Freedom Line Blog

It’s no secret that Chief Justice John Roberts’ opinion in the ObamaCare case last week is already helping President Barack Obama on the campaign trail by giving the unpopular law constitutional legitimacy.

But Fox News reports that Roberts’s opinion may also help the President make another boast: ObamaCare is a job creator.

Much bigger than the mandate itself are the insurance exchanges that will administer $681 billion in subsidies over 10 years, which will require a lot of new federal workers at the IRS and health department.

“They are asking for several hundred new employees,” Dorn said. “You have rules you need to write and you need lawyers, so there are lots of things you need to do when you are standing up a new enterprise.”

For some, though, the bottom line is clear and troubling: The federal government is about to assume massive new powers.

According to James Capretta of the Ethics and Public Policy Center, federal powers will include designing insurance plans, telling people where they can go for coverage and how much insurers are allowed to charge.

“Really, how doctors and hospitals are supposed to practice medicine,” he said.

The health department is still writing regulations, which can be controversial in and of themselves. One already written, for instance, requires insurance plans to cover contraception. It has been legally challenged by Catholic groups in a case likely to end up in the Supreme Court.

So, there are likely to be many more chapters to go in the saga of Obama’s health care law

And none of it would be possible without the Chief Justice.

In one of my other incarnations I teach public policy and legal interpretation at Pepperdine University’s School of Public Policy.  One of the cases we discuss every fall is Massachusetts v. EPA, a controversial standing decision by the Supreme Court that allowed the Bay State and others to bend the rules for suing the EPA for not regulating greenhouse gases.

This was in the halcyon days of the George W. Bush Administration when conservative EPA appointees had the temerity to point out that the Clean Air Act gave the agency no authorization to interpret carbon dioxide as pollution to be regulated.

No bother, said then-Justice John Paul Stevens in his majority opinion that included Justice Anthony Kennedy, author of last week’s immigration decision in Arizona v. U.S.  In the EPA case, Justice Stevens said that states like Massachusetts are due “special solicitude” when litigating at the federal bar, especially when their sovereignty is threatened by eroding coastlines thanks to future speculated rises in sea levels from global warming.  (I’ll bet Arizona Governor Jan Brewer would have liked Justice Kennedy to remember her state’s “special solicitude” regarding the integrity of its borders.)

Now we’ve got a different Administration and a different outcome.  The Obama EPA was all too happy to make the carbon dioxide endangerment finding the Supreme Court made possible.  The energy industry sued claiming EPA lacked jurisdiction, and last Tuesday the D.C. Court of Appeals upheld EPA’s unenumerated power to redefine pollution.

Unless the Supreme Court intervenes and overrules the D.C. Circuit, the fight will now move to how EPA uses its newfound regulatory power.  What are the likely outcomes?  The New York Times summarizes two of the main arguments:

“This decision ensures that a regulatory approach to emissions cuts will take place, whether or not Congress acts legislatively,” said Paul Bledsoe, a senior adviser at the Bipartisan Policy Center, a nonprofit group that specializes in energy and environmental issues. “The question is, does the industry push Congress to develop a more efficient, less costly approach now that regulation is inevitable?”

But Representative Fred Upton, the Michigan Republican who is chairman of the House Energy and Commerce Committee, said that Congress’s refusal to approve greenhouse gas limits constituted a decision and that lawmakers should act now to reverse the E.P.A. emissions rules. Carbon regulation “threatens to drive energy prices higher, destroy jobs and hamstring our economic recovery,” he said.

So, an overweening federal agency emboldened by implied powers of regulatory control is going to act “whether or not Congress acts legislatively”?  My sympathies are with Chairman Upton’s point that no decision is a decision, but that’s clearly not a roadblock to activist bureaucrats with case precedent on their side.  It’s time for Congress to get back in the game and rein in the administrative state with clear and direct commands.  They know how to write those kinds of statutes.  It’s time they did more of it.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

There’s a lot to say about Chief Justice John Roberts’ opinion rewriting ObamaCare’s individual mandate as a tax in order to save the law from being ruled unconstitutional.  One of the best – and most succinct – analyses comes from the CATO Institute’s Michael F. Cannon:

The Supreme Court ruled that ObamaCare’s individual mandate is not constitutional under the Commerce Power, which was how Congress framed the mandate to avoid a political backlash from calling it a tax. Congress and the president swore up and down that the mandate was not a tax. Yet the Court upheld the mandate as a valid use of that disavowed taxing power. What Congress said the individual mandate is, the Court said is not constitutional. What Congress said the mandate is not, the Court ruled is constitutional. Everybody got that?

