Tag: limited government

Monday Links

Support for the Eternal Federal Welfare State Is Bipartisan

George Will makes a good point in his latest column: Democrats maintain a peculiar “conviction that whatever government programs exist should forever exist because they always have existed.” Will’s observation centers around the shameless Democratic attacks on Rep. Paul Ryan’s (R-WI) proposal to reform Medicare and Medicaid.

According to Will, “Ryan’s plan would alter Medicare. But Medicare has existed in its current configuration for only 46 of the nation’s 235 years.” Actually, “current configuration” isn’t quite accurate. For example, Medicare’s prescription drug component added by Republicans, which Ryan voted for, went into effect only five years ago.

Regardless, I agree with Will that so-called “progressives” have a “constricted notion of the possibilities of progress”:

The hysteria and hyperbole about Ryan’s plan arise, in part, from a poverty of today’s liberal imagination, an inability to think beyond the straight-line continuation of programs from the second and third quarters of the last century. It is odd that “progressives,” as liberals now wish to be called, have such a constricted notion of the possibilities of progress.

Yes, Ryan’s plan displays “imagination” and I would add that it took political guts to suggest the reforms knowing that the left would nail him to the cross. However, let’s not forget that Ryan’s plan would also further cement these twin pillars of the federal welfare state. For all the silly accusations that Ryan is proposing to “privatize” Medicare, his plan repeatedly states that his aim is to “save” it:

Letting government break its promises to current seniors and to future generations is unacceptable. The reforms outlined in this budget protect and preserve Medicare for those in and near retirement, while saving and strengthening this critical program so that future generations can count on it to be there when they retire.

I wasn’t born yesterday, so I understand Ryan’s assurance to “those in and near retirement” that Medicare as they know it won’t be touched. However, I can’t square Ryan’s reference at the outset of his plan to the “timeless principles of American government enshrined in the U.S. Constitution – liberty, limited government, and equality under the rule of law” with his intention to strengthen “this critical program so that future generations can count on it be there when they retire.”

Now that Ryan’s plan has taken its inevitable beating from demagoguing Democrats, the GOP appears to be upping the “save Medicare for future generations” rhetoric.

Here’s tea party favorite Sen. Marco Rubio (R-FL) as reported by Politico:

‘I understand the benefits that Medicare brings to America. It should be a part of our country,’ Rubio added. ‘I want Medicare to exist in a way that is unchanged for people that are in Medicare now. I want Medicare to exist when I retire. I want Medicare to exist when my children retire. And I don’t want Medicare to bankrupt itself for our country. And Medicare, as it’s currently structured, will go bankrupt.’

If that’s what Rubio, Ryan, and the rest of the congressional Republicans desire, then thank you for being honest. But please stop wrapping the intention to maintain for eternity a gigantic federal welfare state in the mantle of individual liberty, limited government, and the Constitution.

Thursday Links

  • The Obama Doctrine fails to address the limitations of Washington’s attempts to shape foreign conflicts.
  • The 2012 Republican presidential field has thus far failed to produce a small-government conservative.
  • FREE E-BOOK: Government Failure: A Primer on Public Choice is available for reading and download (PDF) for a limited time on our website.
  • Republicans and Democrats are quibbling over a measly $61 billion in spending cuts–that’s a failure of leadership.
  • Under the failing status quo, Big Sugar wins, and Joe Taxpayer loses.
  • Ian Vásquez, director of Cato’s Center for Global Liberty and Prosperity, joined C-SPAN’s Washington Journal to talk about the failure of foreign aid:


Not Just Breathing: Now the Feds Can Regulate Thinking

I suppose it’s a metaphysical question: Is it more outrageous/scary to argue that Congress can regulate breathing, as Akhil Amar recently argued (prompting my “Every Breath You Take” parody) or that it can regulate thinking, as the latest federal judge to rule on Obamacare opined

That is, Judge Gladys Kessler, echoing two other district judges who ruled in the government’s favor, found that the decision not to purchase health insurance was itself an action and so reachable by Congress’s power under the Commerce Clause. The activity/inactivity distinction that we Obamacare opponents have been pushing is mere “semantics,” you see.  Well, as Randy Barnett said in an emailed press statement:

This decision makes crystal clear that the government is seeking the dangerous and unprecedented power to regulate the economic “decisions” of all Americans – including the decision to refrain from engaging in economic activity.  If allowed by the Supreme Court, Americans would be reduced from citizens to the subjects of Congress, which would now have the discretionary power to run their lives.

He’s right, unfortunately.  But take a deep breath or breathe a sigh of relief (while both are still legal) because, at the end of the day, this latest ruling adds nothing to the debate except a new appellate court from which we can expect an opinion later this year.  (It also ran the record on the “taxing power” argument – the one so favored by the academics I’ve debate over the past year – to 0-4, including two judges who otherwise ruled for the government.)

See also Ilya Somin’s reaction.

Look, the arguments on both sides are clear: On the one hand, the federal government cannot require people to engage in economic activity under the guise of regulating commerce. On the other, the decision not to act is itself an action – “mental activity”? – that is subject to regulation. The battle lines are drawn, the armies of lawyers ready. The only remaining question is whether the Supreme Court will ultimately find that there are constitutional limits to federal power.

