Obamacare’s Platonic Guardians
As followers of this blog recognize, Obamacare has more constitutional defects than just the individual mandate or even the coercive use of Medicaid funds. One issue that is getting increasing attention (see the Weekly Standard, National Review, and George Will) is this weird new entity called the Independent Payment Advisory Board.
IPAB, which Sarah Palin famously labeled a “death panel,” will exercise virtually unchecked power to set Medicare reimbursement rates—without political or legal oversight by any branch of government. It’s reminiscent of the Public Company Accounting Oversight Board, the part of the Sarbanes-Oxley financial regulation law that the Supreme Court found partially unconstitutional last year. Except it has the power of life and death and is insulated even from repeal!
That is, IPAB creates “recommendations” for cutting Medicare spending, which then acquire the force of law. Congress is specifically barred from reversing or modifying these “recommendations”; the only thing it can do is add further cuts. It can also abolish IPAB, but only by passing a curious “resolution” that must be introduced between Jan. 3 and Feb. 1. 2017, and must be passed by 3/5 of all members of both houses by Aug. 15 of that same year. Otherwise, Congress loses even its power to add further Medicare cuts and IPAB becomes a permanent fixture of of our health care world.
Suffice it to say, Congress cannot delegate its legislative authority to any such independent, everlasting institution. One Congress can’t even bind its successors!
Pacific Legal Foundation principal attorney and Cato adjunct scholar Timothy Sandefur unearthed this great nugget by someone defending Obamacare:
Amazingly, Timothy Jost, one of Obamacare’s most vocal advocates, has proudly proclaimed that IPAB will act like:
A board of “Platonic Guardians” to govern the health care system or some aspects of it. The cost of health care is spinning dangerously out of control…. [O]ur traditional political institutions—Congress and the executive administrative agencies—are too driven by special interest politics and too limited in their expertise and vision to control costs. Enter the Platonic guardians…an impartial, independent board of experts who could make evidence-based policy determinations based purely on the basis of effectiveness and perhaps efficiency.
Think about that for a second. Plato’s “Guardians” (also known as philosopher kings) were a group of “godlike” officials (that’s Plato’s word) who would wield undemocratic power to form the perfect utopian state without oversight. According to The Republic, the Guardians would, among their other things, enforce:
by law…such an art of medicine…[which] will care for the bodies and souls of such of your citizens as are truly wellborn, but those who are not, such as are defective in body, they will suffer to die, and those who are evil-natured and incurable in soul they will themselves put to death. This certainly…has been shown to be the best thing for the sufferers themselves and for the state.
America’s constitutional democracy was created in direct contradiction to such authoritarian ideas.
Luckily, our friends at the Goldwater Institute have a lawsuit pending against IPAB, Coons v. Geithner (here’s the case page). You’ll be hearing a lot more about this case regardless of the final result of the individual mandate lawsuits. Here’s PLF’s amicus brief on the important “non-delegation doctrine” issue at its heart.
If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech
Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.
Here’s the background: In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns. Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”
Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional. For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.
The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.
The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):
Alito: Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?
US: Sort of.
Alito: Have you read FEC v. Davis?
Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.
My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech. Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.
NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however — ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment. (That said, you should still follow me on Twitter — and also be sure to follow our friends @IJ and @GoldwaterInst!)
How Best to Amend the Constitution
I’ve written before about how we have little to fear and much to gain from state-called conventions to amend the Constitution. Even setting aside the legal and historical points about how such conventions can be limited and are the ultimate guarantors of state and popular sovereignty, the “runaway convention” idea is a red herring for one practical reason: Any proposed constitutional amendment emerging from the convention requires ratification by 38 states. That’s at least 75 houses (counting Nebraska’s unicameralism)! There is no way that an amendment constitutionalizing socialism (or whatever) would be ratified. So I sleep easy.
But to add further scholarly guidance to these arguments and procedures, see Rob Natelson’s final paper in the Goldwater Institute’s three-part series on the subject. From the executive summary:
This report provides crucial practical drafting guidance for exercising the states’ constitutional authority. In essence, it recommends that state legislators draft their Article V applications and delegate commissions with an eye to targeting specific subject matters, while still giving state delegates a meaningful level of deliberative independence to ensure that the amendments convention can serve its consensus-building and problem-solving purpose. The key is to regard an amendments convention as a modern-day “task force”—a representative body that is limited to a specific agenda but expected to exercise judgment on accomplishing that agenda.
For the previous two papers, and other materials regarding amendment conventions, see Goldwater’s invaluable Artivle V resource page.
Supreme Court Accepts Another Chance to Reverse Ninth Circuit, Uphold First Amendment
Today, the Supreme Court agreed to review McComish v. Bennett (consolidated with Arizona Free Enterprise v. Bennett), which challenges Arizona’s public financing of elections as an unconstitutional abridgment of speech. Because the case concerns a crucial new battleground in the fight between free speech and “fair” (read: government-controlled) elections, Cato filed an amicus brief supporting the cert petitions filed by our friends at Goldwater Institute and the Institute for Justice.
