Plaintiffs Challenging Affordable Care Act In The Supreme Court Admit That The Law Is Constitutional
One of the oddest arguments made by the plaintiffs now challenging the Affordable Care Act before the Supreme Court is a claim that, if just one small part of the law is declared unconstitutional, the whole law must fall with it. The overwhelming majority of judges who have heard ACA cases rejected the ridiculous claim that any part of the law is unconstitutional. And, of the handful of judges to strike part of the law down, only one — the guy who included an explicit shout-out to the Tea Partyin his opinion — accepted the legally indefensible position that the whole law must fall.
In their attempt to see the entire Affordable Care Act fall, however, several of the plaintiffs challenging the law committed what should be a fatal blunder — they effectively admit that their entire constitutional challenge to the law is garbage.
The primary attack on the ACA targets its provision requiring most Americans to either carry health insurance or pay slightly more income taxes — the so-called “individual mandate.” This insurance coverage provision exists because without it, the law’s other provisions ensuring that people with preexisting conditions can obtain insurance cannot be implemented. 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, massively driving up costs for the rest of the plan’s consumers.
This problem doesn’t just make the insurance coverage requirement good policy, it also makes it constitutional. The Constitution doesn’t just give Congress sweeping authority to regulate the national economy, it also authorizes it “[t]o make all laws which shall be necessary and proper for carrying into execution” regulations of interstate commerce. As conservative Justice Antonin Scalia explains, this means that, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
So, with this background in mind, consider the following passage from the private plaintiffs’ brief arguing that the entire law must fall if the insurance coverage rule goes down:
The mandate was intended to be a direct subsidy to insurance companies, as compensation for requiring them (in the guaranteed-issue provision) to insure against “risks” that have already come to pass and forbidding them (in the community-rating provision) from using actuarially sound insurance premiums. The mandate thus works to counteract the powerful inflationary impacts of these other provisions, which would otherwise make premiums in the individual insurance market prohibitively expensive, thereby frustrating Congress’ goal of affordable health insurance. And Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance.
The guaranteed-issue and community-rating requirements thus cannot operate without the mandate in the manner intended by Congress. Rather, “their associated force—not one or the other but both combined—was deemed by Congress to be necessary to achieve the end sought.” To strike the mandate alone would impermissibly eliminate a central quid pro quo of the Act. If the mandate falls, the guaranteed-issue and community-rating regulations must therefore fall with it, as the Government itself has conceded.
So the plaintiffs admit that, without the insurance coverage requirement, premiums will become “prohibitively expensive” and that the ACA’s provisions protecting people with preexisting conditions or who otherwise are highly likely to need health care (what are known as “guaranteed-issue” and “community-rating” laws in the jargon of health policy) “cannot operate without the mandate in the manner intended by Congress.” This is a flat out admission that the Scalia Rule applies in this case. Guaranteed issue and community rating are regulations of interstate commerce, and thus Congress has “every power needed” to make them effective — including the power to enact the insurance coverage requirement.
I discuss this rather breathtaking admission at greater length in an amicus brief I filed Friday on behalf of several health provider organizations, which also includes some more details about why the plaintiffs’ attempt to take out the entire ACA has no basis in law. Ultimately, however, there is no need whatsoever for the justices to consider how much of the law stands or falls without the coverage requirement. The private plaintiffs already gave away the farm when they admitted that their entire legal challenge rests on a crumbling foundation.
By: Ian Millhiser, Think Progress, January 30, 2012
Why Romney’s Relationship With GOP Voters Is Like An Arranged Marriage
Other than the losing candidates themselves, the people unhappiest with the Iowa results must be journalists and Democrats.
Journalists for the simple and obvious reason that a fierce battle is a lot more interesting to watch, and to write about, than a triumphal march. And Democrats because, even though Mitt Romney didn’t emerge from the caucuses entirely unscathed, what he suffered was, as they used to say in old cowboy movies, “just a flesh wound.” And since Democrats know Romney is the most dangerous — arguably the only dangerous — Republican presidential candidate in the field, they would like to have seen him injured far more grievously than actually occurred. An eight-vote win isn’t much of a win (his margin of victory was even narrower than Al Gore’s in the 2000 presidential election), but no one can call it a defeat.
