Posts Tagged ‘Affordable Care Act’

Dem infighting erupts over Supreme Court pick

July 14, 2018

Democrats are fighting among themselves over how far to go to oppose Supreme Court nominee Brett Kavanaugh and tempers are starting to flare ahead of a decision that could weigh heavily on the midterm elections.

Liberal activists, who are closely aligned with the party’s base, are losing patience with centrist Democrats who are on the fence over Kavanaugh, a judge with impressive credentials and the approval of the conservative Federalist Society.

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But Senate Democratic leaders don’t want to twist the arms of vulnerable colleagues up for reelection in pro-Trump states, adding to the disappointment of activists.

“There’s a great deal of frustration,” said Neil Sroka, spokesman for Democracy for America, a liberal advocacy group that is pressing Senate Democrats to unify immediately against Kavanaugh.

“We need to be training all of our firepower on Murkowski and Collins and we don’t need to be wasting one shred of energy trying to push a Democrat in the right direction on this extremist nominee,” he added, referring to moderate Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), who are viewed as potential swing votes.

“There’s great deal of impatience amongst the grass roots for senators to get off the fence on Kavanaugh,” Sroka added.

Liberal activists argue that if Democrats unify early against Kavanaugh, it will put more pressure on Collins and Murkowski to oppose him, just as they opposed efforts to repeal ObamaCare in 2017 after Democrats unified against that effort.

“We’re looking for more clean statements of opposition from more senators,” said Elizabeth Beavers, associate policy director at Indivisible Project, a liberal advocacy group dedicated to defeating President Trump‘s agenda.

“We already know plenty about Kavanaugh,” she said. “In order to get on Trump’s shortlist, these people had to show willingness to gut reproductive rights and show hostility to the Affordable Care Act.”

Brian Fallon, the executive director of Demand Justice, a group that plans to spend $5 million on ads pressuring senators to oppose Kavanaugh, this week made a splash when he called out Sen. Tim Kaine (D-Va.) for taking a cautious approach to the nominee.

In a tweet, Kaine said he was “wondering” whether Kavanaugh would rule to uphold the Affordable Care Act, protect women’s right to an abortion and safeguard civil liberties.

Fallon pushed back with a sharply-worded tweet of his own: “We already know the answers to these questions, Tim Kaine. Stop playing political games and help us #StopKavanaugh.”

It was unusual public spat between two Democrats who had prominent roles on Hillary Clinton’s 2016 presidential campaign — Kaine was her running mate and Fallon her spokesman.

Kaine on Thursday defended himself, comparing Democrats who want a snap judgment on Kavanaugh to Republicans who refused to give a hearing to Merrick Garland, former President Obama’s nominee to the Supreme Court in 2016.

“That’s just not the way I take the Supreme Court,” Kaine told The Hill. “I tried cases for 17 years, I’ve appointed [state] Supreme Court justices as governor. I certainly have opinions but I do feel like I’m supposed to read opinions, I’m supposed to read articles, I’m supposed to have an in-office interview [of] any Supreme Court nominee.”

Kaine said that if he comes out immediately against Kavanaugh, he might not get a chance to meet the nominee and ask him about his views.

He argued that Fallon also “criticized the Republicans for not being willing to meet with Merrick Garland.”

“I want to extend that courtesy that they wouldn’t extend to Garland,” he said.

Senate Majority Leader Mitch McConnell (R-Ky.) refused to meet with Obama’s nominee in 2016 and Garland never received a confirmation vote.

Ross Baker, a professor of political science at Rutgers University, said that Senate Democratic Leader Charles Schumer (N.Y.) is going to feel pressure from the base to crack the whip on centrists.

“He’s answerable to the base,” he said.

But Baker doesn’t think there’s much Schumer can do to pressure centrist Democrats.

“They’re going to have their votes conform to what their reading is of the voters in North Dakota or West Virginia.”

Sens. Heidi Heitkamp (N.D.) and Joe Manchin (W.Va.) are two red-state Democrats up for reelection this year.

Senate Democratic Whip Dick Durbin (Ill.) told reporters this week that there would not be an effort to whip red-state Democrats.

“They just don’t get it,” he said of liberal activists. “That’s counterproductive. Chuck Schumer gets tough with senators. You know how that plays back home?”

Another head-turning moment came Thursday when Adam Jentleson, the former deputy chief of staff to Sen. Harry Reid (D-Nev.) said Democrats should use the year-end government funding bill as leverage to press Republicans to turn over sensitive documents from Kavanaugh’s time as White House staff secretary under George W. Bush.

He argued in a Washington Post op-ed that Kavanaugh’s internal communications during the Bush administration “could shed light on his views on executive power and other critical issues that will probably come before the court.”

If Republicans refuse to make those documents available, “Democrats should force the issue by using the substantial power of the minority to grind the Senate to a halt,” including funding of the government beyond Sept. 30.

That bold suggestion was immediately rejected by Senate Democratic strategists.

“What a genius,” said one Democratic aide derisively.

A Democratic strategist close to a red-state senator called the idea “crazy.”

“Here’s the brutal reality: Unless that there’s new polling that I’m not aware of, this does not rank as one of the top five issues for the voters that end up deciding the red-state races,” the source said.

The strategist warned that it could backfire on Democrats if they “come out right off the bat and say ‘we’re going to oppose him at all costs’ irrespective of what they find.”

“I don’t think that’s going to play well at the Senate level,” the source said. “It ain’t California and New York that’s electing a senator from Montana.”

Democrats facing tough reelections this year in states that Trump won by big margins also don’t want to get mixed up in a potential government shutdown a month before Election Day.

Sen. Jon Tester (D-Mont.) earlier this year panned Democratic threats to hold up a government funding measure over immigration as “stupid talk.”

But other Democrats think the year-end funding bill is fair game after McConnell triggered the nuclear option last year to strip the minority party’s power to filibuster Supreme Court nominees.

“The nuclear option was dropped on the process,” noted former Sen. Ben Nelson (D-Neb.), who represented a Republican-leaning state when he served in Congress and who played a prominent role in negotiating a compromise over appellate-level judicial nominees in 2005.

“I understand why they would use everything they possibly could because they’re not in the position they once were with 60 votes,” he said.

