Tag: individual mandate

States Should Flatly Refuse to Create ObamaCare Exchanges (New Cato Video)

This new Cato Institute video explains why it is in no state’s interest to create an ObamaCare Exchange.

Many thanks to Cato’s very talented Caleb O. Brown and Austin Bragg.

For the more-words-no-pictures version, click here or here. For a word about ObamaCare profiteers the pro-Exchange lobby, click here. Click here to read about what is happening in the states.

Stop Using Slippery-Slope Arguments? Where Would that End?

Richard Thaler writes in the New York Times:

Justice Scalia is arguing that if the court lets Congress create a mandate to buy health insurance, nothing could stop Congress from passing laws requiring everyone to buy broccoli and to join a gym…Can anyone imagine Congress passing a broccoli mandate law, much less the court allowing it to take effect?

Yes annnnd…yes. Next question.

Surely, the justices have the conceptual resources to draw a distinction between the health care market and the market for broccoli. And even if they don’t, then all the briefs, the zillions of blog posts and a generation’s worth of economic literature can help them.

If drawing a constitutionally meaningful distinction between the markets for health insurance and broccoli is child’s play for Thaler, he should school all the brief- and blog-post-writers who so far have failed. That would have been a more productive use of his thousand words than his build-up to this thesis:

If you are opposed to a policy, state your case based on the merits — not on the imagined risk of what else might happen down the road. The path of that road is so unpredictable that it may even produce a U-turn.

Good grief. Slippery-slope arguments are about principles. As in, “If you concede this principle because you don’t mind the result here, you will no longer have it to protect you against that bad result there.” Thaler’s thesis would lead, for example, to all manner of civil-liberties violations by the state because there simply isn’t enough political support to protect all the civil liberties of various minorities. But Thaler doesn’t want us to think about things like consequences or the future.

The potential for U-turns makes no more sense as an argument against invoking slippery slopes principles, because principled arguments can help generate the U-turn that opponents of, say, ObamaCare want to see.

I take silly arguments like this to be evidence that ObamaCare supporters are in complete panic mode.

Did You Read the Federalist Papers in College? Grad School? Law School?

In the Wall Street Journal, Peter Berkowitz says you probably didn’t. And it shows:

It would be difficult to overstate the significance of The Federalist for understanding the principles of American government and the challenges that liberal democracies confront early in the second decade of the 21st century. Yet despite the lip service they pay to liberal education, our leading universities can’t be bothered to require students to study The Federalist—or, worse, they oppose such requirements on moral, political or pedagogical grounds. Small wonder it took so long for progressives to realize that arguments about the constitutionality of ObamaCare are indeed serious.

Explains a lot, really.

That’s Not a Limiting Principle, Charles Kolb Edition

Charles Kolb is president of the Committee for Economic Development and was a domestic policy adviser to Bush the Elder. Over at Huffington Post, he articulates why (he thinks) the Constitution’s Commerce Clause empowers Congress to force people to purchase health insurance, but not broccoli. That is to say, he offers (what he thinks is) a limiting principle that (he thinks) would enable the Supreme Court to uphold ObamaCare’s individual mandate, but still leave some constraints on Congress’s ability to force people to buy things. Like broccoli.

Yet Kolb’s proposed limiting principle is no more a limiting principle than Harvard law professor Noah Feldman’s proposed limiting principle, because the two make the same argument. Almost verbatim. So rather than regurgitate my response to Feldman, I’ll just link to it.

Okay, I’ll regurgitate this part:

Like every other so-called limiting principle offered by ObamaCare’s defenders, Feldman’s[/Kolb’s] has no basis in the Constitution or any other law. It is a post hoc rationalization, made by people who are shocked to find themselves before the Supreme Court, defending the constitutionality of their desire to bully others into submission.

Couldn’t resist.

Obamacare Argument Post-Mortem

Now that I’ve woken from the first full night’s sleep since the Supreme Court’s three-day Obamacare marathon began, I can share my thoughts on how the argument went, in case you haven’t seen my first and second days’ reports for the Daily Caller:

