Archives: 03/2010

The States Respond to ObamaCare

Today Politico Arena asks:

Do the 13 state attorneys general have a case against ObamaCare?

My response:

Absolutely.  It will be an uphill battle, because modern “constitutional law” is so far removed from the Constitution itself, but a win is not impossible.  There are three main arguments.  (1) Under the Constitution, as properly interpreted, Congress has no power to enact such a plan.  (2) The plan conscripts state governments into carrying out and paying for federal mandates.  And (3) the individual mandate amounts to an unlawful capitation or direct tax.

The first argument will almost certainly lose, because under post-1937 readings of the Commerce Clause, Congress can regulate anything that “affects” interstate commerce, which at some level is everything.  Under modern “constitutional law,” that’s what we’ve come to – under the pressure of FDR’s infamous Court-packing scheme, a Constitution authorizing only limited government has been turned into one that authorizes effectively unlimited government.

The second argument has promise: In New York v. United States (1992) and Printz v. United States (1997) the Court held that the federal government could not dragoon state legislatures or executives into carrying out and paying for federal programs.  Yet that is just what’s at issue here with the “exchanges” that states are required to establish.  To be sure, the states can “opt out,” but as yesterday’s suit argues, with so many people already on the Medicaid rolls, that option is effectively foreclosed.  Indeed, the new bill will force millions more on to the Medicaid rolls, which is one of the main reasons these states, already strapped by Medicaid expenditures, have brought suit.  Florida alone estimates that the added costs will grow from $149 billion in 2014 to $938 billion in 2017 to over one trillion dollars by 2019.

The third argument holds the most promise.  ObamaCare compels individuals to buy insurance from a private company (why stop there? why not cars from GM?), failing which they will be required to pay a tax (fine?).  This is an unprecedented expansion of Congress’s power “to regulate interstate commerce.”  But even if it were to pass the modern Commerce Clause test, the tax should fail because it’s not apportioned among the states in accordance with their population.

Let’s be clear, however.  This suit was brought because the 13 states (and I predict more will follow) see the handwriting on the wall.  ObamaCare will mark the effective end of federalism as we’ve known it, will bankrupt the states, and, because of that – here’s the clincher – is but a  stalking horse for federal single-payer health care in America.  This suit will keep the issue alive until November, when the American people will have a chance to weigh in.

If You Think Obamacare Is Bad…

Today the Senate Judiciary Committee will hold a hearing for the nomination of 39-year-old Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. Liu’s confirmation would compromise the judiciary’s check on legislative overreach and push the courts not only to ratify such constitutional abominations as the individual health insurance mandate but to establish socialized health care as a legal mandate itself.

Yesterday Cato legal associate Evan Turgeon and I published an op-ed on the Liu nomination in the Daily Caller.  Here are some highlights:

While Liu purports to develop an original approach [to constitutional interpretation], his nuanced methodology fails to generate a novel result. He may “suggest a more cautious and discriminating judicial role than one that is guided by a comprehensive moral theory,” but it is impossible to imagine a case in which Liu would reach a different outcome than a judge employing the (disfavored) “Living Constitution” analysis. And this is not surprising, given that the stated purpose of Liu’s scholarship is to establish legal justifications for “rights” foreign to the Enlightenment tradition on which our republic rests — those that make demands on others (unlike, say, the right to free speech, which makes no demands on anyone).

…Even more dangerously, Liu’s approach flouts the Constitution’s very purpose: protecting individual rights by limiting government power. As the branch responsible for interpreting the Constitution, the judiciary must defend citizens’ inalienable rights, such as the rights to life, liberty, and property, from infringement by government actors. Liu’s approach turns that role on its head. He views the judiciary not as a safeguard against state tyranny, but as a rubber stamp for any legislation that reflects popular opinion. And it’s a one-way ratchet: Liu would likely rule that the next Congress could not repeal Obamacare because it is precisely the kind of “landmark legislation” — to borrow progressive Yale law professor Bruce Ackerman’s phrase — that cannot be undone.

