Archive for the ‘Federalism’ Category
Scott Pruitt, Oklahoma’s attorney general, distinguished himself in writing this op-ed in the Wall Street Journal. This paragraph is especially inspirational to this federalist:
Declining to establish a state exchange allowed Oklahoma to voice its strong political opposition to the Affordable Care Act as a whole, as well as to make a statement that it wanted neither the large-employer mandate nor the individual mandate to have effect within its borders. That was the trade-off. Oklahoma declined the premium tax credits, but freed itself of those mandates, and that was a choice the state was happy to make.
The states aren’t imbeciles that need the federal government’s protection from themselves. They’re co-equal sovereign governments quite capable of making decisions for themselves. In the early 1990s, the federal welfare programs were out of control. States like Arkansas, Massachusetts, Michigan and Wisconsin started experimenting on welfare. First, they got waivers from HHS giving them the authority to experiment.
Thanks to their experimentation, they improved millions of people’s lives.
Another point worth making is that the ACA, aka Obamacare, is an experiment in anti-federalism. Rather than letting states experiment, President Obama pushed a one-size-fits-all plan down our throats. Scott Pruitt and Oklahoma asserted their rights to make their own decision as allowed by the ACA. It might be that Oklahoma made the wrong decision but it’s their decision to make. The fact that they made an informed choice is proof that they weren’t coerced.
In the original Obamacare lawsuit NFIB vs. Sebelius, the Supreme Court ruled that Medicaid expansion was unconstitutional because the ACA didn’t give the states of opting out of Medicaid expansion. The fact that Oklahoma said no, according to Pruitt, made their decision based on the trade-off of not getting IRS subsidies in exchange for not dealing with the individual and employer mandates. That’s a rational choice, something that wasn’t there with Medicaid expansion.
Third, this sort of federal program isn’t antithetical to federalism, it is federalism. As we explained in our amicus brief to the court, this carrot-and-stick approach is found in dozens of federal programs sprinkled throughout the United States Code. The states are not children that the federal government must paternalistically “protect” from the consequences of their choices by rewriting statutes. In our constitutional system, states are free to make decisions and bear the political consequences, good or bad, of those choices.
Frankly, I’d rather trust decisions made at the state level than decisions made by a DC politician or bureaucrat. In fact, it wouldn’t take more than a nanosecond or 2 to make that decision for me.
Technorati: Scott Pruitt, Oklahoma, Attorney General, Federalism, Medicaid Expansion, Individual Mandate, Employer Mandate, IRS Subsidies, King v. Burwell, NFIB v. Sebelius, Anthony Kennedy, SCOTUS, Affordable Care Act, Obamacare
This Peggy Noonan article dovetails nicely with Glenn Reynolds’ excellent column about “Irish Democracy”, which I wrote about in this post. First, here’s Dr. Reynolds’ explanation of the foundation of Irish Democracy:
In his excellent book, Two Cheers For Anarchism, Professor James Scott writes:
One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called ‘Irish Democracy,’ the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.
Simply put, people refusing to buy insurance through the Anything But Affordable Care Act’s exchanges are putting the ABACA in impossible financial straights. This was made necessary when Senate Democrats and this administration wouldn’t listen to the American people. In Ms. Noonan’s opinion, they still aren’t listening:
As the president made his jaunty claims and the senators and congressmen responded semirapturously I kept thinking of four words: Meanwhile, back in America…
Meanwhile, back in America, the Little Sisters of the Poor were preparing their legal briefs. The Roman Catholic order of nuns first came to America in 1868 and were welcomed in every city they entered. They now run about 30 homes for the needy across the country. They have, quite cruelly, been told they must comply with the ObamaCare mandate that all insurance coverage include contraceptives, sterilization procedures, morning-after pills. If they don’t—and of course they can’t, being Catholic, and nuns—they will face ruinous fines.
In this instance, it isn’t just that the Obama administration isn’t listening to the American people. It’s that they’re ignoring the Constitution, too. That’s before considering the fact that this administration made exceptions to the ABACA for its well-connected friends.
The message sent to the nation is exceptionally straightforward: Well-connected friends of Barack Obama get special privileges. People whom this President despises get the shaft. (That’s right. I didn’t forget about the bitter clingers.) President Obama’s disdain for blue collar people isn’t news. It’s just disgusting. That’s why people have turned their back on him.
