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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

August 12, 2011 Posted by | Affordable Care Act, Commerce Clause, Congress, Conservatives, Constitution, Consumers, Democracy, Democrats, GOP, Health Care, Health Care Costs, Health Reform, Ideologues, Ideology, Individual Mandate, Insurance Companies, Medicaid, Medicare, Politics, Pre-Existing Conditions, President Obama, Republicans, SCOTUS, Supreme Court, Under Insured, Uninsured | , , , , , , , , , , , , , , | Leave a comment

Gov Rick Perry’s Abysmal Record On Women’s Health

If you’re a woman from Texas—or indeed, any  woman—there’s a lot to dislike about Gov. Rick Perry.

The vanity.  The boorishness.  The belief you’re too  stupid to make your own medical decisions. The weird resemblance to Animal House’s Niedermeyer in his college  photo.

Perry reminds me of the scene in Thelma and Louise in which  Thelma (Geena Davis) says of her  n’er-do-well husband, “He kind of  prides himself on being infantile.” Louise (Susan  Sarandon) responds,  “He’s got a lot to be proud of.”

So as we all prepare for the media barrage surrounding  Perry’s  presidential announcement on Saturday, and in tradition of my idol   Molly Ivins, I’m going to start a new group, Texas Women Enraged by Rick  Perry—TWERP for short.

As TWERP’s organizer, I feel  obliged to point out that on a  practical level, Rick Perry has made it pretty  lousy for women in  Texas, especially for women at the bottom of the economic  ladder. He’s  also made it pretty lousy for anybody who doesn’t look like him.  As  Eileen Smith wrote  in the Texas Observer, “In  just one session, Republicans managed to  screw children, women, gays,  immigrants, teachers, the elderly,  Hispanics, the unemployed and the uninsured.  The only people who got off easy were white guys. Can’t imagine why.”

The numbers tell the tale. Texas is dead last in the number  of  non-elderly women without health insurance, and 6th nationally in  the  percentage of women in poverty, according to the Texas  Legislative Study Group.  One in  five Texas children lack health insurance, the highest rate in  the nation. And  if that weren’t bad enough, Perry tried to opt out of  Medicaid, which provides  healthcare to the most vulnerable Texas populations, including pregnant women  and children.

When it comes to reproductive healthcare, the state budget guts  family planning, leaving 284,000 Texas women without birth control or access  to basic reproductive healthcare. This will also likely increase the abortion  rate, sonograms or no sonograms. And of course there’s the standard right wing assault on  Planned Parenthood. Women needing prenatal care fare no better.

As reported in the Texas  Tribune, “Texas has the worst rate  of pregnant women receiving prenatal care in the  first trimester,  according to the report commissioned by the Legislative Study  Group…And  though Texas has the highest percent of its population without  health  insurance, the state is 49th in per capita spending on Medicaid, and   dead last in per capita spending on mental health, according to the   report.”

So if you’re a working class Texas woman, Rick Perry doesn’t  want  you to have access to birth control or reproductive healthcare to  prevent  unintended pregnancy, but once you’re pregnant the state  mandates a sonogram  and a lecture to convince you of the error of your  ways. After that sonogram  and lecture, if you need prenatal care,  you’re SOL. And once the baby is born,  Texas is 47th in monthly benefit payments under the Women, Infants, & Children program, which  provides nutrition assistance.

This is Rick Perry’s vision for women in the United States. Limited  healthcare, little birth control, low  income women and kids left to  fend for themselves, a bunch of bureaucrats  telling you what to do—and  the very real human suffering that goes along with  it. TWERP might be  an understatement.

