Is Utah About To Elect Another Senator Who Thinks Medicare Is Unconstitutional?
Last year, Sen. Mike “A Noun, A Verb, and Unconstitutional” Lee (R-UT) upset longtime Sen. Bob Bennett (R-UT) in the Utah GOP’s arcane candidate selection process — allowing the Tea Party to elevate someone to the Senate who believes that everything from Medicare to Social Security to child labor laws somehow violate the Constitution. Since then, Utah’s senior Sen. Orrin Hatch (R) has tripped over himselfto pretend that he is just as radical as young Sen. Lee.
Alas, all of Hatch’s extremist posturing may be for naught, as the Tea Party has found someone who shares their apparent policy goal of ensuring that people who can’t afford health care are left to fend for themselves:
During a recent media blitz in Washington, D.C., Dan Liljenquist, a state senator from Utah, went after Sen. Orrin Hatch, arguing he has done more than any other Republican to promote nationalized health care. […] The skirmish is the first between these potential 2012 opponents. Liljenquist, a Republican, says he won’t make an official decision until early next year, but he has prepared for a possible run for Hatch’s seat. […]
[Liljenquist] argued that Hatch is not committed to returning power to the states, focusing on the State Children’s Health Insurance Program that Hatch spearheaded in 1997. That program, which pays for health coverage for poor children, has come under fire from tea party Republicans who see it as a step toward a national takeover of health insurance. Liljenquist went as far as to call it “unconstitutional.”
Liljenquist’s suggestion that the State Children’s Health Insurance Program (SCHIP) is unconstitutional is absurd. SCHIP works by providing funds to states to help them pay for health insurance for children. Because the Constitution allows the federal government “to lay and collect taxes” and to use those revenues to “provide for the…general welfare of the United States,” there is simply no doubt that it can spend money on providing health care to vulnerable young people.
Moreover, other essential health care programs — such as Medicare and Medicaid — stand on similar constitutional footing as SCHIP. So if Liljenquist thinks one of these programs is unconstitutional, it is likely that he believes that we must eliminate all three.
In other words, if Liljenquist succeeds in taking Hatch’s Senate seat, Utah could become the only state in the union to have its entire Senate delegation believe that the Constitution requires millions of children, low-income Americans and seniors to be cast out into the cold with no meaningful access to health care.
By: Ian Millhiser, Think Progress, November 28, 2011
Whose Baby Is She?: The Birthing Of Solyndra
Solyndra is trying to rival her big sister Katrina’s ability to make the federal government look incompetent. But whose baby is she?
Since the solar-energy company went belly-up a few weeks ago — leaving taxpayers on the hook for $535 million in loan guarantees — a business that was once the poster child for President Obama’s green-jobs initiative has instead become a tool for Republicans to discredit most everything the administration seeks to do.
Sen. Orrin Hatch of Utah used Solyndra to argue against worker-training benefits. Sen. Jim DeMint of South Carolina used it to argue that the federal government should stay out of autism research. Disaster relief, cancer treatments, you name it: Solyndra has been an argument against them.
And this week, the government faced the prospect of a shutdown because House Republicans added a provision to the spending bill to draw more attention to — what else? — Solyndra.
“Because of some of the horrible weather we have had over the past several weeks, we have all agreed to add emergency funds we didn’t originally plan in this bill, and Republicans have identified a couple of cuts,” explained Senate Minority Leader Mitch McConnell, including “a cut to a loan-guarantee program that gave us the Solyndra scandal.”
What McConnell neglected to mention is that Solyndra was cleared to participate in this loan-guarantee program by President George W. Bush’s administration. He also did not mention that the legislation creating the loan-guarantee program, approved by the Republican-controlled Congress in 2005, received yes votes from — wait for it — DeMint, Hatch and McConnell.
This doesn’t mean that Bush is to blame for Solyndra or that the Obama administration should be absolved. Obama, whose administration gave the company the loan guarantee, deserves the black eye that Republicans have given him over the half a billion dollars squandered on the company. But the Republican paternity of the program that birthed Solyndra suggests some skepticism is in order when many of those same Republicans use Solyndra as an example of all that is wrong with Obama’s governance.
“Loan guarantees aim to stimulate investment and commercialization of clean energy technologies to reduce our nation’s reliance on foreign sources of energy,” Bush’s energy secretary, Sam Bodman, announced in a press release on Oct. 4, 2007. The release said the Energy Department had received 143 pre-applications for the guarantees and narrowed the list down to 16 finalists — including Solyndra. Bodman said the action put “Americans one step closer to being able to use new and novel sources of energy on a mass scale to reduce emissions and allow for vigorous economic growth and increased energy security.”
