Tag: aca

On ObamaCare, David Frum Just Doesn’t Get It

David Frum knows that ObamaCare can’t be repealed.  But don’t worry, he also knows how to make it palatable to Republicans:

  1. Move up the start date of ObamaCare’s state waiver program from 2017 to 2014.  As I explain here, that program will only produce alternatives to ObamaCare that are equally or more anti-market, such as a single-payer system.  Frum wants that to happen sooner.
  2. Raise taxes, on everybody.  I swear I am not making that up.
  3. Replace ObamaCare’s individual mandate with an equally coercive tax credit that accomplishes the same thing, but which the courts would probably uphold.  Bra-vo.  Frum implies it is necessary to “work around” the fact that Republicans are not “entirely rational” when it comes to the individual mandate.  (True, but they’re getting more rational all the time.)
  4. Republicans should embrace government rationing of health care.  Frum counsels Republicans to “unleash the cost controllers” and become the “green eyeshade party willing to do the disagreeable work of squeezing waste from the system.”  How?  Well, he doesn’t call for Medicare vouchers, under which enrollees would ration their own care.  In fact, he has thrown cold water on that idea.  But the only alternative is to have the government ration care.  And Frum makes no distinctions between the elderly and non-elderly, which leads me to believe he wants Republicans to ration care to the under-65 crowd too.  Slap that on a bumper sticker!

In sum, Frum’s GOP-palatable alternative to ObamaCare is … ObamaCare.  But maybe more coercive.  And implemented sooner.  With higher taxes.  And less vulnerable to legal challenges.  And with Republicans playing the bad guy.

Frum laments that Republicans mistakenly threw away the opportunity to work with Democrats to implement these brilliant ideas in 2009 and 2010.  But Republicans did so because these brilliant ideas hurt people.  They were wrapped into a bill called ObamaCare, and Republicans rejected it.  They were right to do so.  And they are right that ObamaCare can’t be fixed.

(Related: Ramesh Ponnuru previously took down Ross Douthat’s ideas for fixing ObamaCare.)

(Also related: CNN has signed Frum to provide conservative commentary during the 2012 election.)

Obamacare Legal News Gone Wild

Developments in the Obamacare lawsuits are coming at us so quickly that it’s hard to keep up.  After a month and a half of speculation on what the administration would do after it lost in the 26-state/NFIB lawsuit (Florida v. U.S. Dept. of Health & Human Services), in the last week the D.C. Circuit heard argument in yet another case on appeal, the government decided not to seek en banc review in the Eleventh Circuit, yesterday we went from zero to three cert. petitions in that case, and the government filed a reply in the Thomas More (Sixth Circuit) case.  Here’s a breakdown:

1. D.C. Circuit Argument

This past Friday, the D.C. Circuit heard the appeal of Seven-Sky v. Holder (in which Cato filed this brief).  There wasn’t much media coverage, in part because the reporting came in on a Friday afternoon but more because the appellate developments after the Eleventh Circuit created a split from the earlier pro-government Sixth Circuit ruling are somewhat anticlimactic – because the action has moved to the Supreme Court.  I attended the hearing and can report a few key points:

(a) The government still has not managed to come up with an example of something it cannot do under its reading of the Commerce Clause.  This is shocking.  Solicitor General Verrilli (who did not argue here), a word of unsolicited advice before Justice Scalia asks you the same question: come up with a couple of outlandish things and move on.  Unless, you know, you think the government really can do anything it wants if a congressional majority exists for it.

(b) Judge Bret Kavanaugh, Bush II appointee and rising star in the conservative judicial establishment, had some serious concerns regarding the Anti-Injunction Act (the jurisdictional issue on which the Fourth Circuit based its decision to dismiss the Liberty University case).  Beth Brinkmann, arguing for the government and after floundering on the Commerce Clause (see above), seemed to have done a great job in putting Kavanaugh’s mind at ease – or at least getting him over the jurisdictional hump.

(c) Judge Laurence Silberman, Reagan appointee and author of many significant opinions over the years, has a really wide interpretation of government power under Wickard v. Filburn, the 1942 wheat-farming case.  I’m not sure that puts his vote in danger – he was also the one who most went after the government – but it does raise an eyebrow.

(d) Overall, I cautiously predict a 2-1 ruling in favor of the plaintiffs, but we won’t know till later this fall.  For a more detailed analysis of the hearing, see Randy Barnett’s post at the Volokh Conspiracy.