By: Laura Chapin, U. S. News and World Report, August 11, 2011

August 12, 2011 Posted by | Abortion, Class Warfare, Conservatives, Democracy, Economy, Education, Elections, Equal Rights, GOP, Governors, Health Care, Human Rights, Ideologues, Ideology, Immigrants, Income Gap, Lawmakers, Media, Medicaid, Middle Class, Planned Parenthood, Politics, Press, Pro-Choice, Racism, Republicans, Right Wing, States, Teaparty, Unemployed, Uninsured, Voters, Women, Women's Health, Womens Rights | , , , , , , , , , , , , , , , , , , | 1 Comment

Sign Me Up: Why I Support “The Ronald Reagan Tax Reform Act of 2011”

Ten years ago today, the wealthiest Americans caught a multi-billion dollar break from their benefactor, then-president George W. Bush. In the decade since, through two wars, natural disasters, a plummeting economy and a soaring debt, the wealthiest Americans have gotten to keep those Bush tax cuts. Happy birthday, everybody!

As the Republican Party now lines itself up behind Rep. Paul Ryan on his mission to cut the resulting deficit on the backs of working people and the elderly, I find myself surprisingly and strangely nostalgic for another GOP hero, whose legacy, at least when it comes to taxes, has become woefully misunderstood. Can it be that I find myself nostalgic for Ronald Reagan?!

Of course, I’m not alone in my nostalgia. I’m joined by the entire Republican leadership in this, but I think our reasons may be quite a bit different. In the spirit of unity, I’d like to suggest to Republicans in Congress that they look closely at the record of their favorite 20th century hero and adopt yet another policy named after the Gipper. I’m no fan of much of President Reagan’s legacy, but in a new spirit of bipartisanship, and historical accuracy, I’d like to present Republicans in Congress with an idea: the Ronald Reagan Tax Reform Act of 2011.

A key element of the Reagan lore believed by today’s GOP is that Reagan’s embrace of “trickle-down economics” is what caused any and all economic growth since the 1980s. In fact, after Reagan implemented his initial tax-slashing plan in 1981, the federal budget deficit started to rapidly balloon. Reagan and his economic advisers were forced to scramble and raised corporate taxes to calm the deficit expansion and stop the economy from spiraling downward. Between 1982 and 1984, Reagan implemented four tax hikes. In 1986, his Tax Reform Act imposed the largest corporate tax increase in U.S. history. The GDP growth and higher tax revenues enjoyed in the later years of the Reagan presidency were in part because of his willingness to compromise on his early supply-side idolatry.

The corporate tax increases that Reagan implemented — under the more palatable guise of “tax reform” — bear another lesson for Republicans. The vast majority of the current Republican Congress has signed on to a pledge peddled by anti-tax purist Grover Norquist, which beholds them to not raise any income taxes by any amount under any circumstances, or to bring in new revenue by closing loopholes. This pledge, which Rep. Ryan’s budget loyally adheres to, in effect freezes tax policy in time — preserving not only Bush’s massive and supposedly temporary tax cuts for the wealthiest Americans, but also a vast mishmash of tax breaks and loopholes for specific industries won by well-funded lobbyists.

The problem has become so great that many giant American corporations have become so adept at exploiting loopholes in the tax code that they paid no federal income taxes at all last year — if Republicans in Congress follow their pledge to Norquist, they won’t be able to close a single one of the loopholes that are allowing corporations to avoid paying their fair share.

Even Reagan recognized the difference between just plain raising taxes and simplifying the tax code to cut out loopholes that subsidize corporations. In 1984, he arranged to bring in $50 billion over three years, mainly by closing these loopholes. His 1986 reform act not only included $120 billion in tax hikes for corporations over five years, it also closed $300 billion worth of corporate loopholes.

These kinds of tax simplification solutions are available for Congress if they want them. As I wrote in April, nixing Bush’s tax cut’s for the wealthiest Americans would help the country cut roughly $65 billion off the deficit in this year alone. Closing loopholes that allow corporations to shelter their income in foreign banks would bring in $6.9 billion. Eliminating the massive tax breaks now enjoyed by oil and gas companies would yield $2.6 billion to help pay the nation’s bills.

But before Republicans in Congress change their math, they have to change their rhetoric — and embrace the reality of the economic situation they face and the one that they’d like to think they’re copying. In 1986, during the signing ceremony for the Tax Reform Act, Reagan explained that “vanishing loopholes and a minimum tax will mean that everybody and every corporation pay their fair share.”