Bush’s Energy Department apparently adjusted its regulations to make sure that Solyndra would be eligible for the guarantees. It hadn’t originally contemplated including the photovoltaic-panel manufacturing that Solyndra did but changed the regulation before it was finalized. The only project that benefited was Solyndra’s.
The loan-guarantee program for these alternative energy companies, in turn, was created as part of the Energy Policy Act of 2005 — sponsored by Rep. Joe Barton (R-Tex.), who has been a leader in the congressional probe of Solyndra’s ties to the Obama administration.
Among those in the Republican majority who supported the bill was Rep. Louie Gohmert (Tex.), who, in a trio of speeches on the House floor in recent days, has taken a rather different approach than the one in the legislation he supported.
On Sept. 13, he invoked “the Solyndra fiasco” and said we are “prioritizing green practices kind of like a bankrupt Spain has done.” On Sept. 15, he denounced Obama’s new jobs proposals because “green programs, like Solyndra, will have priority.” On Sept. 23, he complained: “Apparently, half a billion dollars squandered for crony capitalism was not enough. There’s more provisions for that in the president’s so-called jobs bill.”
Also supporting the legislation creating the loan-guarantee program was Rep. David Dreier (R-Calif.), who on Sept. 22 said on the House floor that Republicans were removing $100 million from the loan-guarantee program “to ensure that we never again have another boondoggle like Solyndra.”
The complaints were much the same in the Senate, where DeMint said the Solyndra case exposed the “unintended results when our government tries to pick winners and losers.” That’s a valid criticism, but it would be more valid if DeMint hadn’t been a supporter of the loan-guarantee legislation in 2005.
But that was before Obama’s presidency, and views back then were different. They were more like the March 2008 press release from Bush’s Energy Department, announcing that it was funding research projects on photovoltaic technology. “These projects are integral to President Bush’s Solar America Initiative, which aims to make solar energy cost-competitive with conventional forms of electricity by 2015,” the announcement said.
Among the winners listed in the press release? Solyndra.
By: Dana Milbank, Opinion Writer, The Washington Post, September 26, 2011
Flirting With The Fringe: Stop Pretending Michele Bachmann Can Win The Iowa Caucuses
Ever since Michele Bachmann announced her intention to form a presidential exploratory committee, pundits, including Ed Kilgore at TNR, have been making the case that she has a good chance at winning Iowa—or if not winning, then doing well enough to hurt one or more of the stronger candidates. Republican caucus-goers in the state, they argue, are at least half-nuts, and therefore may well support Bachmann or some other candidate who doesn’t pass conventional standards of seriousness.
Certainly, Iowa Republicans are very socially conservative, more so than in some other states. But a closer look at Iowa caucus history shows that their history of supporting fringe candidates is not quite what it’s made out to be.
The case that “wacky Iowans will do anything” essentially comes down to interpreting a handful of episodes from recent decades. The first occurred in 1988 when Pat Robertson stunned everyone by finishing second with 25 percent of the vote, besting George H.W. Bush and Jack Kemp. But Pat Robertson was a social conservative—and no ordinary one at that—in a year in which the frontrunner (George H.W. Bush) was not. Moreover, that example is now over two decades old, and since then Iowa Republicans have had no trouble voting for mainstream candidates with conventional credentials, as long as those candidates—Lamar Alexander, George W. Bush—had solid records on social conservative issues.
That leaves us with three other supposed episodes of Iowan craziness: Pat Buchanan’s second place finish in 1996; the surprising showings of fringe candidates Alan Keyes and Gary Bauer in 2000; and Huckabee’s victory in 2008. Closer inspection of each of these episodes, however, reveals that none were quite as crazy as they appear.
Take Pat Buchannan in 1996. As odd as it might seem now, he was almost a serious candidate at the time: He had already run for president in 1992, and while he was never quite a plausible nominee, he did have some serious claim as a repeat candidate that Bachmann doesn’t have now. Nor was Buchannan’s success in Iowa especially unique. In fact, he proceeded to win the primary in New Hampshire, and wound up beating his Iowa percentage in sixteen states (several of those, to be sure, were after other candidates had dropped out, so the higher percentage was less impressive).