Where does that leave us?

The Supreme Court just enacted a law that Congress never would have passed.

The Court just told Congress it is okay to lie to the people to avoid political accountability.

Though we learned with the Arizona illegal immigration decision that tough questioning from justices does not mean a Supreme Court slap-down – indeed, Justice Sotomayor was particularly hard on the feds’ position but ultimately upheld its arguments, as did Justice Kennedy and Chief Justice Roberts – I’m betting (with Quin’s money, of course) that Justice Scalia’s quip about the page length of ObamaCare provides a window into tomorrow’s outcome.

During oral argument Scalia brushed aside the suggestion that should the Court rule the individual mandate unconstitutional it would need to reconstruct the law by piecing together the parts that are still valid.  Scalia’s response was, “You want us to go through 2,700 pages?  Is this not totally unrealistic… to go through one by one and decide each one?”

I think the Court will strike down the individual mandate because it forces Americans to participate in commerce, an unprecedented power grab by the federal government.  (Ironically, had the Obama Administration framed the penalty for not buying insurance as a tax, most constitutional scholars on the right and left agree the mandate would survive.  However, the reason government lawyers haven’t framed it that way is because Obama and the Democrats in Congress repeatedly and explicitly said no one’s taxes would go up if ObamaCare passed, meaning that calling the mandate a tax during litigation would likely make the entire law even less popular with the public.)

Because of all this, I think the Court will do everyone a favor by holding the individual mandate unconstitutional and finding that the rest of the law is not severable from it.  (Which is easy to do since in the rush of ramming the bill around the normal legislative process Congressional Democrats forgot to put in a simple severance clause that would let the rest of the law stand if the mandate falls.)

Thus, everyone gets a blank slate and the Court is not patching together a form of the health reform law that no one voted on or signed.

For what it’s worth, there’s my (or rather Quin’s) two cents.

ABC News put together a helpful graphic showing different scenarios of how the Supreme Court might rule.

A decision is expected sometime in the next two weeks.

In a presidential election year like 2012, it’s easy for national issues to crowd out state and local concerns at the ballot box.  But thanks to Obamacare’s costly mandate on states to create health insurance exchanges, fiscal conservatives running for state offices can easily make opposition to more government a central plank in their campaign platform.

According to Cato Institute scholar Michael F. Cannon, outside of the U.S. Supreme Court’s potentially striking down Obamacare’s individual mandate, the most important health policy battle to be waged is state government opposition to creating Obamacare’s state-based health insurance exchanges.

As I’ve written previously these exchanges are a subtle way to coerce states into spending millions of dollars to set-up a government-controlled, taxpayer-subsidized “market” for health insurance.  Thereafter, when Obama’s bureaucrats at HHS decide the state version isn’t performing exactly the way they want, Obamacare grants HHS the power to take over any state’s exchange and run it from Washington, D.C.  Thus, the bait-and-switch is yet another way for Obamacare to hide its impact on the federal budget deficit by shoving some of its start-up costs onto the states.

Cato’s Cannon outlines a different strategy, with talking points that to me seem ready-made for a state campaigner’s website:

Jobs. Refusing to create an exchange will block Obamacare from imposing a tax on employers whose health benefits do not meet the federal government’s definition of “essential” coverage. That tax can run as high as $3,000 per employee. A state that refuses to create an exchange will spare its employers from that tax, and will therefore enable them to create more jobs.

Religious freedom. In blocking that employer tax, state officials would likewise block Obamacare’s effort to force religious employers to provide coverage for services they find immoral — like contraception, pharmaceutical abortions, and sterilization.

The federal debt. Refusing to create exchanges would also reduce the federal debt, because it would prevent the Obama administration from doling out billions of dollars in subsidies to private insurance companies.

The U.S. Constitution. The Obama administration has indicated that it might try to tax employers and hand out those subsidies anyway — even in states that don’t create an exchange, and even though neither Obamacare nor any other federal law gives it the power to do so. If that happens, the fact that a state has refused to create an exchange would give every large employer in the state — including the state government itself — the ability to go to court to block the administration’s attempt to usurp Congress’s legislative powers.

