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Constitution Offers No Haven to ObamaCare’s Individual Mandate
With multiple lawsuits challenging the constitutionality of ObamaCare’s “individual mandate,” the law’s backers have proffered two principal arguments in its defense. First, they claim that Congress has the power to require U.S. residents to purchase health insurance under the Constitution’s grant of power “to regulate Commerce…among the several States.” Second, they claim the measure is authorized by the taxing power.
Regarding the commerce power, Cato senior fellow Randy Barnett explains in yesterday’s Wall Street Journal:
[T]he Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented.
Barnett also explains that the text of the law precludes ObamaCare’s defenders from claiming that the individual mandate is authorized by the taxing power. The individual mandate defines a minimum level of coverage and then imposes a penalty on people who do not purchase such coverage. Barnett notes that the law invokes the commerce power (not the taxing power) to justify the mandate, and refers to the penalty for non-compliance as a “penalty” (not a tax):
In short, the “penalty” is explicitly justified as a penalty to enforce a regulation of economic activity and not as a tax. There is no authority for the Court to recharacterize a regulation as a tax when doing so is contrary to the express and actual regulatory purpose of Congress.
At National Review Online, Cato chairman Bob Levy explains, “even if the penalty for noncompliance is deemed to be a tax rather than a fine, it does not meet the constitutional requirements for income, excise, or direct taxes,” and would be an unconstitutional tax.
Columbus Dispatch: ObamaCare = Malpractice
Popular discontent with ObamaCare extends even so far as the traditionally left-of-center Columbus Dispatch editorial page:
Almost daily, the ill effects of the health-care overhaul passed by Congress last month are becoming apparent. As employers and government bureaucrats analyze the law’s effect on bottom lines for the private sector and for government, the alarm bells are ringing.
The tragedy is that these ill effects could have been and should have been calculated before the law was passed, not after.
In fact, many of them were prophesied before passage of the bill, but the prophets were ignored by President Barack Obama and the Democratic majority in Congress. That’s because their uppermost goal was not to pass the best health-care bill possible but merely to pass anything that could be called “health-care reform” and could be claimed as a political victory by a president desperate for one.
The latest analysis of the bill’s likely effects comes from the Office of the Actuary in the federal Centers for Medicare and Medicaid Services. The report by Chief Actuary Richard S. Foster says that, far from reducing the cost of health care, the overhaul will add $311 billion to the nation’s health-care costs over the first decade the law is in effect…
As the weeks roll by, more and more unintended and should-have-been-anticipated consequences of this ill-conceived law will be revealed.
This should be no surprise, considering that the law was slapped together behind closed doors without proper testimony and vetting by health-care, financial and insurance experts, and is a patchwork of political and special-interest deals rammed through Congress using procedural gimmicks.
The nation deserved something much, much better than this.
Read the full editorial. Repeal the bill.
Is The Washington Post Mocking Justice Stevens?
Justice John Paul Stevens has announced that he will retire from the Supreme Court this summer.
My Cato colleagues are weighing in on his “checkered” tenure. Tim Lee writes, “if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank.” I certainly appreciate Stevens’ contributions in that area.
On the other hand, Ilya Shapiro laments “the errant jurisprudential path that Justice Stevens blazed so honorably,” and charges that “Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.”
When I picked up Saturday’s Washington Post, I wondered if its staff was trying to make the same point. The front page contains excerpts from three opinions Stevens wrote while on the Court. (I could not find them on the Post‘s web site, so I can’t furnish a link.) The first is from Bush v. Gore (2000):
Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent.
The second is from Baze v. Rees (2008):
[The death penalty is] becoming more and more anachronisitic… I have relied on my own experience in reaching the conclusion that the imposition of the death penalty “represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”
And finally, from Citizens United v. FEC (2010):
While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
The first excerpt decries judges who decide cases based on their personal preferences, rather than what the law says. The other two excerpts show Stevens incorporating his personal preferences into his rulings.
So we must consider the possibility that someone at The Washington Post subtly wanted to poke fun at Justice Stevens. Unless it was inadvertent, which would make it even more amusing.
