Tag: Obamacare

Wednesday Links

Once More Into the Obamacare Breach

Today we filed Cato’s sixth brief supporting the various legal challenges to Obamacare, this time in the D.C. Circuit.  Like Tom Joad, wherever the fight has been, we’ve been there, and now it’s in our backyard.

In February, Judge Gladys Kessler of the D.C. district court granted Congress the power to regulate “mental activity” in a decision that flippantly disregarded the core distinction between action and inaction: “Making a choice is an affirmative action, whether one decides to do something or not do something.”  The frightening scope of that opinion has proven more harmful than helpful to the government, which has shifted its focus away from Kessler’s sweeping language by describing the mandate as merely a requirement that people pre-pay for the health care they will inevitably use.

Our latest brief deals more directly with that added nuance—even more so than the brief Cato filed two weeks ago.  Due to a local circuit rule requiring amici with similar arguments to file jointly, Cato coordinated a brief involving six other organizations—Mountain States Legal Foundation, Pacific Legal Foundation, Competitive Enterprise Institute, Goldwater Institute, Revere America, and Idaho Freedom Foundation—as well as Prof. Randy Barnett.  

Using Cato’s previous brief as a starting point, amici worked together to adjust our arguments in light of new ideas coming from both the government and academia.  The core argument, however, remains the same: regardless of any linguistic contortions, the non-purchase of health care is fundamentally a non-economic inactivity that Congress cannot reach under the Commerce and Necessary and Proper Clauses.  

Allowing Congress the power to conscript citizens into economic transactions not only goes beyond current precedent, but would give Congress a general and limitless police power to do whatever it thinks best, checked only by politics.  

In addition to the doctrinal arguments we presented in previous briefs, here we remind the court that limiting Congress’s power is the explicit purpose of Article I of the Constitution and address the relationship of the individual mandate to United States v. Comstock, the most recent interpretation of the limits on federal power under the Necessary and Proper Clause (a case in which Cato also filed a brief, that Ilya Somin covered in our Supreme Court Review, and about Trevor Burrus and I recently published a law review article).  

The D.C. Circuit will hear the case of Seven-Sky v. Holder in September.  Given the state of litigation around the country, we will likely not be filing another Obamacare brief before the action reaches the Supreme Court—which it’s expected to later this year, after the first few circuit courts issue their rulings.

Wednesday Links

  • Next up for marriage equality: Perry v. Schwarzenegger. Please join us at 12:00 p.m. Eastern today as co-counsels for the plaintiffs Theodore Olson and John Boies join Center for American Progress president John Podesta and Cato chairman Robert A. Levy for a panel discussion on marriage equality, exploring legal and moral questions dating back to the landmark 1967 Loving v. Virginia decision that ended state bans on interracial marriage. If you cannot join us here at Cato, please tune in to watch a live stream of the event.
  • “Republicans have an opportunity for a much more important debate, which will frame the election campaign next year.”
  • In President Obama’s next speech, Cato director of foreign policy studies Christopher Preble hopes “that the president reaffirms the importance of peaceful regime change from within, not American-sponsored regime change from without.”
  • What will former Massachusetts governor Mitt Romney’s next position on health care be?
  • Like cleanliness next to godliness, so is democracy next to tyranny.
  • The U.S. hit the debt limit–what’s next?

Pelosi’s Constituents Found out What’s in ObamaCare, and They Don’t Like It

From the Daily Caller:

Nearly 20 percent of new Obamacare waivers are gourmet restaurants, nightclubs, fancy hotels in Nancy Pelosi’s district

By Matthew Boyle - The Daily Caller 12:07 AM 05/17/2011

Of the 204 new Obamacare waivers President Barack Obama’s administration approved in April, 38 are for fancy eateries, hip nightclubs and decadent hotels in House Minority Leader Nancy Pelosi’s Northern California district.

That’s in addition to the 27 new waivers for health care or drug companies and the 31 new union waivers Obama’s Department of Health and Human Services approved.

Pelosi’s district secured almost 20 percent of the latest issuance of waivers nationwide, and the companies that won them didn’t have much in common with companies throughout the rest of the country that have received Obamacare waivers.

