A number of right-leaning bloggers reacted to news that the Obama administration may change the way it legally defends the new health law’s requirement that all Americans buy health insurance. The New York Times reported that the federal government may now argue it can impose the mandate through its tax authority, but White House officials (and Obama himself) had previously argued the mandate was constitutional under “interstate commerce” authority. Left-leaning writers were largely silent about the development. Other commentators wrote about reform in Massachusetts and the coming health insurance exchanges.

Previewing the kinds of  arguments that health law opponents’ offer against the interstate commerce reasoning, Eric Novack says on the Heritage Foundation’s blog: “‘The mandate,’ as it’s known, has its origins in the Commerce Clause of the Constitution, which grants Congress the authority to regulate interstate commerce. And yet it doesn’t take an Elena Kagan-level legal scholar (or even a fan of “Boston Legal” reruns) to see that the mandate, rather than regulating commerce, is this time being used to regulate the absence of commerce. Why does that distinction matter? Well, at the risk of sounding alarmist, if Congress can compel the purchase of a product – health insurance – under its authority to regulate the interstate market for health care, then, using the same legal theory, what transaction can’t it compel?”

Cato’s Ilya Shapiro reacts to the administration’s new position that relies on its tax authority: “This is huge.  After months of arguing that cases like Wickard v. Filburn (Congress can regulate the wheat farmers grow for personal consumption) and Gonzales v. Raich (Congress can regulate personal growth of state-allowed medicinal marijuana) justify the requirement that every man, woman, and child buy a health insurance policy, government lawyers (and spokesmen) now say the mandate is just a regulation accompanying a lawful tax (the penalty you pay for not buying insurance). ”

Randy Barnett of the Volokh Conspiracy says, “Let that sink in for a moment. If the Commerce Clause claim of power were a slam dunk, as previously alleged, would there be any need now to change or supplement that theory? Maybe the administration lawyers confronted the inconvenient fact that the Commerce Clause has never in history been used to mandate that all Americans enter into a commercial relationship with a private company on pain of a ‘penalty’ enforced by the IRS. So there is no Supreme Court ruling that such a claim of power is constitutional. In short, this claim of power is both factually and judicially unprecedented.”

Hot Air’s Ed Morrissey posts clips of Obama defending the mandate and writes, “That is exactly what the mandates do — regulate individual behavior in an area where the federal government has no jurisdiction and punish those who don’t exhibit favored choices, in this case buying comprehensive health insurance regardless of whether it makes sense for anyone.  This court will almost certainly take a dim view of the same attempt that the 1922 court struck down as a gross overreach by the government.”

Insure Blog’s Henry Stern laments: “As we’ve already noted, there was never any doubt that the individual mandate is evil because it is a tax on simply living. There is no legal requirement to own or drive a car, or buy or sell property, or eat or drink. But there is now a tax on breathing.”

Elsewhere, some bloggers opted to focus on other issues, including those stemming from the Massachusetts experience. The New Republic’s Jonathan Cohn responds to a critical column from Robert Samuelson about that state’s health reform law.  Cohn argues: “if the lesson from Massachusetts is that “genuine cost control is avoided because it’s politically difficult” then fiscal disaster is inevitable. Health care costs are going to keep rising, no matter what we do. And if that’s the case, I would certainly prefer a world in which people don’t have to worry about paying their medical bills. It doesn’t cost a lot to make that happen; the incremental cost of insuring the uninsured is a small fraction of health care spending.”

Wonk Room’s Igor Volsky responds as well, pointing to innovative health systems like Geisinger in Pennsylvania, and concludes: “Samuelson is undoubtedly right about the political challenges to controlling health care spending but he’s underestimating the extent to which economic necessity shapes reality for politicians and providers.”

And legal expert Timothy Jost writes on the Commonwealth Fund’s blog about “key” issues for HHS to consider when implementing the new health insurance exchanges, including state participation in regional exchanges and how those exchanges would be designed, along with “hold[ing] down administrative costs.”

The New Health Dialogue’s Joanne Kenen interviews John Prible of the broker group Independent Insurance Agents and Brokers of America about the future of insurance brokers under health reform. Kenen explains, “Not all the states will design their exchanges the same way. In a state where the exchange looks more like an online telephone book with lots of choices and minimal explanation, a broker might indeed give a lot of value added. In a state that more actively selects which plans can be in the exchange, and how easily consumers can compare them, brokers might be more superfluous.”

As health law regulations are released with more frequency, there’s plenty for bloggers to digest including developments in health information technology rules, abortion coverage and the Center for Medicare and Medicaid Innovation.

New rules announced this week about what health information technology practices and services will be considered “meaningful use” and make doctors and hospitals eligible to receive federal grants inspired plenty of commentary. Margalit Gur-Arie of the Health Care Blog analyzes “the good”, “the bad” and “the inconsequential,” and then sums it up: “what was bound to become a typically painful bureaucratic attestation for physicians, is now a rather straightforward process.”

Brian Ahier provides a detailed run-down of the provisions, and notes: “A major shift is the move away from an all-or-nothing approach, where providers had to meet every single measure to be eligible for payments. Instead, there’s now a set of must-have core requirements and an a la carte menu of discretionary options. There are 15 core requirements for physicians and 14 for hospitals. Health care providers can then choose five of 10 menu options to meet phase one of meaningful use. This strategy will enable a great many hospitals and small practices in rural and underserved areas to have a shot at cashing in on incentive payments.”