As for Alan Keyes and Gary Bauer in 2000, they certainly were fringe candidates—even more so than Bachmann—and their combined 25 percent was both impressive and anomalous; they combined for only 7 percent in New Hampshire, although Keyes did have some stronger showings in late states after the nomination was decided. However, it’s also the case that they didn’t have a whole lot of competition. John McCain campaigned in Iowa in 2000, but he did not fully commit to the state, and the only other candidate they beat was Orrin Hatch, who hardly ran any campaign at all. And even with their totals combined, Keyes and Bauer finished well back of Steve Forbes for second, and even further behind winner George W. Bush.
Finally, there’s Huckabee’s surprise victory in 2008; but the extent to which his candidacy was in any way similar to Bachmann’s has been vastly overstated. Yes, he won with the support of social issues voters. But Huckabee wasn’t some backbench member of the House; he was a recent former governor, and, in that sense, just as legitimate a candidate as Jimmy Carter or Bill Clinton.
Compared to Huckabee, Michele Bachmann is an altogether different sort of candidate. Since 1972, no candidate in any way similar has run a competitive campaign. The only three members of the House who had plausible shots at winning—Mo Udall in 1976, Jack Kemp in 1988, and Dick Gephardt in 1988 and 2004—were all senior members with leadership positions, legislative accomplishments, or both. No, Bachmann belongs in a different category, with other sideshow acts who may attract attention but have no real chance to win the nomination. And even in allegedly crazy Iowa, those candidates rarely impress on caucus day.
By: Jonathan Bernstein, The New Republic, April 16, 2011
Republicans Say Everything the Dems Pass Is Unconstitutional — Even Policies They’ve Championed for Decades
That Republicans are relentlessly attacking the constitutionality of what had long been one of their signature ideas for reforming the health-care system — the individual mandate requiring people to buy insurance or pay a penalty – is a testament to just how far down the rabbit-hole our discourse has gone.
Late last year, when a federal judge ruled against the mandate (two other courts disagreed, and the Supreme Court will end up deciding the question), Senator Orrin Hatch, R-Utah, rejoiced. “Today is a great day for liberty,” he said. “Congress must obey the Constitution rather than make it up as we go along.” It was an odd testament to freedom, given that Hatch himself co-sponsored a health-care reform bill built around an individual mandate in the late 1990s.
Journalist Steve Benen noted that while “the record here may be inconvenient for the right … it’s also unambiguous: the mandate Republicans currently hate was their idea.”
It was championed by the Heritage Foundation… Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s. For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many other … notable GOP officials.
According to NPR, the mandate was the Right’s response to progressive proposals to establish a single-payer system. Mark Pauly, the conservative economist widely credited with the idea, explained that “a group of economists and health policy people, market-oriented, sat down and said, ‘Let’s see if we can come up with a health reform proposal that would preserve a role for markets but would also achieve universal coverage.'”
That was then, this is now. Since it was a Democratic Congress that enacted the mandate, this conservative idea for creating a business-friendly model of universal health care has become something profoundly un-American, according to many of those very same Republicans who championed it. (Asked about the GOP’s retreat from the individual mandate it had long promoted, Pauly said, “That’s not something that makes me particularly happy.”)
And as is generally the case in these heady days of Tea Party conservatism, it’s not just that the individual mandate is bad – it’s also “un-Constitutional” (just like child labor laws, federal disaster assistance, food safety standards, etc.). As Gary Epps, a legal scholar at the University of Baltimore, put it, “Conservative lawmakers increasingly claim that the ‘original intent’ of the Constitution’s framers and the views of the right wing of the Republican Party are one and the same.”
A brief filed in support of Virginia’s challenge to the Affordable Care Act by the Landmark Legal Foundation – headed by noted wing-nut radio host Mark Levin, who believes that the Tea Partiers have been “tormented and abused far more than the colonists were by the King of England” – laid out the argument, calling the erstwhile Republican approach to universal health care “evidence of congressional power run amok.”
Congress can tax interstate commerce, it can regulate interstate commerce, it can even prohibit certain types of interstate commerce, but it cannot compel an individual to enter into a legally binding private contract against the individual’s will and interests. There is nothing in the history of this nation, let alone the history of the Constitution … that endorses such a radical departure from precedent, law, and logic.
Like most of the Right’s views of the Constitution – and the Founders’ intent – this is entirely wrong; it’s historical revisionism driven by ideology.
In 1792, none other than George Washington signed the Uniform Militia Act, a law requiring every white male citizen to purchase a whole basket of items – “a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein” – from private companies. Bradley Latino at Seton Hall law school’s Health Reform Watch added that “this was no small thing.”
