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
Extortion Politics: A New Form Of Governing
Josh Marshall made an interesting point in passing yesterday, asking whether conservative Republicans could achieve massive spending cuts through “old-fashioned majority votes.” Josh answered his own question: “Of course not.” The cuts on the table were only made possible by Republicans “threatening the health” of the United States.
I think this arguably one of the more important realizations to take away from the current political landscape. Republicans aren’t just radicalized, aren’t just pursuing an extreme agenda, and aren’t just allergic to compromise. The congressional GOP is also changing the very nature of governing in ways with no modern precedent.
Welcome to the normalization of extortion politics.
Consider, for example, the Republican decision to reject any and all nominees to the Consumer Financial Protection Bureau, regardless of merit, unless and until Democrats accepted changes to the agency’s structure. Traditionally, if the GOP wanted to alter the powers of the CFPB, it would write legislation, send it to committee, bring it to the floor, send it to the other chamber, etc. But that takes time and effort, and in a divided government, this “old fashioned” approach to policymaking probably wouldn’t produce the desired result.
Instead, we see the latest in a series of extortion strategies: Republicans will force Democrats to accept changes to the agency, or Republicans won’t allow the agency to function. Jonathan Cohn wrote a good piece on this a couple of weeks ago, noting the frequency with which this strategy is utilized.
Republican threats to block nominees to the consumer board are at peace with their opposition to Don Berwick, Obama’s first choice to run the Center for Medicare and Medicaid Services; to Peter Diamond, whom Obama tapped to sit on the Federal Reserve Board; and most recently to John Bryson, Obama’s nominee to take over the Commerce Department. It’s nothing short of a power grab by the Republican Party — an effort to achieve, through the confirmation process, what they could not achieve through legislation. And it seems unprecedented, at least in modern times.
Republicans effectively tell the administration, over and over again, that the normal system of American governance can continue … just as soon as Democrats agree to policy changes the GOP can’t otherwise pass.
The traditional American model would tell Republicans to win an election. If that doesn’t work, Republicans should work with rivals to pass legislation that moves them closer to their goal. In 2011, the GOP has decided these old-school norms are of no value. Why bother with them when Republicans can force through policy changes by way of a series of hostage strategies? Why should the legislative branch use its powers through legislative action when extortion is more effective?
It’s offensive when it comes to nominees like CFPB nominee Richard Cordray, but using the full faith and credit of the United States to force through desired policy changes takes this dynamic to a very different level. And since it’s working, this will be repeated and establishes a new precedent.
Indeed, it’s a reminder that of all the qualities Republicans lack — wisdom, humility, shame, integrity — it’s their nonexistent appreciation for limits that’s arguably the scariest.
By: Steve Benen, Contributing Writer, Washington Monthly-Political Animal, July 31, 2011
Mitch McConnell’s Insincere Invitation
One can only dream of a Republican Party led by grown-ups. Instead, we have this.
Senate Republican Leader Mitch McConnell (R-Ky.) challenged President Obama on Thursday to meet with Senate Republicans to hear firsthand about the political reality of passing tax increases through Congress.
A day after Obama challenged Republicans to give up special tax breaks for corporate jets and major oil companies, McConnell issued a challenge of his own on the Senate floor.
“I’d like to invite the president to come to the Capitol today to meet with Senate Republicans. Any time this afternoon if he’s available, to come on up to the Capitol,” McConnell said. “That way he can hear directly from Senate Republicans … why what he’s proposing will not pass.”
McConnell says once Obama learns from GOP lawmakers that ending special tax breaks for oil companies and wealthy families has no chance of passing the Senate, “we can start talking about — maybe, finally — start talking about what’s actually possible.”
Let me summarize the message McConnell announced this morning: “If the president has some free time in a few hours, he should stop by and listen to us tell him we want to lower the deficit, but only in ways we see fit.”
