Tag: Montana

Will the Last ObamaCare Supporter Please Turn off the Lights?

Senate Finance Committee chairman Max Baucus (D-MT) was the primary author of the Patient Protection and Affordable Care Act, known colloquially and affectionately as ObamaCare. Today, he predicted his own law would cause a “huge train wreck” when the federal government begins implementing it fully later this year. He’s not the only one who’s worried. Other Democratic senators have expressed concerns. An Obama administration official recently offered this vote of confidence:

We are under 200 days from open enrollment, and I’m pretty nervous…The time for debating about the size of text on the screen or the color or is it a world-class user experience, that’s what we used to talk about two years ago…Let’s just make sure it’s not a third-world experience.

How could Baucus come to fear his own bill? Maybe because he never read it, as he admitted to his Libby, Montana, constituents in 2010:

Naturally, a Baucus flack later clarified what he meant:

Senator Baucus wrote the bill that passed the Finance Committee and then worked with his colleagues to write the health care bill that is law today. He has spent years crafting this policy and hundreds of hours reading and perfecting it. There is simply no question that he understands the provisions in the health care law…

If so, perhaps Baucus could explain the law to his colleague, Sen. Jay Rockefeller (D-WV). Rockefeller may have spent more time studying health care than any other U.S. senator, Baucus included. For example, Rockefeller founded the Alliance for Health Reform and headed the organization for more than a decade. And yet Rockefeller finds ObamaCare to be “the most complex piece of legislation ever passed by the United States Congress” and “just beyond comprehension”:

But can we really blame Baucus if ObamaCare supporters – including himself – didn’t understand the bill they were passing? After all, he warned us that not all of them would understand it:

So to recap: Baucus wrote an early draft of the law, helped to write subsequent drafts, didn’t read the final law, totally understands it, and now fears it.

Will the last ObamaCare supporter please turn off the lights?

Max Baucus, ObamaCare’s Lead Author, Sees ‘Huge Train Wreck Coming Down’

I should probably just turn this one over to Sam Baker at The Hill:

Sen. Max Baucus (D-Mont.) said Wednesday he fears a “train wreck” as the Obama administration implements its signature healthcare law.

Baucus, the chairman of the powerful Finance Committee and a key architect of the healthcare law, said he’s afraid people do not understand how the law will work.

“I just see a huge train wreck coming down,” Baucus told Health and Human Services Secretary Kathleen Sebelius at a Wednesday hearing. “You and I have discussed this many times, and I don’t see any results yet.”

Baucus pressed Sebelius for details about how HHS will explain the law and raise awareness of its key provisions, which are supposed to take effect in just a matter of months.

“I’m very concerned that not enough is being done so far — very concerned,” Baucus said.

He pressed Sebelius to explain how her department will overcome entrenched misunderstandings about what the healthcare law does.

“Small businesses have no idea what to do, what to expect,” Baucus said.

Citing anecdotal evidence from small businesses in his home state, Baucus asked Sebelius for specifics about how it is measuring public understanding of the law.

“You need data. Do you have any data? You’ve never given me data. You only give me concepts, frankly,” Baucus told Sebelius.

Sebelius said the administration is not independently monitoring public awareness of specific provisions, but will be embarking on a substantial education campaign beginning this summer.

Baucus is facing a competitive reelection fight next year, and Republicans are sure to attack him over his role as the primary author of the healthcare law.

A messy rollout of the law’s major provisions, just months before Baucus faces voters, could feed into the GOP’s criticism.

Wednesday’s hearing wasn’t the first time Democrats — including Baucus — have raised concerns about the implementation effort. But while other lawmakers have toned down their public comments as they’ve gotten answers from Sebelius, Baucus said Sebelius has not addressed his fears.

“I’m going to keep on this until I feel a lot better about it,” Baucus told Sebelius…

Enrollment in the healthcare law’s insurance exchanges is slated to begin in October, for coverage that begins in January. Baucus, though, said he’s worried exchanges won’t be ready in time.

“For the marketplaces to work, people need to know about them,” Baucus said. “People need to know their options and how to enroll.”

Who knew that running the health care sector would be hard.

Voting in 2012, Libertarian and Otherwise

Somehow, election results continue to trickle in, and David Wasserman of the Cook Political Report continues to update his spreadsheet of the national popular vote. At this point, he shows President Obama reelected with 50.86 percent of the vote to Mitt Romney’s 47.43 percent. For whatever reason, the late-arriving results all seem to widen Obama’s lead.

The total vote appears to be down by almost 4 million votes from 2008, and Obama has received about 4.7 million fewer votes than he did in his first campaign. Romney received slightly more votes than John McCain did.

Libertarian Party nominee Gary Johnson received 1,265,000 votes, according to Wikipedia, whose mysterious editors show the votes for every candidate. That’s the most any Libertarian presidential candidate has ever received. It amounts to 0.99 percent, just shy of Ed Clark’s 1.06 percent in 1980. If Johnson had been on the ballot in Michigan and Oklahoma, he would surely have broken 1 percent, though he still probably wouldn’t have exceeded Clark’s percentage. (Michigan and Oklahoma haven’t been very good states for Libertarian candidates.) Johnson’s best states were New Mexico, where he served two terms as governor, followed by Montana and Alaska.

The Libertarian Party reports that seven Libertarian statewide candidates in Texas and Georgia received more than a million votes.

