Tag: Virginia

Why Is Virginia Gov. Robert McDonnell Implementing ObamaCare?

I ask this question in today’s Richmond Times-Dispatch:

Virginia Republican Gov. Bob McDonnell…says Obamacare is unconstitutional and therefore illegitimate. Yet he has created a state commission to study whether Virginia should implement an illegitimate law. Since the answer does not appear self-evident to commonwealth officials, let’s walk through the reasons Richmond should refuse to create any new health-care bureaucracies.

Didn’t this guy take an oath to support the U.S. Constitution?

Fiscally Conservative, Socially Liberal Virginians

The Washington Post just did a major poll of Virginians and tantalizingly included this note in writing up the results:

In contrast to four years ago, about as many Virginians consider themselves to be liberal on social matters as call themselves conservative. Fiscal conservatism is on the rise, but on these social issues, it’s liberalism that’s ticked higher.

But those questions were not included in the published data. Thanks to the generosity of Post polling director Jon Cohen, I can report that the percentage of Virginians who said they were socially liberal or moderate and fiscally conservative went from 16 in 2007 to 23 in the latest poll. This reflects a small increase in the number of social liberals and a larger increase in the number of fiscal conservatives. And here are the tables on those questions:

We’ve written about fiscally conservative, socially liberal voters before, notably here and here, and in relation to Virginia and in the Republican party. Apparently when you ask people, “Would you describe yourself as fiscally conservative and socially liberal?”, you get a higher percentage than when you ask the questions separately, as the Post did. When the Zogby Poll asked that question to actual voters in 2006, fully 59 percent said yes. Broader background on the “libertarian vote” here.

Yes, Says Virginia, There Are Limits on Federal Power

Today, the Fourth Circuit became the first appellate court in the nation to enter the Obamacare fray.  It heard two very similar cases back-to-back, Liberty University’s, in which the government won in the district court, and the Commonwealth of Virginia’s, in which Judge Henry Hudson struck down the individual mandate back in December.  Going into the hearing, Virginia Attorney General Ken Cuccinelli’s legal team had done a wonderful job setting out the reasons why Hudson was correct and why Congress went too far in asserting the unprecedented power to compel people to enter into contracts with private insurance companies.  I was proud to sign Cato’s brief supporting that position and continue to maintain that the federal government cannot require people to buy goods or services under the guise of regulating interstate commerce.  Moreover, the individual mandate is the linchpin of the overall legislative scheme (as everyone concedes), so if it falls, the rest of the law—at least its central provisions—must fall with it.

Indeed, the Fourth Circuit judges—a Clinton appointee and two Obama appointees, in a random selection unfortunate to the challengers—struggled with the idea that Congress could regulate “inactivity.”  The government—which has now determined that the challenges are so serious as to send the solicitor general to argue in lower courts—claimed that Congress can do anything it wants relating to anything that in any way affects a national market such as that for health care.  Given that decisions not to buy insurance, or to self-insure, or not to pay for health care until presented with a bill, clearly have a substantial effect on interstate commerce, the argument went, Congress can require people to buy health insurance.  The judges seemed to agree to a certain extent but were still troubled by the textual truism that a power to “regulate” implies an active object or activity that is being regulated.  And indeed, if a “decision” not to buy something or the state of not having acquired something is all that is required to invoke congressional jurisdiction, then the Constitution’s enumerations of federal power mean absolutely nothing.

The government is understandably unconcerned with articulating a principled limit on its own power, and this particular panel of judges may find some way to avoid dealing with the activity/inactivity conundrum, but one can only hope that the Supreme Court ultimately rejects the claim that Congress can grant itself unlimited power simply by legislating in an area of great national concern.

Starting at 2pm Eastern, you can stream the oral arguments from the Court’s website here.

Anti-Obamacare Rulings a Trend or Just Coincidence?

I’m fond of saying that lawsuits don’t proceed at Internet speed – meaning that people are disappointed when I tell them that a new constitutional challenge to uphold property rights or free speech or individual liberty generally will take years to get through the courts, or that we’ll have to wait several months for a court to issue an opinion in some front-page case.  But lately it does seem that developments from the ongoing legal challenges to Obamacare are coming faster and faster, as if the train has now left the station and, to badly mix metaphors, it’s snowballing to an eventual collision at the Supreme Court.

