The Constitutionality of the Individual Mandate
Ezra Klein defends an individual healthcare mandate against charges that it’s unconstitutional, and what’s striking to me is that the argument seems awfully wobbly even if you’re on board with a lot of the post–New Deal jurisprudence about the scope of federal power. Sez Ez:
The summary is that you can look at the individual mandate as a tax, which is constitutional, or as a regulation forcing private actors to engage in a certain transaction, much like the minimum wage, which is also constitutional. I’ve also heard scholars mention auto insurance, which is an obvious analogue, and the Americans With Disabilities Act, which proved that the government can order businesses to install ramps, despite the fact that the constitution doesn’t explicitly give the federal government jurisdiction over entryways.
This doesn’t seem like the right level of analysis. Some taxes and regulations are within the ambit of federal powers; that doesn’t mean anything capable of being so described is. Some things not explicitly and specifically mentioned in Article I are nevertheless necessarily implicit in the enumerated powers; that doesn’t mean anything is. Auto insurance seems like a poor analogue because it’s a condition of access to government-maintained roadways. Ezra also mentions Massachusetts’ individual mandate, which seems rather beside the point in a discussion of the scope of Congress’ Article I powers. But bracket that. Even if you think the federal commerce power legitimately extends to legislation like the ADA, there’s intuitively a world of difference between saying that a commercial enterprise providing services to the public must provide them in such-and-such a fashion and insisting that private persons have to engage in a specified type of transaction just by dint of being alive. I don’t think the best reading of the Commerce Clause encompasses either, but it’s not that hard to conceive a reading that extends to the former but not the latter. I stress this just because I don’t think you have to be a libertarian or have a very restrictive view of the legitimate scope of federal power to believe there’s a genuine question here. The real form of the argument here looks an awful lot like: “Look, we’ve stretched commerce…between the several states so absurdly already, why are we even pretending it might be found to exclude anything?”
Filed under: Health, Welfare & Entitlements; Law and Civil Liberties
How Government Really Works
In a profile of Virginia Democratic gubernatorial hopeful Creigh Deeds, the Washington Post tells us about the grandfather from whom he got his unusual first name — and his interest in political power:
Creigh Tyree mattered. While serving as chairman of the Bath County Democrats, during the Depression, Tyree’s house was the first private home in the county to receive electricity from the federal Rural Electrification Act, proof of the power of government, he told his grandson.
Or at least proof of the practice of government. And that is in fact the lesson that young Creigh learned:
Watching the elderly man work the circuit of county shops and farms, the boy saw the power of political maneuvering, the influence it brought a man, the way it enabled the well-connected to pick up a phone and get something previously ungettable. Young Deeds started telling elementary school teachers that he wanted to be, would be, governor someday, and then president.
Using political connections to get things other people can’t get — that’s the lesson young Creigh Deeds learned from his granddad’s experience with the New Deal.
In a story earlier this week, the Post made it clear that that’s still the way politics works:
Sen. Thad Cochran’s most recent reelection campaign collected more than $10,000 from University of Southern Mississippi professors and staff members, including three who work at the school’s center for research on polymers. To a defense spending bill slated to be on the Senate floor Tuesday, the Mississippi Republican has added $10.8 million in military grants earmarked for the school’s polymer research.
Cochran, the ranking Republican on the Appropriations subcommittee on defense, also added $12 million in earmarked spending for Raytheon Corp., whose officials have contributed $10,000 to his campaign since 2007. He earmarked nearly $6 million in military funding for Circadence Corp., whose officers — including a former Cochran campaign aide — contributed $10,000 in the same period.
In total, the spending bill for 2010 includes $132 million for Cochran’s campaign donors, helping to make him the sponsor of more earmarked military spending than any other senator this year, according to an analysis by the nonprofit group Taxpayers for Common Sense.
Cochran says his proposals are based only on “national security interests,” not campaign cash. But in providing money for projects that the Defense Department says it did not request and does not want, he has joined a host of other senators on both sides of the aisle. The proposed $636 billion Senate bill includes $2.65 billion in earmarks….
The bill, however, would add $1.7 billion for an extra destroyer the Defense Department did not request and $2.5 billion for 10 C-17 cargo planes it did not want, at the behest of lawmakers representing the states where those items would be built. Although the White House said the administration “strongly objects” to the extra C-17s and to the Senate’s proposed shift of more than $3 billion from operations and maintenance accounts to projects the Pentagon did not request, no veto was threatened over those provisions….
