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The Deeply Crazy In Virginia’s Obamacare Lawsuit

As  my Philadelphia Phillies idled through a two-hour rain delay Thursday night, I  curled up with some light reading: a Texas  Review of Law & Politics article by the legal team, led by Virginia  Attorney General Ken Cuccinelli, that’s challenging the new healthcare individual mandate in the U.S. Court of Appeals for the Fourth Circuit.

It’s  fascinating stuff.

Cuccinelli  and co. follow a long trail from the 18th century British jurist  William Blackstone to the Dred Scott  case to the New Deal to the present  day. The conservative team, at  first, makes a tight, prudential case against  the Obamacare mandate  that I, in my nonprofessional capacity, happen to favor.

In  their words:

No  existing case needs to be overruled and no existing  doctrine needs to be  curtailed or expanded for Virginia to prevail on  the merits. Nor does Virginia  remotely suggest that the United States  lacks the power to erect a system of  national healthcare. Virginia  expressly pled that Congress has the authority to  act under the taxing  and spending powers as it did with respect to Social Security and  Medicare, but that Congress in this instance lacked the political   capital and will to do so. No challenge has been mounted by Virginia to  the  vast sweep and scope of the Patient Protection and Affordable Care Act (PPACA).  Instead, only the mandate and penalty were challenged  because the claimed power  is tantamount to a national police power  inasmuch as it lacks principled  limits.

In  plainer, get-to-the-point English: We grant you the social safety  net  established under the “Roosevelt Settlement.” We recognize  Congress’s power to  regulate interstate commerce. We even grant that  this power could conceivably  deliver universal healthcare. But for  Pete’s sake, don’t try to include  “inactivity”—that is, not buying a  health insurance plan on the private  market—under its purview.

Because,  once you regulate the act of doing nothing, what’s left to regulate?

Er,  nothing.

Thus,  does the state’s power to tax and police become theoretically unlimited?

But,  later in the body of the piece, Team Cuccinelli begins to play  other, more  presently familiar cards. Glenn Beck fans will recognize  the faces in the rogue’s  gallery: Justice Oliver Wendell Holmes,  progressive philosopher John Dewey, and  others who, this argument goes,  created the post-New Deal legal and  philosophical edifice.

Wouldn’t  you know it, this welfare-state stuff constitutes a violation of natural law—which, ipso facto,  means economic laissez-faire—and a lurch into moral chaos.  Echoing the  newly popular Hayek, Cuccinelli’s article asserts the primacy of   economic rights while characterizing as relativistic the   not-exclusively-liberal jurisprudential argument that personhood and  dignity  precede the marketplace. (Last I checked, I’ve never seen an  unborn baby sign a  contract.)

Come  conclusion time, the piece sounds eerily like it’s not merely  advocating the  curtailment of an otherwise defensible attempt to  advance the national  interest, but rather like a full-throated  libertarian manifesto:

The  Progressive Meliorists had argued that they should  be accorded constitutional  space in which to make a social experiment,  agreeing in turn to be judged by  the results. The New Dealers carried  the experiment forward. Seventy years  later, results are in suggesting  that the experiment is living beyond its  means. The statist heirs to  the experiment say that it cannot and must not be  curtailed, so now  they claim this new power.

Social  Security and Medicare—an experiment! Just a temporary, 70-year blip on the  radar!

So,  in 46 pages, we proceed from modest and reasonable to deeply crazy.

It  behooves us to ask, what’s Cuccinelli’s endgame?

I  think we’ve seen this movie before.

 

By: Scott Galupo, U. S. News and World Report, August 18, 2011

August 19, 2011 Posted by | Affordable Care Act, Congress, Conservatives, Constitution, Consumers, Democrats, GOP, Government, Health Care, Health Reform, Human Rights, Ideologues, Ideology, Individual Mandate, Medicare, Politics, President Obama, Public, Regulations, Republicans, Right Wing, Social Security, States, Taxes, Teaparty | , , , , , , , , , , , , , | Leave a comment

Make-Believe Billionaire Candidate Donald Trump Is A Birther Now

Donald Trump, a reality show host and savage parody of post-industrial Great Stagnation-era capitalism, is pretending to run for president, as a sort of performance art piece mocking the contemporary fad among elites of celebrating plutocrat billionaires as our wise superiors and pretending their vanity campaigns for elected office are some sort of charitable selfless “public service.”

And he’s really going all-out. What began as a sort of through-a-glass-darkly reimagining of the Bloomberg-for-president chatter added a dose of Gingrichian “false run to promote unrelated money-making endeavors” as he ramped up his “campaign” at precisely the moment the new season of his television show premiered.

Today Trump even became a pseudo-birther, in an interview with ABC News, which was for some reason taking part in an extensive marketing campaign for a television show that airs on a rival network:

“Everybody that even gives a hint of being a birther … even a little bit of a hint, like, gee, you know, maybe, just maybe this much of a chance, they label them as an idiot. Let me tell you, I’m a really smart guy,” he said.
[…]
He explained the source of his doubt: “He grew up and nobody knew him. You know? When you interview people, if ever I got the nomination, if I ever decide to run, you may go back and interview people from my kindergarten. They’ll remember me. Nobody ever comes forward. Nobody knows who he his until later in his life. It’s very strange. The whole thing is very strange,” he added.

Yes, very strange, very strange.

Funny story! In 1990, Spy Magazine actually took a trip to Trump’s boyhood home in Queens. And while Trump wrote of being “something of a leader” in his old neighborhood, the owner of the local candy store said: “I’ve been running this store for 28 years, and I don’t remember him.” Strange, very strange.

Trump went on to say that you should take him seriously as a candidate because he’s very rich and would be able to give himself $600 million if for some reason his fake campaign needed $600 million.

That actually gets at the heart of why Trump would never run for anything: He’s spent his entire career in the public eye scrupulously hiding how much money he actually has, in real life. He’s sued people for saying his net worth is less than he says it is. But lots of people have their doubts about whether or not he’d actually be able to give himself $600 million at the drop of a hat. And if he ran for real, as Ben Smith and Maggie Haberman say, “at some point he’d actually be required to disclose his assets.”

Which is obviously not going to happen, because it would ruin the whole joke.

By: Alex Pareene, Salon, March 17, 2011

March 19, 2011 Posted by | Birthers, Elections, Ideologues, Liberatarians, Politics | , , , , , , | Leave a comment

On Health Care, Justice Will Prevail

The lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.

By: Laurence H. Tribe, Op-Ed Contributor, New York Times: Professor, Harvard Law School and author of “The Invisible Constitution”, February 7, 2011

 

February 8, 2011 Posted by | Affordable Care Act, Constitution, Health Reform | , , , , , , , , , , , , | Leave a comment

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