Don’t forget to read the new ebook The Libertarian Vote: Swing Voters, Tea Parties, and the Fiscally Conservative, Socially Liberal Center, which discusses how the millions of libertarian-leaning voters in America tend to vote. (It does not have 2012 results.)

The Message from Montana

The Supreme Court issued a summary opinion overturning Montana’s restrictions on corporate spending on electoral speech. The court did so 5-4 along the lines you might expect. As John Samples points out in this short video, the court’s opinion in Citizens United that “political speech does not lose First Amendment protection simply because its source is a corporation” is not as settled as fans of freewheeling political communication might hope.

To overturn Citizens United, lawmakers might pursue a Constitutional amendment that would allow Congress to prohibit funding of electoral speech. But as Samples notes, a number of proposed amendments go far beyond banning corporate political speech and simply outlaw all private spending to influence elections. One should presume that such a ban could include Sharpies and posterboard for your standard-issue homemade political sign or the purchase of certain Shepard Fairey prints.

Another Judicial Takings Case Reaches the Supreme Court

For over a century, Montana citizens have used non-navigable streambeds along their properties for various purposes without objection from the state government.  The hydroelectric energy company PPL Montana and thousands of other private parties exercised their rights over these non-navigable stretches that the state never claimed. 

Last year, however, the Montana Supreme Court overturned well-settled state property law by effectively converting the title in hundreds of miles of riverbeds to state ownership. The majority of the court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates the right to use rivers and riverbanks that Montanans had enjoyed for over a century.

PPL Montana thus asked the U.S. Supreme Court to review the state court’s decision; Cato filed an amicus brief supporting that request, which the Court granted.  Now that the case is before the Court, Cato has joined the Montana Farm Bureau Federation, American Farm Bureau Federation, and National Federation of Independent Business on a brief supporting the property owners.

We are chiefly concerned with two parts of the Montana Supreme Court’s ruling:  First, the court incorrectly evaluated navigability for the purpose of establishing title – finding the entirety of the rivers at issue navigable (and thus belonging to the state) because portions of them are – contravening the legal standard established by the U.S. Supreme Court in United States v. Utah (which analyzed the riverbeds section-by-section to achieve a “precise” assessment of navigability).  Second, the court effectively transferred a substantial quantity of land from private owners to the state – a judicial taking that violates either the Fifth or Fourteenth Amendments (as the Court described in the recent Stop the Beach Renourishment case, in which Cato also filed a brief).  

In short, the Court should reaffirm the Utah standard for navigability in the context of establishing title and protect private property owners against judicial takings.  By doing so, it would send a strong message to state courts across the nation that judicial usurpations of property rights are just as unconstitutional as those undertaken by other branches of government.

The Court will hear the case of PPL Montana, LLC v. Montana late this year or in early 2012.  Again, you can find Cato’s brief here.

Shooting for State Sovereignty

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

Our brief argues that federal preemption would violate the “letter and spirit of the Constitution” and that heightened judicial scrutiny is required whenever the federal government invokes an implied power to override state sovereignty. The MFFA should not be preempted because: (1) principles of state sovereignty limit federal power; (2) preemption would violate the federalism framework established in National League of Cities v. Usery; and (3) preemption would not allow state sovereignty to serve its role as a proper check of federal power. The Supreme Court has made clear that Congress is not the sole venue for states and individuals to seek protection from federal overreach and so this case is fundamentally a dispute over federalism—which should allow for state regulation of local matters to flourish in concert with federal power over “truly national” concerns.

Allowing preemption here would have the perverse effect of allowing the federal government to regulate “states as states” while impairing states’ ability to operate in areas of traditional governmental functions. The Ninth Circuit should thus find that district court committed reversible error in dismissing the lawsuit and, as a result, MSSA should be allowed to pursue its case beyond the pleadings stage.

The Ninth Circuit will hear the case of Montana Sports Shooting Association v. Holder in late summer or early fall.

Another Judicial Takings Case Headed to the Court

The Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the State. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century.

Before this case, the hydroelectric energy company PPL Montana and thousands of other private parties exercised their property rights over these non-navigable stretches that the state never claimed.  Today, Cato joined a brief filed by the Montana Farm Bureau Federation supporting the PPL Montana’s request that the U.S. Supreme Court review the Montana high court’s ruling for possible Takings Clause violations under the Fifth Amendment.

We argue two main points.  First, that the Court should adhere to its standard for navigability rights set out in Utah v. U.S. in 1933. Unlike the approach taken by the Montana Supreme Court’s majority — that entire rivers were navigable simply because certain reaches of the river were navigable — the U.S. Supreme Court in Utah used an approach of meticulously analyzing the rivers at issue section-by-section. Second, this arbitrary ruling against rights long protected by Montana law amounts to a “judicial taking,” as explained last term Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (in which Cato also filed a brief). There, a plurality of the Court held that there is no “textual justification” for limiting takings claims deriving from executive or legislative action, thereby extending it to a judicial action of the same nature (and two other members of the Court found potential relief in the Fourteenth Amendment’s Due Process Clause). Here, the Montana court did exactly that, violating due process rights that the Montana legislature could not and further violating the procedural due process rights of the thousands harmed by the decision in not affording them notice or a hearing.

The U.S. Supreme Court should thus review the case to reinforce its Utah precedent and ensure that arbitrary judicial takings of this sort cannot continue.  The name of the case is PPL Montana, LLC v. Montana.  The Court will decide later this fall whether to take it up.