Meanwhile, back in America…
Meanwhile, back in America, conservatives targeted and harassed by the Internal Revenue Service still await answers on their years-long requests for tax exempt status. When news of the IRS targeting broke last spring, agency officials lied about it, and one took the Fifth. The president said he was outraged, had no idea, read about it in the papers, boy was he going to get to the bottom of it. An investigation was announced but somehow never quite materialized.
If ever there was something that got the masses fuming, it should be the thought of a politically ruthless administration using the IRS as a weapon to eliminate its political enemies. And yes, this administration has used the IRS as a weapon against TEA Party activists and other conservative organizations.
In less than 3 years, we’ll have the opportunity to wipe the memories of this administration from our memory. It’s imperative that we accomplish that. It’s imperative that we elect someone that will listen to the American people. That means electing a pro-reform governor that respects the Constitution, preferably Scott Walker, Bobby Jindal, John Kasich or Mike Pence.
I didn’t include Jeb Bush or Christie in that bunch. They don’t respect the Constitution. People want politicians that don’t think of themselves as being above the Constitution or the rule of law. Bush supports Common Core, which wants to strip away local control of education. That’s certainly anti-constitutional. Christie supports gun control, something totally at odds with the Constitution.
It’s time we elected a president that’s run things and accomplished things that’ve helped families. Bobby Jindal fits that description. While campaigning, he listened to parents who hated the education options their children had. That’s why he pushed for school choice. Thanks to his listening, school choice legislation was signed into law in Louisiana.
John Kasich fits that description. He fought for the same union reforms that Scott Walker did. He also cut taxes while eliminating Ohio’s deficit. Thanks to Gov. Kasich’s popular pro-growth agenda, Ohio is headed in the right direction.
Scott Walker listened to Wisconsinites’ cries for lower property taxes. He pushed union reforms that stripped them of the right to hold school districts hostage by saying that they had to buy health insurance through the teachers union’s insurance company. As a direct result, health insurance costs to school districts dropped dramatically…until the ABACA was semi-implemented.
Whether you call it the TEA Party movement, Irish Democracy or whether it’s just doing what President Reagan believed in, it’s time for conservatives to elect someone that actually wants the people to decide what’s best for them. We don’t need another administration that thinks it’s supremely qualified to tell families what’s best for them.
George Will is right. It’s possible that 4 little words might doom the Anything But Affordable Care Act:
The four words that threaten disaster for the ACA say the subsidies shall be available to persons who purchase health insurance in an exchange “established by the state.” But 34 states have chosen not to establish exchanges.
From a plain language standpoint, this isn’t difficult to predict. If this lawsuit makes it to the Supreme Court and if the justices rule that the plain text of the Patient Protection and Affordable Care Act, which I’ll call the Anything But Affordable Care Act from this point forward, means what it says, then I’d expect a 9-0 ruling that the IRS doesn’t have the authority to change the plain text of the ABACA:
So the IRS, which is charged with enforcing the ACA, has ridden to the rescue of Barack Obama’s pride and joy. Taking time off from writing regulations to restrict the political speech of Obama’s critics, the IRS has said, with its breezy indifference to legality, that subsidies shall also be dispensed to those who purchase insurance through federal exchanges the government has established in those 34 states. Pruitt is challenging the IRS in the U.S. District Court for the Eastern District of Oklahoma, and there are similar challenges in Indiana, Virginia and Washington, D.C.
The history of the bill matters:
Congress made subsidies available only through state exchanges as a means of coercing states into setting up exchanges. In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus (D-Mont.), one of the bill’s primary authors, suggested conditioning tax credits on state compliance because only by doing so could the federal government induce state cooperation with the ACA. Then the law’s insurance requirements could be imposed on states without running afoul of constitutional law precedents that prevent the federal government from commandeering state governments.
In other words, Sen. Baucus understood that the Supreme Court would likely rule the ABACA unconstitutional if the legislation required states to create health insurance exchanges. Without that coercion, only states with out-of-touch far left governors (like Minnesota, New York and Vermont) would’ve created state-run HIXs.