Judge Vinson’s Greatest Hits

It’s hard to get too excited about a district court decision – this is one of several, and will be superseded by circuit and eventual Supreme Court decisions – but this decision in Florida v. U.S. Dept. of Health and Human Services is remarkable.  Most notably, the 78-page ruling is well theorized and engaging (Vinson’s opus is a joy to read compared to most stuff I have to wade through to understand what the courts are doing) and sets the stage for the appellate writings to come.  It puts “facts on the ground,” if you will. 

No higher courts are bound but they are influenced.  Judges, like anyone else, don’t want to reinvent the wheel where they don’t have to.  So the circuit courts and even the Supremes will say all this in their own words but don’t for a second think they ain’t payin’ attention.  I can’t cite you statistics about justices being influenced by district (or even circuit) court opinions, but it would be laughable to think that the outcome before the Court would be the same regardless of how the decisions on the merits before several thoughtful district judges went.

Read on for highlights from Judge Vinson’s magisterial opinion (to which I initially responded here and whose immediate consequences I analyzed here).  Page numbers are in parentheses after each quote.

Setting the stage:

This case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government. (2)

On the scope of the Commerce Clause:

Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.[FN14]

 [FN14]… Here, people have no choice but to buy insurance or be penalized. And their freedom is actually more restricted as they do not even have a choice as to the minimum level or type of insurance to buy because Congress established the floor. A single twenty-year old man or woman who only needs and wants major medical or catastrophic coverage, for example, is precluded from buying such a policy under the Act. (38)

The distinction between activity and inactivity:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting … that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”) (Thomas, J., concurring). (43)

On the government’s argument that health care is “unique” because nobody can “opt out” of this market:

After all, there are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business. (46)

Uniqueness is not an adequate limiting principle as every market problem is, at some level and in some respects, unique. (49)

On the government’s argument that the not buying health insurance is an “economic decision” that, in the aggregate, substantially affects interstate commerce:

The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not. (53)

 The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce.” While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes. (55)

On the Necessary and Proper Clause:

The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established “outer limits” of the Commerce Clause and effectively remove all limits on federal power. (62)

Why the entire 2,700-page piece of legislation must fall:

In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. …   The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.  (73-74)

In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. (74)

Concluding thoughts:

Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government. (75-76)

[FN 30]  On this point, it should be emphasized that while the individual mandate was clearly “necessary and essential” to the Act as drafted, it is not “necessary and essential” to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do. (76)

The opinion is breathtaking.  I’ve read it three times now and each time come away with the realization that this judge intuitively “gets” what it is that Cato (including myself) have been saying all along.  And this despite our not having filed a brief in this particular court!

2011: Year of the Constitution

Congress’s first public act after getting sworn in tomorrow will be a reading of the Constitution on the floor of the House – apparently the first time this has been done in the history of the Republic.  This symbolic closely parallels a new rule the Republican House majority is implementing: members will now have to cite specific constitutional authority for any bill they introduce.

As Roger Pilon explains in this morning’s Wall Street Journal, this focus on the Constitution – while nowhere near a public policy panacea or even a return to limited government – is a terrific first step.  One example of the challenges the new Congress faces is rampant encroachment into legislative authority of the vast administrative state, in cases ranging from the “death panels” – removed from Obamcare but to the EPA’s setting of caps on greenhouse gas emissions despite Congress’s rejection of cap-and-trade.  Still, one of the reasons my colleagues and I make such a big fuss over the Constitution is that our founding document was designed to prevent pretty much all of the governmental abuses and excesses Cato complains about.

But not everybody gets that.  Washington Post blogger Ezra Klein, for example, thinks that because the Constitution is so “old,” its text is “confusing” and so its meaning “differs from person to person.”  Therefore, this antiquated relic really “has no binding power on anything.”  As the humorist Dave Barry would say, I’m not making this up:

So that’s what we have to deal with.

But of course the Constitution, as opposed to what now passes for “constitutional law,” is not the exclusive purview of legal scholars and think tank pundits.  Its wording is actually quite clear and understandable.  I therefore urge all of you who read this blogpost to truly make 2011 the year of the Constitution.  When the federal government does something – anything – think about where it gets its constitutional warrant for that action.  If you can’t find it and none of my colleagues are saying anything about it, let us know!

And of course to brush up on exactly what the government can do, get your copy of the Cato pocket Constitution (actually a twofer because the Declaration of Independence is included).  While you’re at it, you might also want to pick up David Mayer’s terrific new book on the constitutionally protected Liberty of Contract.

Yes, Virginia, There Are Limits on Federal Power

Yes, Virginia, there are limits on federal power.

Today is a good day for liberty.  And a bad day for those who say that Congress is the arbiter of Congress’s powers.  By striking down the individual mandate, Judge Hudson vindicated the idea that ours is a government of delegated and enumerated – and thus limited – powers.  Even if the Supreme Court has broadened over the years the scope of Congress’s authority to legislate under the guise of regulating interstate commerce or to tax for the general welfare, “the constraining principles articulated in this line of cases… remains viable and applicable to the immediate dispute.”

In short, we have come far from the days when pundits dismissed the lawsuits challenging the new health care law as frivolous political gimmicks. This is just one district court – whose opinion is not binding on the judges who will now consider the government’s appeal – but we can now see the day where this unprecedented assertion of federal power is definitively rejected as fundamentally contrary to our constitutional order.

As Judge Hudson said, “Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds.  Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers.”