And the Wall Street Journal’s Katherine Hobson rounds up various association group and health IT company responses to the rules.

Several bloggers look at coverage of abortion in the new high-risk pool programs.

Julie Rovner on NPR’s Shots Blog reports on a fight in Pennsylvania: “Abortion opponents say the administration is already breaking the promise it made as part of the new health law not to fund elective abortions. … The National Right to Life Committee, Family Research Council, and House Minority Leader John Boehner, (R-OH) are up in arms about what they contend is Pennsylvania’s plan to provide abortion coverage to people who sign up for the state’s new high-risk health insurance plan. … Only there’s one problem. Both Obama Administration and Pennsylvania officials say the NRLC’s interpretation is simply incorrect — elective abortions will NOT be allowed in the new program.”

Wonk Room’s Igor Volsky thinks the legal language doesn’t include prohibition of abortion coverage: “But as I pointed out yesterday, the Nelson abortion amendment in the health care law and President Obama’s subsequent executive order place restrictions on federal funding within the exchanges and the community health centers, but says nothing of the moneys appropriated to the temporary high risk pools or other programs like reinsurance for early retirees or the small business tax credits.The federal legislative language seems to contradict the state’s interpretation.” Volsky then posts a statement from HHS spokeswoman Jenny Backus, who said: “As is the case with FEHB plans currently, and with the Affordable Care Act and the President’s related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered.”

Insure Blog’s Henry Stern responds to the events by critiquing Rep. Bart Stupak, D-Mich., who authored a strict ban on abortion coverage in the House version of the health overhaul bill, “We previously made the point that anything not specifically excluded would be covered; Rep Stupak’s cowardly retreat made this development inevitable.”

The Daily Beast’s Dana Goldstein looks at another aspect of the debate: labeling contraceptives as preventive care, which would make them available without cost-sharing under the new health law.  Goldstein reports: “many conservative activists, who spent most of their energies during the health-care reform fight battling to win abortion restrictions and abstinence-education funding, are just waking up to the possibility that the new health care law could require employers and insurance companies to offer contraceptives, along with other commonly prescribed medications, without charging any co-pay.”

Georgetown’s Jocelyn Guyer of the Say Ahh! blog points to a study that found a significant portion of children lose their health coverage when a parent loses a job. Many of those families look to Medicaid and the CHIP program to cover the youngsters.  Guyer adds: “At the end of this year, the extra [Medicaid] help the federal government has given states is slated to expire even though state budgets continue to be battered by rising demand for services. Without a short-term continuation of the extra help, states will be under enormous pressure to scale back Medicaid and CHIP, including children’s coverage.  …  If this happens, the reality … that children often lose their private coverage when their parents lose a job will translate into more and more uninsured children.” 

The Heritage Foundation’s Kathryn Nix, in her “Side Effects of ObamaCare” series, also talks about Medicaid.  But she sees a different issue: “As more and more doctors withdraw from Medicaid, more and more Medicaid patients are having trouble finding a physician to treat them.  It’s hard to see how the program can possibly deliver health care to an additional16 million patients dumped into the mix by Obamacare.”

On the Health Affairs blog, Carol Levine examines the health law’s requirement to set up a Center for Medicare and Medicaid Innovation. Levine is concerned that the center does not have to consider when funding projects whether they are “patient-centered” and focus on care coordination.  She says, “these should not be optional priorities.”

In a separate Health Affairs post, John Goodman thinks the health overhaul could lead to ER overcrowding: “One of the most oft-repeated arguments for health reform is that uninsured patients make costly and delayed trips to the ER when they do not have a health plan that pays for care at physicians’ offices. Insure the uninsured, it is said, and they will decrease their reliance on the ER and get prompter, less costly care elsewhere. Yet this has not been the experience in Massachusetts and it is unlikely to be the experience nationwide under the new health reform legislation. In fact, far from seeing a decline in ER visits, the number of such visits is more likely to soar.”

The New Health Dialogue’s Tony Cardona takes a look at legal action surrounding the Healthy San Francisco program, which requires employers with more than 20 workers to help cover cost of health care services.  Cardona writes, “Play-or-pay models may continue to be an option for states and local governments to provide insurance for individuals not covered under federal law (such as undocumented workers.) But the Supreme Court’s denial of review of Healthy San Francisco was tantamount to an announcement that such models are no longer germane in reshaping the larger health care debate.”

The Washington Post’s Ezra Klein is also talking about Healthy San Francisco because of a new National Bureau of Economic Research study of employer reaction to the program. Klein calls the results “encouraging,” focusing on business approval of the law (at 64 percent) then adds, “I guess in San Francisco, even the private businesses are run by socialists.”

The National Journal’s Megan McCarthy asks the health policy experts if a recess appointment of Dr. Donald Berwick to head the agency that oversees Medicare and Medicaid was “necessary.” James Gelfand, Newt Gingrich, John Goodman, Bruce Lesley, Larry McNeely and Gail Wilensky respond. Reaction ranged from “inexcusable” and “shameful” to “superb.”