Sen. Daniel K. Inouye (D-Hawaii), chairman of the Senate Appropriations Committee, ran a close second to Cochran’s $212 million in earmarks this year, having added 37 earmarks of his own worth $208 million, according to the tally by Taxpayers for Common Sense.
Almost all of Inouye’s earmarks are for programs in his home state, and 18 of the provisions — totaling $68 million — are for entities that have donated $340,000 to his campaign since 2007. His earmarks included $24 million for a Hawaiian health-care network, $20 million for Boeing’s operation of the Maui Space Surveillance System and $20 million for a civic education center named after the late senator Edward M. Kennedy….
In Cochran’s case, the proposed earmarks would benefit at least two entities that hired his former aides.
Folks, this is the way government works. If you think the programs of the New Deal or the stimulus bill or federal highway programs are necessary, fine — and certainly a defense bill is necessary — but understand that all such government programs involve taking money by force from people who didn’t offer it up voluntarily and then distributing it to others, in many cases to people with more political clout. People in the reality-based community should recognize this reality.
For more on this, see chapter 9 of Libertarianism: A Primer, “What Big Government Is All About.”
Stimulus and Boondoggles
The New York Times has a story on some of the more controversial ways in which state and local government are using so-called federal “stimulus” dollars. If anything, it provides some interesting background on the history of the word boondoggle (not surprisingly, it entered the American lexicon during the New Deal). The gist of the piece is that one person’s boondoggle is another person’s…turtle crossing…skateboard park…or airport for an island in Alaska with 170 people on it. One New Dealer found this out decades ago:
Robert D. Leighninger Jr., a sociologist who wrote “Long-Range Public Investment: The Forgotten Legacy of the New Deal” (South Carolina University Press, 2007), recounted the story of a Works Progress Administration official in Arizona who went off in search of boondoggles, and discovered that the towns he visited seemed to like their own projects but questioned those of their neighbors. “I’ve been hunting all over the state for one, but everywhere I go I’m told it’s in the next county,” the official was quoted as saying in a 1936 newspaper article. “So far I haven’t been able to catch up with a real, live one.”
Naturally, that attitude is alive and well today. I know more than a few folks in central Pennsylvania who thought Alaska’s “Bridge to Nowhere” was a waste of their federal taxpayer dollars but the “Road to Nowhere” in their own backyard was other people’s money well spent. Of course the folks in central Pennsylvania don’t like being taxed by the federal government to pay for a bridge in Alaska — they don’t benefit, but bear a portion of the cost. And that’s a fundamental problem with federal subsidization of activities that are — at most — the proper domain of state and local government.
Set aside the fact that the Constitution never intended for the federal government to make such expenditures. While any of these controversial parochial projects will technically have benefits, sound economic decision-making would seek to optimize those benefits versus the costs. In the politicized world of the congressional sausage factory, costs scarcely factor into the equation given that the burden is borne by million of taxpayers spread out across the country. Therefore, I think the few in Congress who crusade against these perceived boondoggles should spend more time trying to educate their colleagues (don’t laugh) and the public on the need to limit the federal government’s ability to spend the money in the first place.
For more on the problems with the federal subsidization of state and local government, please see this Cato Policy Analysis from my colleague Chris Edwards.
What Did the New Deal Do?
There has been much recent debate about whether or not President Franklin Roosevelt’s New Deal policies increased the nation’s economic pain during the Great Depression or led to its end. In today’s Cato Daily Podcast, Regulation Magazine managing editor Thomas A. Firey reveals why erroneous stories about the effects of the New Deal survive despite decades of economic research that tell a different, more nuanced story:
Listening to the fight today among commentators on the left and the right talking about the New Deal and making various claims about it, as far as a stimulus—they’re almost all wrong, and what’s most disturbing to me as an economic historian is this is actually pretty well-plowed ground, so I don’t know how they can be wrong and how no one’s calling them out on it….
…The two stylized stories, the one that nothing got better and the other that the New Deal miraculously fixed everything—both are very clearly wrong when you look at the numbers. But no one wants to tell the real story, because, first of all, it doesn’t fall nicely in an ideological story on either side, and, second of all, it requires work. You have to read stuff and do research and care about the facts, and, let’s be honest, in this political environment, very few people do those things or care about the facts.
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