As a member of the ACLU and chairman of the American Constitution Society, it is no secret what kind of rights Liu would find justified by “collective values.” Liu lists “education, shelter, subsistence, health care and the like, or to the money these things cost” as examples of affirmative rights he would seek to establish in law — to constitutionalize beyond a future legislature’s reach.

Read the whole thing.  Also read Ed Whelan’s series of posts on Liu at NRO’s Bench Memos blog.  (I don’t agree with Ed on everything, but he’s doing a workmanlike job on this important nomination, as he did on Harold Koh.)

And if all the above isn’t enough, here’s Liu in the 2006 Yale Law Journal:

On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.

As Evan and I wrote:

We don’t expect a president of either party to appoint judges who adhere 100 percent to the Cato line — though that would be nice — so we do not object to every judicial nominee whose philosophy differs from ours.

Goodwin Liu’s nomination, however, is different. By far the most extreme of Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth by radically expanding — and constitutionalizing — welfare “rights.”

The Senate needs to understand who it’s dealing with here.

A Post-Health Care Realignment?

From Franklin Delano Roosevelt’s New Deal to Joe Biden’s Big F-ing Deal, progressives have led a consistent and largely successful campaign to expand the size and scope of the federal government. Now, Matt Yglesias suggests, it’s time to take a victory lap and call it a day:

For the past 65-70 years—and especially for the past 30 years since the end of the civil rights argument—American politics has been dominated by controversy over the size and scope of the welfare state. Today, that argument is largely over with liberals having largely won. […] The crux of the matter is that progressive efforts to expand the size of the welfare state are basically done. There are big items still on the progressive agenda. But they don’t really involve substantial new expenditures. Instead, you’re looking at carbon pricing, financial regulatory reform, and immigration reform as the medium-term agenda. Most broadly, questions about how to boost growth, how to deliver public services effectively, and about the appropriate balance of social investment between children and the elderly will take center stage. This will probably lead to some realigning of political coalitions. Liberal proponents of reduced trade barriers and increased immigration flows will likely feel emboldened about pushing that agenda, since the policy environment is getting substantially more redistributive and does much more to mitigate risk. Advocates of things like more and better preschooling are going to find themselves competing for funds primarily with the claims made by seniors.

I’d like to believe this is true, though I can’t say I’m persuaded. It seems at least as likely that, consistent with the historical pattern, the new status quo will simply be redefined as the “center,” and proposals to further augment the welfare state will move from the fringe to the mainstream of opinion on the left.

That said, it’s hardly unheard of for a political victory to yield the kind of medium-term realignment Yglesias is talking about. The end of the Cold War destabilized the Reagan-era conservative coalition by essentially taking off the table a central—and in some cases the only—point of agreement among diverse interest groups. Less dramatically, the passage of welfare reform in the 90s substantially reduced the political salience of welfare policy. The experience of countries like Canada and the United Kingdom, moreover, suggests that if Obamacare isn’t substantially rolled back fairly soon, it’s likely to become a political “given” that both parties take for granted. Libertarians, of course, have long lamented this political dynamic: Government programs create constituencies, and become extraordinarily difficult to cut or eliminate, even if they were highly controversial at their inceptions.

We don’t have to be happy about this pattern, but it is worth thinking about how it might alter the political landscape a few years down the line.  One possibility, as I suggest above, is that it will just shift the mainstream of political discourse to the left. But as libertarians have also long been at pains to point out, the left-right model of politics, with its roots in the seating protocols of the 18th century French assembly, conceals the multidimensional complexity of politics. There’s no intrinsic commonality between, say, “left” positions on taxation, foreign policy, and reproductive rights—the label here doesn’t reflect an underlying ideological coherence so much as the contingent requirements of assembling a viable political coalition at a particular time and place.  If an issue that many members of one coalition considered especially morally urgent is, practically speaking, taken off the table, the shape of the coalitions going forward depends largely on the issues that rise to salience. Libertarians are perhaps especially conscious of this precisely because we tend to take turns being more disgusted with one or another party—usually whichever holds power at a given moment.

