Tag: Obamacare

Cato’s Latest Obamacare Brief: Congress Cannot ‘Commandeer the People’

A recent poll showed that 22% of Americans believe Obamacare has been repealed and 26% aren’t sure.  Yet here at Cato, we’re all too aware that the massive, unconstitutional, and fundamentally unworkable overhaul of our health care system still looms on the horizon.

While two lower courts have struck down Obamacare in whole or in part, three others have ruled it constitutional, including a D.C. District Court opinion that claimed for the federal government the right to regulate the “mental activity” of decision-making.  As litigation progresses to the appellate level, this latter decision has proven to be more a hindrance to Obamacare’s supporters than a help, its Orwellian pronouncement being hard to ignore while the government downplays the significance of the power Congress is asserting.  Nevertheless, Obamacare’s constitutionality—with a focus on the individual health insurance mandate—remains an open question until ruled upon by the Supreme Court. 

Cato’s latest amicus brief is in the Fourth Circuit, in the case brought by Virginia Attorney General Ken Cuccinelli.  In this case, unlike in the Sixth Circuit (in which we also filed a brief), it is the federal government that appealed an adverse district court decision that struck down the individual mandate.  In our brief, joined by the Competitive Enterprise Institute and Prof. Randy Barnett (the intellectual godfather of the Obamacare legal challenges, and also a Cato senior fellow), we argue that the outermost bounds of existing Commerce Clause jurisprudence prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce.  Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme.  

Allowing Congress to conscript citizens into economic transactions is not only contrary to existing Commerce and Necessary and Proper Clause doctrine—as broad as that doctrine is—but it would fundamentally alter the relationship between the sovereign people and their supposed “public servants.”  The individual mandate “commandeers the people” into Congress’s brave new health care world.  If Obamacare is allowed to stand, the only limit on federal power will be Congress’s own discretion.

The case will be argued before the Fourth Circuit in Richmond on May 10.  Read more from Prof. Barnett on Obamacare here and check out the half-day event we recently held on the legal and economic problems with the law.  Finally, though his name isn’t on our brief because he hasn’t yet become a member of the bar, many thanks to legal associate Trevor Burrus for his work on it.

Friday Links

  • They passed the bill, and now we’re finding out what’s in it.
  • We’re finding out that the war in Libya could really be about protecting European interests.
  • In Atlas Shrugged, Ayn Rand described a world in which government both partly produced and partly subsidized goods; we’re finding out she wasn’t far off the mark.
  • We’re finding out that “American exceptionalism” is a cloak for military adventurism.
  • The longer America fights a war on drugs, the more we find out about how detrimental it is to our fiscal outlook:


ObamaCare Implementation: What Rivkin Said, and Why

A couple of people have asked me about a comment David Rivkin made at Cato’s recent conference on the first anniversary of ObamaCare.

Rivkin is representing the 26 states suing to overturn ObamaCare in Florida v. HHS, the case in which a federal judge declared ObamaCare unconstitutional and void. In his most recent ruling in that case, Judge Roger Vinson allowed the Obama administration to keep implementing and enforcing the law, in part because the fact that most of the plaintiff states are also implementing the law “undercut” their request that he stop the Obama administration from doing so.  I (and others) have been urging states to follow the lead of Republican governors Rick Scott (FL), Sean Parnell (AK), and Bobby Jindal (LA) by refusing and returning all Obama funds and refusing to implement any type of health insurance “Exchange.”

According to Politico, when asked about the impact of states implementing the law, Rivkin said:

The decision to take money or not take money is a quintessentially political decision that does not impede legal claims… If a given state wants to continue complying with Obamacare and receiving money, that’s not impairing our ability to challenge the law.

