The 11th Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution
The key passage in today’s opinion striking down part of the Affordable Care Act appears on page 113, where the two judge majority explains how they will determine whether this law is constitutional:
In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. The Constitution provides that Congress may “regulate Commerce…among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution.
A law requiring most Americans to either carry insurance or pay slightly more taxes clearly regulates the national market for health care. It determines how people will finance health care purchases. It lowers the cost of health insurance. And it protects that market from something known as an “adverse selection death spiral.” So that should have been the end of the case. The Court cites no provision of the Constitution limiting Congress’ authority to pass this law because no such provision exists.
Instead, it imposes two extra-textual limits on national leaders’ ability to solve national problems. If the law is somehow “unprecedented,” and if a decision upholding the law lacks vague and undetermined “meaningful limit[s]” on Congress’ authority that somehow upset the balance between federal and state power, then the law must be struck down even if the Constitution’s text says otherwise.
Yet even if these two novel limits are taken seriously, the court’s analysis still makes no sense. For one thing, the law is only “unprecedented” in the sense that it preferred a market-driven solution to the problem of widespread uninsurance over more government driven solutions such as Medicare. The truth is that Congress already requires nearly all Americans to purchase health insurance — and they have done so for many years. Every year the federal government collects taxes which are in no way optional. A portion of these taxes are then spent to buy health insurance for the elderly (Medicare) for the poor (Medicaid) and for children (SCHIP).
So the only real question in this case is whether the government is required to first take your money and then buy health coverage for you, or whether the Constitution allows Congress to cut out the middle man.
The Court is also simply wrong to claim that a decision upholding the ACA would necessarily mean that there are no limits on federal power. The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Because the ACA’s regulation of the national insurance market cannot function without a requirement that nearly every American carry insurance. this requirement is clearly constitutional under Justice Scalia’s statement that Congress possess “every power needed” to make it’s economic regulations effective. Moreover, upholding the Affordable Care Act under Justice Scalia’s rule would require a court to do nothing more than hold that the Affordable Care Act is constitutional. There is no federal law which depends upon mandatory broccoli purchases, for example, in order to function properly in the same way that the ACA’s preexisting conditions provision can only function properly in the presence of an insurance coverage requirement. Accordingly, the court’s concern that upholding the law would destroy any limits on federal power is unwarranted.
As a final note, it is likely that conservatives will tout the fact that Judge Hull was appointed by President Clinton in the same way that progressives touted Bush-appointed Judge Sutton’s decision rejecting an ACA challenge. The two judges are not comparable, however. Judge Sutton is a former Scalia clerk who stood on the vanguard of the conservative legal movement for many years. Judge Hull, by contrast, is a compromise nominee Clinton selected in order to overcome obstruction from the Republican-controlled Senate.
Hull has a long record of conservative criminal and individual rights decisions. We now know that she is also very far to the right questions of federal power. That is unfortunate, but it also places her well to the right of some of the Supreme Court’s most conservative members.
By: Ian Millhiser, U. S. News and World Report, August 12, 2011
Populist Sen Mitch McConnell: “I Think Everyone Should Pay Their Fair Share, Including The Rich”
Today, Senate Minority Leader Mitch McConnell (R-KY) named three Republicans to the fiscal super committee that was created by the debt ceiling deal. All three have taken the Americans for Tax Reform anti-tax pledge and support a cockamamie constitutional balanced budget amendment. “What I can pretty certainly sayto the American people, the chances of any kind of tax increase passing with this, with the appointees that John Boehner and I are going to put on there, are pretty low,” McConnell has said.
But McConnell has not always been so virulently anti-tax. In fact, in a 1990 campaign ad, McConnell said that “everyone should pay their fair share, including the rich,” prompting the Associated Press to say that he sounded like a “populist Democrat”:
“Many Republican candidates are, in fact, holding fast to the no-new-taxes position that Bush embraced and then abandoned, even as they try to portray themselves as friends of senior citizens and the disadvantaged. Others are sounding more and more like populist Democrats. ‘Unlike some folks around here, I think everyone should pay their fair share, including the rich,’ Sen. Mitch McConnell, R-Ky., says in a campaign ad.” [Associated Press, 10/28/90]
“A twist of untraditional Republicanism is added to McConnell’s message when he says, ‘Unlike some folks around here, I think everyone should pay their fair share, including the rich. We need to protect seniors from Medicare cuts too,’” wrote Roll Call reporter Steve Lilienthal. “After proclaiming his independence from the President and Congressional leaders, McConnell reassures voters that he will back a ‘fair deal for the working families of Kentucky.’” [“Democrats Flood Airwaves Charging GOP Party of Rich,” Roll Call, 11/5/1990]
If McConnell truly believes this, he should be appalled by current conditions. Tax rates on the richest Americans have plunged in recent years, and millionaires today pay tax rates that are 25 percent lower than they were in 1995. Meanwhile, income inequality is the worst its been since the 1920s, with the top 1 percent of Americans taking home 25 percent of the country’s total income. Just the richest 400 Americans hold more wealth than the bottom 50 percent of Americans combined, and the richest 10 percent of Americans control two-thirds of the country’s net worth.
