Romney Misinforms Voters When He Promises To Repeal Health Reform Through Waivers
Mitt Romney is running around the country promising conservatives that he will repeal the Affordable Care Act through executives orders (or waivers) that will allow states to opt out of implementing the health reform law. Critics — including some within the Republican party — have argued that a president does not have the authority to eliminate a law passed by Congress, and today, a report from the Congressional Research Service confirms that while Romney would be able to alter certain regulations, issuing waivers through executive authority would “likely conflictwith an explicit congressional mandate and be viewed ‘incompatible with the express … will of Congress’”:
A President would not appear to be able to issue an executive order halting an agency from promulgating a rule that is statutorily required by PPACA, as such an action would conflict with an explicit congressional mandate…However, Presidents have issued executive orders on regulatory review that have increased the President’s involvement in agency rule making generally. […]
A President would not appear to be able to issue an executive order halting statutorily-required programs or mandatory appropriations for a new grant or other program in PPACA, and there are a variety of different types of these programs…However, there may be instances where PPACA leaves discretion to the Secretary to take actions to implement a mandatory program, and…an executive order directing the Secretary to take particular actions may be analyzed as within or beyond the PResident’s powers to provide for the discretion of the executive branch.”
Romney admits that he won’t be able to eliminate the entire law through executive authority and save a Republican majority in the senate, has pledged to use the reconciliation process to undo the rest of the measure. But that too isn’t possible, since “budget reconciliation bill would have to apply only to the budget-related elements of the new law” and would leave many portions of the law intact. Romney would end up “creating a chaotic environment driven by enormous uncertainty over just which parts of the new health care law would be implemented–for consumers, health care providers, and insurers.”
Unfortunately, this reality hasn’t stopped the former Massachusetts governor from telling voters that he will easily repeal Obamacare on “day one.”
By: Igor Volsky, Think Progress, November 30, 2011
Inconvenient History: Proof Positive That Newt Gingrich Supported Healthcare Mandates
As Newt Gingrich takes his turn as the GOP flavor of the week, all that baggage he carries is beginning to be opened, unpacked and examined like a tourist going through customs on a slow day at the airport.
The past few days have shined a light on Newt’s relationship with Freddie Mac and Fannie Mae, the quasi-governmental agencies that Gingrich has been hammering for their role in the nation’s mortgage meltdown. Yet, it turns out that Gingrich’s consulting firm accepted a sum well in excess of one million dollars from these same agencies to push their agenda with his Republican buddies on the Hill.
Now, the media is getting around to examining Gingrich’s record on healthcare reform and are finding themselves shocked to learn that, as Governor Romney accused during one the recent if endless GOP debates, Newt was a big supporter of mandated health insurance long before he was against it.
Anybody who is similarly surprised by this has simply not been paying attention. As I wrote in a Forbes piece back in May of this year, there is a fairly endless record of Gingrich’s commitment to health insurance mandates.
Newt’s explanation for his now inconvenient history is that he only adopted his pro-mandate position in the early 90’s for the purpose of derailing Hillarycare (the failed Clinton administration effort to reform our health care system.)
And yet, he has left a long trail of mandate laden bread crumbs that clearly proves otherwise.
Appearing earlier this year on Meet The Press, Gingrich stood up for his long-held position that mandates were a good idea. However, upon realizing that his statements were causing him big problems with the Republican base, Gingrich recorded and released a video just a few days later wherein he announced:
I am completely opposed to the Obamacare mandate on individuals. I fought it for two and half years at the Center for Health Transformation. I am against any effort to impose a federal mandate on anyone because it is fundamentally wrong and I believe unconstitutional.
Not only did Newt flip-flop on his position, he outright lied when he said that he has fought the notion of mandates at his Center for Health Transformation.
How do we know he is lying?
Just click on the link and you can visit the Insure All Americans section at Gingrich’s Center for Health Transformation website. Of course, should you take a little trip over to this smoking gun today, you will find that the relevant page has been removed. Go figure.
