Tag: ppaca

A ‘Soviet-Style Power-Grab,’ to Squelch Bad Press for ObamaCare

The Department of Health and Human Services has released new guidelines on communications between department employees and the media.  The guidelines evidently require all communications to be approved by the Assistant Secretary for Public Affairs.  Also: no off-the-record communications.

The media are not happy.  The editor of FDA Webview & FDA Review writes (via Poynter; more here):

The new formal HHS Guidelines on the Provision of Information to the News Media represent, to this 36-year veteran of reporting FDA news, a Soviet-style power-grab. By requiring all HHS employees to arrange their information-sharing with news media through their agency press office, HHS has formalized a creeping information-control mechanism that informally began during the Clinton Administration and was accelerated by the Bush and Obama administrations. The U.S. now takes a large step toward joining other information-controlling countries like my native Australia, where government employees who talk with the news media without permission commit a federal crime. I came to the U.S. in 1974 to escape this oppression.

The HHS guidelines once again show that the purpose of a public information office is not to disseminate information to the public but to withhold information from the public.

Since this came on the heels of an HHS official announcing that the agency is scuttling ObamaCare’s long-term care entitlement, a.k.a. the “CLASS Act,” one wonders if there is a connection.  Or maybe HHS is just motivated by a general fear that the more the public learns about ObamaCare, the less we will like it.

(Update: Turns out, HHS released their new guidelines the same day that agency official voiced his opinion about the future of the CLASS Act. HT: Chris Jacobs.)

Does PPACA’s Mandate ‘Carry into Execution’ the Commerce Power?

The Obama administration contends that its mandate to purchase health insurance is “necessary and proper” to effect PPACA’s comprehensive scheme of interstate health care regulation. The constitutional argument is two-part: First, the Commerce Clause empowers Congress to regulate interstate health care. Second, the Necessary & Proper Clause empowers Congress to implement health care regulation by directing individuals to acquire medical insurance or pay a penalty. The administration concedes that the underlying purpose of the mandate is to subsidize insurance companies so they can afford to cover pre-existing conditions, which PPACA commands.

Consider the text of the Necessary & Proper Clause. It authorizes Congress “To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States.” For example, Congress’s power to spend—which is not expressly mentioned in the Constitution—is necessary for carrying into execution numerous other powers that entail the expenditure of money. Also, the Supreme Court has determined that Congress’s power to regulate intrastate commerce may occasionally be necessary for carrying into execution Congress’s enumerated power “To regulate Commerce among the several States.” Similarly, Congress’s power to establish a federal penal system may be necessary for carrying into execution Congress’s enumerated power “To provide for the Punishment of counterfeiting” and certain other crimes.

All those implied powers are instrumental. They afford a means by which other express powers can be carried into execution. By contrast, PPACA’s health insurance mandate does not carry into execution any express power, including the Commerce Power to regulate interstate health care. Indeed, health care regulation—even with its requirement that insurers cover pre-existing conditions—could have been implemented without the mandate, in which case insurance companies would have been compelled to raise premiums, cut other costs, or accept lower profits.

Instead of carrying health care regulation into execution, the mandate is designed solely to produce a specified outcome for the benefit of private insurers—i.e., to subsidize insurers so they don’t have to raise premiums, cut other costs, or accept lower profits. In other words, the mandate is simply a cost distribution scheme: a policy judgment having nothing to do with facilitating execution and everything to do with who pays the bill. Because the mandate relates to outcome and not process, it cannot be prerequisite for carrying into execution the Commerce Power. Accordingly, it cannot be authorized under the Necessary & Proper Clause, the sole purpose of which is to carry other powers into execution.

Constitutional Structure Matters: A Response to Larry Tribe

SCOTUSblog’s symposium on the constitutionality of Obamacare – to which I contributed, as did Bob Levy – provides a glimpse at the astonishing views of the law’s supporters.  It particularly shows how divorced the legal academy’s leading lights are not only from basic constitutional text and structure, but from jurisprudential reality.

