Tag: individual mandate

Published: My First Year Battling Obamacare

Back in June, I wrote about a law review article I had just completed that detailed my first year or so of activities surrounding the Obamacare lawsuits.  Well, now it’s officially published, in the Florida International University Law Review.  Here’s the abstract:

This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.

Go here to download “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare.”

Va. Gov. McDonnell (Sort of) Takes My Advice, Defers Creating ObamaCare Exchange

In June, I testified in Richmond before Virginia’s Joint Commission on Health Care that Virginia should refuse to create one of ObamaCare’s health insurance “exchanges”:

[ObamaCare’s] health insurance “Exchanges” are scheduled to become operational in 2014.  These new government bureaucracies would enforce the law’s regulations that will drive up health insurance premiums, and would distribute hundreds of billions of taxpayer dollars to private health insurance companies, thereby driving up the national debt…

Neither the Commonwealth nor the federal government has money to waste on new government agencies that might be repealed or overturned tomorrow…

At a minimum, Virginia should defer the question of creating an Exchange until the courts dispose of the constitutional challenges brought against this law.  Legal scholars expect the U.S. Supreme Court to rule on this law in the summer of 2012…If the Court voids the law, Virginia will be glad she waited.

Virginia Gov. Bob McDonnell (R) has inexplicably been gung-ho to create an ObamaCare Exchange. According to the Richmond Times-Dispatch, however, McDonnell may be modulating his tune:

McDonnell said he does not want to create an exchange legislatively until after the court makes its decision on the mandate’s constitutionality. The court will hear arguments in the case in March and possibly rule in July, just after a federal deadline for states to seek grant money to set up exchanges.

“Any major expense prior to the court decision is irresponsible and a waste of money,” the governor said at a luncheon meeting with members of the Capitol press corps.

Unfortunately, McDonnell is still laboring under the misapprehension that creating her own Exchange will let Virginia retain a measure of control over her health insurance markets:

McDonnell said he hopes the Supreme Court will strike down the law’s individual mandate, rendering an exchange unnecessary, but he made clear he wants Virginia to operate the exchange if the law stands.

“If we have to do it, I clearly want to have a state-based exchange,” he said.

To read about why Virginia doesn’t “have to do it,” and why there is no defensible rationale whatsoever for an ObamaCare opponent such as McDonnell to create an Exchange, read my Missouri testimony.

To learn how McDonnell may end up saving ObamaCare from repeal by creating an Exchange, read this Wall Street Journal oped by Jonathan Adler and me.

You Can’t Make a Silk Purse out of ObamaCare’s Poll Numbers

The Kaiser Family Foundation’s November 2011 poll results on ObamaCare (“the ACA”) are now available.  The gist:

After taking a negative turn in October, the public’s overall views on the ACA returned to a more mixed status this month. Still, Americans remain somewhat more likely to have an unfavorable view of the law (44%) than a favorable one (37%).

The survey also finds that individual elements of the law are viewed favorably by a majority of the public. The law’s most popular element, viewed favorably by more than eight in ten (84%) and “very” favorably by six in ten, is the requirement that health plans provide easy-to-understand benefit summaries. Also extremely popular are provisions that would award tax credits for small businesses (80% favorable, including 45% very favorable) and provide subsidies to help some individuals buy coverage (75% favorable, including 44% very favorable), as well as the provision that would gradually close the Medicare doughnut hole (74% favorable, including 46% very favorable) and the “guaranteed issue” requirement that prohibits health plans from denying coverage based on pre-existing conditions (67% favorable, including 47% “very” favorable)…

Far and away the least popular element of the health reform law is the individual mandate, the requirement that individuals obtain health insurance or pay a fine. More than six in ten (63%) Americans view this provision unfavorably, including more than four in ten (43%) who have a “very” unfavorable view.

I’ve written about such spin-heavy polls before, including here:

Rather than confront their own errors of judgment, [ObamaCare supporters] self-soothe: The public just doesn’t understand the law. The more they learn about it, the more they’ll like it…

This denial takes its most sophisticated form in the periodic surveys that purport to show how those silly voters still don’t understand the law. (In the mind of the ObamaCare zombie, no one really understands the law until they support it.) A prominent health care journalist had just filed her umpteenth story on such surveys when I asked her, “At what point do you start to question whether ObamaCare supporters are just kidding themselves?”

Her response? “Soon…”

And here:

Asking people whether they support the law’s pre-existing conditions provisions is like asking whether they want sick people to pay less for medical care.  Of course they will say yes.  If anything, it’s amazing that as many as 36 percent of the public are so economically literate as to know that these government price controls will actually harm people with pre-existing conditions.  Also amazing is that among people with pre-existing conditions, equal numbers believe these provisions will be useless or harmful as think they will help…

[T]he pre-existing conditions provisions cannot exist without the wildly unpopular individual mandate because on their own, the pre-existing conditions provisions would cause the entire health insurance market to implode.

