Conservative Federal Appeals Judge: Case Against Health Reform Has No Basis In ‘The Text of the Constitution’
When the United States Court of Appeals for the D.C. Circuit announced two of the three judges who would hear a challenge to the Affordable Care Act — conservative icons Laurence Silberman and Brett Kavanaugh— the law’s supporters turned white. Silberman is a close ally of Justice Clarence Thomas, a former official in the Nixon, Ford and Reagan Administrations and the author of the lower court decision overturning the District of Columbia’s handgun ban. Kavanaugh is a former Associate Counsel under Clinton inquisitor Ken Starr and a leading attorney in the George W. Bush White House. If anyone would be sympathetic to the case against health reform, these two men were first on the list.
And yet, both judges wrote opinions today rejecting an utterly meritless challenge to the Affordable Care Act — Judge Kavanaugh on the grounds that the court lacks jurisdiction to even hear the case, and Judge Silberman in a tour de force opinion that absolutely obliterates any suggestion that the ACA is not constitutional:
Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickarddoesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. […]
That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.
When a federal judge tells you that your argument has no basis in the text of the Constitution, it is a good sign you don’t belong in court. When he compares your argument to claims that the federal ban on whites-only lunch counters are unconstitutional, it’s an even better sign of how deeply radical your argument has become. When that judge is Judge Laurence Silberman, a man who has stood at the pinnacle of conservative judicial thinking for decades, it is about as good a sign as you can hope for that the Supreme Court is not going to like your argument either.
By: Ian Millhiser, Think Progress, November 8, 2011
Don’t Blame The GOP For Mitt Romney’s Flip-Flops
As former Gov. Mitt Romney gets battered by the likes of George Will, expect to hear a lot more arguments along the following lines.
It’s not Romney who is the flip-flopper. It’s the conservative movement. It was only three years ago that Jim DeMint was praising the Massachusetts healthcare plan. Post-2009, conservatives have flip-flopped on individual mandates, they have flip-flopped on monetary policy, in these cases they have adopted ever more extreme positions.
Yes Romney has had to shape-shift to keep pace, and that’s unfortunate. But don’t blame him—blame them.
God bless David, but this is too cute. It’s impossible to deny, at this point, that the idea of an individual mandate emerged from the right. Former Speaker of the House Newt Gingrich was forced to admit this onstage in the primary debate in Las Vegas.
But that hardly means the conservative movement has flip-flopped on the issue.
Sure, it was a feature of the Senate Republican alternative to Hillarycare, but that was spearheaded by Sens. Lincoln Chafee and Bob Dole. If Frum would like to make the case that those guys were emblematic movement conservatives, he can go right ahead.
I was around Capitol Hill in the late-’90s and, truth be told, I don’t remember hearing much about the mandate at all.
After Hillarycare unraveled, the healthcare debate came to focus on the late Rep. Charlie Norwood‘s “patients’ bill of rights.”
It was a genteel, middle-of-the-road proposal, sure to appeal to women voters (guaranteed access to OB-GYNs was a frequent talking point). It rattled around for a few years, garnered bipartisan support, but most Republicans were happy to see it wither.
On substance, conservatives pointed out, rightly, that the bill wouldn’t do anything to increase access to insurance. And so they proposed market-friendly solutions (“association health plans,” for example) that would have reduced the number of uninsured citizens by a few million.
That the patients bill of rights did nothing for the uninsured was always slightly embarrassing for Democrats to admit—but this was the safe, piecemeal strategy they had embraced until 2009, when they got regulations of that sort on insurance companies and coverage for most of the uninsured, the costs for which would have to be borne by healthy people not paying into insurance pools (hence the need for an individual mandate).
Look: I’m not denying that some Republicans have been more than a little squirrelly on the mandate. I’m just saying it was never an issue that movement conservatives seriously fought for, to the extent that they thought about it all.
Now, onto Michael Gerson, who praises Romney’s pragmatism and downplays the risk that he’ll flip-flop away from the movement after Inauguration Day. Moreover, Gerson argues that Romney’s “multiple choice” reputation will actually strengthen the movement’s grip on his presidency:
Precisely because he has a history of ideological heresy, it would be difficult for him to abandon his current, more conservative iteration. He has committed himself on key conservative issues. Having flipped, he could not flop without risking a conservative revolt. As a result, conservatives would have considerable leverage over a Romney administration.
This is interesting, I’ll admit.
I would agree with Gerson that the chances of Romney switching back to pro-choice on abortion is vanishingly small. Ditto for embryonic stem-cell research. There really is no plausible way for Romney to climb back from these positions.