  1. The Anti-Injunction Act: On an argument day that can best be described as the calm before the storm, it quickly became clear that the Supreme Court would reach the constitutional issues everyone cares about. That is, regardless of how the justices resolve the hyper-technical issue of whether the Anti-Injunction Act is “jurisdictional,” this law – which prevents people from challenging taxes before they’re assessed or collected – does not apply to the Obamacare litigation. There were also hints that the Court was skeptical of the government’s backup merits argument that the individual mandate was justified under the Constitution’s taxing power. Perhaps the only surprising aspect of the hearing was how “cold” the bench was; it’s rare for the justices to allow advocates to speak at length without interruption, but that’s what they generally did today. That’s yet another indication that the Court will get past the AIA appetizer to the constitutional entree.
  2. The individual mandate: From Justice Kennedy’s noting that the government is fundamentally transforming the relationship of the individual to the government, to Chief Justice Roberts’s concern that “all bets are off” if Congress can enact economic mandates, to Justice Alito’s invocation of a hypothetical burial-insurance mandate, to Justice Scalia’s focusing on the “proper” prong of the Necessary and Proper Clause – and grimacing throughout the solicitor general’s argument – it was a good day for those challenging the individual mandate.  Paul Clement and Mike Carvin, who argued for the plaintiffs, did a masterful job on that score, showing again and again the unprecedented and limitless nature of the government’s assertion of federal power.  The solicitor general meanwhile, had a shaky opening and never could quite articulate the limiting principle to the government’s theory that at least four justices (and presumably the silent Justice Thomas) were seeking.  While trying to predict Supreme Court decisions is a fool’s game, the wise should take note that if Tuesday’s argument is any indication, Obamacare is in constitutional trouble.
  3. Severability: The most likely ruling on severability is that all of Obamacare will fall along with its fatally flawed individual mandate.  While such a result would be legally correct, it would still be stunning.  Perhaps even more remarkable is that the severability argument proceeded under the general assumption that the mandate would indeed be struck down.  This was not a mere hypothetical situation about which the justices speculated, but rather a very real, even probable, event.  There’s still a possibility that a “third way” will develop between the government’s position (mandate plus “guaranteed issue” and “community rating”) and that of the challengers (the whole law) – perhaps Titles I and II, as Justices Breyer and Alito mused (and as Cato’s brief detailed) – but the only untenable position would be to sever the mandate completely from a national regulatory scheme that obviously wouldn’t work without it.
  4. Medicaid expansion/coercion: The justices don’t want to reach the factually complicated and legally thorny Medicaid issue.  That may be another marginal factor pushing one or more of them to strike down all of Obamacare under a straightforward severability analysis and leave the “spending clause coercion” issue for another day.  This was perhaps the most difficult of the four issues to predict, and having heard argument doesn’t really make that task easier.  A majority of the Court was troubled by the government’s “your money or your life” stance, but it’s not clear what standard can be applied to distinguish coercion from mere inducements.  Then again, if this isn’t federal coercion of the states, I’m not sure what is.

General post-argument reaction: All of my pre-argument intuitions were confirmed, and then some:  The Court will easily get past the AIA, probably strike down the individual mandate, more likely than not taking with it all or most of the rest of the law (including the Medicaid expansion).  Still, it was breathtaking to be in the courtroom to see the Chief Justice and Justices Scalia, Kennedy, and Alito all on the same page.  (For example, when Justice Kennedy’s first question during yesterday’s hearing was, “Can you create commerce in order to regulate it?” – a question hostile to the government – my heart began racing.)  Much as I’d love to think that my briefs helped get them there even a little bit, ultimately it’s the strength of the constitutional claims and the weakness of the government’s positions that prevailed – or will prevail if the opinions that come down in three months follow along the lines set by this week’s arguments.  They may not of course – trying to predict the Supreme Court isn’t a science—but I’m coming out of this week feeling very good.

Finally, for links to all of Cato’s briefs and my last series of op-eds on the Obamacare litigation, see Monday’s blog post.

American People: Of Course the Individual Mandate Is Unconstitutional

Cato senior fellow Randy Barnett (also, of course, a Georgetown law professor and the “intellectual godfather” of the Obamacare litigation) blogs the results of a new USA Today/Gallup poll: 72% of Americans (including 56% of Democrats and 54% of those who think “the healthcare law is a good thing”) think the individual mandate is unconstitutional.  This follows a Rasmussen poll showing that a majority of Americans favor repeal and an AP poll from August that found 82% to opine that the federal government “should not have the power to require all Americans to buy health insurance.”

Now, no court should rule a given way simply because a majority—even an overwhelming majority—of people want it to.  Indeed, the judiciary is by design the non-political branch of government, one often required by the Constitution to reach counter-majoritarian results.  But to the extent that in this unprecedented litigation over an unprecedented assertion of federal power, where the outcome could turn on whether something is “proper”—the intepretation of which term may depend on concepts such as “legitimacy” and “accountability”—the sustained, strong views of the public may, at the margins, matter.

Are you listening, Justice Kennedy Supreme Court?

Does Mitt Romney Have Health Insurance?

It’s an interesting question. Romney is under age 65, which means that he would have to obtain private health insurance. He jokes that he is unemployed, which means he may have to purchase it on his own. Or he may get it as a retiree benefit from Bain Capital.

The question is interesting because Romney is so wealthy that to spend his money on health insurance might seem like a waste. (Of course, Romney may be very risk averse, and a man to whom $10,000 is a small wager probably isn’t going to notice a $20,000 health insurance premium. But Romney could pay for whatever medical care he and his wife – and his children, and his grandchildren – could possibly need.) On the other hand, if Romney doesn’t have private health insurance, it would look bad that he forced other people to buy it.

Moreover, Romney turns 65 on March 12, meaning he becomes eligible for Medicare on March 1. He likely received his Medicare card in the mail two months ago. If Romney does not enroll in Medicare, it would again look bad that he who forced others to purchase health insurance is opting not to obtain health insurance himself. But if he does enroll in Medicare, it’s worth asking whether the 99 percent should subsidize people like him.