Tag: Obamacare

The Necessary & Proper Clause Isn’t a Blank Check

Cato legal associate Trevor Burrus and I have an article about to be published in the Syracuse Law Review that grapples with United States v. Comstock, last term’s big Necessary and Proper Clause case that could have big ramifications on the Obamacare litigation (but probably not, we argue). 

Here’s the abstract:

In United States v. Comstock, the Supreme Court upheld § 4248 of the Adam Walsh Act, which allows for the civil commitment of federal prisoners deemed “sexually dangerous” for an indefinite period after they’ve completed their sentences. The case dealt with that most basic of constitutional questions: Where does Congress find its authority to enact a particular law?

Justice Breyer, writing for the majority, found warrant for § 4248 in Congress’s power “to make all Laws which shall be necessary and proper for carrying into Execution” its other powers. But which of Congress’s enumerated powers does § 4248 execute? And is § 4248 necessary and proper for executing that power? Unfortunately, the Court focused mainly on the second question, arguing that Congress has “broad authority” to enact laws to further its enumerated powers. Moreover, the five-factor “test” Breyer offered asked not whether § 4248 was necessary and proper for executing an enumerated power, but for “a jumble of unenumerated ‘authorities,’” as Justice Thomas put it in a searching dissent joined by Justice Scalia.

Fortunately, Justice Breyer’s opinion was joined in full by only four other justices — with Justices Kennedy and Alito writing separately to emphasize the strict requirements that federal laws invoking the Necessary and Proper Clause must meet (even if those requirements were satisfied here). These concurrences, along with an impracticable majority opinion and a logically powerful dissent, suggest that Comstock may have limited application beyond the four corners of civil commitment law. Most prominently, Comstock seems to have little effect on the ongoing Obamacare litigation.

Read the whole thing.  Also read Ilya Somin’s article on Comstock in last year’s Cato Supreme Court Review.

Two Reasons Governors Should Stop Implementing ObamaCare

The Washington Post reports:

Practically every week, a Republican governor or lawmaker announces a new effort to kill the health-care law or undercut its implementation.

Unfortunately, many of those same governors are still implementing the law when they should be outright refusing to do so.

In my Kaiser Health News column today, I offer two reasons why (at least) Republican governors should stop implementing ObamaCare:

Swearing an oath to support the Constitution also obligates governors to use lawful means to prevent its unlawful abuse. Governors who believe ObamaCare to be unconstitutional are as duty-bound to stop implementing the law as they are to challenge it in court…

It is the height of fiscal irresponsibility to be making new spending commitments (1) when the federal deficit is $1.5 trillion and state budget deficits are a cumulative $175 billion, (2) when those new commitments create a framework for a massive new entitlement program, and (3) when that new spending comes under the auspices of a law that has been invalidated by one federal court and may be invalidated by the nation’s highest court.

So far, the only governors I’ve seen take a firm stand against implementing the law are Rick Scott (R-FL) and Sean Parnell (R-AK), who respectively govern the fourth-largest and the fourth-smallest states.  (Disclosure: I served on Rick Scott’s transition team.)

ObamaCare’s New Freedom

Earlier this month, President Obama’s HHS Secretary Kathleen Sebelius took to the Washington Post’s op-ed page to reassure everybody that ObamaCare “puts states in the driver’s seat” and “gives states incredible freedom to tailor reforms to their needs.” 

One grows weary of exposing the brazen falsehoods this administration incessantly and unconscionably peddles about its corrupt, unconstitutional, and irredeemable health care law.  But here I go again: the very idea that ObamaCare puts states in the driver’s seat is nonsense. States already had the power to enact all the taxes, mandates, and price controls that ObamaCare expects them to implement — and to make what few choices ObamaCare leaves them. 

If you want to know what Incredible Freedom really means, look to Wisconsin, where President Obama — who is evidently bored with the federal budget — has inserted himself into a state budget dispute, as David Boaz has noted

As it turns out, Incredible Freedom means you are free to do exactly what President Obama wants. 

The Washington Post reports on talk of federal bailouts for states (like Wisconsin) that are struggling with huge deficits and unfunded liabilities in their state pension and retiree health care programs.  However: 

The White House has dismissed such speculation, saying states have the wherewithal to raise taxes, cut programs and renegotiate employee contracts to balance their books

A startling admission.  Perhaps someone in the White House can pull Sebelius aside and explain that states also had the wherewithal to enact all the “reforms” that ObamaCare imposed on them.  States already were “in the driver’s seat.  They already had the power “to tailor reforms to their needs.” 

Then along came ObamaCare.

Alaska’s Parnell Becomes 2nd Gov. to Refuse to Implement ObamaCare

The Associated Press reports that Alaska Gov. Sean Parnell (R) told the Juneau Chamber of Commerce that he will not be implementing ObamaCare:

“The state of Alaska will not pursue unlawful activity to implement a federal health care regime that has been declared unconstitutional by a federal court,” Parnell told the Juneau Chamber of Commerce, to applause, Thursday.

The AP included a couple of interesting comments from ObamaCare supporters Timothy Jost, a law professor at Washington & Lee University, and Ron Pollack, executive director of Families USA.

Jost described Judge Roger Vinson (to whom Parnell referred) as “one renegade judge,” when in fact two federal judges have struck down ObamaCare’s individual mandate as unconstitutional.  (Since only two federal judges have upheld ObamaCare, who’s to say which pair are the renegades?)

