You are here: Home / Archives for National Politics / Health Care
25
Aug 2011

Publius Daily Digest

By 1 Comment

National

Jeffrey Toobin has a lengthy piece up at the New Yorker asking the question Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan:

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

* * *

In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.

The full piece, though fairly long, is worth a read. Speaking of SCOTUS, a couple days ago Damon Root highlighted an upcoming case that has some interesting implications:

The New York Times’ Adam Liptak previews the upcoming Supreme Court case of Perry v. New Hampshire, which will consider the role of eyewitness testimony in the American legal system. As Liptak writes:

Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest….

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

Read the whole story here. Read Radley Balko’s 2009 Reason report on the unreliability of eyewitness testimony here.

Over at CATO, Chris Edwards takes a closer look at Rick Perry’s Spending Record:

I awarded Mr. Perry grades of “B” in the last two Cato governor report cards. My analyses revealed a pretty good tax and spending record, but Perry certainly fell short of the reform-minded zeal shown by former “A” governor, Mark Sanford of South Carolina. Recent articles by Shikha Dalmia of Reason and Aman Batheja of the Fort Worth Star-Telegram suggest that Perry’s fiscal record is a mixed bag.

Let’s look at the numbers. Rick Perry came into office in December 2000, which was in the middle of Texas fiscal year 2001. Texas general fund spending has risen from $29 billion that first Perry year to $41 billion by fiscal 2011, which works out to an average annual increase of 3.5 percent. (Data from NASBO).

* * *

Thus, Mr. Perry has been Mr. Average on state spending. Over the past decade, per capita state general fund spending rose the same amount in Texas as the nation as a whole.

Note that total Texas state spending has risen substantially faster than just the general fund part of the Texas budget over the last decade (see Figure 16 in here). However, governors have more control over the general fund part of their budgets, so that is probably the best measure of a governors’ spending performance. (Still, Mr. Perry might want to explain to primary voters why the overall Texas budget has grown so quickly).

In yesterday’s Political Diary, Carl Kelm discussed a new poll showing a tightening of the GOP race:

A new poll out of Iowa shows the Republican contest tightening. The survey, conducted by PPP, puts newcomer Rick Perry in first place at 22%, with Mitt Romney at 19%, Michele Bachmann at 18% and Ron Paul at 16%. Given the margin of error, that amounts to a four-way tie.

In context, though, the poll is a win for Mr. Perry. The Texas governor has been mocked in the press as a George W. Bush clone with kooky views on evolution and global warming. But his message on job creation and economic growth appears to be resonating with the Republican base.

The poll is bad news for Ms. Bachmann and Mr. Romney. The Minnesota congresswoman, whose path to the nomination depends heavily on a victory in Iowa, has seen virtually no bounce from her Ames straw poll win earlier this month. To the contrary, her numbers have trended downwards. According to PPP, her favorables have gone from 53%-16% in June to 47%-35% now, leading the pollsters to conclude, “No one is sinking faster than Bachmann.” Mr. Perry’s numbers, meanwhile, have shot up to 56%-24%. And although his favorables will probably tighten up as voters get to know him better, the Texan begins his one-on-one with Ms. Bachmann in a superior position.

Mr. Romney finds himself in something of a dilemma. On one hand, Iowa has never been particularly important to his strategy, and he can absorb a loss there relatively easily. On the other hand, with Mr. Perry and Ms. Bachmann splitting the social conservatives and tea party affiliates, there’s an opportunity for Mr. Romney to cobble together a winning coalition of his own. And a win in Iowa, coupled with an expected victory in New Hampshire, could end the contest early.

Mr. Romney probably won’t go that route — his campaign has thus far shown a strong aversion to risk — but if he feels Mr. Perry is gaining too much momentum, it might make sense to opt for a three-way Iowa contest rather than face Mr. Perry one-on-one down the stretch.

George Will, one of our favorites, has some great insights in his latest column, Liberals’ Wisconsin Waterloo:

The residues of liberalism’s Wisconsin Woodstock — 1960s radicalism redux: operatic lamentations, theatrical demonstrations and electoral futilities — are words of plaintive defiance painted on sidewalks around the state capitol. “Solidarity forever” was perhaps painted by a graduate student forever at the University of Wisconsin. “Repubs steal elections” is an odd accusation from people who, seeking to overturn the 2010 elections, cheeredDemocratic lawmakers who fled to Illinois — a congenial refuge for labor-subservient Democrats — in order to paralyze the duly elected legislature. The authors of the sidewalk graffiti have at least read Jefferson: “The tree of liberty is watered by the blood of tyrants.” The tyrant is “$cott Walker American Fa$ci$t.”

