright fabrications or major distortions, from sources like Fox News or The Washington Times, (or reading it in one of those political chain letters conservatives are so fond of circulating), otherwise perfectly intelligent people will hear yet another seemingly outrageous report about the Affordable Care Act from these same sources, and accept the report at face value without greeting it with even the slightest bit of skepticism? And not only to they accept these lies at face value from demonstrably unreliable and dishonest sources, they go on to repeat these lies on social networks and in casual conversation without ever bothering to verify if what they are circulating is, in fact, true!it took me all of about 60 seconds to debunk this particular lie. I went to Google, and typed "debunk Congress exempt from Affordable Care Act," and got dozens upon dozens of hits. I mean, if you have time to post a Facebook comment repeating such a claim, then you really cannot claim not to have had the time to investigate it. There is really no excuse, in this Internet age, for circulating easily refuted untruths -- none whatsoever.

(Oh, and if you hear or read that the government wants to implant microchips into people, that one's false, too!)

Posted by markpkessinger | Fri Oct 4, 2013, 06:40 PM (1 replies)

Guide to GOP Governance

Posted by markpkessinger | Tue Oct 1, 2013, 05:04 AM (2 replies)

:FACEPALM: A Facebook posting by my 25-year-old niece

So I logged onto Facebook a little while ago, and came across this posting from my niece. Initially, I only saw the original posting. THEN I saw her follow-up comment:

This isn't the first time I've heard a younger person making comments along these lines. But who is feeding these kids this stuff? I responded to her, but I did so pretty delicately because I am not interested in starting a family row. Here is what I said in response:

Obviously, there's much more that could be, and indeed should be, said. But somehow, I think a better approach is just to try, in a non-combative, non-confrontational way, to plant one idea in her head, to give her just a little

What a depressing, not to mention disappointing, exchange.
Posted by markpkessinger | Tue Oct 1, 2013, 04:46 AM (32 replies)

I am pleasantly shocked that this exchange occurred on CNN!

Posted by markpkessinger | Mon Sep 30, 2013, 11:15 PM (5 replies)

WAPO's appalling editorial -- and my response

There was a simply appalling editorial posted in the Washington Post yesterday titled, "U.S. Congressís dereliction of leadership on government shutdown." It represents what is, to date, possibly the nadir of that publication's dishonest insistence upon a false equivalence between the tactics and actions of the two parties, suggesting that "both sides" are responsible and that both sides should compromise "for the good of the country." The harm inflicted by a government shutdown is not inconsiderable; but the greater, long-term harm will be inflicted on the constitutionally-prescribed process for legislatiion. My comment, posted to the site, follows the exceprt from the editorial.

U.S. Congressís dereliction of leadership on government shutdown

By Editorial Board, Published: September 29

THE WISE heads in Washington seem to have agreed that we are headed for a government shutdown. Some folks have concluded that this outcome isnít so bad, because it will make clear to the American people who the bad guys really are, or because once those mischievous legislators get the troublemaking out of their system they will settle down and steer the country away from even worse outcomes down the road.

Count us out of any such sophisticated complacency. Yes, defaulting on the U.S. debt would be worse than shutting down the government. But both represent such recklessly, breathtakingly, wastefully irresponsible derelictions of leadership that the people who run this town ought to be ashamed of themselves if either comes to pass. Moreover, we are not reassured by the argument that a shutdown would make a default, which could come in mid-October, less likely. As the habits of normal compromise and negotiation become ever more frayed, further deterioration strikes us as at least an equally plausible alternative to the hoped-for wake-up call that shocks the capital back to common sense.

The story by now is familiar, at least to the many Washingtonians whose livelihoods may soon be affected. Congress, unable to agree on a budget for next year, is trying to pass a temporary spending bill to keep the lights on until Dec. 15, or maybe just until Nov. 15. Republican Speaker John Boehner of Ohio, caving to a few dozen backbenchers who would rather blow things up than govern, has insisted that any such bill contain Obamacare poison pills that neither the Senate nor President Obama will accept. The Senate may say no, for a second time, on Monday, at which point the House can endorse a clean spending bill or let the government go over the cliff.

