Obama Offers States ‘Flexibility’ to Adopt Single-Payer instead of ObamaCare
The New York Times reports:
Seeking to appease disgruntled governors, President Obama plans to announce on Monday that he supports amending the 2010 health care law to allow states to opt out of its most burdensome requirements three years earlier than currently permitted.
It’s significant that the president is finally acknowledging that ObamaCare is unworkable and will impose enormous burdens on the states. Or is he?
A closer look shows that the president is not lifting the burdensome requirements ObamaCare imposes on states. All he’s doing is proposing to move up, from 2017 to 2014, the date on which states can apply for federal permission to impose a different but equivalently or more coercive plan to expand health insurance coverage. Here’s what the Times says about the legislation Obama will reportedly endorse, which was introduced by Sens. Ron Wyden (D-OR) and Scott Brown (R-MA):
The legislation would allow states to opt out earlier from various requirements if they could demonstrate that other methods would allow them to cover as many people, with insurance that is as comprehensive and affordable, as provided by the new law. The changes also must not increase the federal deficit.
If states can meet those standards, they can ask to circumvent minimum benefit levels, structural requirements for insurance exchanges and the mandates that most individuals obtain coverage and that employers provide it. Washington would then help finance a state’s individualized health care system with federal money that would otherwise be spent there on insurance subsidies and tax credits.
So states can “opt out” of ObamaCare’s individual mandate if they cover as many people, with as many benefits, and as many government subsidies, as ObamaCare would. The Times quotes “administration officials” on how states might do that:
The administration officials said the so-called state innovation waivers in the Wyden-Brown bill might allow a state to experiment with ways to entice people to obtain insurance rather than requiring them to buy policies. It also might allow interested states to establish a single-payer system in which the government is the sole insurer. Gov. Peter Shumlin, a newly elected Democrat in Vermont, is pursuing such a proposal.
No such state plan can make a dent in the federal laws that are fueling the relentless growth in the cost of health care (see Medicare, the federal tax treatment of health care, etc.). Therefore, the only way that states could cover as many people as ObamaCare does is by using ObamaCare’s tactic of forcing people to buy exorbitantly costly health insurance. And if they’re not going to use an individual mandate, the only remaining option is a single-payer health care system.
President Obama’s move is not about giving states more flexibility. It’s about moving the nation even faster toward his ideal of a Canadian- or British-style single-payer health care system.
First, They Came for the Sex Offenders
First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress. The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.
Next, they will come for suspected terrorists. As Dahlia Lithwick (who I rarely agree with – here is her commentary on the Heller case) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.
I saw this firsthand last summer when I attended a scholars meeting with the Obama administration’s Detention Policy Task Force (the same one that Andy McCarthy publicly refused to attend). I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record). I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism. Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas. This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.
I responded forcefully that such a system is antithetical to American traditions of due process. Battlefield detention is necessary to incapacitate insurgents and terrorists overseas, and is often employed in lieu of killing them. Broad powers of detention without trial in the criminal context do not make Guantanamo less controversial; they bring it on to our shores and in to our courtrooms. If we have enough information to show that someone is a threat by a preponderance of the evidence in order to detain them, we probably have enough to indict them for conspiracy. One of the reasons that few people turn to political violence in the United States is that the Bill of Rights bars the government from telling the citizenry how to worship, what to think, and what they can say. Generally speaking, you have to actually be a criminal to get charged as one.
Would the votes in Comstock translate into a Supreme Court ratification of such a system? Probably not, since Kennedy and Alito stressed in their concurrences that the circumstances in Comstock are unique. And Hamdi showed us that Scalia takes habeas corpus rights seriously when it comes to citizens. Unfortunately, only Stevens shared this view and he looks to be replaced by Elena Kagan, who argued that civil commitment in Comstock was an extension of Congress’ power to create and run a prison system (not an enumerated power). But this isn’t about counting the noses currently on the Court; it’s about creating a new normal where the people in prison are detainees, not defendants.
Unfortunately, there are more than a few people in favor of such a system. Jack Goldsmith and Neal Katyal (now the acting Solicitor General) propose a terrorism court. Sens. McCain and Lieberman want to treat all terrorism suspects as enemy combatants. Sens. Lieberman and Brown want to strip the citizenship of terrorism suspects and try them by military commission. Sens. Graham and McCain plan to close Guantanamo by creating a preventive detention court. Take a conservative plan to deal with enemy combatants captured on the other side of the world, strap on some liberal angst over tea parties and militia groups, and you’ve got a bipartisan plan for wholesale degradation of everyone’s liberties.
