Tag: Obamacare

Obamacare on Appeal

As advocates gear up for the first appellate argument in the ongoing Obamacare lawsuits – Tuesday in Richmond – today marks an important milestone: the filing of two eloquent briefs responding to the government’s appeal of Judge Roger Vinson’s January ruling that found the individual mandate unconstitutional and non-severable, thereby striking the entire legislation. 

These two briefs, one by 26 states (and for the first time signed by former solicitor general Paul Clement) and one by the private co-plaintiffs in that same Florida case (the National Federation of Independent Business and two individuals) present a full-throated defense of the basic principle upon which this country was founded: that the federal government is one of enumerated and limited powers whose primary goal is to preserve liberty.  They describe exhaustively why that government cannot require people to buy goods or services as a means of regulating interstate commerce and why therefore the unprecedented individual mandate goes beyond what the Constitution authorizes.  Indeed, forcing people to buy health insurance is neither a regulation of interstate commerce nor a constitutionally appropriate means of achieving such regulation. 

If the Eleventh Circuit, which will hear argument June 8 in Atlanta, takes these arguments seriously – and adheres to the truism that the Constitution provides fixed limits on federal power – then the “linchpin” of Obamacare is doomed.  Any ruling to the contrary, allowing the individual mandate to stand, would unleash an entirely novel and unbounded conception of federal power.

Cato will be filing our own brief a week from today.  Georgetown law professor and Cato senior fellow Randy Barnett will not be on it, however, because he has joined the NFIB’s legal team – an exciting development, to be sure!

Wednesday Links

Inside Every Leftist Is a Little Authoritarian Dying to Get Out

I’ve been meaning to write about how ObamaCare’s unelected rationing board — innocuously titled the Independent Payment Advisory Board — is yet another example of the Left leading America down the road to serfdom.  (Efforts to limit political speech — innocuously called “campaign finance reform” — are another.)

As Friedrich Hayek explained in The Road to Serfdom (1944), when democracies allow government to direct economic activity, the inevitable failures lead to calls for a more authoritarian form of governance:

Parliaments come to be regarded as ineffective “talking shops,” unable or incompetent to carry out the tasks for which they have been chosen. The conviction grows that if efficient planning is to be done, the direction must be taken “out of politics” and placed in the hands of experts — permanent officials or independent autonomous bodies.

The problem is well known to socialists.  It will soon be half a century since the Webbs began to complain of “the increased incapacity of the House of Commons to cope with its work.”

Sound familiar?  National Review’s Rich Lowry picks up on the theme here.

Making this connection got a lot easier the other day when the University of Chicago’s Harold Pollack, a leading advocate of a “public option,” vented his frustrations over at The American Prospect blog about how Congress is likely to defang the Independent Payment Advisory Board. And he ends up just where Hayek predicted:

Despite many reasons for caution — the words George W. Bush foremost among them — I’m becoming more of a believer in an imperial presidency in domestic policy. Congress seems too screwed up and fragmented to address our most pressing problems.

This isn’t how it starts. This is how it snowballs.

Paging Dr. Hayek…

Supreme Court Denies Expedited Obamacare Review

That the Supreme Court declined to take up the Obamacare litigation before even a single appellate court had ruled on it is neither surprising nor game-changing.

Virginia Attorney General Ken Cuccinelli’s cert petition, whatever its merits (which were several), was a long-shot to begin with as a matter of practice and procedure.  Cato, like all other interested parties, has continued filing briefs in and commenting on the various cases on appeal around the country. 

The only noteworthy point here is that Justice Elena Kagan apparently participated in the consideration of the petition, which indicates that she won’t be recused when one of these cases does hit the Court.  This too isn’t terribly surprising: I’m still digging through the documents regarding her involvement (or lack thereof) in discussions about the litigation when she was solicitor general, but there does not as yet seem to be a “smoking gun” requiring recusal.

In any event, see you in Richmond on May 10 for the Fourth Circuit argument in the two Virginia lawsuits.