Fortunately, David Corn of Mother Jones and MSNBC, along with the Washington Post, got there before the page was taken down. As a result, courtesy of Corn, we have the screen image of the relevant proposal. You will want to note the highlighted section.
This, my friends, is unarguably a proposal that includes a health insurance mandate. And it gets even more interesting. According to the Washington Post article referenced above, Newt’s healthcare think tank raked in some $37 million from the healthcare industry by supporting the mandate concept.
Nice work if you can get it but not particularly useful if you are going to run for president on a platform that completely trashes what you had previously supported.
Now, one could argue that Newt’s proposal is somehow different from Obamacare because Gingrich exempts those who earn less than $50,000 from having to purchase coverage.
But that argument would fail miserably. In Newt’s book “Real Change”, published in 2008, Gingrich repeated his proposal that those making over $50,000 be required to purchase health insurance. But he also noted that those who earn below that level should receive tax credits or government subsidies to assist them in acquiring health care insurance coverage.
Sound familiar? It should. The proposal is pretty much Obamacare on the nose.
If GOP primary voters are paying attention, this should close the door on poor old Newt. After all, what’s the use of running a cranky old guy for President when he spends most of his time engaging in hypocrisy on steroids and running away from previously held positions for which he was paid magnificently to pursue.
And if this is the kind of candidate you’re looking for, why not choose Governor Romney? A pretty masterful flip-flopper himself, at least Romney made his money the old fashion way – buying companies, stripping them down, putting thousands out of work, and then reselling the pieces for a giant profit.
This has got to be preferable to a man who got rich peddling his influence with his Republican colleagues in Congress to the highest bidder…doesn’t it?
By: Rick Ungar, Contributing Writer, Forbes, November 18, 2011
Crazy People Running For President
Every four years, many people decide to run for president. You don’t hear about most of them, because the news media decide, and reasonably so, to ignore folks like the immortal Charles Doty. Even among those who have held major political office, however, some are deemed serious and some are not. For instance, Buddy Roemer — a former member of Congress and governor of Louisiana — is considered not serious, as is Gary Johnson, the former governor of New Mexico. Both are running for the Republican nomination, but neither gets invited to debates or has journalists reporting on their campaigns. Yet Michele Bachmann is considered one of the “real” candidates, even as she languishes in the mid-single-digits in polls.
Of course she won’t be president, but I think it’s worth pointing out that someone like Bachmann can still be treated as a real candidate. Since we’ve almost gotten used to her, at times one has to step back and marvel at just how incredibly nutty this person is, and the fact that she is not standing on a streetcorner wearing a tinfoil hat and sandwich board but actually has people come to listen to what she has to say. Here’s what she told some folks at a town hall, speaking about another town hall she had held:
“One man stood up, he was over 7-feet tall. He was a physician in the community. And he said, ‘I had a little lady in my office and because of Obamacare, I had to call the IRS and I had to get a number to put on a form before I could see her.'”
Repealing the Affordable Care Act is one of the centerpieces of Bachmann’s campaign, yet the idea that she would have even the barest clue about what the ACA does and doesn’t do is so ridiculous we don’t even bother to expect it. When a presidential candidate gets up and tell an audience that a gigantic doctor told her that he has to call the IRS to get permission to treat patients —something no doctor has ever had to do, and no doctor will ever have to do, ACA or not—what is the appropriate response? The appropriate response is for the national press corps to say, “This person has officially gone nuts. We will therefore not waste any more of our audience’s time on her.” Or maybe, “We’re going to take this opportunity to explain exactly why this candidate is a liar and a fool, so you will understand exactly why we won’t be wasting any more of your time on her.”
It would literally be only a bit more fanciful if Bachmann had said, “The other day I was at a town hall, and a space alien from the planet Gorgrax was there, and he said that because of Obamacare, Gorgraxian medical robots are going to need to travel through an intergalactic wormhole and get permission from Washington bureaucrats before they can treat patients with Flurznoop Syndrome! Is that what we want for America?”
And Republicans wonder why Americans have trouble seeing them as a responsible ruling party.
