Conservative Legal Luminaries Concede: The Individual Mandate Is No Unique Threat To Freedom, After All
As summarized one month ago in a post here on Jonathan Chait’s blog, conservatives reacted with fury to an article I wrote for Slate in which I pointed out that two major components of House Budget Committee Chair Paul Ryan’s Roadmap for America’s Future closely resemble the much-demonized “individual mandate” in the Affordable Care Act. In particular, I noted that the ACA provision requiring health insurance has precisely the same kind of impact on individual purchasing decisions as Ryan’s roadmap, and is, if anything, less coercive than the Roadmap proposal to provide a tax credit to individuals who purchase health insurance, as a replacement for the current exclusion from income of employer-sponsored health insurance. The ACA imposes a tax penalty on individuals who choose not to purchase health insurance. The Ryan Roadmap, on the other hand, provides a tax credit to individuals who choose to purchase health insurance—a technical distinction, I suggested, without an economic or other real-world difference.
National Review, the Weekly Standard, and Hot Air raised various objections to this point, which was seconded by Ezra Klein in the Washington Post and by Jonathan in TNR. But recent oral arguments before federal appeals courts hearing legal challenges to the ACA should quiet such protests once and for all. In these arguments, two of the most celebrated members of the Right’s legal elite acknowledged that there is no daylight between the ACA mandate-plus-penalty and a Ryan-type tax credit universally conceded to be constitutional.
The first instance of this occurred on June 1, when Sixth Circuit Judge Jeffrey Sutton, sitting on a three-judge panel in Cincinnati in a case brought by the conservative advocacy group Thomas More Law Center, floated the hypothetical idea of a tax credit alternative to the ACA approach. The Law Center’s attorney, Robert Muise, acknowledged that “you could provide a credit for health insurance, there’s no prohibition on that.” To which Judge Sutton responded:
You think it would be just as coercive to say to people, everybody pays the same additional tax, it’s a health care tax, everybody pays it and the only people that don’t pay it, i.e. get a credit, are those with insurance, you think that would be as coercive?
Muise contended that a tax credit was different because it encouraged activity—namely the purchase of health insurance—whereas the ACA provision penalized a “failure to act.” But Sutton didn’t buy it:
If that’s your view, then just pay the penalty, pay the penalty, don’t get insurance, don’t be forced to do anything, in that sense, if you think they’re equivalent, in that sense, no one is forced to do anything, because the economic incentives are the same in both settings, you can’t say the law requires you to buy it, the law just penalizes you if you don’t.
Judge Sutton is not the first person to observe that the ACA’s allegedly freedom-destroying mandate is operationally indistinguishable from commonplace tax incentive provisions. But, apart from having actual decisional authority on the matter, Sutton enters this space with formidable ideological and professional credentials. One of the first batch of appeals court nominees picked by President George W. Bush, Sutton, though only 42 years old, earned his front rank position as the energizer bunny of the Rehnquist Court’s late 1990’s drive to shrink Congress’ domestic regulatory authority in the name of “federalism.” As a lawyer, Sutton argued and won, usually by bitterly contested 5-4 margins, a raft of decisions striking or narrowing provisions of the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Violence Against Women Act, the Clean Water Act, and regulations implementing the 1964 Civil Rights Act, among others. He famously once told Legal Times, “I really believe in this federalism stuff.” Sutton’s professional standing was unquestioned; appointed by the Supreme Court in 2001 to represent a prison inmate, Sutton won a unanimous decision and unusually explicit praise from its author, Justice Ruth Ginsburg, for “his able representation.”
Of course, Sutton’s verbal acknowledgement that the ACA individual mandate is not uniquely coercive, emphatic though it appeared, is no guarantee that he will not strike down a law that Republican orthodoxy demonizes as a drastic expansion of federal power. Nevertheless, his on-the-record statement leaves the case against the ACA mandate resting at best on a hypertechnical foundation lacking in substance.
The second acknowledgement of the ACA mandate’s kinship with uncontroversial tax incentives occurred a week later in Atlanta, at the June 8 argument before a panel of the Eleventh Circuit Court of Appeals in the case against ACA brought by 26 Republican state attorneys general and governors. During the argument, the Republicans’ counsel, Paul Clement, attempted to sound a reasonable note. He said, “There’s lots of different ways that Congress could incentivize people to get to the exact same result. They could have passed a new tax and called it a tax, and then they could have given people a tax credit for paying for qualifying insurance.”