Speaking of Berwick, The Apothecary’s Avik Roy lists problems with Britain’s National Health Service then argues: “These problems are not an accidental side effect of socialized medicine—they are inherentto socialized medicine. Liberals who believe that technocratic experts can rationally allocate health care resources ignore the real-world examples, like Britain’s, of how that model fails in practice. The American health care system has its flaws, and real reform is urgently needed. But the reason why Obamacare is so unpopular is that most people would never trade our approach, warts and all, for that of Donald Berwick’s NHS.”

Cato’s Michael Cannon points to news that Republican lawmakers are pressing Supreme Court nominee Elena Kagan to recuse herself from any case about the new health care law.  Cannon predicts: “That would also be the worst possible outcome for the administration.  In fact, universal coverage is so important to the Leftthat if Kagan would leave them with one less pro-ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination.  He could then appoint someone as ideologically reliable as Kagan, but who could actually defend the president’s signature accomplishment. This could get interesting.”

Elsewhere, a few bloggers react to the new National HIV/AIDS strategy released by the administration on Tuesday. 

Health Beat’s Maggie Mahar calls the strategy “promising” then adds, “But we must make sure that in the short-run we are not abandoning the very people we purport to help; the vulnerable groups who depend on ADAP for their medications.”

The Nation Review Online’s Tevi Troy has five observations, including, “The major conservative objections to the policy will be in the areas of the endorsements of needle exchange, condom distribution, and sex education, which are neither news nor surprising in any way.  After 15 months of study, the administration does not appear to have broken much new ground on this issue.  No wonder the Left appears disappointed.”

Bloggers continue to argue about President Barack Obama’s recess appointment of Dr. Donald Berwick to head the agency that oversees Medicare and Medicaid. Others explore the intricacies of several health overhaul issues, including whether the law could be defunded by Republicans and if more competition among health insurers would really help control health costs.

The New Republic’s Jonathan Cohn adds an addendum to his initial positive reaction to the recess appointment after considering the argument made by Tevi Troy, a conservative health policy expert. Troy wrote, “Being a confirmed appointee really makes a difference at the agencies, and it is worth taking some political hits to give your nominees that important blessing.  Given the Democrats’ strong 58 seat majority in the Senate, Dr. Berwick could have gotten there if the White House had just let the process play out. When I told Jonathan that I disagreed with him on this issue, he said that if the Republicans were willing to promise that they would not filibuster Dr. Berwick, then he would be willing to say that the White House was wrong to go this route.  I disagree. Nobody, Republican or Democrat, could or should make that promise, as we can’t know what information the confirmation process will reveal.”

James Capretta makes a similar argument: “Unlike the president, Dr. Berwick hasn’t hid his worldview. The White House says Republicans were planning to obstruct the nomination. Republicans haven’t obstructed anything. All they did was signal an eagerness to engage in a spirited debate over Dr. Berwick’s vision for health-care cost control. The reason Dr. Berwick’s nomination hasn’t moved forward is because he hasn’t yet submitted responses to relatively routine questions posed by the Senate Finance Committee — questions that would have been asked of any nominee, from either party, given the same set of facts and circumstances.”

The Washington Post’s Ezra Klein is puzzled by Tevi Troy’s argument.  Klein writes, “I don’t like this state of affairs. As I keep saying, the procedural arms race set off by the endless filibuster is bad for both parties, and needs to be ended. But it does seem like the argument here is that Democrats should have acted in good faith even though Republicans seemed poised to act in bad faith, and even though there were real consequences both for Berwick and for the administration if Republicans crucified and then blocked him.”

But Avik Roy of The National Review’s Critical Condition adds: “There is another reason for thoughtful (and philosophically consistent) liberals to oppose Berwick’s recess appointment: There won’t always be a Democrat in the White House.”

Elsewhere, on the Health Affairs blog economist Uwe Reinhardt looks at some experts’ contention that a more competitive health insurance market would better control health care costs. Reinhardt writes, “I have some trouble, however, grafting this model onto the market for health insurance, which is not quite like the market for the legendary widget. … Ideally, in my view, the market for health insurance would be oligopolistic, which means that only a few insurers — each with some market clout vis à vis providers — would compete for enrollees in a local market. What the ideal number would be is an interesting question on which economists can have a lively debate. So what am I missing here? Why do so many otherwise sensible people believe that fragmenting the buy side of the health care market even more than it already is will help contain the rising cost of health care? I would argue just the opposite.”

Economist Austin Frakt responds: “Reinhardt should not hold his breath. I can think of no sensible argument that–holding all else constant–starts with a reduction in insurers’ market power and ends with a decrease in medical costs and health care premiums. However, if one is willing to add in other elements of reform, I can think of some possibilities that include increased insurer competition. For example, if insurers are permitted to collude to set all-payer rates to medical providers then they can maintain a high degree of leverage over providers while competing vigorously for policyholders. Or, the provider market could be commensurately diluted so that the relative provider-insurer balance of power was held constant.” He concedes neither of those options is likely.

Wonk Room’s Igor Volsky examines whether Republicans would be able to defund health reform if they take over Congress in the November elections. Volsky looks at comments by Gail Wilensky suggesting this is unlikely and then he explains, “Indeed, mandatory spending, such as Medicare and Medicaid, continues from year to year unless Congress passes new legislation to reduce it; discretionary spending, which covers most of the day-to-day operations of federal agencies, is appropriated every year in annual appropriations bills. It’s far easier for Congress to adjust an appropriations mark than muster the political support to pass new legislation to defund the new Medicaid expansion or affordability credits to middle class Americans.”

