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
Flashback 2007: Tim Pawlenty Proposed Establishing A Health Insurance Exchange
Politico’s Kendra Marr and Kate Nocera reviewthe health care records of the GOP presidential candidates and find that Mitt Romney isn’t the only contender who previously supported parts of the Affordable Care Act. Tim Pawlenty, Jon Huntsman, and Newt Gingrich all flirted with various provisions that ultimately ended up in the health law.
ThinkProgress Health reported on Pawlenty’s past support for “universal coverage” here, and his positive assessment of Massachusetts’ individual mandate, but Cal Ludeman, his commissioner of the Minnesota Department of Human Services, recalls that Pawlenty also advocated for establishing an exchange:
Minnesota’s exchange proposal would have required all employers with more than 10 employees to create a “section 125 plan” so workers could buy cheaper insurance with pre-tax dollars. During a 2007 news conference, Pawlenty said launching such a system would only cost employers about $300.
“Remember how new that idea was, even back then,” said Ludeman. “Everybody was talking about how this was a new Orbitz or Travelocity, where you just go shop. It was never talked about in our conversations as a hard mandated only channel where you could go. But that’s where Massachusetts ended up.”
Pawlenty advanced the non-profit Minnesota Insurance Exchange in 2007, arguing that it could “connect employers and workers with more affordable health coverage options.” “If just two of your employees go out and buy insurance through the exchange, the benefits to the employer on a pre-tax basis — because of their payments to Social Security and otherwise into the 125 plan — more than cover the cost of setting up the plan,” Pawlenty explained.
The exchange originated as a Republican idea and was developed in part by the Heritage Foundation’s Stuart Butler. The measure was eventually adopted by Mitt Romney and later became part of the Democrats’ health reform plan. Under the Affordable Care Act, states that don’t establish their own exchanges by 2014, cede control of the new health market places to the federal government. In 2010, while still governor of Minnesota, Pawlenty rejected the ACA’s “insurance exchanges,” dubbing them a federal takeover.
By: Igor Volsky, Think Progress, June 13, 2011
GOP Supported Individual Mandate To Prevent ‘Government Takeover’ Of Health Care
The Los Angeles Times’ Noam Levey looks at the history of the individual health insurance mandate and discovers that not only was the provision designed by Republicans as an alternative to President Bill Clinton’s health care reform plan in the 1990s, but it was specifically seen as a way to prevent a “government takeover” of health care:
“We were thinking, if you wanted to achieve universal coverage, what was the way to do it if you didn’t do single payer?” said Paul Feldstein, a health economist at UC Irvine, who co-wrote the 1991 plan with Pauly.
Feldstein and Pauly compared mandatory health insurance to requirements to pay for Social Security, auto insurance, or workers’ compensation.
So too did the Heritage Foundation’s Stuart Butler, who in 1989 wrote a health plan that also included an insurance requirement.
“If a young man wrecks his Porsche and has not had the foresight to obtain insurance, we may commiserate, but society feels no obligation to repair his car,” Butler told a Tennessee health conference that year.
“But healthcare is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance.… A mandate on individuals recognizes this implicit contract,” said Butler, who was the foundation’s director of domestic policy studies.
Levey notes that fully a third of Republicans supported a bill that included a national individual requirement, introduced by then-Senator and current Rhode Island Gov. Lincoln Chafee. Sens. Bob Dole (R-KS), Charles Grassley (R-IA), Orrin Hatch (R-UT), and Richard Lugar (R-IN) all backed that measure. The National Federation of Independent Business, a conservative small-business group, even “praised the bill ‘for its emphasis on individual responsibility.’”
And this wasn’t some fluke of the ’90s either. As recently as 2007, “[t]en Republican senators — including Tennessee’s Lamar Alexander, now a GOP leader — signed on to a bill that year by Bennett and Sen. Ron Wyden (D-Ore.) to achieve universal health coverage.” The legislation penalized individuals who did not purchase insurance coverage.
Listing all of the GOP presidential candidates who have previously supported the mandate (Romney, Gingrich, Huntsman, Pawlenty) would only belabor the point, which is that the GOP’s new-found religion on the mandate and its constitutionality is driven by the political need to unravel the Democrats’ crowning social achievement, not any great concerns about policy, constitutionality, or freedom.