McConnell used a party-line vote last year to change Senate precedent and lower the threshold for confirming Supreme Court nominees from 60 votes to a simple majority.

Changing procedural rules with a party-line vote is so controversial that it’s likened in the Senate to using a nuclear weapon in warfare.

Nelson said Republicans should expect a bitter fight over the Bush-era documents because they are central to judging Kavanaugh’s record.

“When you nominate someone with a partisan background, it’s going to be very difficult not to disclose their partisan activities,” he said.

“I’m sure that some people will think these are extraordinary circumstances because they’re worried about what’s in those emails.”


Judge Brett Kavanaugh: In His Own Words

July 10, 2018

The jurist has written notable rulings on a host of topics, including environmental regulations, guns, the Affordable Care Act and abortion

Judge Brett Kavanaugh speaking at the White House on Monday, after President Donald Trump named him as his nominee to the Supreme Court.
Judge Brett Kavanaugh speaking at the White House on Monday, after President Donald Trump named him as his nominee to the Supreme Court. PHOTO: ANDREW HARRER/BLOOMBERG NEWS

Judge Brett Kavanaugh has established a robust judicial record in his more than 12 years as a member of the U.S. Court of Appeals for the D.C. Circuit, often referred to as the second-most influential court in the country. Judge Kavanaugh, a nominee of President George W. Bush, has penned notable rulings on a host of topics, including environmental regulations, guns, the Affordable Care Act and abortion. Many, but not all of his rulings, have tipped right-of-center.

Here are some of Judge Kavanaugh’s most high-profile rulings:

Garza v. Hargan (2017): The full D.C. Circuit last year overturned a lower panel ruling by Judge Kavanaugh, which tossed a district-court ruling requiring the government to allow a pregnant teen in immigration custody to receive an abortion.

Judge Kavanaugh dissented from the full court’s ruling. He wrote:

Today’s majority decision…is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence. It is in line with dissents over the years by Justices Brennan, Marshall, and Blackmun, not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.

Heller v. D.C. (2011): Two judges of the court’s three-judge panel upheld as constitutional a D.C. law that banned the sale of semiautomatic rifles in the city. Judge Kavanaugh disagreed. In a lengthy dissent, he wrote:

There is no meaningful or persuasive constitutional distinction between semiautomatic handguns and semiautomatic rifles. Semiautomatic rifles, like semiautomatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting and other lawful uses. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semiautomatic rifles are.


PHH Corp oration v. Consumer Financial Protection Bureau (2016): A mortgage lender challenged a $109 million order issued against it by the CFPB, arguing the governance structure of the CFPB freed it from proper oversight by the executive branch, in violation of Article II of the Constitution. Judge Kavanaugh, writing for the three-judge panel, agreed:

The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decision-making and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the president, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power.

Earlier this year, in a 7-3 vote, a larger panel of the D.C. Circuit reversed Judge Kavanaugh’s opinion.

White Stallion Energy Center v. Environmental Protection Agency (2014): Generally speaking, Judge Kavanaugh has been critical of Obama-era environmental regulation, and has several times written in favor of overturning curbs on emissions and other measures.

In one such case, known as White Stallion, members of the energy industry challenged a 2012 regulation under the 1970 Clean Air Act that required oil and gas-fired power plants to reduce emissions of mercury and other pollutants. Judges Merrick Garland and Judith Rogers upheld the regulation, finding that the EPA had undertaken the proper inquiry in determining that the regulation was “appropriate and necessary.” Judge Kavanaugh disagreed on this point, arguing that the EPA should have considered the costs to industry, which were estimated to be over $9 billion. Wrote Judge Kavanaugh:

Suppose you were the EPA Administrator. You have to decide whether to go forward with a proposed air quality regulation. Your only statutory direction is to decide whether it is “appropriate” to go forward with the regulation. Before making that decision, what information would you want to know? You would certainly want to understand the benefits from the regulations. And you would surely ask how much the regulations would cost. You would no doubt take both of those considerations—benefits and costs—into account in making your decision. That’s just common sense and sound government practice.

So it comes as a surprise in this case that EPA excluded any consideration of costs when deciding whether it is “appropriate”—the key statutory term—to impose significant new air quality regulations on the Nation’s electric utilities. In my view, it is unreasonable for EPA to exclude consideration of costs in determining whether it is “appropriate” to impose significant new regulations on electric utilities.

The following year, the U.S. Supreme Court reversed the D.C. Circuit. The opinion, by Justice Antonin Scalia, cited Judge Kavanaugh’s dissent.

Seven-Sky v. Holder (2011): In Seven-Sky, Judge Kavanaugh dissented from the panel’s decision upholding the constitutionality of the Affordable Care Act. But his dissent didn’t win widespread applause from conservative legal scholars.

Judge Kavanaugh didn’t rule, as many conservatives had advocated, that Congress lacked the congressional authority to pass the ACA, the Obama-era law that overhauled the nation’s health-care system. Rather, Judge Kavanaugh ruled that a federal law, the Anti-Injunction Act, a federal statute barring suits that restrain the collection of taxes, meant the lawsuit at issue had been brought before the court had proper jurisdiction. Wrote Judge Kavanaugh:

As the Court has stressed time and again, although the [Anti-Injunction] Act might seem an inconvenient technicality in the context of a particular case, it is essential to the overall system of orderly and prompt federal tax administration….

Judge Brett Kavanaugh, with President George W. Bush and wife Ashley Kavanaugh looking on, speaks in the Rose Garden of the White House after being sworn in as a judge to U.S. Court of Appeals for the D.C. Circuit  in 2006. On Monday President Donald Trump picked him to be the next Supreme Court justice.
Judge Brett Kavanaugh, with President George W. Bush and wife Ashley Kavanaugh looking on, speaks in the Rose Garden of the White House after being sworn in as a judge to U.S. Court of Appeals for the D.C. Circuit in 2006. On Monday President Donald Trump picked him to be the next Supreme Court justice. PHOTO: PAUL J. RICHARDS/AFP/GETTY IMAGES

In order for the Affordable Care Act penalties to be assessed and collected “in the same manner as taxes,” the assessment and collection of these Affordable Care Act penalties likewise must be insulated from pre-enforcement suits by the Anti-Injunction Act.