As big a deal as these things are, there’s an even bigger principle at stake here:
If courts allow the IRS’s demarche, they will validate this:
By dispensing subsidies through federal exchanges, the IRS will spend tax revenues without congressional authorization. And by enforcing the employer mandate in states that have only federal exchanges, it will collect taxes; remember, Chief Justice John Roberts saved the ACA by declaring that the penalty enforcing the mandate is really just a tax on the act of not purchasing insurance, without congressional authorization.
If the IRS can do neither, it cannot impose penalties on employers who fail to offer ACA-approved insurance to employees. If the IRS can do both, Congress can disband because it has become peripheral to American governance.
If the Supreme Court gets this one wrong, then it’s over. There are tons of constitutional principles at stake here. That’s before taking the plain language of the bill into consideration.
Let’s be clear, though. I don’t mean to sound pessimistic. I’m not. This is exceptionally straightforward. While it’s important from a constitutional standpoint, it also revolves around whether the justices will pretend that the plain text of the bill doesn’t mean what it means.
The original lawsuit was almost entirely about constitutional principles. This lawsuit is primarily, though not entirely, about the plain text of the ABACA. It’s difficult to think that Chief Justice Roberts will rule that the bill’s text doesn’t mean what it says.
Jeb Bush’s education reform agenda, outlined in this article, starts with the declaration that “The best solution to our nation’s failing educational system is empowering parents.” I don’t disagree with that. It’s that I can’t figure out what empowering parents has to do with implementing Common Core School Standards. Gov. Bush is a big proponent of CCSS.
Consumer choice created the most innovative and powerful economy in the world. Choice makes computers cheaper, images sharper, cars safer, and services faster.
Choice rewards success and weeds out stagnation, inefficiency, and failure.
This is why school choice is critical to the education-reform movement, and why National School Choice Week, which began this Sunday, January 26, is more than just a proclamation. It is a call to action for one of our most cherished principles.
How is it that parents have a say over every aspect of their children’s lives, yet often must delegate the critical decision of where they go to school to political boards and government bureaucracies? This has created an education monopoly that spurns accountability, views innovation as a threat, and prioritizes the job security of employees over the learning of children.
School choice won’t matter if CCSS is adopted because everything will be written at the national level. That means a one-size-fits-all curriculum from coast to coast and border to border.
Text books are already getting ‘adapted’ to fit CCSS. In Bill Gates’ and Jeb Bush’s worlds, adapting text books to that day’s prevailing political correctness is more important than publishing text books that teach students the truth about American history. History books that fit into CCSS’s accepted category preach victimization, not American exceptionalism.
I’m not advocating for only teaching students that America is exceptional. My first criteria is that the truth be told, warts and all, in as great of detail as is applicable to the students’ grade level.
CCSS proponents repeat the mantra that it’s been adopted by state governments. That’s misleading at best. In most instances, it’s been implemented without legislative approval. It was adopted when the executive branch applied for Race to the Top (RttP) funding, effectively bypassing the other political branch of government.
Without people providing checks and balances, systems get corrupted. If you doubt that, how’s HealthCare.gov working out for you? This George Will column highlights why CCSS must be rejected:
At any time, it is more likely there will be half a dozen innovative governors than one creative federal education bureaucracy. And the mistakes made by top-down federal reforms are continental mistakes.
Universalism should be rejected ASAP. That’s because one-size-fits-all approaches a) don’t work and b) aren’t what the people want.
I agree with Gov. Bush that school choice is imperative to improving this nation’s educational system. Unfortunately, his advocacy for CCSS is as counterproductive to school choice as it is detrimental to students.
Glenn Reynolds’ latest USA Today column highlights why the Anything But Affordable Care Act, aka the ABACA, is destined for failure:
In his excellent book, Two Cheers For Anarchism, Professor James Scott writes:
One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called ‘Irish Democracy,’ the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.
Simply put, people, making decisions based on their own self-interests, are saying no to the ABACA. They’re saying no because it’s a rip-off. It’s a rip-off because it was designed by politicians, whose highest priority was passing a bill, not cutting families’ health care costs.
While the political class worries about ‘the art of the possible’, families worry about doing what’s right for their families. The fact is that politicians ignored their constituents when they wrote this bill in Harry Reid’s and Nancy Pelosi’s offices. By making this federal legislation, President Obama eliminated the states’ experimentation, which is the strength of the US’s federalist system.