This prospect may not trouble some of the freshmen conservatives with few government workers in their district and little respect for what government does, but we would hope Mr. Boehner would have compassion for the thousands of moderately paid breadwinners who would find themselves in very difficult circumstances. We would hope he would be troubled by how a shutdown would disrupt research at the National Institutes of Health and safety inspections at the Food and Drug Administration, and by the lasting damage inflicted abroad as the United States comes to be seen as an unreliable laughingstock rather than a bulwark of its alliances.

< . . . >

And here is the text of my comment:

markpkessinger wrote:

12:27 PM EST

Spare us any false equivalence in this discussion. The push towards a shutdown is being driven by one side and one side only, and everybody who is honest with themselves will acknowledge that. Compromise by the President and Democrats with Republicans who think they are entitled to engage in this sort of hostage taking, be it over funding the government or raising the debt ceiling, would be tantamount to compromising with terrorists, and would serve to undermine the constitutionally-prescribed procedure by which laws are made.

Look, there is a whole lot more at stake in this fight than a government shutdown or even the fate of the Affordable Care Act. If a faction of one political party, in one house of Congress, is permitted to successfully extort concessions for a policy agenda for which it has been unable to be successful at the ballot box, we will have set a precedent that undermines the very foundation of democratic governance. At stake in this fight is no less than the integrity of the Constitutionally-provided process by which laws are made. Central to the proper operation of that process is the understanding that legislation, having been duly passed and signed into law (and in this particular case, having been declared constitutional after being challenged in the Supreme Court), will be implemented according to the terms of that legislation. The ACA is the law of the land. Republicans had their chance to play a constructive role as the legislation was being debated. They chose not to negotiate in good faith, and ultimately they lost. And as John McCain correctly pointed out, we have, since the legislation was passed, had a Presidential election in which that legislation was one of the key issues, and the people spoke. And they spoke decisively.
Posted by markpkessinger | Mon Sep 30, 2013, 07:37 PM (18 replies)

What the healthcare battle is REALLY about . . .

I've seen folks on numerous sites writing that they simply cannot understand the desperation of House Republicans to stop the Affordable Care Act before it has even really started. And if you accept the House GOP's position at face value, it is indeed hard to make much sense of. I mean, if House Republicans really think the Affordable Care Act is a disaster and doomed to failure, then the logical thing to do, politically speaking, would be to allow it to be implemented. If they are correct in their estimation of the law, it will shortly flop big time, and the GOP will then be in a prime position to reap electoral rewards for the Democrats' colossal blunder.

But of course, concern over the law's potential for failure is NOT what is driving this fight. What's really at stake here (and the reason the GOP is so desperate to shut 'Obamacare' down before it has even started), is the continued success of a 30+ year propaganda campaign waged by conservatives, beginning with Ronald Reagan. to undermine the very notion that the government can play any positive, proactive role in addressing any of the social or economic problems the nation faces. The GOP was bitterly opposed to both Social Security and Medicare -- two of the most successful social programs ever implemented by the U.S. government. (cf. the audio clip linked below, of Reagan in 1961 predicting doom and gloom with respect to Medicare, with many of the arguments you now hear against the ACA).

This across-the-board, utter demonization of government, with its hysterical invocations of 'communism' and 'socialism' whenever the government proposed to try to address a social or economic issue, was not the mainstream view of either major party in 1961, but was instead considered on the radical fringe, even for Republicans (who throughout the '50s, 60s and much of the '70s were pretty progressive by today's standards -- arguably more progressive than today's Democratic Party in some respects) It was Reagan's successful 1980 campaign for the presidency that finally conferred an air of legitimacy to this anti-government worldview. Those of us who are old enough to remember Reagan's '76 and '80 campaigns will recall the way he hammered away on the campaign trail with phrases like, "Government is the problem, not the solution," as well as his anti-union rhetoric. From that time to the present, conservatives have invested a great deal of time and effort perpetuating Reagan's anti-government message, trying their level best to indoctrinate the entire society with the belief that these ideas are 'received wisdom' that cannot be challenged.

The Affordable Care Act, if it is implemented successfully, and people find that it offers some really helpful benefits for them, will effectively undermine that 'received wisdom' conservatives have been trying to peddle for the last three decades. And that, I believe, is what they are really afraid of, and is the reason behind their desperation.

