Tag: Obamacare

Romney and Huckabee, What a Choice

You know you’re really wrong when Mike Huckabee can call you out. But that’s the situation Mitt Romney finds himself in, as Michael Cannon points out below.  Huckabee says Romney’s government-run health care plan with an individual mandate is a bad idea, Romney says he’s still proud of his plan, which is totally different from President Obama’s government-run health care plan with an individual mandate. But really, what can he do? In 17 years of seeking high political office, he is known for two things: changing his position on a surprisingly large number of issues, and his Massachusetts health care program. Which was of course the forerunner of Obamacare, as Michael Cannon and I pointed out in the video that Michael linked. So Romney is still defending a position I think we’ve already refuted.

Meanwhile, in speeches and interviews this week, Mike Huckabee continues to make the untenable connection between gay marriage and family breakdown that I discussed two weeks ago in the Los Angeles Times. Huckabee told reporters:

Huckabee opposes gay marriage on the grounds that, according to him, it destroys traditional families.

“There is a quantified impact of broken families,” Huckabee said. “[There is a] $300 billion dad deficit in America every year…that’s the amount of money that we spend as taxpayers to pick up the pieces because dads are derelict in their duties.”

But what’s the connection? As I wrote:

One thing gay couples are not doing is filling the world with fatherless children. Indeed, it’s hard to imagine that allowing more people to make the emotional and financial commitments of marriage could cause family breakdown or welfare spending….

Social conservatives point to a real problem and then offer phony solutions.

But you won’t find your keys on the thoroughfare if you dropped them in the alley, and you won’t reduce the costs of social breakdown by keeping gays unmarried and preventing them from adopting orphans.

One might add that, as Huckabee knows very well, rates of divorce and unwed motherhood soared decades before anyone started agitating for gay marriage.

If Huckabee and Romney are the Republican frontrunners, President Obama must be sleeping well these days.

Romney Van Winkle

In 2006, then-Massachusetts governor Mitt Romney (R) fought for and enacted a health care law now known as RomneyCare – though the law is so nearly identical to ObamaCare that one could call it ObamaCare 1.0.  Romney is seeking the GOP nomination for president in 2012.  But since 84 percent of Republicans want ObamaCare repealed, the fact that he paved the way for ObamaCare is causing problems for Romney among the party faithful.  The most recent manifestation came in the form of a tongue-lashing from former Arkansas governor Mike Huckabee (R), whose book criticizes Romney both for enacting RomneyCare and for refusing to admit it was mistake.  In a recent interview, Huckabee said:

The position he should take is to say: “Look, the reason Obamacare won’t work is because we’ve tried it at the state level and we know it won’t work.”

Through a spokesman, Romney has – once again! – defended ObamaCare 1.0:

“Mitt Romney is proud of what he accomplished for Massachusetts in getting everyone covered,” Romney’s spokesman, Eric Fehrnstrom, told the Boston Globe, in the first direct response Team Mitt made to Huckabee’s criticism of the health plan in his new book.

Fehrnstrom added the usual stuff about how, even though Romney is proud of what RomneyCare/ObamaCare has done for Massachusetts, RomneyCare/ObamaCare may not be right for the entire nation.  As David Boaz and I explain in this Cato video, to which Romney has lent enduring relevance, Romney can’t have it both ways:

It’s as if the guy has just awakened from a 20-year nap and doesn’t realize the world has changed.

Not Just Breathing: Now the Feds Can Regulate Thinking

I suppose it’s a metaphysical question: Is it more outrageous/scary to argue that Congress can regulate breathing, as Akhil Amar recently argued (prompting my “Every Breath You Take” parody) or that it can regulate thinking, as the latest federal judge to rule on Obamacare opined

That is, Judge Gladys Kessler, echoing two other district judges who ruled in the government’s favor, found that the decision not to purchase health insurance was itself an action and so reachable by Congress’s power under the Commerce Clause. The activity/inactivity distinction that we Obamacare opponents have been pushing is mere “semantics,” you see.  Well, as Randy Barnett said in an emailed press statement:

This decision makes crystal clear that the government is seeking the dangerous and unprecedented power to regulate the economic “decisions” of all Americans – including the decision to refrain from engaging in economic activity.  If allowed by the Supreme Court, Americans would be reduced from citizens to the subjects of Congress, which would now have the discretionary power to run their lives.

He’s right, unfortunately.  But take a deep breath or breathe a sigh of relief (while both are still legal) because, at the end of the day, this latest ruling adds nothing to the debate except a new appellate court from which we can expect an opinion later this year.  (It also ran the record on the “taxing power” argument – the one so favored by the academics I’ve debate over the past year – to 0-4, including two judges who otherwise ruled for the government.)

See also Ilya Somin’s reaction.

Look, the arguments on both sides are clear: On the one hand, the federal government cannot require people to engage in economic activity under the guise of regulating commerce. On the other, the decision not to act is itself an action – “mental activity”? – that is subject to regulation. The battle lines are drawn, the armies of lawyers ready. The only remaining question is whether the Supreme Court will ultimately find that there are constitutional limits to federal power.

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.”