Most prominently, in responding to the Eleventh Circuit’s decision striking down the individual mandate (and to Richard Epstein’s symposium essay), storied Harvard professor Laurence H. Tribe criticizes the court for “reflecting what appears to be a widely held public sentiment” that Congress cannot “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”  That sentiment is a problem, according to Tribe, because it elevates form over substance.  That is, just as it has done with Social Security, Congress could (under modern jurisprudence, which is wrong as a matter of first principle but not at issue in the Obamacare lawsuits) levy another income or payroll tax and use that revenue to provide health insurance and/or care for otherwise uninsured individuals:

Put otherwise, Congress may undoubtedly use its taxing power to mandate that individuals pay for coverage supplied by private insurers, so long as it acts in two steps: step 1, impose a tax, and step 2, use the proceeds of the tax to fund privately provided health insurance for each individual. If Congress may accomplish this objective in two steps, why not in one? No federalism or liberty-related concern, whether the dignity of the states or that of individuals, is served by denying Congress that authority.

Tribe’s reasoning echoes Justice Breyer’s reason (in dissent) for rejecting the notion that the Takings Clause applies when the Government orders an individual to pay another individual, in the case of Eastern Enterprises v. Apfel:

The dearth of Takings Clause author­ity is not surprising, for application of the Takings Clause here bristles with conceptual difficul­ties. If the Clause applies when the government simply orders A to pay B, why does it not apply when the government simply orders A to pay the government, i.e., when it assesses a tax?

But there is a very good reason why courts should deny Congress the power to compel individuals to purchase products from private parties or, for that matter, the power to order A to pay B – even if a similar result could be accomplished through the taxing power: political accountability. As Georgetown law professor (and Cato senior fellow) Randy Barnett explains:

Like mandates on states, economic mandates undermine political accountability, though in a different way. The public is acutely aware of tax increases. Rather than incur the political cost of imposing a general tax on the public using its tax powers, economic mandates allow Congress and the President to escape accountability for tax increases by compelling citizens to make payments directly to private companies.

Indeed, scholars as diverse as Richard Epstein and Cass Sunstein have argued that the Takings Clause requires just compensation precisely to preserve political accountability in the provision of public goods. As Justice Scalia explained in the case of Pennell v. City of San Jose:

The politically attractive feature of regulation is not that it permits wealth transfers to be achieved that could not be achieved otherwise; but rather that it permits them to be achieved “off budget,” with relative invisibility and thus relative immunity from normal democratic processes.

Under modern jurisprudence, essentially the only check on Congress’s taxing and spending powers under the General Welfare Clause (as opposed to its regulatory power under the Commerce Clause) is political.  So yes, Professor Tribe, there is a constitutional reason for depriving Congress of the power to do in one step what it could surely do in two other steps: to maintain that remaining constitutional qua political check. Indeed, the very reason why Congress adopted the individual mandate was because it lacked the political will – it feared political accountability too much – to impose single-payer universal coverage, where the government would first impose a tax on everyone and then provide health care (at this point it’s no longer “insurance”) to everyone.

To accomplish the same result without having to impose significant new taxes – as President Obama famously promised there would not be – Congress tried to evade political accountability through the individual-mandate mechanism. That’s why the Eleventh Circuit wisely declined to grant Congress the power to move a significant part of its spending “off budget” and “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

Cato legal associate Chaim Gordon co-authored this blogpost.

What’s Next in the Obamacare Litigation?

My colleagues and I have covered the substance of the Eleventh Circuit ruling that two weeks ago struck down the individual mandate, but where do we go from here?  Why hasn’t the Supreme Court yet resolved the conflict between that ruling and the Sixth Circuit’s from earlier in the summer?  When will it do so?  A few points:

  1. The government is now likely to seek en banc review, meaning that they want the entire 10-judge court to review the 3-judge panel’s ruling.  It’s extremely unlikely that the Eleventh Circuit would grant such a motion because the panel is already 2-1 against and the members of the court not on the panel are a 4-3 Republican-appointed majority.  You need a majority (6 of 10) to get en banc review, which means the dissenting Judge Stanley Marcus from the panel, plus the three other Democratic appointees, plus two others.  Not gonna happen.  Thus, a government motion for en banc rehearing would be a purely political ploy to push the eventual Supreme Court decision past the election – no legal reason to do it. The release of the decision not to grant en banc review (which doesn’t require a written opinion) could be delayed, however, by the writing of a dissent from that denial.
  2. The earliest the Supreme Court could grant cert – on the existing petition out of the Sixth Circuit – is the moment after this blogpost goes live.  (Note that Cato adjunct scholar Tim Sandefur filed an amicus brief supporting that petition for the Pacific Legal Foundation, which brief he describes here.)  More realistically, it would be the week before the term opens for argument in October, right after the so-called long conference, when the justices review and rule on all the petitions that have come in over the summer. But they’ll likely wait to get the Eleventh Circuit case because they’d probably rather hear from the 26 states (and their counsel, former solicitor general Paul Clement) than any other plaintiffs. Here’s where it gets interesting: Assuming the government asks for en banc review, the plaintiffs could still file their own cert petition because they lost on severability and the Medicaid-coercion issue. Stay tuned.
  3. I still think this will get to the Court this term one way or another, with argument in the spring and a decision the last week of June.
  4. No stay of the Eleventh Circuit’s ruling is needed because the individual mandate doesn’t go into effect until 2014 and that’s the only provision that’s been struck down. So we don’t need to go into the type of analysis we did after Judge Vinson’s decision about what the federal government is authorized to do to keep implementing the legislation, in the 26 states or generally.