Although anywhere from 40 to 79% of American households owned a firearm of some kind, the Militia Act specifically required a military-grade musket. That particular kind of gun was useful for traditional, line-up-and-shoot 18th-century warfare, but clumsy and inaccurate compared to the single-barrel shotguns and rifles Americans were using to hunt game. A new musket, alone, could cost anywhere from $250 to $500 in today’s money. Some congressmen estimated it would cost £20 to completely outfit a man for militia service — about $2,000 today.
Some on the Right have argued that this history is irrelevant as the law was passed under the auspices of the Constitution’s militia clauses, not the Commerce Clause. That’s true, but doesn’t change the fact that it disproves the claim that Congress has never compelled citizens to purchase goods or services from private firms – that’s patently false, regardless of how the measures differed in their details.
And despite the fact that there were a number of legislators serving in that Congress who had signed the Constitution five years earlier, “not one of militia reform’s many opponents thought to argue the mandate was a government taking of property for public use. Nor did anyone argue it to be contrary to States’ rights under the Tenth Amendment.” Those who opposed the bill simply argued that it would put too great a burden on the poor.
Of course, mandating that citizens buy a gun is different than requiring them to purchase health insurance. But as Rick Ungar, an attorney and writer, pointed out, Congress did in fact pass a mandate requiring health insurance…back in 1798.
The Act for Sick and Disabled Seamen created a government-operated hospital system – socialized medicine! – and mandated that all privately employed sailors purchase health insurance in order to sail.
It’s not an exact parallel. Nobody was forced to become a merchant seaman. But as Ungar noted, “this is no different than what we are looking at today. Each of us has the option to turn down employment that would require us to purchase private health insurance under the health care reform law.”
The Act also required sea captains to withhold 1 percent of sailors’ earnings to finance the program rather then mandate that they purchase a policy themselves – it was the first payroll tax. But as Ezra Klein noted in the Washington Post, “if conservatives really do prefer a system of payroll taxes that purchase you public insurance to the private system envisioned in the Affordable Care Act, I’m sure there are a lot of liberals who would vote for a bill that repealed the Affordable Care Act and replaced it with Medicare-for-all.”
It’s an important point – the liberal approach to universal health care is not only simpler and far more cost-effective, but unlike the Right’s individual mandate, it also falls unambiguously within the federal government’s enumerated powers.
Health care is also, in the words of the Congressional Research Service, “a unique market” in that one cannot opt out of it even if one wishes to do so. That’s because, by law, we don’t allow people to simply die in the streets, untreated. The uninsured without the means to pay nonetheless get (very costly) care in emergency rooms, and the rest of us pick up the tab.
And here, again, it’s worth noting that “the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.” The bill was signed into law by none other than John Adams, considered to be among the most influential of the “Founding Fathers.” Thomas Jefferson was the president of the Senate at the time, and Jonathan Dayton, the youngest man to sign the Constitution, served as Speaker of the House.
As the current legislation stands, even the American Enterprise Institute concedes that “the majority of constitutional experts are betting that the courts will uphold the mandate” – although they’re not happy about it. And that’s because the other Constitutional arguments against the reforms are just as dubious. Conservatives have come to use the Constitution as a crutch, avoiding debates on the merits of various proposals by asserting, with a broad wave of the hand, that whatever the policy in question may be, it’s all illegitimate.
The constitutionality of the health-care mandate will ultimately be decided by an activist majority on the Supreme Court. Nobody can predict how it will rule, but the Constitution gives the Congress power to “to lay and collect Taxes, Duties, Imposts and Excises … and provide for the common Defense and general Welfare of the United States,” a power the Congressional Research Service characterizes as ”one of the broadest powers in the Constitution,” and one that forms “the basis of government health programs in the Social Security Act, including Medicare, Medicaid, and the State Children’s Health Insurance Program.”
The Supreme Court has interpreted the Commerce Clause as giving the government the authority to regulate not only interstate commercial transactions in a limited sense, but also “those activities having a substantial relation to interstate commerce.” (Our health-care system is the costliest in the world, and eats up about 18 percent of our economic output, so it’s hard to see how one can argue that it doesn’t have a “substantial relation” to our national economy.)
Then there’s the common conservative argument that the Commerce Clause only covers economic activity, but not inactivity – a claim that is also factually incorrect, but was nonetheless accepted by Henry Hudson, the federal judge who ruled against the government in the Virginia suit. But even if it were true, it’s hard to see the relevance of the argument given the Constitution’s Necessary and Proper clause, which authorizes the government to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
So, to recap: Congress is expressly authorized to raise taxes and spend public funds to further the “general welfare” of the nation; it can regulate any area that has a “substantial relation” to interstate commerce, and it can pass any law that is “necessary and proper” to further those enumerated powers.