AHCJ’s Andrew Van Dam looks at a provision of the health care law that requires insurers to spend a certain percent of revenues on medical expenses or treatment. Van Dam says, “At present, the key issue seems to be subsidiaries. Major insurers have hundreds of them each, and while the insurer could meet the requirements if all subsidiaries were averaged together, they won’t be able to hit the numbers at every single subsidiary.”

And the Cato Institute’s Michael Tanner has a new brief on the health overhaul law. The Cato website says the brief finds that “the bill is bad medicine. It is likely to make Americans less healthy, less prosperous, less able to direct their own health care decisions, and places huge burdens on our economy and already massive national debt.” The Heritage Foundation’s Stuart Butler also authored a new paper on the law, according to the foundation’s blog.

President Barack Obama’s recess appointment of Dr. Donald Berwick to head the Centers for Medicare and Medicaid has created a furor among conservative bloggers, including one who refers to Berwick as “rationer-in-chief.” But his supporters say Medicare needs his leadership now.

Dan Pfieffer, the administration’s communications director, wrote on WhiteHouse.gov that Obama made the appointment because “[m]any Republicans in Congress have made it clear in recent weeks that they were going to stall the nomination as long as they could, solely to score political points. But with the agency facing new responsibilities to protect seniors’ care under the Affordable Care Act, there’s no time to waste with Washington game-playing.”

The Apothecary’s Avik Roy calls Pfieffer’s explanation “laughable” and says because of Berwick’s views on the British National Health Service, Democrats did not want to hold public hearings. Roy continues, “Berwick would only generate more controversy if he aired his views in Congress. And we’re not talking ‘controversy’ in the mountain-out-of-a-molehill sense: we’re talking about the basic philosophy of whether or not we should have a free or centrally-planned health care system. The American public, and more importantly, the American idea, are not on Berwick’s side.”

Hot Air’s Ed Morrissey also disagrees with the White House explanation: “No one ’stalled’ Berwick.  The truth is that Obama was afraid to have Berwick questioned by Congress, which should have everyone questioning his suitability for the position, even without considering his prior statements on wealth redistribution and slobbering fanboyism of the British state-run health service.”

April Fulton and Julie Rovner observe on NPR’s Shots blog that “Senate Republicans vowed to block Berwick, even though many admit he’s highly qualified, because they want to revive their battle over the health care law, which is getting decidedly mixed reviews on an array of fronts. Recent polls have shown support for the new health overhaul up slightly. But still only about half the public has a positive view of the law. One strategy of health care overhaul opponents has been to try to get measures that would effectively nullify the measure on a state-by-state basis onto November ballots.”

Heritage’s Conn Carroll calls Berwick “rationer-in-chief” and continues, “The fact that the White House chose to empower Dr. Berwick by recess appointment is particularly audacious. The recess appointment power was intended to be used for occasions when the Senate is out for months at a time. The Senate is currently out of session for just 11 days. Worse, the Senate majority has never even scheduled a hearing so that Dr. Berwick’s rationing views could be given an ‘open’ forum. In fact, Dr. Berwick has not even returned Senators’ written questionnaires.”

Philip Klein of the American Spectator notes several controversial statements from Berwick and says, “Had [Obama] appointed Berwick during the health care debate, it would have exposed how much Obama’s ultimate vision for U.S. health care borrows from the British model.”

The New Republic’s Jonathan Cohn has a cautiously optimistic take: “CMS director is always an important job. But it’s even more important now, as the Obama administration starts to implement health care reform. Not only must CMS prepare to deliver coverage to millions of new Medicaid recipients. It must also re-engineer Medicare itself, so that it pays for services in ways that foster better, more efficient care. Figuring out how to provide better care for less money is Berwick’s specialty, making him, at least on paper, a perfect choice for the job. … For the record, a serious conversation about Berwick’s qualifications and plans would have been worthwhile. I’ve heard even people sympathetic to Berwick question whether his administrative experience is adequte. But, again, it’s hard to have a serious conversation when one of the two political parties refuses to be serious.”

Wonk Room’s Igor Volsky agrees with the administration’s reasoning behind a recess appointment: “The GOP’s rhetoric justifies Obama’s recess appointment. Had Berwick’s nomination gone through the committee process, it would have undoubtedly been subject to anonymous GOP holds and delays. The party would have used the hearings as an opportunity to revive the old ‘death panel’ and health rationing smears, putting Democrats on the defensive just as the first benefits of reform are beginning to take effect.”

Health Beat’s Maggie Mahar seems pleased, writing: “We needed Berwick, in Washington, guiding CMS.  Yesterday — or eight years ago.”

Time’s Kate Pickert tries to figure out what the recess appointment could mean for Berwick’s success in his new role: “So the White House is trying to stay a step ahead of Republicans – playing defense even before they could run their offensive play against Berwick, labeling the pediatrician, highly regarded researcher and expert on health care policy simply an ‘expert on rationing.’ How this will affect Berwick, who is a brilliant policy wonk but whose provocative public statements exposed his political naivete? Well, Berwick is getting a lesson in politics now and it’s one that Republicans will eagerly remind him of every time he comes into contact with them in the next 18 months or so.

And the website for the documentary Money-Driven Medicine has posted several video excerpts of interviews with Berwick from the film.

