Topic: Law and Civil Liberties

The Reid Individual Mandate: An Affront to the Constitution

Cato chairman Bob Levy and I have an oped in today’s Philadelphia Inquirer explaining why the individual mandate in Majority Leader Harry Reid’s (D-NV) health care bill is unconstitutional.  (Our colleague Ilya Shapiro blogs about a similar piece by our colleague Randy Barnett.)

In sum, supporters of an individual mandate claim that two powers granted to Congress by the states in the Constitution — the Commerce Clause and the taxing power — give Congress the legal authority to force Americans to purchase health insurance.  We reject both theories.

First, the behavior that Congress seeks to regulate — the non-purchase of health insurance — is neither interstate, nor is it commerce.  Unfortunately, under the Supreme Court’s tortured interpretation of the Commerce Clause, that isn’t dispositive, so we explain why even the Court’s Commerce Clause jurisprudence doesn’t allow for an individual mandate.

Second, the individual mandate cannot be justified by pointing to Congress’s taxing power, because the tax it would impose is neither an excise tax, nor an income tax, nor a direct tax apportioned according to population.

Game over.  All your base are belong to us.

We’ve already received many responses to the oped, some of them intelligent.  One reader asks how we can describe the non-purchase of health insurance as “a non-act that harms no one”:

We all know that when folks without insurance go to the emergency room, those of us with insurance are harmed in the form of higher premiums.

Originally, we had included a section expanding on our “harms no one” claim that would have addressed this point, but we dropped it for brevity.  Here it is:

Most uninsured people don’t end up in an emergency room.  As for those who do, research shows that the uninsured as a group more than pay their own way. Many simply pay their bills without imposing costs on anyone. And because they typically pay premium prices for medical care — far more than is ordinarily reimbursed by public or private insurance — they more than offset the cost of uncompensated care to the uninsured overall, according to MIT economist Jonathan Gruber and others.

Even if we ignore that evidence, uncompensated care to the uninsured accounts for about 2.2 percent of national health expenditures.  The left-leaning Urban Institute writes, “Private insurance premiums are at most 1.7 percent higher because of the shifting of the costs of the uninsured to private insurers in the form of higher charges.”  That’s hardly a crisis.

And think about it: an uninsured person is wheeled into an emergency room, unconscious and bleeding.  Is this person able to harm anyone?  Is this person in a position to impose costs on you?  Of course not.

What imposes costs on you are the laws that require the doctors and hospitals to treat those patients without regard to ability to pay — and the ethical codes that would impel doctors to treat them even if there were no such laws.  If you have a problem with those laws/codes, make them the focus of your ire.  If you support them, surely you can’t be upset that they increase your premiums by 1.7 percent.  Isn’t that a small price to pay to live in a compassionate society?

But if you’re still angry about that 1.7 percent, bear in mind that the Reid individual mandate — which is essentially a bailout for private health insurance companies — would increase the cost of insurance for some people by 30 percent and would require additional taxes on top of that.

Fortunately, there are much better ways to reform health care.

“Send Us Your Tired, Your Poor, But Only if They’re ‘Culturally Unique’ ”

That’s the title of a Wall Street Journal article detailing the latest idiocy to come out of our immigration system.  It seems that if you’re a musician trying to get a visa to perform in the United States, you have to prove to some bureaucrat’s satisfaction that your music either is “culturally unique” or has “achieved international recognition and acclaim.”  (Query: Does the Department of Homeland Security now require immigration caseworkers to have degrees in musicology or fine arts?)

The article chronicles the various travails of performers who are either so innovative – perish the thought! – as to not fit into an easily defined cultural category or haven’t yet reached U2-like levels of popularity. 

Reads one denial: “The evidence repeatedly suggests the group performs a hybrid or fusion style of music … [which] cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe or other group of persons.”

Reads another: “Being internationally acclaimed is not equivalent to performing on stages overseas.”

You can’t make this stuff up!  It reminds me of my own immigration plight – which ended happily earlier this year – whereby I shot myself in the foot by, among other ridiculous things, getting my education in the United States instead of acquiring legal expertise abroad (at lesser institutions, making myself less valuable to the U.S. legal market).

I’ve heard some talk that Congress will take up immigration reform after it finishes with health care, though I can’t imagine that happening in an election year.  In any event, I’ve long believed that our immigration non-policy is the worst part of the U.S. government (which should say something, coming from someone at Cato).

For more on our work on immigration policy, go here.

Health Care Mandate Is Unconstitutional — and Don’t Leave Home Without the Cato Constitution

Yesterday the Heritage Foundation released a new paper on the unconstitutionality of the proposed health care mandate.  Think tanks aren’t normally in the habit of promoting their peer institutions’ work, but this paper is incredibly timely and its lead author is Cato senior fellow Randy Barnett.  You really should go read it.

Interestingly, at the event unveiling the paper, Eugene Volokh (of UCLA Law School and the Volokh Conspiracy blog) at one point wanted to quote the Constitution and realized he wasn’t carrying one! Eugene asked if anyone had a Heritage Constitution.  Former Attorney General Ed Meese, now chairman of Heritage’s Center for Legal and Judicial Studies, saved the day by passing Eugene his… handy, dandy, Washington Post-bestselling Cato Constitution.  It seems that General Meese likes our version because it’s smaller and so fits easier into your pocket.  (I would add that it also features the Declaration of Independence – as does Heritage’s – as well as a preface by my boss, Roger Pilon.)

