Archive for the ‘Health Care’ Category
Once More Into the Obamacare Breach
Today we filed Cato’s sixth brief supporting the various legal challenges to Obamacare, this time in the D.C. Circuit. Like Tom Joad, wherever the fight has been, we’ve been there, and now it’s in our backyard.
In February, Judge Gladys Kessler of the D.C. district court granted Congress the power to regulate “mental activity” in a decision that flippantly disregarded the core distinction between action and inaction: “Making a choice is an affirmative action, whether one decides to do something or not do something.” The frightening scope of that opinion has proven more harmful than helpful to the government, which has shifted its focus away from Kessler’s sweeping language by describing the mandate as merely a requirement that people pre-pay for the health care they will inevitably use.
Our latest brief deals more directly with that added nuance—even more so than the brief Cato filed two weeks ago. Due to a local circuit rule requiring amici with similar arguments to file jointly, Cato coordinated a brief involving six other organizations—Mountain States Legal Foundation, Pacific Legal Foundation, Competitive Enterprise Institute, Goldwater Institute, Revere America, and Idaho Freedom Foundation—as well as Prof. Randy Barnett.
Using Cato’s previous brief as a starting point, amici worked together to adjust our arguments in light of new ideas coming from both the government and academia. The core argument, however, remains the same: regardless of any linguistic contortions, the non-purchase of health care is fundamentally a non-economic inactivity that Congress cannot reach under the Commerce and Necessary and Proper Clauses.
Allowing Congress the power to conscript citizens into economic transactions not only goes beyond current precedent, but would give Congress a general and limitless police power to do whatever it thinks best, checked only by politics.
In addition to the doctrinal arguments we presented in previous briefs, here we remind the court that limiting Congress’s power is the explicit purpose of Article I of the Constitution and address the relationship of the individual mandate to United States v. Comstock, the most recent interpretation of the limits on federal power under the Necessary and Proper Clause (a case in which Cato also filed a brief, that Ilya Somin covered in our Supreme Court Review, and about Trevor Burrus and I recently published a law review article).
The D.C. Circuit will hear the case of Seven-Sky v. Holder in September. Given the state of litigation around the country, we will likely not be filing another Obamacare brief before the action reaches the Supreme Court—which it’s expected to later this year, after the first few circuit courts issue their rulings.
President Obama’s ‘War on Fun’
My DC Examiner column this week focuses on Barack Obama’s transformation into our National Noodge, nudging, shoving, poking and prodding Americans into healthier lifestyles via the powers of the federal government.
A year ago, the New York Times got all excited about the “new age of regulation” the administration was busy ushering in. The president had elevated “a new breed of regulators”: folks like regulatory czar Cass Sunstein, who wants to “nudge” Americans toward healthier consumption choices, and CDC head Thomas Frieden, who, as NYC health commissioner, proclaimed ”when anyone dies at an early age from a preventable cause in New York City, it’s my fault.”
Today’s column tracks how this killjoy crusade is playing out:
Quitting smoking was “a personal challenge for [Obama],” the first lady explained recently, and she never “poked and prodded.”
Of course not. It’s obnoxious to hector your loved ones. “Poking and prodding” is what good government does to perfect strangers. And that’s what the Obama administration has been doing, with unusual zeal, for the past 2 1/2 years.
You’re not a real president until you fight a metaphorical “war” on a social problem. So, to LBJ’s “War on Poverty” and Reagan’s “War on Drugs,” add Obama’s “War on Fun.” Like the “War on Terror,” it’s being fought on many fronts…
Among them: graphic warning labels for cigarettes; a ban on clove cigarettes and possibly menthols; shutting down online poker sites; banning caffeinated malt liquor; mandatory menu-labeling and ratcheting down allowable sodium levels in food to “adjust the American palate to a less salty diet.” Even healthy “real food” aficionados can find themselves in the crosshairs, as Dan Allgyer, an Amish farmer selling raw milk discovered last month, when FDA agents and federal marshals raided his farm.
Last year, in a remarkably silly column entitled “Obama’s Happiness Deficit,” Washington Post editorial page editor Fred Hiatt wondered whether the president’s political difficulties stemmed from the fact that “he doesn’t seem all that happy being president.” I couldn’t care less whether Obama’s enjoying his job. He asked for it, he got it. But if he isn’t having fun, he shouldn’t take it out on the rest of us.
Sit Down, Mitt, You’re Not Helping
An excerpt from my latest Kaiser Health News column:
Mitt Romney’s reversals on abortion, gay marriage, gun control, campaign finance and immigration leave one with the impression that when Mitt Romney is with you, he’s with you. At least until he leaves the room….