Bloggers chatter about the high-risk pool program that began enrollment Thursday and react to the Department of Health and Human Services’ new consumer web portal, healthcare.gov.

Hot Air’s Ed Morrissey examines that the high-risk pools may be under-funded, declaring: “As this demonstrates, Congress had no clear idea of actual costs or complications in the program.  It should never have passed in the first place, but this key issue shows what happens when government attempts to run a business sector without having any expertise in it.”

Austin Frakt of the Incidental Economist, who estimated that up to 1 million people likely eligible for such pools, is puzzled by the way Congress designed the benefit:

Frankly, I’m surprised the Democrats got themselves into this pickle. The high-risk pools are one of the first things the new law creates. You want the early stuff to be successful. You don’t want to have to admit you blew it. Even if they had put $25 billion into the pools that would have hardly changed the total spending in the bill (close to $1 trillion). Why were they so stingy?

My guess is they’ll sneak a payment increase into some other bill, bury it among all sorts of tweaks, and pay for it with a tiny cut to something else (or claim as much). Nevertheless, it was a silly mistake. Or am I missing something?

AEI’s Tom Miller and James Capretta think the high-risk pool program is a harbinger: “It misrepresents the real problem, promises more than it can deliver, tries to hide the real costs, and gives sensible reforms a bad name—all because the administration is more committed to its long-term vision of central government control than to actually building a sustainable solution.”

Insure Blog’s Bob Vineyard notes the ambiguity listed online in terms of what the plans cover and how much they cost, and says: “The folks in DC have allocated $5 billion to this fund. Even given you don’t know what kind of coverage you will get or how much it will cost, $5 billion could fall short just like Cars 4 Clunkers.”

Another key part of the new health overhaul law also launched Thursday — the web portal meant for comparing health insurance options: www.healthcare.gov.

Jonathan Cohn, on his new Citizen Cohn blog, weighs in: “putting together and presenting this much material after just three months strikes me as impressive. And that’s a positive sign about more than just health care reform. Sometimes government fails, as it did (spectacularly) with the oversight of offshore oil drilling. But sometimes government works really well.”

On NPR’s Shots Blog, KHN’s Mary Agnes Carey notes that insurers are displeased with certain ways in which some information is cast and communicated: “America’s Health Insurance Plans is especially angry about a graphic located in the timeline section of the site, discussing what the law means for the Medicare Advantage program — the program where the government pays insurers to offer additional coverage to Medicare recipients.” The graphic reads, “Stopping Overpayments to Big Insurance Companies.”

Time’s Kate Pickert writes, “Some critics of the health care law and the Obama Administration will no doubt scoff at healthcare.gov, but they shouldn’t. There’s nothing wrong with helping Americans find out more about what their insurance options. This means more accountability and a more competitive marketplace.”

Dawn Horner of Say Ahhh! says the site isn’t “quite Amazon yet” but notes, “This is light years away from what exists today for families shopping for health coverage. But there still is a ways to go — once families are provided with the list of options, they have to navigate through a number of links, and ultimately, leave the site to find more information and apply for coverage.”

You can watch a virtual video tour of the site posted by HHS on YouTube:

Bloggers tuned into hearings for Supreme Court nominee Elena Kagan looking for clues to her views on the health overhaul law as well as abortion restrictions. Others take a look at new polls and the ‘tanning tax’ set to kick in tomorrow.

April Fulton of NPR’s Shots Blog describes an exchange Tuesday between Sen. Tom Coburn, R-Okla. and Kagan: “An ardent opponent of the health care law, Coburn asked Kagan whether it would be constitutional if Congress required Americans to eat three vegetables and fruits a day to save on health costs. ‘Sounds like a dumb law,’ Kagan said. ‘But I think that the question of whether it’s a dumb law is different from … the question of whether it’s constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.’”

Caroline May of The Daily Caller writes of the exchange, “Her non-answer  has made some question Kagan’s views on how much power the government can exert over its citizens. John Hart, Coburn’s communications director, told The Daily Caller, ‘I think what she said reflects a belief that the Constitution does not protect the individual rights the founders intended to protect.’ Hart said the senator was pointing out that there is a whole group of leaders who have eroded the original intent of the commerce clause to usurp the rights of Americans.”

The Guardian’s Michael Tomasky notes, “To me it’s like this. Any society is full of competing values and interests. Here, we have the value of individual liberty competing with the value of overall social health. I have big trouble taking seriously the idea that making fast-food joints post their nutritional information is fascism. …Anyway, Kagan didn’t answer, as any liberal would not, because she knew Coburn was really talking about healthcare reform. But if this is the best they got, she has no worries.”

On abortion, Lindsay Beyerstein of the Media Consortium looks at an exchange Tuesday on abortion rights where Kagan said, “Senator Feinstein, I do think that the continuing holding of Roe and Doe v. Bolton is that women’s life and women’s health have to be protected in abortion regulation.” Beyerstein writes, “That’s a good start, but it’s hardly the ringing endorsement of choice that progressives would have hoped. Kagan went on to talk [about] the special case of ‘partial birth abortion bans,’ which she encouraged Bill Clinton to support while he was president. ‘Partial birth abortion’ isn’t even a medical term. It’s a marketing term coined by anti-choicers in their bid to chip away at Roe v. Wade. For pro-choicers, it’s disappointing to see Kagan uncritically buying into that frame.”  There’s video of the exchange here.