And when the proposal comes, the first thing they’ll say is that this is how we already deal with sex offenders.
Elena Kagan, Super Tuesday, Tea Parties, Guns
Just as Tuesday’s primary elections were good news for libertarians, they were bad news for Elena Kagan. Now that Arlen Specter (D-R-D-PA) will never again face an electorate, we will be able to see his true colors, whatever they are – this should be interesting! — on the Senate Judiciary Committee. Blanche Lincoln (D-AR), assuming she wins her June 8 primary run-off (having to tack left to do so), will be a possible vote against Kagan so she can show skeptical Arkansans that she’s not an Obama-Reid-Pelosi rubber stamp. And Rand Paul’s trouncing of establishment candidate Trey Grayson in the Republican primary should strike fear into the hearts of all senators running for re-election this fall (or even 2012) such that they refuse to accept pablum from a judicial nominee’s testimony.
The above races, combined even more notably with Scott Brown’s victory in Massachusetts in January, reinforce that voters are upset with Washington and they ain’t gonna take it any more. Put simply, this fall’s election is shaping up to be a repeat of 1994 — except now we have protesters, the Tea Party movement, actively opposing every type of government expansion, bloat, and “stimulus” emanating from the federal government. Elena Kagan will still get confirmed but she will face tough questions about the limits on government power; a 59-seat majority is nothing to sneeze at, but her confirmation margin is eroding every day.
Turning to one aspect of Kagan’s record that will get some attention in coming weeks, Ken Klukowski of the American Civil Rights Union argues that the nominee “confirms that President Obama’s gun-control agenda is to create a Supreme Court that will ‘reinterpret’ the Second Amendment until that amendment means nothing at all.” Now, even though Ken and I have tangled before, I have no doubt that Obama is not the best president ever for the defense of the natural right to keep and bear arms for self-defense. Still, Ken’s claim here that Kagan’s decision not to file a brief on behalf of the United States in McDonald v. City of Chicago indicates that she is anti-gun rights is specious.
Doug Kendall of the Constitutional Accountability Center — a progressive group that nevertheless has the intellectual integrity to support the application of the right to keep and bear arms via the Privileges or Immunities Clause — has a detailed refutation to these allegations:
As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense. It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.
As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.
From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.
On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case. As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.” Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.
General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.
In short, as Josh Blackman says, Kagan had plenty of reasons not to file a brief in McDonald and her decision not to says absolutely nothing about her views on the right to keep and bear arms. Again, I have no doubt that Elena Kagan, being a standard modern liberal, is no friend of the Second Amendment. But the evidence Ken Klukowski purports to marshal is no evidence at all.
The Lieberman-Brown Bill and Your Right to Stay out of Gitmo
The attempted Times Square bombing prompted Senators Joseph Lieberman (I-CT) and Scott Brown (R-MA) to propose that anyone suspected of providing material support, as defined by 18 U.S.C. § 2339A, to State Department-listed terrorist groups be stripped of their citizenship. As Julian Sanchez points out, existing law provides for expatriation for a number of reasons, but in two distinct categories. The first is for actions that demonstrate intent to relinquish citizenship: swearing loyalty to another nation, serving in a foreign military as an officer or non-commissioned officer (or in any capacity if that country is at war with the United States), formal renunciation before a diplomatic official, and similar actions. The second is for serious crimes against national security: treason, rebellion, insurrection, advocating the overthrow of the government, seditious conspiracy, and levying war against the United States.
As Julian and I point out in this piece at Politico, there is a key difference between the existing expatriation provision and the Lieberman-Brown proposal.
The existing expatriation capacity triggers, if at all, after conviction for listed crimes against national security. The Lieberman-Brown proposal would strip citizenship where there is an allegation of material support to a Foreign Terrorist Organization.
With this very important distinction, it is clear that the Lieberman-Brown bill does not merely update expatriation law for the 21st century. I discuss some of the low points of this legislation in this podcast:
This bill is an end-run around the jurisdictional limitation of the military commissions. After expatriation, a former citizen could be shipped off to Guantanamo for trial by a panel of military officers for a domestic crime. This is a step that the Bush administration never took. The military commissions, from the original executive order through the Military Commissions Acts of 2006 and 2009, are limited in jurisdiction to non-citizens. This is an attempt to take terrorism prosecutions out of civilian federal courts, which already effectively deal with domestic terrorism, and put defendants in a forum where they will have fewer rights.
What if the defendant is expatriated by a preponderance of the evidence (51% sure that they provided material support to an FTO) but are acquitted at the commission? Now we have the possibility of a natural-born non-citizen, who, unlike the traditional expatriation subject, has no other nationality to fall back on.