Who, on a recent morning, was enjoying the view and the turn of events. From the governor’s mansion on the shore of sparkling Lake Mendota you can see on the far shore the famously liberal university, from which came many of those who protested his “budget repair” bill that already seems to have repaired many communities’ budgets, in addition to the state’s.

* * *

Progressives want to recall Walker next year. Republicans hope they try. Wisconsin seems weary of attempts to overturn elections, and surely Obama does not want his allies squandering political money and the public’s patience. Since 1960, no Democrat has been elected president without carrying Wisconsin.

Speaking of election year politics, Jonathan Adler asks a provocative question, Can the GOP be Anti-EPA and Pro-Environment:

Most of the GOP’s Presidential hopefuls have been savage in their criticism of the Environmental Protection Agency (EPA). Indeed, some have called for the agency to be dismantled.  Could this possibly be a good idea?  I’m all for criticizing the inefficiency and ineffectiveness of federal environmental regulation — I’ve certainly done my share — but the agency is not about to disappear, no matter who is elected President, nor would simply closing the agency down be a good idea.

The NYT’s latest “Room for Debate” poses the question: “What if Republicans Closed the EPA.” Here’s my contribution.

It’s worth following the “my contribution” link for more. Also on the policy front, check out Richard Epstein’s latest contribution How is Warren Buffett Like the Pope?

A successful and sustainable political order requires stable legal and economic policies that reward innovation, spur growth, and maximize the ability of rich and poor alike to enter into voluntary arrangements. Limited government, low rates of taxation, and strong property rights are the guiding principles.

Unfortunately, many spiritual and economic leaders are working overtime to push social policy in the exact opposite direction. At the top of the list are two prominent figures: Pope Benedict XVI and financier Warren Buffett.

* * *

Denouncing those who put ‘profits before people’ may stir the masses, but it is a wickedly deformed foundation for social policy. Profits, like losses, do not exist in the abstract. Corporations, as such, do not experience gains or losses. Those gains and losses are passed on to real people, like shareholders, consumers, workers, and suppliers. It is possible to imagine a world without profits. Yet the disappearance of profits means that investors will be unable to realize a return on either their capital or labor. Structure a system that puts people before profits, and both capital and labor will dry up. The scarcity of private investment capital will force the public sector to first raise and allocate capital and labor, though it has no idea how these resources should be deployed to help the people, writ large. A set of ill-conceived public investments will not provide useful goods and services for consumers (who are, after all, people), nor will it provide sustainable wages for workers (who are also people). Poor investment decisions will lead to a massive constriction in social output that harms all people equally.

The proper response to these difficulties is to treat profits as an accurate measure of the cost of capital, rewarded to those individuals and firms who supply some desirable mix of goods, services, and jobs that people, acting individually and not collectively, want for themselves. The genius of Adam Smith, whose musings on the invisible hand are too often derided, was to realize that private markets (supported, to be sure, by suitable public infrastructure) will do better than a command and control system in satisfying the individual’s wants and needs.

Reason.TV’s latest offering will make your blood boil if you have any respect for private property rights (click here to view in YouTube):

New Mexico

If you haven’t seen it yet, check out Ellis Wyatt’s post earlier this week explaining Why We Hate Lawyers. Errors of Enchantment, as always, has analysis worth checking out.

Related Posts:

  • No Related Posts
Categories: 2012 Election, Economy, Health Care, National Politics, NM Politics, SCOTUS
30
Jun 2011

Publius Daily Digest

By 3 Comments

National

Yesterday’s ObamaCare ruling out of the Sixth Circuit is major news. To parse the legal analysis and implications, I often turn to the good professors over at the Volokh Conspiracy, and they are on fire about this one. First, Orin Kerr notes the importance of the opinion’s author, Judge Jeffrey Sutton:

Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today’s opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.

I think Judge Sutton’s separate opinion is excellent, but then it’s easy for me to say: Judge Sutton’s views closely match what I’ve been saying here and elsewhere for a long time, so maybe this just proves once again that brilliant people agree with me.

Read the rest for an excerpt of the opinion. Ilya Somin has several related posts. In his first, he notes some not-so-great implications of Sutton’s approach:

Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.

