This Texan Ain’t Shooting Straight: Rick Perry’s Double Talk On Social Security And The Constitution
This we know: Texas Gov. Rick Perry, the apparent GOP 2012 front-runner, doesn’t like Social Security.
He has, for example, described it in his recent book as not only a “Ponzi scheme,” but “by far the best example” of a program “violently tossing aside any respect for our founding principles,” and as having been put in place “at the expense of respect for the Constitution and limited government.” Elsewhere he has said that the Constitution’s “general welfare” clause does not cover Social Security and Medicare. In other words not only is Social Security bad policy, Perry believes, but actually in defiance of our founding principles in general and the Constitution in particular.
While he and his campaign had appeared to dance away from these characterizations, Perry was at it again in Iowa over the weekend, calling the program a “monstrous lie,” and saying that he stood by everything in his book (including, presumably, Social Security’s unconstitutionality).
So here’s what I want to know: What would President Rick Perry do about Social Security?
It’s one thing to note that Perry makes crazy comments. As Washington Monthly’s Steve Benen notes, “Perry is positioning himself well outside the American mainstream. It’s going to impress the Republican Party’s far-right base, but it won’t impress anyone else.”
But there is a necessary connection between views and policies. What would Perry’s policy toward Social Security be in the White House?
As it happens, he answered that question, in part, during his Iowa campaign swing. This from the Houston Chronicle:
He told the Ottumwa crowd that for people who are drawing Social Security or near eligibility “like me,” he wasn’t proposing a change in the program. But he said there should be a national conversation about potential changes for others, including raising the age of eligibility and establishing a threshold based on a person’s means.
“Does Warren Buffett need to get Social Security? Maybe not,” he said.
Huh? Let me see if I understand this. Social Security “violently tossed aside any respect for our founding principles,” and was instituted at the “expense of respect for the Constitution.” And his solution to these problems is … means testing? And a national conversation about entitlement reform?
Those responses seem awfully conventional for a pol who is so self-consciously talking such a big, radical game about one of the nation’s beloved government programs. Either he’s tossing cow chips when he decries the program, or has something else under his hat when he spouts mealy-mouthed solutions to what he sees as its problems. But either way, this Texan ain’t shooting straight.
Reporters should press Perry on Social Security—does he really believe the program is unconstitutional? If so, doesn’t he have an obligation to defend the Constitution by ending the illegal program (including for people drawing it or nearing eligibility)? And if not, what exactly does he mean when he says that the program violently tosses aside respect for the Constitution? And if it is constitutional, what is its constitutional basis, if not the general welfare clause?
If that all seems a bit much, maybe the moderator of the next GOP debate can boil it down simply: “Raise your hand if you think Social Security is unconstitutional.”
By: Robert Schlesinger, U. S. News and World Report, August 29, 2011
Mr. Obama’s Health Care Challenge-The Ball Is In Your Court GOP
President Obama had a splendid idea this week. He challenged governors who oppose his health care reforms, most of whom are Republicans, to come up with a better alternative. He has agreed to move up the date at which states can offer their own solutions and thus opt out of requirements that they oppose, like the mandate that everyone buy health insurance and that most employers provide it.
Let as many states as possible test innovative approaches to determine which works best.
The president told the nation’s governors on Monday that he supported a bipartisan bill — sponsored by Senators Ron Wyden, Democrat of Oregon, Scott Brown, Republican of Massachusetts, and Mary Landrieu, Democrat of Louisiana — that would allow states to fashion solutions right from the start of full-scale reform in 2014, rather than waiting until 2017, as the law requires.
The catch is that a state’s plan must cover as many people as the federal law does, provide insurance that is as comprehensive and affordable, and not increase the deficit. That won’t be easy for the governors to accomplish, and House Republicans seem unlikely to pass the bill to let them try. They would much rather repeal the reform law — or have it declared unconstitutional by the Supreme Court — than join Mr. Obama in improving it.
The decision to set the date at 2017 was based on a desire to get the reform elements up and coverage greatly expanded before allowing states to start changing the law. There also were concerns that the early start would be more costly. That’s because the states would be given money for alternatives equal to the cost of insuring their citizens under health care reform. Without three years of experience to get firm figures, those block grants would probably be set too high.