Top-down, government-centric systems don’t work because they implement a system that isn’t individualized. Does anyone think that a nation that loves its iPhones and individualized apps would accept a system where their health insurance and health care choices are made for them?
It’s possible that something called the Affordable Care Act will still be in place a decade from now. If it still exists, which isn’t guaranteed, it won’t look anything like the system that’s currently in place.
That’s because Americans aren’t satisfied with accepting conventional wisdom. When we see difficulties, our initial instinct is to fix them.
Now, as February draws near, things don’t look much better. Far fewer than half the number needed by March 31 have signed up. And, as it turns out, most of the people signing up for Obamacare aren’t the uninsured for whom it was supposedly enacted, but people who were previously insured (many of whom lost their previous insurance because of Obamacare’s new requirements). “At most,” writes Bloomberg’s Megan McArdle, “they’ve signed up 15% of the uninsured that they were expecting to enroll. … Where are the uninsured? Did hardly any of them want coverage beginning Jan. 1?” It looks that way.
Based on public sentiment, this would’ve been the right time to let a good crisis go to waste. It’s pretty apparent that the people are speaking with a loud, passionate voice that they want this system scrapped. They aren’t sending mixed signals on this. They aren’t sounding an uncertain alarm. They’re saying that a) they don’t want to return to the previous system and b) they’re rejecting President Obama’s top-down system.
What they’re saying with exceptional clarity is that they want to design a system that a) puts them first, b) puts doctors, not politicians and bureaucrats, in charge of the health care system, c) lowers health care costs and d) lets them create their own network of health care providers.
The Anything But Affordable Care Act is 0-for-4 on those merits. That’s why it’s destined for failure.
President Obama’s political decision to rescind the federal government’s pact with Arizona is proof positive that President Obama won’t enforce the federal government’s laws. He’s essentially become the first US Scofflaw-in-Chief. Predictably, Arizona law enforcement is reacting to the Scofflaw-in-Chief’s edict. First, here’s what Gov. Brewer said about the Scofflaw-in-Chief’s decision:
“As though we needed any more evidence, President Obama has demonstrated anew his utter disregard for the safety and security of the Arizona people. Within the last two hours, I have been notified the Obama administration has revoked the 287(g) agreement under the authority of which Arizona law enforcement officers have partnered with the federal government in the enforcement of immigration law.
“Of course, it is no coincidence that this announcement comes immediately on the heels of the U.S. Supreme Court’s ruling upholding the constitutionality of the heart of Arizona’s anti-illegal immigration law: SB 1070. It’s worth noting that 68 law enforcement entities in 24 states have functioning 287(g) agreements with the federal government. But it appears the only agreements eliminated today were those in Arizona, the state that happens to be on the front lines of America’s fight against illegal immigration. We are on our own, apparently.
“I suppose I shouldn’t be surprised. The Obama administration has fought the people of Arizona at every turn, downplaying the threat that a porous border poses to our citizens, filing suit in order to block our State from protecting itself, unilaterally granting immunity to tens of thousands of illegal aliens living in our midst, and now this. Still, the disarmament of Arizona’s 287(g) agreements is a new low, even for this administration.
President Obama has exceptionally thin skin. He also isn’t much into enforcing laws that past congresses have passed and previous presidents have signed into law. Today’s decision to undercut Arizona’s ability to protect its people is the greatest abdication of a president’s domestic responsibilities in the past 25 years.
Arizona is Ground Zero of the immigration battle. Their citizens have been tortured, held hostage or murdered outright. Despite those facts, the federal government has turned a blind eye towards Arizona.
Here’s what Rep. Jeff Flake said:
Mesa, Arizona – Republican Congressman Jeff Flake, who represents Arizona’s Sixth District, today criticized the Obama Administration’s suspension of the Immigration and Customs Enforcement (ICE) Immigration and Nationality Act Section 287(g) program in Arizona, which allows local authorities to partner with federal law enforcement agencies to carry out certain immigration enforcement functions. ICE announced today that with the suspension of the 287(g) program, their agents will not respond to a scene in which a person’s immigration status is in question unless that person is a convicted criminal, has been removed from the US previously and reentered unlawfully, or is a recent border crosser.