This procedure won’t pass constitutional muster anyway, as David Cole points out. Citizenship cannot be stripped so lightly against a person’s will.
In short, this is an ineffectual political stunt that aspires to be a radical threat to civil liberties. This proposal shouldn’t become law.
The ‘What Reasonable Doubt?’ Act of 2010
Sens. Joe Lieberman (I-CT) and Scott Brown (R-MA), joined on the House side by Reps. Jason Altmire (D-PA) and Charlie Dent (R-PA), today introduced a little publicity stunt in legislative form called the Terrorist Expatriation Act, making good on Lieberman’s pledge to find a way to strip the citizenship of Americans—whether naturalized or native born—who are suspected of aiding terrorist groups. It does so by amending the Immigration and Nationality Act, which lays out the various conditions under which a person may renounce or be deprived of citizenship.
A couple things to note about this:
First, the act as it stands now contains a provision that could probably be used to revoke the citizenship of terrorists. One of the ways to trigger the loss of citizenship is by:
committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them…
So why isn’t this enough to satisfy them? Well, I left off the very end of the clause:
if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
Needless to say, actually “bearing arms against the United States” is a rather more serious offense than providing “material support” for terrorist groups. Indeed, someone who knowingly provides funding or “expert assistance” (including legal or humanitarian aid) to a designated group may, under current law, be guilty of providing “material support.” Yet these more serious acts of betrayal still require that someone be convicted in court before the penalty of expatriation can be imposed. If they want to revoke Faisal Shahzad’s citizenship, they can do it already: just convict him of one of those offenses.
Federal Pay Gap Reversed
I’ve long raised concerns about the rapidly rising costs of federal worker pay and benefits. Despite the obvious acceleration of federal compensation above private compensation in recent years, federal unions have continued to claim that federal workers suffer from a giant “pay gap,” which is currently supposed to be 26 percent.
Unfortunately, the pay gap mythology has been spread by Washington Post reporters, one recently writing, “The budget answers critics … who say federal civilians earn much more than private-sector workers… [G]overnment figures indicate that federal employees are underpaid by 26 percent compared with their counterparts in similar position in the business world.”
The Post is generally a great paper, but they seem to have blinders on with respect to federal pay issues. As a result, the USA Today has repeatedly scooped them. USA Today has a groundbreaking piece today revealing that in job-to-job comparisons, federal workers typically have wages 20 percent higher than private-sector workers.
Instead of federal workers suffering from a 26-percent “pay gap,” they actually have a 20-percent advantage over private sector workers. And that doesn’t include benefits, which are four times higher in the federal government than in the private sector, on average.
How could the federal unions get it so wrong? The calculation of the supposed 26-percent pay gap is reported in this annual memo. But the underlying calculations are extremely complex, non-transparent, and subject to a huge degree of statistical modeling.
The Libertarian Vote in the Age of Obama
Scott Brown’s victory in Massachusetts seems to reflect some of the trends David Kirby and I note in our new study, “The Libertarian Vote in the Age of Obama,” released today. We wrote, “Libertarians seem to be a lead indicator of trends in centrist, independent-minded voters. If libertarians continue to lead the independents away from Obama, Democrats will lose 2010 midterm elections they would otherwise win.” That seems to have happened in Virginia, New Jersey, and now Massachusetts. Young voters, whom we examine in the study, also seem to have moved sharply in Massachusetts from heavy support for Obama in 2008 to slightly less strong support for Brown this week.
Using our strict screen based on American National Election Studies data, we find that 14 percent of voters were libertarian in 2008. Other analysts using broader criteria find larger numbers. Gallup calculates the distribution of ideology every year and found that libertarians made up 23 percent of respondents in their 2009 survey. Our analysis of data from a 2007 Washington Post-ABC News poll found that people with libertarian views were 26 percent of respondents. And a Zogby poll found that 59 percent of Americans would describe themselves as “fiscally conservative and socially liberal,” while 44 percent would accept the description “fiscally conservative and socially liberal, also known as libertarian.”
Libertarian voters swung away from Bush and the GOP in 2004 and 2006, but in 2008 they swung back, voting for McCain by 71 to 27 percent, presumably because the prospect of a Democratic president with a Democratic Congress in the midst of a financial crisis was frightening to small-government voters. Also, while many libertarian intellectuals had a real antipathy to McCain, the typical libertarian voter saw McCain as an independent, straight-talking maverick who was a strong opponent of earmarks and pork-barrel spending and never talked about social issues.
