Tag: repeal

Sweet Repeal

Look at this legislative language. It’s the stuff of beauty:

(a) In general.—The following sections of the Communications Act of 1934 (47 U.S.C. 151 et seq.) are hereby repealed:

(1) Section 339 (47 U.S.C. 339).

(2) Section 340 (47 U.S.C. 340).

(3) Section 341 (47 U.S.C. 341).

(4) Section 342 (47 U.S.C. 342).

(5) Section 612 (47 U.S.C. 532).

(6) Section 614 (47 U.S.C. 534).

(7) Section 712 (47 U.S.C. 612).

And there’s more.

It’s from H.R. 3675, The Next Generation Television Marketplace Act, introduced by Rep. Steve Scalise (R-LA), and its Senate counterpart, S. 2008, from Sen. Jim DeMint (R-SC).

Cato alum Adam Thierer’s recent Forbes column has the low-down:

There’s a common myth heard frequently in communications policy circles that America’s video marketplace was largely deregulated in the 1980s and ’90s, and that we now have a free market nirvana. Nothing could be further from the truth. When it comes to television programming, many layers of red tape still encumber this sector and prevent a truly free market in video programming from developing.

Adam goes on to discuss all the ways that players in this marketplace are working to maintain the advantages they see coming from regulation. It’s a gruesome pile-up of rent-seeking that the Scalise-DeMint bill is trying to clear up.

It sure is cool to see a bill that repeals existing regulations, for a change. Ten or fifteen thousand more like this would be a good start.

Who’s Afraid of an Amendments Convention?

Those of us who are upset at how “constitutional law” has gotten far away from the text of the Constitution have more options than just hoping the judiciary tosses us an occasional bone and otherwise writing law review articles and op-eds.  We can also amend the Constitution!

Indeed, the Framers provided a method of constitutional amendment that is easy to understand (if not to execute, at least not since the New Deal Congress and FDR began de facto amending the Constitution without bothering to amend it de jure).  Article V says that an amendment can be sent to the states for ratification upon approval by two thirds of both houses of Congress.  In the alternative, two thirds of the state legislatures can call for an amending convention.  Either way, the resulting proposed amendments must be ratified by three quarters of the states to take effect.

Hand-in-hand with the recent resurgence in limited-government ideas, various amendments have been floated – by Tea Party activists, politicians, academics, and policy analysts.  Randy Barnett’s “repeal amendment” – that a vote by two thirds of states can repeal federal law – is one.  The balanced budget amendment is another.

Congress is unlikely to ever amass a two-thirds majority in favor of limiting its own power, however, so the state-called convention idea looks attractive.  The problem is that many conservatives and libertarians are afraid of a so-called “runaway” convention, with amendments that would eviscerate the Constitution in a way Congress and the courts haven’t yet managed.  Insert your own nightmare scenario: nationalization of industry, required gay marriage, prohibition of private schools, Keith Olbermann as NFL-Commissioner-for-Life – you name it, somebody has invoked it to argue against amending conventions.

These fears have always seemed overblown to me.  I mean, if the American people can propose and ratify amendments that constitutionalize socialism (or whatever), then we’ve lost the political culture ballgame already and might as well go seasteading in Galt’s Gulch.

And now I have backup for my instincts!  Our friends at the Goldwater Institute, in the course of a grand project masterminded by Nick Dranias (the director of their center for constitutional government), are publishing a series of articles by Robert G. Natelson (retired from the University of Montana Law School) regarding constitutional amendments via convention.  The first two are available online and the third one will be there soon.

Here are the key points:

  1. An amendments convention is the ultimate guarantor of state sovereignty. History and law support states limiting the convention to specific topics. Delegates to the convention are bound as agents of the states to stay within the scope of the applications that trigger it. And 38 states must ratify whatever the convention generates as a proposed amendment. In short, the states initiate the process, the states control its subject matter, and the states ratify its product.
  2. The amendments convention concept is not radical. Washington, Madison, Jefferson and Hamilton all agreed that states should use the Article V process to correct errors in the Constitution and rein in the federal government if it oversteps its bounds. Madison even intervened during the nullification debates of the 1830s to chide the states that they should be invoking the Article V process to regain control over the federal government.
  3. The convention will not run away. Any proposed constitutional amendment yielded by the convention requires ratification by 38 states. During the constitutional convention of 1787 the Founders rejected language that would have allowed Article V to establish a foundational convention, substituting language that requires any convention to operate within existing constitutional limits.
  4. There is nothing to lose from an amendments convention because no matter which party controls Congress, the status quo is a runaway federal government.