Romney once said, “I would be happy to take credit” for ObamaCare. As he should: Romney bears as much responsibility for ObamaCare as any Democrat. Now he wants to repeal it. This absurd attempt to have it both ways is turning Romney into a laughing stock. The longer he drags it out, the more oxygen he will suck out of the effort to repeal ObamaCare.
Along the way, I explain why every distinction he tries to draw between RomneyCare and ObamaCare falls flat.
Filed under: Cato Publications; General; Government and Politics; Health Care
Pelosi’s Constituents Found out What’s in ObamaCare, and They Don’t Like It
From the Daily Caller:
Nearly 20 percent of new Obamacare waivers are gourmet restaurants, nightclubs, fancy hotels in Nancy Pelosi’s district
By Matthew Boyle – The Daily Caller 12:07 AM 05/17/2011
Of the 204 new Obamacare waivers President Barack Obama’s administration approved in April, 38 are for fancy eateries, hip nightclubs and decadent hotels in House Minority Leader Nancy Pelosi’s Northern California district.
That’s in addition to the 27 new waivers for health care or drug companies and the 31 new union waivers Obama’s Department of Health and Human Services approved.
Pelosi’s district secured almost 20 percent of the latest issuance of waivers nationwide, and the companies that won them didn’t have much in common with companies throughout the rest of the country that have received Obamacare waivers.
Who’s Right on Medicare Reform, Ryan and Rivlin or Obama and Gingrich?
This new video, narrated by yours truly, discusses a proposal to solve Medicare’s bankrupt finances by replacing an unsustainable entitlement with a “premium-support” system for private insurance, also known as vouchers.
This topic is very hot right now, in part because Medicare reform is included in the budget approved by House Republicans, but also because Newt Gingrich inexplicably has decided to echo White House talking points by attacking Congressman Ryan’s voucher plan.
Drawing considerably from the work of Michael Cannon, the video has two sections. The first part reviews Congressman Ryan’s proposal and notes that it is based on a plan put together with Alice Rivlin, who served as Director of the Office of Management and Budget under Bill Clinton. Among serious budget people (as opposed to the hacks on Capitol Hill), this is an important sign of bipartisan support.
The video also notes that the “voucher” proposal is actually very similar to the plan that is used by Members of Congress and their staff. This is a selling point that proponents should emphasize since most Americans realize that lawmakers would never subject themselves to something that didn’t work.
The second part discusses the economics of the health care sector, and explains the critical need to address the third-party payer crisis. More specifically, 88 percent of every health care dollar in America is paid for by someone other than the consumer. People do pay huge amounts for health care, to be sure, but not at the point of delivery. Instead, they pay high tax burdens and have huge shares of their compensation diverted to pay for insurance policies.
I’ve explained before that this inefficient system causes spiraling costs and bureaucratic inefficiency because it erodes any incentive to be a smart shopper when buying health care services (much as it’s difficult to maintain a good diet by pre-paying for a year of dining at all-you-can-eat restaurants). In other words, government intervention has largely eroded market forces in health care. And this was true even before Obamacare was enacted.
Medicare reform, by itself, won’t solve the third-party payer problem, but it could be part of the solution – especially if seniors used their vouchers to purchase real insurance (i.e., for large, unexpected expenses) rather than the inefficient pre-paid health plans that are so prevalent today.
Newt Tries to Out-Romney Romney, Endorses ‘Public Option’ in Medicare
In 1995, shortly after becoming Speaker of the House, Newt Gingrich mulled a radical overhaul of the U.S. Food and Drug Administration. As he put it to a room full of health insurers, “Maybe we’ll take out FDA.”
What made Newt likable to advocates of freedom is sadly no longer part of his schtick. Here’s how Andrew Stiles reports on Newt’s appearance on Meet the Press yesterday:
“I don’t think right-wing social engineering is any more desirable than left-wing social engineering,” he said when asked about [House Budget Committee chairman Paul] Ryan’s [R-WI] plan to transition to a “premium support” model for Medicare. “I don’t think imposing radical change from the right or the left is a very good way for a free society to operate.”
As far as an alternative, Gingrich trotted out the same appeal employed by Obama/Reid/Pelosi — for a “national conversation” on how to “improve” Medicare, and promised to eliminate ‘waste, fraud and abuse,’ etc.
“I think what you want to have is a system where people voluntarily migrate to better outcomes, better solutions, better options,” Gingrich said. Ryan’s plan was simply “too big a jump.”