If the pre-existing conditions provisions are a (supposed) benefit of the law, then the individual mandate is the cost of those provisions. If voters don’t like the individual mandate–if they aren’t willing to pay the cost of the law’s purported benefits–then the “popular” provisions aren’t popular, either.

Or, as Firedoglake’s Jon Walker puts it, ObamaCare is about as popular as pepperoni and broken glass pizza.

See you again next month.

Ohio’s 2-1 Vote against the Individual Mandate Is a Wholesale Rejection of ObamaCare

Yesterday, Ohio voters approved by 66-34 percent an amendment to the state constitution blocking any sort of individual mandate in the state.  The Cleveland Plain Dealer reported that this “strike at President Barack Obama’s health care plan…was ahead by a wide margin even in Cuyahoga County – a traditional Democratic stronghold.” A little over a year ago, Missouri voters likewise rejected ObamaCare’s individual mandate by 71-29 percent.

Supporters typically dismiss such setbacks, including two years of solid public hostility to ObamaCare, by claiming that voters don’t hate the entire law.  In fact, they actually like specific provisions.  A year ago this month, The Washington Post’s Greg Sargent quoted approvingly a McClatchy-Marist poll:

Almost six in ten voters – 59% – report the part of the health care law that prevents insurance companies from denying coverage due to pre-existing conditions should remain law while 36% want it repealed.

Supporters are in serious denial if they still cling to this theory. These overwhelming rejections of the individual mandate are indeed a rejection of the entire law.

Asking people whether they support the law’s pre-existing conditions provisions is like asking whether they want sick people to pay less for medical care.  Of course they will say yes.  If anything, it’s amazing that as many as 36 percent of the public are so economically literate as to know that these government price controls will actually harm people with pre-existing conditions.  Also amazing is that among people with pre-existing conditions, equal numbers believe these provisions will be useless or harmful as think they will help.

But as the collapse of the CLASS Act and private markets for child-only health insurance have shown, and as the Obama administration has argued in federal court, the pre-existing conditions provisions cannot exist without the wildly unpopular individual mandate because on their own, the pre-existing conditions provisions would cause the entire health insurance market to implode.

If the pre-existing conditions provisions are a (supposed) benefit of the law, then the individual mandate is the cost of those provisions. If voters don’t like the individual mandate–if they aren’t willing to pay the cost of the law’s purported benefits–then the “popular” provisions aren’t popular, either.

Or, as Firedoglake’s Jon Walker puts it, ObamaCare is about as popular as pepperoni and broken glass pizza.

D.C. Circuit Paves Way for Supreme Court Consideration of Obamacare

Today the D.C. Circuit ruled that the individual mandate is a constitutional exercise of federal power under the Commerce Clause.  Senior Judge Laurence Silberman (Reagan appointee) wrote the opinion, which was joined by Senior Judge  Harry Edwards (Carter appointee).  Judge Brett Kavanaugh (George W. Bush appointee) dissented on jurisdictional grounds without reaching the merits, finding that the Anti-Injunction Act barred the suit until the individual mandate/penalty/tax goes into effect.  (The case is Seven-Sky v. Holder; see Cato’s amicus brief and a quick breakdown by Tim Sandefur.)

Sure, this is a loss for our side but it’s not a big deal. Every development in the Obamacare litigation has been anticlimactic since the Eleventh Circuit split with the Sixth, guaranteeing that the Supreme Court would take the case.  Today’s ruling, therefore, is notable not so much for its result – upholding the individual mandate – as for the reluctance with which it reached it.  

After acknowledging the novelty of the power Congress is asserting, the court expressed concern at “the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.”  In other words, the majority saw itself bound by the Supreme Court’s broad reading of federal power under the Commerce Clause but felt “discomfort” at reaching a result that seemingly had no bounds.  

Indeed, the government has yet to tell any court in any of the cases what it cannot do under the guise of regulating interstate commerce.  But rest assured that the Supreme Court will ask again, and soon – it considers the myriad cert petitions later this week.  And if the high court is as unsatisfied with the government’s jurisprudential non-theory as the D.C. Circuit was, it will not hesitate to strike down this expansion of federal power. 

“Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,” wrote Justice Kennedy for a unanimous Court last term (United States v. Bond).  “Federalism secures the freedom of the individual.” 

I am confident that the Supreme Court will not allow this unprecedented invasion of individual liberty.