Read the whole thing.

Good Riddance 1099 Mandate

Senate Democrats deserve credit for this much: in voting to repeal the so-called “1099 reporting mandate,” they have acknowledged that this small part of Obamacare will be a disaster.  With time and education, perhaps they will see what most Americans already see: The rest of Obamacare is a disaster too – a monumental one – for patients, doctors, employers, the Constitution, and individual freedom.

At this point, even the most ardent Obamacare supporters must have noticed that the law has not been well received.  As public opposition further manifests itself, perhaps some supporters will begin to reconsider their fealty to this law.

Not a Good Week for Obamacare

It has not been a good week for Obamacare.  Another court ruled that the bill was unconstitutional, while it took a party-line vote in the U.S. Senate to avoid a legislative repeal.  Meanwhile, chipping away at the legislation began, with the Senate voting to repeal one of the bill’s most unpopular provisions, a requirement that businesses file 1099 tax forms on even small purchases.  Supporters of the bill are bailing as fast as they can, but the ship is sinking rapidly.

HHS Wildly Overstates the Problem of Pre-Existing Conditions — and Ignores Its Cause

On the eve of a House vote to repeal ObamaCare, the Department of Health and Human Services has released a report claiming that if repeal succeeds, “1 in 2 non-elderly Americans could be denied coverage or charged more due to a pre-existing condition.”  A few problems with that claim:

  • An HHS survey found that in 2001, only 1 percent of Americans had ever been denied health insurance.
  • Economists Mark Pauly and Len Nichols write, “the fraction of nonelderly uninsured persons…who would be rated as actuarially uninsurable is generally estimated to be very small, less than 1 percent of the population.”
  • RAND health economist Susan Marquis and her colleagues find that in markets that do not impose ObamaCare-style government price controls on health insurance, such as California’s individual market, ‘‘a large number of people with health problems do obtain coverage…Our analysis confirms earlier studies’ findings that there is considerable risk pooling in the individual market and that high risks are not charged premiums that fully reflect their higher risk.’’
  • It is true that insurers charge higher premiums to many people with pre-existing conditions – and it is crucial that they have the freedom to do so.  Risk-based premiums create virtuous incentives for people to buy insurance while they are healthy and to be cost-conscious consumers.  They also encourage insurers to develop innovative products that protect against the risk of higher premiums.  The real problem here is that the government has created an employment-based health insurance system that denies consumers the protections that unregulated markets already provide, as well as additional protections that insurers would develop absent this government intervention.
  • ObamaCare’s health-insurance price controls will encourage insurers to deny care to the very sick people those price controls are intended to help.
  • The Obama administration projected that 375,000 people would sign up for ObamaCare’s “Pre-Existing Condition Insurance Plans” by the end of last year. But only 8,000 people enrolled in such plans by December 2010, suggesting the demand isn’t nearly as great as the administration claimed.

How to Tell When ObamaCare Supporters Are Nervous

Supporters have gone to great lengths to make ObamaCare appear popular or to make repeal seem impossible.  But this op-ed by my friend Jonathan Cohn made my jaw drop.

First, Cohn notes that the Senate recently voted down two efforts to repeal one of ObamaCare’s more unpopular provisions: the “1099 reporting tax,” which will place an enormous burden on small businesses.  ”Neither provision,” Cohn obliquely reports, “got enough votes to pass.”  He concludes:

Critics of health care reform [sic] this week thought they would get their first win in the campaign to repeal the Patient Protection and Affordable Care Act. Instead they got a lesson in just how politically challenging a wholesale repeal might be.

If opponents can’t even repeal the unpopular parts of ObamaCare, how can they repeal the whole thing?