He even went so far as to compare it the Obama health-care plan. “I’m against Obamacare, which is imposing radical change, and I would be against a conservative imposing radical change.”
If you close your eyes, it’s like listening to The Princess Bride. Medicare and Medicaid are nothing if not social engineering. So by Newt’s logic, we should get rid of them. But Newt also says that radical change is bad, which means we can’t. That leaves incremental changes. But incremental changes to massive social-engineering experiments are themselves social engineering, so we clearly cannot make incremental changes, either. ObamaCare is both social engineering and radical change. Again by Newt’s logic, ObamaCare is bad, and we must get rid of it, but we can’t. Truly, he has a dizzying intellect.
Newt’s objection to Paul Ryan’s Medicare reforms is no less incoherent. It appears to be that the reforms approved by the House would eliminate the traditional Medicare program as an option for Americans who enroll after 2021. So far as I can tell, Newt’s opposition to this feature is consistent with his past positions on Medicare reform. He wants to let people stay in traditional Medicare if that’s what they prefer, and would have traditional Medicare compete against private insurance companies for Medicare enrollees.
But it is completely inconsistent with Newt’s opposition to President Obama’s call for a so-called “public option” to compete with private insurance companies. In 2009, Newt told Good Morning America:
I guarantee you the language they draft for the public plan will give it huge advantages over the private sector or it won’t work…what they will do is rig the game…I mean, anybody who’s watched this Congress who believes that this Congress is going to design a fair, neutral playing field I think would be totally out of touch with reality.
Newt may not realize this, but he was actually explaining why his preferred Medicare reforms would fail: Congress would rig the game to protect the “public option” that Congress offers to seniors — i.e., traditional Medicare. House Republicans, led by Paul Ryan, rather bravely stuck to their guns when they kept a “public option” out of their proposed Medicare reforms. Ryan is offering Republicans credibility and success. By his own admission, Newt is offering them failure.
What’s up with Mitt Romney and Newt Gingrich? Does the Republican presidential nomination race have some sort of prize for insincerity or incoherence that I don’t know about?
Finally, Newt endorsed a “variation of the individual mandate” (tell me again why he opposes ObamaCare?) and said there is “a way to do it that make most libertarians relatively happy.” He must have meant to say leftists rather than libertarians. Regardless, I invite Newt to come to the Cato Institute so he can explain to people who actually care about freedom just how happy he’s going to make us.
A Life of One’s Own
Since Tuesday’s oral arguments in Virginia v. Sebelius—the first Obamacare challenge to reach the circuit court level, and one in which Cato also filed an amicus brief—the legal blogosphere has been discussing the Fourth Circuit panel’s incredulity concerning the activity/inactivity distinction at the heart of our arguments against Obamacare. As Ilya Shapiro explains, we contend that if Congress’s power to regulate “interstate commerce” reaches the inactivity of not buying health insurance, then there is nothing it does not reach. The Supreme Court will eventually have to grapple with this question and decide whether the distinction is constitutionally meaningful.
As Volokh conspirator Jonathan Adler points out, the activity/inactivity distinction is long-standing. At common law, there was no legally enforceable duty to rescue. In other words, if you didn’t act to create the danger, you would not be liable for your inactivity in not helping. To put it bluntly: you would have no legal liability if you ignored a drowning child.
Legal philosophers have grappled with the meaning of “act” and “omission” for centuries. While there are some difficult issues to ponder, there is also an element of navel-gazing in the question and the Supreme Court may have to gaze long at their navels to answer it. But it is worth remembering why the act/omission distinction matters in a free society. At the risk of getting too philosophical, I will add some thoughts of my own.
Anyone who has been to law school has likely had long conversations, probably in torts class, over whether the act/omission distinction is both meaningful and moral. If your torts class was like mine, your professor lamented the “no duty to rescue” rule as evidence of our individualistic and selfish society. Many law professors believe our slavish adherence to the act/omission distinction not only allows us to let children drown, but that it is just another “Western” belief that holds back a robust welfare state.
The aversion to mandating action, however, is not about letting children drown. I wouldn’t let a child drown and I imagine you wouldn’t either. The extreme hypothetical helps gloss over a meaningful principle for normal, run-of-the-mill cases. Just as bad facts make bad law, bad hypotheticals can blur vital principles. The act/omission distinction helps delineate, albeit imperfectly, the personal sphere of control and the governmental sphere of control.
