Tag: Obamacare

NYT: Attorneys General Advance “a Credible Theory for Eviscerating” ObamaCare

The New York Times‘ Kevin Sack reports on the legal challenge to ObamaCare’s individual mandate launched by 20 state attorneys general:

Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it…

Jonathan Turley, who teaches at George Washington University Law School, said that if forced to bet, he would predict that the courts would uphold the health care law. But Mr. Turley said that the federal government’s case was far from open-and-shut, and that he found the arguments against the mandate compelling.

“There are few cases in the history of the court system that have a more significant assertion of authority by the government,” said Mr. Turley, a civil libertarian who acknowledged being strange bedfellows with the conservative theorists behind the lawsuit. “This case, more than any other, may give the court sticker shock in terms of its impact on federalism.”

Supporters claim the individual mandate will pass muster with the Supreme Court because in the past the Court has declared that the U.S. Constitution’s interstate commerce clause authorizes Congress to regulate non-commercial activity that affects interstate commerce. Sack writes:

Lawyers for the government will contend that, because of the cost-shifting nature of health insurance, people who do not obtain coverage inevitably affect the pricing and availability of policies for everyone else. That, they will argue, is enough to satisfy the Supreme Court’s test.

But to [the attorneys’ general outside counsel David] Rivkin, the acceptance of that argument would herald an era without limits.

“Every decision you can make as a human being has an economic footprint — whether to procreate, whether to marry,” he said. “To say that is enough for your behavior to be regulated transforms the Commerce Clause into an infinitely capacious font of power, whose exercise is only restricted by the Bill of Rights.”

Sack’s article contains an inaccuracy.  He writes:

Congressional bill writers took steps to immunize the law against constitutional challenge…They labeled the penalty on those who do not obtain coverage an “excise tax,” because such taxes enjoy substantial constitutional protection.

In fact, the law uses the term “excise tax” several times, but never in reference to the penalty for violating the individual mandate.  It describes that penalty solely as a penalty.  (The law does refer to the penalty for violating the employer mandate as a tax, but not an excise tax.)

As my Cato colleague Randy Barnett explains, that means supporters cannot reasonably claim that the individual mandate’s penalty is a tax, because that’s not what Congress approved.  As Cato chairman Bob Levy explains, even if supporters do claim that penalty is a tax, it would be an unconstitutional tax, because it does not fit into any of the categories of taxes the Constitution authorizes Congress to impose.

The “substantial constitutional protections” afforded to excise taxes do not protect the individual mandate.

The Faux Compassion of Club Sarkozy

Shortly after President Obama signed his health care law, French president Nicolas Sarkozy offered this backhanded compliment to the United States: “Welcome to the club of countries that does not dump its sick people.

In this month’s Diplomat magazine (U.K.), I explain pourquoi c’est fou:

Every member of Sarkozy’s “club” has its stories of sick people who have been “dumped,” in one manner or another, despite laws that officially preclude such things from ever happening. In 2005, Canada’s Supreme Court wrote of its country’s Medicare system: “Access to a waiting list is not access to healthcare…[T]here is unchallenged evidence that in some serious cases, patients die as a result of waiting lists for public health care.” The British, meanwhile, often seem more content to let the National Health Service shortchange its patients than to let an American lecture them about how often it happens.

The checkered history of government guarantees is why so many Americans – a majority, in fact – oppose President Obama’s new law, which they believe will move the United States even further from Sarkozy’s ideal world than it is now.

Presidents Obama and Sarkozy may prefer the false compassion of a government guarantee.  I’ll take the real thing.

Repeal the bill.

Obama vs. Common Sense

President Obama delivered a commencement speech at the University of Michigan in Ann Arbor on Saturday.

He called on all Americans “to maintain a basic level of civility in our public debate.”  Who could argue? Yet the president apparently believes that civility means protecting his policies from valid criticism.

He instructed graduates that “the practice of listening to opposing views is essential for effective citizenship.”  Right again.  But the civics lesson rings hollow coming from a president who falsely claimed there was “no disagreement” over his massive “stimulus” bill, and that opponents of his health care takeover offered no proposals of their own.

He explained, “what we should be asking is not whether we need ‘big government’ or a ‘small government,’ but how we can create a smarter and better government.”  Which is pretty much what every politician says when he wants big government and voters want small government.

Most troubling was this: “What troubles me is when I hear people say that all of government is inherently bad.”  That remark reminded me of this passage from Thomas Paine’s Common Sense: “Government, even in its best state, is but a necessary evil.” And it has me thinking that our president, a former constitutional law professor, who just received an honorary Doctor of Laws degree from the University of Michigan, really doesn’t get the American idea of government. At all.

Constitution Offers No Haven to ObamaCare’s Individual Mandate

With multiple lawsuits challenging the constitutionality of ObamaCare’s “individual mandate,” the law’s backers have proffered two principal arguments in its defense.  First, they claim that Congress has the power to require U.S. residents to purchase health insurance under the Constitution’s grant of power “to regulate Commerce…among the several States.”  Second, they claim the measure is authorized by the taxing power.

Regarding the commerce power, Cato senior fellow Randy Barnett explains in yesterday’s Wall Street Journal:

[T]he Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented.