The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. This is certainly true of failures to purchase broccoli, failures to purchase cars, failure to by a movie ticket, and so on. Even failure to engage in noncommercial activity nearly always has such effects. For example, a mandate requiring people to eat healthy food and exercise every day can be justified on the grounds that it would increase economic productivity and also increase the demand for healthy food products and gym memberships. The district court rulings in favor of the mandate all embraced some version of the “health care is special” argument [or at least the argument that not purchasing health insurance is “economic activity”] in order to avoid this slippery slope problem (albeit, unsuccessfully, in my view). By contrast, Martin and Sutton take us all the way to the bottom of the hill in one fell swoop.

In a later post, Somin discusses facial vs. as-applied challenges, a discussion taken up in a separate post by Jonathan Adler. Kerr and Somin also exchange posts on  the presumption of constitutionality legal issue. Certainly as the constitutionality of ObamaCare continues to percolate, these issued will be rehashed a lot.

UPDATE: New Volokh post by Randy Barnett that is helpful, and provides Eight Things to Know About Yesterday’s [Decision]. Definitely worth checking out.

Speaking of ObamaCare, Peter Suderman points out that it Continues to Make Consultants Richer:

The law’s backers have long argued that the law would become popular just as soon as the public started to see its benefits. But more than a year after its passage, they’re still struggling to convincingly explain just what those benefits are. 

There is, however, one class of people to whom they probably don’t have to explain anything. It’s one of the few classes that’s already doing quite well off of the law’s existence: health policy consultants and lawyers—especially those advising state governments on how exactly to implement the law.

Campaign finance issues also continue to gain a lot of attention — and not just because of Monday’s SCOTUS decision. As Damon Root explains, Stephen Colbert’s attempt to lampoon the Citizens United decision has resulted (unintentionally) in all manner of hilarity:

Politico reports that Comedy Central host Stephen Colbert’s attempt to form a political action committee in order to lampoon the Supreme Court’s Citizens United decision has put campaign finance activists in anything but a laughing mood. Here’s the story from Politico‘s Kenneth Vogel:

“I think Colbert is trying to dramatize problems in the campaign finance world in the way that he dramatizes other things,” said longtime campaign finance reform advocate Fred Wertheimer, a longtime advocate for stricter campaign finance rules who is president of Democracy 21. “But nevertheless, the proposals here would potentially open gaping disclosure loopholes in the campaign finance laws.”

Wertheimer is so concerned about what Colbert is doing, in fact, that Democracy 21 has joined with the Campaign Legal Center, another advocacy group, to petition the FEC to reject his request because it could result in the “radical evisceration” of campaign finance rules.

If Colbert gets his way before the FEC, it could blur the lines between political money and media to an unprecedented extent.

Oops!

Here’s another way to look at it. Colbert’s stunt has unintentionally revealed the ridiculous nature of campaign finance regulations. As Steve Simpson and Paul Sherman of the Institute for Justice recently observed in The Wall Street Journal:

Campaign-finance laws are so complicated that few can navigate them successfully and speak during elections—which is what the First Amendment is supposed to protect. As the Supreme Court noted in Citizens United, federal laws have created “71 distinct entities” that “are subject to different rules for 33 different types of political speech.” The FEC has adopted 568 pages of regulations and thousands of pages of explanations and opinions on what the laws mean.” Legalese” doesn’t begin to describe this mess.

So what is someone who wants to speak during elections to do? If you’re Stephen Colbert, the answer is to instruct high-priced attorneys to plead your case with the FEC… How’s that for a punch line? Rich and successful television personality needs powerful corporate lawyers to convince the FEC to allow him to continue making fun of the Supreme Court. Hilarious.

Bishop Edward Little explained yesterday in Christianity Today that Ayn Rand Led Me to Christ:

Rand challenged me to reject sloppy thinking, to apply reason meticulously, not least when dealing with culturally mandated assumptions. But that very commitment to reason gave me tools that led, much to my surprise, to a critique of Objectivism itself. The unseen Reality to which Plato pointed made sense not simply as an alternative way of seeing the world, but also under the test of reason.

Indeed, that very test points to God himself. The order and complexity of creation, the fact, as Lewis notes in Mere Christianity, that there seems to be a moral law with a claim upon human beings (“right and wrong as a clue to the meaning of the universe,” he calls it), all stand upon the foundation of the firm application of reason. Rigorous thought can set the stage for faith and demonstrate the reasonableness of the Christian claim that Jesus Christ is King of kings and Lord of lords. While reason cannot, unaided, present the fullness of Christian truth, it can support and undergird it.

