Tag: Obamacare

That’s Not Healthy: Poverty Is a Salve for ObamaCare’s Individual Mandate?

Some tidbits from the health care policy world:

  • Philip Klein is perhaps too kind to the Obama administration’s latest defense of ObamaCare in “Obama solicitor general: If you don’t like mandate, earn less money.”
  • The Obama administration launches a hospital payment reform effort that, rather than promote high-quality, low-cost medical care, will demonstrate once again why Medicare is incapable of such.
  • The physicians lobby, having thrown its support behind ObamaCare with the expectation that Congress would jack up Medicare’s physician price controls, is still begging Congress to do so.
  • The Obama administration launches a lame effort to reduce medical errors in Medicaid, decades after markets devised far more powerful deterrents.

Plaintiffs Should Be Cautiously Optimistic about Latest Obamacare Appeal

CINCINNATI – Now for something completely different, and not just because the spirited Sixth Circuit judges were much more skeptical of the government’s position than the Fourth Circuit was last month. Unlike the panel in Richmond – Virginia Attorney General Ken Cuccinelli probably started outlining his cert petition as soon as court adjourned – here there will be at least one vote to strike down the individual mandate, and maybe even all three. And this panel should produce one or more opinions in which there will be much for the Supreme Court to grapple with.

The appellate argument didn’t even begin until after a skirmish over standing provoked by the motion to dismiss the government filed last week. That mini-argument – what Judge Martin likened to his time in Jefferson County (KY) circuit court – will likely not prove decisive. Nor will the Anti-Injunction Act, the tax statute on which the court requested supplemental briefing but which the government conceded didn’t apply.

Not surprisingly, this case, brought by the Thomas More Legal Center, will almost certainly be decided on the issue of whether the federal government can compel people to engage in commerce – “regulate inactivity.” The government’s theory that “health care is unique” came under harsh attack from Judges Graham and Sutton because it didn’t seem to offer a constitutional (as opposed to factual) limiting principle for federal power. Judge Martin was more circumspect, but he’s considered among the most liberal circuit judges in the country, so all things being equal would probably try to uphold the law (or find a way to decide the case on procedural grounds so as to avoid losing on the merits). Judge Sutton – one of the more conservative jurists nationwide – was also scrupulously neutral, picking at weaknesses in both sides’ presentation and appearing open to a narrow technical decision.

All in all, it was a fascinating day in court that proved again that no matter how much one studies the Obamacare challenges, there’s always something new to learn. Be sure to read Cato’s amicus brief in this case for more background.

Health Care Odds & Ends

A few highlights from this week’s health care news:

  • Politico reports that Florida Gov. Rick Scott (R) is a former health insurance executive. (He was a hospital executive.)
  • Suzy Khimm writes that to fix the problems created by centralized planning of the health care sector, we need more centralized planning of the health care sector.
  • The Obama administration  blows the doors open on the colossal failure that are ObamaCare’s high-risk pools, but doesn’t bother to say where the  money is coming from.

Wednesday Links

Once More Into the Obamacare Breach

Today we filed Cato’s sixth brief supporting the various legal challenges to Obamacare, this time in the D.C. Circuit.  Like Tom Joad, wherever the fight has been, we’ve been there, and now it’s in our backyard.

In February, Judge Gladys Kessler of the D.C. district court granted Congress the power to regulate “mental activity” in a decision that flippantly disregarded the core distinction between action and inaction: “Making a choice is an affirmative action, whether one decides to do something or not do something.”  The frightening scope of that opinion has proven more harmful than helpful to the government, which has shifted its focus away from Kessler’s sweeping language by describing the mandate as merely a requirement that people pre-pay for the health care they will inevitably use.

Our latest brief deals more directly with that added nuance—even more so than the brief Cato filed two weeks ago.  Due to a local circuit rule requiring amici with similar arguments to file jointly, Cato coordinated a brief involving six other organizations—Mountain States Legal Foundation, Pacific Legal Foundation, Competitive Enterprise Institute, Goldwater Institute, Revere America, and Idaho Freedom Foundation—as well as Prof. Randy Barnett.  

Using Cato’s previous brief as a starting point, amici worked together to adjust our arguments in light of new ideas coming from both the government and academia.  The core argument, however, remains the same: regardless of any linguistic contortions, the non-purchase of health care is fundamentally a non-economic inactivity that Congress cannot reach under the Commerce and Necessary and Proper Clauses.  

Allowing Congress the power to conscript citizens into economic transactions not only goes beyond current precedent, but would give Congress a general and limitless police power to do whatever it thinks best, checked only by politics.  

In addition to the doctrinal arguments we presented in previous briefs, here we remind the court that limiting Congress’s power is the explicit purpose of Article I of the Constitution and address the relationship of the individual mandate to United States v. Comstock, the most recent interpretation of the limits on federal power under the Necessary and Proper Clause (a case in which Cato also filed a brief, that Ilya Somin covered in our Supreme Court Review, and about Trevor Burrus and I recently published a law review article).  

The D.C. Circuit will hear the case of Seven-Sky v. Holder in September.  Given the state of litigation around the country, we will likely not be filing another Obamacare brief before the action reaches the Supreme Court—which it’s expected to later this year, after the first few circuit courts issue their rulings.

Wednesday Links

  • Next up for marriage equality: Perry v. Schwarzenegger. Please join us at 12:00 p.m. Eastern today as co-counsels for the plaintiffs Theodore Olson and John Boies join Center for American Progress president John Podesta and Cato chairman Robert A. Levy for a panel discussion on marriage equality, exploring legal and moral questions dating back to the landmark 1967 Loving v. Virginia decision that ended state bans on interracial marriage. If you cannot join us here at Cato, please tune in to watch a live stream of the event.
  • “Republicans have an opportunity for a much more important debate, which will frame the election campaign next year.”
  • In President Obama’s next speech, Cato director of foreign policy studies Christopher Preble hopes “that the president reaffirms the importance of peaceful regime change from within, not American-sponsored regime change from without.”
  • What will former Massachusetts governor Mitt Romney’s next position on health care be?
  • Like cleanliness next to godliness, so is democracy next to tyranny.
  • The U.S. hit the debt limit–what’s next?


Pelosi’s Constituents Found out What’s in ObamaCare, and They Don’t Like It

From the Daily Caller:

Nearly 20 percent of new Obamacare waivers are gourmet restaurants, nightclubs, fancy hotels in Nancy Pelosi’s district

By Matthew Boyle - The Daily Caller 12:07 AM 05/17/2011

Of the 204 new Obamacare waivers President Barack Obama’s administration approved in April, 38 are for fancy eateries, hip nightclubs and decadent hotels in House Minority Leader Nancy Pelosi’s Northern California district.

That’s in addition to the 27 new waivers for health care or drug companies and the 31 new union waivers Obama’s Department of Health and Human Services approved.

Pelosi’s district secured almost 20 percent of the latest issuance of waivers nationwide, and the companies that won them didn’t have much in common with companies throughout the rest of the country that have received Obamacare waivers.