“Clouded By Misperceptions”: Five Myths About The Health-Care Law
The Supreme Court will hear three days of arguments starting Monday on whether President Obama’s Affordable Care Act is constitutional. Twenty-six states have filed challenges to the health-care reform law. The main issue, on which the lower courts have split, is whether Congress had the power to pass this law under the Constitution’s commerce clause. The answers to that and other questions are clouded by misperceptions about the law itself. Let’s debunk them.
1. The “individual mandate” forces everyone to buy health insurance.
The law states that, beginning in 2014, individuals must ensure that they and their dependents are covered by health insurance. Taxpayers who do not meet this requirement will have to pay a penalty that the law calls a “shared responsibility payment.” It begins at $95 for the first year and never exceeds 21/2 percent of anyone’s annual taxable income.
A large majority of Americans, of course, have health insurance through their employers, Medicare or Medicaid and are already in compliance with this requirement. Given the relatively modest payment required of those who choose not to maintain insurance, no one is being forced to buy a product they don’t want.
The challengers argue that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. The government has determined, however, that those who pay the penalty, like those who are exempt from the penalty, are not lawbreakers. As a practical matter, the so-called mandate is just a relatively modest financial incentive to have health insurance.
2. Only the individual mandate is at stake in the Supreme Court case.
The mandate is not a stand-alone provision that can be invalidated without affecting the rest of the law. In fact, it is merely an ancillary measure that makes two more-fundamental provisions of the law workable: “guaranteed issue” and “community rating.”
A significant problem with our nation’s health-care system has been that insurance companies can reject applicants who have had health problems, including minor ones. The guaranteed issue provision prevents companies from turning down applicants because of their medical conditions or history. The community rating measure bars insurers from charging higher premiums to those who have had illnesses or accidents.
Experience in the states has shown that if people can’t be turned down for health insurance, there must be an incentive for them to sign up for it before they have an accident or illness. The individual mandate was enacted to ensure that the central, nondiscrimination provisions can work as they were intended — to provide everyone access to affordable health care, regardless of their medical history or current conditions.
If the court were to strike down the mandate, the law’s popular provisions on preexisting conditions would fall as well.
3. If the court upholds the health-care law, it means Congress has the power to require Americans to purchase any product.
The health-care case is a test of Congress’s power under the Constitution to regulate commerce among the states. One way to defend the law is simply to say that a requirement to purchase insurance or any other product sold in interstate commerce is obviously a regulation of that commerce. President Ronald Reagan’s solicitor general, Charles Fried, and conservative judge Laurence Silberman have adopted this view.
The Obama administration is not relying upon such a sweeping argument, however, and its more limited claim would not justify any law that required Americans to buy products such as cars or broccoli.
The mandate does not force people into commerce who would otherwise remain outside it. Instead, it regulates the consumption of health care, an activity in which virtually everyone will engage. Right now, people who go without insurance often shift the costs of their health care to other patients and taxpayers. That situation is different from what happens with any other type of purchase.
Would the government’s defense of the mandate also support a law requiring Americans to buy broccoli or a car? The answer is a simple and emphatic no.
4. The law is socialist.
Actually, the opposite is true. The principal reason the Affordable Care Act has been called unprecedented is that it declines to follow the New Deal approach of having a monolithic government agency be the single provider of a good or service. Instead, the law adopts a new approach, one conservatives have long supported, of using providers in the private market to deal with social and economic problems.
In defending his “Massachusetts mandate” as a conservative model for national health-care legislation, former governor Mitt Romney editorialized in 2009 that by imposing tax penalties on people who choose to remain uninsured, an individual mandate “encourages ‘free riders’ to take responsibilities for themselves rather than pass their medical costs on to others.” And, as Romney noted, conservatives have never been inclined to favor freeloaders.
5. The law is an extraordinary intrusion into liberty.
Liberty is always said to be fatally eroded, it seems, when great advances in social legislation take place. The lawyers who urged the Supreme Court to strike down the Social Security Act of 1935 argued that if Congress could provide a retirement system for everyone 65 and older, it would have the power to set the retirement age at 30 and force the very young to support everyone else.
It was said that if Congress had the authority to create a minimum wage of $5 an hour, it would also be a regulation of commerce to set the minimum at $5,000 an hour. In 1964, critics argued that if Congress could tell restaurant owners not to discriminate on the basis of race, it could tell them what color tablecloths to use. None of these things happened.
Nothing in the health-care law tells doctors what they must say to patients or how those patients are to be treated. It only requires people to either have insurance coverage or pay a modest tax penalty.