That “gaining speed” phenomenon is mainly coincidence – given the more than 20 Obamacare lawsuits out there, briefing schedules, hearings, and rulings are bound to overlap at some point – but it has been interesting to compare and contrast the events of the last 10 days.  To recap some of the high points, this summer Judge Henry Hudson denied the government’s motion to dismiss Virginia’s law suit (read my comments here and Cato’s brief here).  Then two weeks ago, Judge George Steeh granted a similar motion in a case brought by the Thomas More Law Center in Michigan – in a cursory opinion I react to here and critique in this op-ed.

Last Thursday, Judge Roger Vinson issued a 65-page opinion allowing most of the lawsuit brought by 20 states, the National Federation of Independent Business, and two individuals to proceed (my reaction here).   This is an important ruling spelling out the unprecedented nature of the power Congress purports to assert here, with the individual mandate of course but also in potentially commandeering state officials and coercing them with strings attached to Medicaid funds and other regulatory burdens.

Finally, yesterday Judge Hudson held a hearing in Richmond on the parties’ cross-motions for summary judgment – which means both sides agree that no material facts are in dispute and the court should go ahead and rule on the law without having a trial.  (Cato filed a brief for this stage of proceedings as well.)  By all accounts, the hearing went well for Virginia; Judge Hudson was skeptical of the government’s argument that individual decisions not to enter the insurance marketplace was the sort of “local economic activity that has a substantial effect on interstate commerce” that the Supreme Court has said marks the outer bounds of Congress’s power under the Commerce Clause.  The judge also indicated that he would issue an opinion by the end of the year.

This is all heartening news – the courts that are seriously grappling with these lawsuits (and especially the highest profile cases brought by the 21 states) actually think the Constitution places limits on federal power.  Then again, I can’t believe that question is even up for discussion!  Stay tuned – and keep track of all the lawsuits at healthcarelawsuits.org.

Gov. Bob McDonnell Needs to Lead on the Budget and Education

Gov. McDonnell just signed a bill that will give a tax credit to the film industry. They will shell out up to $2.5 million to movie-makers in the first year and up to $5 million thereafter. Proponents say it might save money. Unfortunately, the evidence from other states suggests it will lose money.

At a time of economic turmoil and budget problems, the Governor wants to lose money by giving a tax credit to the film industry. It’s even refundable, which in normal-talk means the state will send a check to a film executive even if he doesn’t owe any taxes; that’s a straight BAILOUT, not a tax credit. The last thing Virginia needs is another corporate bailout.

What is wrong with our Commonwealth? And what in the world is Governor McDonnell thinking?

There is one tax credit that has consistently proven to save money and increase achievement in public schools: education tax credits.

Florida recently expanded its successful education tax credit program to $140 million with the support of 42 percent of Democrats and almost every Republican. The program was found by the government to save $1.49 for every dollar invested in the credits. And the official academic researcher for the program just found that it significantly increases public school performance.

Strangely, education tax credits are not on the Governor’s agenda. Why?

Why is a Governor who had the good sense to appoint a true education reformer, Gerard Robinson, as the Secretary of Education not out front leading the movement for effective, efficient investment in education?

Look to Pennsylvania, to Georgia, Iowa, Rhode Island, Illinois, Arizona, any of the nine states supporting twelve education tax credit programs to see the new, bipartisan wave of education reform. A toothless Virginia charter school law will do nothing to improve education or save money. And the constitution won’t allow a strong charter law.

We need to save money, not waste it on another corporate bailout. We need to increase achievement.

We need leadership, Governor. We need education tax credits in Virginia. Now.

Federal Aid: 45 Years of Failure

Yesterday, the Washington Post reviewed the life of Phyllis McClure, who was an advocate for federal education spending in low-income neighborhoods.

Once an aspiring journalist, Ms. McClure joined the NAACP Legal Defense and Education Fund in 1969. She immediately used her penchant for muckraking to illuminate the widespread misuse of federal funds meant to boost educational opportunities for the country’s neediest students.

The money was part of the new Title I program, created under the Elementary and Secondary Education Act of 1965. The slim volume that Ms. McClure wrote in 1969 with Ruby Martin – ‘Title I of ESEA: Is It Helping Poor Children?’ – showed how millions of dollars across the country were being used by school districts to make purchases – such as a Baptist church building in Detroit and 18 portable swimming pools in Memphis – that had little to do with helping impoverished students.