Neither rationale still seems compelling. It would be wasteful to require states to set up exchanges and other elements of the reform only to abandon them for an alternative system three years later. The pending bill would wisely allow states to submit proposals in the near future and, if approved, put them into effect in 2014.
Alternative approaches might include replacing the mandate to buy insurance with a system to automatically enroll people in health plans, reformulating tax credits for small businesses and low-income individuals to encourage near-universal coverage, adopting such liberal approaches as a single-payer plan or a public option, and even moving all or part of the enrollees in Medicaid into new health insurance exchanges. These would all have to be done without driving up the federal deficit or reducing benefits, affordability and coverage.
Reaction among Republican governors has been mixed. The vast majority are focused on their immediate need to reduce Medicaid spending to help close their budget gaps, not on fashioning alternatives for 2014. For the near-term budget problems, the administration is already advising states on ways to reduce Medicaid costs and the president asked the governors to form a bipartisan group to work on further cost-reduction.
The president’s new olive branch is not apt to change the legal arguments over whether the mandate in the reform law is constitutional. But it can’t hurt to bring forcefully to everyone’s attention that there are alternatives to the mandate if states want to pursue them. Republicans ought to rise to the challenge.
By: The New York Times-Editorial, Published March 1, 2011
Repeal, Restrict and Repress: GOP Running Amok
Republican state lawmakers, emboldened by their swollen ranks, have a message for minorities, women, immigrants and the poor: It’s on!
In the first month of the new legislative season, they have introduced a dizzying number of measures on hot-button issues in statehouses around the country as part of what amounts to a full-throttle mission to repeal, restrict and repress.
It wasn’t supposed to happen like this.
As Reuters pointed out this week, in the midterms, “Republicans gained nearly 700 state legislative seats and now have their largest numbers since the Great Depression, according to the National Conference of State Legislatures.”
Judging by the lead-up to those elections, one could have easily concluded that the first order of business on Republicans’ agendas would be a laserlike focus on job creation and deficit reductions to the exclusion of all else. Not the case.
As MSNBC and Telemundo reported recently, at least 15 state legislatures are considering Arizona-style immigration legislation. If passed, four of the five states with the largest Hispanic populations — California, Texas, Florida and Arizona — would also be the most inhospitable to them.
As Fox News Latino recently reported, state legislatures are poised to break the record on the number of immigration measures and resolutions introduced this year, having already introduced 600 by the end of last month. For comparison, 1,400 were introduced in total last year, according to a report issued last month by the state legislatures’ group. A record number of those laws were enacted.
And, according to the State Legislators for Legal Immigration, which was founded by State Representative Daryl Metcalfe, a Republican of Pennsylvania, lawmakers from 40 state legislatures have joined the group that last month unveiled “model legislation to correct the monumental misapplication of the 14th Amendment of the U.S. Constitution.”
On another note, Republicans in Kentucky, Missouri, Nebraska and Oregon are pushing legislation that would require drug testing of welfare recipients.
This despite the fact that, as the American Civil Liberties Union rightly pointed out, the policy is “scientifically, fiscally, and constitutionally unsound.” Other states have considered it but deemed it not feasible or impractical. In Michigan, the only state to implement it, only a tenth of those tested had positive results for drugs and only 3 percent had positive results for hard drugs, which the A.C.L.U. points out is “in line with the drug use rates of the general population.”
Most importantly, the Michigan law was struck down as unconstitutional, with the judge ruling that the rationale for testing people on welfare “could be used for testing the parents of all children who received Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from that state.”
Despite all this, these states are pushing ahead because the made-for-the-movies image of a crack-addicted welfare queen squandering government money on her habit is the beef carpaccio of red meat for spending-weary, hungry conservatives.
On the gay rights front, Republicans in Iowa, Indiana, West Virginia and Wyoming (where Matthew Shepard was tortured to death) are pushing constitutional amendments to ban same-sex marriage.