Consider that answer in context.  Rivkin is representing 26 states, and as their attorney he has a duty to them.  Asking him if plaintiff states implementing ObamaCare are undermining the lawsuit is basically to ask, “Aren’t 23 of your clients making your job harder?”  What should he have said?  Yes?  Of course not.  As a good lawyer should, he responded that those states are doing nothing to inhibit his ability to litigate the case.  He said nothing about whether those states’ actions could affect the outcome of his case (which they might), nor the likelihood that the law will be repealed (which they obviously do).  On those questions, he’s the wrong guy to ask.

Monday Links

  • A year later, Obamacare makes Pennsylvanians say “no thank you.”
  • In a peculiar set of responses to inquiries about Libya, the Obama administration makes “kinetic military action” against the English language.
  • Full or substantial government health insurance makes for an inefficient and expensive health care system.
  • Emotionalism as democratic waves spread across the Middle East makes incoherent foreign policy.
  • As long as big ticket items continue to make the cut, our fiscal house will remain in disarray.
  • If you didn’t get a chance to celebrate Earth Hour Cato-style over the weekend, check out this clip of senior fellow Jerry Taylor making the case against “green” subsidies:


Friday Links

  • When is an entitlement not an entitlement, but a command? When a federal judge contradicts herself, of course.
  • As the Arab League’s influence over its own member states wanes, of course they support the creation of an international no-fly zone over Libya.
  • Of course, there’s really no such thing as a “Social Security trust fund.”
  • Should the United States and Saudi Arabia remain allies? Of course—but Washington should probably re-think the terms of the partnership.
  • Of course, when George W. Bush was president, you couldn’t go anywhere in Washington without seeing an anti-war protest. Where have they all gone?


Thursday Links

  • There is a growing gap between Washington policymakers, and the taxpayers and troops who fund and carry out those policies.
  • Why do budget and deficit hawks keep sidestepping growing entitlements?
  • Don’t forget to join us on Monday, March 28 at 1pm ET for a live video chat with Julian Sanchez on the growing surveillance state.
  • The individual mandate in Obamacare is another example of the growing congressional power under the Commerce Clause:

At First Anniversary, ObamaCare on the Run

One year ago today, President Barack Obama signed ObamaCare into law. I recap ObamaCare’s first year in my latest Kaiser Health News column. Here’s some additional news surrounding the law’s anniversary.

Politico reports that supporters won’t have the vast war chest to defend the law that they once said they would:

Democrats are under siege as they mark the first anniversary of health care reform Wednesday — and they won’t get much help from the star-studded, $125 million support group they were once promised…[N]ine months later, the Health Information Campaign has all but disappeared. Its website hasn’t been updated since the end of last year. Its executive director and communications director are gone. There’s no sign that it has any money. And neither [former senator Tom] Daschle nor [former White House Communications Director Anita] Dunn will return calls asking about it.

Politico also reports on what everyone knows, but few reporters seem willing to say.  ObamaCare is unpopular, and growing more so:

Although Democrats insisted that the [law] would become more popular once the congressional debate ended and the benefits started to kick in, the reverse has actually happened. According to a Kaiser Health Tracking poll released Friday, 46 percent of the public opposes the law, up from 40 percent a year ago. Only 42 percent support the law, down from 46 percent a year ago.

Finally, Politico (again) reports that yet another governor – Louisiana’s Bobby Jindal (R) – has refused to implement ObamaCare:

The Louisiana governor’s office gave PULSE the first definitive answer on whether it would run its own health exchange, and it took them only two letters: no. “Obamacare is a terrible policy that needs to be repealed and replaced,” Gov. Bobby Jindal’s press secretary Kyle Plotkin tells PULSE. “It creates enormous new costs and future unfunded liabilities for states financing their Medicaid programs.” That puts him in a similar camp with Florida Gov. Rick Scott, who recently told us that Florida is “not doing anything with regards to the exchange, I don’t believe in the exchange. It doesn’t do anything to improve access to care. It does nothing to drive down health care costs.”

It’s worth emphasizing that Scott and Jindal probably know more about health care than the other 48 governors.