2. No En Banc Review in the Eleventh Circuit

On Monday, the government allowed the deadline for seeking review of the Eleventh Circuit panel ruling by the full court to slip.  Commentators, including myself, had speculated that it might file for en banc review in an attempt to push the inevitable Supreme Court ruling past the 2012 election.  That didn’t happen, and here was my press statement:

En banc rehearing would have been legally futile and politically damaging, so the government made the correct decision in not seeking it. We can now expect the solicitor general to ask the Supreme Court to review the Eleventh Circuit’s decision to strike down the individual mandate while leaving the rest of Obamacare standing. The certainty that such review will provide to a nation battered by this among so many other pieces of economically harmful administration policies cannot come soon enough.

The government’s inactivity here, as it were, provoked a flurry of coverage.  I agree with the analysis that Peter Suderman put up at Reason

3. NFIB Files Cert. Petition

Early yesterday (Wednesday) morning, the National Federation of Independent Business and two individuals asked the Supreme Court to review the one issue on which they lost before the Eleventh Circuit: severability.  That is, despite the government’s concession that at least the community-rating and guaranteed-issue provisions are inextricably tied to the individual mandate, and the obvious practical observation that none of the legislation would’ve passed without the mandate, the Eeleventh Circuit reversed Judge Vinson’s ruling on this point and only struck down the mandate.  The petition also makes the point that the Eleventh Circuit case presents the best Supreme Court “vehicle” among all the lawsuits because it most cleanly presents the relevant issues and doesn’t face lingering concerns over standing.   It’s a strong and aggressively worded brief which makes for a good read.  Here was my press statement:

The NFIB’s cert petition forces the Supreme Court to grapple not simply with the individual mandate’s constitutional defects but with the fatal flaws those defects expose in the overall legislation. The regulatory burden and economic uncertainty – let alone direct financial cost – that Obamacare imposes on individuals, businesses, states, and the nation as a whole are part and parcel of a noxious scheme centered on the individual mandate. The Court should grant this petition and thus begin putting an end to the government’s doomed – and unconstitutional – attempt to control our lives.

Randy Barnett, who’s now part of the NFIB legal team (which is led by veteran appellate litigator Mike Carvin), has this useful post about the petition’s treatment of the Anti-Injunction Act.

4. 26 States File Cert. Petition

On the heels of the NFIB filing, the 26 states in the Florida-led lawsuit filed their own cert. petition yesterday.  “Time is of the essence,” lead counsel (and former solicitor general) Paul Clement argues. “States need to know whether they must adapt their policies to deal with the brave new world ushered in by the ACA.”  The petition asks the Court to review three questions:

(a) Does the threat to withhold all Medicaid funding if states don’t agree to Obamacare’s onerous new conditions on that program constitute impermissible coercion by the federal government? [The Eleventh Circuit said no.]

(b) May Congress treat states no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage?  [This is a new formulation of a claim that hasn’t gotten much attention, and focuses on the somewhat idiosyncratic 1985 Supreme Court decision in Garcia v. San Antonio Metropolitan Transit Authority.]

(c) Does the individual mandate exceed federal power and, if so, can it be severed from the rest of the law?

I’ve only skimmed this petition, but it too is a hard-hitting and elegant presentation of serious issues.

5. Solicitor General Files Cert. Petition

Around lunchtime yesterday, the government filed its own cert. petition.  (The parties were all clearly playing a high-stakes game of legal chicken; once the govenment declined to pursue en banc review, the NFIB incorporated that fact into a petition that it had clearly been considering filing preemptively, its co-plaintiff states soon followed, and the government’s hand was forced to throw its petition – which had obviously also been in the final stages – into the filing cascade. Note that yesterday was not any sort of deadline for seeking Supreme Court review!) 

The new solicitor general, Donald Verrilli, of course asks the Court to address whether the individual mandate is constitutional, but also, curiously, whether the challenges are barred by the Anti-Injunction Act.  On this second point, the government argues that the AIA does not apply but asks the Court to appoint an amicus to argue that it does, effectively to defend the Fourth Circuit’s position.  This is unusual.  The SG is essentially saying that he would prefer to win on the merits but will accept a technical victory so long as he doesn’t have to argue for it.  (This accords with my prediction that the Court will either rule for the plaintiffs or find a procedural way of avoiding the merits while allowing the individual mandate to stand.)