ObamaCare: “Everything That’s Wrong with the European-style Democratic Socialist State”
From Jeffrey H. Anderson, writing at National Review Online’s Critical Condition blog:
With Obamacare, President Obama has given a concrete example of everything that’s wrong with the European-style Democratic Socialist state, all wrapped up in one (massive) package. The notions are no longer abstract or theoretical. They’re here for all to see: less liberty, more taxes, more public indebtedness, more intergenerational theft, taxpayer funding for abortion, government rationing of health care, consolidation and centralization of power in Washington, and politicization of the properly private relationship between patient and doctor. The American people don’t want any of this, which is why 54 percent of Americans, including 59 percent of independents, are for repeal. Let’s give it to them.
Repeal the bill.
Mandate Denial
Supporters of ObamaCare are shifting into full-denial mode.
Rep. Debbie Wasserman Schultz (D-FL) recently told an incredulous town-hall crowd that ObamaCare does not, in fact, require you to purchase health insurance.
Rep. Wasserman Schultz’s announcement came as a surprise to those of us familiar with the bill, which added to Subtitle D of the Internal Revenue Code a new Chapter 48, whose first section (Section 5000A) is titled, “REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE” (see p. 126; all-caps in original). Subparagraph (b)(3) even provides for “PAYMENT OF PENALTY” if you don’t comply with the “REQUIREMENT.”
ObamaCare’s supporters are still looking for ways to hide what they’ve done.
Repeal the bill.
By Pulling His Punches, Bernanke Shatters ObamaCare’s Credibility
Federal Reserve Chairman Ben Bernanke gave a speech in Dallas yesterday where he inadvertently discredited claims that ObamaCare would reduce health care costs and the federal deficit. According to The Washington Post:
Federal Reserve Chairman Ben S. Bernanke warned Wednesday that Americans may have to accept higher taxes or changes in cherished entitlements such as Medicare and Social Security if the nation is to avoid staggering budget deficits that threaten to choke off economic growth…
While the immediate audience for the speech was the Dallas Regional Chamber, his message was intended for Congress and the Obama administration…
Bernanke has urged Congress to address long-term fiscal imbalances in congressional testimony before, but usually only when he is asked about them by lawmakers. His speech Wednesday aimed to reach a broader audience, steering away from technical economic speak and using plain, sometimes wry, language — a rare thing for a Fed chairman.
The non-partisan Congressional Budget Office projects the annual federal deficit will be at least $700 billion in each of the next 10 years. Deficit spending is a form of taxation without representation, because it increases the tax burden of generations who cannot yet vote (often because they are as yet unborn). Bernanke wants us to end deficit spending. Kudos to him.
But consider the timing of his speech. Why wait until April 7, 2010, to deliver that message directly to the public? Why not give that speech in January? Or February? Or any time before March 21?
The reason is obvious: Bernanke held back to appease his political masters.
Constitution, Schmonstitution — The Law Is What I Say It Is
The health care debate has illuminated how little regard many members of Congress have for the U.S. Constitution.
First, Rep. Alcee Hastings (D-FL) said, “There ain’t no rules here… When the deal goes down … we make ‘em up as we go along.”
Then, House Judiciary Committee chairman John Conyers (D-MI) claimed that the Constitution’s non-existent “Good and Welfare clause” grants Congress the power to compel Americans to purchase health insurance.
Now, Rep. Phil Hare (D-IL) admits he doesn’t really care whether the Constitution grants Congress that power:
Off-camera: Where in the Constitution…
Rep. Hare: I don’t worry about the Constitution on this, to be honest.
Off-camera: [Laughter.] Jackpot, brother.
Rep. Hare: What I care more about — I care more about the people that are dying every day that don’t have health insurance.
Off-camera: You care more about that than the U.S. Constitution that you swore to uphold!
Rep. Hare: I believe that it says we have the right to life, liberty, and the pursuit of happiness. Now you tell me…
Off-camera: That’s the Declaration of Independence.
Rep. Hare: It doesn’t matter to me. Either one…
[Lots of childish sniping.]
