Archive for June, 2012
June 29th, 2012 at 3:32 pm
And George Will Nods… to Timothy
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On the heels of Homer’s nod to Quin below, George Will chimes in on yesterday’s Supreme Court ObamaCare decision with a nod to my broader point.  Namely, that the Court’s commerce clause ruling constitutes a significant new precedent in constitutional jurisprudence.  Entitled “Conservatives’ Long-Term Victory,” Will laments that ObamaCare’s individual mandate managed to survive, but asserts that conservatives won a “substantial victory”:

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul.  This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers.  By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise:  Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, ‘the enumeration presupposes something not enumerated.'”

Ultimately, Will notes, ObamaCare’s fate “rests on public opinion.”  Nevertheless, we are in agreement that yesterday’s lasting achievements should not be overlooked or minimized by understandably disappointed conservatives and libertarians.

June 29th, 2012 at 2:20 pm
Where Government Works
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Last weekend, the New York Times ran a must-read piece on the city of Sandy Springs, Georgia, an Atlanta suburb of nearly 100,000 residents that has managed to privatize the overwhelming majority of local government services — and is reaping incredible benefits as a result (another city with similar policies — Weston, Florida — was recently profiled in Governing).

Sandy Springs doesn’t have to worry about out of control public pensions, spiraling debt, or restive unions. The reason? It doesn’t have any of them.

Of course, this being the New York Times, their reporter, David Segal, might as well have been dispatched to the surface of Mars. Failing to find much in the way of practical drawbacks, he grasps for a moral failing, resulting in this unintentionally hilarious passage:

Hovering around the debate about privatization is a basic question: What is local government for? For years, one answer, at least implicitly, was “to provide steady jobs with good wages.” But that answer is losing its political tenability, says John D. Donahue of the John F. Kennedy School of Government at Harvard. “A lot of jobs in government are middle-class jobs that in the private sector are not middle-class jobs,” he says. “People aren’t willing to support conditions for public workers that they themselves no longer enjoy.”

In a way, what Sandy Springs and other newly incorporated towns have done harks back to a 19th-century notion of taxation, which was much less about cross-subsidies and much more about fee for service.

To which I say “it’s about damn time.” If local government was ever about “steady jobs with good wages,” it was a mistake. The purpose of government is to provide vital services to the citizenry that aren’t produced by a free market. That may produce “steady jobs with good wages,” but that’s an effect of the endeavor, not a cause for it. If public service isn’t the goal, then the whole project is simply a racket to employ one group of people at another group’s expense.

What has the New York Times and the Harvard faculty aghast is the notion that government ought to serve some useful purpose for the taxpayers and that its value is measured only by the extent to which it fills that charge. That the citizenry of places like Sandy Springs and Weston are beginning to realize that is a real source of optimism for the future of local government.

June 29th, 2012 at 1:48 pm
Thanks, Tim

With that clarification, we are, as usual, in almost complete agreement. Yea!

June 29th, 2012 at 1:26 pm
Homer Nods… to Quin
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“Homer Nods” is the heading under which James Taranto, one of the commentators whom I most admire, acknowledges an error in a preceding “Best of the Web Today.”

In that spirit, my commentary regarding the ObamaCare decision yesterday included the following paragraph:

It is beyond significant dispute that Obama and the Pelosi-Reid Congress could have passed ObamaCare and its individual mandate as a “tax.”  The text of Article I, Section 8 of the Constitution explicitly provides that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”  Thus, the federal government can tax and spend on behalf of almost anything it considers to advance the nation’s general welfare, even if its power to more crudely compel or prohibit actual behavior beyond that spending carrot is more limited.”

Below, Quin correctly notes an error in the first sentence.  Namely, his point that “taxing authority has never stretched so far.”

My initial sentence should have omitted the words “and its individual mandate,” and simply read, “It is beyond significant dispute that Obama and the Pelosi-Reid Congress could have passed ObamaCare as a ‘tax.'”  Although some libertarians and conservatives such as Walter Williams claim that Article I, Section 8’s authority to tax and spend for the general welfare are limited by the powers subsequently enumerated in that Section, that argument does not possess textual support.