One encouraging point in the study: libertarians may be becoming more organized. In our 2006 study we wrote, “Social conservatives have evangelical churches, the Christian Coalition, and Focus on the Family. . . . Liberals have unions. . . . Libertarians have think tanks.” In the past three years, however, libertarians have become a more visible, organized force in politics, particularly as campaigns move online. Note the Ron Paul campaign and the heavy libertarian involvement in the widespread and decentralized “Tea Party” movement.
The new study also includes new data on young libertarian voters, Ron Paul voters, libertarians and abortion, “secular centrist” voters, and how libertarians voted for Congress in the past five elections.
Lessons from the Brown Victory in Massachusetts
In this new video, Cato’s David Boaz and John Samples evaluate what Scott Brown’s victory in Massachusetts means for Democrats and Republicans in the near and far term. Samples and Boaz contend that Tuesday’s election sent a message to Democrats that they have clearly overreached, but Republicans need to be careful and realize that they’re still not very popular either.
John Samples is the author of the forthcoming book, The Struggle to Limit Government, available soon at the Cato store.
Scott Brown and the Future Supreme Court Vacancy
Josh Blackman and Lyle Denniston offer some thoughts on the effect of Scott Brown’s Massachusetts earthquake on the looming retirement of — and the nomination of a replacement for — Justice John Paul Stevens. Josh and Lyle both latch onto the idea that Brown’s providing the 41st vote to sustain a potential Republican filibuster could cause President Obama to nominate someone more moderate than would be the case if the Democrats had maintained their super-majority. Lyle goes on to speculate that both Obama and Senate Democrats, looking to this fall’s election, will generally want to tack right in the face of an emboldened GOP and impatient electorate.
I think this sort of analysis is a misapplication of otherwise correct political analysis to the sui generis event that is a Supreme Court nomination. Yes, Scott Brown’s presence in the Kennedy people’s seat will change the dynamic of the health care debate, definitively kill cap and trade, otherwise alter the Democrats’ legislative agenda — and even affect lower court nominees. But I’m not so sure it will affect Obama’s calculus in picking a new Supreme Court justice.
Here’s why: Despite having been a constitutional law professor — whom I did not have when I was in law school, though I passed him in the halls a few times — the president has not really tried to advance his ideological agenda in the courts. It’s bizarre, really, that judicial nominations have not at all been a priority for this administration given that few people pay attention to lower court appointments and this could have been a place where the president could have thrown some bones to his base at little political cost (and certainly far less cost than the rest of his domestic agenda).
Moreover, based on the Sotomayor nomination, we see that when it comes to the Supreme Court, Obama is much more about affirmative action than appointing either the best-qualified Democrats or the most ”progressive” ones (or both, to provide a counterweight to Justice Scalia). (Note that Sotomayor at the time of her nomination was nowhere near the best or most left-wing member of the federal judiciary.) Even with a filibuster-proof Senate majority, we would have been unlikely to see a Cass Sunstein or Harold Koh pick — though each took not insignificant heat and delay in being confirmed to regulatory czar and head State Department lawyer, respectively. (And Larry Tribe is too old.)
With Sonia Sotomayor, Obama hit the “twofer” of a woman and a Hispanic (the first unless you count Benjamin Cardozo). With the Stevens replacement, women and minorities are still slightly preferred but the key “diversity” quota to fill is “non-judge” — and, per the above, a non-controversial one on whom the president won’t have to spend much political capital.
And so, while the prohibitive favorite — solicitor general Elana Kagan (and a woman) – is no surprise, you heard it here first that the other likely nominees, in no particular order, are Janet Napolitano (DHS secretary, woman), Deval Patrick (Massachusetts governor, black), Jennifer Granholm (Michigan governor, woman), Kathleen Sullivan (former Stanford dean, lesbian), Amy Klobuchar (senator, woman), and Akhil Amar (Yale law professor, South Asian). I’ll comment on their relative merits in future posts, but nobody on that list is both a radical and an intellectual heavyweight, and the list has not changed with Scott Brown’s election (though the indirect spotlight during the campaign on Gov. Patrick’s unpopularity might have hurt his chances).
The Tea Party Comes Home
Today, Politico Arena asks:
The message from Massachusetts
What now for the Democratic agenda?
My response:
Listening to Scott Brown’s long, barely scripted acceptance speech last night, you had the refreshing sense that you were listening to an ordinary American, not to some political cut-out. Here’s a guy who campaigned in a pick-up truck with over 200,000 miles on the odometer, who listened to the voters and understood that they wanted not simply to block tax hikes but to lower taxes (and the last thing they wanted was for their taxes to pay terrorists’ lawyers bills!), who understood that even worse than the health care bill now before Congress were the back-room deals that brought it about, who’s served proudly for 30 years in the National Guard — in short, here’s guy you’d be comfortable having a beer with because, as he said, “I know who I am and I know who I serve.”