Off-camera: Where in the Constitution does it give you the authority to…
Rep. Hare: I don’t know. I don’t know.
Off-camera: That’s what I thought.
Of course, that doesn’t really capture how annoying both the congressman and his interrogators are. So here’s the video:
ObamaCare’s New Entitlement Spending “Sows the Seeds” of a Budget Crisis
From Robert J. Samuelson’s column in today’s Washington Post:
When historians recount the momentous events of recent weeks, they will note a curious coincidence. On March 15, Moody’s Investors Service — the bond rating agency — published a paper warning that the exploding U.S. government debt could cause a downgrade of Treasury bonds. Just six days later, the House of Representatives passed President Obama’s health-care legislation costing $900 billion or so over a decade and worsening an already-bleak budget outlook.
Should the United States someday suffer a budget crisis, it will be hard not to conclude that Obama and his allies sowed the seeds, because they ignored conspicuous warnings. A further irony will not escape historians. For two years, Obama and members of Congress have angrily blamed the shortsightedness and selfishness of bankers and rating agencies for causing the recent financial crisis. The president and his supporters, historians will note, were equally shortsighted and self-centered — though their quest was for political glory, not financial gain.
I hope Samuelson is wrong, but it’s probably a good idea to behave as if he’s right, and repeal ObamaCare’s new entitlement spending.
Medicare Fraud: 1, Anti-Fraud Measures: 0
As the nation contemplates the new health care entitlements that Congress and President Obama just created, it is worth noting an article in today’s Washington Post, which reports on the performance of past efforts to eliminate fraud in another health care entitlement:
More than a decade ago, Congress set out to squeeze the fraud out of Medicare billing at nursing homes, requiring more precise justifications for costs. It created new “ultra-high” billing categories intended to be used for only 5 percent of the patients needing highly specialized care and rehabilitation.
But within a few years, nursing homes flooded the ultra-high categories with patients, contributing to $542 million a year in potential overpayments, federal analysts found.
Since then, the numbers in the ultra-high categories have quadrupled, and the amount of waste and abuse could reach billions of dollars a year…
The article ends with the ominous implication that eliminating fraud in entitlement programs like Medicare will ultimately require government agencies to decide whether certain services are medically necessary.
Death panels, anyone?
Fidel Castro Endorses ObamaCare
As Dave Barry would say, I swear I am not making this up.
Yesterday, the Associated Press reported that the Western Hemisphere’s last unreconstructed communist dictator endorsed President Obama’s new health care law:
HAVANA (AP) — It perhaps was not the endorsement President Barack Obama and the Democrats in Congress were looking for.
Cuban revolutionary leader Fidel Castro on Thursday declared passage of American health care reform “a miracle” and a major victory for Obama’s presidency, but couldn’t help chide the United States for taking so long to enact what communist Cuba achieved decades ago.
“We consider health reform to have been an important battle and a success of his (Obama’s) government,” Castro wrote in an essay published in state media, adding that it would strengthen the president’s hand against lobbyists and “mercenaries.”…
“It is really incredible that 234 years after the Declaration of Independence … the government of that country has approved medical attention for the majority of its citizens, something that Cuba was able to do half a century ago,” Castro wrote…
Cuba provides free health care and education to all its citizens, and heavily subsidizes food, housing, utilities and transportation, policies that have earned it global praise. The government has warned that some of those benefits are no longer sustainable given Cuba’s ever-struggling economy, though it has so far not made major changes.
In recent speeches, Raul Castro has singled out medicine as an area where the government needs to be spending less, but he has not elaborated.
I’m sure the Obama administration and its echo chamber will nonetheless continue to claim that this is not socialized medicine.
We Passed ObamaCare, but Will It Improve Health?
The answer may not be so obvious. I’ll explore that issue at a Cato Institute policy forum this Thursday with two leading authorities on the subject: John Ayanian of Harvard Medical School and David Meltzer of the University of Chicago.
The forum is titled, “Would Universal Coverage Improve Health?” and will be held at 4pm this Thursday at the Cato Institute. Click the link for details.
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