And when Romney said recently that “the idea of spending trillions and trillions of dollars to try to reduce CO2 emissions is not the right course for us,” I was inclined to believe him. I can’t see his administration spending a penny on climate change.
The problem with Romney isn’t that he’s changed his mind on this or that issue. Every politician not named Rep. Ron Paul has done this.
The question Gerson and movement conservatives should be asking themselves about Romney isn’t whether, having checked the right box now, he’ll uncheck it later. It should be: Do you think he’d spend political capital or risk his presidency on any issue that you care about?
Put another way: Do you believe that Mitt Romney is more than nominally pro-life? Will he fight to change the status quo on abortion?
I suppose Gerson’s assurance depends, too, on what constitutes a “key issue.” Does the building of a border fence count? If so, does Gerson really believe that President Romney is going to build a “high-tech fence” to “secure the border”?
How about gays in the military? Romney’s most recent position on the issue is that he didn’t think “Don’t ask, don’t tell” should have been interfered with. Does Gerson think Romney, a la former Sen. Rick Santorum, will fight to reinstate the policy?
Does Gerson think that Romney will try to dismantle Obamacare in its entirety—or just the “worst aspects” of it?
Romney isn’t just a flip-flopper. He’s just downright weaselly.
By: Scott Galupo, U. S. News and World Report, November 2, 2011
The Ohio Tea Party’s Big “Obamacare” Fail
Ohio tea partiers will finally get their big moment at the ballot box on November 8. That’s when Ohioans vote on Issue 3, a referendum spearheaded by tea party groups that would amend the state constitution to ban any law or rule requiring that citizens buy health insurance. The intent is obvious: to rebuke President Obama by blocking the individual mandate—the part of the Affordable Care Act (ACA) that requires Americans to buy health insurance or pay a fine. Issue 3 was also seen as a way to fire up conservative voters in an off-year election when the fate of Gov. John Kasich’s anti-union SB 5 bill is on the line.
But the measure backfired. Not only won’t it block the ACA’s individual mandate, but it’s so vague, legal experts say, that it could have the damaging, unintended effect of undermining key public services and regulations in Ohio, including blocking the state’s ability to collect crucial data on infectious diseases. If passed, it could also spark a wave of costly lawsuits, with taxpayers likely footing the bill. “It’s extremely sloppy and extremely overbroad,” says Jessie Hill, a professor at Case Western Reserve University School of Law. “I hesitate to say whether these potentially extremely troubling consequences were intended or whether the amendment was just misguided.” And if you trust the polls, Issue 3 isn’t even energizing Ohio conservatives.
Issue 3 is the brainchild of the Ohio Liberty Council, a coalition of tea party chapters, 912 groups, and other liberty-loving activists. The Council tried to put Issue 3—which it calls the “Healthcare Freedom Amendment”—on the ballot in November 2010, but fell short in the signature-gathering process. This year, the group redoubled its efforts and managed to gather nearly 427,000 signatures, enough to put the issue before voters. (The Liberty Council did not respond to multiple requests for comment.)
The amendment, endorsed by Ohio Right to Life and Republican state Sen. Bob Peterson, was pitched as a direct response to Obama’s Affordable Care Act. An early pamphlet (PDF) created by the Ohio Project, the grassroots group created to promote the amendment, focuses entirely on defusing “the new federal health care measure passed by Congress.”
But if Issue 3 passes, it won’t affect the Affordable Care Act. Richard Saphire, a professor at the University of Dayton Law School, says passage of Issue 3 might deliver a symbolic rejection of the individual mandate, but legally it would have zero effect, because Article VI of the US Constitution says that federal law trumps state law. “It’s very defective,” he says. “Folks that come out and vote for it, probably most of them are going to think they’re going to accomplish something that they’re not going to accomplish, which is prevent federal law from going into effect.”
Issue 3 supporters now concede this. But they insist the measure will still prevent a Massachusetts-style, state-based individual mandate from becoming law in Ohio and will set the stage for individual Ohioans to challenge the Affordable Care Act in court. Ohioans could say “you are fundamentally restricting our liberty and property here, and there was no due process,” Chris Littleton, a cofounder of the Ohio Liberty Council, said at an Issue 3 debate in late October.
While Issue 3 won’t derail “Obamacare,” it would have potentially “massive and disastrous impacts” on health care delivery and public health regulation in Ohio, says Case Western’s Hill.
A report (PDF) cowritten by Hill and released by Innovation Ohio, a liberal public policy group that opposes Issue 3, found that the amendment’s overbroad language could undermine a slew of programs that include some form of mandate. The amendment reads, in part:
No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.