You can watch the entire health care event, which features Senator Orrin Hatch along with Randy and Eugene, here (the Constitution bit starts at about 40:15; I ask a question at 1:04:46).  The bottom line – beyond the health care abomination – is that you should always carry your Cato pocket Constitution wherever you go.  Like Josh Blackman, I keep one in every suit jacket (as well as backpacks, totebags, briefcases, and roll-aboards).  You never know when you – or someone else – may need it.

They also make great stocking stuffers and gifts for any night of Hanukkah (as does the latest Cato Supreme Court Review, though you may need a slightly larger stocking).

Red Team, Blue Team

In a report on Attorney General Eric Holder’s approach to seeking the death penalty, NPR reports:

A few months after Holder made that statement, he authorized a capital prosecution in Vermont, a state that does not have the death penalty. When Ashcroft brought a federal death penalty case in Vermont seven years ago, the mayor of Burlington called it “an affront to states’ rights” and “not consistent with the values of a majority of Vermonters.” But this time, there was hardly any outcry.

So the former antiwar movement doesn’t complain about President Obama’s expansion of the wars in Iraq and Afghanistan. And opponents of capital punishment don’t protest the Obama administration’s seeking the death penalty in liberal Vermont. It’s beginning to look a lot like the Bush years, when conservatives put up with a great deal from a Republican administration that would have sent them into apoplexy if it had been done by Democrats.

10 Rules for Dealing With the Police

Our friends at Flex Your Rights have a new film that is about to be released.  It’s called 10 Rules for Dealing with Police. Trailer for the film here.  I have seen the entire film and it is an outstanding work–accurate and useful information, great screenplay, and great acting.

Believe it or not, the police can lie to you and can try to trick you into giving up your constitutional rights.  Happens every day.  In less than 45 minutes, this film teaches you what you need to know about police encounters.  Every citizen should take an interest in learning about constitutional rights.  And experienced lawyers will tell you that you can save thousands of bucks in legal fees by avoiding common mistakes.  But you need to know the traps.   If you have teenagers in the family, make them watch it.  Knowledge is power.  Spread the word.

Are You a Criminal? Maybe You Are and Don’t Know It

Yesterday, Michael Dreeben, the attorney representing the U.S. government, tried to defend the controversial “honest services” statute from a constitutional challenge in front of the Supreme Court.  When Dreeben informed the Court that the feds have essentially criminalized any ethical lapse in the workplace, Justice Breyer exclaimed,

[T]here are 150 million workers in the United States.  I think possibly 140 [million] of them flunk your test.

There it is.  Some of us have been trying to draw more attention to the dangerous trend of overcriminalization.  Judge Alex Kozinski co-authored an article in my book entitled “You’re (Probably) a Federal Criminal.”  And Cato adjunct scholar, Harvey Silverglate, calls his new book, Three Felonies a Day to stress the fact that the average professional unknowingly violates the federal criminal law several times each day (at least in the opinion of federal prosecutors).  Not many people want to discuss that pernicious reality. To the extent defenders of big government address the problem at all, they’ve tried to write it all off as the rhetoric of a few libertarian lawyers.  Given yesterday’s back-and-forth at the High Court, it is going to be much much harder to make that sort of claim.

For more on this subject, go here, here,  and here.

Supreme Court Wastes Time, Money, and Opportunity to Protect Property Rights and Due Process

Yesterday the Supreme Court released its first four opinions in cases argued this term, the latest first-opinion release in recent history.  The only one that interests me – and it’s not Justice Sotomayor’s maiden effort – is the civil forfeiture case, Alvarez v. Smith.

Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various legal and policy issues — from property rights to due process.  The question in Alvarez was the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge.

I blogged about the case here, and Cato adjunct scholar Ilya Somin wrote about it here. Cato’s also filed a brief in the case supporting the individuals whose property was seized.

Unfortunately, because all underlying disputes had been resolved by the time of oral argument – cars had been returned and the individuals have either forfeited their cash or accepted the state’s return of some of it – the Court determined the case to be moot.  It thus vacated the lower court’s opinion and remanded with instructions for that court to dismiss the case.

And that’s a shame.  While the dispute does seem to be moot with respect to the particular petitioners, this is obviously a situation “capable of repetition” but “evading review” – along the lines of that little-known case of Roe v. Wade.  That is, just like the case of a pregnant woman is moot within nine months, disputes over civil forfeiture get resolved one way or the other long before the slow turn of litigation reaches the Supreme Court.  By avoiding the merits of this case, the Court guarantees that the important constitutional questions presented by this case remain perpetually unresolved.

What is more, by vacating the Seventh Circuit’s opinion – an extraordinary remedy – the Court deprives Illinoisans of a well-reasoned and just ruling that could be used as precedent in future cases.  It also – and this is no small matter – wastes the time, effort, and resources of the parties and their attorneys, taxpayers (who obviously paid for the petitioners’ legal work here, as well as that of the judiciary), and, of course, amici (including Cato).

Justice Stevens was correct in his partial dissent: if the Court disagrees with the argument I made in the preceding paragraph, it should have applied the general rule against vacating judgments that have become moot because the parties settled.  The proper disposition here would have been to DIG the case – dismiss the writ of certiorari as improvidently granted (which allows the lower court ruling to remain on the books undisturbed).