Again, Clement’s observation was not original. But in addition to being the Republican opponents’ lawyer, Clement also served—with universally acknowledged distinction—as George W. Bush’s Solicitor General. Recently, he made headlines by resigning his 7 figure-per-year partnership in the Atlanta-based firm, King & Spalding, when the firm precipitously withdrew from representing his client, the House of Representatives, to defend the federal Defense of Marriage Act, aka DOMA.
The significance of Clement’s functional equivalence concession was not lost on Eleventh Circuit Judge Stanley Marcus. Marcus, originally named a district judge by President Ronald Reagan and subsequently to his current appellate position by President Bill Clinton, drew a logical implication subtly different from Judge Sutton’s observation that the ACA mandate is not uniquely coercive, but one that is potentially even more troublesome for the ACA opponents’ case. “Isn’t that just another way,” he asked rhetorically:
“[O]f saying they [Congress] could have done what they did better? More efficaciously, more directly, and they regulated perhaps inefficaciously, maybe even foolishly, but if it’s rational, doesn’t my job stop at the water’s edge? Isn’t it for the legislative branch to make those kinds of calculations and determinations?”
No constitutional lawyer could mistake where Judge Marcus was heading. How is it possible, he was saying, for courts to dictate which of two methods Congress must choose to implement its constitutionally enumerated powers, when both methods generate “the exact same result?” Judicial micro-managing on such a granular level, Marcus knows, violates the fundamental, black-letter standard established nearly two centuries ago by Chief Justice John Marshall. In his iconic 1819 decision, McCulloch v. Maryland, Marshall broadly interpreted the constitutional grant of authority to Congress “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers: “Let the end be legitimate,” he wrote in words memorized by first-year law students, “let it be within the scope of the constitution, all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
To be sure, no one who listened to this Eleventh Circuit argument could predict the panels’ outcome any more confidently than could those who heard the previous week’s Sixth Circuit argument. But these unequivocal statements, by two of conservativism’s most eminent legal luminaries, that the ACA individual mandate is not a unique threat to Americans’ liberty after all, surely drain much of the juice from opponents’ legal case, and, ultimately, from their political case as well.
By: Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, Guest Post, The New Republic, June 17, 2011
Drug Marketing and Free Speech: U. S. Supreme Court Says Data Mining Trumps Your Medical Privacy
Pharmaceutical companies, which spend billions of dollars a year promoting their products to doctors, have found that it is very useful to know what drugs a doctor has prescribed in the past. Many use data collected from prescriptionsprocessed by pharmacies — a doctor’s name, the drugs and the dosage — to refine their marketing practices and increase sales.
The Supreme Court on Thursday made it harder for states to protect medical privacy with laws that regulate such practices. In 2007, Vermont passed a law that forbade the sale of such records by pharmacies and their use for marketing purposes. The ruling upheld a lower court decision that struck down the law as unconstitutional.
Justice Anthony Kennedy, writing for the 6-to-3 majority, said the law violates First Amendment rights by imposing a “burden on protected expression” on specific speakers (drug marketers) and specific speech (information about the doctors and what they prescribed). It is unconstitutional because it restricts the transfer of that information and what the marketers have to say.
In dissent, Justice Stephen Breyer explains that the law’s only restriction is on access to data “that could help pharmaceutical companies create better sales messages.” He notes that any speech-related effects are “indirect, incidental, and entirely commercial.” By applying strict First Amendment scrutiny to this ordinary economic regulation, he warns, the court threatens to substitute “judicial for democratic decision-making.”
The law would have been upheld, Justice Breyer says, if the court had treated it as a restriction on commercial speech, which is less robustly protected than political speech. The court’s majority unwisely narrows the gap between commercial and political speech, and makes it harder to protect consumers.
By: Editorial, The New York Times, June 23, 2011
Debt Ceiling Charade: Why Are Republicans Voting Against America’s Interests?
There isn’t much credibility left in Congress, perhaps none at all. In fact, the ceaseless C-SPAN sitcom we call government has offered plot lines from titillating tweets to illegitimate children, foreign lovers to shady cover-ups. But even their writers sometimes run out of ideas. Last week, when they thought you weren’t watching, they stooped to acting out their actual jobs: faking a vote on the debt ceiling.