Nevertheless, Quin is correct that taxing mere existence and inactivity as ObamaCare’s individual mandate does is unprecedented and unjust.  While Obama and the Pelosi-Reid Congress could have simply attempted to raise taxes more generally as a means to fund their monstrosity, yesterday’s decision pioneered new and unfortunate ground in allowing their particular individual mandate mechanism to survive.  I maintain that yesterday’s ruling with regard to the commerce clause limitation, not to mention the “Necessary and Proper Clause” and Medicaid rulings, make it a net win as a Constitutional matter.  Those were critical, groundbreaking limitations on federal power.   Quin’s observation, however, is quite correct.

June 29th, 2012 at 11:40 am
No, The Taxing Power Isn’t Infinitely Elastic

I hate to disagree with my friend Tim, with whom I almost always agree, but I think he is dead wrong (and the dissenting opinion provides ample evidence, much more eloquently than I, as to why) why he says:

It is beyond significant dispute that Obama and the Pelosi-Reid Congress could have passed ObamaCare and its individual mandate as a “tax.”  The text of Article I, Section 8 of the Constitution explicitly provides that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”  Thus, the federal government can tax and spend on behalf of almost anything it considers to advance the nation’s general welfare, even if its power to more crudely compel or prohibit actual behavior beyond that spending carrot is more limited.

Well, no. Not really.

The taxing power, as the dissent notes, NEVER EVER EVER has been construed to extend that far. The government can tax people; it can tax property; it can tax purchases or other activity; — but it CANNOT (or at least could not, until now) tax inactivity or the decision to remain inactive. Just as with the Commerce Clause argument, the same applies here: Under Roberts’ theory, now the government can impose a tax on you for NOT doing calisthenics in the morning, for NOT eating broccoli, for NOT buying a Chevy Volt, or for anything else it darn well pleases.

The taxing authority has never stretched so far.

And that leaves aside all the other facts at play here, such as that this isn’t a tax at all, but a penalty; that it isn’t even in the section of the bill devoted to revenue (thus indicating again that it is not a tax); and that it doesn’t operate like a tax because it is assessed in a way completely at odds with all definitions of a tax. (The dissent explains this well.)

Roberts bizzarrely conflates a tax “incentive” (an exemption from paying a tax otherwise generally levied) with a tax. He says giving a tax break for buying a home is meant to encourage home buying, so what’s the big deal about placing a tax on not purchasing health insurance in order to encourage the purchase of said insurance? Well, the key word is “not.” In the first instance, the tax already exists. It is a property tax. The property tax is reduced, though, if it is a primary homestead. But NOWHERE IS THERE A TAX ON NOT OWNING PROPERTY. Thus, it is an entirely different thing than imposing a tax on not purchasing insurance.

It’s an incredibly foolish comparison for Roberts to have made — but it is in keeping with the slipshod, hurried, almost desperate way he wrote the three pages on the taxing power, completely at odds with the careful exposition he made of the limits on the Commerce Clause.

This wasn’t a constitutional exposition at all; it was a politicized act of judicial legislating from the bench to create an entirely different law than the one passed by Congress and signed by the president.

June 29th, 2012 at 11:35 am
This Week’s Liberty Update
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Center For Individual Freedom - Liberty Update

This week’s edition of the Liberty Update, CFIF’s weekly e-newsletter, is out. Below is a summary of its contents:

Lee:  ObamaCare Takeaway: A Net Win Constitutionally
Ellis:  Hoyer Misfires With Fast and Furious Criticism
Senik:  What Aaron Sorkin Gets Wrong About America

Freedom Minute Video:  Celebrating the Red, White and Blue
Podcast:  The Real Bullies in America: DOJ and Teachers’ Unions
Jester’s Courtroom:  Lawsuit Against Fireworks Pops Up

Editorial Cartoons:  Latest Cartoons of Michael Ramirez
Quiz:  Question of the Week
Notable Quotes:  Quotes of the Week

If you are not already signed up to receive CFIF’s Liberty Update by e-mail, sign up here.