On its face, there’s nothing in the Constitution constraining the government from enacting its health-care scheme. But the heart of conservative rhetoric these days is that any legislation passed by Democrats is illegitimate and defies the will of the Founders, as channeled by the mystics who lead the Tea Party movement.
That’s apparently the case even when those policies are among those they’ve championed for years based on their own ideological preferences.
By: Joshua Holland, Editor and Senior Writer, AlterNet-January 28, 2011
The GOP’s Astonishing Hypocrisy on Health Care and ‘reconciliation’
For those who feared that Barack Obama did not have any Lyndon Johnson in him, the president’s determination to press ahead and get health-care reform done in the face of Republican intransigence came as something of a relief.
Obama’s critics have regularly accused him of not being as tough or wily or forceful as LBJ was in pushing through civil rights and the social programs of his Great Society. Obama seemed willing to let Congress go its own way and was so anxious to look bipartisan that he wouldn’t even take his own side in arguments with Republicans.
Those days are over. On Wednesday, the president made clear what he wants in a health care bill, and he urged Congress to pass it by the most expeditious means available.
He was also clear on what bipartisanship should mean — and what it can’t mean. Democrats, who happen to be in the majority, have already added Republican ideas to their proposals. Obama said he was open to four more that came up during the health-care summit.
What he’s unwilling to do, and rightly, is to give the minority veto power over a bill that has deliberately and painfully worked its way through the regular legislative process.
Republicans, however, don’t want to talk much about the substance of health care. They want to discuss process, turn “reconciliation” into a four-letter word, and maintain that Democrats are just “ramming through” a health bill.
It is all, I am sorry to say, one big lie — or, if you’re sensitive, an astonishing exercise in hypocrisy.
All of the Republican claims were helpfully gathered in one place by Sen. Orrin Hatch, R-Utah, in an op-ed in Tuesday’s Washington Post. Right off, the piece was wrong on a core fact. Hatch accused the Democrats of trying to, yes, “ram through the Senate a multitrillion-dollar health-care bill.”
No. The health-care bill passed the Senate last December with 60 votes under the normal process. The only thing that would pass under a simple majority vote would be a series of amendments that fit comfortably under the “reconciliation” rules established to deal with money issues.
Near the very end of his article, Hatch concedes that reconciliation would be used for “only parts” of the bill. But then why didn’t he say that in the first place?
Hatch grandly cites “America’s Founders” as wanting the Senate to be about “deliberation.” But the Founders said nothing in the Constitution about the filibuster, let alone “reconciliation.” Judging from what they put in the actual document, the Founders would be appalled at the idea that every major bill should need the votes of three-fifths of the Senate to pass.
Hatch quotes Sens. Robert Byrd and Kent Conrad, both Democrats, as opposing the use of reconciliation on health care. What he doesn’t say is that Byrd’s comment from a year ago was about passing the entire bill under reconciliation, which no one is proposing to do. As for Conrad, he made clear to The Washington Post’s Ezra Klein this week that it’s perfectly appropriate to use reconciliation “to improve or perfect the package,” which is exactly what Obama is suggesting.
Hatch said that reconciliation should not be used for “substantive legislation” unless the legislation has “significant bipartisan support.”
But surely the 2001 and 2003 Bush tax cuts, which were passed under reconciliation and increased the deficit by $1.7 trillion during his presidency, were “substantive legislation.” The 2003 dividends tax cut could muster only 50 votes. Vice President Dick Cheney had to break the tie. Talk about “ramming through.”
The underlying “principle” here seems to be that it’s fine to pass tax cuts for the wealthy on narrow votes but an outrage to use reconciliation to help middle-income and poor people get health insurance.
I’m disappointed in Hatch, co-sponsor of two of my favorite bills in recent years. One created the State Children’s Health Insurance Program. The other, signed last year by Obama, broadly expanded service opportunities. Hatch worked on both with his dear friend, the late Edward M. Kennedy, after whom the service bill was named.
It was Kennedy, you’ll recall, who insisted that health care was “a fundamental right and not a privilege.” That’s why it’s not just legitimate to use reconciliation to complete the work on health reform. It would be immoral to do otherwise and thereby let a phony argument about process get in the way of health coverage for 30 million Americans.
E. J. Dionne, Jr-Syndicated Columnist-March 4, 2010
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