“Suspending this program will strip our local authorities of critical tools to deal with illegal immigration,” said Flake. “The Obama Administration is effectively broadcasting that unless an illegal immigrant is wanted for a crime, the attention of ICE isn’t warranted.”
President Obama campaigned against President Bush and Bush’s “imperial presidency.” It’s ironic that his administration is selectively, and intermittenly, enforcing the laws on the books. President Obama has become what he campaigned against.
KrisAnne Hall, whom I met at this year’s RightOnline Conference, wrote this brilliant article about Monday’s opinion written by Anthony Kennedy. I found this part particularly compelling:
Not only is this ruling devoid of any appeal to the Constitution, it is very dangerous. It is an aberration of fundamental Constitutional principles and a brazen assault on state sovereignty! Chiefly, Kennedy takes the Supremacy clause of the Constitution, which declares that the Constitution is the supreme law of the land, and translates that principle into the supremacy of the Federal government over the states. There couldn’t be anything more contrary to our founders’ intent. Let me repeat: this opinion is a monumental assault on the sovereignty of the states.
Article I section 8 clause 4 of the Constitution states that Congress has the power [t]o establish an uniform rule of naturalization. The purpose of the federal government in the case of immigration, as Justice Kennedy appropriately acknowledges is “to be a single voice of the nation for foreign relations.”
This external focus is in line with James Madison’s directive that: “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce…”
Justice Kennedy’s ruling allowed President Obama to continue his disastrous, dangerous policies that endanger people. If Justice Kennedy had the final say in the matter, state sovereignty would’ve disappeared midway through his intellectually flimsy opinion.
Tom Daschle’s op-ed on the fate of O’Care is carefully crafted spin. Not that that’s surprising from a man with tax avoidance issues. In a sense, that should be expected. Here’s how Sen. Daschle frames the O’Care-SCOTUS debate:
With hearings starting Monday, the U.S. Supreme Court is poised to deliver a pivotal decision that will profoundly affect the future of our country. At stake is whether millions of Americans can have greater access to affordable health care coverage or whether the nation’s health care system will be plagued by uncertainty, imbalance and spiraling costs.
The justices are to rule on a critical element of the Patient Protection and Affordable Care Act, the now two-year old, groundbreaking health care reform law. They will determine whether Congress has the authority, under the Commerce Clause of the Constitution, to mandate that every U.S. citizen must buy health insurance.
This is what happens when politicians stay in DC way too long. They start thinking that the American people can’t think for themselve, that they’re incapable of telling markets what they want.
The real debate isn’t over whether O’Care is the solution to our imagined health insurance crisis. It’s whether the U.S. Constitution gives the federal government the authority to dictate its priorities onto the people it purports to serve.
Let’s cut to the chase. The U.S. Constitution doesn’t give the federal government that authority. Whatever the Supreme Court’s ruling, that’s the reality.
If the Supreme Court rules that O’Care is constitutional, it will have ruled that there’s nothing the federal government can’t force people to do. In the end, I suspect that’s why they’ll rule the individual and employer mandates unconstitutional.
Sen. Daschle couldn’t resist making this phony argument:
The only real question, in fact, is whether we have an individual mandate, one that requires individual responsibility, which I always thought was claimed as a conservative value, or we have a community mandate.
This isn’t a real question. It’s Sen. Daschle’s way of exposing his disdain for the Founding Fathers. The Founding Fathers would’ve cringed at the thought of the federal government getting involved in the most intimate parts of people’s lives.
When the federal government imposes its priorities on the people it’s supposed to represent, it loses legitimacy. The Tenth Amendment says that those things not outlined in the Ninth Amendment belong to “the states or the people.” President Obama and Sen. Daschle apparently don’t like that part of the Bill of Rights. Apparently, they’re willing to willfully ignore parts of the Constitution and its amendments.
That’s known as tyranny, which must be stopped ASAP.
Sen. Dashle implies that O’Care will fix all that ails the U.S. health insurance industry. It does nothing of the sort. It makes things worse by telling insurance companies what types of coverage must be included in insurance policies.
Here’s a glimpse at a total fabrication:
Congress was well aware of the experience of these states and knew that the insurance market reforms at the heart of improving coverage under this new act are inextricably linked to a mandate that requires all of us to take responsibility for our health.