The $64,000 question, of course, is what comes next. As 9/11 and the War on Terror reminded us, the central political issues of an era are often dictated by fundamentally unpredictable events. But some of the obvious current candidates are notable for the way they cut across the current partisan divide. In my own wheelhouse—privacy and surveillance issues—Republicans have lately been univocal in their support of expanded powers for the intelligence community, with plenty of help from hawkish Democrats. Given their fondness for invoking the specter of soviet totalitarian states, I’ve hoped that the folks mobilizing under the banner of the Tea Party might begin pushing back on the burgeoning surveillance state. Thus far I’ve hoped in vain, but if that coalition outlasts our current disputes, one can imagine it becoming an issue for them in 2011 as parts of the Patriot Act once again come up for reauthorization, or in 2012 when the FISA Amendments Act is due to sunset. In the past, the same issues have made strange bedfellows of the ACLU and the ACU, of Ron Paul Republicans and FireDogLake Democrats.  Obama has pledged to take up comprehensive immigration reform during his term, and there too significant constituencies within each party fall on opposite sides of the issue.

Further out than that it’s hard to predict. But more generally, the possibility that I find interesting is that—against a background of technologies that have radically reduced the barriers to rapid, fluid, and distributed group formation and mobilization—the protracted health care fight, the economic crisis, and the explosion of federal spending have created an array of potent political communities outside the party-centered coalitions. They’ve already shown they’re capable of surprising alliances—think Jane Hamsher and Grover Norquist.  Suppose Yglesias is at least this far correct: The next set of political battles are likely to be fought along a different value dimension than was health care reform. Precisely because these groups formed outside the party-centered coalitions, and assuming they outlast the controversies that catalyzed their creation, it’s hard to predict which way they’ll move on tomorrow’s controversies. It’s entirely possible that there are latent and dispersed constituencies for policy change outside the bipartisan mainstream who have now, crucially, been connected: Any overlap on orthogonal value dimensions within or between the new groups won’t necessarily be evident until the relevant values are triggered by a high-visibility policy debate.  Still, it’s reason to expect that the next decade of American politics may be even more turbulent and surprising than the last one.

Federal Health Spending

When describing spending growth in federal programs, I often need to use words like “soaring” and “explosive.” But growth in federal health spending is almost beyond superlatives to describe it, and it will increase even faster as a result of President Obama’s new health legislation.

This chart shows total real spending by the Department of Health and Human Services, which includes the Medicare and Medicaid programs. Spending has increased almost nine-fold since 1970, and that’s after adjusting for inflation. And note how the slope of the bars increased around 1990. Health spending is truly skyrocketing and Obama has just put us into orbit.

(Data from the federal budget, historical tables, table 4.1, as deflated)

When National Standardizers Attack!

There’s just no pleasing some people who want to impose uniform curriculum standards on every public school in America.  Yesterday, the Wall Street Journal ran an editorial that wasn’t even critical of national standards (save arguing that there are better reforms), yet Michael Petrilli of the standards-philic Thomas B. Fordham Institute still attacked.

What exactly did the WSJ have the temerity to write? That while there is “nothing wrong…with setting benchmarks for what the average child should know by a certain grade,” imposing national standards is not nearly as proven a reform as “school choice  and accountability.”

Petrilli was having none of this, declaring that choice is fine, but that people need national standards, set by government, to be able to make better choices.

His evidence? He offered almost none, and what he did cite was poppycock.

That curriculum standards set at any level of government will produce accurate and useful information for parents flies in the face of historical and political reality. Indeed, Fordham itself has furnished abundant evidence that standards-and-testing regimes, first under state control and then under No Child Left Behind, have repeatedly produced, essentially, lies about academic “success.”

National standards, on the other hand? In his response to the Journal, Petrilli simply proclaimed that they would provide “trustworthy information.”

Not only is there no evidence to support this claim, there are good reasons to conclude the opposite. The people employed by the public schools are the most motivated to be involved in education politics and the most easily organized, giving them outsized power. Couple that with their best interest being served by being held to low or no standards, and it is clear why standards and accountability mechanisms set by political, “democratic” means – as national standards would be – have almost always been rendered hollow.

This inconvenient political reality is one reason that there is no convincing research showing that national standards drive superior educational outcomes. But don’t expect a discussion of the national-standards evidence from the Fordham folks. They seem determined to avoid it. Except, that is, for citing one, isolated factoid.