Elsewhere, Ezra Klein looks at public opinion polling on health reform, including a new poll out Wednesday by the Kaiser Family Foundation, and concludes support continues to rise: “These are fairly small changes in the numbers, to be sure. But then, the numbers on health-care reform were always fairly closely divided. It’s possible we’re just seeing random shifts in the same direction in multiple consecutive polls, and if so, future surveys will bear that out.”

Wonk Room’s Igor Volsky looks at the same poll, noting, “Moreover, just 27% of Americans want to repeal the law entirely and 12% of those who have an unfavorable impression said that the “law should be given a chance to work, with Congress making necessary changes along the way.” For all of the noise we’re hearing about repealing the law and the health care lawsuits, these aren’t very impressive numbers. On the whole, most Americans believe that the law will have a neutral impact but think that the country as a whole would be better off.”

The New Republic’s Jonathan Cohn (on his new Citizen Cohn blog) also talks about polling: “Reform has generally been more popular on the Kaiser tracking poll than most of the others I’ve seen. And the increase in popularity it shows is not huge: The figure is still in the 40 to 50 percent range, where it’s been for a while. But the trend towards higher popularity is consistent with other recent polling.”

(KHN is a project of the Kaiser Family Foundation.)

Cato’s Michael Cannon looks at a new study from Massachusetts that seeks to quantify how many individuals are buying coverage once they get sick: “In the hope of preventing this sort of gaming behavior, RomneyCare requires Massachusetts residents to purchase health insurance.  Yet that ‘individual mandate’ appears not to be working, probably because the penalties for non-compliance are far less than the cost of the mandatory coverage. … ObamaCare contains similar price controls and requires nearly all Americans to purchase health insurance by 2014.  Yet ObamaCare’s penalties for non-compliance are also far less than the cost of the required coverage for most people. As goes Massachusetts, so goes the nation.”

And The Heritage Foundation’s Tina Korbe reports on the new “tanning tax,” which was implemented to help pay for the health care overhaul, and is scheduled to take effect tomorrow: “Approximately 19,000 ‘mom and pop’ small businesses might be affected by the new tax — and those businesses will likely spend an average of more than $74 an hour to comply with federal tax paperwork burdens, according to a factsheet distributed by the NFIB.”

Bloggers are back on the new health overhaul law as they dig into Supreme Court nomination hearings as well as new polls and studies.

Wonk Room’s Igor Volsky explores the difficult situation for Supreme Court nominee Elena Kagan. He writes that yesterday Republican senators questioned her at length about whether she would be a “judicial activist” and today they may well try to prod her to become one when they “ask Kagan if she believes Congress has the authority to impose an individual mandate under its authority to regulate interstate commerce.”

The Weekly Standard’s Jeffrey Anderson disagrees with a post from Ezra Klein in which Klein noted that popular support for reform has increased.  Anderson rebuts: “The number of polls has dwindled substantially — from 22 in the month before Obamacare’s passage and 19 in the month afterward, to just 4 in the past month — and hasn’t included a poll of likely voters in the past two months (compared to 7 in the month before passage).  This is important because Obamacare has consistently polled far better among Americans as a whole than among Americans who vote — and far better among those who are largely indifferent than among those who care deeply.”

Brad Wright of Wright on Health looks at a new study about states and the new Medicaid expansion, noting that “it seems that many states are worried that currently eligible, but non-enrolled individuals will suddenly decide to enroll because of the high visibility of the health reform efforts. Such individuals would not fall under the federally-funded expansion, and the states are guarding their checkbooks.”

Heritage’s Vincent Coglianese looks at comments from Sen. Orrin Hatch, R-Utah, about repealing the health overhaul bill. Hatch said, “I’ve been working to dismantle Obamacare … We have to fight this terrible law that’s a threat to liberty itself.”

In a separate post for Critical Condition, Jeffrey Anderson gives four reasons Republicans should support high-risk state insurance poolsfor people who have trouble getting insurance because of preexisting conditions. Among his reasons are the lower cost of expanding high-risk pools and that they wouldn’t “invite government control of our entire health-care system.”

Insurance broker Henry Stern of Insure Blog looks at news that the temporary early retiree reinsurance program is now accepting applications and quips, “As a side note, ObamaCare©’s certainly turning out to be quite the cash cow for those evil, greedy, heartless insurance carriers, isn’t it? Funny how that happened.”

Elsewhere, Merrill Goozner says the Supreme Court decision’s on business patents is bad news for biotech firms. Goozner writes that “the ruling could lead to more patent challenges against overly broad patents that claim ownership of genes and pathways based on their proven relationship to a disease, even when the claimant has no ‘machine or apparatus,’ i.e., a drug, that would affect the disease.”

Health Beat Blog’s Maggie Mahar disagrees with reports suggesting Dr. Donald Berwick’s nomination to head Medicare and Medicaid is in trouble. She interviews Tom Scully, former director of CMS under President George W. Bush, who says, “He’s universally regarded and a thoughtful guy who is not partisan. I think it’s more about … the health care bill. You could nominate Gandhi to be head of CMS and that would be controversial right now.”

A variety of health care news this week kept bloggers busy analyzing new regulations and wondering if Congress will change the formula that determines Medicare physician payment.