Thursday Links

Why I’m Boycotting PolitiFact

Reporters at PolitiFact.com have used me as a resource half a dozen times or so when fact-checking something someone said about health care reform. Sometimes we disagree about where the truth lies, but I’ve always been happy to help. That changed recently, and I should let PolitiFact’s reporters know why.

At the end of each year, PolitiFact sifts through the many claims its reporters have deemed untrue and selects one to be their Lie of the Year. The Lie of the Year award is easily PolitiFact’s biggest publicity-generator. In 2009, they picked Sarah Palin’s “death panels” claim. In 2010, they picked the claim that the new health care law is a “government takeover” of health care.

Looking at those two Lies of the Year together brought a couple of things home for me.

The first is not so much that each of those statements is actually factually true; it is rather that they are true for reasons that PolitiFact failed to consider. PolitiFact’s “death panels” fact-check never considered whether President Obama’s contemporaneous “IMAC” proposal would, under standard principles of administrative law, enable the federal government to ration care as Palin claimed. (In an August 2009 oped for the Detroit Free Press, I explain how the IMAC proposal would do just that.) PolitiFact’s “government takeover” fact-check hung its conclusion on the distinction between “public” vs. “private” health care, without considering whether that distinction might be illusory. (In a January 2011 column for Kaiser Health News, I cite well-respected, non-partisan sources – and even one of President Obama’s own health care advisors – to demonstrate that this distinction is illusory.) Aside from whether they arrived at the truth, each of these fact-checks was woefully incomplete.

Second, PolitiFact’s decision to go further by declaring those statements lies highlights a logical flaw in their Lie of the Year award. For a statement to be a lie, the speaker must know or believe it to be false. In neither the case of “death panels” nor “government takeover” has PolitiFact offered any evidence that the speakers knew or believed their statements to be false. Until PolitiFact offers such evidence, it has no factual basis for calling either statement a lie. Moreover, if PolitiFact’s reporters believe that Sarah Palin et alia believe that what they said was true – and I would be willing to bet good money that they do – then PolitiFact’s reporters know that their past two Lies of the Year aren’t really lies.

I have concluded that the errors in those two fact-checks, plus the fundamental (and rather ironic) error at the heart of PolitiFact’s Lie of the Year award, are serious enough that until PolitiFact addresses them I can no longer serve as a resource for PolitiFact in good conscience. Since January, I have declined maybe four requests for help from PolitiFact reporters, and will politely continue to do so until they address these errors.

Some conservatives think PolitiFact is a left-wing outfit. I don’t think that’s true, and I have defended PolitiFact against that charge. I believe that PolitiFact’s reporters are earnestly doing their best to get at the truth. But there’s a tension between that belief and these errors. Whether PolitiFact recognizes and addresses that tension will tell us a lot about PolitiFact.

The Battle of the Ilyas III: Together against Obamacare

As the number of events I’ve participated in as a result of my challenge to debate “anyone, anywhere, any time” on the constitutionality of Obamacare approaches 50, I find myself in many interesting situations. This past Tuesday was no exception, as George Mason law professor (and Cato adjunct scholar) Ilya Somin and I took on Yale law professor Akhil Amar and NYU law professor Rick Hills in an Oxford-style parliamentary debate organized by the Amherst College Political Union.

This event had a number of interesting subplots: Somin and I have held an annual “Battle of the Ilyas” but now appear on the same stage arguing from the same position; Amar wrote a scathing oped attacking Judge Roger Vinson’s decision in the Florida Obamacare case to which I responded by rewriting to lyrics to “Every Breath You Take”; Hills and Somin were both students of Amar; and, of course, the debate was in Massachusetts, home of the Romneycare state-based individual health insurance mandate.

I think Somin and I acquitted ourselves rather well, especially given that the audience was hardly a sympathetic one. I’ll reserve other comment, however, because you can view video of the debate here:



Postscript: After the debate, Amar and I made a $100 bet that our respective sides would prevail at the Supreme Court.