If “Congress was well aware” that required a mandate to fix the health insurance industry, why did then-candidate Obama oppose individual and employer mandates?
The truth is that Sen. Daschle is spinning like a top. There isn’t a morsel of truth in his op-ed.
It isn’t a secret that Mitt Romney has an individual mandate crisis with health care. Now it appears as though he’s got a Tenth Amendment problem, too.
Romney is now attempting to defend the indefensible:
Requiring people to have health insurance is “conservative,” GOP presidential candidate Mitt Romney told MSNBC on Wednesday, but only if states do it.
The argument aims to improve Romney’s appeal to Republican voters concerned about the healthcare reform plan he signed into law as governor of Massachusetts in 2006. The Massachusetts law contains an individual mandate similar to the one in President Obama’s healthcare law, which conservatives despise.
“Personal responsibility,” Romney said, “is more conservative in my view than something being given out for free by government.”
“There were two options in my state,” he said. “One was to continue to allow people without insurance to go to the hospital and get free care, paid for by the government, paid for by taxpayers.”
“The best idea is to let each state craft their own solution because that’s, after all, the heart of conservatism: to follow the Constitution,” he said.
Mitt’s difficulties result from his selective reading of the Tenth Amendment. Here’s the language of the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I’d love hearing Gov. Romney’s justification for the state determining what’s best for families as opposed to families deciding what’s best for families.
Is Gov. Romney willing to argue that government-imposed responsibilities on families are preferable to families crafting their own solutions? Doesn’t that sound like Mitt thinks that government knows best?
Certainly, the Founding Fathers thought that the “government that governs least governs best.” Families, not cities, states or the feds, should be the governance of first resort.
It’s apparent that Mitt’s a convenient conservative when it fits his needs. It’s equally apparent that Mitt’s comfortable with government dictating to families what they must do.
That isn’t conservative. That’s liberalism at its worst.
David Rivkin and Lee Casey wrote this must-read op-ed that gives a detailed history of the health care lawsuit in its path to the Supreme Court. Erwin Chemerinsky’s op-ed, unfortunately, is predictable but typically liberal thinking.
Here’s part of Rivkin’s and Casey’s op-ed:
The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, “prohibited by it to the States, are reserved to the states respectively, or to the people.” The court will now determine whether those words still have meaning.
As we argued two years ago in these pages, the Patient Protection and Affordable Health Care Act (aka ObamaCare) is unconstitutional. First and foremost, the law requires virtually every American to have health insurance. Congress purported to impose this unprecedented “individual mandate” pursuant to its constitutional power to regulate interstate commerce, but the requirement is not limited to those who engage in any particular commercial or economic activity (or any activity at all). Rather, the mandate applies to everyone lawfully present in the United States who does not fall within one of the law’s narrow exclusions.
Under our Constitution’s system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of “general police power.” Federal legislation must be grounded in one of the “enumerated” powers the Constitution grants to Congress—such as the power to regulate interstate commerce. Although the Supreme Court has interpreted that power broadly (especially since the 1940s), it has consistently held that the Commerce Clause has limits.
Rivkin and Casey are basing their arguments on what the Constitution says. They clearly understand the thinking of the Founding Fathers. If they didn’t, they couldn’t have grasped the concept of dual sovereignty. That’s a clear distinction from Prof. Chemerinsky’s op-ed:
Not surprisingly, the Supreme Court on Monday agreed to decide the constitutionality of the individual mandate in the Affordable Care Act, the healthcare reform package passed in 2010. Under current constitutional law, this should be an easy case to predict, the law is clearly constitutional. But what complicates the decision and makes the result unpredictable is whether the justices will see the issue in terms of precedent or through the partisanship that has so dominated the public debate and most of the court decisions so far.
The primary issue before the Supreme Court is whether Congress’ power to regulate commerce among the states gives it the authority to require that individuals either purchase health insurance or pay a penalty. The Supreme Court has repeatedly held that under the commerce clause, Congress may regulate economic activity that, taken cumulatively across the country, has a substantial effect on interstate commerce.
Prof. Chemerinsky’s argument essentially is that precedent, not the clearly written text of the Constitution, should determine the outcome. That’s a well-established legal tactic. It’s also wrong. When precedents don’t reflect the content of the Constitution, those precedents must be struck down. The Constitution, not 5 justices with a political preference, should determine whether something’s constitutional.