Romney: Individual Mandate = ‘What I Believe Is Right’
In his much-heralded health care address in Michigan today, former Massachusetts governor (and Republican presidential hopeful) Mitt Romney made news by offering… absolutely nothing new.
Rather than admit that RomneyCare was a mistake, Romney once again defended the individual mandate he imposed in Massachusetts, calling it “what I believe is right for Massachusetts.” Why? Because Massachusetts had a free-rider problem. Never mind that all states have a free-rider problem. (So why is it not the solution for other states, too?) Never mind the indications that Massachusetts’s free-rider problem is getting worse, not better, under RomneyCare. His defense of his individual mandate was indistinguishable from those delivered by countless ObamaCare zombies.
It’s almost as if Mandate Mitt is keeping the hypocrisy alive because he’s afraid no one will pay attention to him once it’s gone.
The only novelty I saw was when he admitted that RomneyCare has become a political liability. Not enough of one, evidently. So here we go again:
Activity vs. Inactivity
The challenge to the constitutionality of the individual mandate — Obamacare’s central feature, without which the whole regulatory scheme collapses (practically speaking, though I agree with Judge Vinson that it also can’t be severed as a matter of law) – boils down to whether, under modern constitutional doctrine regarding what Congress can do under the guise of regulating interstate commerce, the government can force “inactive” people into a particular action, namely buying health insurance.
That is, while cases like Wickard (Congress can force farmer to meet quota and bring crops to market) and Raich (Congress can stop wholly intrastate growth and consumption of marijuana) — moving from wheat to weed — are disconcerting for those of us who see limits on federal power, there is a qualitative difference between regulating or prohibiting existing economic activity and mandating that someone engage in such activity. When Randy Barnett (who argued Raich) first articulated that distinction and labeled the new assertion of federal power “unprecedented,” that’s what he meant: Congress has never forced people to engage in economic activity. Not during the New Deal – nobody had to become a farmer or buy wheat — nor during the Civil Rights Era — if you didn’t want to serve blacks, you could shut down your restaurant or hotel.
The “activity/inactivity” distinction thus becomes the last straw holding back a general federal police power that would allow Congress to require anything of the citizenry so long as it was part of a national regulatory scheme. No enumerated power to require people to buy Chevys? No problem, we’ll have a full-scale auto bailout that only works if people have to buy Chevys. No enumerated power to require people to take out Fannie Mae mortgages? No problem, we’ll have a “National Housing Market Recovery Act” that only works if people have to do just that. You don’t have to invoke broccoli or asparagus to make the point; the “broccoli mandate” is used so often only because, if anything, requirements to buy healthy foods and join gyms would be more closely connected to the goal of reducing taxpayer spending on health care than the individual health insurance mandate.
In any case, I won’t go on about activity vs. inactivity because you can read all about it in our latest brief and also in a fascinating Volokh Conspiracy debate among Orin Kerr, Jon Adler — both of whom will be contributing to this year’s Cato Supreme Court Review — and Randy Barnett:
- Orin notes that the Fourth Circuit judges were “baffled” by the activity/inactivity distinction;
- Jon replies that he’s baffled that anybody could be baffled by that;
- Randy offers a different take on the judges’ concerns;
- Orin discusses a possible analogy of the definition of “activity” to its common-law equivalent, the “actus reus”;
- Randy issues a rejoinder to Orin’s analysis;
- Orin clarifies the issue.
Fascinating stuff, and a discussion that will continue — and not just on the VC.
‘Mandate’ Mitt’s Candidacy May Be the Biggest Obstacle to Repealing ObamaCare
When Republican presidential hopeful Mitt Romney delivers his health care speech today, the question on everyone’s mind will be whether and how he will try to square his support for repealing President Obama’s government takeover of health care with the fact that he imposed an identical government takeover on Massachusetts when he was that state’s governor in 2006. The answer is: he can’t.
Romney bears as much responsibility for ObamaCare as any Democrat, and all the Republican health policy boilerplate in the world won’t change that fact. The Washington Post has unearthed an interview where Romney fantasized about “a nation that’s taken a mandate approach.” If “Mandate Mitt” once again clings to his untenable position that RomneyCare is good but ObamaCare is bad, he will reinforce the perception that he has no principles and will say anything to get elected. But admitting that RomneyCare was a mistake would also reinforce that perception — he was for RomneyCare, before he was against it.