The authors charged that money meant for poor children was being used illegally by school districts as a welcome infusion of extra cash to meet overhead expenses, raise teacher pay and other such general aid. In addition, they wrote, districts were using Title I funds to continue racial segregation by offering black children free food, medical care, shoes and clothes as long as they remained in predominantly black schools.

That all sounds rather familiar–state and local governments misusing federal aid dollars. As I’ve written about at length, there was an explosion in federal aid for the states in the 1960s, with hundreds of new programs established. But huge problems developed almost immediately–excessive bureaucracy and paperwork, one-size-fits-all federal regulations stifling local innovation, and the inability of federal aid to actually solve any local problems. 

I live in Fairfax County, Virginia. The county receives about $15 million a year in federal “Title I” aid for disadvantaged schools–the program Ms. McClure was worried about. But Fairfax is the highest-income county in the nation! Why are hard-working middle-income taxpayers in, say, Ohio, paying for local schools in ultra-wealthy Fairfax?

Aside from the misallocation problem, academic evidence suggests that state and local governments mainly offset federal spending for poor schools by reducing their own spending on poor schools. Poor schools end up being no further ahead.

The federal aid system is crazy. Even if federal aid is a good idea in theory–and it isn’t–the central planners haven’t been able to make it work as they envisioned in more than four decades. The federal aid system has simply been a giant make-work project for the millions of well-paid federal/state/local administrators who handle all the paperwork and regulations.  

Even if federal aid was constitutional or it made any economic sense, it will never work efficiently. Aid will always be a more wasteful way of funding local activities than if local governments funded activities by themselves. Aid will always be politically misallocated by Congress. Aid will always involve top-down regulations from Washington that reduce local flexibility and innnovation. And aid will always undermine federalism and the American system of limited government.

It’s time to blow up the whole system.  Title 1 and all 800 other state aid programs should be repealed.

Can We Be Both Up from Slavery and on the Road to Serfdom?

At Reason.com I argue that libertarians are wrong to look back at some point in the past for a golden age of liberty, and especially wrong to write paeans to the gloriously free 19th century without mentioning the little matter of 19 percent of Americans being held in chains.

For many libertarians, “the road to serfdom” is not just the title of a great book but also the window through which they see the world. We’re losing our freedom, year after year, they think….

Has there ever been a golden age of liberty? No, and there never will be. There will always be people who want to live their lives in peace, and there will always be people who want to exploit them or impose their own ideas on others. If we look at the long term—from a past that includes despotism, feudalism, absolutism, fascism, and communism—we’re clearly better off. When we look at our own country’s history—contrasting 2010 with 1776 or 1910 or 1950 or whatever—the story is less clear. We suffer under a lot of regulations and restrictions that our ancestors didn’t face.

But in 1776 black Americans were held in chattel slavery, and married women had no legal existence except as agents of their husbands. In 1910 and even 1950, blacks still suffered under the legal bonds of Jim Crow—and we all faced confiscatory tax rates throughout the postwar period.

I note that “I am particularly struck by libertarians and conservatives who celebrate the freedom of early America, and deplore our decline from those halcyon days, without bothering to mention the existence of slavery,” and I name a couple of examples. When we talk about how free Americans were in the 19th century, we should remember that many millions of Americans look back on those years and say

“My ancestors didn’t have the right to worship in their own way. My ancestors didn’t have the right to keep and bear arms. My ancestors didn’t have the protection of centuries-old legal procedures. My ancestors sure as heck didn’t have the right to keep what they produced, or to pursue an occupation of their choice, or to enter into mutually beneficial trades. In fact, my ancestors didn’t even have the minimal right of ‘the absence of physical constraint.’”

Read the whole thing.

Postscript: In late-breaking news after the Reason article was written, Gov. Robert McDonnell (R-VA) has issued a proclamation declaring April “Confederate History Month.” As politicians often do with news they’re not really publicizing, McDonnell posted the proclamation on his website Friday, but no one noticed until Tuesday. The proclamation urges Virginians to “understand the sacrifices of the Confederate leaders, soldiers and citizens during the period of the Civil War” but does not mention slavery. Virginia’s last Republican governor, in issuing a proclamation remembering the Civil War, had at least acknowledged reality:  ”The practice of slavery was an affront to man’s natural dignity, deprived African-Americans of their God given inalienable rights, degraded the human spirit and is abhorred and condemned by Virginians … Had there been no slavery, there would have been no war.” Amazingly, he was criticized for that simple and obvious statement, as was I when I quoted it a few years back.