A lower state tax burden. States that opt to create an exchange can expect to pay anywhere from $10 million to $100 million per year to run it. But if states refuse, Obamacare says the federal government must pay to create one. Why should states pay for something that the federal government is giving away?

Bye-bye, Obamacare. That is, if the feds can create an exchange at all. The Obama administration has admitted it doesn’t have the money — and good luck getting any such funding through the GOP-controlled House. Moreover, without state-run exchanges, the feds can’t subsidize private insurance companies. That by itself could cause Obamacare to collapse.

There is no reason a state should agree to spend millions of dollars laying the groundwork for a federal takeover of health care.  Fiscal conservatives running for office this cycle should articulate this argument well and often.

Politico has a great article grappling with the question, What happens to all the agencies and personnel funded by ObamaCare if the Supreme Court rules the health care reform bill unconstitutional?

Unless the Court spells out in great detail how to unwind a bureaucratic behemoth that has already created 500 new positions in 2 new agencies – with another 3,000 new jobs in the Office of the Health and Human Services Secretary alone – it seems the answer is, no one knows.

Realistically, the issue will boil down to which party has control of the public’s purse:

“The issue you’re looking at here is cash flow,” said Jim Dyer, a former Republican staff director of the House Appropriations Committee, who is now a principal at the Podesta Group.

The federal spending pipeline is complex and secretaries have a lot of tricks up their sleeves. Even if the courts strike down the health reform law, Dyer said, the onus will still be on Congress to fully shut off the tap.

“If I’m an appropriator, … I would want to draw a hard line in the sand,” he said. The committee could immediately demand HHS stop its spending if the court strikes down the law so that it can exert tight control over how it winds the program down. Exactly how that would shake out if a Republican-controlled House committee wanted HHS to stop the spending but a Democratic-controlled Senate did not would be part of the uncertain political terrain.”

Here’s one more reason to ensure that next year’s budget process is dominated by fiscal conservatives.

Just days away from the U.S. Supreme Court oral arguments in the seminal ObamaCare case, Townhall.com Political Editor Guy Benson discusses recent polls showing the depth of American opposition to the legislation and alternatives that should be considered.

Listen to the interview here.

In this week’s Freedom Minute, CFIF’s Renee Giachino discusses the U.S. Supreme Court’s decision to hear the lawsuits challenging the constitutionality of ObamaCare and raises questions about Justice Elena Kagan’s apparent bias in favor of the health care reform law. 

In an interview with CFIF, Ken Blackwell, American Civil Rights Union Senior Fellow and contributing editor for Townhall.com, discusses the potential for an Israeli strike against Iran, the strengths and weaknesses of GOP presidential candidates and the U.S. Supreme Court’s decision to review ObamaCare.

Listen to the interview here.

In an interview with CFIF, Sally Pipes, President, CEO, and Taube Fellow in Health Care Studies at the Pacific Research Institute, discusses why the American Medical Association’s support of ObamaCare undermines its mission to “help doctors help patients” and what it may mean to the 2012 presidential race if the U.S. Supreme Court rules on the constitutionality of ObamaCare prior to the election.

Listen to the interview here.

In an interview with CFIF, Anna Rittgers, senior fellow at the Independent Women’s Forum, discusses the recent decision by the U.S. Court of Appeals for the 11th Circuit, which struck down as unconstitutional the individual mandate in the 2010 Affordable Care Act.  Rittgers also discusses the anticipated next step for the case as it makes its way to the U.S. Supreme Court.

Listen to the interview here.

In an interview with CFIF, Megan Brown, a Litigation and Appellate partner at Wiley Rein LLP in Washington, D.C., discusses the highly publicized Walmart Sex Bias lawsuit and other pending cases before the Supreme Court of the United States.

Listen to the interview here.

Interview with Megan Brown, a Litigation and Appellate attorney at Wiley Rein LLP in Washington, D.C., on the opening of the U.S. Supreme Court’s October 2010 Term.

Listen to the interview here.