That straightforward chain of logic convincingly demonstrates that the Anti-Injunction Act poses a jurisdictional bar to our deciding this case at this time.

The following year, the Supreme Court, in an opinion written by Chief Justice John Roberts, disagreed with Judge Kavanaugh, finding that the act didn’t apply to the ACA.

U.S. Telecom v. FCC (2017): In 2016, a three-judge panel of the D.C. Circuit upheld the Federal Communications Commission’s rules on net-neutrality, which were aimed at requiring internet service providers to treat all traffic equally.

A collection of telecom companies appealed, asking the full D.C. Circuit to take up the case. The full court declined, a decision Judge Kavanaugh disagreed with. In a lengthy dissent, Judge Kavanaugh again showcased his skepticism of the administrative state, writing that Congress hadn’t explicitly given the FCC authority to enact net neutrality. He wrote:

If an agency wants to exercise expansive regulatory authority over some major social or economic activity—regulating cigarettes, banning physician-assisted suicide, eliminating telecommunications rate-filing requirements, or regulating greenhouse gas emitters, for example—an ambiguous grant of statutory authority isn’t enough. Congress must clearly authorize an agency to take such a major regulatory action.

John Doe VIII v. Exxon Mobil Corp. (2011): Fifteen Indonesian villagers sued Exxon Mobil, claiming that local security forces hired by Exxon during natural-gas extraction work within the country committed murder, torture, sexual assault and other acts against the villagers. The panel ruled the villagers could bring a claim against Exxon under a 1789 law called the Alien Tort Statute.

Judge Kavanaugh disagreed, ruling that the law didn’t extend to claims relating to events that happened in other nations. He wrote:

Here, the sparse text of the ATS does not support application of the law to conduct in foreign lands. The ATS refers to conduct committed in “violation of the law of nations or a treaty of the United States.” To be sure, such conduct can occur world-wide. But as the Supreme Court has explained, the mere fact that statutory language could plausibly apply to extraterritorial conduct does not suffice to overcome the presumption against extraterritoriality. Otherwise, most statutes, including most federal criminal laws, would apply extraterritorially and cover conduct occurring anywhere in the world.

Hamdan v. U.S. (2012): The D.C. Circuit, in an opinion by Judge Kavanaugh, tossed out a military tribunal’s conviction against Salim Hamdan, a former driver for Osama bin Laden. Judge Kavanaugh wrote that the charge of providing material support for terrorism wasn’t made a crime under U.S. law until well after Mr. Hamdan was detained by the U.S. in 2001. Judge Kavanaugh wrote:

Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime…Hamdan’s conviction for material support for terrorism cannot stand.

Write to Ashby Jones at

Trump Administration Expected to Suspend ACA Program Related Payments to Insurers — Freezing risk-adjustment payouts

July 7, 2018

Companies could take financial hit from freezing of risk-adjustment payouts

The main page of the website on May 21. It isn’t clear if a suspension of the risk-adjustment payments could lead some insurers to seek higher rates for next year’s plans.
The main page of the website on May 21. It isn’t clear if a suspension of the risk-adjustment payments could lead some insurers to seek higher rates for next year’s plans. PHOTO: /ASSOCIATED PRESS

The Trump administration is expected to suspend an Affordable Care Act program that plays a key role in the health law’s insurance markets, a move that could deal a financial blow to many insurers that expect payments.

The suspension of some payouts under the program, known as risk adjustment, could come in the wake of a recent decision by a federal judge in New Mexico, who ruled that part of its implementation was flawed and hadn’t been adequately justified by federal regulators, people familiar with the plans said.

The Centers for Medicare and Medicaid Services, which oversees the program, may at least temporarily suspend the payments insurers expected to receive this fall, stemming from their 2017 business, and next fall, which would have reflected their 2018 business, the people said.

CMS has made no new policy announcement on the payments.

The agency had been expected to put out a report at the end of June detailing the next round of risk-adjustment payments, but it hasn’t been issued.

The program plays a major role in the ACA markets as insurers with healthier consumers enrolled in health-law plans reimburse insurers that have sicker and more expensive enrollees. The aim is to encourage all insurers to participate in the exchanges and sign up a broad consumer base instead of just targeting young, healthy people.

For 2016, risk-adjustment transfers were valued at 11% of total premium dollars in the individual market, according to a CMS report.

New Mexico Health Connections and Minuteman Health of Massachusetts, both small nonprofit insurers, in 2016 filed lawsuits over the program, asserting that the Obama administration created an inaccurate formula that overly rewarded big insurers.

Earlier this year, U.S. District Judge James Browning in New Mexico ruled that the formula used by CMS was flawed. CMS is expected to halt expected payments as a result of that decision, the people familiar with the plans said. In the Massachusetts case, a federal judge upheld the formula, however.

The expected suspension may draw second-guessing from insurers and supporters of the ACA. Timothy S. Jost, an emeritus professor at Washington and Lee University, said it appeared that federal officials might still have other legal options before suspending payments. Mr. Jost said federal regulators could issue a rule formally offering a justification for the risk-adjustment methodology’s use in past years, then ask the judge to consider that.

The impact of the risk-adjustment program on individual insurers varies widely. Some pay into it and don’t get money back, so a suspension wouldn’t likely be a financial challenge.

But it could be a financial blow to those insurers that are expecting payments this fall based on 2017 plans, and potentially for those that expected payments in the fall of 2019 based on their 2018 business. It would rattle those insurers if a suspension occurs, said Larry Levitt, a senior vice president at Kaiser Family Foundation.

For insurers expecting payments, abruptly suspending them “would be a big hit to their financial position,” said Deep Banerjee, an analyst with S&P Global Ratings. Estimates of the next round of payouts had already been entered in many insurers’ books as receivables because they are related to 2017 business, he said.

It isn’t clear if a suspension of the risk-adjustment payments could lead some insurers to seek higher rates for next year’s plans. Mr. Banerjee said some insurers might seek to “reprice for the coming year” if it is clear they wouldn’t be getting the expected money based on prior years’ business.

So far, insurer filings for the 2019 ACA marketplaces have reflected an array of projections, with some insurers seeking significant rate increases but rates in other places looking relatively stable.