Cohn neglects to mention a few important details.  The reason neither amendment received “enough votes” is because, due to procedural considerations, each would have needed a 2/3 majority to pass – i.e., 67 votes.  The Republican amendment actually received 61 votes.  (The Democratic amendment received only 44 votes.)  Reading Cohn’s account, though, you might think – and Cohn might think, or just want you to think – that both failed because they lacked majority support.  In fact, the Republican amendment received a filibuster-proof majority.  Even though it included $19 billion of spending cuts.  And in a chamber with only 41 Republicans.  (Another six arrive next month.)  And the mere fact that Democrats offered an amendment to repeal part of ObamaCare is notable in itself.  Cohn’s spin aside, the skirmish over the 1099 reporting tax shows that Democrats are divided and ObamaCare supporters are on the run.

Second, Cohn writes, “advocates of repeal have one extra liability that the law’s architects did not – a lack of majority support even before the wrangling begins.”  As evidence, he cites a single Gallup  poll from July 2009 that found 50 percent of the public supported “comprehensive health care reform.”  Oy, where to begin.  First, by Cohn’s own single-poll standard, he is just flat wrong.  Advocates of repeal can point to the latest Rasmussen poll, which shows that 58 percent of adults support wholesale repeal.  (Polls have clocked support for repeal as high as 61 percent.)  Second, support for “comprehensive health care reform” is not the same thing as support for ObamaCare.  If Gallup were to ask Cato employees whether they support comprehensive health care reform, my guess is that at least 50 percent would answer yes.  (Presumably, Cohn would then write an oped titled, “Even Libertarians Support ObamaCare!”)  Advocates of repeal have something else going for them, too: 17 months of consistent public opposition to ObamaCare.

No one is saying that getting repeal through the Senate is likely in the next two years.  But the fact that supporters have to shade the truth like this suggests they are nervous.

More Proof ObamaCare Is a Sop to Industry

Reuters has helpfully published another article demonstrating that ObamaCare’s biggest cheerleaders are the insurance and drug industries.  That’s because, barring repeal and despite the Obama administration’s fatuous rhetoric about standing up to the special interests, ObamaCare will shower those industries with massive subsidies.  Excerpts follow.

Health Overhaul Should Press Ahead: Industry
By Susan Heavey

Thu Nov 11, 2010 1:39pm EST

NEW YORK (Reuters) - Repeal reform? No thanks, say health insurers, drugmakers and others looking for a clearer picture of the U.S. healthcare market after the bruising passage of the controversial overhaul law…

The new healthcare law created “a stable, predictable environment, however painful it has been in the short term,” GlaxoSmithKline Plc’s (GSK.L) Chief Strategy Officer David Redfern said at the summit in New York.

“When you are running a business, the hardest thing is changing policy and a changing environment because it is very difficult to plan, predict and ultimately invest in that sort of scenario,” he said, echoing other speakers.

True enough.  How’s a firm supposed to develop a business plan around uncertain taxpayer subsidies?

Health officials must still hammer out how to implement the law and finalize hundreds of new rules and regulations. Many such details are key, as the sector looks to adjust its business for 2011 and beyond.

Wait, I thought the law created a “stable, predictable environment” and repeal would create uncertainty.  Hmmmm.

“Anti-reform made good talking points before the election,” said the Department of Health and Human Services’ Liz Fowler, adding that people “will find more to like than to dislike” in the law once it is more in place.

Boy, they just won’t let go of that chestnut, will they?  Remember: voters need re-education, not the Obama administration.

Even insurers, which were vilified by Democrats in passing the reforms, said they don’t want a repeal, even as they push for clarity on forthcoming rules and seek additional changes.

Cigna Corp CEO David Cordani and Aetna Inc President Mark Bertolini both urged the nation to move forward on the overhaul.

Even the insurance industry is against repeal?  The folks whose products the law will force 200 million Americans to purchase?  Never saw that coming.

Since the start of 2009, the Morgan Stanley Health Care Payor index has risen 75 percent, outperforming a roughly 35 percent rise for the broader Standard & Poor’s 500 index.

You don’t say.

Unlike insurers[!], drugmakers have escaped largely unscathed under the law, although there is still incentive to shape it.

You don’t say.