A group of Republicans and Democrats alongside them turned sacred duty into dramedy. Pretending they would favor something they actually don’t endorse, they voted against their own beliefs and our national interests.
Of course, they first sold their banker buddies the good seats. Along with popcorn and reassurance that they weren’t actually planning a default on our debt, they were just pretending to do so in order to exact concessions.
These “leaders” admit that not raising the debt limit is untenable. Defaulting on our loans, we’re told, has the potential to wreck our economy. In fact, we’re supposed to be very concerned about this economy. It’s not “healthy”; it’s in “free-fall”; it’s “crumbling into ruin”.
But this belies the true damage these members of Congress seem intent to bring upon us. The economy is nothing besides the people that work, buy, save and invest within it. The collateral damage here isn’t to some numerical abstraction; it’s a serious and even fatal blow to Americans. We talk so much about the economy suffering; it’s easy to forget it’s actual people who stand to be hurt badly, over and again.
Even Republicans know raising the debt ceiling is not really negotiable. This issue is at core about whether or not we do what we say, whether or not America can be trusted. And raising the debt ceiling without precondition is about whether we make good on our promises not just to our creditors, but to each other. For all Republicans talk about not being able to afford things, it seems to apply only to food, health care, housing and electricity for their constituents. We’re flush when it comes to not collecting taxes from corporations, giving more to millionaires, subsidizing polluters and bombing other countries.
Without raising the debt ceiling free of conditions, we cannot honor our commitments to our grandparents who need to see their doctors and purchase their meds, to our children who need trained teachers and classrooms with heat and to our neighbors who need help when jobs are scarce and earnings don’t cover what life costs. Further gutting social spending will hurt those least equipped to sustain further injury. The jobless, the homeless, the young and the old will be the ones maimed.
With all this at stake, those of us without Goldman-sized bonuses to cover the cost of a heads-up beforehand are left watching in horror from the nose bleed section. This is a scripted show mocking not only we the people but the very exercise of elected office.
If voting among the masses is democracy in action – the votes of those we’ve voted for should be even more important. This is the logic behind representative democracy as our beloved Constitution has enabled it. This is the belief that has served us as a nation and as a people.
We all like to have occasional fun at the office. Some facebook checking, coffee drinking, office gossiping stress relief help the hours tick by. Republican House Members and some Democrats have turned workplace tricks into a dangerous practical joke on us, and we’re not laughing. This is the scariest kind of reality television. No more theatrics about our security and prosperity. Our elected leaders need to stop playing at their jobs and step up to do them.
By: Anat Shenker, AlterNet, June 12, 2011
When Al Qaeda Endorses The GOP Line On Guns
A few weeks ago, House Republicans killed a proposal to prevent those on the FBI’s terrorist watch list from buying firearms. It’s the same party that’s supported the gun-show loophole for years.
When it comes to organizations that appreciate the Republican approach most, the National Rifle Association certainly comes to mind, but Chris Brown flags a different group that seems pleased.
In a video released [Friday] Al Qaeda spokesman Adam Gadahn encourages terrorists to use American gun shows to arm themselves for potential Mumbai-style attacks. Gadahn’s video laid out a new tactic for Al Qaeda to continue their murderous terrorist agenda:
“America is absolutely awash with easily obtainable firearms. You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely without having to show an identification card. So what are you waiting for?”
At gun shows buyers can purchase guns from private sellers without passing a background check.
Because the discourse allows no meaningful discussion of restricting gun ownership, this news will probably spark exactly zero debate on Capitol Hill.
But it’s a reminder of just how complete the NRA’s victory really is. Al Qaeda itself is urging radicals to take advantage of loose American laws to arm themselves, presumably to aid in acts of terror … and policymakers who fear the NRA more than they fear terrorists don’t say a word.
By: Steve Benen, Contributing Writer, Washington Monthly-Political Animal, June 6, 2011
The Return Of Back-Alley Abortions
Underground abortions have returned to the United States, just as pro-choice activists have warned for years. And women have started going to jail for the crime of ending their own pregnancies, or trying to.
This week Jennie L. McCormack, a 32-year-old mother of three from eastern Idaho, was arrested for self-inducing an abortion. According to the Associated Press, McCormack couldn’t afford a legal procedure, and so took pills that her sister had ordered online. For some reason, she kept the fetus, which police found after they were called by a disapproving acquaintance. She now faces up to five years in prison, as well as a $5,000 fine.
