Mitt Romney Must Clarify Defense Of Individual Mandate
I sympathize a little with former Gov. Mitt Romney on the issue of the individual mandate. In effect, the conservative movement pulled the rug out from under him.
He copped the idea from the Heritage Foundation, a conservative think tank. Conservative legal scholars didn’t cry foul when Romneycare passed in 2006. Tea Party enforcer Sen. Jim DeMint didn’t seem to have a problem with it. Former Speaker Newt Gingrich explicitly supported it as late as 2008.
But when it became a central element of Obamacare, it suddenly became the thin end of the socialist wedge.
Still, Romney stretches things with his recent defense of the mandate:
What we did was right for the people of Massachusetts, the plan is still favored by 3 to 1 and it is fundamentally a conservative principle to insist that people take personal responsibility as opposed to turning to government for giving out free care.
Is the mandate really a reflection of the principle of personal responsibility?
Doesn’t the purist case for personal responsibility look more like the one made by Rep. Ron Paul in the Tea Party debate, in which Paul said freedom is about letting people suffer the consequences of risky behavior?
Put it this way: If Romney and Paul both say they’re for insisting on personal responsibility, they can’t both be right.
What we have here are two subtly different conceptions of “personal responsibility.”
When Romney uses the phrase, he means that, in the decision to purchase a major medical insurance policy, there’s a self-evidently “responsible” choice: You get coverage, even if you’re young and healthy.
When Paul uses it, he means you should be free not to buy it—and the rest of us shouldn’t have to foot the bill if your luck turns rotten.
Romney the technocrat probably thought of the individual mandate in terms of Cass Sunstein (currently serving in the White House’s Office of Information and Regulatory Affairs) and Richard Thaler’s “nudge theory” of human behavior: Government can encourage people to make better choices through wiser “choice architecture” instead of blunt instruments.
The problem for Romney, of course, is that lots of conservatives now believe the mandate is a blunt instrument—and lustily cheer at Paul’s more exacting definition of personal responsibility.
If Romney wants to continue to use the phrase to win over conservative skeptics, he’s going to have to clarify what he means by it.
By: Scott Galupo, U. S. News and World Report, December 28, 2011
Mitt Romney: The Anti-Jobs Candidate
My friend Peter Daou had an item the other day, noting the potency of the Republican presidential frontrunner’s message: “Romney is a threat because he can focus on a dead simple message: ‘I’m a successful businessman, I’ll create jobs and fix the economy.’”
That’s exactly right. Mitt Romney, at least this latest version of him, has an entire campaign rationale that fits comfortably into a tweet. Better yet, it’s a message that voters are eager to hear.
Ed Kilgore had a related piece on this the other day, summarizing the argument that Romney and his backers are likely to push aggressively: “Romney has an extensive corporate background, looks the part of a CEO, and without question, he would prefer an issues environment focused on anything other than health care reform or the cultural issues on which he’s never inspired trust among conservatives.”
Romney doesn’t want to talk about health care or the fact that he was a pro-choice moderate who supported gay rights and gun control. Indeed, he would just as soon hope people forget he was even a governor. This is Businessman Mitt, running as a less ridiculous version of Herman Cain.
Kilgore’s argument is that this message is simple and straightforward, but it probably won’t help him in a competitive Republican primary. That’s compelling, but my take is a little different: I think Romney’s biggest problem is that the message brings to the fore his key weaknesses — Romney’s record on jobs is atrocious.
Stephen Colbert devoted a terrific segment to this the other day, highlighting Romney’s “real claim to business fame,” which is “founding a private equity company called BainCapital.” The embed won’t fit the column length of the redesigned website, but here’s heart of Colbert’s take:
“You see, Romney made a Mittload of cash using what’s known as a leveraged buyout. He’d buy a company with ‘money borrowed against their assets, groomed them to be sold off and in the interim collect huge management fees.’ Once Mitt had control of the company, he’d cut frivolous spending like jobs, workers, employees, and jobs. Just like America’s sweetheart, Gordon Gecko. […]
“Because Mitt Romney knows just how to trim the fat. He rescued businesses like Dade Behring, Stage Stories, American Pad and Paper, and GS Industries, then his company sold them for a profit of $578 million after which all of those firms declared bankruptcy. Which sounds bad, but don’t worry, almost no one worked there anymore.