McComish centers on Arizona’s “Clean Elections” Act, which provides matching funds to publicly funded candidates if their privately funded opponent spends above certain limits. In other words, by ensuring that his speech will not go “unmatched” by his opponent, the privately funded candidate is penalized for working too hard and speaking too much. The law violates established Supreme Court precedents that have consistently held that forcing a speaker to “disseminate hostile views” as a consequence of speaking abridges the freedom of speech. Although the Ninth Circuit upheld the Arizona law, the Second Circuit recently struck down a similar Connecticut law, thus creating a circuit split that undoubtedly encouraged the Court to take the case.
In 2008 the Court decided Davis v. FEC (in which Cato also filed a brief), which overturned the “millionaires amendment” to the McCain-Feingold campaign finance “reform.” That provision gave similar assurances to candidates faced with the possibility of being outspent by their opponent. There, however, the concern was with rich, self-funded candidates: The act provided increased fundraising limits — triple the amount normally allowed — for candidates whose opponents spent too much (by the government’s judgment) of their own money on their campaign. The Davis Court held that this provision “impose[d] an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right.”
The Arizona law is even worse. It doesn’t even delve into the messiness of fundraising — tripling the contribution limit does not, after all, mean that those funds will be raised — but rather guarantees that a candidate’s “robus[t] exercise[] of [his] First Amendment right” will be met with contrary speech from his opponent. And the law sweeps still broader: it applies the same matching funds provision to groups that spend independently from any campaign but are nevertheless deemed to be supporting a given candidate. Such “uncoordinated speech” by third parties — speech that, many times, the candidate does not want even if it is thought to be on his behalf — also triggers matching funds for the candidate’s opponent.
The end result, as extensive evidence shows, is that numerous speakers — from the candidate to the independent groups — will be reluctant to spend money to speak (which is, of course, required for nearly all effective campaign speech) because their opponents are guaranteed the funds needed to reply. In elections, where the freedom of speech “has its fullest and most urgent application,” such laws simply cannot fly.
Finally, it is also worth remembering what is at stake when we allow politicians to pass laws that determine the very rules by which they hold their jobs. Justice Scalia put this most poignantly in Austin v. Michigan Chamber of Commerce: “the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.” As we now well know, the Court overruled Austin this past January in Citizens United, vindicating Scalia’s pro-free speech position.
It will be exciting to see how McComish unfolds. Expect another Cato amicus brief early in the new year, oral arguments in the spring, and a decision by the end of June.
Why I Love, and Hate, American Higher Education
Today, the annual U.S. News and World Report “Best Colleges” guide came out, and as always it is a slightly celebratory occasion for me. Though I agree with many people who critique the guide for its debatable methodology and implicit assumption that all schools can be cleanly ranked from best to worst, the simple fact that the issue exists makes me happy. When you spend the bulk of your time analyzing moribund, monopolistic, K-12 schooling, it’s just refreshing to dive into an education ocean where guides are abundant because consumers have plentiful, powerful choice. It also doesn’t hurt that, in stark contrast to elementary and secondary schooling, the United States seems to be the envy of the world in higher ed.
Unfortunately, my higher ed enthusiasm always ebbs fast, and aggravation quickly slips in, because there is copious, taxpayer-funded rot under America’s abundant ivy. The reality is, while being much more dynamic and consumer-driven than socialized K-12 schooling isn’t a bad thing, it’s hardly a major accomplishment. And as a new report from the Goldwater Institute reminds me, while college students are empowered to choose, they are empowered with massive taxpayer subsidies, both in the form of aid directly to students and government funding directly to schools. The result is major, painful distortions of the market, including the ever-growing administrative bloat detailed in Goldwater’s new paper:
Between 1993 and 2007, the number of full-time administrators per 100 students at America’s leading universities grew by 39 percent, while the number of employees engaged in teaching, research or service only grew by 18 percent. Inflation-adjusted spending on administration per student increased by 61 percent during the same period, while instructional spending per student rose 39 percent.
So today, celebrate that we have a major sector of education that is at least partially market based. And then, like me, get aggravated by all the government funding and control that renders so much of it a waste.
Another Obamacare Lawsuit
As briefing continues in the Virginia and Florida (+ 19 other states) cases — next hearings will be in October and September, respectively – I wanted to highlight the filing of another serious lawsuit, which I’d mentioned previously in a roundup of legal action. Our friends at the Goldwater Institute have filed a challenge on behalf of a small-business owner, three congressmen (Reps. Jeff Flake, Trent Franks, and John Shadegg, all Republicans of Arizona), and 29 Arizona state legislators. This new lawsuit, known as Coons v. Geithner, argues that the federal health care bill exceeds Congress’s powers, violates individual rights, interferes with the authority of states, and violates the separation of powers by setting up a new bureaucracy without meaningful congressional oversight or judicial review. The legal team is led by experienced constitutional litigator Clint Bolick (whose excellent book David’s Hammer Cato published a few years ago). You can read the press release here, find out more about the lawsuit here, and download the complaint here.