Barnett also explains that the text of the law precludes ObamaCare’s defenders from claiming that the individual mandate is authorized by the taxing power.  The individual mandate defines a minimum level of coverage and then imposes a penalty on people who do not purchase such coverage.  Barnett notes that the law invokes the commerce power (not the taxing power) to justify the mandate, and refers to the penalty for non-compliance as a “penalty” (not a tax):

In short, the “penalty” is explicitly justified as a penalty to enforce a regulation of economic activity and not as a tax. There is no authority for the Court to recharacterize a regulation as a tax when doing so is contrary to the express and actual regulatory purpose of Congress.

At National Review Online, Cato chairman Bob Levy explains, “even if the penalty for noncompliance is deemed to be a tax rather than a fine, it does not meet the constitutional requirements for income, excise, or direct taxes,” and would be an unconstitutional tax.

That leaves ObamaCare’s supporters to defend the individual mandate as an (unprecedented) use of the commerce power.  Barnett writes:

Are there now five justices willing to expand the commerce and tax powers of Congress where they have never gone before? Will the Court empower Congress to mandate any activity on the theory that a “decision” not to act somehow affects interstate commerce? Will the Court accept that Congress has the power to mandate any activity so long as it is included in the Internal Revenue Code and the IRS does the enforcing?

Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.

Levy concludes, “Legal refinements aside, the insurance mandate is an affront to personal liberty that will exacerbate our health-care problems. For those who care, it’s unconstitutional as well.”

Columbus Dispatch: ObamaCare = Malpractice

Popular discontent with ObamaCare extends even so far as the traditionally left-of-center Columbus Dispatch editorial page:

Almost daily, the ill effects of the health-care overhaul passed by Congress last month are becoming apparent. As employers and government bureaucrats analyze the law’s effect on bottom lines for the private sector and for government, the alarm bells are ringing.

The tragedy is that these ill effects could have been and should have been calculated before the law was passed, not after.

In fact, many of them were prophesied before passage of the bill, but the prophets were ignored by President Barack Obama and the Democratic majority in Congress. That’s because their uppermost goal was not to pass the best health-care bill possible but merely to pass anything that could be called “health-care reform” and could be claimed as a political victory by a president desperate for one.

The latest analysis of the bill’s likely effects comes from the Office of the Actuary in the federal Centers for Medicare and Medicaid Services. The report by Chief Actuary Richard S. Foster says that, far from reducing the cost of health care, the overhaul will add $311 billion to the nation’s health-care costs over the first decade the law is in effect…

As the weeks roll by, more and more unintended and should-have-been-anticipated consequences of this ill-conceived law will be revealed.

This should be no surprise, considering that the law was slapped together behind closed doors without proper testimony and vetting by health-care, financial and insurance experts, and is a patchwork of political and special-interest deals rammed through Congress using procedural gimmicks.

The nation deserved something much, much better than this.

Read the full editorial.  Repeal the bill.

ObamaCare Is RomneyCare 2.0

Former Massachusetts governor and possible 2012 presidential contender Mitt Romney has spent a lot of time campaigning against the recent health care overhaul.

One problem: It looks a lot like the law he signed in 2006 while he was governor of Massachusetts.

“In every important respect the Obama plan and the Romney plan are identical,” says Michael Cannon, Cato director of health policy studies.

In a new video, Cato’s David Boaz and Michael Cannon explain how alike the two plans really are. Watch:

Cato scholars have been critical of Romney’s health care plan since its inception.  In June 2006, Michael Tanner authored the Cato Briefing Paper, “No Miracle in Massachusetts: Why Governor Romney’s Health Care Reform Won’t Work,” and concluded:

[T]he act goes far beyond an individual mandate to radically change the way health insurance is bought and sold in the state. Many observers see Massachusetts’s reforms as a model for the nation, but a closer look provides ample reasons to be skeptical.

…Health care needs more consumer control and freer markets, not more government regulation, controls, and subsidies. The Massachusetts reform takes us in the wrong direction.

(It was not long before Tanner’s predictions about the Massachusetts plan came true.)

Romney’s record on health care will certainly come up if he pursues further political aspirations in the next few years. As David Boaz asks, “How can he lead the charge against a health care plan that is modeled on his own? How can he go around denouncing a government takeover and an intrusion of people’s rights when he authored a very similar plan?”

Good question.

Waking Up at Last

Tony Blankley, former press secretary to Speaker of the House Newt Gingrich, exults in the Washington Times that Americans are waking up “to our heritage of freedom” and to the abuse of the Constitution:

All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies’ legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare “deemed” to have been enacted, rather than actually publicly voted on by Congress.

Amazingly, spontaneously, Americans are educating themselves about the details of our Constitution.

He’s absolutely right. All those actions do raise serious questions about whether there are still any constitutional limitations on government, which is to say, whether the Constitution is still in effect, questions that Roger Pilon also raised this week in the Christian Science Monitor. But it would be even better if Americans had noticed the threats to constitutional government a bit earlier, if not during the New Deal or the Great Society, then perhaps during the past decade when, as Gene Healy and Tim Lynch wrote in 2006:

Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

  • a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
  • a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
  • a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as “enemy combatants,” strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
  • a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush’s constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.

But better late than never, and we join Tony Blankley in hoping that the Constitution’s limits on the powers of the federal government will once again be an issue in American politics and governance.