Ann Coulter’s latest book is out and here’s a related video:

New Mexico

Errors of Enchantment points us to a new study on economic rankings:

Overall, New Mexico ranks 43rd which is consistent with the other rankings. New Mexico performs best (24th) on Quality of Life on the CNBC report and performs worst (46th) on Business Friendliness. Not surprisingly, Texas performs highly, ranking second to Virginia on the CNBC ranking).

In other news, Johnson and Romney are apparently the best GOP candidates in NM. For those GOP members who, you know, actually care about things like limited government (this, by the way, being the primary tenet of the GOP platform) are not the ones who support Romney. Just so you know.

Related Posts:

  • No Related Posts
Categories: 2012 Election, Budget, Health Care, National Politics, NM Politics, SCOTUS
14
Jun 2011

Publius Daily Digest

By Leave a Comment

 

National

A lot of stuff going on yesterday! As I noted, a federal judge in San Francisco heard argument in the challenge to Judge Vaughn Walker’s ruling in CA Prop 8 case. SCOTUSblog’s Lyle Denniston has a summary of the hearing and notes the ruling could come as early as today:

A federal judge in San Francisco, closing a lengthy hearing on Monday on a plea that he wipe out another judge’s decision striking down California’s ban on same-sex marriage, vowed to issue a prompt decision, perhaps within 24 hours.  Chief District Judge James Ware seemed troubled over what standard he should use, and what precedent he might be setting, as he prepared to rule on whether to nullify that decision against Proposition 8.  He has been asked to do so on the premise that District Judge Vaughn R. Walker, the trial judge, should have disqualified himself altogether from trying the case.

In related news, the WSJ Law Blog tells us the Tide Turns in Favor of Gay Marriage and Adoptions.

Also yesterday, seven GOPers met in New Hampshire for a debate. Peter Suderman was not impressed:

It could’ve been worse. Maybe. 

Mitt Romney. Tim Pawlenty. Newt Gingrich. Michelle Bachmann. Rick Santorum. Herman Cain. Ron Paul. Earlier tonight, the GOP’s presidential wannabes took the stage in New Hampshire for a debate amongst Republican presidential hopefuls. Moderator John King audibly mumbled and grunted through their answers, as if attempting to manually punctuate the candidates’ sentences for them. Occasionally, he stopped to ask individual candidates to choose between two competing bits of inane pop-culture trivia (iPhone or Blackberry? Conan or Leno?) in a game he called “This Or That.”

Read Suderman’s full review. In today’s Political Diary, John Fund analyzed the debate as well:

There were three winners from last night’s GOP presidential debate in New Hampshire. Mitt Romney skated through the two-hour event with only superficial nicks to his frontrunner status. Michele Bachmann, the Minnesota congresswoman, performed well and stole headlines by announcing she was entering the race during her first debate answer. The third winner was Texas Gov. Rick Perry, who’s considering a run. If nothing else, last night’s debate demonstrated that there is still no clear alternative to Mr. Romney who has the loyalty of the party’s grass roots.

Mr. Romney knows he has the money, name ID and establishment support that normally spells success in GOP primaries, which tend to reward candidates who have been around the presidential track before. All he has to do during the GOP debates is play possum — appear affable, show he can throw some zingers against President Obama and not directly antagonize his rivals. His explanation of why he embraced a variation of Mr. Obama’s health-care plan during his tenure as governor of Massachusetts is strained and incomplete, but it will work unless another candidate makes Mr. Romney’s heresy a signature issue.

What especially pleased the Romney camp last night was that it looks as if the Iowa caucuses may be a showdown between two politicians from neighboring Minnesota — Mr. Pawlenty and Ms. Bachmann. Mr. Romney is downplaying his involvement in Iowa by skipping the August straw poll and minimizing the importance of the January caucuses. Instead, he will focus on New Hampshire, the first primary, where he holds a commanding lead and will count on nobody coming out of Iowa with enough momentum to catch on. The more debates that take place without major headlines, the better it is for Mr. Romney.

Paul Gigot also weighed in:

John Fund’s take on the candidates in Monday night’s Republican presidential debate seems about right, though I’d add that all the candidates were losers in one respect — the trivial nature of the debate. Why did they agree to those terrible, demeaning ground rules?

Candidates naturally tend to run on, but 30 seconds is barely enough time to make a single, substantive point, much less to answer the two questions that CNN moderator John King asked of Tim Pawlenty on one occasion. Much was made of Mr. Pawlenty’s failure to challenge Mitt Romney on health care, and rightly so. It was a missed opportunity coming a day after he had referred to “Obamney” care. You can’t offer a taunt like that and not expect to have to follow up at a debate the next day.