It’s time for the GOP to take a page from their hero’s playbook. If they do so, they might be able to find some allies that they never thought possible. It’s time for “everybody and every corporation to pay their fair share.” We can all get along. Sign me up for “The Reagan Tax Reform Act of 2011.”

 

By: Michael B. Keegan, President: People For the American Way, Published in HuffPost, August 7, 2011

August 7, 2011 Posted by | Congress, Conservatives, Corporations, Democracy, Economic Recovery, Economy, GOP, Government, Ideologues, Ideology, Income Gap, Jobs, Lawmakers, Lobbyists, Middle Class, Politics, Republicans, Right Wing, Tax Loopholes, Taxes, Teaparty, Unemployed, Wealthy | , , , , , , , , , , , , , , , , , | Leave a comment

Taxing The Poor: The Only Tax Increase Republicans Support

Throughout the debate about raising the federal debt ceiling, Republicans have denied deal after deal because Democrats insist on adding new revenues to trillions of dollars in spending cuts. Republicans have opposed repealing oil and gas subsidies, removing a tax loophole for corporate jet owners, letting the Bush tax cuts expire, and all other forms of revenue Democrats have suggested. Raising taxes in a weak economy, they argue, is unthinkable — even if conservative patriarch Ronald Reagan did just that.

But there is one tax increase some Republicans seem to favor: raising taxes on the working poor, senior citizens, and other low-income Americans.

While they fight the expiration of the budget-busting Bush tax cuts, Republicans have continually cited a report that shows that 51 percent of Americans don’t pay income taxes, even admitting that middle- and lower-class Americans need to shoulder a larger burden in deficit reduction efforts. Here is a sample of Republicans who have made that argument:

Sen. Orrin Hatch

(R-UT): In a May 5 appearance on MSNBC, Hatch said, “The place where you’ve got to get revenues has to come from the middle class,” saying the poor needed to understand “that there’s a civic duty on the part of every one of us to help this government to, uh, to be better.” On the Senate floor July 7, Hatch said the poor “need to share some of the responsibility” for deficit reduction.

Sen. John Cornyn

(R-TX): Cornyn also cited the report on the Senate floor July 7, when he said Congress needed to address tax reform to make the system “flatter, fairer, and simpler.” He then cited the report, saying, “51 percent — that is — a majority of American households — paid no income tax in 2009. Zero. Zip. Nada.”

Sen. Dan Coats

(R-IN): Coats echoed the talking point last weekend, saying “everyone needs to have some skin in the game.” He added: “I realize that some with low incomes and not much money are not paying much in taxes. Nonetheless, we all have a stake in this country and what needs to be done. I think it’s important that this burden not just fall on 50 percent of the people but falls on all of us in some form.”

House Majority Leader Eric Cantor

(R-VA): Cantor was among the first Republicans to begin hitting this particular talking point, doing so in April on CNBC’s Squawk Box. “We also have a situation in this country where you’re nearing 50 percent of people who don’t even pay income taxes,” he said.

Republicans, of course, ignore why most of the 51 percent do not pay income taxes and the myriad ways in which they are subject to other forms of taxation. The majority who do not pay federal income taxes simply do not make enough money to qualify for even the lowest tax bracket. But they do contribute through payroll, state, and sales taxes. Less than a quarter of Americans don’t contribute to federal tax receipts, and the majority of those are students, the elderly, or the unemployed.

Meanwhile, the richest Americans are paying less than they were a generation ago, leaving the United States with one of the largest income gaps in the industrialized world.

By: Travis Waldron, Think Progress, July 25, 2011

July 26, 2011 Posted by | Budget, Class Warfare, Conservatives, Debt Ceiling, Debt Crisis, Deficits, Democrats, Economic Recovery, Economy, Elections, GOP, Government, Government Shut Down, Ideologues, Ideology, Income Gap, Jobs, Lawmakers, Middle Class, Politics, Public, Republicans, Right Wing, Tax Increases, Tax Loopholes, Taxes, Teaparty, Unemployed, Wealthy | , , , , , , , , , , , , , , , | Leave a comment

The Minnesota Shutdown – A Glimpse Into The Nation’s Future And The GOP’s True Intentions

A telephone help line service for the elderly will not be ringing today in Minnesota.

