Topic: Cato Publications

The More We Learn about ObamaCare, the Less the President Wants to Discuss It

Remember how the more we learned about ObamaCare, the more we would like it? Well, it seems the more we learn about this law, the less President Obama wants to talk about it. He relegated it to just a few paragraphs, tucked away near the end of his latest State of the Union political rally speech. And while he defended the law, he closed his health care remarks by begging Congress not to repeal it, and asking the American people to nag each other into buying his health plans.

My full response to the president’s health care remarks are over at my Forbes blog, Darwin’s Fool. Here’s an excerpt:

Note what the president did not say: he did not say that [Amanda] Shelley would not have gotten the care she needed. That was already guaranteed pre-ObamaCare. If ObamaCare saved Shelley from something, it was health care bills that she couldn’t pay. It’s impossible to know from this brief account just how much that might have been. But we can say this: making health care more affordable for Shelley should not have cost anyone else their job. It may be that ObamaCare doesn’t reduce bankruptcies at all, but merely shifts them from medical bankruptcies to other types of bankruptcies because more people cannot find work.

Read the whole thing.

Actually, I should amend that. Making health care more affordable will cost some people their jobs, and that’s okay. Progress on affordability comes when less-trained people (e.g., nurse practitioners) can provide services that could previously be provided only by highly trained people (e.g., doctors). When that happens, whether enabled by technology or removing regulatory barriers, prices fall – and high-cost providers could lose their jobs. The same thing has happened in agriculture, allowing food prices to drop and making it easier to reduce hunger. My point was that we should not be making health care more affordable for Ms. Shelley by taxing her neighbor out of a job.

The Freedom’s the Thing

We are in the midst of National School Choice Week, and much of the talk is about test scores, helping poor children access better schools, getting more bang for our bucks, and lots of other, very worthy, important things. But something often seems to get lost in the shuffle not just of School Choice Week, but the overall choice and education debate: freedom. The most fundamental American value is liberty – individual freedom – and not only is an education system rooted in free choice the only system consistent with a free society, it is key to peaceful coexistence among the nations’ hugely diverse people.

That only an education system rooted in free choice is consistent with a free society should be self-evident. Should be, but isn’t, with “social reproduction” – shaping the young to conform with and perpetuate present society – thought by many to be a primary purpose of education, and one which must be controlled by government. As long as a “democratic” process is employed – often poorly defined as some sort of vague, deliberative/majoritarian system – then all is well.

The State of the Union Is…Irrelevant

Kevin Williamson has your red-meat, small-r republican rant on the State of the Union over at NR. He’s right that the once-modest Annual Message has become as bloated and ridiculous as the presidency itself.   

Like Williamson, I used to fume and fume about our latter-day Speech from the Throne, but lately I’m no longer sure it’s worth the bother. For the speech to be worth getting worked up about, somebody would have to be listening. But as I point out in the Washington Examiner today, the polling and poli sci evidence suggest that POTUS is basically howling into the void: 

“There is overwhelming evidence that presidents, even ‘great communicators,’ rarely move the public in their direction,” writes George C. Edwards III, a presidential scholar at Texas A&M University. “Going public does not work.” In a 2013 analysis of SOTU polling, Gallup found that “most presidents have shown an average decrease in approval of one or more points between the last poll conducted before the State of the Union and the first one conducted afterward.”

(For more on that point, see Table 2.2 from Edwards’s book On Deaf Ears: The Limits of the Bully Pulpit or this review of the evidence by Ezra Klein) 

Nor does the president usually fare any better trying to use the SOTU to bend Congress to his will. As this Associated Press analysis puts it, the speech is “high volume, low yield” in terms of generating legislative action.  Contra TR, the bully pulpit isn’t so “bully.” 

None of that is to deny that the modern president has powers vastly greater than he was ever intended to have—or than one man should ever have. The danger isn’t his “power to persuade”: it’s what he can get away with under the “living Constitution” version of Article II: waging war worldwide, reshaping the law through “royal dispensations,”  taking care that his secret laws are faithfully executed. What he does matters; what he says in this stage-managed spectacle is the least of our worries. 