“Besides, a businessman can’t be weighed down with a bleeding heart, as one former Bain employee put it, ‘It was very clinical…. Like a doctor. When the patient is dead, you just move on to the next patient.’ See? Mitt Romney is like a doctor! [On screen: Dr. Kevorkian]”
And this is the part of Romney’s record he’s most proud of. Romney slashed American jobs as if his career depended on it — and it did.
Complicating matters, during Romney’s only service in public office, his state’s record on job creation was “one of the worst in the country.” Adding insult to injury, “By the end of his four years in office, Massachusetts had squeezed out a net gain in payroll jobs of just 1 percent, compared with job growth of 5.3 percent for the nation as a whole.”
How bad is Romney’s record? During his tenure, Massachusetts ranked 47th out of 50 states in jobs growth.
Yes, Romney has a simple message: “I’m a successful businessman, I’ll create jobs and fix the economy.” It also comes with an equally simple response: “Mitt Romney is the anti-jobs candidate.”
By: Steve Benen, Contributing Writer, Washington Monthly-Political Animal, June 12, 2011
The Tea Party’s Religious Inspiration
If American politics were a TV show, it would by now have jumped the shark. Then again, American politics is a sort of TV show, considering its surreal plot lines, its cast of kooky narcissists, and an epistemology that blithely combines absolutist religious convictions with post-modern relativism: belief that the Bible is literally true comfortably co-exists with disbelief in simple, verifiable matters of fact, like the President’s place of birth or the absence of an HCR death panel mandate. It’s not surprising that, under the influence of the Tea Party, freedom is just another word for no abortion rights (and no contraception or cancer screenings for poor women).
Not long ago, the Tea (taxed enough already) Party was often presumed to stand for what its name implies — low taxes and limited government services (or at least limits on programs and services not enjoyed by its members.) But a new Pew Forum survey offers some quantitative evidence that Tea Party members tend to be religiously inspired, social conservatives; the movement “draws disproportionate support from the ranks of white evangelical Protestants … most people who agree with the religious right also support the Tea Party.”
Pew’s findings are unsurprising. You might have inferred the Tea Party’s religious motivations from the statements and policies of its established or aspiring political leaders, at state and federal levels. I’ll refrain from offering an extended litany of their wacky assertions and legislative ideas. Just keep in mind a few examples.
One of the subtler but also most hysterical expressions of legislative sectarianism is the wave of state proposals aimed at banning the non-existent threat of Sharia law. At first glance, you might mistake this trend for an effort to keep religion out of government, but a law intended to impose special disadvantages on one religion is no less sectarian (and violative of the First Amendment) than a law intended to extend special advantages to another.
So it’s not surprising to find proposed bans on Sharia law in conservative states, like South Dakota and Texas, alongside extreme anti-abortion proposals. (You can find atheists and agnostics who oppose abortion rights, but generally the anti-abortion movement is overwhelmingly religious and tends to divide along sectarian lines: according to Pew, “most religious traditions in the U.S. come down firmly on one side or the other.”) The notorious South Dakota bill that would arguably legalize the killing of abortion providers has been tabled; but a bill pending in Texas requires doctors to conduct pre-abortion sonograms for women and to impose on them a description of the fetus’s arms, legs and internal organs. Supporters of this bill insist that it is “pro-woman;” its purpose is empower them and “ensure there are no barriers preventing women from receiving the information to which they are entitled for such a life-changing decision” — barriers like a woman’s right to decline a sonogram or description of the fetus.
But the right wing’s aggressive sectarianism extends far beyond the usual battles over abortion and other culture-war casualties. Just listen to Mike Huckabee gush over Israel (biblical Zionists have been carrying on about Israel for years, but these days they have Tea Party stars on their side.) Michelle Bachmann claims that “if we reject Israel, then there is a curse that comes into play.” Note former Senator Rick Santorum’s defense of the Crusades, which, he laments, have been maligned by “the American left who hates Christendom.” Remember the Bible-based environmental policy of Illinois Congressman John Shimkus, now chair of the House Environment and Economy Sub-Committee. “The Earth will end when God declares it’s time to be over,” Shimkus famously declared in a 2009 hearing. Reading from the Bible and citing God’s promise to Noah not to destroy the earth (again), Shimkus said, “I believe that’s the infallible word of God and that’s the way it’s gonna be for his creation.”