Nearly 75 years ago, a Supreme Court dominated by appointees of conservative presidents rejected the challenge to the constitutionality of the Social Security Act. The words of Justice Benjamin Cardozo’s 1937 opinion are relevant today:
“Whether wisdom or unwisdom resides in [the statute in question] it is not for us to say. The answer to such inquiries must come from Congress, not the courts.”
By: Walter Dellinger, The Washington Post, March 23, 2012
“Discriminatory Election Laws”: The GOP Assault On The Voting Rights Act
Last week the Department of Justice denied preclearance to Texas’s law requiring voters to present photo identification under Section 5 of the Voting Rights Act. Section 5 requires states and jurisdictions with a demonstrated history of passing discriminatory election laws to get approval from the DOJ for any change to laws governing the time, place or manner in which an election is conducted.
Within days Texas filed a challenge in federal court arguing that Section 5 is unconstitutional. Texas Attorney General Greg Abbott maintains that the federal government exceeded its authority and violated the Tenth Amendment when it passed the measure.
Conservative opponents of civil rights are eager to see that challenge succeed. Writing in National Review—which opposed the civil rights movement—vice chairman of the US Commission on Civil Rights and conservative scholar Abigail Thernstrom argues that Section 5 is outdated. National Review’s evolution on the subject is the standard conservative slither on civil rights. First you oppose it. Then, when society has evolved and you look like a bigot, you accept it. Then, as soon as humanly possible, you argue it was necessary at the time but no longer is.
“The Voting Rights Act was absolutely essential in ending the brutal regime of racial subjugation in the South, but it has become a period piece—anti-discrimination legislation passed at a time when southern blacks were kept from the polls by violence, intimidation, and fraudulent literacy tests,” writes Thernstrom. “Those disfranchising devices are as unlikely to return as segregated water fountains.” Thernstrom focuses most of her argument on the question of redistricting, and she argues that increasing residential integration and ethnic and socioeconomic diversity within minority communities makes the creation of majority-minority districts either unnecessary or impossible. “The notion of a ‘black community’ as the foundation of a black legislative district is also becoming an anachronism.”
There are two separate arguments being advanced by civil rights opponents: that Section 5 is unconstitutional because it falls outside the federal government’s enumerated powers, and that it is bad policy. Both are bogus. Section 5 is clearly constitutional, and we very much need it to protect the right to vote.
When Texas votes for seats in the House and Senate or the presidency, the results affect every American. Thus it is in the national interest to insure that elections are conducted fairly. “Not having discrimination in the electoral process is important to all of us,” says Hilary Shelton, director of the NAACP’s Washington Bureau.
Congress has the authority to regulate national elections, and it has the power under the Fourteenth and Fifteenth Amendments to the Constitution to protect the rights of African-Americans from state governments. “Congress has broad authority to regulate procedures for federal elections under Article I, Section IV of the Constitution,” notes Daniel Tokaji, an election law expert at Ohio State University. “Because Texas ID requirement would apply to federal elections, we don’t even need to get into the question of whether Section 5 falls within Congress’s Fourteenth and Fifteenth Amendment power.” While Tokaji agrees that imposing federal power over redistricting may raise some constitutional questions, the Texas complaint maintains that the federal government has no business telling states not to disenfranchise their citizens.
Moreover, contra Thernstrom, southern blacks are indeed being kept from the polls today. Case in point: the Texas voter ID law itself. Blacks and Latinos in Texas are disproportionately likely not to have driver’s licenses other forms of state-issued photo identification, as are poor people and the disabled. As the DOJ noted in making its decision, “According to [Texas’s] own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.” Texas did not collect data for African-Americans. But national studies have shown they too are less likely than whites to have the requisite ID. The DOJ has also recently denied preclearance to a similar law in South Carolina for the same reason. (South Carolina is also suing the DOJ, but they are not claiming that the law is unconstitutional, only that it is being incorrectly applied.)
This is not an isolated incident. Every time the VRA is renewed, Congress documents that it is still needed by examining allegations of vote suppression. “[Section 5] has stopped laws from going into effect that would restrict minority participation,” says Nancy Abudu, senior staff counsel at the American Civil Liberties Union. The most recent renewal was in 2006, when Republicans controlled both Houses of Congress and the White House, so it can hardly be characterized as a Democratic power grab. “[In 2006] Congress did a very good job of collecting the evidence of why Section 5 remains necessary,” says Abudu.
“The only places covered by Section 5 have a history of discrimination,” explains Shelton. “Every state under Section 5 was reviewed carefully for its record and complaints. [Opponents] are right: it is an extraordinary measure to take that is inconsistent with states’ rights. But these are states that have proven bad behavior. The law is protecting the participation of all eligible Americans.”