Filings so far have signaled that some insurers are expanding their ACA offerings into new regions heading into next year, with no signs they are pulling back, as had been common in previous years. Analysts said the trend reflected how insurers’ financial results on the ACA plans for 2017 and 2018 had improved markedly over earlier years, after a series of rate increases.

Write to Stephanie Armour at and Anna Wilde Mathews at

Trump Tests His Appeal in Nevada, a State Clinton Won

June 24, 2018

President headlines fundraiser for Sen. Dean Heller, who is seeking re-election

Sen. Dean Heller (R., Nev.), left, shakes hands with President Donald Trump during a discussion on tax reform in Las Vegas on Saturday.
Sen. Dean Heller (R., Nev.), left, shakes hands with President Donald Trump during a discussion on tax reform in Las Vegas on Saturday.PHOTO: KEVIN LAMARQUE/REUTERS

LAS VEGAS— Donald Trump took his economic nationalism and insult-driven politics to Nevada on Saturday, testing whether his campaign style can help Republicans in a state carried by his Democratic rival Hillary Clinton in 2016.

Mr. Trump made the trek to Las Vegas to headline a fundraiser for Sen. Dean Heller, the only Republican senator in the state seeking re-election this year.

“He was with me all the way—once we got elected,” Mr. Trump said, repeatedly recalling Mr. Heller’s delay in backing his bid for the White House. “A little bit shaky in the beginning.”

Mr. Heller “cut your taxes and nobody fought harder to cut your taxes than Dean Heller, let me tell you,” Mr. Trump said. The Democrats, he said, “want tax increases. They want open borders.”

Mr. Heller’s race is one of the most consequential Senate contests of the year, as Republicans seek to hold on to their 51-49 majority in November’s elections. Nevada, a swing state, will be critical come November, with a Senate seat, the governor’s office and two competitive House races on the ballot.

It’s an open question whether Mr. Trump’s trademark bare-knuckled campaigning will help or hurt Mr. Heller and the rest of the GOP Nevada ticket this fall. More registered voters in the state disapproved of the president than approved of him—49% to 47%—in a May poll conducted by Morning Consult.

In addition to trying to paint state Democrats as weak on border security and favoring higher taxes, Mr. Trump hurled personal insults at the opponents of the Republican candidate.

He called Mr. Heller’s challenger, Rep. Jacky Rosen, as “Wacky Jacky” at Saturday’s Nevada Republican Party Convention. Democrats were holding their own state convention in Reno, featuring Sen. Elizabeth Warren of Massachusetts.

“Wacky Jacky is campaigning with Pocahontas, can you believe it?” Mr. Trump said, reviving his derogatory nickname for Ms. Warren, a reference to the senator’s claims to have Native-American heritage. “A vote for her is a vote for increased taxes, weak, weak borders, it’s really a vote for crime, it’s a vote to get rid of police officers.”

Shortly after the president concluded his remarks, Ms. Rosen tweeted, “Is that the best you’ve got, @realDonaldTrump? Let’s fight back.” She used Mr. Trump’s appearance in the state to raise funds on her website, where she cites opposition to his presidency and policies as a driving force for her campaign.

“President Trump is trying to pull up the ladder behind him, leaving the middle class stranded while his super-wealthy buddies turn the federal government into a source of enrichment for themselves,” Ms. Rosen’s site says. “Trump ridicules women, people of color, the LGBTQ community, immigrant families, and anyone who challenges him.”

Ms. Warren has called the Pocahontas nickname a “racial slur.”

Despite the GOP’s majority in Congress, Mr. Trump has struggled to secure support for some of his top-priority campaign pledges, like his efforts to replace the Affordable Care Act, to fund a wall along the Mexican border and to pass legislation curbing immigration.

“The fact is we need more Republicans because the Democrats are obstructionists,” the president said Saturday. He drew boos from the crowd when he mentioned Senate and House minority leaders Chuck Schumer of New York and Nancy Pelosi of California.

Facing mounting political pressure, Mr. Trump signed an executive order last week to end the separation of families crossing the U.S. border illegally. Images of unaccompanied children at shelters near the border sparked outrage from members of his own party.

Still, he insisted he would pursue a policy of zero tolerance of illegal immigration and continued to hammer at the Democrats for failing to take a tougher stance. “We’re the only country that says ‘Please, would you like to register?’—other countries say ‘Get the hell out’,” Mr. Trump said. “I think I got elected largely because we are strong on the border.”

That line may be a tough sell in Nevada, where more than a quarter of Nevada’s population is Latino. The percentage is higher in Clark County, which includes Las Vegas. Mr. Trump touted his administration’s economic record, highlighting record-low levels of Hispanic unemployment.

Mr. Trump also noted his own property in Las Vegas, joking, “I don’t think about that anymore.”

As he concluded his speech, he said that he is committed to making sure Republican voters turn out come November. “It’s an incredible state,” he said. “I will be back a lot…”

Corrections & Amplifications 
Sen. Dean Heller is a Republican. An earlier version of the caption on this article incorrectly stated he was a Democrat. (June 23, 2018)

Write to Vivian Salama at

New Trump Administration Rule to Expand Access to Health Plans Without ACA Protections

June 20, 2018

Small businesses and self-employed will be allowed to obtain coverage under ‘association plans’

Many of the ‘association health plans’ will be subject to the same rules as larger employers, which means they won’t have to provide comprehensive benefits mandated under the ACA.
Many of the ‘association health plans’ will be subject to the same rules as larger employers, which means they won’t have to provide comprehensive benefits mandated under the ACA. PHOTO: DANIEL ACKER/BLOOMBERG NEWS

Millions of small businesses and self-employed people will be able to buy health-insurance plans exempt from many Affordable Care Act consumer protections under a much-debated rule released Tuesday by the Trump administration.


The rule is a far-reaching step by the administration to wield its regulatory powers to chisel away at the Obama-era health law. It was undertaken at the behest of President Donald Trump, who last year called for the change in an executive order.

The rule makes it far easier for small businesses and self-employed individuals to band together and obtain “association health plans” for themselves and their employees. Many of the plans will be subject to the same rules as larger employers, which means they won’t have to provide comprehensive benefits, such as maternity services, prescription drugs, or mental health care, mandated under the ACA.