Here’s another argument from Prof. Chemerinsky:
Thus, under current law, there are two questions: First, is Congress regulating economic activity? Second, if so, looked at in the aggregate, is there a substantial effect on interstate commerce?
The answer to the first question is no, Congress wasn’t regulating economic activity. They were imposing their will without the consent of the governed. The Supreme Court has given wide latitude to cases involving the Interstate Commerce Clause in the past. That’s led to this moment.
Had the justices not bought into clever lawyerly arguments but instead stuck with the Constitution, the long list of precedents that Prof. Chemerinsky now cites wouldn’t exist.
Prof. Chemerinsky argues that politics will determine the Supreme Court’s final ruling. That argument is flimsy at best. The reality is that Prof. Chemerinsky doesn’t like the fact that the ruling will be based on the Constitution, not on precedent.
It’s time to start scrapping precedents when they conflict with the Constitution. It’s time to put limits on the things that the federal government is allowed to do.
From the candidates’ introductions, Newt Gingrich owned Tuesday night’s debate. Here’s what Speaker Gingrich said in his introduction:
FORMER REP. NEWT GINGRICH (R-GA), PRESIDENTIAL CANDIDATE: I’m Newt Gingrich. And unlike President Obama, I’m glad to be in Las Vegas. I think it’s a great place to have a convention.
And, and when I am president, we’re going to replace class warfare with cooperation so all Americans can get off food stamps and onto paychecks.
Everyone on stage and in the auditorium got a hearty laugh from Newt’s calling Vegas “a great place to have a convention.” It’s a stark contrast with President Obama’s ill-advised statements about people blowing their paychecks in Vegas.
That was hardly the only winning line for Speaker Gingrich.
Mitt suffered his first difficult night last night. He got rattled when Gov. Perry went after him on his hiring a lawn maintenance company that employed an illegal immigrant:
PERRY: You stood here in front of the American people and did not tell the truth that you had illegals working on your property. And the newspaper came to you and brought it to your attention, and you still, a year later, had those individuals working for you.
The idea that you can sit here and talk about any of us having an immigration issue is beyond me. I’ve got a strong policy. I’ve always been against amnesty. You, on the other hand, were for amnesty.
COOPER: I’ve got 30 seconds, then we’ve got move on to another immigration question.
You wrote an op-ed in the newspaper saying you were open to amnesty. That’s number one.
Number two, we hired a lawn company to mow our lawn, and they had illegal immigrants that were working there. And when that was pointed out to us, we let them go. And we went to them and said –
PERRY: A year later?
ROMNEY: You have a problem with allowing someone to finish speaking. And I suggest that if you want to become president of the United States, you have got to let both people speak. So first, let me speak.
ROMNEY: So we went to the company and we said, look, you can’t have any illegals working on our property. I’m running for office, for Pete’s sake, I can’t have illegals. It turns out that once question, they hired someone who had falsified their documents, had documents, and therefore we fired them. And let me tell you, it is hard in this country as an individual homeowner to know if people who are contractors working at your home, if they have hired people that are illegal. If I’m president, we’ll put in an E-Verify system, which you have opposed –
“I’m running for office, for Pete’s sake, I can’t have illegals”? That’s a totally pathetic response. Like it’d be ok to have illegal immigrants working for him if Mitt wasn’t running for president? That’s what it came off like.
BTW, that isn’t the only difficulty Mitt has with illegal immigration:
“There were six sanctuary cities, he did nothing about them,” Giuliani said. “There was even a sanctuary mansion. At his own home, illegal immigrants were being employed, not being turned in to anybody or by anyone, and then when he deputized the police, he did it two weeks before he was going to leave office, and they never seemed to even catch the illegal immigrants who were working at his mansion. So I would say he had sanctuary mansion, not just sanctuary city.”
It’s one thing to have an illegal immigrant on the lawn maintenance crew. It’s quite another to know about sanctuary cities while you’re governor, then doing nothing to fix the problem.
It’s worth noting that Mitt looked petty while arguing about immigration.
The other time Mitt looked vulnerable was when Sen. Santorum caught him on health care:
ROMNEY: And — look — look, we’ll let everybody take a look at the fact checks. I was interviewed by Dan Balz. I was in interviews in this debate stage with you four years ago. I was asked about the Massachusetts plan, was it something I’d impose on the nation? And the answer is absolutely not.