By: Ben Adler, The Nation, March 21, 2012
“Oath Keepers” Alive In Arizona: Pushes Unconstitutional Bill Restricting Federal Law Enforcement
Arizona’s county sherriff’s are not exactly known for setting the standard for effective law enforcement and loyalty to the Constitution — indeed, Maricopa County Sheriff Joe Arpaio is currently under federal investigation for widespread mistreatment of Latinos and other violations of the law. Nevertheless, an Arizona senate committee just approved a unconstitutional billwhich would require federal law enforcement officers to provide advance notice to Arpaio and his fellow sheriffs before taking action in their counties:
A Senate panel voted Thursday to fire a warning shot of sorts over the heads of federal law enforcement agencies: Don’t come around here unless you get local OK.
The legislation, crafted by Rep. David Gowan, R-Sierra Vista, would require employees of those agencies to first notify the sheriff of the county “before taking any official law enforcement action in a county in this state.”
The only exception would be if the notification would impede the federal officer’s duties. But even then, HB 2434 has a requirement to notify the sheriff “as soon as practicable after taking the action.”
The Constitution simply does not allow states to order federal officials to do anything. Under our Constitution, federal law is “the supreme law of the land,” so when Congress enacts an otherwise valid federal law and empowers federal officers to enforce it, the states have no power whatsoever to limit that enforcement or place conditions on it.
Disturbingly, the bill may also be connected to a radical anti-government group known as the “Oath Keepers.” The Oath Keepers is a right-wing group that pushes local law enforcement to pledge to defy federal “orders” the Oath Keepers believe are unconstitutional. Their website is riddled with paranoid rhetoric about government officials “disarm[ing] the American people,” “confiscat[ing] the property of the American people, including food and other essential supplies,” and “blockad[ing] American cities, thus turning them into giant concentration camps.” In early 2008, the Oath Keepers’ founder warned that a “dominatrix-in-chief” named “Hitlery Clinton” would impose a police state on America and shoot all resisters. After Democratic primary voters chose President Obama over Clinton, the Oath Keepers simply rewrote their paranoid fantasy to include a taller, African-American lead. Rep. Gowan, the lead sponsor of this bill, is listed as a member of the Tucson Oath Keepers on their Meetup page.
So, while merely notifying local law enforcement of federal actions may seem like a minor imposition, the bill makes sense in the context of a broader Oath Keeper agenda, because it gives local sherriffs advance notice of which federal actions they wish to defy.
By: Ian Millhiser, Think Progress, March 16, 2012
“Waiting For Mr. Roberts”: Is There A Constitutional Right To Contraception?
Is there a constitutional right to privacy underpinning the right to contraception? Suddenly, in this political climate, you can’t be sure, no matter what the U.S. Supreme Court said in 1965.
The high court ruled 7-2 in Griswold vs. Connecticut the state law forbidding the use of contraceptives was unconstitutional, in part because of due process, but mainly because it violated “the right of marital privacy.”
But the court of nearly 40 years ago that produced Griswold, the Warren Court, was one of the country’s most liberal, far more liberal than the current court and its consistent 5-4 conservative majority.
And Griswold’s finding of a right of privacy hiding in the “penumbra” of the Bill of Rights has been mocked over the years by conservatives. There is no absolute certainty that if the issue were brought before the Supreme Court today that Griswold would survive — though there is no certainty that it wouldn’t.
As recently as 2010, Justice Antonin Scalia, a conservative paladin speaking to an audience at UC Hastings College of the Law, dismissed the Griswold ruling as a “total absurdity.”
What exactly did the Griswold ruling say?
The late Justice William O. Douglas wrote the prevailing opinion. Three other justices joined him, and three more joined the judgment for different reasons.
“The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights,” Douglas wrote.
“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs or social conditions,” he said. “This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.
“The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”
The Connecticut case “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this [Supreme] Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ … Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The … very idea is repulsive to the notions of privacy surrounding the marriage relationship.
“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system,” Douglas said. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
The late Justice Potter Stewart, joined by Justice Hugo Black, dissented. Stewart said the Connecticut law might be “asinine,” but he could not find anything in the Constitution to forbid it.
“Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone,” Stewart wrote. “I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”
Griswold applied to married couples, but has since been expanded by the courts to all adults.
Nearly four decades later, contraception is once again under fire. Essentially, the Obama administration ignored the old adage, “Never poke a bear with a stick.” For bear read the U.S. Catholic bishops, who don’t think contraception is proper practice for the 21st century.
In February, U.S. Secretary of Health and Human Services Kathleen Sebelius issued an interim rule, mandating health insurance plans for all employers, including religiously affiliated institutions, include coverage for birth control, sterilization and other preventive services. The rule caused outrage among Catholic leaders and top officials of the Republican Party.