By: Igor Volsky, Think Progress, May 31, 2011
Republicans Ignored Warnings On Paul Ryan Plan
It might be a political time bomb — that’s what GOP pollsters warned as House Republicans prepared for the April 15 vote on Rep. Paul Ryan’s proposed budget, with its plan to dramatically remake Medicare.
No matter how favorably pollsters with the Tarrance Group or other firms spun the bill in their pitch — casting it as the only path to saving the beloved health entitlement for seniors — the Ryan budget’s approval rating barely budged above the high 30s or its disapproval below 50 percent, according to a Republican operative familiar with the presentation.
The poll numbers on the plan were so toxic — nearly as bad as those of President Barack Obama’s health reform bill at the nadir of its unpopularity — that staffers with the National Republican Congressional Committee warned leadership, “You might not want to go there” in a series of tense pre-vote meetings.
But go there Republicans did, en masse and with rhetorical gusto — transforming the political landscape for 2012, giving Democrats a new shot at life and forcing the GOP to suddenly shift from offense to defense.
It’s been more than a month since Speaker John Boehner (R-Ohio) and his lieutenant, Majority Leader Eric Cantor (R-Va) boldly positioned their party as a beacon of fiscal responsibility — a move many have praised as principled, if risky. In the process, however, they raced through political red lights to pass Ryan’s controversial measure in a deceptively unified 235-193 vote, with only four GOP dissenters.
The story of how it passed so quickly — with a minimum of public hand-wringing and a frenzy of backroom machinations — is a tale of colliding principles and power politics set against the backdrop of a fickle and anxious electorate.
The outward unity projected by House Republicans masked weeks of fierce debate, even infighting, and doubt over a measure that stands virtually no chance of becoming law. In a series of heated closed-door exchanges, dissenters, led by Ryan’s main internal rival — House Ways and Means Committee Chairman Dave Camp (R-Mich.) — argued for a less radical, more bipartisan approach, GOP staffers say.
At a fundraiser shortly after the vote, a frustrated Camp groused, “We shouldn’t have done it” and that he was “overridden,” according to a person in attendance.
A few days earlier, as most Republicans remained mute during a GOP conference meeting on the Ryan plan, Camp rose and drily asserted, “People in my district like Medicare,” one lawmaker, who is now having his own doubts about voting yes, told POLITICO.
At the same time, GOP pollsters, political consultants and House and NRCC staffers vividly reminded leadership that their members were being forced to walk the plank for a piece of quixotic legislation. They described for leadership the horrors that might be visited on the party during the next campaign, comparing it time and again with former Speaker Nancy Pelosi’s decision to ram through a cap-and-trade bill despite the risks it posed to Democratic incumbents.
“The tea party itch has definitely not been scratched, so the voices who were saying, ‘Let’s do this in a way that’s politically survivable,’ got drowned out by a kind of panic,” a top GOP consultant involved in the debate said, on condition of anonymity.
“The feeling among leadership was, we have to be true to the people who put us here. We don’t know what to do, but it has to be bold.”
Another GOP insider involved to the process was more morbid: “Jumping off a bridge is bold, too.”
Time will tell whether the Medicare vote, the most politically significant legislative act of the 112th Congress thus far, will be viewed by 2012 voters as a courageous act of fiscal responsibility — or as an unforced error that puts dozens of marginal GOP seats and the party’s presidential candidates at serious risk. That question might be answered, in part, this week during a special election in New York’s 26th Congressional District, in which Republican Jane Corwin appears to be losing ground to Democrat Kathy Hochul.
The GOP message team is already scrambling to redefine the issue as a Republican attempt to “save” Medicare, not kill it.
But the party’s stars remain stubbornly misaligned. Presidential hopeful Newt Gingrich candidly described the Medicare plan as “right-wing social engineering” — only to pull it back when Ryan and others griped. And Priorities USA Action, an independent group started by two West Wing veterans of the Obama administration, was out Friday with its first ad, a TV spot in South Carolina using Gingrich’s words to savage Mitt Romney for saying he was on the “same page” as Ryan.
“The impact of what the House Republicans have done is just enormous. It will be a litmus test in the GOP [presidential] primary,” said former White House deputy press secretary Bill Burton, one of the group’s founders.
“I couldn’t believe these idiots — I don’t know what else to call them — they’re idiots. … They actually made their members vote on it. It was completely stunning to me,” said former Pennsylvania Gov. Ed Rendell, a Democrat who worked hard to win over the western part of his state, which has among the highest concentration of elderly voters in the country.