A Public Thumb on the Election Scales
When taxpayers underwrite the campaign expenses of candidates for public office, serious questions arise: Not least, why should taxpayers subsidize candidates or ideas they oppose? But when taxpayers subsidize only one side in a campaign, there should be outrage. Perhaps there was at the Supreme Court this morning, when the Court blocked an appalling opinion out of, not surprisingly, the oft-overturned Ninth Circuit.
In McComish v. Bennett the Goldwater Institute is challenging Arizona’s Clean Elections Act, under which “candidates who run with public campaign subsidies receive an almost dollar-for-dollar match each time a privately funded opponent raises money above a certain amount,” the Goldwater press release states, “and additional matches when independent expenditures are made against the subsidized candidate.”
The problem for proponents of this Act is that the Supreme Court has said more than once that “leveling the playing field” is a forbidden rationale for campaign finance regulations. Moreover, and more precisely, in 2008, in Davis v. FEC, the Court held that the so-called Millionaires Amendment to the McCain-Feingold campaign finance act of 2002 was unconstitutional. Under that amendment the contribution caps that would otherwise apply to congressional candidates were lifted if a candidate was running against a self-financed opponent — a “millionaire” who, under the First Amendment, could not be restricted in funding his own campaign. Again, leveling the playing field won’t do. (Note also that that amendment put a lie to the main rationale for campaign finance restrictions – to prohibit corruption or its appearance. The caps are needed to prevent the candidate from being corrupted, so the argument runs – unless he’s running against a millionaire, in which case he won’t be corrupted by the added contributions. Such are the lengths to which campaign finance regulators are prepared to go to justify their schemes.)
Writing for the majority in Davis, Justice Alito went to the heart of the matter: “It is a dangerous business for Congress to use the election laws to influence the voters’ choices.” That it is, and it’s not through election laws alone that Congress – or states, as here – tries to influence voters choices through the use of taxpayer dollars. Do we need any better example, on this primary election day around the country, than publicly-funded National Public Radio?
In January, U.S. District Court Judge Roslyn Silver found Arizona’s Act unconstitutional under the First Amendment. But the state appealed, and last month a three-judge panel of the Ninth Circuit issued an opinion stating that the damage to free speech was minimal. This morning the Supreme Court issued an order to enforce the District Court’s injunction against the use of matching funds. As reported by the Goldwater Institute, the order says the injunction will remain in effect until the Court rules on the underlying appeal of the Ninth Circuit decision. The injunction also would be lifted if the Supreme Court decides not to consider the formal appeal. This is one to watch.
Will More Centralization Improve Education Standards?
Matt Ladner of the Goldwater Institute takes a good long look at national education standards on the Jay Greene blog. What, he asks, can we learn from the 1990s welfare policy debate and its outcomes?
Mr. Jefferson Regrets
Thomas Jefferson was an advocate of public schooling, after a fashion. He knew that an educated public was the only protection against government abuses, and he assumed that a state-run, state-funded school system would provide that essential education. If he could only see public schooling today.
The Arizona-based Goldwater Institute has just released a study on the civics knowledge of that state’s high school students. Matt Ladner, Goldwater’s head of research, administered the same trivial test that’s given to immigrants applying for citizenship, using the same trivial pass/fail threshold. [I know it's trivial, 'cause I took it a few years ago.] The results of Goldwater’s little experiment… Oh. My. God. Becky:
96.5 percent of AZ public high school students failed
Honestly, why did anyone — especially Thomas Jefferson – ever imagine that a government monopoly would be a good way to educate kids about a democratic republic and protect them from abuses of government power?
Victory for Decency at the Supreme Court
The Supreme Court’s decision today in Safford Unified School District #1 et al. v. Redding was a victory for privacy and decency. The Court held that a middle school violated the Fourth Amendment rights of a thirteen-year-old girl by strip searching her in a failed effort to find Ibuprofen pills and an over-the-counter painkiller.
The Cato Institute filed an amicus brief, joined by the Rutherford Institute and the Goldwater Institute, opposing such abuses of school officials’ authority. The search in this case should have ended with the student’s backpack and pockets; forcing a teenage girl to pull her bra and panties away from her body for visual inspection is an invasion of privacy that must be reserved for extreme cases. School officials should be authorized to conduct such a search only when they have credible evidence that the student is in possession of objects posing a danger to the school and that the student has hidden them in a place that only a strip search will uncover.
Today’s decision should not come as a surprise. School officials were not granted unlimited police power in the seminal student search case, New Jersey v. T.L.O. Justice Stevens explored the limits of school searches in his partial concurrence and partial dissent, specifically mentioning strip searches. “To the extent that deeply intrusive searches are ever reasonable outside the custodial context, it surely must only be to prevent imminent, and serious harm.”
The Fourth Amendment exists to preserve a balance between the individual’s reasonable expectation of privacy and the state’s need for order and security. Unnecessarily traumatizing students with invasive and humiliating breaches of personal privacy upsets this balance. Today’s decision restores reasonable limits to student searches and provides valuable guidance to school officials.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