Jost also called Alaska an “outlier” among states, while the AP reported, “Neither [Pollock] nor Jost knew of any other state taking action similar to Parnell.”  Jost and Pollack should know that Florida Gov. Rick Scott (R) had already refused to implement ObamaCare.  (Here he is telling an approving audience of Cato supporters.)  Ironically, the AP story overlooking Scott’s leadership appeared on the Miami Herald web site, which had previously reported that Scott even returned to the federal government the ObamaCare money that his predecessor Charlie Crist accepted but hadn’t spent. Scott may not be enough company to keep Parnell from being an outlier.  But Jost should also know that dozens of governors who are implementing ObamaCare are also hoping the Supreme Court will strike it down as unconstitutional.  Parnell and Scott are outliers for their courage, not because they oppose ObamaCare.

The news about Parnell came as the U.S. Department of Justice filed a motion asking Judge Vinson to clarify that his declaratory judgment “does not relieve the parties of their rights and obligations under [ObamaCare] while the declaratory judgment is the subject of appellate review.”  Ilya Shapiro and I clarified that issue in our oped, “President Should Heed Court and Stop Implementing ObamaCare.”

President (and Governors) Should Heed Court and Stop Implementing ObamaCare

In yesterday’s Providence Journal, my colleague Ilya Shapiro and I argue that, since a federal court has voided ObamaCare as unconstitutional, the Obama administration should immediately cease all efforts to implement ObamaCare:

Federal courts do not issue advisory opinions. The parties to any lawsuit are bound by any resulting judgment.

At minimum, then, the government lacks authority to implement ObamaCare where the case was decided, in the Northern District of Florida, and the 26 state plaintiffs need take no action to do so. Likewise, members of the National Federation of Independent Business, another plaintiff in the case, may now be entitled to the same protection from Obamacare’s requirements.

Moreover, it is not unreasonable to argue that Vinson’s ruling applies to the nation as a whole. After all, this lawsuit facially attacked the law rather than just challenging its application to particular parties….

In so uncertain a legal context, it is simply reckless for financially strapped federal and state governments to pour resources into changing our health care system when those changes may not ultimately pass constitutional muster.

Governors should follow the example of Florida Gov. Rick Scott (R), who recently told a Cato audience in Naples that Florida will not implement any aspect of ObamaCare.  Listen to excerpts from Scott’s remarks here.  Read the full Cannon-Shapiro oped here.

Snooki Tax Creates Jobs!

The IRS says it needs 1,054 more staffers – at a cost of more than $359 million in fiscal 2012 alone – just to watch over the initial implementation of Obamacare.  And this is before the individual mandate kicks in, the non-compliance with which the IRS is also supposed to police (which by itself doesn’t make the non-compliance penalty, let alone the mandate, a tax – for those of you following the constitutional taxing power arguments).

Among this new IRS battalion will be 81 people assigned to “Snooki tax” enforcement, making sure that tanning salons pay a new 10 percent excise tax.  Their cost: $11.5 million.  (And again for you constitutional taxing power fans: the Snooki tax, because it’s an excise – a tax on a transaction or activity or enjoyment of a privilege – is an actual tax, so no constitutional defects here whatever the wisdom of this policy might be.) 

So don’t let anyone say that Obamacare is “job-killing.”  Clearly the solution to all our unemployment problems is to create all sorts of new taxes and then hire everyone in the country to enforce them against everyone else.  (Also, we should block out the sun to create jobs for candlemakers, which policy would of course go hand in hand with outlawing incandescent light bulbs.)

H/T: Josh Blackman

A Dishonest Budget, as Told in One Graph

Yesterday, President Barack Obama released his proposed budget for fiscal year 2012.  Many of my Cato colleagues have already discussed why the president should be embarrassed of this document.  Chris Preble writes that the president offers “faux cuts” to military spending.  Dan Mitchell says the president is “missing in action” on entitlement reform.  Chris Edwards writes that “the Obama administration has completely chickened out on spending reforms in its new budget.”

They were too kind.  This budget is thoroughly dishonest, too.

Back in 1997, Congress enacted automatic reductions in the price controls that Medicare uses to pay for physician services.  Congress has delayed those cuts year after year, and everyone now agrees they are politically infeasible.  We’re not talking about your the usual, Washington-DC definition of spending cuts here, which is just a reduction in spending growth.  If the accumulated cuts were to take effect in 2012, as provided by current law, Medicare payments to physicians would fall by some 25 percent, and lots of seniors would find their doctor no longer accepts their Medicare coverage.  The problem is, these cuts are still on the books and they grow larger every time Congress delays them.  But no one wants to come up with the money needed to pay for a permanent “doc fix.”

Enter President Obama’s FY2012 budget submission.  Rather than propose a permanent “doc fix,” the Obama administration proposes a temporary and dishonest one.  As shown by the blue bars in the below graph, the administration proposes to delay these cuts until 2014 at a cost of $54 billion.  As shown by the black line, the administration proposes to pay for this additional spending by reducing the rate of spending growth in other areas of Medicare by $62 billion over the next 10 years.  Note that only 6 percent of these Medicare “cuts” will occur in 2012 and 2013.  The other 94 percent of the “cuts” will come after the administration has spent the $54 billion it wants to spend.  Note also that the vast majority of the “cuts” would take effect after Barack Obama is no longer president.   Finally, the president offers no proposals to deal with the cuts in physician payments during the last eight years of the 10-year budget window (as shown by the purple bars).  But he’s more than happy to use those implausibly low current-law spending levels to make his proposed budget appear more responsible than it is.

It’s the same old story: dessert today, spinach tomorrow.  (Or, never.)

Both parties engage in such dishonesty all the time.  Those cuts in physician payments were scheduled to take effect in 2011.  To pay for delaying them until 2012, Congress and the president agreed on the ridiculous and dishonest strategy of trying to track down and recover excessive subsidies that the federal government will pay to people in ObamaCare’s health insurance “exchanges,” beginning in 2014.  (Call it the new “pay and chase.”)