The Deeply Crazy In Virginia’s Obamacare Lawsuit
As my Philadelphia Phillies idled through a two-hour rain delay Thursday night, I curled up with some light reading: a Texas Review of Law & Politics article by the legal team, led by Virginia Attorney General Ken Cuccinelli, that’s challenging the new healthcare individual mandate in the U.S. Court of Appeals for the Fourth Circuit.
It’s fascinating stuff.
Cuccinelli and co. follow a long trail from the 18th century British jurist William Blackstone to the Dred Scott case to the New Deal to the present day. The conservative team, at first, makes a tight, prudential case against the Obamacare mandate that I, in my nonprofessional capacity, happen to favor.
In their words:
No existing case needs to be overruled and no existing doctrine needs to be curtailed or expanded for Virginia to prevail on the merits. Nor does Virginia remotely suggest that the United States lacks the power to erect a system of national healthcare. Virginia expressly pled that Congress has the authority to act under the taxing and spending powers as it did with respect to Social Security and Medicare, but that Congress in this instance lacked the political capital and will to do so. No challenge has been mounted by Virginia to the vast sweep and scope of the Patient Protection and Affordable Care Act (PPACA). Instead, only the mandate and penalty were challenged because the claimed power is tantamount to a national police power inasmuch as it lacks principled limits.
In plainer, get-to-the-point English: We grant you the social safety net established under the “Roosevelt Settlement.” We recognize Congress’s power to regulate interstate commerce. We even grant that this power could conceivably deliver universal healthcare. But for Pete’s sake, don’t try to include “inactivity”—that is, not buying a health insurance plan on the private market—under its purview.
Because, once you regulate the act of doing nothing, what’s left to regulate?
Er, nothing.
Thus, does the state’s power to tax and police become theoretically unlimited?
But, later in the body of the piece, Team Cuccinelli begins to play other, more presently familiar cards. Glenn Beck fans will recognize the faces in the rogue’s gallery: Justice Oliver Wendell Holmes, progressive philosopher John Dewey, and others who, this argument goes, created the post-New Deal legal and philosophical edifice.
Wouldn’t you know it, this welfare-state stuff constitutes a violation of natural law—which, ipso facto, means economic laissez-faire—and a lurch into moral chaos. Echoing the newly popular Hayek, Cuccinelli’s article asserts the primacy of economic rights while characterizing as relativistic the not-exclusively-liberal jurisprudential argument that personhood and dignity precede the marketplace. (Last I checked, I’ve never seen an unborn baby sign a contract.)
Come conclusion time, the piece sounds eerily like it’s not merely advocating the curtailment of an otherwise defensible attempt to advance the national interest, but rather like a full-throated libertarian manifesto:
The Progressive Meliorists had argued that they should be accorded constitutional space in which to make a social experiment, agreeing in turn to be judged by the results. The New Dealers carried the experiment forward. Seventy years later, results are in suggesting that the experiment is living beyond its means. The statist heirs to the experiment say that it cannot and must not be curtailed, so now they claim this new power.
Social Security and Medicare—an experiment! Just a temporary, 70-year blip on the radar!
So, in 46 pages, we proceed from modest and reasonable to deeply crazy.
It behooves us to ask, what’s Cuccinelli’s endgame?
I think we’ve seen this movie before.
By: Scott Galupo, U. S. News and World Report, August 18, 2011
Republican House Bills: A Glimpse Into The Tea Party’s Vision For America
If the House ran America, what would America look like?
It would no longer have a far-reaching health-care law. The House voted to repeal that legislation in January.
It would no longer have federal limits on greenhouse gases. The House voted to ax them in April.
And it would not have three government programs for homeowners who are in trouble on their mortgages. The House voted to end them all.
These and many other changes are included in an ambitious slate of more than 80 bills that have passed since Republicans took control of the chamber this year.
Most of these measures will die in the Democrat-controlled Senate. Still, they are a revealing kind of vision statement — the first evidence of how a tea-party-influenced GOP would like to reshape the country.
That vision is aimed at dismantling some Democratic priorities. The GOP’s philosophy holds that paring back an expensive and heavy-handed government bureaucracy would help restore the country’s financial footing and give private businesses the freedom to grow and create jobs.
After seven months, it is still only half a vision.