If Mandate Mitt finally chooses the latter course, he will finally make the below video moot. So, I’ll post it in the hope that this will be my last opportunity to do so:
If Republicans pick Romney as their standard-bearer, they will be choosing someone who, as the Wall Street Journal editorializes, is either a leftist on health care, too clueless to realize the Left played him for a fool, or so unprincipled that he doesn’t care. The Obama campaign would like nothing more. The attack ads write themselves. Romney would become a laughingstock — if he isn’t already — and would drag the ObamaCare-repeal effort down with him.
If Romney really wants to repeal ObamaCare, here is the best that a man in his compromised position can do. First, don’t just apologize. Explain why RomneyCare was a mistake: it relies on government planning to allocate health care resources, which will make health care more costly and scarce. Second: encourage the state officials whose campaigns he is supporting not to create any type of health insurance Exchange — neither the kind he created in Massachusetts, nor the kind Gov. Jim Huntsman (R) created in Utah — because creating any Exchange is a vote to preserve ObamaCare. Third, announce that instead of running for president, he will run for governor of Massachusetts on a “repeal RomneyCare” platform. He’s just the man to do it.
Cato’s Latest Obamacare Brief
As I noted yesterday, Obamacare is moving towards its inevitable date with the Supreme Court. Although the pace may be aggravating, attorneys on both sides are strengthening their arguments and clarifying the issues presented.
Cato’s latest brief, filed today in the Eleventh Circuit in support of 26 states and the National Federation of Independent Business, sharpens the position we already expressed in briefs filed in the Fourth Circuit and the Sixth Circuit. Our focus remains the question of whether the Constitution authorizes Congress to mandate that individuals purchase health insurance or suffer a fine.
The government has subtly shifted its thinking at this stage, however, to argue that the individual mandate does not so much compel “inactive” citizens to act but merely regulates when and how health care is purchased. Everyone will eventually purchase health care, the argument goes, and the mandate requires that people pre-pay for that care so they don’t shift the costs onto others.
We point out how this argument is a spurious misdirection, an attempt to recharacterize the individual mandate in terms that are directly contrary to the purpose and function of the overall statute. Obamacare explicitly regulates the status of being uninsured—and not just those who seek to shift health care costs to the future or slough them onto taxpayers (indeed, the politically uncomfortable truth is that those most likely to incur health care expenses they cannot pay, the poor, are exempt from the mandate).
We argue that, regardless of the spin that the government places on it, the individual mandate “regulates” inactivity, something that not even modern constitutional doctrine allows. The status of being uninsured cannot be transformed into economic activity via semantic prestidigitation; no matter how artfully articulated, a decision not to purchase insurance, or to do nothing, or to self-insure, is not a federally regulable action. The outermost bounds of Congress’s power under the Commerce Clause, as exercised via the Necessary and Proper Clause, reach certain classes of intrastate economic activity that substantially affects interstate commerce. But Congress cannot reach inactivity even if it purports to act pursuant to a broader regulatory scheme.
Allowing Congress to conscript citizens into economic transactions would not only be unprecedented—as government-friendly the precedent is—but would fundamentally alter the relationship between the sovereign people and their supposed “public servants.” The individual mandate “commandeers the people” into the federal government’s brave new health care world.
The Eleventh Circuit will hear Florida v. U.S. Dep’t of Health & Human Services in Atlanta on June 8.
Obama Admin. Repeats Discredited Cost-Shifting Claim in Federal Court
Defending ObamaCare in federal court yesterday, the Obama administration’s acting solicitor general, Neal K. Katyal, peddled the widely discredited claim that the uninsured increase your and my health insurance premiums by $1,000:
“When people self-finance their health care,” Katyal contended, “that raises the cost of health care overall by $43 billion a year, and that raises the average family’s premiums by $1,000 a year. That will price untold numbers of people out of the market.”
That estimate comes from two left-wing groups, Families USA and the Center for American Progress Action Fund.
When President Obama himself made this claim, FactCheck.org reported:
[Obama] said ”the average family pays a thousand dollars in extra premiums to pay for people going to the emergency room who don’t have health insurance.” That’s from a recent report by Families USA, a group that lobbies for expanded government coverage. But another study for the authoritative Kaiser Family Foundation thinks that figure is far too high.
Serendipitously, the same day that Kaytal was repeating this discredited claim in federal court, USA Today reported:
Jack Hadley, senior health services researcher at George Mason University in Fairfax, Va…has found that privately insured individuals don’t end up paying higher premiums to make up for the uninsured because hospitals that serve lower-income families don’t have a lot of patients with insurance. He said the government pays about 75% of those unpaid hospital bills either by direct payment or through a disproportionate payment of Medicaid. (emphasis added)
Filed under: Cato Publications; General; Government and Politics; Health Care
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