That is expected to lead to lower prices for people who enroll. “You may be able to buy a policy that’s several thousand dollars cheaper,” said Sen. Lamar Alexander (R., Tenn.), said in an interview before the rule’s release. “This is the most promising proposal for quality insurance for self-employed people who might make $60,000 to $70,000 but get no subsidies.”

Business groups such as the U.S. Chamber of Commerce and the National Restaurant Association praised the move, saying it will give small employers the flexibility to cover workers at a lower cost. Democrats said it would drive up costs for people with pre-existing conditions and people who buy their own coverage on the individual market.

“Let’s be clear—this policy has nothing to do with patients and everything to do with appealing to extreme Republican donors and special interests,” Sen. Patty Murray (D., Wash.) said in a statement.

While premiums for association plans will probably be significantly cheaper, costs for consumers who buy their own coverage on the individual market are likely to rise, analysts say. Those higher premiums are expected to increase the number of Americans without coverage.

An additional four million Americans are expected to enroll in these less-comprehensive plans by 2023, according to a senior Labor Department official who cited a recent federal analysis. Among the enrollees will be about 400,000 Americans who are currently uninsured.

Democrats say a proliferation of the association plans would imperil the individual insurance market by attracting healthy people, which could raise costs for sicker and older consumers, and leave people with inadequate insurance. They also say these plans have been prone to fraud and scams.

They depict the move as part of a series of Republican actions designed to undermine the ACA in ways that could hurt consumers. “Since day one, this administration has been working to sabotage the Affordable Care Act,” Rep. Mark Takano (D., Calif.) said at a recent hearing.

The proposal has been championed by Republicans who say it will provide coverage to individuals who can’t afford insurance on the ACA’s individual market. Current ACA requirements on small businesses, such as array of mandatory benefits many must provide, drive up costs, they say.

Under the new rule, small companies or self-employed people with a shared industry or geographic location will be able to form an association focused on a business interest and buy insurance. A regional Chamber of Commerce could offer association plans to members.

A group could use its collective membership to negotiate prices with payers and providers, according to a senior administration official. The associations couldn’t charge an individual higher premiums based on pre-existing health conditions, but they could base premiums on other factors, such as age, industry and employee classification.

Premiums could be $9,700 a year less for association plans compared with those on the individual market, according to a February report on the proposed rule by the health-consulting firm Avalere. Their premiums would be about $2,900 a year less than those for plans in the small-group market, which includes employers with less than 50 employees.

Women couldn’t be charged more within individual plans, but associations with a preponderance of female employees could be charged more overall, according to the senior Labor Department official.

Some critics have said women and older people will pay more, and they’ve said the plans will essentially be able to discriminate against consumers by offering some benefits and omitting others, such as cancer treatments or certain prescriptions.

Supporters of the association plans say consumers stand to benefit from a much broader array of choices, allowing them to choose policies that fit their needs.

“You don’t have the regulatory burden, and you have economy of scale,” the Labor Department official said.

Fully funded plans, where an insurance carrier pays claims, will generally be regulated by states like a large employer. That means many federal ACA requirements such as mandatory benefits won’t apply, although states can impose them.

Plans that are self-funded, where an association assumes the final risk of providing the benefits, must comply with amendments passed in 1983 that allow states to enforce insurance laws, including those regarding liquidity and solvency.

The association plans will have the option of not taking any self-employed individuals. Current plans will be grandfathered in, the official said.

The administration is also working on a rule that would open up greater access to individual health plans that don’t have to abide by the ACA consumer protections.

The administration’s preparations for the association health plan rule have spurred hundreds of comments from across the country. States including Iowa, Massachusetts and Wisconsin sought continued state oversight of association plans. America’s Health Insurance Plans, a major industry trade group, raised concerns about the potential for fraud in association plans.

A coalition of 17 Democratic attorneys general criticized the proposal as an “unlawful attempt to accomplish by executive rulemaking changes in law and policy that lie within the power of Congress.”

Republicans and some retail and restaurant organizations, however, praised the proposal.

Corrections & Amplifications 
About 400,000 Americans who are currently uninsured will be enrolled in health insurance under a new rule allowing businesses to buy less-comprehensive plans, according to a Labor Department official. An earlier version of this article incorrectly cited the official as saying the new rule would increase the number of uninsured by about 400,000.

Write to Stephanie Armour at

Appeared in the June 20, 2018, print edition as ‘Rule Expands Plans Skirting Health Law.’

Conservatives Make New Push to Repeal Affordable Care Act

June 19, 2018

Group proposes a new system that lifts national consumer protections and gives control of health care to the states

Under the conservative plan, states would receive ACA money in the form of block grants to help low-income consumers buy coverage.
Under the conservative plan, states would receive ACA money in the form of block grants to help low-income consumers buy coverage. PHOTO: ANDREW HARRER/BLOOMBERG NEWS

The Affordable Care Act should be repealed in August and replaced with a new system that lifts national consumer protections and gives control of health care to the states, according to a proposal by a conservative group set to be released Tuesday.

The proposal risks irking centrist Republicans who want to focus on other subjects. Republican leaders have said they have no appetite for another push to repeal the ACA before the November midterm elections unless such a bill clearly has the votes to pass.

Republicans faced a series of obstacles—including internal division and unified Democratic opposition—as their effort to repeal the ACA collapsed last year. There is little evidence those dynamics in Congress have changed.

Still, the proposal’s release reflects the continuing eagerness of conservatives to topple the ACA, a longtime Republican promise whose window could close if Democrats make gains in the midterms as expected.

The conservatives’ proposal would drive control of health care almost entirely to the states, reversing the ACA’s federal mandates that seek to provide basic minimum benefits and consumer protections, which Republicans argue limit people’s choice.

Under the conservative plan, states would receive ACA money in the form of block grants to help low-income consumers buy coverage. Health savings accounts, which let people set aside tax-free money for medical expenses, would be expanded. Insurers could give discounts to people who are young or maintain continuous coverage.