Although the amendment would exempt laws in place before 2010, any new reforms to, say, workers’ compensation, which requires employers to buy insurance in case of workplace injuries, would violate the measure. State law also requires that public schools pay to immunize students whose families can’t afford it; reforms of that program would be blocked under Issue 3 because the immunization requirement is a type of mandate, according to the Innovation Ohio report. The amendment, the report noted, would likely render unconstitutional a key reporting element in a state law to regulate so-called pill mills, because it compels “participation” in a “health care system.” And Issue 3 would handcuff the state’s ability to gather data on infectious diseases including HIV and influenza for the same reason.
Hill and Saphire both say Issue 3’s passage would likely set off a wave of litigation aimed at discovering the true meaning and reach of the amendment. And it would be Ohioans, Hill says, footing the bill for those lawsuits.
Issue 3 isn’t getting much love from Ohio opinion makers, liberal or conservative. Despite its opposition to the “deeply flawed” Affordable Care Act, the conservative editorial board of the Columbus Dispatch, the state’s largest newspaper, urged a “no” vote on the measure. Arguing that state constitutions should not be subject to “short-term political gamesmanship,” the Dispatch wrote that “trying to counter the federal law with an ineffective amendment to the Ohio Constitution is a bad idea. This is not where that battle should be fought.” Every major newspaper editorial board in Ohio that’s taken a position on Issue 3 has opposed it.
If recent polls are any judge, Issue 3 hasn’t done much to mobilize conservative voters, either. An October 28 survey by the University of Akron Bliss Institute of Applied Politics found that 34 percent of respondents favor Issue 3 and 18 percent oppose it. The remaining 48 percent remained undecided less than two weeks before the vote. More importantly, the Akron survey found much more enthusiasm around Issue 2—which polls suggest will be defeated, repealing Kasich’s SB 5 bill—than around Issue 3, which polls suggest will pass.
If Issue 3 becomes law, it wouldn’t be the first time voters approved an amendment to a state constitution that didn’t serve its intended purpose, Saphire says. After the US Supreme Court’s 1954 Brown v. Board of Education ruling declared racial segregation in public schools unconstitutional, a handful of states passed symbolic amendments expressing opposition to the Brown decision. The Supreme Court is expected to decide the fate of the ACA’s individual mandate in its upcoming term. If the high court decides to uphold the law, Ohio tea partiers—Issue 3 or no—will have to buy health insurance or pay a fine.
By: Andy Kroll, Mother Jones, November 3, 2011
Blame Greed, Not Obama For Rise In Health Insurance Premiums
It’s Obama’s fault
Isn’t everything? I can’t believe what I am hearing and reading. Insurance companies are raising their premiums and, of course, that is President Obama’s fault. It’s that damn “Obamacare.” Ah, no, it isn’t.
Insurance companies have been raising their subscriber’s premiums for years before Mr. Obama was president; actually, even before he was “Senator Obama.”
I have a family plan to cover my husband and our two children; but I also own two small businesses and cover my employees’ healthcare at both companies. The large private PPO provider who I won’t name, but has the color of the sky in their title (ahem), has increased my premiums for both group plans and my individual family plan at least once a year for the past five years. And when I phone them and ask why, they don’t have an answer. They certainly don’t say: It’s President Obama’s fault and the passage of the Affordable Care Act.
As a matter of fact, the president of Kaiser also stated that healthcare reform is not the reason for the increased premiums; at best, it might contribute to 1 percent; so what is the other 99 percent? What is the reason these insurance companies keep increasing our premiums?
How can healthcare reform increase our premiums? Due to the increased number of people being covered by the reform act (mostly children and students who may remain on their parent’s plan), there are more people purchasing plans, whether employers or employees, which actually brings more money to those insurance companies. So why the increase?
Every time my plan has been increased, I have phoned to ask what additional benefits I am receiving for that cost increase; and every time the answer is the same: none. When I ask why, no one knows. But I know, it’s greed.
All, not some, all of the heads of these insurance companies earn millions of dollars a year in their paychecks. The insurance companies are one of the few in America not being negatively affected by our economy. Don’t believe me? Check their stock prices, or the stock prices of most medical related companies for that matter.
Actually, the increase in premiums, whether a person has an HMO or a PPO, just helps to support the need not only for healthcare reform, but for further reform, specifically a public option.
These increases are proof that the public needs another option, an affordable option. And the mandate? That drives business to the insurance companies, so they should be reducing the premiums. Insurance companies will say that many people are requesting a higher deductible; of course we are, it’s a bad economy and most of us want to pay less per month, taking the risk that we won’t end up in the E.R. or need surgery, etc.