June 29th, 2012 at 8:54 am
Podcast – The Real Bullies in America: DOJ and Teachers’ Unions
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In an interview with CFIF, Sarah Lenti, Senior Policy Advisor for The State Government Leadership Foundation, discusses voter fraud, education reform and the real bullies in our schools – Teachers’ Unions.

Listen to the interview here.

June 29th, 2012 at 7:32 am
Follow CFIF on Twitter
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Don’t miss CFIF’s latest news, commentary and alerts in real time and help us double our Twitter followers in the next two weeks.

Follow us here.

June 29th, 2012 at 6:28 am
Ramirez Cartoon: I’m A Big Fat Liar
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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.

June 28th, 2012 at 3:44 pm
John Roberts’ Contortions

I discuss this bizarre decision here.

I further note that I was almost right in my final prediction, below.

Especially: “ I think this is going to be one of those horribly fractured decisions where observers have trouble making heads or tails of everything. I think there may even be concurrent pluralities rather than a simple majority on at least a couple of the questions presented to the court. In the end, though, I do — yes, I do — expect the mandate in this particular form, applied in this particular way, to be adjudged at least partially unconstitutional.”

Indeed, the MANDATE was found unconstitutional, but the penalty it carried, treated as a tax, was not. And on the Medicaid issue, there were indeed shifting pluralities rather than a single majority. So I was right on the style of the opinion — although not on the substance of just how the court would find a way to muck it up beyond ordinary understanding.

June 28th, 2012 at 2:02 pm
SCOTUS Does Obama’s, Congress’ Dirty Work

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.

June 28th, 2012 at 10:35 am
SCOTUS: ObamaCare’s Individual Mandate is Constitutional
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In a disappointing decision, the U.S. Supreme Court has upheld ObamaCare’s individual mandate forcing all Americans to buy health insurance as constitutional.  Chief Justice John Roberts joined the four liberal justices on the Court to rule that the mandate stands under Congress’ taxing authority.

June 27th, 2012 at 10:27 pm
I Predict a Muddled Semi-Victory Against ObamaCare’s Coercion

Okay, it’s time for me to weigh in, now that everybody else has so thoughtfully risen to my challenge to put their predictive skills on the line. I see we run the gamut from total victory against the whole law to a doleful prediction that the mandate will stand.

Well, count me in the mushy middle. After going back and forth and around and around on this subject for months, I just can’t tell where my own analysis — and my own wish for a defeat of ObamaCare — ends and my assessment of each of the justices’ proclivities begins.

But here’s what I have come up with: I think this is going to be one of those horribly fractured decisions where observers have trouble making heads or tails of everything. I think there may even be concurrent pluralities rather than a simple majority on at least a couple of the questions presented to the court. In the end, though, I do — yes, I do — expect the mandate in this particular form, applied in this particular way, to be adjudged at least partially unconstitutional. In other words, the court will leave open the possibility that such a mandate in theory could be within the federal government’s powers, but just not THIS mandate in this form. But I think a majority may not agree on what the remedy for this abuse is, and will come up with some Rube Goldberg way of punting the ultimate decision back to lower courts or to Congress.

Meanwhile, the challenge to the Medicaid provision will fail, 6-3.

If I am right, perhaps we should be thankful for even tiny victories. But I say: “Ugh!”

June 27th, 2012 at 5:28 pm
ObamaCare Prediction: Individual Mandate Not Categorically Overturned
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With an overabundance of subtle and contradictory points of evidence rendering a cold, rational prediction nearly impossible, mine is entirely intuitive.  Unfortunately, I have been disappointed too many times already in my lifetime to expect a good result.  Twenty years ago, for example, I was a college student disgusted by the Court’s refusal to overturn Roe v. Wade (regardless of one’s view of abortion specifically, Roe is a judicial monstrosity) while it had the perfect opportunity and basis for doing so.  In subsequent years, I’ve endured such indefensible decisions as Kelo, with the seemingly more rare positive decision like Heller, the monumentally important Second Amendment case.