It was also the site of some of the Democrats’ worst losses in 2010 — three swing House seats Democrats hope to recapture next year, largely on the strength of the Medicare argument.
“Look at [freshman House members in the Pittsburgh-Scranton area], they make them vote on this when they’re representing one of the oldest districts in the country?” Rendell asked.
“We have a message challenge, a big one, and that’s what the polling is showing,” conceded Rep. Patrick McHenry (R-N.C.), a former Karl Rove protégé who enthusiastically backed the Ryan plan. “There’s no way you attack the deficit in my lifetime without dealing with the growth of Medicare. Do we get a political benefit from proposing a legitimate solution to a major policy problem? That’s an open question.”
The House Republican leadership had hinted at an emerging plan to tackle entitlement reform on Feb. 14 — the day Obama released his budget without reforms to Medicare, Medicaid and Social Security.
Cantor caught Hill reporters by surprise when he said, nonchalantly, that the Republican budget would be a “serious document that will reflect the type of path we feel we should be taking to address the fiscal situation, including addressing entitlement reforms.”
But there were also internal motivations in the decision to go big on Medicare, rooted in Boehner’s still tenuous grasp of the leadership reins, according to a dozen party operatives and Hill staffers interviewed by POLITICO.
Republican sources said Boehner, who has struggled to control his rambunctious new majority, needed to send a message to conservative upstarts that he was serious about bold fiscal reform — especially after some of the 63 freshmen rebelled against his 2011 budget deal that averted a government shutdown.
Then there’s the ever-present friction between Boehner and Cantor, who, along with Minority Whip Kevin McCarthy (R-Calif.), has positioned himself as the next generation of GOP leadership and champion of the conservative freshman class.
Boehner’s camp said the speaker has always supported the Ryan approach — which would offer vouchers to future Medicare recipients currently younger than 55 in lieu of direct federal subsidies — and proved his support by voting for a similar measure in 2009.
“Boehner has said for years, including leading up to the 2010 election, that we would honestly deal with the big challenges facing our country,” said his spokesman, Michael Steel. “With 10,000 Baby Boomers retiring every day, it is clear to everyone that Medicare will not be there for future generations unless it is reformed. The status quo means bankruptcy and deep benefit cuts for seniors. It’s clear who the real grown-ups in the room are. We’ve told the truth and led, while the Democrats who run Washington have cravenly scrambled and lied for partisan gain.”
But that message hasn’t always been quite that clear. On several occasions, Boehner has seemed squishy on the Ryan budget. In talking to ABC News, Boehner said he was “not wedded” to the plan and that it was “worthy of consideration.”
Still, even if Boehner had opposed the plan — and his top aide, Barry Jackson, expressed concerns about the political fallout to other staffers — he probably couldn’t have stopped the Ryan Express anyway, so great was the push from freshmen and conservatives.
That’s not to say some of the speaker’s allies from the Midwest didn’t try. Camp and Ryan hashed out their differences in a series of private meetings that, on occasion, turned testy, according to several GOP aides. Camp argued that the Ryan plan, which he backed in principle — and eventually voted for — was a nonstarter that would only make it harder to reach a bipartisan framework on real entitlement reform.
A few weeks later, Camp told a health care conference that, from a pragmatic legislative perspective, he considered the Ryan budget history. “Frankly, I’m not interested in talking about whether the House is going to pass a bill that the Senate shows no interest in. I’m not interested in laying down more markers,” he said.
House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) also made the case for a more moderate approach — but his principal concern was the Medicaid portion of Ryan’s plan, an approach he believed wouldn’t do enough to reduce burdens of indigent care on states.
But even as Democrats high-five over the possibility of Medicare-fueled political gains, Republicans are trying to muster a unified defense. Cantor, for his part, stumbled by suggesting to a Washington Post reporter that the Ryan Medicare provisions might be ditched during bipartisan debt negotiations being led by Vice President Joe Biden.
Cantor later clarified his remarks and claimed he still backed the Ryan principles, but no GOP staffer interviewed for this article believed the Medicare overhaul has any realistic chance of passage.
By: Glenn Thrush and Jake Sherman, Politico, May 23, 2011
The GOP’s Apology Primary: Love Means Always Having To Say You’re Sorry
In the 2012 Republican presidential race, love apparently means always having to say you’re sorry.