From the sounds of it, once upon a time McConnell would have found this troublesome. It’s a shame that he doesn’t any longer.
By: Pat Garafalo, Contribution by: Sarah Bufkin; Think Progress, August 10, 2011
Taxing The Poor: The Only Tax Increase Republicans Support
Throughout the debate about raising the federal debt ceiling, Republicans have denied deal after deal because Democrats insist on adding new revenues to trillions of dollars in spending cuts. Republicans have opposed repealing oil and gas subsidies, removing a tax loophole for corporate jet owners, letting the Bush tax cuts expire, and all other forms of revenue Democrats have suggested. Raising taxes in a weak economy, they argue, is unthinkable — even if conservative patriarch Ronald Reagan did just that.
But there is one tax increase some Republicans seem to favor: raising taxes on the working poor, senior citizens, and other low-income Americans.
While they fight the expiration of the budget-busting Bush tax cuts, Republicans have continually cited a report that shows that 51 percent of Americans don’t pay income taxes, even admitting that middle- and lower-class Americans need to shoulder a larger burden in deficit reduction efforts. Here is a sample of Republicans who have made that argument:
Sen. Orrin Hatch
(R-UT): In a May 5 appearance on MSNBC, Hatch said, “The place where you’ve got to get revenues has to come from the middle class,” saying the poor needed to understand “that there’s a civic duty on the part of every one of us to help this government to, uh, to be better.” On the Senate floor July 7, Hatch said the poor “need to share some of the responsibility” for deficit reduction.
Sen. John Cornyn
(R-TX): Cornyn also cited the report on the Senate floor July 7, when he said Congress needed to address tax reform to make the system “flatter, fairer, and simpler.” He then cited the report, saying, “51 percent — that is — a majority of American households — paid no income tax in 2009. Zero. Zip. Nada.”
Sen. Dan Coats
(R-IN): Coats echoed the talking point last weekend, saying “everyone needs to have some skin in the game.” He added: “I realize that some with low incomes and not much money are not paying much in taxes. Nonetheless, we all have a stake in this country and what needs to be done. I think it’s important that this burden not just fall on 50 percent of the people but falls on all of us in some form.”
House Majority Leader Eric Cantor
(R-VA): Cantor was among the first Republicans to begin hitting this particular talking point, doing so in April on CNBC’s Squawk Box. “We also have a situation in this country where you’re nearing 50 percent of people who don’t even pay income taxes,” he said.
Republicans, of course, ignore why most of the 51 percent do not pay income taxes and the myriad ways in which they are subject to other forms of taxation. The majority who do not pay federal income taxes simply do not make enough money to qualify for even the lowest tax bracket. But they do contribute through payroll, state, and sales taxes. Less than a quarter of Americans don’t contribute to federal tax receipts, and the majority of those are students, the elderly, or the unemployed.
Meanwhile, the richest Americans are paying less than they were a generation ago, leaving the United States with one of the largest income gaps in the industrialized world.
By: Travis Waldron, Think Progress, July 25, 2011
GOP Passes Up Generational Conservative Victory In Order To Protect The Wealthy
Oh, the irony.
After generations of conservative dogma based solidly in the belief that fundamental changes to America’s entitlement programs are essential to the economic survival and betterment of the nation, that goal is now, finally, within the reach of the true believers.
Yet, remarkably, this dramatic change in national direction is being permitted to slip right through conservative fingers by the very people whom those ensconced on the right should be counting upon to bring home this great philosophical victory.
The fulfillment of the conservative dream is not vanishing from sight because Nancy Pelosi and the forces of progressivism are prepared to defend entitlements to the death. Nor is it happening because the President of the United States has counted up the votes and decided that messing with entitlements will cost him re-election.
It is not even the result of “bleeding hearts” like me rising nobly in defense of the needy and downtrodden.
Significant entitlement reform, long the goal of the fathers of modern day conservatism, is being flushed down the drain by the very Republican Party that has long battled to bring that goal to reality.
Somewhere in Connecticut, William F. Buckley Jr. is turning over in his grave.
On Saturday, Speaker of the House John Boehner announced that the ‘grand bargain’ – rumored to bring $4 trillion in debt reduction over the next ten years through a mixture of entitlement reform, defense cuts and a measure of revenue increases resulting from cleaning up the tax code to get rid of some of the corporate entitlement programs that result in lower taxes and higher subsidies – is now off the table.
Apparently, Boehner could not sell the GOP Congressional Caucus on a deal that involved anything in the way of revenue increases- not even in exchange for accomplishing reforms for which his party has fought since the days of FDR and his “New Deal”.
