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
Public Service Announcement: Gov Rick Perry Pushes For Higher Taxes
When Texas Gov. Rick Perry kicked off his Republican presidential campaign yesterday, his speech buried the needle on the Cliche-O-Meter, offering up one generic, predictable GOP theme after another. There was, however, one line in particular that stood out as interesting.
“We’re dismayed at the injustice that nearly half of all Americans don’t even pay any income tax. And you know the liberals out there are saying that we need to pay more.”
In this context, “we” refers to Perry and everyone who shares his worldview.
The oddity, of course, is that the governor seems to be arguing that Americans don’t pay enough in income taxes. Or more accurately, it’s unjust that more Americans aren’t paying income taxes.
This is an increasingly popular argument in right-wing circles — Michele Bachmann, one of Perry’s presidential rivals, has pushed the same line — though it’s entirely counter-intuitive. The argument isn’t even subtle: far-right Republicans are annoyed that many Americans don’t make enough money to be eligible to pay income taxes, so they believe it’s important to get more of these lower- and middle-income Americans paying more to the government.
In case anyone’s forgotten, the relevant details matters here: millions of Americans may be exempt from income taxes, but they still pay sales taxes, state taxes, local taxes, Social Security taxes, Medicare/Medicaid taxes, and in many instances, property taxes.
It’s not as if these folks are getting away with something — the existing tax structure leaves them out of the income tax system because they don’t make enough money to qualify.
Perry considers this an “injustice,” one which he apparently intends to fix, and which he feels strongly enough about to include in his closely-watched kick-off speech.
This should make for quite a 2012 debate, shouldn’t it? Some of the most far-right candidates want Americans with less to pay more in taxes. Seriously.
By: Steve Benen, Contributing Writer, Political Animal, Washington Monthly, August 14, 2011
CEO’s And Teapartiers, Shut Up And Pay Your Taxes: Starving The Government Is Not Patriotic
As I sit here in Germany’s financial capital, a few hours by train from where my forbearers set out for the United States a century ago, I’m remembering what antitax Americans are forgetting: Living in a stable and free society that supports economic initiative isn’t a given.
Those who think that U.S. corporations and wealthy individuals already pay too much in taxes and get too little in return are taking for granted social order and economic opportunity. Keeping the peace costs money, and paying police, fire and other emergency personnel requires tax revenue. Just ask U.K. Prime Minister David Cameron, whose plan to make substantial cuts in London’s Metropolitan Police budget now looks ill-timed, amid pictures of looters making off with stolen goods.
U.S. corporations benefit every day from operating in an environment where bricks aren’t flying through windows and gunshots aren’t going off in parking lots. Civil unrest can be expensive, as executives at Sony Corp learned this week after its London warehouse went up in flames.
It also costs money to educate a workforce, something that also seems glossed over by those who want to slash money for federal education grants.
When I first arrived in Germany, people asked me whether the news they saw on TV is true, that “everyone in the United States is lining up for food stamps,” as one Frankfurter put it. Their questions were a reminder that even though Germany’s tax burden is higher than that in the United States, its economy weathered the global recession of 2008-09 better than America’s did, and its unemployment rate today, at 7%, is significantly lower than ours at 9.1%.
People like Grover Norquist, who claim that high taxes are the root of all our economic problems, have no answer for facts like these.
Those who want to lower business taxes often say that the U.S. corporate tax rate of 35% is higher than the 25% average of the world’s developing economies. But that argument ignores the long list of tax loopholes that allow U.S. companies to pay much lower rates in actuality.
Go down the list of second-quarter earnings reports for companies in the S&P 500 Index and stop when you get to one that paid 35% of earnings. That might take a while.
What the United States needs isn’t more tax cuts, but tax reform to eliminate the many loopholes that create an uneven playing field.
Tax corporate cash
Given the sluggish pace of U.S. economic growth, perhaps such reform could include a tax on the enormous amounts of cash that American companies now have sitting on their balance sheets.
Non-financial companies in the S&P 500 are sitting on more than $1 trillion in cash right now — an absurd amount given that many of those same companies are laying off workers. Some estimates put the total closer to $2 trillion.
Forcing corporations to spend that money, either by hiring workers or paying investor dividends, would go a long way toward spurring growth.
When I hear Norquist — along with the candidates active in the tea-party movement that are too weak to resist signing his so-called loyalty oath — complain about actually having to pay for government services, I think we’ve come to take those services for granted.
I also think such whining is the exact opposite of the can-do attitude of the waves of immigrants who helped build the U.S. economy and continue to do so today. I’d like to introduce them to some of the start-up CEOs that I interview every week in Silicon Valley.
During the past few months, I’ve been writing a series of profiles on tech entrepreneurs for the site Entrepreneur.com. Neither I nor my editors planned it this way, but given that recent immigrants tend to be among the hardest-working Americans, perhaps it’s no surprise that none of the first four that I’ve written about are native to the United States.
These executives are people who, like generations of immigrants before them, came to the States and put their energy into building companies, rather than sitting around complaining how terrible a place this is to do business. They also, by the way, create jobs.
They come from across the globe: Victoria Ransom and Alain Chuard of Wildfire Interactive grew up in New Zealand and Switzerland, respectively; Mikkel Svane and his Zendesk co-founders hail from Denmark; Rahim Fazal of Involver is from Vancouver, B.C.
Yet all of them came to the United States to build their businesses. Why would they do that if it’s so hostile to their efforts, as the antitax extremists claim the country to be?
The answer is it’s not. On the contrary, America’s still the most attractive country for entrepreneurs. Keeping it that way costs money — something that tax haters seem to forget.
By: John Shinal, MarketWatch, August 12, 2011
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