On the health reform front, for instance, John Goodman calls a new media campaign promoting the health overhaul law “propaganda” and asks, “Will it work? Will a big lie, repeated often enough, come to be accepted as truth? Will the administration be able to pull off the biggest lie of all — convincing seniors (who will bear way more than half of the cost of health reform) that they in fact will gain? Maybe. But I doubt it.”

Meanwhile, legal expert Timothy Jost writes on the Health Affairs blog about regulations announced Tuesday and immediately tagged by the Obama administration as the new  “Patients’ Bill of Rights.” Jost notes, “In fact, these regulations, in combination with other provisions of the Affordable Care Act, do finally implement many of the protections of the McCain-Edwards-Kennedy bipartisan Senate patient bill of rights legislation (and of its House equivalent), which was debated contentiously through the summer of 2001 and nearly adopted before the events of that September changed the nation’s agenda.”

Cato’s Michael Cannon looks at the new required coverage mandates and says, “All told, ObamaCare’s unlimited-coverage mandates will increase the premiums of affected consumers by an average of about 1 percent, and as much as 7 percent for some consumers.  Or maybe more: the administration acknowledges that a ‘paucity of data’ about the impact of these mandates means that there is ‘tremendous,’ ’substantial,’ and ‘considerable’ uncertainty about the mandates’ costs.”

Don McCanne of Physicians For A National Health Program examines the new grandfathering rules released by HHS for health insurance plans and concludes, “‘Keeping the insurance you have’ was only a slogan used to market the reform proposal. It wasn’t a serious long term strategy. Instead of wasting time in another political dogfight – this time over grandfathering – we should move forward with supporting policies that will work for everyone – like a single payer national health program.”

Hot Air’s Ed Morrissey says health reform amounts to “price controls” for insurance companies, and warns “If government caps prices so that insurance companies cannot cover the cost of providing its services, insurance companies will go out of business and shortages will drive up the actual cost of health care.”

And Naomi Freundlich of Health Beat Blog tackles the related topic of physician reimbursement by raising some key questions: “Will Medicare beneficiaries really face a shortage of providers and restrictions on their access to care [because of the cut in Medicare payment rates]? Or is this a scare tactic being used for political reasons?”  She concludes, “The take-away message is that while the 21% cuts doctors are now facing are an administrative nightmare, they will be fleeting. And reports of a mass exodus by doctors from Medicare are overblown. Everyone agrees that Medicare needs an overhaul—but a misguided formula from a Republican Congress in 1997 will have no part in it.”

The Washington Post’s Ezra Klein looks at new public opinion polls on the health overhaul law: “Two polls is enough to make me curious, so I headed over to Pollster.com, and it does seem we’re looking at a trend. The site’s aggregate chart of recent polls doesn’t yet show support overwhelming opposition, but it does show support rising and opposition falling. In fact, the bill’s spread looks better than at any point in the past year.” Klein posts the aggregated graph at his site.

And Brad Wright of Wright on Health hosts the most recent edition of Health Wonk Review, a biweekly roundup of health policy blogging. He focuses on new health policy research.

Bloggers react to news that Office of Management and Budget Director Peter Orszag will announce his resignation soon.  Other commentators look at President Barack Obama’s speech on new rules governing health insurers.

The Atlantic’s Joshua Green writes, “Orszag will be remembered chiefly for two things: his key role in designing the stimulus and the new health care law and his odd status as the Justin Bieber of the executive branch, the wonk whose personal life was splashed all over the tabloids. Orszag’s true legacy won’t be established for years, of course, not until his ideas about how to “bend the cost curve” of health care expenditures–many of which were crammed into the new law–have been tested in the real world.”

Hot Air’s Ed Morrissey isn’t pleased with Orszag’s performance: “This closes one of the worst budgeting debacles in American history.  Orszag’s tenure produced the worst budget deficit of our time, the FY2010 budget with $1.3 trillion in red ink.  The budget process has gotten so bad that Democrats didn’t even bother to produce one for FY2011, the first time in decades that a House has failed to even propose a budget.” Morrissey isn’t optimistic about next year’s budget either, saying: “However, let’s not kid ourselves that Orszag’s departure will make a difference in budget problems, although it may at least bring a little more competence to the process.  The real problems with the budget come from the Democratic agenda of big-spending, big-government programs at the expense of taxpayers who will have to eventually foot the bill.  In order to fix that, we don’t need to replace Peter Orszag. We need to replace Nancy Pelosi, Harry Reid, and Barack Obama.”

Matthew Yglesias points out “it’s worth observing that this is a high-turnover job. Presidents Clinton and Bush managed to go through eight OMB Directors, one of whom only made it thirteen months.”

Newsweek’s Ezra Klein reflects on Orszag’s legacy: “On a policy level, Orszag was wildly, even improbably, successful. A bill was passed. The Congressional Budget Office, now under the watchful gaze of Doug Elmendorf, certified it as deficit-reducing. Orszag’s two top priorities—an independent commission empowered to aggressively reform Medicare and a tax on high-value insurance plans—survived the process. But on a political level, he lost the argument: polls showed that few Americans thought the legislation would reduce the deficit.”

The Washington Post’s Ed O’Keefe lists seven names he’s heard to replace Orszag, including former Clinton advisers Gene Sperling and Laura Tyson.