True conservatives should not blame Boehner for this heresy as it appears that he is no happier with the position he is being forced to take than the President is with his proposal being rejected by House Republicans who don’t grasp the whole compromise thing.
What Boehner likely understands – better than those who he is supposed to be leading – is that the GOP is permitting the fundamental change, long at the heart of the conservative cause, to vanish into thin air and that it is happening in the name of protecting corporate subsidies that are the very antitheses of a free market economy – another of the inviolate tenets of conservative policy.
Subsidies that provide government incentives to industry are as anti-free market as government subsidies and controls that conservatives argue have skewed the costs of health care in America and led to our current crisis.
According to American conservative scripture, a truly free market requires that players compete on level ground – not with the edge that comes from government handouts and special tax breaks, whether they be for the benefit of a corporation or an individual.
Thus, the GOP is rejecting the opportunity to accomplish a landmark, philosophical milestone by protecting a policy that is, in and of itself, a violation of that same conservative philosophy.
Is the irony of this enough to make even the most ardent conservative believer question what in the world is going on here?
It certainly should be.
Could the explanation for this odd behavior be that the Congressional Republican Caucus has decided to turn its back on what is supposed to be their most fundamental beliefs because their constituents are demanding that they do so?
Apparently not.
According to the Christian Science Monitor, the GOP Caucus does not appear to have any interest whatsoever in listening to its base.
“Two-thirds (67 percent) approve of making more of high earners’ income subject to Social Security tax, and nearly as many approve of raising taxes on incomes of over $250,000 (66 percent), reducing military commitments overseas (65 percent) and limiting tax deductions for large corporations (62 percent),” the Pew Research Center reported last month.
“Notably,” Pew found, “Republicans are as likely as Democrats to approve of limiting corporate tax deductions.”
Still, any kind of tax increases – whether it be a greater tax bite on the wealthy or on corporations seen as “job creators” – is off the table as far as large numbers of Republican House members are concerned. Via The Christian Science Monitor
So, the GOP rejection of the debt deal is neither based in the free market philosophy nor the fundamental belief in entitlement reform. It is also not based on meeting their obligations to their constituents.
So, what is driving their rather remarkable position?
It must be jobs and the economy.
Surely, the Republicans in Congress are convinced that removing tax subsidies to the oil industry and cleaning up the tax code to get rid of corporate welfare that is no longer of any discernable value to the nation will make what is already a very bad jobs situation even worse.
Except that it turns out that you have to search long and wide to find an economist who supports this notion.
The other argument that advocates of tax cuts for the rich make is that many small-business owners would be see their taxes go up and thus would be discouraged from hiring workers. The facts do not support this. “Only 3 percent of small-business owners are in the top bracket,” notes Roberton Williams, a senior fellow with the Tax Policy Center, which is sponsored by the Brookings Institution and the Urban Institute. And, he adds, “They are not all what we think of as job-creating small businesses. A lot of them are hedge-fund managers and law-firm partners.” So other than perhaps a few restaurateurs on Manhattan’s Upper East Side, the workforce is unlikely to be affected. Via Newsweek
So, while Eric Cantor continues to try and sell his base on this argument, it’s pretty hard to find anyone who knows anything about economics who actually is buying the pitch.
If it’s not philosophical dogma or fulfilling their obligation to those who elected them and it’s not the economy and/or jobs, what exactly is their problem?
I don’t know about you, but I can only think of one other explanation – fealty to the wealthy corporations and wealthy individuals who keep your Republican leadership rolling in the campaign cash so they can remain in their powerful jobs.
Now, if you believe this is a good enough reason to risk the financial stability of the nation – and possibly the world – then it’s all good.
Personally, I’m a little concerned.
I fear we are witnessing one of the most perverse and dangerous games our leaders have ever embarked upon. I’m stunned by the sheer audacity of these elected officials so ready to play chicken with the financial lives of so many simply to benefit a very few.
But what really amazes are the millions of middle class Americans who continue to believe that these officials are somehow acting in their best interest.
As curious as I am to see what will ultimately come of this game, my curiosity is far more piqued by the possibility that these middle class Americans might finally understand that the Republicans they sent to Congress work for the big corporations and care little for their needs and problems.
Should that light bulb (incandescent or otherwise) finally turn on, these folks should be assured that nobody is expecting them to run into the waiting arms of the Democratic Party. They can still quietly send their Congressional representatives a message indicating that they would prefer not to be abandoned so that Exxon might keep the government checks flowing in while maintaining their standing as upright, committed conservatives.
If these folks could – just this once – grasp what is being done in their name and communicate their rejection of the behavior of their leaders, the rest of us would genuinely appreciate it.
A true conservative should be as disgusted with what the Congressional Republican Caucus is doing as the rest of us and probably a great deal more so.
By: Rick Ungar, The Policy Page, Forbes, July 10, 2011
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