Pay particular attention to Indiana congressman Mike Pence’s revealing declaration that the Employment Non-Discrimination Act, a federal bill prohibiting workplace discrimination against gay people “wages war on freedom of religion in the workplace.” If religious beliefs legitimized workplace discrimination, as Pence advises, then Title Vll of the 1964 Civil Rights Act would be unconstitutional at least as applied to people with religious compunctions against hiring women or members of particular racial or religious groups: If you believe that God did not intend women to hold traditionally male jobs, for example, or if you simply don’t like Mormons, then, in Pence’s view of religious freedom, you have a constitutional defense to employment discrimination claims by female or Mormon job applicants. But I bet that Pence would hesitate to defend a constitutional right to discriminate categorically against women or Mormons in the workplace; and if I’m right, it means he recognizes religious biases as defenses to discrimination claims as long as they’re biases he shares. Pence’s position on ENDA demonstrates the confident, theocratic approach to governing enabled by the Tea Party’s electoral successes.
Of course, Pence and Shimkus, among others, are hardly the first theocrats to land in office. There’s nothing new about the religious right’s drive for political power, which helped sweep Ronald Reagan into the White House in 1980, when liberal stalwarts were swept out of the Senate. What does seem new is the increased dominance of the Republican Party by sectarian religious extremists and their acquisition of power during a prolonged economic crisis and even longer war — a period marked by national pessimism, fear of terror, and a bipartisan assault on civil liberty unprecedented in its scope (thanks to technology) if not its intentions. In other words, what’s worrisome is our vulnerability, susceptibility to demagoguery, and diminishing margin of error. We don’t have time for the unexamined certitudes of religious zealotry.
If only Tea Partiers and their legislative surrogates would take seriously the Constitution and the founding fathers they so frequently invoke. Then they’d respect the First Amendment’s prohibition on government-established religion, which codified the Founder’s belief in a secular, civil government that accommodates diverse religious practices and beliefs. They’d understand that the Establishment clause doesn’t merely bar the federal government from requiring us to attend a federal church; it bars Congress from turning sectarian religious beliefs into law (unless they coincide with practically universal moral codes, like prohibitions on murder.) “People place their hand on the Bible and swear to uphold the Constitution, they don’t put their hand on the Constitution and swear to uphold the Bible,” Maryland State Senator Jamie Raskin once said (to appropriate acclaim.) It’s an accurate statement of law and constitutional ideals, but, sad to say, an increasingly aspirational description of political practice.
By: Wendy Kaminer, The Atlantic, February 25, 2011
The Fight Over The Individual Mandate Is Not About Liberty
Whatever the legal argument about the individual mandate is about, it’s not, as some of its detractors would have it, a question of liberty. Charles Fried, Ronald Reagan’s former solicitor general, put this well at Wednesday’s Senate Judiciary Committee hearing.
“As I recall,” he said, “the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional.”
I’d disagree slightly with Fried’s characterization of the policy debate — the individual mandate and the public option do very different things, and a bill with a public option would still have had an individual mandate — but on the law, even the panel’s anti-mandate witnesses agreed with his characterization of the single payer’s legality. So, too, does Daniel Foster, a conservative at the National Review, who wrote, “All conservatives, I’d imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well).”
There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government’s coverage. That doesn’t make it more constitutional, of course. But it does suggest that the dividing point isn’t liberty.
When it comes to the legislation itself, the key question actually comes down to semantics. It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.” If you can show the IRS proof of insurance coverage, you then get a “personal responsibility tax credit” for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It’s called a “penalty” rather than a “tax.” As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term ‘penalty’ was substituted for the term ‘tax’ in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.” And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they’re not more damaging to liberty than taxes.
Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word “penalty” was eschewed in favor of the word “tax.” This is not a country built upon semantics. And I don’t think semantics underly the principle conservatives are fighting for here, either. After all, before Barack Obama adopted the individual mandate — and I mean mere months before — Sen. Chuck Grassley (R-Iowa) said there was “bipartisan consensus” around the need for an individual mandate. Sen. Olympia Snowe (R-Maine) voted for the individual mandate in the Senate Finance Committee. Sen. Bob Bennett (R-Utah) had his name on a bill that included an individual mandate. Sen. Bob Dole (Kan.), back when he led the Senate’s Republicans, co-sponsored a bill that included an individual mandate. None of these legislators takes the Constitution lightly. They didn’t see the individual mandate as a threat to liberty, and they weren’t constantly emphasizing that it was a tax rather than a penalty.