The proposal, which echoes provisions of a bill offered last year by Sens. Lindsey Graham (R., S.C.) and Bill Cassidy (R., La.), comes from the Health Policy Consensus Group, which includes representatives from such conservative think tanks as the Heritage Foundation, American Enterprise Institute, Galen Institute and the Manhattan Institute. The group has been meeting weekly for nine months.

The Hoover Institution on Wednesday will host a coalition of think tanks and governors, including Republican Gov. Matt Bevin of Kentucky and former GOP Sen. Rick Santorum of Pennsylvania, in Washington to discuss the proposal.

Centrist Republicans, however, haven’t been pushing a new repeal effort as part of their campaigns, especially as polls suggest the health-care issue is favoring Democrats more than in recent elections.

“Moderate Republicans are like, ‘Can’t we just let this go?’” said Simon Haeder, assistant public policy professor at West Virginia University. “It puts them in a terrible spot. They’re in a situation where if they don’t go along with them, they have to worry about making it through a primary, because these groups are well-resourced.”

Democrats face their own divisions over health care, with some liberals pushing for a sweeping “single-payer” plan and others arguing for a more limited option, such as an expansion of Medicare, that may be more palatable to centrist voters.

The block grants would be the backbone of the conservative plan. Half of the grant funding would go toward supporting the purchase of private health coverage, and half toward helping low-income Americans get coverage, although the two categories would likely overlap. The grants would ban states from using the money to fund abortions, according to the draft proposal. Medicaid expansion would also be repealed, and people on Medicaid would be able to buy private insurance coverage.

“The solution to the problem is to put program direction to states, and the federal government provides resources in a defined way,” said Yuval Levin, vice president at the Ethics and Public Policy Center. He is part of the group making the health-care proposal.

Liberals say moves to reverse the ACA, also known as Obamacare, hurt consumers by weakening or removing health coverage from many people.

“It’s just the monstrosity of Trumpcare,” House Minority Leader Nancy Pelosi (D., Calif.) said recently. “What they’re doing continues to drive up premium costs with their senseless sabotage.”

The conservative groups argue that this could be Republicans’ last chance to deliver on the eight-year GOP promise to end the ACA. That is a better electoral strategy, conservatives say, than moving toward Democratic positions or changing the subject.

The latest plan is one front of a continuing assault on the ACA by Republicans and conservatives in the aftermath of the failed previous effort to repeal it. While the Justice Department has asked a court to toss out key provisions of the health law, the 20 GOP state attorneys general in the lawsuit want the court to end the law altogether.

Some Republicans, including Sen. Ron Johnson (R., Wis.), have voiced interest in a repeal, and others have talked about passing a health-care package in coming months. Health and Human Services Secretary Alex Azar, in testimony last week, said he would work with Congress should lawmakers decide to modify or repeal the ACA.

Write to Stephanie Armour at

The next health care war: Bernie Sanders-style Medicare for All or Private Markets

June 16, 2018

Forget the Affordable Care Act: The future of our health care system will be shaped by a much bigger and broader fight — one that will likely culminate with a 2020 choice between private markets and an authentic government-run program in the form of a Bernie Sanders-style Medicare for All.

The bottom line: The cost of health care — both for individuals seeking coverage and the government seeking sustainability — promises to return as the biggest domestic issue once the Trump obsession burns off.

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This is one of America’s great unsolved problems: We have the world’s best care, talent and innovation. But before it gets to patients, the magic goes through a hodgepodge of inexplicable, expensive and unnecessary hurdles.

What’s next: The health care debate is no longer a linear fight over a straight repeal of President Obama’s health care law. Instead, it has metastasized into a multi-front war.

One of our most vital national systems is falling apart:

  • Medicare is running out of money faster than expected — a reminder that no one’s dealing with that problem, and that there’s no way to duck it in 2020.
  • The opioids crisis continues, with Congress trying to pass a ton of mini-bills to look like it’s doing something. A few of them might make a difference. This remains a crisis — and a costly one.
  • And don’t forget prices. The U.S. doesn’t use more health care than other countries — we just pay more for it. Consumers are getting sick of it, and eventually they’ll respond to politicians with plans that seek to bring down prices (as they already have on prescription drugs).
  • Polls show health care is at the top of the list of voters’ concerns for the midterms. So look for it to dominate the early rounds of 2020.

The new battlegrounds, as sketched by Axios managing editor David Nather:

  • The ACA repeal fight has moved to the courts, and the Trump administration has picked a fight over preexisting conditions — one of the most popular parts of the law.
  • But Republicans haven’t given up on repeal. A group of outside conservatives is about to unveil a new plan and push congressional Republicans to take one more vote before November’s midterms — even though there’s no sign that any votes have changed.
  • There’s going to be at least one more grassroots effort to convince them to take another run at health care” so base voters don’t think Republicans have given up, said Lanhee Chen of Stanford, a former Mitt Romney adviser who’s part of the group.
  • Democrats have moved on to Medicare for All. The fight to watch will be between establishment Democrats, who want to make it voluntary and preserve a role for employment-based private insurance, and Democrats from the Sanders wing who are ready to move everyone into a government-run system.
  • “Democrats have always felt that health care should be a right,” and they’ve watched the ACA actually become more popular under attack, said Neera Tanden, a former Hillary Clinton adviser who heads the Center for American Progress.
  • ACA premiums are going up, and for the first time it’s Democrats who will try to turn that into a campaign weapon.
  • But health care spending and premiums are rising for everyone else, too.

Go deeper: Why the U.S. never got universal health care

The Autumn of ObamaCare

June 12, 2018

How to score the election debate over rising premiums.

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Republicans are in a predictable spot as they head to the midterm election: The party failed to repeal ObamaCare, and the press is waving around double-digit premium increases for 2019. Democrats are pinning the blame on Republicans, though the basic problem is still the structure of the Affordable Care Act.

Minority Leader Chuck Schumer declared the other day that Democrats will be “relentless in making sure the American people exactly understand who is to blame for the rates.” Some insurers have been requesting large premium increases for next year as they have every year: 19% on average in Washington, 24% in New York. The Congressional Budget Office said in May that “benchmark” or midlevel plans on the exchanges would absorb a 15% increase.