And according to my doctor-husband, that’s a big risk. He’s an orthopedic surgeon. Patients used to come see him when they were in pain—let’s say their knee hurt. Now they come when their bones are sticking out—when they’re chronic.
So the increased prices by the insurance companies should be blamed on the insurance companies. They are hurting our healthcare system, doctors’ ability to provide proper care, and the economy as well; especially when so many Americans head to the E.R. once they’re chronic, which further bankrupts the system.
Bottom line—don’t blame Obama. Blame the insurance companies. They’re the bad guys this time around.
By: Leslie Marshall, U. S. News and World Report, September 29, 2011
Debt Ceiling: What Killed The Deal And What Might Make One Happen This Week
There are a lot of good articles running through what happened between Thursday night, when a deal seemed likely, and Friday evening, when the talks fell apart. New reports suggest that Boehner is trying to prepare a deal by tomorrow evening, to prevent the markets from dropping Monday. So here’s the short version of what just happened, and where we’re likely to be going:
On Tuesday, the Gang of Six proposed a deal that would raise tax revenues by $2 trillion — which showed there was support among Senate Republicans for a deal that raised taxes by about $2 trillion. On Thursday, congressional Democrats rebelled over reports that the deal Boehner and Obama were negotiating had only $800 billion in new revenue, and it wasn’t even clear how those would be achieved. That night, Obama called Boehner looking for about $400 billion more in revenue to have something he could sell to Democrats. That would have brought the deal from $800 billion in revenue to $1.2 trillion in revenue. He didn’t get a call back until the next day at 5:30 p.m. — by which point the call was unnecessary. Boehner had already told the media that he was leaving the talks.
Republicans are emphasizing that the White House went from asking for $800 billion in revenue to $1.2 trillion. The word you’re hearing from them is “reneged,” but the White House emphasizes that negotiations were ongoing, and both sides were asking for more as they tried to figure out what they could both agree on and pass through Congress. Boehner, for instance, wanted further cuts to Medicaid, a trigger that would repeal the individual mandate and the Independent Payment Advisory Board if the entitlement cuts didn’t come through, and a tighter cap on discretionary spending. “They make it seem like the president made some ultimatum on $1.2 trillion in revenue,” says a senior administration official. “He didn’t. He said, ‘If you can’t do this, let’s figure out what we can do.’ ”
The “what we can do” would probably have been to ratchet back the entitlement cuts. Or maybe another solution would have been found. It’s hard to say because Boehner didn’t come back with a counteroffer. He simply left the negotiations.
But let’s zoom out on where the negotiations left off. Spending cuts would have totaled about $3 trillion, with a bit less than a trillion dollars of that coming from entitlements and other forms of mandatory spending. Revenue increases — none of which would have come from raising marginal tax rates — would have been between $800 billion and $1.2 trillion. The package would have extended the unemployment insurance and payroll tax cut provisions passed in the 2010 tax deal. All in all, that’s about a trillion dollars less in revenues than the Simpson-Bowles/Gang of Six deals advocated, and about $2.6 trillion less in revenue than simply letting the Bush tax cuts expire in 2012.
There’s a question as to whether this was the very best deal Republicans could get or simply close to it. But it’s hard to believe that it was so bad that it ended the talks. What seems likelier is that Boehner spent some time between Thursday and Friday talking to his members and found that his party simply didn’t support a deal with the White House. For one thing, a deal would include some amount of revenue, and that was a hard sell under any circumstances. For another, letting the president look like a dealmaker would potentially dim the GOP’s chances of retaking the White House in 2012. As my colleague George Will put it Thursday, a deal “would enable President Obama to run away from his record and run as a debt-reducing centrist.”
And so Boehner walked. Fundamentally, this looks like the same calculation that ended the last round of talks over a 4 trillion deal. What’s different this time is Boehner’s plan B: The Speaker of the House appears to believe that a deal struck between congressional leadership would perhaps be easier to sell to his members. Since it’s hard to see Nancy Pelosi and Harry Reid making deeper concessions than Obama did, it’s hard to see why that would be true, save that the deal might not look like such a victory for the White House.
Perhaps taking the benefit for Obama off the table will be enough. I’m doubtful. It’s more likely that what we’re really doing now is wasting time until the markets plummet and Boehner’s members decide that a deal is better than no deal. And there’s a very good chance that the first major show of market concern could come tomorrow night, when the Asian markets open. Boehner is hoping to present a plan by then, but a plan is very different from a deal. A plan is something politicians can come up with. A deal, we’re increasingly finding, is something that we need the markets to force.
By: Ezra Klein, Columnist, The Washington Post, July 23, 2011
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