Petrilli started his attack on the Journal by implying that the paper had actually acknowledged this homerun factoid: that the ”countries that outperform us on international assessments all have national standards in place.”

Arrgh!

As I and many others have repeatedly pointed out – and as is obvious when you know the whole truth – this “evidence” is meaningless. Yes, most of the countries that beat us have national standards, but so do most of the countries that do worse! There is simply no meaningful correlation between having national standards and results on international exams.

Unfortunately, Petrilli didn’t just use the factoid to sell his national standards snake oil. He also invoked it to suggest that the WSJ editorialists had addled brains, that they had illogically acknowledged the factoid yet still soft-peddled national standards. But the Journal writers hadn’t embraced the factoid half-truth. They wrote the whole truth:

It’s true that some countries with uniform standards (Singapore, Japan) outperform the U.S., though other countries with such standards (Sweden, Israel) do worse. On the 2007 eighth-grade TIMSS test, an international math exam, all eight countries that scored higher than the U.S. had national standards. But so did 33 of the 39 countries that scored lower.

Unfortunately, this sort of evidence avoidance and distortion has been par for Fordham’s national-standards course. Indeed, in reviewing my new report that analyses the empirical evidence, Fordham’s Stafford Palmieri suggested that I simply failed to find proof that national standards work. She also concluded that that was no reason to avoid such standards. But what I actually found was that while the research is limited, what exists gives good reason to believe that national standards do not work. It’s a big difference.

Fordham’s refusal to systematically deal with the evidence is disturbing since the Institute is arguably the leading exponent of this  ”reform.” But whatever Fordham does, the nation must not ignore reality. If Fordham gets what it wants it will be imposed on everyone, and then it will be too late to “discover” that it was the wrong thing to do.

Great Moments in International Bureaucracy

Greece’s fiscal disarray is a visible manifestation of Europe’s future, but the most appropriate symbol of what’s wrong with the continent comes from Brussels, where there are three “presidents” fighting over the right to represent Europe at international gatherings. The contestants include the President of the European Commission, the President of the European Council, and the European Union President (which rotates every six months among different national leaders).

While these three personalities fight over who gets to sit where and shake hands first, the real problem is that they all agree that government should be bigger, taxes should be higher, and power should be more centralized as part of the effort to create a superstate in Brussels. Inside this gilded cage, insulated from actual voters, Europe’s technocratic elite is content to enjoy a parasitical existence while the welfare states of member nations slowly but surely collapse and lead to social chaos. Here’s an excerpt from the UK-based Express about the fight between the the philosophical descendants of Louis XVI. Or would Nero be a better analogy? How about the Three Stooges? Well, you get the idea:

Promises by EU leaders that the Lisbon Treaty would herald a new era of clarity have been shattered after attempts to settle a major internal power feud resulted in a typical Brussels fudge. Bureaucrats have decided to send not just one president and his entourage to global summits but a tax-draining three. Only four months after the fanfare of Herman Van Rompuy’s appointment as European Council president, his most jealous and powerful rival in Brussels has persuaded allies to allow him to muscle in too. José Manuel Barroso, president of the European Commission, has succeeded in his demands that he should also go to diplomatic summits, such as the G20, after insisting only he has the expertise to deal with specific policy matters. At certain summits there will even be a third representative – the leader of the country holding the EU’s rotating presidency. This seems to justify criticism that the Lisbon Treaty would add to the EU’s murky waters and not be a move towards transparency. …Since the Lisbon Treaty came into force at the end of last year, arguments have raged in Brussels over which department does what. Mr Van Rompuy, the former Belgian prime minister dismissed last month by Ukip MEP Nigel Farage as a “damp rag” and a “low-grade bank clerk”, is the permanent president of the European Council.

We Passed ObamaCare, but Will It Improve Health?

The answer may not be so obvious.  I’ll explore that issue at a Cato Institute policy forum this Thursday with two leading authorities on the subject: John Ayanian of Harvard Medical School and David Meltzer of the University of Chicago.

The forum is titled, “Would Universal Coverage Improve Health?” and will be held at 4pm this Thursday at the Cato Institute.  Click the link for details.