Soon after, White House Press Secretary Jay Carney told reporters the president need not hear Republicans “restate their maximalist position,” adding, “We know that position. That’s not a conversation worth having.”
Of course not. Everyone knows what everyone thinks and everyone’s position at this point. Obama doesn’t need to listen to Republicans demand 100% of what they want, anymore than McConnell needs to listen to Democrats tell him he can’t get 100% of what he wants.
This entire process made a right turn at farcical quite a while ago. Mitch McConnell isn’t just threatening to crash the economy, he’s also threatening to make mockery of the institution he claims to serve and turn the American political process into a reality-show circus.
Not to be outdone, NRSC Chairman John Cornyn (R-Texas) said President Obama has “diminished” his office by urging lawmakers to do their duty. If anyone explain what on earth Cornyn was blabbering about, I’m all ears.
And then there’s Sen. John Thune (S.D.), the chairman of the Senate Republican Policy Committee, who told Fox News this morning that the president goes golfing too much.
These aren’t random House backbenchers — McConnell, Cornyn, and Thune are three of the top four highest-ranking Republican members of the Senate. And they all appear to be rambling incoherently.
I was about to type that there are no adults left in the Republicans’ room, but that’s not entirely true. There are still a couple left, but they’re stuck in primary fights, so they have to go along with the madness to save their careers.
It’s a pathetic display.
By: Steve Benen, Contributing Writer, Political Animal, The Washington Monthly, June 30, 2011
Polls And The Public: What To Do When The Public Is Wrong
There’s been a fair amount of consistency in national polls in recent months. Americans like higher taxes for the wealthy, dislike radical changes to Medicare, and don’t want the debt ceiling to be raised.
Despite Obama administration warnings that failing to do so would devastate the economy, a clear majority of Americans say they oppose raising the debt limit, a new CBS News/New York Times poll shows.
Just 27 percent of Americans support raising the debt limit, while 63 percent oppose raising it.
Eighty-three percent of Republicans oppose raising the limit, along with 64 percent of independents and 48 percent of Democrats. Support for raising the debt limit is just 36 percent among Democrats, and only 14 percent among Republicans.
Seven in ten who oppose raising the debt limit stand by that position even if it means that interest rates will go up.
These results were published yesterday, but they’re practically the same as related polling data in other surveys dating back quite a while.
Here’s the uncomfortable truth: policymakers simply must ignore them. The public has no meaningful understanding of what the debt ceiling is, what happens if interest rates go up, or the global economic consequences of a potential default. It’s quite likely Americans perceive the question as a poll on whether or not they want a higher debt.
This is one of those classic dynamics in which responsible policymakers realize that they know more about the subject matter than the public at large, so they have to do the right thing, even if the uninformed find it distasteful — knowing that the disaster that would follow would be far more unpopular.
Put it this way: what if the poll had asked, “Would you rather raise the debt ceiling or risk a global economic catastrophe and massive cuts to Social Security and Medicare?” The results, I suspect, might have turned out differently.
Or maybe not. Either way, it doesn’t matter. The public is wrong, and Americans need sensible leaders to do the right thing, even if they’re confused about what that is.
Now, I can hear some of you talking to your monitor. “Oh yeah, smart guy?” you’re saying. “The polls also show Americans hate the Republican budget plan. If the public’s confusion on the debt limit should be ignored, maybe the public’s attitudes on eliminating Medicare and gutting Medicaid should be disregarded, too.”
Nice try, but no. Here’s the thing: folks know what Medicare and Medicaid are. They have family members who benefit from these programs, or they benefit from the programs themselves. It’s not an abstraction — these are pillars of modern American life, and institutions millions of come to rely on as part of a safety net.
The point is, polls only have value if the electorate understands what they’re being asked. The debt ceiling is a phrase the public has barely heard, and doesn’t understand at all. That doesn’t apply to Medicare in the slightest.
By: Steve Benen, Washington Monthly, Political Animal, April 22, 2011
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