To me, anything less than an unequivocal, categorical rejection of ObamaCare’s individual mandate on the basis of the Constitution’s commerce clause is a loss.  To allow the federal government to coerce activity, in order to in turn rationalize regulating behavior not only eviscerates the concept of limited federal powers, renders the text of the Constitution meaningless.  From that point forward, it’s simply a matter of arguing degree, not kind.  We become a nation of men, not of laws.  Of judges arbitrarily deciding from that point forward which governmental intrusions get a pass and which don’t.  Honestly, I will be satisfied so long as the Court rules the individual mandate unconstitutional, even if the remainder of the law stands.  As economists say, what cannot continue will not continue.  And without the individual mandate, ObamaCare cannot and will not continue, at great (and justified) political cost to Obama himself and those who support the law.

At any rate, my bottom line is that I intuitively do not trust enough justices to make the correct decision.  I predict that a majority will concoct some way to allow the individual mandate to survive on the absurd “logic” that healthcare is a “special” category of commerce.  And even if they overturn the individual mandate, I suspect that they’ll do so on an “as applied” basis, meaning that the seal is broken.

June 27th, 2012 at 3:49 pm
More Headaches for Obamites if Mandate Goes Down

Congressional staffers are buzzing about a terrifically insightful National Journal piece from a week ago that has still attracted too little mainstream notice, explaining how if any part of ObamaCare is thrown out by the Supreme Court, the budgetary “scoring” problems that would be caused (for the Congressional Budget Office) are so complicated that they could hamstring implementation of what’s left of the law — but also hamstring efforts to fix any holes caused by the law’s unraveling. Basically, CBO could be looking at a law whose budgetary effects are essentially “unestimatable.”

My sources say the administration’s own argument — that if the mandate is struck down, so should the rest of Title 1 of the Affordable Care Act, but none of the rest of it — could effectively put itself (the administration itself) into a box, paint it into a corner, or whatever other cliche you want to use. As Margot Sanger-Katz and Meghan McCarthy of National Journal reported:

Washington’s top health economists, including those at the Congressional Budget Office, say that position could lead to an even more complex breakdown of the law’s interlocking provisions than just losing the mandate. CBO declined to comment for this story, and the White House also declined to comment on whether it is worried about complications that might result from its position.

But several congressional staffers said that CBO has been asked to score the scenario, and the office demurred, saying it’s too difficult to game out the consequences. According to economists, the scenario is not just complicated, but also potentially expensive—and could lead the estimated $461 billion in insurance tax credits through 2021 to balloon.

This all gets very complicated, and it goes even  beyond what National Journal so well described, but this bears serious watching. Stay tuned. The administration really could be in for “heap big trouble.”

June 27th, 2012 at 2:38 pm
A Few More Thoughts on the SCOTUS Obamacare Ruling
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I’ll join the scrum on this one, though in a much less organized fashion than either Ashton or Quin. Insulated as it is from direct political pressure, the Supreme Court’s actions are always much harder to predict than those of the other two branches, so I’ll offer a few thoughts rather than predictions:

  • The now widely-held belief that Chief Justice Roberts is writing the majority opinion makes me nervous. The positive interpretation is that some or all of Obamacare is going to be struck down and that Roberts — ever-mindful of public perception of the Court’s legitimacy — is writing it to ensure the widest possible acceptance of the ruling. On the other hand, if Justice Kennedy drifted over to the left on this decision, this could be a 6-3 ruling upholding Obamacare, with Roberts switching only so he could write the opinion and blunt the damage done by the majority.
  • If the individual mandate is struck down but found to be severable from the broader law, the health insurance market is going to be thrown into absolute chaos. There’s a reason that insurers themselves were lobbying so hard for the mandate — it’s the only thing that backfills the tremendous costs being imposed on them by the rest of the legislation. The combination of an explosion in costs with likely attempts by HHS to enact price controls will put American health care in a death spiral — itself a good reason to find the provision severable.
  • I’m of the opinion that, as a political calculation, having only the mandate struck down is the worst possible outcome for Republicans. If the entire law is upheld, then the GOP and the Romney camp get to run the fall campaign on the message that only electing a Republican president and Republican majorities capacious enough to achieve repeal will be sufficient to get rid of Obamacare. If the entire thing is struck down, then the work is done. But the mandate is the most unpopular portion of the law and if the Court strikes it down while leaving all of the popular components (read: the benefits — like prohibiting insurance denials based on pre-existing condtions or guaranteeing eligibility to be on your parents’ health insurance until the age of 26), it’s entirely possible — and perhaps likely — that the public opposition will be defanged while many of the most pernicious effects of the law remain.
  • One final thought: Regardless of whether he’s part of the majority opinion or the dissent, I sincerely hope that Justice Thomas uses this historic opportunity to write a separate opinion on Commerce Clause jurisprudence that can be called on by his proteges in years to come.
June 27th, 2012 at 12:52 pm
ObamaCare Prediction: SCOTUS Kills Entire Law