But what if Mr. Pawlenty had tried to respond with a substantive point? Mr. King would have been standing, audibly off camera, burbling for the former Minnesota governor to finish up so Mr. King could move on to some unrelated subject. There was no debate on the individual mandate, nothing at all on the Massachusetts experience or health care more broadly. Voters need to see which Republican candidate can handle the kind of arguments that President Obama will throw at them, and we learned little on that score. Mr. King is a capable journalist, but on Monday he was all saddle and no horse.

The candidates are ultimately responsible for accepting these ground rules, but they should fire the consultants who let this happen. The format made them all look smaller and less informed than most of them are.

Shikha Dalmia has a compelling column explaining Why RyanCare beats ObamaCare in a knockout:

Let me say at the outset that I think both ObamaCare and RyanCare are a dog’s breakfast, a hodgepodge of unappetizing ideas that won’t cure the nation’s core health care problem—out-of-control spending—ObamaCare because it is reckless and RyanCare because it is feckless. 

That said, if both were implemented as written, RyanCare would be far less injurious to seniors than ObamaCare or, for that matter, doing nothing.

* * *

RyanCare is not perfect, but at least it won’t rob Grandma Millie to buy Cousin Joe coverage. It will allow all those who are 55 or older right now to stay in the current Medicare program. But come 2022, everyone presently younger would get an average of $15,000—the amount Medicare would spend per beneficiary—in “premium support” to use toward a health plan of his or her choice. Low-income and sick seniors could get up to another $8,000 or so.

Speaking of RyanCare and ObamaCare, what happened to Pawlenty and his new phrase ObamneyCare last night? Peter Suderman explains:

Going into the debate, conventional wisdom was that health care was the area where Pawlenty had the most leverage to draw clear distinctions between his position and Romney’s. So why didn’t he follow up on his earlier attacks? Perhaps he’s just a nice guy and, once he finally took the stage, decided he didn’t want to go through with it. Perhaps he had already decided he didn’t want to go there, and stumbled because of how much King pushed him. Perhaps he just froze and couldn’t remember whatever phrasing he’d prepared in advance.

All of those answers could be true. But it might also be the case that Pawlenty realized that in attacking Romney, he’d invite a discussion about his own prior interest in health care legislation driven by mandates and regulations. Politico has the details.

Although Gary Johnson was excluded from last night’s debate, he has now answered all the questions King asked the participants. Check out the video here:

New Mexico

Heath Haussamen today discussed the New Mexico Watchdog report analyzing political contributions made by the NM judiciary:

An analysis of political contributions by judges finds that “Richardson-era judges on average contributed far more to political campaigns in recent years than did judges enrobed during previous administrations.”

* * *

Of course, that doesn’t prove pay to play or necessarily indicate a widespread conspiracy like that hinted at by investigators involved in the bribery case against Third Judicial District Judge Mike Murphy.

But the report is a fascinating read. Check it out by clicking here.

Check out NM Watchdog’s coverage of the report:

One need look no further than online state and federal campaign-finance reporting sites to discover that recently appointed judges in New Mexico are “actively involved in the game,” as Martin put it. Members of the Richardson-era judiciary on average paid more than four times as much in political donations during recent years, compared to the recent political donations of long-time judges who remained through the Richardson era.

A review of 677 political contributions from the state’s judges found that those appointed during the Richardson era gave twice as often and in each contribution gave four times as much as those who remained on the bench from an earlier era. The difference follows partisan lines.

Of the 103 judges and justices the Watchdog examined, three out of four have made political contributions during years reflected in state and federal campaign-finance sites. Regardless of their political affiliation, most New Mexico judges have made campaign contributions in recent years, either before or after they were appointed to the bench. That 3-to-1 ratio of judges who contributed to political campaigns in recent years is consistent across party lines, among 88 Democrats and 15 Republican members of the judiciary alike. That’s where similarity ends.

Altogether, New Mexico’s Democratic judiciary has contributed 20 times as much to political causes in recent years as did their Republican counterparts. Democrat judges and justices gave a total of $221,111, compared to $10,325 in Republican contributions. The average Democrat contributor gave a total of $4.072 during the years reviewed, compared to the average Republican contributor’s total of $988.