Perhaps the best way to think about Republican primary voters this year is to imagine them as the bride in an arranged marriage. Her parents have chosen well for her, better than she had any right to expect; she has no grounds for complaint and knows it. The groom they have found for her is responsible, decent, reliable, a good provider, and even very handsome. But he just doesn’t excite her. There’s nothing about him that makes her heart beat faster. When she contemplates a future being wedded to him, something inside her shrivels up and dies.
So in the months before the marriage she goes a little crazy. Spends her nights at the bars in a bad section of town. Lets inappropriate strangers buy her drinks, and goes home with more than a few of them. Deep in her heart, she knows her behavior isn’t merely ill advised, it’s foolhardy. These guys (and even one woman!) won’t make her happy even for a night, let alone a lifetime. They’re all wrong, and some of them are even a little nuts. But they’re dashing and dangerous and transgressive, and she’s in that heedless mood where she just doesn’t give a damn. By morning, she always realizes she’s made a dreadful mistake. But that’s desperation for you: She doesn’t want to be reasonable, she wants to rebel. And this is looking like her last chance. Of course, on some level, she’s aware she’s going to be marching down the aisle with Mr. Sensible soon enough.
For those of us watching this matrimonial crisis closely, the only question remaining prior to Iowa was whether there was time for one more folly before she came to her senses. We knew the identity of the one guy on a bar stool she hadn’t hooked up with, we just didn’t know if she’d have an opportunity to plant herself on the back of his Harley before reality set in. Well, as became evident in the last week before the Republicans caucused, the answer was yes.
As with each of her previous flings, she didn’t begin to know enough about this fellow before deciding he might be worth a tumble. Rick Santorum appears personable, boyish, and pleasant. He gives every indication of being an upright sort of person. But his politics are genuinely abhorrent, so far outside the American mainstream as to be almost Falangist. Once his views become more widely known, he would drive voters away in droves; with sufficient exposure, it’s unlikely he could carry a single state outside the deep South. The only reasons he did so well in Iowa are a) he was the last alternative still standing, and b) while he’s known to be conservative, a buzzword that makes Republicans salivate without requesting a definition, the full extent of his views aren’t well known at all, and would not survive scrutiny.
The battle isn’t quite over. Santorum hasn’t yet undergone the sort of examination that undid, in turn, Trump, Bachmann, Cain, Perry, and Gingrich. He might have time to make a little mischief in New Hampshire before that happens, and South Carolina might be congenial territory for him regardless. And he has a spirited, spiteful ally in Newt Gingrich. Gingrich feels aggrieved, and when Gingrich feels aggrieved, he gets mean. Or perhaps it’s more accurate to say he gets meaner. He must know he’s going down, but he’s going to do everything he can to pull Mitt Romney down with him. Pure personal vengeance. Many of Romney’s vulnerabilities are well enough known by now to occasion no surprise, but I think we’re going to see him suffer some serious new knife wounds, front and back, during the next few debates.
Romney is going to be the Republican nominee. But he will be a damaged nominee. Which isn’t to say he will lose — it’s much too early for those kinds of predictions — but it does mean his path to victory is steeper and more tortuous than it had to be.
Two other thoughts: President Obama’s recess appointment of Richard Cordray was, yes, an appropriate and justified exercise of executive power. But it was also, in a modest and opening-gambit sort of way, an announcement of how he is going to run for re-election this year: Like Harry Truman in 1948. His opponent will be not only Mitt Romney, but the Congressional Republican Party.
And most interestingly, I suspect Iowa may mark the turning point in the way the country views the Supreme Court’s recent, indefensible decision, Citizens United v. Federal Election Commission. It was a decision most conservatives embraced when first issued, but the mischievous and entirely foreseeable consequences of this idiotic piece of jurisprudence are now visible for all to see. The fact that the State Supreme Court of a conservative state like Montana seems to agree has to be taken as a great big fat straw in the wind.
By: Erik Tarloff, The Atlantic, January 6, 2012
A “Wholly Legal Decision”: The Senate Cannot Take Away President Obama’s Recess Appointment Power By Pretending To Work
As ThinkProgress predicted yesterday, congressional Republicans did not wait long to whine that President Obama’s wholly legal decision to recess appoint Richard Cordray is unconstitutional. According to a blog post written by Speaker John Boehner’s staff, the Cordray appointment is unconstitutional because Obama defied an imaginary time-limit on his recess power and failed to respect the Senate’s decision to pretend that it’s actually doing something:
President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).
It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days.