Idaho recently banned abortions after 20 weeks, and McCormack’s fetus was reportedly between five and six months old. But according to Alexa Kolbi-Molinas, a staff attorney for the ACLU’s Reproductive Freedom Project, under Idaho law, McCormack could have been arrested even if she’d been in her first trimester because self-induced abortion is illegal in all circumstances. “It doesn’t matter if it’s an 8- or 10- or 12-week abortion,” says Kolbi-Molinas. “If you do what you could get lawfully in a doctor’s office—what you have a constitutional right to access in a doctor’s office—they can throw you in jail and make you a convicted felon.”
While horrific, McCormack’s case is not unique. In recent years, several women have been arrested on suspicion of causing their own abortions, or attempting to. Most have come from conservative rural states with few clinics and numerous restrictions on abortion. In America’s urban centers and liberal enclaves, the idea of women being prosecuted for taking desperate measures to end their pregnancies might seem inconceivable, a never-again remnant of the era before Roe v. Wade. In fact, it’s a slowly encroaching reality.
Even more, these cases demonstrate that criminalizing abortion means turning women who have abortions into criminals.
In 2005, Gabriela Flores, a 22-year-old Mexican migrant worker, was arrested in South Carolina. Like McCormack, she had three children and said she couldn’t afford a fourth, and so she turned to clandestinely acquired pills. (The drug she took, Misoprostol, is an ulcer medicine that also works as an abortifacient and is widely used in Latin American countries where abortion is illegal.) Initially facing two years in prison, she ended up being sentenced to 90 days.
In 2009, a 17-year-old Utah girl known in court filings as J.M.S. found herself pregnant by an older man who is now facing charges of using her in child pornography. J.M.S. lived in house without electricity or running water in a remote part of the state, several hours’ drive from the nearest clinic, which was in Salt Lake City. Getting there would have required not just a car—her area had no public transportation—but money for a hotel in order to comply with Utah’s 24-hour-waiting period, as well as for the cost of the abortion itself.
According to prosecutors, when J.M.S. was in her third trimester, she paid a man $150 to beat her in the hopes of inducing a miscarriage. The fetus survived, but she was charged with criminal solicitation to commit murder. When her case was thrown out on the grounds that her actions weren’t illegal under the state’s definition of abortion, legislators changed the law so they would be able to punish women like her in the future.
Meanwhile, prosecutors have appealed J.M.S.’ case to the Supreme Court, and observers expect it to rule against her. She could still face a trial and prison time.
A woman doesn’t even have to be trying to abort to find herself under arrest. Last year, a pregnant 22-year-old in Iowa named Christine Taylor ended up in the hospital after falling down a flight of stairs. A mother of two, she told a nurse she’d tripped after an upsetting phone conversation with her estranged husband. Though she’d gone to the hospital to make sure her fetus was OK, she confessed that she’d been ambivalent about the pregnancy and unsure whether she was ready to become a single mother of three.
Suspecting Taylor had hurled herself down the stairs on purpose, the nurse called a doctor, and at some point the police were brought in. Taylor was arrested on charges of attempted feticide. She spent two days in jail before the charges were dropped because she was in her second trimester, and Iowa’s feticide laws don’t kick in until the third.
These cases are a harbinger of what’s to come as abortion laws become increasingly strict and abortion clinics harder to access in the more conservative parts of the country. They demonstrate the lengths to which women will go to end unwanted pregnancies. But even more, they demonstrate that criminalizing abortion means turning women who have abortions into criminals.
The antiabortion movement likes to see itself as pro-woman. Most of its spokespeople talk about protecting women from abortion, insisting they’re not interested in seeing them punished. “It’s tragic that this young woman felt that this was her only way out,” National Right to Life President Carol Tobias said in a statement in response to questions about the McCormack case. “The pro-life movement has never supported jail sentences for women who are victims of the abortion culture and abortion industry.”
Tobias said her group calls on Idaho officials “to engage in more publicity about the network of pregnancy resource centers and about the existence of Idaho’s safe haven law—either of which would have helped this young mother and saved her child.” But she didn’t call on them to release McCormack or to change the laws under which she’s being charged. If these sorts of prosecutions aren’t what the antiabortion movement had in mind when it pushed wave after wave of state-level legislation, now might be a good time to speak up.
By: Michelle Goldberg, Contributing Writer, The Daily Beast, June 3, 2011
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