State regulators approve increases and rates are set in the fall, so this pot will reach a boil as Republicans are campaigning for re-election. The GOP deserves some of the political heat after eight years of promising to repeal the Affordable Care Act. The excuses for failure—an “open process” or fear of touching Medicaid—are no more compelling now than they were a year ago.

Still, the sticker shock headlines conceal some compensating realities. The left claims the increases are novel and due to Republican “sabotage,” but ObamaCare has been on this road for a long time. Average premiums doubled between 2013 and 2017, according to Health and Human Services data.

The Autumn of ObamaCare

The law’s benefit mandates and issuer rules bar insurers from pricing based on actuarial risk. Many Americans have decided the quality of the product isn’t worth the price even with subsidies for those below 400% of the poverty line. As a result, the exchanges are attracting the aging or ill.

A 20% increase in premiums also doesn’t necessarily mean that Americans on the exchanges are paying 20% more. That’s in large part because of what is known as “silver loading.” The health law includes tax credits that are tied to the price of the second cheapest “silver” or mid-level plans. Insurers have thus dumped premium increases onto these plans, knowing that the government will pay the difference.

More than 8 in 10 ObamaCare enrollees were eligible for tax credits in the first half of 2017. The average subsidy was $373 a month, with as much as $965 a month in Alaska and $541 in Arizona. The premiums move north but the insurers mostly soak the beleaguered U.S. taxpayer. The people who suffer most from “silver-loading” and other insurer enrichment schemes are those who lack coverage but don’t qualify for subsidies.

The good news is that the GOP repealed the penalty for declining to buy insurance—the individual mandate—as part of tax reform. Democrats are now acting like the mandate was the last Jenga block and the whole ObamaCare tower will now topple. This hardly speaks well of the law’s design if it were true, but it isn’t.

The mandate was never a powerful tool for driving Americans to the exchanges, and more than six million people in 2015 elected to pay the fine instead of buy coverage. CBO has already downgraded its projections on how many Americans will roll off insurance due to the mandate’s repeal, and any effect on premiums is far more modest than advertised.

The same applies to Democratic claims about the Trump Administration’s plans to expand access to “short-term” insurance and association health plans. Groups like the Center for American Progress are churning out estimates about how mandate-repeal and short-term rules will drive up premiums—by exactly $1,011 in Florida, for instance.

But the regulations aren’t even finalized and the Administration hasn’t resolved important questions about incentives, like whether the short-term plans will have the option to be “guaranteed renewable” (yes, please). The short-term and association markets have been traditionally small, but properly structured they have the potential to expand coverage considerably.

Republicans will have to press the case that individual choice is better than the shared misery of the ObamaCare exchanges. The GOP has essentially decided to let as many people as possible flee the exchanges and subsidize those who remain. The Democrats want everyone to pay more to prop up their failing law.

Some on the right are working on another bill to repeal and replace the law this year, and we’d welcome nothing more. But the political odds are steep. The Senate would have to write a budget to be able to pass a bill with 51 votes under the “reconciliation” procedure. The worst outcome would be to roll out a bill to great fanfare, then fail and in the process play into Democratic hands.

At least Republicans are resisting demands to spend even more money to prop up ObamaCare this year and beyond. This could preclude reform through President Trump’s first term, and perhaps forever. The election-year challenge is to rebut false Democratic attacks and offer voters some reason to give the GOP another chance.


US healthcare to provide Democrats with Trump weapon

June 11, 2018

White House efforts to undermine Obamacare sets up battle for midterm campaigns

By Barney Jopson in Brownsville 

Democrats are seeking to revive healthcare as a political weapon against Republicans ahead of elections this year after the Trump administration signalled it was ready to expand its efforts to undercut Obamacare.
Six months after Donald Trump applauded Congress for knocking out one pillar of Obamacare, his administration has said it will not seek to defend another essential component, which requires insurers to cover everyone regardless of their health.

Democrats, who are seeking to win back at least one chamber of Congress in November elections, accused the Trump administration of engaging in “sabotage” by abandoning a requirement that insurers cover people who are already unwell.

Jeff Sessions, the US attorney-general, said in a letter to Congress last week that the US justice department would argue in an existing court case that the ban on denying coverage to people with pre-existing conditions was “unconstitutional”.


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Sessions explains to Congress rationale for not defending ObamaCare
© Greg Nash


Mr Sessions acknowledged he was breaking a tradition of administrations defending the constitutionality of enacted laws. “I have concluded that this is a rare case where the proper course is to forgo defence of [the law],” he wrote.

Chuck Schumer, the top Senate Democrat, tweeted a letter he sent to Mr Trump with three other senior Democrats, which said: “Mr President, it is time to stop the sabotage. We are a country of laws and the law must be respected, defended and enforced regardless of the person occupying the Oval Office.”

The Trump administration’s move was also criticised by the health insurance industry.

Healthcare has been a contentious issue in four consecutive rounds of elections since Obamacare, formally known as the Affordable Care Act, became law in 2010.

Mr Schumer’s letter said as many as 133m Americans had pre-existing medical conditions, excluding the elderly. “Taking this position could render millions of Americans uninsurable or facing higher premiums,” the letter said.

In a nod to the midterm elections, Gerald Connolly, a Democratic member of the US House of Representatives from Virginia, told Republicans “you’ve handed us an issue we will ride into the sunset”, according to the Washington Post.

Many Republican voters have blamed Obamacare for pushing up monthly premiums for health insurance policies, as insurers seek to cover the costs of customers who are filing more claims.

During his campaign Mr Trump said he would retain protections for people with pre-existing conditions, but he has subsequently supported various Republican efforts to remove them.

Although Obamacare tends to divide Americans along partisan lines, the ban on denying coverage to people with pre-existing conditions is one of the most popular parts of the 2010 law.

Mr Sessions argued that the provision on pre-existing conditions would be unconstitutional as soon as another change to Obamacare comes into effect next year: the abolishment of a tax penalty for people who do not have health insurance.

That change, which effectively eliminated another core Obamacare requirement, was included in the tax reform bill that Republicans passed at the end of last year.

America’s Health Insurance Plans, a trade group for health insurers, said scrapping the provision on pre-existing conditions “will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states [and] cause [premium] rates to go even higher for older Americans and sicker patients”.