Newt Tries to Out-Romney Romney, Endorses ‘Public Option’ in Medicare

In 1995, shortly after becoming Speaker of the House, Newt Gingrich mulled a radical overhaul of the U.S. Food and Drug Administration.  As he put it to a room full of health insurers, “Maybe we’ll take out FDA.

What made Newt likable to advocates of freedom is sadly no longer part of his schtick.  Here’s how Andrew Stiles reports on Newt’s appearance on Meet the Press yesterday:

“I don’t think right-wing social engineering is any more desirable than left-wing social engineering,” he said when asked about [House Budget Committee chairman Paul] Ryan’s [R-WI] plan to transition to a “premium support” model for Medicare. “I don’t think imposing radical change from the right or the left is a very good way for a free society to operate.”

As far as an alternative, Gingrich trotted out the same appeal employed by Obama/Reid/Pelosi — for a “national conversation” on how to “improve” Medicare, and promised to eliminate ‘waste, fraud and abuse,’ etc.

“I think what you want to have is a system where people voluntarily migrate to better outcomes, better solutions, better options,” Gingrich said. Ryan’s plan was simply “too big a jump.”

He even went so far as to compare it the Obama health-care plan. “I’m against Obamacare, which is imposing radical change, and I would be against a conservative imposing radical change.”

If you close your eyes, it’s like listening to The Princess Bride. Medicare and Medicaid are nothing if not social engineering.  So by Newt’s logic, we should get rid of them.  But Newt also says that radical change is bad, which means we can’t.  That leaves incremental changes.  But incremental changes to massive social-engineering experiments are themselves social engineering, so we clearly cannot make incremental changes, either.  ObamaCare is both social engineering and radical change.  Again by Newt’s logic, ObamaCare is bad, and we must get rid of it, but we can’t.  Truly, he has a dizzying intellect.

Newt’s objection to Paul Ryan’s Medicare reforms is no less incoherent.  It appears to be that the reforms approved by the House would eliminate the traditional Medicare program as an option for Americans who enroll after 2021.   So far as I can tell, Newt’s opposition to this feature is consistent with his past positions on Medicare reform.  He wants to let people stay in traditional Medicare if that’s what they prefer, and would have traditional Medicare compete against private insurance companies for Medicare enrollees.

But it is completely inconsistent with Newt’s opposition to President Obama’s call for a so-called “public option” to compete with private insurance companies. In 2009, Newt told Good Morning America:

I guarantee you the language they draft for the public plan will give it huge advantages over the private sector or it won’t work…what they will do is rig the game…I mean, anybody who’s watched this Congress who believes that this Congress is going to design a fair, neutral playing field I think would be totally out of touch with reality.

Newt may not realize this, but he was actually explaining why his preferred Medicare reforms would fail: Congress would rig the game to protect the “public option” that Congress offers to seniors – i.e., traditional Medicare.  House Republicans, led by Paul Ryan, rather bravely stuck to their guns when they kept a “public option” out of their proposed Medicare reforms.  Ryan is offering Republicans credibility and success.  By his own admission, Newt is offering them failure.

What’s up with Mitt Romney and Newt Gingrich?  Does the Republican presidential nomination race have some sort of prize for insincerity or incoherence that I don’t know about?

Finally, Newt endorsed a “variation of the individual mandate” (tell me again why he opposes ObamaCare?) and said there is “a way to do it that make most libertarians relatively happy.” He must have meant to say leftists rather than libertarians. Regardless, I invite Newt to come to the Cato Institute so he can explain to people who actually care about freedom just how happy he’s going to make us.

Activity vs. Inactivity

The challenge to the constitutionality of the individual mandate – Obamacare’s central feature, without which the whole regulatory scheme collapses (practically speaking, though I agree with Judge Vinson that it also can’t be severed as a matter of law) – boils down to whether, under modern constitutional doctrine regarding what Congress can do under the guise of regulating interstate commerce, the government can force “inactive” people into a particular action, namely buying health insurance.