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.

June 27th, 2012 at 12:01 pm
Supreme Court Guru’s Hunch: ObamaCare’s Individual Mandate Will Stand

Tom Goldstein, who has argued 25 cases before the U.S. Supreme Court, bucks conventional wisdom with his latest prediction regarding the High Court’s ObamaCare ruling tomorrow. 

Over at SCOTUSblog, a site he co-founded, Goldstein writes:

[I]n the end, based on the entire mix of information I have, I think the mandate will not be struck down tomorrow.  (Neither I, nor anyone else, has any inside information.)  My prediction includes the possibility that there will not be a single majority opinion for the theory on which the mandate is upheld, and even the thin possibility that the Court will not have a majority to find the mandate constitutional.

As to the other major ObamaCare questions before the Court, Goldstein predicts:

Far less important, I expect the principal opinion will be written by the Chief Justice; a majority of the Court will find it has jurisdiction; and the challenge to the Medicaid expansion will be rejected.

Goldstein does acknowledge that most Supreme Court observers disagree with his prediction and that his own confidence in it “isn’t overwhelming.”  Coming from such a well-respected and brilliant legal mind, Goldstein’s prediction isn’t reassuring either. 

Here’s to hoping that Goldstein is misreading this one.

June 27th, 2012 at 11:39 am
Good Interview with Jon Kyl

As Troy Senik and I both have expressed strong support for the idea that Arizona’s Jon Kyl should be on Mitt Romney’s short list for vice president, it is worth watching this interview Kyl did on Fox News Channel the other night. The key thing isn’t the particular substance of the discussion, but whether or not Kyl comes across well: Does he communicate his point well, clearly, and understandably? Does he come across as reasonable, competent, knowledgeable, and likeable, all at the same time? The answers to those questions are all “yes.”

There are all sorts of ways a presidential campaign can use a running mate. One of the best is to let the top of the ticket hammer home one strong message, again and again, as the main theme of the campaign, while assigning the VP candidate the role of raising and carrying several secondary issues to continually put the opponent on the defensive and to distract the opposing campaign from its message of the day.

With Arizona being ground zero for the immigration-policy battle, and with Kyl occupying a moderate or middle ground as being critical enough of Obama’s lack of enforcement to satisfy hard-liners but open enough to fair-minded appreciation of some immigrants’ interests that he won’t scare off Hispanic voters, he could well carry the immigration message well as Secondary Issue Number One. As an expert on military and foreign affairs, he could make up for Romney’s lack of experience there and blast the heck out of Obama on those issues, making defense/fo-po Secondary Issue Number Two. With his experience on the Judiciary Committee, he could make judges and Justice Department corruption and politicization (Fast and Furious, Black Panthers, etcetera) Secondary Issue Number Three. Few potential running mates are as well equipped to carry multiple issues against Obama as Kyl is.

June 27th, 2012 at 11:09 am
Whelan Predicts Win Against ObamaCare Mandate

C’mon, my Fellows: Weigh in! Which way will the high court go tomorrow?

The always astute Ed Whelan weighs in here.

Specifically, the fact that Justice Scalia read his dissent from the bench in the Arizona immigration case leads me to believe that the Court will invalidate the individual mandate by a 5-4 vote……