For more analysis, largely based on the above, see Jennifer Rubin’s Washington Post blog.

Supreme Court Should Review Obamacare Case Now

I’m glad Trevor Burrus took the laboring oar in pointing out highlights from an Eleventh Circuit opinion that, as he put it, “is not only exhaustive, it is convincing.”  I’ve been swamped with editing the Cato Supreme Court Review and preparing for our Constitution Day conference, so have had little time to put words on paper (or even on screen) after my initial statement.

I did put together one op-ed, however, that ran today in Politico.  Here’s an excerpt:

By [striking down the individual mandate], the court — including, for the first time, a judge appointed by a Democratic president — reaffirmed that the Constitution places principled limits on federal power. It rejected the government’s argument for a situational limit on Congress’s regulatory authority based on the idea that health care is “unique,” and somehow different both from other products that everyone consumes (like food, clothing and shelter) and other types of insurance against unpredictable events (like death, disability and natural disasters).

The government’s position failed to sway the court because it did not suggest a constitutional interpretation of the commerce power. Indeed, factors like the inevitability and unpredictability of treatment, the requirement that hospitals treat people with emergency medical conditions and the high cost of advanced care “speak more to the complexity of the problem being regulated than the regulated decision’s relation to interstate commerce. They are not limiting principles, but limiting circumstances.”

I conclude that now that we have two thorough circuit court opinions going in opposite directions, there’s no reason to wait any further:  The government should file for, and the Supreme Court should grant, a petition for certiorari (review).  Any delay by the government would be base political strategery, an attempt to push the eventual Court decision – whatever it is – past the November 2012 presidential election.

An Unprecedented Expansion of Federal Power

That’s how I describe the individual mandate in my contribution to SCOTUSblog’s online symposium on Obamacare, which Trevor Burrus has already highlighted.  Here’s an excerpt:

All the Obamacare legal challenges boil down to Congress’s authority – or lack thereof – to require people to buy private insurance.  Although unfortunately not dispositive of modern judicial decisions, the text of the Constitution demands that the Supreme Court strike down the individual mandate as an unconstitutional exercise of Congress’s power to regulate interstate commerce.  Finding the mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity – in effect requiring an individual to engage in an economic transaction.

Moreover, upholding Obamacare would grant the federal government wide latitude to mandate that Americans engage in activities of its choosing.  An expansive holding here would fundamentally alter the relationship between the government and the people.  If the challenges fail, there will be no principled limits on federal power.

I go on to describe the current state of play at the appellate and outline what we can expect going forward, as well as providing links to useful resources on this issue.  Read the whole thing.

Here We Go Again: ObamaCare’s Preventive-Care Subsidies Aren’t ‘Free’

In press release, a new video, and an elusive new report, the Obama administration is boasting about the “free” preventive services that ObamaCare provides to Medicare enrollees.

Here we go again.

First, these preventive-care subsidies are not “free.” They are costing taxpayers dearly by adding to America’s $14 trillion national debt.  There is no such thing as a free lunch.  And there is nothing “free” about ObamaCare.

Second, ObamaCare supporters have claimed that more preventive care would reduce health care spending, but research shows that it will not.

Third, I hope someone is keeping track of all the taxpayer dollars this administration has wasted trying to convince the American people that they’re wrong to dislike ObamaCare.

Finally, if the $250 checks that ObamaCare sent to millions of Medicare enrollees didn’t make this law popular among seniors, I doubt these indirect subsidies will.