Related Posts:

  • No Related Posts
Categories: 2012 Election, Gary Johnson, Health Care, National Politics, NM Politics
26
Aug 2010

The Commerce Clause

By Leave a Comment

One of the primary bases for challenging ObamaCare is the theory that the government is over-reaching beyond its authority granted in the constitution’s commerce clause. Below is an excellent video to explain the history of that clause and how it has led us to modern day congressional authority.

Wheat, Weed, and ObamaCare: How the Commerce Clause Made Congress All Powerful

Related Posts:

Categories: Health Care, SCOTUS Tags:
03
Aug 2010

Good Times With ObamaCare

By Leave a Comment

The constitutionality of Obama’s (current) crown jewel is even more in question today after a federal judge ruled yesterday (.pdf) that Virginia’s challenge to ObamaCare can move forward. Below are a few links providing coverage and analysis of the ruling.

In July 2009, GOP Congressman Kevin Brady of Texas released a baffling flow-chart depicting the implications of ObamaCare:

 (original release and larger version available here). On July 28, 2010, Congressman Brady updated his chart:

 (available for download in .pdf here). The situation is not improving as we all get to know what is in the bill–you know, now that they passed it and we can figure out what it included.

SCOTUSBlog has a helpful summary and analysis of yesterday’s ruling, as does WSJ’s Law Blog. The Volokh Conspiracy has two posts by Randy Barnett and Ilya Somin noting, among other things, that the ruling “vindicates the contention that this claim of power is unprecedented”:

 The guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.

Reason has a nice post: Obama Administration Doubles Down on ObamaCare Double Counting.

UPDATE: Ilya Shapiro has a nice post up at CATO’s blog about the ObamaCare lawsuits.

Related Posts:

Categories: Health Care, National Politics Tags: ,
28
May 2010

Devil in the Details: ObamaCare Version

By Leave a Comment

Professor William Jacobson pointed out earlier this week that one of the common phrases we now see in conjunction with ObamaCare is “little noticed”:

Yesterday I read an article in The NY Times about something unexpected in Obamacare, and one term jumped out at me (emphasis mine):

About one-third of employers subject to major requirements of the new health care law may face tax penalties because they offer health insurance that could be considered unaffordable to some employees, a new study says…. It suggests that a little-noticed provision of the law could affect far more employers than Congress had assumed.

That term, “little-noticed,” sure sounded familiar. It seems that we hear that term a lot.

Jacobson goes on to list numerous examples of “little noticed” provisions popping up, here are few examples:

  • “Tucked inside the huge health reform bill signed into law last week were many surprising and little-noticed provisions that will affect consumers in ways large and small.”
  • “Deep within the massive health-care overhaul legislation, a few little-noticed provisions have quietly reignited one of the bitterest debates in medicine: how to balance the right of doctors, nurses and other workers to refuse to provide services on moral or religious grounds with the right of patients to get care.”
  • “A little-noticed provision of the health legislation has rescued federal support for a controversial form of sex education: teaching youths to remain virgins until marriage.”
  • “A little-noticed provision in the health reform bill will shed significant light on the payments drug and device companies make to doctors and teaching hospitals in California and the rest of the nation.”
  • “A little-noticed provision in the new health care law may not only dramatically increase paperwork for small businesses, but also put them at a disadvantage against their larger competitors.”

    • I suppose that’s what we get for passing a bill in order to find out what it contains.

    In other ObamaCare news, Peter Suderman of Reason discusses the number of employers likely to drop health coverage given ObamaCare’s mandates.

    When the CBO estimated how many individuals would end up shifting away from their current employer-sponsored health care coverage under the PPACA, it found that 3 million workers would likely lose their current coverage. But it’s increasingly looking like that estimate could be low: A number of big employers are already considering dropping employee coverage, and a new study from former Congressional Budget Office director Douglas Holtz-Eaken and Cameron Smith suggests that, depending on the details of the insurance employers currently offer, the number could be far higher. According to their analysis, the law “provides strong incentives for employers–with the agreement of their employees–to drop employer-sponsored health insurance for as many as 35 million Americans.” If that happened, it would raise the bill’s cost from about a trillion dollars to an estimated $1.4 over the first decade.

    Dan Danner, President and CEO of the National Federation of Independent Business made a compelling case in the Wall Street Journal for the NFIB’s participation in a legal challenge to ObamaCare.

    President Obama and his allies in Congress pushed through a law that will dramatically raise health-care costs and increase the overall cost of doing business. What’s more, the federal mandate requiring that nearly all U.S. residents carry health insurance by 2014 seriously threatens our basic constitutional rights and individual freedoms.