Many of us at Cato will watch and read the speech tonight because it’s sort of our job. If the spirit moves you, follow along on Twitter, hashtag #CatoSOTU. Otherwise, it seems to me that the late Justice Rehnquist had the right attitude

When asked why [he planned to skip the SOTU], he explained that it conflicted with a watercolor class at the YMCA. An incredulous law clerk said, “You can’t miss the State of Union Address for a watercolor class.” Rehnquist responded that he had spent $25 to enroll in the class, and he was going to get every benefit out of it.

 

Our Broken Judicial Nominations Process

This month at Cato Unbound, we’re discussing the federal judicial nominations process: Is it broken? (Spoiler: Yes!) How did it get that way? And what can be done to fix it? 

Our lead essayist is John R. Lott, Jr., author of the new book Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench. His lead essay charges that the growth of the federal government’s regulatory reach has raised the stakes in the judicial nominaitons process: Now it’s a much graver matter when the other party’s judges end up on the bench – particularly if the nominees in question are especially smart and persuasive. Lott writes:

Think that attending a top university and graduating at the top of the class is the key to your success? Not if you’re headed for a federal judgeship. In fact, today the most accomplished candidates are the most likely to be rejected. And this phenomenon has only gotten worse, with the quality of judges declining over the last four decades…

A smart, persuasive judge might convince other judges to change their votes on a case. Judges who can write powerfully worded decisions also are more likely to be cited more frequently in other judges’ decisions and to influence their decisions.

The president wants to nominate influential judges to successfully push the positions he values. His political opponents, however, naturally fear such judges—and, therefore, vehemently oppose their appointments.

Agree? Disagree? We’ll see some of each this month at Cato Unbound, and we invite you to follow the conversation as it develops. Coming up we’ll have essays by Professor Michael Teter of the University of Utah, on January 15; Clint Bolick of the Goldwater Institute, on January 17; and John O. McGinnis of Northwestern University, on January 20. A conversation among all four participants will then be held through the end of the month.

Lastly, if you like Cato Unbound, be sure to like us on Facebook and follow us on Twitter.

This Month at Cato Unbound : Sex Work and the Law

This month’s Cato Unbound tackles an issue as old as humanity, and maybe even older: Sex work has been a part of nearly all human societies, even despite frequent prohibitions. Well, some say, we should allow it – but we should regulate it very heavily.

Lead essayist Maggie McNeill takes a much more libertarian view: simply allow it. Sex work is “not a crime, nor a scam, nor a ‘lazy’ way to get by, nor a form of oppression,” she writes. “It is a personal service, akin to massage, or nursing, or counseling, and should be treated as such.” As a former call girl and madam, she draws on personal experience, as well as the remarkable body of knowledge found at her blog, The Honest Courtesan

Obviously we wouldn’t be a journal of debate without some vigorous dissent, and it will come this month from a panel of three other experts in the field: Ronald Weitzer is a sociologist at the George Washington University; Dianne Post is an international legal advocate who works on gender-based violence; and Steven Wagner is the president of Renewal Forum, a nonprofit opposed to human trafficking. 

Be sure to stop by and see what they have to say over the coming week; feel free to reply in the comments. And if you like what you read, you should also follow us on Facebook and Twitter for regular updates.

A Conspiracy against Obamacare

A Conspiracy Against Obamacare coverLast week, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case was released, of which I am proud to be the editor. The book compiles the discussions and debates about the Affordable Care Act that occurred on the legal blog the Volokh Conspiracy, supplemented with new material. The posts are stitched together into a narrative structure. As a result, you can see the constitutional arguments against the Affordable Care Act develop in real time, from before the law was passed all the way to the Supreme Court. 

The book documents a bellwether moment in the history of legal academia: A legal academic blog influencing major Supreme Court litigation. And not just major Supreme Court litigation, but a case that went from a much derided challenge to the biggest and most watched case in decades. As former Solicitor General Paul D. Clement, who expertly argued the case before the Court, kindly wrote in the foreword, “The Constitution had its Federalist Papers, and the challenge to the Affordable Care Act had the Volokh Conspiracy.”