It’s the first Monday in October which means that the Supreme Court of the United States (SCOTUS) is back in session.  Uber-liberal constitutional law expert Erwin Chemerinsky is not celebrating the occasion.  Instead, he bemoans the conservative ‘take-over’ of the court and sites as evidence the fact that Republican presidents from Nixon to Bush II made a total of 12 appointments to SCOTUS while only two Democrat nominees made it onto the bench.  (Bill Clinton appointed Ruth Bader Ginsburg and Stephen Breyer, while Jimmy Carter was faced with no vacancies during his term.)

Chemerinsky, the dean of UC Irvine’s law school, singles out 4 of the 12 appointments (John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) as proof of the conservative ascendency.  But for conservatives a success rate of 33% is hardly a victory; especially when considering that both of President Barack Obama’s SCOTUS appointments replaced Republican nominees, yet didn’t alter the conservative-liberal voting patterns.  Gerald Ford appointed John Paul Stevens, a man who ended his tenure as the leader o the court’s liberal bloc.  Bush I appointed David Souter, a justice who voted in lock-step with Stevens and the court’s other liberals.

True, Bush I gave us Thomas, and Reagan hit a home run with Scalia, but Reagan also put soul-crushing moderates like Sandra Day O’Connor and Anthony Kennedy on the bench; two people who repeatedly frustrated conservatives on issues across the political spectrum.  Ironically, at least to some, is the SCOTUS legacy of Bush II who made solid conservative appointments with Roberts and Alito.  That these two often team with Thomas and Scalia (and manage to cajole Kennedy to heed his better angels) is more the result of a historical accident than a carefully executed strategy.

Imagine the kind of country we could be enjoying had Republican presidents from Nixon to Bush I had a conservative justice success rate of 66% rather than 33%.  As it is, since at least the Eisenhower Administration (Earl Warren, William Brennan) liberals like Chemerinsky have benefited handsomely from liberal appointments by supposedly conservative GOP presidents.

Earlier today, the Senate began its floor debate on the confirmation of Elena Kagan to serve a lifetime appointment on the United States Supreme Court.  Judiciary Committee Ranking Republican Jeff Sessions did one heck of a bang up job laying out the case against her confirmation during his opening statement.

Sessions stated that Kagan’s record leaves “no doubt what kind of judge she would be:  An activist, liberal, progressive, politically-minded judge who would not be happy simply to decide cases, but will seek to advance her causes under the guise of judging.”

Watch Senator Sessions’ opening remarks, which highlight everything you need to know about Elena Kagan, in their entirety below.

In an interview with CFIF, Megan Brown, a Litigation and Appellate attorney at Washington, D.C.-based Wiley Rein LLP, discusses the U.S. Supreme Court’s recent term and Supreme Court nominee Elena Kagan’s confirmation hearings.

Listen to the interview here.

As the confirmation hearings for Elena Kagan, President Obama’s nominee for the U.S. Supreme Court,  proceed, Pulitzer Prize-winning cartoonist Michael Ramirez sums up her testimony before the Senate Judiciary Committee.

Retirement must be a wonderful thing for former Supreme Court Justice David Souter.  Unburdened by the consequences of deciding cases, the judicial version of a RINO (Republican In Nomination Only) is telling Americans what he wants them to hear.  In essence, judging isn’t easy.  Thus, demands to restrict a judge’s attention to the text of a statute or the Constitution itself when deciding a dispute are pointless because a written law can’t contemplate every situation.  Sometimes a judge has to be a gap-filler.

Souter’s recent commencement address at Harvard is worth the read to get a sense of a pointed critique of Justice Antonin Scalia’s countervailing view of textual interpretation (A Matter of Interpretation).  Ironically, the main gripe with Souter’s speech isn’t its substance, but its timing.  Even Dahlia Lithwick of Slate stammers to explain a reason for waiting until after serving 19 years on the Supreme Court to make a cogent counterpoint.

Are the Justices overworked?  They do, after all, get summers off.  Of the current crop, only Justices Steven Breyer (Active Liberty) and Scalia have written books explaining their methods of interpretation – and Scalia’s is an edited version of lectures he gave.  Since Souter didn’t take the time to write a systematic approach to judging while judging, perhaps he’ll use some of his self-imposed availability to give future judges a sense of how to wrestle with the complexities of the job.

Given Souter’s temperament, such a book may be published posthumously.