    This is why the National Federation of Independent Business (NFIB), on behalf of small business owners nationwide, has joined the lawsuit with 20 states mounting a constitutional challenge to this devastating new health-care law.

    This law is death by a thousand cuts for small business owners. According to the Congressional Budget Office (CBO), the overhaul will cost about $115 billion more than first projected, bringing the total to more than $1 trillion. Small businesses will also now have to deal with an onslaught of new taxes and burdensome paperwork.

    More from NFIB on the lawsuit here.

    Related Posts:

    Categories: Economy, Health Care, National Politics Tags:
    18
    May 2010

    Obamacare Lawsuit – New Mexico Edition

    By Leave a Comment

    In mid-April, the NM House Republican Caucus sent a letter with all 25 caucus members signing on to urge Attorney General Gary King to join the lawsuit against Obamacare (the letter can be seen here). Enter the New Mexico TEA Party.

    So last Wednesday the New Mexico TEA Party folks, along with Heather Wilson, held a press conference (KOB covers the story) on the steps of the Capitol in Santa Fe. The purpose was to deliver roughly 5,000 petition signatures to the Attorney General informing him that New Mexicans don’t support Obamacare and urging him to join the 21 states and attorneys general in the lawsuit pushing to stop the takeover of roughly 20% of the American economy.

    Unfortunately, AG King misses the point entirely. From the KOB.com story:

    “Is it worth spending New Mexico tax payer dollars just to get my name on the case?” King asked, adding “…my understanding is, that’s one of the tenants of the Tea Party: ‘Let’s not spend money we don’t have to spend.’ “

    This just demonstrates how out of touch Gary King really is with the reality of the situation surrounding Obamacare. Recent projections put out by the NM Legislative Finance Committee (LFC) are predicting that the State of New Mexico will need to come up with at least an additional $600 million over 6 years to finance the massive expansion in state Medicaid that will occur once federal funding levels drop down to 90% starting in 2014.

    Not only that, but when the federal Medicaid stimulus funding – American Reinvestment and Recovery Act (ARRA) dollars – drops out at the end of State Fiscal Year 2011, we’re beginning the backslide to major troubles. Just to maintain the current base level of funding, New Mexico will have to find an addtional $320 million or so per year. If the state decides they want to expand further they’ll have to come up with another big chunk of change.

    So where does that leave us? Between ARRA funds dropping out and the expansion of Medicaid in New Mexico with Obamacare, we’ll be close to $1 billion in the hole coming up, or roughly 20% of our entire state budget. The taxpayers of this state are constantly being lied to about how far in debt the state really is, and the hole could very well be much deeper once Richardson/Denish leaves office and a new governor starts to de-construct the books and find where the dead bodies are buried.

    On one point I do agree with Gary King: lawsuits are very expensive and we shouldn’t be wasting taxpayer dollars. The agreement ends there. It would be much more advantageous for the state to spend a few million dollars to stop Obamacare instead of going into debt to the tune of nearly a billion dollars to expand and perpetuate the welfare state in New Mexico.

    Related Posts:

    • No Related Posts
    Categories: Health Care, NM Politics, Uncategorized
    02
    Apr 2010

    Here Come the Lawyers, Part 3

    By Leave a Comment

    In the latest update to my earlier post describing the three initial lawsuits challenging Obamacare, and my follow up post about a fourth lawsuit, I wanted to provide access to some analysis that I haven’t had time to engage in myself.

    Ilya Somin has a great post analyzing the questions of standing and ripeness for the lawsuits. As Somin explains,

    The really important issues raised by these suits have to do with federalism, the Commerce Clause, and Congress’ power to tax. However, administration lawyers will probably try to get the lawsuits dismissed on procedural grounds of standing and ripeness. 

    Todd Zywicki has a follow-up to Ilya’s post discussing Virginia Attorney General Ken Cuccinelli’s recent comments on the issue’s of standing and ripeness (Cuccinelli has brought his own suit on VA’s behalf against Obamacare, choosing not to join the FL suit with 13 other states).

    With respect to standing, AG Cuccinelli argues that there is no real issue for the Virginia case–the Virginia General Assembly has passed a law that expressly provides that no resident of Virginia can be compelled to purchase health insurance.  The federal law creates an express conflict with the Virginia law.  If the federal law is valid then the Supremacy Clause controls.  If it is not valid, then the state law controls.