On major issues such as health care, climate change and bad mortgages, the House has affirmed that fixes are needed — if it can ever manage to repeal the old ones.
It hasn’t said exactly what those changes should be.
“The Republican Party is sort of united in terms of what they’re against. But there’s not a great deal of consensus right now in terms of what they’re for,” said Michael D. Tanner, a senior fellow at the libertarian Cato Institute and an expert on health-care reform and recent GOP history.
This month, a divided Congress finally staggered into its summer recess. Its business has been split between the terrifyingly urgent — including standoffs that threatened a government shutdown and a national debt default — and the purely theoretical.
The theoretical part has come because neither the House nor the Senate is likely to approve big ideas dreamed up by the other. The Democrat-held Senate has reacted to this by withdrawing into legislative hibernation.
House Republicans have instead been passing bills that tell a story — about the country they want but can’t quite get.
“The new House Republican majority was voted into office to change the way Washington does business and make the government accountable to the American people once again. Our agenda has reflected these goals,” said Laena Fallon, a spokeswoman for House Majority Leader Eric Cantor (Va.).
But even within the Republican ranks, there is a desire for more details about the party’s vision for replacing Democratic policies.
Rep. Trey Gowdy (S.C.) said the GOP must put forward its own solutions on issues such as health care, job creation and mortgage assistance. He said he is not convinced that there is a need to take on climate change in the same way.
“Being the party of ‘no’ . . . is an appropriate response” in some cases, Gowdy said. “It’s not appropriate when you’ve been extensively critical of someone else’s ideas” and have none to replace them, he said.
“For substance reasons, and for credibility reasons, we also need to have a comprehensive . . . alternative that goes beyond saying, ‘Your plan is bad,’ ” Gowdy said.
The best-known part of the House’s vision has to do with spending. The chamber passed a budget that calls for a Medicare overhaul that would force new recipients to buy private insurance after 2022. It also passed, with five Democratic backers, a bill that demanded a balanced budget amendment: essentially, a spending limit written into the Constitution.
But the House’s measures have gone far beyond the budget.
It has passed legislation to forbid new energy-efficiency standards for light bulbs and to punish shining a laser pointer at an airplane in flight. It voted to take away federal funding for National Public Radio and for public financing of presidential campaigns.
The House also took a stand against President Obama on the military campaign in Libya, rejecting a motion to approve U.S. involvement. And it voted to rein in Environmental Protection Agency efforts against “mountaintop-removal coal mines” by requiring the EPA to defer to decisions by state regulators.
On three major issues, the House seemed to acknowledge that simply repealing a Democratic idea might not be enough — and that it did not have its own solutions.
On Jan. 19, for instance, 242 Republicans and three Democrats voted to repeal the landmark health-care law.
In place of the legislation, Republicans had said they would craft their own solutions for problems involving high costs and the denial of coverage for preexisting conditions. Their slogan, outlined in last fall’s Pledge to America, was “Repeal and Replace.”
No replacement has occurred.
A bill that would limit liability in malpractice lawsuits has passed in committee. Other ideas are being developed, aides said.
On climate change, the EPA is requiring larger power plants and industrial facilities to reduce greenhouse gas emissions to obtain new permits.
But many in Congress worried that the effort would drive up energy prices and kill jobs. So in April, 236 House Republicans and 19 Democrats voted to make the EPA stop in its tracks.
In place of regulations, they approved only a vaguely worded “sense of the Congress” about climate change.
“There is established scientific concern over warming of the climate system,” the bill says. It adds that Congress should attack the problem “by developing policies that do not adversely affect the American economy, energy supplies, and employment.”
But how? When? The measure doesn’t say.
And it doesn’t need to, said Tim Phillips, president of the conservative group Americans for Prosperity. He said his group thinks that simply repealing this legislation — and the health-care law — is enough for now.
“The big-government assault [has been] so damaging to the economy and the government. They’re doing the right thing by just trying to stop and reverse,” Phillips said.
Environmental groups have said that the House’s bill would leave the nation powerless to fight an escalating global problem.
“They clearly aren’t going to pass any legislation themselves that would address that pollution,” said Dan Lashof of the Natural Resources Defense Council.
The House also has voted to eliminate three federal programs meant to aid homeowners in danger of foreclosure. Two help modify loans to create lower payments. The third gives no-interest loans to borrowers who are in trouble. All have been criticized for moving too slowly and helping too few.