First of all, Boehner needs to learn to count. For constitutional purposes, the Senate has been in recess since December 23. Although a single senator has opened a pretend session that lasts about half a minute — what is known as a “pro forma” session — every three days since then, these pro forma sessions have no impact whatsoever on the president’s recess appointment’s power. As Steven Bradbury and John Elwood, two key constitutional advisors during the Bush Administration, explained in 2010:
Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointment of officers.” . . . [A 1905 Senate report] cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”
The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.
Moreover, even if the Senate could stave off a recess by convening in the Neighborhood of Make Believe, it is simply not true that three days must pass before the president’s recess power kicks in. Though it’s true that Katyal once said that “I think our office has opined the recess has to be longer than 3 days,” an off-the-cuff comment by the Deputy Solicitor General does not have the power to change what the Constitution actually says. As the highest court to consider issue explained, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.”
By: Ian Millhiser, Think Progress, January 4, 2011
Nobody Understands Debt
In 2011, as in 2010, America was in a technical recovery but continued to suffer from disastrously high unemployment. And through most of 2011, as in 2010, almost all the conversation in Washington was about something else: the allegedly urgent issue of reducing the budget deficit.
This misplaced focus said a lot about our political culture, in particular about how disconnected Congress is from the suffering of ordinary Americans. But it also revealed something else: when people in D.C. talk about deficits and debt, by and large they have no idea what they’re talking about — and the people who talk the most understand the least.
Perhaps most obviously, the economic “experts” on whom much of Congress relies have been repeatedly, utterly wrong about the short-run effects of budget deficits. People who get their economic analysis from the likes of the Heritage Foundation have been waiting ever since President Obama took office for budget deficits to send interest rates soaring.
Any day now!
And while they’ve been waiting, those rates have dropped to historical lows. You might think that this would make politicians question their choice of experts — that is, you might think that if you didn’t know anything about our postmodern, fact-free politics.
But Washington isn’t just confused about the short run; it’s also confused about the long run. For while debt can be a problem, the way our politicians and pundits think about debt is all wrong, and exaggerates the problem’s size.
Deficit-worriers portray a future in which we’re impoverished by the need to pay back money we’ve been borrowing. They see America as being like a family that took out too large a mortgage, and will have a hard time making the monthly payments.
This is, however, a really bad analogy in at least two ways.
First, families have to pay back their debt. Governments don’t — all they need to do is ensure that debt grows more slowly than their tax base. The debt from World War II was never repaid; it just became increasingly irrelevant as the U.S. economy grew, and with it the income subject to taxation.
Second — and this is the point almost nobody seems to get — an over-borrowed family owes money to someone else; U.S. debt is, to a large extent, money we owe to ourselves.
This was clearly true of the debt incurred to win World War II. Taxpayers were on the hook for a debt that was significantly bigger, as a percentage of G.D.P., than debt today; but that debt was also owned by taxpayers, such as all the people who bought savings bonds. So the debt didn’t make postwar America poorer. In particular, the debt didn’t prevent the postwar generation from experiencing the biggest rise in incomes and living standards in our nation’s history.
But isn’t this time different? Not as much as you think.
It’s true that foreigners now hold large claims on the United States, including a fair amount of government debt. But every dollar’s worth of foreign claims on America is matched by 89 cents’ worth of U.S. claims on foreigners. And because foreigners tend to put their U.S. investments into safe, low-yield assets, America actually earns more from its assets abroad than it pays to foreign investors. If your image is of a nation that’s already deep in hock to the Chinese, you’ve been misinformed. Nor are we heading rapidly in that direction.
Now, the fact that federal debt isn’t at all like a mortgage on America’s future doesn’t mean that the debt is harmless. Taxes must be levied to pay the interest, and you don’t have to be a right-wing ideologue to concede that taxes impose some cost on the economy, if nothing else by causing a diversion of resources away from productive activities into tax avoidance and evasion. But these costs are a lot less dramatic than the analogy with an overindebted family might suggest.
And that’s why nations with stable, responsible governments — that is, governments that are willing to impose modestly higher taxes when the situation warrants it — have historically been able to live with much higher levels of debt than today’s conventional wisdom would lead you to believe. Britain, in particular, has had debt exceeding 100 percent of G.D.P. for 81 of the last 170 years. When Keynes was writing about the need to spend your way out of a depression, Britain was deeper in debt than any advanced nation today, with the exception of Japan.
Of course, America, with its rabidly antitax conservative movement, may not have a government that is responsible in this sense. But in that case the fault lies not in our debt, but in ourselves.