Blind residents reliant on state funding for reading services will remain in the dark for as long as the government’s lights are turned off. Poor families who receive subsidies for childcare are on their own. The St. Louis Park Emergency Program’s food shelf will have bare pickings for those who depend on the program for sustenance. The Community

Action Center of Northfield will likely be forced to close down its homeless shelter without the state funding upon which it relies to house the homeless.

And yes, 23,000 state workers will be trying to figure out how to care for their families without a paycheck for the duration along with an estimated 5,000 to 10,000 construction workers who will be laid off as the state shuts down dozens of road and highway projects.

These are but a few of the consequences of the shutdown of Minnesota’s government.

At issue is how to close a $5 billion deficit in the state left by the previous Minnesota governor, Tim Pawlenty.

Minnesota Governor Mark Dayton, a Democrat, had tried to bargain his way toward an agreement by offering up massive cuts in state services. In return, he asked the Republicans to agree to a tax increase for the wealthier citizens of the state to make up the remainder of the funding required to close most of the gap in the budget.

But the Republicans held firm on taxes – even when Dayton made his final offer that would have placed an additional 3% tax on only those Minnesotans earning over $1 million a year, a burden that would have been placed on just .03% of all Minnesotans.

It’s not so much that the state’s GOP leaders had a violent, allergic reaction to those earning seven figures a year having to pay a few percentage points more in taxes. What appears to have ended negotiations were the

Republican demands that Governor Dayton agree to their social agenda issues, including Voter ID legislation and abortion restrictions, as the price for the Republicans allowing the very wealthy to pay a little more.

When the Governor refused to swallow the notion that the conservative social agenda should be used as a tool to resolve budgetary issues, the talks broke down and the lights at the statehouse were turned off.

So, you might wonder, how did the Minnesota GOP suggest that the gap in the finances be met even as they seemed to realize that there was little left for the Governor to offer on the cutting side of the ledger?

You won’t believe it.

The Republicans actually proposed creating more debt to close the gap.

The GOP proposed delaying another $700 million in payments owed to schools, which would add to the more than $1 billion the state already owes K-12 schools.

Republicans also offered to issue “tobacco bonds” of an unspecified amount to cover any remaining budget gap. Sources said Dayton considered the offer, but he criticized it as unwise borrowing late Thursday. Via The Star Tribune

I guess a Republican has to do what a Republican has to do when it comes to protecting the wealthiest in the state from paying a higher tax rate- even if it means creating more debt despite a GOP platform that, allegedly, abhors debt.

If you find the lessons of Minnesota disturbing, get used to it.

What you are seeing is simply the national debate playing out on a smaller stage. I suppose this is what Republicans mean when they suggest using the states as laboratories for what will and won’t work on the national level.

You can bet that every political player on the national stage will be watching to see how the Minnesota public reacts to their situation along with which party gets the lion’s share of the blame for bringing this blight upon their land.

If Governor Dayton caves and simply accepts the GOP budget, we can expect that our Congressional Republicans would take great heart in such an occurrence and be emboldened to stick with the plan.

If the GOP legislators begin to fear that their jobs may be in jeopardy as punishment for shutting down the state in order to protect a little more than 7,000 Minnesotans earning at least a million bucks a year, that too will be noticed.

Watch the polls in Minnesota over the next week or two. They may tell you everything you need to know about what is likely to happen as we move towards resolving the debt ceiling debate.

 

By: Rick Ungar, The Policy Page, Forbes, Junly 1, 2011

July 3, 2011 Posted by | Class Warfare, Conservatives, Deficits, Democracy, Economy, GOP, Government, Government Shut Down, Governors, Ideologues, Ideology, Lawmakers, Middle Class, Politics, Public, Public Employees, Republicans, Right Wing, Seniors, State Legislatures, States, Union Busting, Unions, Wealthy | , , , , , , , , , | 1 Comment

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