The contributors are Randy E. Barnett, Jonathan H. Adler, David E. Bernstein, Orin S. Kerr, David B. Kopel, and Ilya Somin, most of whom are closely associated with Cato in one way or another.

In the introduction, I discuss the constitutional arguments against the law in a more abstract way, as well as describe how the law is destined to fail due to poor design. We are seeing the beginning of those failures now, but I fear we ain’t seen nothin’ yet.

It was not much commented on at the time–the administration and the law’s supporters were too busy spiking the ball–but the Supreme Court’s decision will speed up the law’s inevitable failures. As I describe in the introduction:  

Due to the chief justice’s unpredictable opinion, we are now likely stuck with a law that I fear will seriously damage the health of Americans. What’s more, attempts to further centralize power will not stop at the individual mandate. When the law fails, as I predict it will, it will be said that the federal government lacked enough power to make it work. The chief justice’s opinion gives people a real choice whether to comply with the requirement to purchase insurance or pay a “tax.” Many people will not, and as the price of insurance goes up, more and more people will choose to remain uninsured. This will certainly be called a “loophole.” Similarly, the Court also gave states a choice about whether to comply with the Affordable Care Act’s Medicaid expansion. Another “loophole.” Finally, the states that don’t create health care exchanges will also throw wrenches in the law’s overall scheme. “Loopholes” all around. Having freedom of choice in deeply personal health care decisions, however, is not a loophole.

When the time comes to revisit the Affordable Care Act, those choices by free, sovereign entities (citizens and states) will be blamed for the law’s dysfunctions. To paraphrase philosopher Robert Nozick, liberty disrupts patterns. Free choice inevitably upsets the carefully crafted plans of Washington.

As a solution to the law’s problems, more power will be proposed. A few voices, such as many who write for the Volokh Conspiracy and those of us at the Cato Institute, will strenuously argue that the problem is not a lack of power but a lack of freedom. I am not optimistic, however, that very many entrenched bureaucrats and politicians will locate the problem in the mirror rather than in the freedoms of the American people.

If the Affordable Care Act keeps going south at this rate, we may need to prepare to have that debate sooner than we expected. 

Cato at the Federalist Society Convention

The Federalist Society came into being in 1982 after a small group of conservatives and libertarians, concerned about the state of the law and the legal academy in particular, gathered for a modest conference at the Yale Law School, after which two law-student chapters were formed at Yale and at the University of Chicago. Quickly thereafter chapters sprung up at other law schools across the country. And in 1986 those students, now lawyers, started forming lawyer chapters in the cities where they practiced. Today the Federalist Society is more than 55,000 strong, its membership drawn from all corners of the law and beyond.

Toward the end of this past week many of those members gathered in Washington for the society’s 27th annual National Lawyers Convention, highlighted on Thursday evening by a gala black tie dinner at the conclusion of which Judge Diane Sykes of the Seventh Circuit Court of Appeals treated the audience to a wide-ranging interview of Justice Clarence Thomas. The convention sessions, concluding late Saturday, have now been posted at the Federalist Society’s website. As a look at the various panels and programs will show, this year’s theme, “Textualism and the Role of Judges,” was addressed in a wide variety of domains.

Concerning the role of judges, classical liberals and libertarians, who have long urged judges to be more engaged than many conservatives have thought proper, will find several panels of particular interest. Our own Walter Olson spoke about the new age of litigation financing, for example, while Nick Rosenkranz addressed textualism and the Bill of Rights – a panel that also included the spirited remarks of Cato adjunct scholar Richard Epstein. See also Epstein’s discussion of intellectual property on another panel that first day.

Then too you won’t want to miss senior fellow Randy Barnett’s treatment of textualism and constitutional interpretation the next day, especially as he spars with two opponents on the left, or his Saturday debate against Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals, where the proposition before the two was “Resolved: Courts are Too Deferential to the Legislature.” And finally, our own Trevor Burrus was on hand for a book signing: The book he edited, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, has just come out and is must reading for those who want to see how the issue of the day, and many days to come, was teed up, legally, by a dedicated band of libertarians before it reached the Supreme Court.