Feeling the heat, Obama then announced a rule modification: Women may have access to free preventive care, including contraceptive services. But if a woman’s employer objects to birth control on religious grounds, then the insurance company will be required to offer the woman contraceptive care directly, without a co-pay.
The policy was slammed repeatedly on the campaign trail by Republican presidential contender Rick Santorum, a conservative Catholic who said even the amended rule was an attack on religious freedom.
The issue ensnared Santorum’s purportedly more sophisticated rival Mitt Romney.
When Republican senators unsuccessfully tried to enact a measure that would allow employers to opt out of any healthcare coverage to which they objected on religious or moral grounds, Romney at first told an interviewer he was “not for the bill.” When the reaction set in from conservatives, Romney said what he meant was that he “strongly supported” the Senate measure, but misunderstood the original question.
Conservative radio hammer Rush Limbaugh turned up the heat under the dispute after a young law school student testified before a congressional panel that contraception was a necessary part of women’s preventive healthcare, Limbaugh said she wanted taxpayers to pay for her having sex. He also called her a “slut” and a “prostitute.”
Last month, a group of U.S. states went further. Seven filed suit in Lincoln, Neb., contending the amended administration rule violates the First Amendment’s freedom of religion guarantee. The suit was joined by several Catholic organizations.
John Witte, Jonas Robitscher professor of law, Alonzo L. McDonald distinguished professor and director of the Center for the Study of Law and Religion Center at Emory University in Atlanta, told The Christian Post the courts probably will rule against the administration.
The Religious Freedom Restoration Act was enacted by Congress, and signed by President Bill Clinton, in 1993. The act prohibited government from putting a substantial burden on individual or group freedom of religion unless there is a compelling government interest. If there is such a compelling interest, the act said, government must show it is acting in the least restrictive way.
The U.S. Supreme Court, in a 6-3 decision in 1997, struck down most of the law. But the majority, led by Justice Anthony Kennedy, left in place the restriction on the federal government even though it excluded state actions.
That interpretation was confirmed in a unanimous 2006 Supreme Court decision involving the importation of natural drugs from South America for religious purposes. Though the natural substance was banned by federal law, Chief Justice John Roberts said in the opinion the Supreme Court agreed with the lower courts — the federal government had failed to demonstrate a compelling interest in banning the sacramental use of the drug.
That violated RFRA, Roberts said.
One bright spot for contraception defenders: Kennedy wrote the 6-3 majority opinion that struck down the Texas sodomy law in 2003, and told the government to get out of the bedroom. He often completes the 5-4 conservative majority now holding sway at the high court, but in 2003 he joined and led the court’s liberals, saying, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home.”
By: Michael Kirkland, UPI, March 11, 2012
“False Faith”: Did Justice Scalia Call All Non-Christians Irrational?
Last Sunday, conservative Justice Antonin Scalia addressed the Living the Catholic Faith Conference conference in Denver, Colorado. During his speech, however, the justice appeared to suggest that Jews, Muslims and other non-Christians are somehow less rationalthan people who share his faith:
In Washington, Scalia said, the pundits and media couldn’t believe in a miracle performed under their noses.
“My point is not that reason and intellect need to be laid aside,” Scalia said. “A faith without a rational basis should be laid aside as false. … What is irrational is to reject a priori the possibility of miracles in general and the resurrection of Jesus Christ in particular.”
“A priori” is a philosophical term which is usually used to refer to a claim that one has knowledge independent of experience, so it is unclear how anyone could reject the central Christian belief that Jesus Christ was resurrected from the dead under Scalia’s standard given that no living person was around to actually experience it. More importantly, though, the clear implication of Scalia’s statement appears to be than all non-Christians — or approximately two-thirds of the world’s population — are “irrational.”
If Scalia indeed holds this view, than it raises serious questions about whether he can set aside this belief when called upon to interpret a Constitution that requires all religious beliefs to be treated with equal dignity. Moreover, it could have profound implications for the burgeoning debate over whether the Obama Administration’s contraceptive access rules are upheld by the Supreme Court.
In 1990, Scalia wrote the seminal Supreme Court case interpreting the Constitution’s guarantee that all Americans can freely exercise their faith, Employment Div. v. Smith. In Smith, Scalia explained that a law does not suddenly become unconstitutional because someone raises a religious objection to it. Scalia explained that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” This is why a law ensuring access to contraception is constitutional even if several Catholic bishops object to it.
Smith, however, did not involve Christians — it involved members of a Native American faith that wanted to use the drug peyote in a sacred ritual even though that drug was banned. Hopefully, Scalia recognizes that the rule he announced in Smith must apply equally to faiths he views as “rational” and those he also may view as “irrational.”
By: Ian Millhiser, Think Progress, March 7, 2012
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