That is, while cases like Wickard  (Congress can force farmer to meet quota and bring crops to market) and Raich (Congress can stop wholly intrastate growth and consumption of marijuana) – moving from wheat to weed – are disconcerting for those of us who see limits on federal power, there is a qualitative difference between regulating or prohibiting existing economic activity and mandating that someone engage in such activity.  When Randy Barnett (who argued Raich) first articulated that distinction and labeled the new assertion of federal power “unprecedented,” that’s what he meant: Congress has never forced people to engage in economic activity.  Not during the New Deal – nobody had to become a farmer or buy wheat – nor during the Civil Rights Era – if you didn’t want to serve blacks, you could shut down your restaurant or hotel.

The “activity/inactivity” distinction thus becomes the last straw holding back a general federal police power that would allow Congress to require anything of the citizenry so long as it was part of a national regulatory scheme.  No enumerated power to require people to buy Chevys?  No problem, we’ll have a full-scale auto bailout that only works if people have to buy Chevys.  No enumerated power to require people to take out Fannie Mae mortgages?  No problem, we’ll have a “National Housing Market Recovery Act” that only works if people have to do just that.  You don’t have to invoke broccoli or asparagus to make the point; the “broccoli mandate” is used so often only because, if anything, requirements to buy healthy foods and join gyms would be more closely connected to the goal of reducing taxpayer spending on health care than the individual health insurance mandate.

In any case, I won’t go on about activity vs. inactivity because you can read all about it in our latest brief and also in a fascinating  Volokh Conspiracy debate among Orin Kerr, Jon Adler – both of whom will be contributing to this year’s Cato Supreme Court Review – and Randy Barnett:

  1. Orin notes that the Fourth Circuit judges were “baffled” by the activity/inactivity distinction;
  2. Jon replies that he’s baffled that anybody could be baffled by that;
  3. Randy offers a different take on the judges’ concerns;
  4. Orin discusses a possible analogy of the definition of “activity” to its common-law equivalent, the “actus reus”;
  5. Randy issues a rejoinder to Orin’s analysis;
  6. Orin clarifies the issue.

Fascinating stuff, and a discussion that will continue – and not just on the VC.

Cato’s Latest Obamacare Brief

As I noted yesterday, Obamacare is moving towards its inevitable date with the Supreme Court.  Although the pace may be aggravating, attorneys on both sides are strengthening their arguments and clarifying the issues presented.

Cato’s latest brief, filed today in the Eleventh Circuit in support of 26 states and the National Federation of Independent Business, sharpens the position we already expressed in briefs filed in the Fourth Circuit and the Sixth Circuit.  Our focus remains the question of whether the Constitution authorizes Congress to mandate that individuals purchase health insurance or suffer a fine.

The government has subtly shifted its thinking at this stage, however, to argue that the individual mandate does not so much compel “inactive” citizens to act but merely regulates when and how health care is purchased. Everyone will eventually purchase health care, the argument goes, and the mandate requires that people pre-pay for that care so they don’t shift the costs onto others.

We point out how this argument is a spurious misdirection, an attempt to recharacterize the individual mandate in terms that are directly contrary to the purpose and function of the overall statute.  Obamacare explicitly regulates the status of being uninsured—and not just those who seek to shift health care costs to the future or slough them onto taxpayers (indeed, the politically uncomfortable truth is that those most likely to incur health care expenses they cannot pay, the poor, are exempt from the mandate).

We argue that, regardless of the spin that the government places on it, the individual mandate “regulates” inactivity, something that not even modern constitutional doctrine allows.  The status of being uninsured cannot be transformed into economic activity via semantic prestidigitation; no matter how artfully articulated, a decision not to purchase insurance, or to do nothing, or to self-insure, is not a federally regulable action.  The outermost bounds of Congress’s power under the Commerce Clause, as exercised via the Necessary and Proper Clause, reach certain classes of intrastate economic activity that substantially affects interstate commerce.  But Congress cannot reach inactivity even if it purports to act pursuant to a broader regulatory scheme.

Allowing Congress to conscript citizens into economic transactions would not only be unprecedented—as government-friendly the precedent is—but would fundamentally alter the relationship between the sovereign people and their supposed “public servants.”  The individual mandate “commandeers the people” into the federal government’s brave new health care world.

The Eleventh Circuit will hear Florida v. U.S. Dep’t of Health & Human Services in Atlanta on June 8.