Republican Rick Snuffer, a freshman delegate from Raleigh, W.Va., turned logic on its head when arguing for that state’s amendment. He chided Democrats’ pro-choice position, and reasoned that, “They don’t want you to choose your definition of marriage, so they’re not really pro-choice. If they’re pro-choice, let the people choose their definition of marriage.” So let me get this straight. To be pro-choice, one has to submit to the tyranny of the majority, which may seek to restrict the rights and choices of others?
This is exactly the kind of thinking that the shapers of the Constitution worried about. A quick read of the Federalist Papers would help Mr. Snuffer understand just how concerned they were about the danger posed by majority rule to personal freedom.
Republicans in New Hampshire have filed bills to overturn that state’s same-sex marriage law, even though, according to a recent WMUR Granite State Poll, the state’s residents want to leave the law in place by a majority of more than 2 to 1, and when asked which were the most important issues the State Legislature should address, “almost no one mentioned dealing with hot-button social issues such as gay marriage or abortion.” I guess that “let the people choose” argument only works when the people agree with the Republican position.
A Republican state representative in Utah has even gone so far as to introduce a bill that would bar same-sex couples from drafting wills.
According to The News and Observer in North Carolina, Republicans are considering severely narrowing or repealing the state’s recently enacted Racial Justice Act, which allows death-row inmates to use statistics to appeal their cases on the basis of racial discrimination.
Two studies of the death penalty in the state have found that someone who kills a white person is about three times as likely to be sentenced to death as someone who kills a minority.
And in Wisconsin, Republicans are pushing a bill that would repeal a 2009 law that requires police to record the race of people they pull over at traffic stops so the data could be used to study racial-profiling.
Furthermore, abortion rights advocates are now bracing for the worst. NARAL Pro Choice America is now tracking 133 proposed bills thus far this legislative season, and that’s just the beginning. Donna Crane, the policy director of the group, said earlier this month that thanks to the gains by conservatives in the Nov. 2 election, “2011 will be a banner year for anti-choice legislation in the states.”
Richard Gephardt once said, “Elections have consequences.” He was right, and the consequences of the last election could well be a loss of liberty, choice, access and avenues of recourse for many. Brace yourselves. It’s on!
By: Charles M. Blow, Op-Ed Columnist, The New York Times-February 11, 2011
Commerce Clause Challenges To Health Care Reform
The following article, forthcoming in U. Penn. L. Rev., pinpoints the strongest arguments for and against federal power under the Commerce Clause to mandate the purchase of health insurance: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747189
Among the key points I make in defense of this federal law are:
1. The “commerce” in question is simply health insurance, and not the non-purchase of insurance as challengers have framed it. Because “regulate” clearly allows both prohibitions and mandates of behavior, mandating purchase is lexically just as valid an application of the clause as is prohibiting purchase or mandating the sale of insurance.
2. Although existing precedent might allow a line to be drawn between economic activity and inactivity, there is no reason in principle or theory why such a line should be drawn in order to preserve state sovereignty. Purchase mandates, after all, are as rare under state law as under federal law.
3. Challengers do not seriously dispute the constitutional validity of the ACA’s regulation of insurers or the economic necessity of the mandate in order for that regulation to be effective. In fact, they essentially concede the mandate’s necessity by asking to strike the entire law if it is declared invalid. Accordingly, the mandate would pass the tests for constitutional necessity articulated by at least seven of the Justices in the Comstock opinion last year, and might even pass the necessity test embraced by Justices Thomas and Scalia.
4. An important challenge, not yet clearly discussed by court opinions to date, is that the mandate does not, strictly speaking, simply “carry into execution” Congress’ other regulatory powers, but is the exercise of a distinct power. However, both modern and historical precedents under the Necessary and Proper Clause are not limited narrowly to merely implementation measures. Both Comstock and a series of decisions under the Postal Power are good examples to the contrary since they authorize independent federal powers that expand the range of purposes and measures permitted by express Congressional powers.