In March, the House decided to do away with them. The Congressional Budget Office said that doing so could save taxpayers $2.4 billion.
“None of the programs . . . have been successful,” Michael Steel, a spokesman for House Speaker John A. Boehner (R-Ohio), wrote in a statement.
By: David Fahrenthold, The Washington Post, August 17, 2011
“Enumerated Powers” And The Radicalism of The GOP Thought Process
Republican presidential hopeful Rick Perry chatted with The Daily Beast yesterday, and was asked about his understanding of “general welfare” under the Constitution. The left, the Texas governor was told, would defend Social Security and Medicare as constitutional under this clause, and asked Perry to explain his own approach. He replied:
“I don’t think our founding fathers, when they were putting the term ‘general welfare’ in there, were thinking about a federally operated program of pensions nor a federally operated program of health care. What they clearly said was that those were issues that the states need to address. Not the federal government. I stand very clear on that. From my perspective, the states could substantially better operate those programs if that’s what those states decided to do.”
It’s worth pausing to appreciate the radicalism of this position. When congressional Republicans, for example, push to end Medicare and replace it with a privatized voucher scheme, they make a fiscal argument — the GOP prefers to push the costs away from the government and onto individuals and families as a way of reducing the deficit.
But Perry is arguing programs like Medicare and Social Security aren’t just too expensive; he’s also saying they shouldn’t exist in the first place because he perceives them as unconstitutional. Indeed, when pressed on what “general welfare” might include if Medicare and Social Security don’t make the cut, the Texas governor literally didn’t say a word.
Now, this far-right extremism may not come as too big a surprise to those familiar with Perry’s worldview. He’s rather obsessed with the 10th Amendment — unless we’re talking about gays or abortion — and George Will recently touted him as a “10th Amendment conservative.” Perry’s radicalism is largely expected.
It’s worth noting, then, that Mitt Romney seems to be in a similar boat. He was asked in last night’s debate about his hard-to-describe approach to health care policy, and the extent to which his state-based law served as a model for the Affordable Care Act. Romney argued:
“There are some similarities between what we did in Massachusetts and what President Obama did, but there are some big differences. And one is, I believe in the 10th Amendment of the Constitution. And that says that powers not specifically granted to the federal government are reserved by the states and the people.”
What I’d really like to know is whether Romney means this, and if so, how much. Because if he’s serious about this interpretation of the law, and he intends to govern under the assumption that powers not specifically granted to the federal government are reserved by the states and the people, then a Romney administration would be every bit as radical as a Perry administration.
After all, the power to extend health care coverage to seniors obviously isn’t a power specifically granted to the federal government, so by Romney’s reasoning, like Perry’s, Medicare shouldn’t exist. Neither should Social Security, the Civil Rights Act, the Clean Air Act, student loans, FEMA, or many other benchmarks of modern American life.
And if Romney doesn’t believe this, and he’s comfortable with Medicare’s constitutionality, maybe he could explain why the federal government has the constitutional authority to bring health care coverage to a 65-year-old American, but not a 64-year-old American.
By: Steve Benen, Contributing Writer, Washington Monthly-Political Animal, August 12, 2011
The 11th Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution
The key passage in today’s opinion striking down part of the Affordable Care Act appears on page 113, where the two judge majority explains how they will determine whether this law is constitutional:
In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. The Constitution provides that Congress may “regulate Commerce…among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution.
A law requiring most Americans to either carry insurance or pay slightly more taxes clearly regulates the national market for health care. It determines how people will finance health care purchases. It lowers the cost of health insurance. And it protects that market from something known as an “adverse selection death spiral.” So that should have been the end of the case. The Court cites no provision of the Constitution limiting Congress’ authority to pass this law because no such provision exists.
Instead, it imposes two extra-textual limits on national leaders’ ability to solve national problems. If the law is somehow “unprecedented,” and if a decision upholding the law lacks vague and undetermined “meaningful limit[s]” on Congress’ authority that somehow upset the balance between federal and state power, then the law must be struck down even if the Constitution’s text says otherwise.