    * * *

    On ripeness, Cuccinelli indicated that there are financial expenditures that Virginia is required to make today in preparation for the expected implementation of the law in the future.  As a result, even though most of the financial burden doesn’t arise until then, he argues that the issue is ripe today.

    Randy Barnett continues to provide commentary on his analysis that Obamacare is unconstitutional. Watch his latest video here.

    Finally, there are a number of folks discussing the fallacy promoted among liberal academics that there is a consensus in academia finding Obamacare constitutional. Read more on that here, here, and here.

    UPDATE: I forgot to include this helpful Wall Street Journal article discussing the constitutional arguments:

    All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I. The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can’t Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?

    The mandate did not pose the same constitutional problems when Mitt Romney succeeded in passing one in Massachusetts, because state governments have police powers and often wider plenary authority under their constitutions than does the federal government. Florida’s constitution also has a privacy clause that underscores the strong state interest in opposing Congress’s health-care intrusion.

    As for the assertion that the mandate is really a tax, this is an attempt at legal finesse. The mandate is the legal requirement to buy a certain product, while the tax is the means of enforcement. This is not a true income or even excise tax. Congress cannot, merely by invoking a tax, blow up the Framers’ attempt to restrain government under Article I.

    The states also have a strong case with their claim that ObamaCare upsets the Constitution’s federalist framework by converting the states into arms of the federal government. The bill requires states to spend billions of dollars to rearrange their health-care markets and vastly expands who can enroll in Medicaid, whether or not states can afford it.

    UPDATE 2: CATO’s Bob Levy had a great podcast on Friday:

    Related Posts:

    Categories: Health Care Tags:
    01
    Apr 2010

    Tipping Point

    By Leave a Comment

    In the “signs of the apocalypse” file—also known as “reasons the health care bill passed Congress” file—we have this gem courtesy of Georgia Democrat Hank Johnson. In a discussion about possible military build up in Guam, he expresses his fear that the island could well “tip over and capsize” (about 1:20 into this video):

    UPDATE: So, apparently, Congressman Johnson has Hepatitis-C. According to an Atlanta Journal Constitution article from December 7,

    The Lithonia Democrat’s already-thin frame has shed 30 pounds in the past year. His speech is slower than ever, and he regularly gets lost in thought in the middle of a discussion. He is easily fatigued and often impatient and irritable.

    * * *

    He was officially declared free of the virus in January, but it has ravaged his liver, resulted in thyroid problems and other health issues, including depression, for which he’s also being treated. To keep the disease in remission, Johnson is going through an experimental treatment that he said has been the worst part so far.

    “I am weaker than I ever have been,” Johnson, 55, said in his Capitol Hill office.

    This is, of course, sad news and I’m sorry for his suffering. But if either his condition or his experimental medication caused him to think–and comment on the record during a televised congressional hearing–that the island of Guam could capsize…perhaps it’s time to think about retirement.

    Related Posts:

    • No Related Posts
    Categories: Health Care, National Politics Tags: ,
    30
    Mar 2010

    Here Come the Lawyers, Part 2

    By 1 Comment

    In an earlier post, I provided some links to the early information about lawsuits challenging Obamacare’s constitutionality.

    Well, another suit has popped up and it’s an interesting one because the plaintiffs are a bunch of doctors and it appears this is the first medical society to weigh in against Obamacare in the courts. The Association of American Physicians and Surgeons filed its lawsuit on Friday challenging the health care bill on several constitutional grounds. AAPS explains,

    The [Patient Protection and Affordable Care Act (PPACA)] requires most Americans to buy government-approved insurance starting in 2014, or face stiff penalties. Insurance company executives will be enriched by this requirement, but it violates the Fifth Amendment protection against the government forcing one person to pay cash to another. AAPS is the first to assert this important constitutional claim.

    The PPACA also violates the Tenth Amendment, the Commerce Clause, and the provisions authorizing taxation. The Taxing and Spending power cannot be invoked, as the premiums go to private insurance companies. The traditional sovereignty of the States over the practice of medicine is destroyed by the PPACA.

    The complaint is available here.

    In other Obamacare lawsuit coverage, David Kopel posted a link to his podcast with Colorado’s AG, explaining the main lawsuit. Also, Randy Barnett discussed the New York Times forum on Obamacare’s constitutionality.

    Ilya Somin also had a helpful initial post on the lawsuits I referenced in my first post.

    Related Posts:

    Categories: Health Care, National Politics Tags: ,
    « Older Posts
    Newer Posts »