It was something crafted for a state. And I’ve said time and again, Obamacare is bad news. It’s unconstitutional. It costs way too much money, a trillion dollars. And if I’m president of the United States, I will repeal it for the American people.
COOPER: All right. Senator Santorum?
SANTORUM: Mitt, the governor of Massachusetts just is coming forward saying we have to pick up the job left undone by Romneycare, which is doing something about cutting health care costs.
What you did is exactly what Barack Obama did: focused on the wrong problem. Herman always says you’ve got to find the right problem. Well, the right problem is health care costs. What you did with a top-down, government-run program was focus on the problem of health care access. You expanded the pool of insurance without controlling costs. You’ve blown a hole in the budget up there. And you authored in Obamacare, which is going to blow a hole in the budget of this country.
COOPER: Governor Romney, I’m going to give you 30 seconds.
ROMNEY: I’m — I’m sorry, Rick, that you find so much to dislike in my plan, but I’ll tell you, the people in Massachusetts like it by about a 3-1 margin.
And we dealt with a challenge that we had, a lot of people that were expecting government to pay their way. And we said, you know what? If people have the capacity to care for themselves and pay their own way, they should.
Now, I can tell you this, it’s absolutely right that there’s a lot that needs to be done. And I didn’t get the job done in Massachusetts in getting the health care costs down in this country. It’s something I think we have got to do at the national level. I intend to do that.
Again, that last sentence will kill Mitt. I’m betting that most people in the United States want nothing to do with a national health care plan. They hate the one that’s already in place. Apparently Mitt thinks people would prefer his national health care disaster over President Obama’s national health care disaster.
The other part of that exchange that’ll sting is where Sen. Santorum said Romneycare increased access but didn’t affect rising health care costs. I’m betting that the overwhelming majority of Americans want affordable health care more than they’re worried about access to health insurance.
Speaker Gingrich’s criticism of the Supercommittee got the biggest applause of the night:
GINGRICH: I mean, if you want to understand how totally broken Washington is, look at this entire model of the super committee, which has now got a magic number to achieve. And if it doesn’t achieve the magic number, then we’ll all have to shoot ourselves in the head so that when they come back with a really dumb idea to merely cut off our right leg, we’ll all be grateful that they’re only semi-stupid instead of being totally stupid.
GINGRICH: Now, the idea that you have a bunch of historically illiterate politicians who have no sophistication about national security trying to make a numerical decision about the size of the defense budget tells you everything you need to know about the bankruptcy of the current elite in this country in both parties. The fact is, we ought to first figure out what threaten us, we ought to figure out what strategies will respond to that. We should figure out what structures we need for those strategies. We should then cost them.
I helped found the Military Reform Caucus. I’m a hawk, but I’m a cheap hawk. But the fact is, to say I’m going to put the security of the United States up against some arbitrary budget number is suicidally stupid.
The supercommittee is disastrous policy. The minute Republicans take control of the White House, the Senate and the House of Representatives, they should void the debt ceiling deal. Then they should get serious about cutting discretionary spending while reforming entitlements.
If Newt’s the president, there’s no doubt but that he’ll balance the budget, get the economy roaring again, cut spending and reform entitlements. That’s a series of major tasks. Still, it’s what Newt’s done his entire political career.
To me, the winner of last night’s debate was Newt, followed by Michele Bachmann, Rick Perry, Herman Cain, Rick Santorum, Ron Paul, with Mitt having a disastrous night.
UPDATE: Ed’s analysis of how Mitt responded to the immigration issue is spot on:
Romney got rattled on stage, and everyone knew it. He lost his temper, raised his voice, and looked decidedly uncool in his efforts to push back on immigration, a topic which Romney used in earlier debates as a club against Perry.
He later said this:
This is the first debate Romney unquestionably lost. Perry won to an extent by exceeding expectations and staying in the fight the entire debate, but was it a breakout performance? Doubtful, although it might be enough to get a few of his supporters back in the fold and regain a little momentum. But the real winner might be Newt Gingrich, who despite having one bad moment with Romney on the health-care mandate once again came out looking positive, well-informed, and fit for battle.
I heartily agree with Ed’s observations.