So yes, debt matters. But right now, other things matter more. We need more, not less, government spending to get us out of our unemployment trap. And the wrongheaded, ill-informed obsession with debt is standing in the way.
By: Paul Krugman, Op-Ed Columnist, The New York Times, January 1, 2012
Time For Ron Paul To Fully Answer Racism Charges
Last week, I mentioned the racism charges against Ron Paul, involving the newsletter he used to publish and some of the vile and witless statements therein. The matter has subsequently become a bigger deal, especially since he of the ill-fitting suit appeared on CNN and endured some questions from Gloria Borger, or perhaps I should say failed to endure them, since he snapped off his lapel mic and walked off the set. Paul says he has answered the charges. He has not. If he really wanted to, there are two very simple things he could do, but he will not do them, for reasons that are themselves illuminating.
If you’re unfamiliar with the particulars, you should read James Kirchick’s original New Republic piece from 2008. These are not your run-of-the-mill euphemisms. These are blatantly racist comments by, I would hope, nearly any measure. Jews and gays get their moment in the sun, and there are code-word comments of the sort we’ve come to expect about matters like secession, the right of which “should be ingrained in a free society”; but all those are just warm-up acts for the race stuff. The “Special Issue on Racial Terrorism,” produced after the Los Angeles riots, offers many gems, including this advice: “I’ve urged everyone in my family to know how to use a gun in self defense. For the animals are coming.”
I invoke this quote because the “I” in the above sentence is problematic. It would seem, in the pages of something called the Ron Paul Political Report, that that “I” would represent, well, Ron Paul. But he denies authorship—and more. As he said to Borger: “I never read that stuff. I was probably aware of it 10 years after it was written and it’s been going on 20 years that people have pestered me about this…”
So here is the first thing Paul can do, which is to provide an answer to a simple question: If he didn’t write those sentences, who did? Why not say? If he genuinely disagrees with the statements and truly disavows them, there could be no good reason not to name names. He acknowledges that he’s been aware of the sentences for a decade. Well, did he look into the authorship question at the time, when he was made aware? It seems to me that if I were a member of the House of Representatives (as Paul was at the time) and not a racist, and I discovered that racist screeds had been issued under my name, I’d want to know who wrote them. I suppose one could argue that they were written by a friend, and Paul is honorably protecting that friend from scrutiny. I might counter by stating that (again) if I were not a racist and discovered that racist screeds had been penned under my name by someone, it’s not very likely that that someone would still be my friend, on grounds of both his dubious integrity and our incompatibility of world views.
The second thing Paul could do is give a speech, or at least an informal talk, about his actual racial views. Paul has said that he doesn’t hold those views, and that “anyone who knows me” can affirm this to be the case. Well, doctor: a) that’s awfully fuzzy and doesn’t fill in much of the canvas, and b) the vast majority of us don’t know you. So how about filling in that canvas? If his views are as advanced as he assures us they are, there can be no downside.
Or can’t there? Paul will of course take neither of these steps. He won’t do the first because—well, the first theory of the case, hardly discredited to this point, is that he is in fact the author, and he’s clearly not going to admit that. But even if it is someone else, he won’t. It could be someone he’s still close to, someone he’s praised recently, or a dozen other things. And he won’t do the second because among his core supporters, there is utterly no reason for him to answer these questions. Doing so—giving some Obama-style “race speech”—would constitute capitulation to the liberal media, and if he committed that mortal sin, he’d quickly find himself back in the single-digit rooming house where he has flopped down for so many years already. And so, the real reason the truth is likely to remain unexamined, stated directly: Among Republicans and conservatives, there simply aren’t enough people who care whether he’s a racist or not. If there were a demand for an explanation, he would supply one. But there is not.
I recognize that it was all 20 years ago. There should be a statute of limitations on some things. But I humbly suggest that there are some matters on which there should not a statute of limitations. Kind words for Nazis; sympathy for Stalin, Mao, Pol Pot, and certain other dark eminences of the left; defenses of slavery; I’d say that these matters are on the far side of the Rubicon. Calling a group of people—identifiable only by their race—“animals” belongs in that company. We lack proof that Paul did that, but at the very least we have proof that he has regarded this whole thing very casually. This might not disqualify Paul from serving in Congress. There are all kinds of loons there. But for president, surely we can all agree that we can do better than this.
By: Michael Tomasky, Special Correspondent, The Daily Beast, December 23, 2011
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