5. There is no coherent basis for declaring a purchase mandate to be constitutionally “improper,” and a categorical ban on regulating inactivity would contradict the implicit reasoning underlying several other established precedents — such as those upholding the draft and the Congressional subpoena power. Also, federal eminent domain allows compelled transactions justified in part by the Necessary and Proper clause’s expansion of the commerce power, when applied, for instance, to citizen’s refusal to sell land for use in constructing highways, bridges, and canals.
6. Using the 10th Amendment to justify a categorical prohibition of purchase mandates (as Randy Barnett has argued) would be no more convincing than using the 9th or 5th Amendments (substantive due process). Instead, such a move would, for the first time and contrary to precedent, make the 10th a protector of individual liberties rather than just federalism concerns, and would radically enforce an absolute right to economic liberty, regardless of level of legislative justification or judicial scrutiny (see point 9).
7. Slippery slope concerns are no greater here than for any other of a range of expansive federal powers. Instead, the novelty of the mandate subjects it to greater political constraint, and so “parade of horribles” concerns may be even more unrealistic than similar settings where the Court has rejected them.
8. Grounding the mandate in the Necessary and Proper clause helps to confine its precedential effect by emphasizing it’s necessary role in the ACA’s particular regulatory scheme that, in other respects, clearly resides within the core of the conventional commerce power. This essential supportive and interconnected role is not shared by free-standing mandates to purchase American cars or broccoli, for instance.
9. Counteracting imaginary slippery slope concerns about absurd hypothetical laws are the legitimate concerns about insurmountable barriers that a prohibition of purchase mandates would erect. Forbidding Congress from any purchase mandate could cripple necessary efforts, for instance, to require preventive measures in the face of a massive pandemic that threatened tens of millions of lives.
By: Mark Hall, Professor of Law, Wake Forest University School of Law: Originally published in Health Reform Law, January 26, 2011.
The Fight Over The Individual Mandate Is Not About Liberty
Whatever the legal argument about the individual mandate is about, it’s not, as some of its detractors would have it, a question of liberty. Charles Fried, Ronald Reagan’s former solicitor general, put this well at Wednesday’s Senate Judiciary Committee hearing.
“As I recall,” he said, “the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional.”
I’d disagree slightly with Fried’s characterization of the policy debate — the individual mandate and the public option do very different things, and a bill with a public option would still have had an individual mandate — but on the law, even the panel’s anti-mandate witnesses agreed with his characterization of the single payer’s legality. So, too, does Daniel Foster, a conservative at the National Review, who wrote, “All conservatives, I’d imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well).”
There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government’s coverage. That doesn’t make it more constitutional, of course. But it does suggest that the dividing point isn’t liberty.
When it comes to the legislation itself, the key question actually comes down to semantics. It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.” If you can show the IRS proof of insurance coverage, you then get a “personal responsibility tax credit” for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It’s called a “penalty” rather than a “tax.” As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term ‘penalty’ was substituted for the term ‘tax’ in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.” And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they’re not more damaging to liberty than taxes.
Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word “penalty” was eschewed in favor of the word “tax.” This is not a country built upon semantics. And I don’t think semantics underly the principle conservatives are fighting for here, either. After all, before Barack Obama adopted the individual mandate — and I mean mere months before — Sen. Chuck Grassley (R-Iowa) said there was “bipartisan consensus” around the need for an individual mandate. Sen. Olympia Snowe (R-Maine) voted for the individual mandate in the Senate Finance Committee. Sen. Bob Bennett (R-Utah) had his name on a bill that included an individual mandate. Sen. Bob Dole (Kan.), back when he led the Senate’s Republicans, co-sponsored a bill that included an individual mandate. None of these legislators takes the Constitution lightly. They didn’t see the individual mandate as a threat to liberty, and they weren’t constantly emphasizing that it was a tax rather than a penalty.
The principle conservatives are fighting for is that they don’t like the Affordable Care Act. And having failed to win that fight in Congress, they’ve moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn’t. That’s fair enough, of course. But they didn’t see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the “personal responsibility tax,” nor would they be mollified if it was called the “personal responsibility tax.” The hope here is that they’ll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what’s going on.
By: Ezra Klein, The Washington Post, Posted February 2, 2011
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