The principle conservatives are fighting for is that they don’t like the Affordable Care Act. And having failed to win that fight in Congress, they’ve moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn’t. That’s fair enough, of course. But they didn’t see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the “personal responsibility tax,” nor would they be mollified if it was called the “personal responsibility tax.” The hope here is that they’ll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what’s going on.
By: Ezra Klein, The Washington Post, Posted February 2, 2011
Judge Vinson’s Health Care Smackdown: What’s A Tea Party Without Tea Leaves?
In his spare time, U.S. District Judge Roger Vinson, the author of Monday’s sweeping ruling gutting as “a bridge too far” the entirety of the Patient Protection and Affordable Care Act, apparently serves as the president of the board of directors of the American Camellia Society, an industrious group that evidently appreciates and nurtures a tiny, colorful corner of God’s Green Earth. The camellia is known around the world not just as a plant that produces beautiful flowers — it is the state flower of Alabama, for example — but also as a plant that produces tea leaves. And what’s a Tea Party, after all, without a healthy supply of tea leaves?
It cannot be a coincidence, then, that Judge Vinson, the Reagan appointee who has chosen reverence to the camellia as a hobby, would choose to compare (unfavorably, even) the Obama Administration’s complicated (and increasingly endangered) effort to bring health insurance to 30 million Americans with the efforts of King George III and the British East India Company to tax the tea the colonials quoffed.
“It is difficult to imagine,” Judge Vinson wrote in his 78-page ruling, “that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
Tea Party analogy? Check. Head-scratching analysis? Check. Judge Vinson wrote:
“… the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not ‘slight,’ ‘trivial,’ or ‘indirect,’ but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.
The uninsured can only be said to have a substantial effect on interstate commerce in the manner as described by the defendants: (i) if they get sick or injured; (ii) if they are still uninsured at that specific point in time; (iii) if they seek medical care for that sickness or injury; (iv) if they are unable to pay for the medical care received; and (v) if they are unable or unwilling to make payment arrangements directly with the health care provider, or with assistance of family, friends, and charitable groups, and the costs are thereafter shifted to others.”
Got that? The uninsured can only have a “substantial effect on interstate commerce” — and thus be regulated by Congress — if they are subject to the precise conditions which exist today all over the country, and which prompted the Act in the first place. The judge acknowledges this point, to his credit, saying that the Congress would of course have the power to regulate the millions of people who meet his five criteria above. But he then concludes: “But, to cast the net wide enough to reach everyone in the present, with the expectation that they will (or could) take those steps in the future, goes beyond the existing ‘outer limits’ of the Commerce Clause” (emphasis in original).
I suspect there will be a million words of legal and political analysis over the logic and viability of that conclusion.
Unsolicited and simplistic recommendations for the legislative branch? Also check. Judge Vinson wrote: “If Congress intends to implement health care reform — and there would appear to be widespread agreement across the political spectrum that reform is needed — it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not.” In other words: Try again, Congress, and good luck with that!
Painfully half-hearted expression of regret for kicking the entire Affordable Care Act to the curb? Check. Judge Vinson wrote: “I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here” (emphasis added).
I am sure that others, including some of my colleagues here at the Atlantic, will be spending time in the coming hours and days further parsing the ruling. For me, for now, it’s enough to say that Judge Vinson delivered for opponents of the Act precisely what he had promised them one month ago in open court in the motion hearing; a epic, hero-to-a-cause ruling that somehow makes U.S. District Judge Henry Hudson’s ruling last month in Virginia, which also struck down the “individual mandate,” seem like a relative exercise in judicial restraint. And that’s saying something.
Two federal trial judges (Democratic appointees both) have declared the law valid. Now two federal trial judges (Republican appointees both) have declared the law invalid. Ultimately, the United States Supreme Court — and by that I mean swing-voter Justice Anthony Kennedy, who also is a Reagan appointee — will decide. But no matter what happens from here on in, Judge Vinson, lover of flowers and tea-leaf-reader by choice, has just ensured himself at least one more day in the sun.
By: Andrew Cohen -The Atlantic-January 31, 2011: Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation’s leading legal analysts and commentators.
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