6. Government Responds to Thomas More’s Cert. Petition

There was one actual deadline yesterday, and the government met it: It filed a response (not labeled “opposition” as is typically the case) to the cert petition in Thomas More Law Center v. Obama, the case coming out of the Sixth Circuit.  As expected given its earlier filing, the government asked the Court to hold this petition pending resolution of Florida v. HHS.  There’s really nothing to this filing beyond expressing that position.

Conclusion

The day we’ve all been awaiting since President Obama signed his health care law in March 2010 – the Supreme Court’s ruling – is nigh.  Normally the parties on the other side of cert. petitions have 30 days to respond, after which the Court considers the filings, issues a cert. grant or denial (here a grant of some kind), and sets the case for argument a few months in the future to allow time for briefing on the merits.  In Florida v. HHS, however, all the parties – the government, the states, the NFIB/individual plaintiffs – are requesting cert., so I’m not sure what value they or the Court would get from responsive filings (which would be due Oct.27).  Regardless of that wrinkle, the Court is likely to grant cert. sometime in November – or in any case by the end of the year – and set argument for March or April. 

So we’re on track for a decision that glorious last week of June when the Court releases its most pressing opinions and gets the heck out of Dodge.

Constitutional Structure Matters: A Response to Larry Tribe

SCOTUSblog’s symposium on the constitutionality of Obamacare – to which I contributed, as did Bob Levy – provides a glimpse at the astonishing views of the law’s supporters.  It particularly shows how divorced the legal academy’s leading lights are not only from basic constitutional text and structure, but from jurisprudential reality.

Most prominently, in responding to the Eleventh Circuit’s decision striking down the individual mandate (and to Richard Epstein’s symposium essay), storied Harvard professor Laurence H. Tribe criticizes the court for “reflecting what appears to be a widely held public sentiment” that Congress cannot “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”  That sentiment is a problem, according to Tribe, because it elevates form over substance.  That is, just as it has done with Social Security, Congress could (under modern jurisprudence, which is wrong as a matter of first principle but not at issue in the Obamacare lawsuits) levy another income or payroll tax and use that revenue to provide health insurance and/or care for otherwise uninsured individuals:

Put otherwise, Congress may undoubtedly use its taxing power to mandate that individuals pay for coverage supplied by private insurers, so long as it acts in two steps: step 1, impose a tax, and step 2, use the proceeds of the tax to fund privately provided health insurance for each individual. If Congress may accomplish this objective in two steps, why not in one? No federalism or liberty-related concern, whether the dignity of the states or that of individuals, is served by denying Congress that authority.

Tribe’s reasoning echoes Justice Breyer’s reason (in dissent) for rejecting the notion that the Takings Clause applies when the Government orders an individual to pay another individual, in the case of Eastern Enterprises v. Apfel:

The dearth of Takings Clause author­ity is not surprising, for application of the Takings Clause here bristles with conceptual difficul­ties. If the Clause applies when the government simply orders A to pay B, why does it not apply when the government simply orders A to pay the government, i.e., when it assesses a tax?

But there is a very good reason why courts should deny Congress the power to compel individuals to purchase products from private parties or, for that matter, the power to order A to pay B – even if a similar result could be accomplished through the taxing power: political accountability. As Georgetown law professor (and Cato senior fellow) Randy Barnett explains:

Like mandates on states, economic mandates undermine political accountability, though in a different way. The public is acutely aware of tax increases. Rather than incur the political cost of imposing a general tax on the public using its tax powers, economic mandates allow Congress and the President to escape accountability for tax increases by compelling citizens to make payments directly to private companies.

Indeed, scholars as diverse as Richard Epstein and Cass Sunstein have argued that the Takings Clause requires just compensation precisely to preserve political accountability in the provision of public goods. As Justice Scalia explained in the case of Pennell v. City of San Jose:

The politically attractive feature of regulation is not that it permits wealth transfers to be achieved that could not be achieved otherwise; but rather that it permits them to be achieved “off budget,” with relative invisibility and thus relative immunity from normal democratic processes.