Which brings to mind the famous Rose Garden beer the president and vice president shared with Prof. Gates and Sgt. Crowley — speaking of (dis)comfort. And that brings to mind Cambridge, which stayed true blue, 84-15, Walter Russell Mead informs us this morning in his delightfully tongue-in-cheek Arena post. (“First, some good news for Democrats: the base is secure.”) As goes Harvard, so goes Berkeley.
But to today’s Arena question. The Democratic left is predictably outraged that “the people” they so love in the abstract have so disappointed them in the concrete. Exhibit A is last night’s Arena post by The Nation’s Katrina vanden Heuvel. Railing against “the Tea Party’s inchoate right-wing populism” (if it’s infested Massachusetts, shudder to think of it in Idaho!), Katrina tells Obama to “get tough, get bold, kiss ‘post-partisanship’ goodbye,” and “put yourself squarely back on the side of working people” by “passing the strongest possible healthcare bill as quickly as is feasible.” And there’s the cliff, Katrina.
Lanny Davis has more sober advice for Obama in this morning’s Wall Street Journal. To those who are pointing fingers at Martha Coakley, Lanny says, “This was a defeat not of the messenger but of the message” — the unrelenting leftism that has come from this White House and this Congress. And he points, by way of instruction, to Bill Clinton’s response to the disastrous elections of 1994, though he doesn’t mention Clinton’s ringing, albeit inaccurate, description of his course-change — “The era of big government is over.” Is it in Obama’s DNA to make such a course correction? Does he have a reset button?
On health care, Obama and his party are in an almost impossible situation. If they press ahead, as Nancy Pelosi and others are urging, the cliff awaits them in November. But if they abandon their project, what will they run on in November? It’s a mess of their own making, of course, so completely did they misread the election of 2008. What better evidence of the endurance of principles of sound, limited government that some two centuries later, The Tea Party has come home to Boston.
Happy Anniversary, Mr. President
I have some thoughts on Obama after one year at npr.org:
Happy anniversary, Mr. President. Scott Brown’s victory in Massachusetts is a rude ending to a year marked by falling poll ratings and growing opposition to his signature policy initiatives….
President Obama has several models to choose from: He could reverse his tax-spend-and-regulate policies and hope for the same economic and political results that Reagan achieved. He could, like Bill Clinton, recognize the political obstacles to his sweeping ambitions and learn to work with Republicans on modest reforms. He may well end up like Lyndon Johnson, with an ambitious domestic agenda eventually bogged down by endless war. But I don’t think his wished-for FDR model — a transformative agenda that is both popular and long-lasting — is in the cards.
Read it all. And be sure to hit “Recommend” at the top and add a Comment.
Can Scott Brown’s Election Stop the Federal Takeover…of Education?
Yesterday, I wrote about President Obama’s proposal to extend the Race to the Top program, this time letting school districts completely bypass state governments and apply directly to the feds for funding. I pointed out that the proposal was one among several troubling signs that Obama intends to put Washington fully — and, of course, unconstitutionally — in charge of American education. At the time, I didn’t realize how right I was.
When I was writing yesterday I was basing my comments on documents from the White House’s website and hadn’t yet read the details of what went on at the President’s photo-op announcing the proposed extension. I sure wish I had: At the dog-and-pony show, the President just came right out and said that he wants to push aside states — mentioned by name was famous holdout Texas — that dared to invoke the Constitution and not participate in a program that was, Constitution or no Constitution, supposed to be voluntary.
“Innovative districts like the one in Texas whose reform efforts are being stymied by state decision-makers will soon have the chance to earn funding to help them pursue those reforms,” intoned the President.
Fortunately, Texas Governor Rick Perry wasn’t about to be cowed: “I will say this very slow so they will understand it in Washington, D.C.: Texas will fight any attempt by the federal government to take over our school system.”
So it’s pretty certain now, more so even than just 24 hours ago: President Obama wants to federalize American education.
Thankfully, a lot can clearly happen in 24 hours. Yesterday’s election of Scott Brown in Massachusetts could very well send shockwaves of fear through the ranks of Democratic (and maybe even Republican) legislators in DC, who might finally get the message that Americans just don’t like federal takovers. Heck, perhaps even the President will get the message. If so, then maybe even something as relatively small as a $1.35-billion scalpel designed to cut through states and get right at districts could be seen as too dangerous to handle.
That’s speculation, of course, but we should know a lot more in just, oh, the next 24 hours.
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