Yet even if these two novel limits are taken seriously, the court’s analysis still makes no sense. For one thing, the law is only “unprecedented” in the sense that it preferred a market-driven solution to the problem of widespread uninsurance over more government driven solutions such as Medicare. The truth is that Congress already requires nearly all Americans to purchase health insurance — and they have done so for many years. Every year the federal government collects taxes which are in no way optional. A portion of these taxes are then spent to buy health insurance for the elderly (Medicare) for the poor (Medicaid) and for children (SCHIP).
So the only real question in this case is whether the government is required to first take your money and then buy health coverage for you, or whether the Constitution allows Congress to cut out the middle man.
The Court is also simply wrong to claim that a decision upholding the ACA would necessarily mean that there are no limits on federal power. The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Because the ACA’s regulation of the national insurance market cannot function without a requirement that nearly every American carry insurance. this requirement is clearly constitutional under Justice Scalia’s statement that Congress possess “every power needed” to make it’s economic regulations effective. Moreover, upholding the Affordable Care Act under Justice Scalia’s rule would require a court to do nothing more than hold that the Affordable Care Act is constitutional. There is no federal law which depends upon mandatory broccoli purchases, for example, in order to function properly in the same way that the ACA’s preexisting conditions provision can only function properly in the presence of an insurance coverage requirement. Accordingly, the court’s concern that upholding the law would destroy any limits on federal power is unwarranted.
As a final note, it is likely that conservatives will tout the fact that Judge Hull was appointed by President Clinton in the same way that progressives touted Bush-appointed Judge Sutton’s decision rejecting an ACA challenge. The two judges are not comparable, however. Judge Sutton is a former Scalia clerk who stood on the vanguard of the conservative legal movement for many years. Judge Hull, by contrast, is a compromise nominee Clinton selected in order to overcome obstruction from the Republican-controlled Senate.
Hull has a long record of conservative criminal and individual rights decisions. We now know that she is also very far to the right questions of federal power. That is unfortunate, but it also places her well to the right of some of the Supreme Court’s most conservative members.
By: Ian Millhiser, U. S. News and World Report, August 12, 2011
Populist Sen Mitch McConnell: “I Think Everyone Should Pay Their Fair Share, Including The Rich”
Today, Senate Minority Leader Mitch McConnell (R-KY) named three Republicans to the fiscal super committee that was created by the debt ceiling deal. All three have taken the Americans for Tax Reform anti-tax pledge and support a cockamamie constitutional balanced budget amendment. “What I can pretty certainly sayto the American people, the chances of any kind of tax increase passing with this, with the appointees that John Boehner and I are going to put on there, are pretty low,” McConnell has said.
But McConnell has not always been so virulently anti-tax. In fact, in a 1990 campaign ad, McConnell said that “everyone should pay their fair share, including the rich,” prompting the Associated Press to say that he sounded like a “populist Democrat”:
“Many Republican candidates are, in fact, holding fast to the no-new-taxes position that Bush embraced and then abandoned, even as they try to portray themselves as friends of senior citizens and the disadvantaged. Others are sounding more and more like populist Democrats. ‘Unlike some folks around here, I think everyone should pay their fair share, including the rich,’ Sen. Mitch McConnell, R-Ky., says in a campaign ad.” [Associated Press, 10/28/90]
“A twist of untraditional Republicanism is added to McConnell’s message when he says, ‘Unlike some folks around here, I think everyone should pay their fair share, including the rich. We need to protect seniors from Medicare cuts too,’” wrote Roll Call reporter Steve Lilienthal. “After proclaiming his independence from the President and Congressional leaders, McConnell reassures voters that he will back a ‘fair deal for the working families of Kentucky.’” [“Democrats Flood Airwaves Charging GOP Party of Rich,” Roll Call, 11/5/1990]
If McConnell truly believes this, he should be appalled by current conditions. Tax rates on the richest Americans have plunged in recent years, and millionaires today pay tax rates that are 25 percent lower than they were in 1995. Meanwhile, income inequality is the worst its been since the 1920s, with the top 1 percent of Americans taking home 25 percent of the country’s total income. Just the richest 400 Americans hold more wealth than the bottom 50 percent of Americans combined, and the richest 10 percent of Americans control two-thirds of the country’s net worth.
From the sounds of it, once upon a time McConnell would have found this troublesome. It’s a shame that he doesn’t any longer.
By: Pat Garafalo, Contribution by: Sarah Bufkin; Think Progress, August 10, 2011
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