Under modern jurisprudence, essentially the only check on Congress’s taxing and spending powers under the General Welfare Clause (as opposed to its regulatory power under the Commerce Clause) is political.  So yes, Professor Tribe, there is a constitutional reason for depriving Congress of the power to do in one step what it could surely do in two other steps: to maintain that remaining constitutional qua political check. Indeed, the very reason why Congress adopted the individual mandate was because it lacked the political will – it feared political accountability too much – to impose single-payer universal coverage, where the government would first impose a tax on everyone and then provide health care (at this point it’s no longer “insurance”) to everyone.

To accomplish the same result without having to impose significant new taxes – as President Obama famously promised there would not be – Congress tried to evade political accountability through the individual-mandate mechanism. That’s why the Eleventh Circuit wisely declined to grant Congress the power to move a significant part of its spending “off budget” and “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

Cato legal associate Chaim Gordon co-authored this blogpost.

What’s Next in the Obamacare Litigation?

My colleagues and I have covered the substance of the Eleventh Circuit ruling that two weeks ago struck down the individual mandate, but where do we go from here?  Why hasn’t the Supreme Court yet resolved the conflict between that ruling and the Sixth Circuit’s from earlier in the summer?  When will it do so?  A few points:

  1. The government is now likely to seek en banc review, meaning that they want the entire 10-judge court to review the 3-judge panel’s ruling.  It’s extremely unlikely that the Eleventh Circuit would grant such a motion because the panel is already 2-1 against and the members of the court not on the panel are a 4-3 Republican-appointed majority.  You need a majority (6 of 10) to get en banc review, which means the dissenting Judge Stanley Marcus from the panel, plus the three other Democratic appointees, plus two others.  Not gonna happen.  Thus, a government motion for en banc rehearing would be a purely political ploy to push the eventual Supreme Court decision past the election – no legal reason to do it. The release of the decision not to grant en banc review (which doesn’t require a written opinion) could be delayed, however, by the writing of a dissent from that denial.
  2. The earliest the Supreme Court could grant cert – on the existing petition out of the Sixth Circuit – is the moment after this blogpost goes live.  (Note that Cato adjunct scholar Tim Sandefur filed an amicus brief supporting that petition for the Pacific Legal Foundation, which brief he describes here.)  More realistically, it would be the week before the term opens for argument in October, right after the so-called long conference, when the justices review and rule on all the petitions that have come in over the summer. But they’ll likely wait to get the Eleventh Circuit case because they’d probably rather hear from the 26 states (and their counsel, former solicitor general Paul Clement) than any other plaintiffs. Here’s where it gets interesting: Assuming the government asks for en banc review, the plaintiffs could still file their own cert petition because they lost on severability and the Medicaid-coercion issue. Stay tuned.
  3. I still think this will get to the Court this term one way or another, with argument in the spring and a decision the last week of June.
  4. No stay of the Eleventh Circuit’s ruling is needed because the individual mandate doesn’t go into effect until 2014 and that’s the only provision that’s been struck down. So we don’t need to go into the type of analysis we did after Judge Vinson’s decision about what the federal government is authorized to do to keep implementing the legislation, in the 26 states or generally.

For more analysis, largely based on the above, see Jennifer Rubin’s Washington Post blog.

An Unprecedented Expansion of Federal Power

That’s how I describe the individual mandate in my contribution to SCOTUSblog’s online symposium on Obamacare, which Trevor Burrus has already highlighted.  Here’s an excerpt:

All the Obamacare legal challenges boil down to Congress’s authority – or lack thereof – to require people to buy private insurance.  Although unfortunately not dispositive of modern judicial decisions, the text of the Constitution demands that the Supreme Court strike down the individual mandate as an unconstitutional exercise of Congress’s power to regulate interstate commerce.  Finding the mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity – in effect requiring an individual to engage in an economic transaction.

Moreover, upholding Obamacare would grant the federal government wide latitude to mandate that Americans engage in activities of its choosing.  An expansive holding here would fundamentally alter the relationship between the government and the people.  If the challenges fail, there will be no principled limits on federal power.

I go on to describe the current state of play at the appellate and outline what we can expect going forward, as well as providing links to useful resources on this issue.  Read the whole thing.

Likely Voters Oppose ObamaCare by Nearly a 20-Point Margin

It has been a while since I generated a Pollster.com chart showing support/opposition to ObamaCare among only likely voters, so here goes.

Note that a majority of likely voters oppose ObamaCare, and that opposition exceeds support by nearly 20 percentage points.  That’s compared to a 10-point spread among all adults.