On an array of issues, the field of GOP contenders is facing enormous pressure from an ascendant conservative base to renounce earlier positions that challenged orthodoxy on the right. Their response to those demands could cast a big shadow over not only next year’s Republican primary but also the general-election contest against President Obama.
The emergence of these pressures testifies to a decisive shift in the GOP’s balance of power. The ideas now drawing the most fire from conservative activists–including support for a cap-and-trade system to limit greenhouse-gas emissions, a mandate on individuals to purchase health insurance, and a pathway to citizenship for illegal immigrants–all flowered in Republican circles during the middle years of George W. Bush’s presidency, especially among governors.
In different ways, each of these proposals embodied the common belief that Republicans had to broaden their message beyond a conventional conservative argument focused almost exclusively on reducing government spending, taxes, and regulation. Intellectually, these initiatives reflected an impulse to redefine conservatism in ways that accepted a role for government in empowering individuals or promoting market-based solutions. Politically, they reflected the belief that to build a lasting majority, Republicans needed to attract more minority voters, especially Hispanics, and to loosen the Democratic hold on blue states by reclaiming more suburban independents.
At varying points, this tendency operated under different names, including “compassionate conservatism” and “national greatness conservatism.” But the shared belief “was the sense that the Republican Party, in order to revitalize itself, needed to … show that it had modernized,” said Pete Wehner, who directed the Office of Strategic Initiatives in Bush’s White House.
Behind that conviction, Bush and the Republican-controlled Congress in 2003 created an entitlement by establishing the Medicare prescription drug benefit. In 2006, with Bush’s support, 23 GOP senators voted with 39 Democrats to provide a pathway to citizenship for illegal immigrants.
In the states, this instinct produced health care reform proposals from Govs. Mitt Romney in Massachusetts and Arnold Schwarzenegger in California that centered on an individual mandate, as well as initiatives from many GOP governors to promote alternative energy and to impose mandatory limits on the carbon emissions linked to global climate change. Republican governors played driving roles in creating regional multistate alliances to limit carbon emissions in the Midwest (Tim Pawlenty in Minnesota); the Northeast (George Pataki in New York); and the West (Jon Huntsman in Utah and Schwarzenegger). Huntsman joined then-Gov. Janet Napolitano of Arizona in 2006 to produce a bipartisan Western governors’ plan that favored legalization over deportation for illegal immigrants.
Many hard-core conservatives always bristled at these initiatives. But in those years, they lacked the leverage to entirely suppress them. Now, though, the party’s most conservative elements have clearly regained the upper hand. The tipping point was the election of Barack Obama and his pursuit of an agenda that significantly expanded Washington’s reach across many fronts. His initiatives produced a powerful back-to-basics reaction among Republicans.
The result has been to revert the party’s message toward one focused almost solely on shrinking government. “Obama, by the way he governed, shifted the debate into a much more traditional Democratic-Republican divide over the role of government,” notes Wehner, now a senior fellow at the conservative Ethics and Public Policy Center. “That’s pushed to the side or capsized these other issues.”
That dynamic has left the 2012 GOP contenders facing multiplying demands to abandon and apologize for positions they took in what now looks like a brief period of Republican glasnost.
Pawlenty has already apologized for imposing carbon limits in Minnesota but hasn’t yet renounced his parallel support for requiring utilities to generate more of their power from renewable sources, which some conservatives have also demanded. Huntsman, as he considers the race, has abandoned his previous climate policies but not yet walked back his tilt toward legalization for illegal immigrants. Romney renounced his favorable comments about legalizing undocumented immigrants (as well as his earlier backing of abortion rights) during his 2008 run, but he drew a surprisingly firm line this month by reaffirming his support for his health insurance mandate in Massachusetts. Newt Gingrich, who has faced similar complaints about his earlier support for an individual mandate and efforts to control carbon emissions, hasn’t fully tossed aside either.
These maelstroms leave the candidates without many good options. To dig in behind earlier positions promises unending collisions with conservatives (as Romney has now done on health care). But abandoning too many positions under pressure could open the eventual nominee to effective attacks from Democrats. “If these candidates are now sliding back on things they once believed, it raises questions about whether they can be a strong leader,” says Bill Burton, the former deputy White House press secretary who is heading an independent Democratic campaign effort for 2012. If voters agree, the 2012 Republicans may feel sorry later for saying sorry so often now.
By: Ronald Brownstein, Political Director, Atlantic Media, The Atlantic, May 20, 2011
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