By: Paul Waldman, The American Prospect, November 18, 2011
The Affordable Care Act And The Text Of The Constitution: Words Still Matter, Even in the Supreme Court
The most powerful line in conservative Judge Laurence Silberman’s decision upholding the Affordable Care Act last week is a blunt statement that the law’s opponents “cannot find real support” for their arguments “in either the text of the Constitution or Supreme Court precedent.”
Now that the Supreme Court has agreed to take up this case later this year, Silberman’s words are a stern reminder that the text of the Constitution must guide judges’ decisions, especially in politically charged cases, and that Silberman’s fellow conservatives on the Supreme Court must ignore the temptation to place politics over fidelity to the Constitution by striking down the Affordable Care Act.
There can be no question that Silberman is right about what the Constitution has to say about this law. The federal government’s power is not unlimited—the Constitution gives Congress a laundry list of “enumerated powers,” and Congress cannot stray beyond this list—but its authority is quite sweeping when it regulates nationwide commercial markets such as the market for health care services. In the Constitution’s words, Congress may “regulate commerce . . . among the several states.”
The plaintiffs’ primary challenge to the Affordable Care Act is to the provision requiring most Americans to either carry health insurance or pay slightly more income taxes. In their vision of the Constitution, this provision runs afoul of some unwritten rule against being told what to do. The federal government can regulate how people go about the business they are already engaged in, under this narrow vision, but it is utterly powerless to push people to engage in commerce they would prefer to avoid.
There are many, many problems with this theory of the Constitution. But Silberman’s rebuttal of it is both the most simple and the most elegant response to the plaintiffs’ entirely fabricated legal theory. The Constitution says nothing suggesting that people can immunize themselves from the law simply by remaining passive. It simply provides that the United States may regulate commerce among the several states.
Modern judges do not need to speculate what the founding generation understood these words to mean when they were written into the text of the Constitution. Chief Justice John Marshall—himself one of the ratifiers of the Constitution—told us what they mean in the 1824 case of Gibbons v. Ogden. Marshall wrote that there is “no sort of trade” that the words “regulate Commerce” do not apply to. He said that the power to “regulate” something “implies in its nature full power over the thing to be regulated.” And he told us that Congress’s power to regulate commerce “among the several states” applies to all trade that “concern[s] more states than one.”
So when Congress passes a nationwide law regulating the entire national health care market, there is simply no question that the law is constitutional. The law regulates a form of trade—trade for health services—and it regulates a health services market that is both pervasive and nationwide. The Affordable Care Act cases are some of the easiest cases to cross the Supreme Court’s bench in a generation, and it is nothing less than shocking that a handful of judges have struck the law down.
Thankfully, the overwhelming majority of judges to review the law have upheld it. Of the four federal appeals courts to consider the Affordable Care Act, only one voted to strike it. That one outlier decision was grounded on a false fear that if the courts were to uphold health reform, it would somehow eliminate all of the existing limits on congressional authority. If Congress is allowed to regulate health care today, the law’s opponents argue, tomorrow they will force everyone to buy broccoli.
Make no mistake: This concern is misguided, and it has no basis in the Supreme Court’s precedents. In its 1995 decision in United States v. Lopez, the Supreme Court explained that the power to regulate “commerce” includes sweeping authority over the nation’s economy, but Congress’s authority over noneconomic matters is far more limited. Thus a wide range of noneconomic regulation—including federal laws governing personal and sexual morality or even a federal ban on assault, rape, or murder—clearly exceed Congress’s enumerated powers. Sweeping regulation of the national health care market, by contrast, fits comfortably within the Constitution’s text.
Because the text of the Constitution clearly and obviously supports the Affordable Care Act, the Supreme Court has an unambiguous duty to uphold it. Judges are not like members of Congress. They are unelected, and they serve for life. As such, they cannot be held accountable to the people through fear of a lost election and can only be checked by their loyalty to our written Constitution. If the federal judiciary has the power to ignore the text of the Constitution then there is literally nothing that they cannot do.
Indeed, if the justices strike down the Affordable Care Act, there is nothing preventing them from forcing every American to buy broccoli.
By: Ian Millhiser, Center For American Progress, November 14, 2011
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
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