By David Saltzman
The Lakota Sioux are a confederation of American Indians of the great plains of North America. In the 1730s, the Cheyenne introduced the Lakota to horses, and the Lakota became proficient buffalo hunters while developing a highly advanced horse culture.
My first exposure to Lakota culture was reading John G. Neihardt’s superb book Black Elk Speaks when I was in high school. I haven’t thought much about the Lakota since then, but recent events have reminded me of a phrase often attributed to those accomplished Lakota horsemen: “If you discover you are riding a dead horse, the best strategy is to dismount.”
Business pundits and others have used the phrase to create characterizations of executives who can’t ever seem to let go of an idea, even well after its demise is apparent to everyone else. Watching the quagmire that PPACA has become, it is clear the Lakota’s wisdom has not made its way to Washington.
In fairness, some of the same dead horse strategies (DHS) now being attempted by PPACA champions were attempted by our component of the industry over the past couple of decades, even as the traditional non-consumer-directed, fee-for-service scheme was dying of a thousand cuts.
But today, it is the government’s mount that is deceased, and they are attempting all of the tortuous methodology others have used when attempting to continue riding a long-deceased horse. Let’s examine just a few of the PPACA DHS.
Buy a stronger whip.
Surprisingly, this was attempted early on in the process, albeit in a rather clumsy manner.
When all of the pirates of the Potomac (also known as Congress) couldn’t convince skeptics of what a great thing PPACA would be and how we would all reap manifold benefits from its passage, Rep. Nancy Pelosi suggested we shouldn’t just take her colleagues’ word for it.
We should read the law ourselves to find out all of the good things it contained.
At the time, it reminded me of that great Groucho Marx line: “Who are you going to believe? Me, or your own lying eyes?” The problem was that when we read it, we found out our eyes weren’t lying!
Provide additional funding to increase the dead horse’s performance.
It is difficult to conjure a single government program that has cost less than its original estimates — or even come in on budget. Jetter’s First Law of Economics states that bad ideas in the private sector go out of business, while bad ideas in the public sector get more funding.
Projected Medicare costs in 1965 — the year it was passed — were $12 billion. Actual costs were $110 billion.
From early reports, PPACA appears to be following in older brother Medicare’s footsteps.
In early April of this year, the U.S. Department of Health and Human Services (HHS) released budget documents indicating it expects to spend $4.4 billion by the end of this year in grants to help states set up exchanges. The original estimate was $2 billion.
In addition, HHS has asked Congress for another $1.5 billion to help set up federally run exchanges in those states that will not be establishing their own.
Change riders.
Originally, this was Congress and the president’s steed. While the president may still be cantering around the White House vegetable garden, many in Congress have ceded their saddles to others.
As we have previously reported in this column, Sen. Max Baucus (D-Mont.), one of the Senate’s most energetic PPACA partisans has called implementation a “train wreck,” and (coincidentally) he has also decided not to run for reelection. Baucus is not the first — and will not be the last — pirate of the Potomac to offer up the reins.
Riders have changed in the regulatory ranks as well. Early on, HHS Secretary Kathleen Sebelius was as ubiquitous as an NSA listening program. Lately, it seems as though she has been in the PPACA Protection Program.
Recent changes came from the IRS late on a Friday. They might as well have been Maxwell Smart reporting from The Cone of Silence. When the next disappointment is announced, perhaps it will come from an undisclosed rider known as Deep Throat Jr.
Reclassify the horse as “living impaired.”
Although opponents of PPACA may continue to call for repeal, even the most naïve know that won’t happen with the current Congress’ makeup.
Members of Congress have begun to offer bills that tinker around the edges of various facets of the law, seeking to tweak smaller components, such as the tax on medical devices.
While this is certainly a problem seeking a solution, in the scheme of the whole law, it is really pennies chasing dollars. If the horse is dead, painting its toenails or calling it “living impaired” is not going to bring it back to life.
Change the requirements and declare, “This horse is not dead.”
This is the most recent — and perhaps most treacherous — of the DHS to date. On July 2, the president decided to suspend PPACA’s employer mandate. It is a very bold move, since the executive branch does not have the power to stop implementation of a law, much less inconvenient portions of a law.
As David Rivkin and Lee Casey (Washington attorneys who pioneered arguments against the individual mandate) wrote in a Wall Street Journal op-ed on July 14, “Throughout the (Supreme Court) litigation, the Obama administration portrayed the individual mandate as ‘an integral part of a comprehensive scheme of economic regulation’ that included the employer insurance mandate, which was intended to give millions of Americans a way of meeting their new obligation to have health insurance. In other words, suspending the employer insurance mandate prevents the individual mandate from working the way Congress intended.”
For the non-lawyers among us, Rivkin and Casey’s point is that individuals may now have standing to argue that they have “suffered an injury sufficient to give them standing to sue.”
This reopens the whole severability question that was so widely discussed prior to the Supreme Court’s decision. Since legislative intent has been the precedent for severability discussions and since the administration argued that the intent was to include these mandates, then postponing the mandates violates Congress’ intent.
Trying to invent new rules to ride a dead horse does not change the fact that the horse is dead. At some point, however grudgingly, even the horse’s owners have to admit they cannot resuscitate the beast by extraordinary (and perhaps unconstitutional) means. We can just keep beating the poor creature or we could dismount and try to craft something sensible that might address some of the problems. Most likely, we will continue to see more dead horse strategies