Mr Trump has continued trying to undo Obamacare — a key part of his predecessor’s legacy — since Republicans in Congress failed to pass new legislation to dismantle it last year.

Additional reporting by Kadhim Shubber in Washington


Why are there people from the Clinton Foundation on the Mueller Staff?

June 9, 2018

Mark Penn helped design the Clinton campaign against Ken Starr. He says he’s being consistent. 

A Democrat Dissents on the Mueller Probe

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President Trump opened the week in a typical fashion, angrily denouncing special counsel Robert Mueller’s investigation. But Mr. Trump appealed to an unlikely authority: Mark Penn, the Democratic pollster who guided President Clinton through his second-term scandals and then served as chief strategist for Hillary Clinton’s 2008 presidential campaign.

“ ‘Why are there people from the Clinton Foundation on the Mueller Staff?’ ” the president tweeted, paraphrasing Mr. Penn’s appearance on Fox News. “ ‘Why is there an Independent Counsel? To go after people and their families for unrelated offenses…Constitution was set up to prevent this…Stormtrooper tactics almost.’ A disgrace!”

Mr. Penn, now a lecturer at Harvard and a private-equity investor, has condemned the Mueller probe both on television and in columns for the Hill newspaper. These broadsides have turned heads in Washington, especially among fellow Democratic political professionals, who accuse him of selling out. Hillary Clinton’s longtime aide Philippe Reines told the New York Times that Mr. Penn is “making a play for something.” Top Obama adviser David Axelrod charged on Twitter that Mr. Penn’s “reemergence as Mueller-basher seems less like courageous truthtelling than cynical opportunism.”

Mr. Penn says it is his detractors who are putting political interest over principle. “There were not enough Republicans who came out in ’98 against the process,” he tells me, “and there are not enough Democrats who are coming out against the process now.”

By “the process” Mr. Penn means the use of legal tools to settle political differences, a phenomenon he sees as getting worse. “If all politics, even after elections, becomes the politics of personal destruction and destroying our opponents rather than fighting for the next election,” he asks, “what will be left of an ideas-based democracy?”

Mr. Penn helped design what he calls Team Clinton’s “aggressive campaign” against the Kenneth Starr investigation. That inquiry originated with suspicions about the Clintons ’ Arkansas land dealings and culminated with Mr. Clinton’s impeachment for perjury and obstruction of justice in testimony arising from a sexual-harassment lawsuit. Mr. Penn sees strong similarities between then and now: “In 1998, the country was being torn apart in an investigation that had gone on for many years and then had segued into some other area, after having really not found anything in the areas in which it was set up.”

The process has intensified this time, as Mr. Trump takes on a more personal role than Mr. Clinton did. Mr. Penn also highlights the involvement of Mr. Obama’s former law-enforcement and intelligence chiefs, including Jim Comey, Jim Clapper and John Brennan. “It’s not unprecedented for a president to criticize an independent or special counsel,” he says. “It is unprecedented for people like Comey, Clapper and Brennan to go out and become full-bore political figures on the talk show circuit blasting the president as though they are pundits and not intelligence professionals.”

In addition to corroding “ideas-based” politics, Mr. Penn believes special-counsel investigations can push administration policy toward the extremes. He is credited with helping nudge Mr. Clinton into the political center in the mid-1990s. But in 1998, he says, Mr. Clinton had to retreat leftward to keep his party united behind him: “Those were the votes for acquittal in impeachment.”

Could the threat from the Russia probe force Mr. Trump to lean more heavily on his populist base? Mr. Penn is certain it already has affected the administration’s calculus on foreign policy. “If the idea was to use Russia as a fulcrum against Iran and China, that policy got blown up,” he says. “It’s not irrational policy,” but “the investigation made it impossible.”

The overarching problem, Mr. Penn contends, is that when law-enforcement agencies conduct “impeachment investigations,” it creates “a separation of powers problem.” He therefore recommends undertaking such probes “only when things are on the surest of grounds.”

Absent a smoking gun, in other words, Congress should take the investigative lead. But what if the political system is so polarized, as now, that lawmakers would be reluctant to challenge a president of their own party? “Elections come around every two years in this country,” he says. While lawyers often view the legal process as the key to accountability, Mr. Penn, a pollster, has a sunny optimism in the ability of the electorate to play that role.

He insists he has been consistent on this point, and there’s a paper trail to prove it. As a college sophomore in 1973, amid the Watergate scandal but before the release of President Nixon’s incriminating White House tapes, Mr. Penn wrote in the Harvard Crimson that the special prosecutor was a “ ‘quasi-constitutional’ mechanism” and that impeachment efforts should proceed with caution.

Critics may object that Mr. Penn has not been a Democrat in good standing for some time. He co-wrote an op-ed last summer urging the party to “move to the center” on cultural issues and focus on defending the Affordable Care Act. He says this advice is “as valid, if not more valid” today, and he hopes Democrats in 2020 pick a moderate nominee who will lead in that direction. He rejects the view that Democrats can win back power by doubling down on their current coalition. “I don’t think it’s possible for the Democratic Party to become a majority party without winning back the working class,” Mr. Penn says, “and continuing to make advancements in the suburbs and particularly with independent women.”

Mr. Penn cites the GOP’s choice of Mitt Romney in 2012 as evidence that a party can moderate. “I don’t think anybody expected during the peak times of the tea party that the Republicans would nominate people like Romney, ” he says. With the right standard-bearer, moving to the center “is a process Democrats could well undertake.”

Is Mr. Penn’s polemical anti-Mueller commentary a sign that he has been seduced by the GOP? No, he insists: Republicans also show no sign of occupying the middle ground that Mr. Clinton once did. But perhaps Mr. Penn’s policy instincts and his hostility to special counsels are related. If politics is a process of messy compromise through which ideas are recontested every two years, then it makes sense to respect election results and meet voters where they are. On the other hand, if the aim of politics is a decisive ideological triumph, then it makes sense to double down on your existing base and support any means, including criminal investigations, to force rivals out of power.

Mr. Penn’s rhetoric on Mr. Mueller has been excessive, but perhaps his views simply reflect a more pragmatic approach to politics—an approach that, alas, may be out of date.

Mr. Willick is an assistant editorial features editor at the Journal.