And Time’s Michael Scherer suggests another group of candidates to draw from: “But there is another, considerably less likely, direction the President could go. In the second half of his first term, President Obama will find that his biggest obstacle when it comes to the budget is Congress, which will be challenged to take on the radioactive political issues (social security, tax increases) that come with dealing with a government that is running deficits that the White House believes are unsustainable over the medium and long terms.

On Obama’s speech, Cato’s Michael Cannon writes, “In the upside-down world of ObamaCare, politicians can force health-insurance companies to spend more yet blame them when premiums increase,” and says the new rules amount to “price controls.”

Wonk Room’s Igor Volsky looks at the political strategy behind the remarks: “Obama is requiring insurers to accept new regulations that will increase their costs while warning them against raising premiums. The administration is hoping that today’s public scolding will shift some of the blame for the coming premium increases to insurers (where some of it rightly belongs) and encourage issuers to squeeze the providers, which is good for the whole system because it brings down costs. But I’m not sure what happens if they respond by simply passing on the increases to consumers. Unfortunately, the health care law does not give the federal government enough authority to actually prevent insurers from jacking up prices.”

Heritage’s Kathryn Nix continues her “Side Effects of Obamacare” series by writing about the Department of Health and Human Services’ missed deadlines for health reform implementation. Nix says, “No one will die because of these missed deadlines, but the trend is worrisome.  If HHS can’t get its act together for the simple, preliminary stuff, how will it do when it has to address complicated and weighty manners under deadline?”

And John Goodman links to a clever public service announcement for Father’s Day by the Agency for Healthcare Research and Quality.

The new regulations on which insurance plans would be considered “grandfathered” under the new health law has prompted diverse responses from bloggers. In addition, there’s a posting about the difficulty of using research to tailor Medicare treatments and studies on health sector productivity.

Health Affairs’ Timothy Jost, a legal scholar, takes a detailed look at the proposed regulations:

The regulations begin with the statutory principle that as long as an enrollee remains with a plan in which the enrollee was a member on March 23, 2010, the terms of that plan do not need to change to accommodate requirements of PPACA that do not apply to grandfathered plans.  Insurers or employers may add new benefits to health plans, change the terms of a plan to comply with state or federal requirements (including PPACA requirements that apply to grandfathered plans), voluntarily adopt consumer protections that they are not required to adopt, make modest adjustments in benefits or cost sharing, and — most importantly – raise premiums, without losing grandfathered status.  

Grandfathered plans may also add new family members or employees, and may be renewed.  Indeed, a grandfathered group plan could add new employees as existing employees left the plan, ending up eventually with no members who were enrollees as of the effective date, but still remain grandfathered.  The regulations, however, bar certain subterfuges that employers may be tempted to engage in to maintain grandfathered status.

Heritage’s Kathyrn Nix continues her “side effects of Obamacare” series with a look at the new regulations. Nix says, “The new regs will make it tough for a lot of those folks to hold onto their current plans, even though the Department of Health and Human Services continues to claim otherwise.  That because HHS is ready to revoke the ‘grandfathered’ status of existing plans whenever an employer makes what it deems to be a ’significant’ change in terms of coverage.  And the HHS regs show that common adjustments such as an increase in deductibles or co-pays or a reduction in benefits would be considered ’significant.’”

The Apothecary’s Avik Roy says “The government also provided a low estimate and a high estimate; at the high end, the report projects that 80% of small employers, and 69% of all plans, would lose their status by 2013.” Roy also points to another blog that suggests unions might be exempt from the grandfathering rules until their next contract negotiations.

Wonk Room’s Igor Volsky has a different take: “The new grandfathered rules wouldn’t prevent plans from changing. They would only discourage employers and insurers from stiffing beneficiaries with very higher costs and insufficient benefits or increasing costs and reducing benefits too quickly. To argue that grandfathering would force people out of their plans assumes that market forces aren’t already pushing people out of existing coverage or leading to significant cost increases and benefit reductions.”

And Dawn Horner of Georgetown University’s Say Ahhh! writes: “With the new rules in place, however, these millions of children and families will be assured that they receive the same protections under health reform as others newly signing up for coverage. Now that’s something to tell our grandchildren about!”

Elsewhere, Merrill Goozner looks at a Wall Street Journal report about research showing that Medicare could save up to $500,000 per year by changing beneficiaries’ drug treatment for macular degeneration. However, Goozner notes, “CMS will still cover [the more expensive drug] Lucentis after the ‘definitive’ trial results are published because it is prohibited by law from using comparative effectiveness research or cost-benefit analysis to make coverage decisions.”

The Association of Health Care Journalists’ Andrew Van Dam points to a new study from the Agency for Healthcare Research and Quality that he says is full of colorful graphs and attempts “to figure out where to put the blame for those in-patient cost jumps that occurred between 2001 and 2007 and thus divided the increases into four categories: Medicare, Medicaid, private insurance and payments from those without insurance.”

The Incidental Economist’s Austin Frakt looks at a new paper from economist David Cutler that found productivity growth in health care, education and other social services was negative betweeen 1995-2005.  Frakt reacts: “This is not a good sign. To have any hope of obtaining a reasonable return on our massive health care (and other social program) spending, we need productivity in the sector to grow, not shrink. If the 1995-2005 trend continues, we risk both the health of our economy and populace.”

And Greg Scandlen points to a new EBRI report on consumer-driven health plans that found enrollees had no statistical difference in self-reported health status from traditional plan enrollees.