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
Walkerville Activists Stand Strong: Peaceful Protest At Wisconsin Department Of Administration Offices
Dozens of Walkerville activists marched from the Wisconsin state Capitol to DOA Secretary Mike Huebsch’s offices at noon on Wednesday, June 15, to protest the former GOP state rep’s archaic Capitol security measures.
CMD learned while examining the drafting files at the Legislative Reference Bureau that Huebsch’s DOA gave the drafting orders for the collective bargaining section of the budget bill. Huebsch’s top political appointee, Cynthia Archer, served as a top aide to Scott Walker when he was Milwaukee County Executive.
The group roared “Who’s House? Our House!” as they entered the Department of Administration building on East Wilson Street. Protesters weren’t able to schedule a meeting with Huebsch – considered by many to be Governor Scott Walker’s top ally, and the architect of his 2011-2012 budget – but still managed to hang “unWANTED: Mike Huebsch” signs in his personal office and throughout the building.
Pilar Schiavo, an activist with the People’s Rights Campaign and Nurses United, led the peaceful procession. She stressed the danger of overlooking Huebsch’s involvement with Governor Walker’s anti-middle class agenda, and the need to repel his efforts to crush “the public’s right to assemble.”
“We feel like it’s important to pull Mike Huebsch out of the shadows. He’s really been responsible for the shutting down democracy within the capitol, and he’s had his hand in creating the budget,” said Schiavo.
One protestor taped an “unWANTED” sign, which read “Suspect is believed to be dangerous and armed with the unlawful eviction of The People from the Capitol” to Huebsch’s desk chair. With protestors still inside the building, a DOA receptionist began taking down the posters, citing their “offensive” nature.
The mood remained hopeful despite yesterday’s announcement from the Supreme Court legalizing Governor Walker’s collective bargaining legislation. Schiavo reminded the crowd that in spite of recent setbacks, victory looms on the horizon for the Wisconsin workers’ rights movement.
“People need to remember that this is a long fight, and that we’ve been successful already. We were able to hold that law for months. This is a long term struggle – the Walker agenda has been in the works for 30 years.”
By: Eric Carlson, Center for Media and Democracy, June 15, 2011
Budgeting For Insecurity: GOP Soft On Terrorism
Has any political party in history been as hypocritical as the modern GOP in terms of paying lip service to principles they undercut with policies?
Republicans say they are all about supporting our troops, and then they slash veterans benefits. They loudly proclaim their religious devotion to gatherings of evangelicals, but their philosopher queen is the faith-hating atheist Ayn Rand (see video in Noteworthy box above). Turns out they have two faces even for matters of critical national security, as yesterday’s editorial in the New York Times, “Budgeting for Insecurity,” makes disturbingly clear. An excerpt:
House Republicans talk tough on terrorism. So we can find no explanation — other than irresponsibility — for their vote to slash financing for eight antiterrorist programs. Unless the Senate repairs the damage, New York City and other high-risk localities will find it far harder to protect mass transit, ports and other potential targets.The programs received $2.5 billion last year in separate allocations. The House has cut that back to a single block grant of $752 million, an extraordinary two-thirds reduction. The results for high-risk areas would be so damaging — with port and mass transit security financing likely cut by more than half — that the chairman of the House Homeland Security Committee, Peter King of New York, voted against the bill as “an invitation to an attack.”
The Times editorial goes on to explain that the “Republicans made clear that budget-cutting trumped all other concerns…One $270 million cut, voted separately, would eliminate 5,000 airport-screening jobs across the country, according to the Transportation Security Administration.” They also fought to cut more than half of funding for first responder training, but the Democrats were able to restore most of it.
As the Times editorial asks, “Are these really the programs to be cutting?” Not if we put national security before politics.
By: Democratic Strategist Staff, June 10, 2011
Mitt Romney’s Flawed View Of Freedom
The bales of hay were stacked strategically in the hope that they’d make it into the television screen. The sturdy white barn nearby provided an image worthy of a Christmas card, the symbol of a solid, calm, industrious and confident country. The slogan behind the candidate, “Believe in America,” did not invite debate.
Whatever the punditocracy may have made of Mitt Romney’s formal announcement of his presidential candidacy last week, we could all give the guy credit for trying to reassure us that not everything in politics has changed.
In an age of media flying circuses where you never know who is running for president and who is just trying to boost book sales and speaking fees, Romney did it the old-fashioned way. He really, really wants to be president, and he offered pretty pictures to encourage us to watch him saying so. It was the venerable liturgy of our civil religion.
Unfortunately for Romney, he barely got his moment in the sun because dark clouds rolled in. Sarah Palin and Rudy Giuliani showed up in New Hampshire on the former Massachusetts governor’s magical day, underscoring why Romney is plagued by the word “putative,” which almost always appears before “front-runner.”
But Romney’s travails are about more than the man himself. They speak to the
condition of a party that won’t let him embrace his actual record and constantly
requires him — and all other Republicans — to say outlandish things.
Romney’s greatest political achievement, the Massachusetts health-care law, was a genuinely masterful piece of politics and policy. The New Yorker’s Ryan Lizza recently wrote a superb article about how Romney got the plan passed. The campaign should be
reproducing the article in bulk. Instead, Romney’s lieutenants will pray that Republican primary voters never read the story. Working with those horrid Democrats to pass any sort of forward-looking government program is now forbidden.
When Romney spoke at Doug and Stella Scamman’s Bittersweet Farm, he was guarded in talking about his health plan, saying he “hammered out a solution that took a bad situation and made it better. Not perfect, but it was a state solution to our state’s
problem.” The crowd gave him modest cheers when he got to the part about health
care being a state problem.
But he received what was, by my reckoning, his loudest response when he pledged “a complete repeal of Obamacare.” That’s where the GOP heart is, and Palin and Giuliani both got into most of the Romney announcement stories by bashing him on health care. When you’re forced to tiptoe around your accomplishments, it’s no wonder you get accused of shifting your shape.
Yet it was Romney himself who exposed contemporary conservatism’s core flaw.
“Did you know,” he asked, “that government — federal, state and local — under
President Obama, has grown to consume almost 40 percent of our economy? We’re
only inches away from ceasing to be a free economy.”
Actually, the federal government of which Obama is in charge “consumes” about a quarter of the economy — and this after a severe recession, when government’s share
naturally goes up.
But even granting Romney his addition of spending by all levels of government, the notion that we are “inches away from ceasing to be a free economy” is worse than absurd. It suggests that the only way we measure whether an economy and a country are “free” is by toting up how much government spends.
Are we less “free” because we spend money on public schools and student loans, Medicare and Medicaid, police and firefighters, roads and transit, national defense and environmental protection? Would we be “freer” if government spent zero percent of the economy and just stopped doing things?
Romney, presumably, doesn’t think this, but the logic of what he said points
in exactly that direction. We thus confront in 2012 nothing short of a fundamental argument over what the word “freedom” means. If freedom, as the conservatives seem to insist, comes down primarily to the quantity of government spending, then a country such as Sweden, where government spends quite a lot, would be less “free” than a right-wing dictatorship that had no welfare state and no public schools — but also didn’t allow its people to speak, pray, write or organize as they wish.
Many of us “believe in America” because we believe its history shows that our
sacred liberties are compatible with a rather substantial government that invests in efforts to expand the freedom from want, the freedom from fear, the freedom from unfair treatment and the freedom to improve ourselves. That, as the politicians like to say, is what this campaign is all about.
By: E. J. Dionne, Opinion Writer, The Washington Post, June 6, 2011
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