Posted by markpkessinger | Sun Sep 29, 2013, 10:27 PM (35 replies)

A comment I just posted to the NY Times on the shutdown/debt ceiling fight...

This is the text of a comment I just posted, but which has not yet appeared, to the article in The New York Times titled: "House Leaves U.S. on Brink of Shutdown":

Mark Kessinger
New York, NY

Under what theory of democratic governance or constitutional law is an organized fadtion of elected representatives -- elected, ostensibly at least, to represent the people who elected them -- entitled to knowingly and willfully inflict, or threaten to inflict, harm upon the republic as a means of extracting a policy agenda they have been unable to achieve at the ballot box or through legitimate legislative means? Certainly none that I know of. In doing so, the GOP members of the House have created a crisis of constitutional governance if ever there was one.

Unfortunately, the Constitution doesn't contemplate such a scenario (but then, it should be added that neither does that document contemplate a two-party system or the existence of a 'debt ceiling'). What the Constitution is clear about, however, as per the 14th Amendment, that "he validity of the public debt of the United States , , , shall not be questioned. Therefore, the President, pursuant to his oath to "preserve, protect and defend the Constitution of the United States" and as a matter of national security, should instruct the Dept. of the Treasury to simply ignore the debt ceiling and continue to fund the operation and debt obligations of the government. Protecting the country from the willful infliction of harm by a minority faction would be a perfectly valid and legitimate legal defense for the President in the impeachment effort that would surely follow (and would just as surely fail).
Posted by markpkessinger | Sat Sep 28, 2013, 10:29 PM (7 replies)

ACA subsidy calculator . . .

Find out how much a premium might cost you under the new exchange system once the ACA rolls out next week.

Posted by markpkessinger | Fri Sep 27, 2013, 03:01 PM (5 replies)

NY Times Editorial: A Republican Ransom Note (and a comment I just posted to it)

My comment follows the excerpt.

A Republican Ransom Note
Published: September 26, 2013

On Wednesday, Treasury Secretary Jacob Lew sent the House a very serious warning that, for the first time, the United States would be unable to pay its bills beginning on Oct. 17 if the debt ceiling is not lifted. House leaders responded on Thursday with one of the least serious negotiating proposals in modern Congressional history: a jaw-dropping list of ransom demands containing more than a dozen discredited Republican policy fantasies.

< . . . >

The list would be laughable if the threat were not so serious. A failure to raise the debt ceiling would cause a default on government debt, shattering the worldís faith in Treasury bonds as an investment vehicle and almost certainly bringing on another economic downturn. Unlike a government shutdown, a default could leave the Treasury without enough money to pay Social Security benefits or the paychecks of troops.

The full effects remain unknown because no Congress has ever allowed the government to go over the brink before. The Government Accountability Office estimated that simply by threatening to default in 2011, Republicans cost taxpayers $1.3 billion in higher interest payments because of that uncertainty. The 10-year cost of those higher-interest bonds is $18.9 billion.

< . . . >

To prevent the House from making every debt-ceiling increase an opportunity to issue extortionist demands for rejected policies they can achieve in no other way, the president has to put an end to the routine creation of emergencies once and for all by simply saying no.

And the text of my comment:

Mr. President, it is time to put an end to this nonsense once and for all, for the sake of both the immediate future as well as the long-term health of the country. As a citizen and taxpayer, I urge you to claim authority under Section IV of the 14th Amendment ("The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned"), and declare the debt ceiling to have been raised. No doubt, the House will respond by voting to impeach you, but the Senate does not have the two-thirds majority needed to convict you on such a scurrilous charge. Explain your action fully to the American people in a prime time address before you proceed; explain the risks, both immediate in terms of the economy, and longer term in terms of the right of the American people not to be held hostage to a minority party's ransom, and I believe you will have the support, as well as the deep admiration, of a solid majority of Americans.

I realize that battling an impeachment attempt was not how you envisioned spending the remainder of your time in office. But Mr. President, with all due respect, if you manage to put an end to this kind of minority rule-by-hostage-taking, you will leave a legacy that will be the envy of future Presidents for decades to come.
Posted by markpkessinger | Fri Sep 27, 2013, 03:43 AM (13 replies)
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