Archive for the ‘Supreme Court’ Category

I feel compelled to comment on the Supreme Court’s latest Obamacare decision, though I could sum up my reaction with one word: disgust.

  • I’m disgusted that we had politicians who decided in 2009 and 2010 to further screw up the healthcare system with Obamacare.
  • I’m disgusted the IRS then decided to arbitrarily change the law in order to provide subsidies to people getting insurance through the federal exchange, even though the law explicitly says those handouts were only supposed to go to those getting policies through state exchanges (as the oily Jonathan Gruber openly admitted).
  • I’m disgusted that the lawyers at the Justice Department and the Office of White House Counsel didn’t have the integrity to say that handouts could only be given to people using state exchanges.
  • But most of all, I’m disgusted that the Supreme Court once again has decided to put politics above the Constitution.

In theory, the courts play a valuable role in America’s separation-of-powers system. They supposedly protect our freedoms from majoritarianism. And they ostensibly preserve our system of checks and balances by preventing other branches of the federal government from exceeding their powers.

To be sure, the courts – including and especially the Supreme Court – have not done a good job in some areas. Ever since the 1930s, for instance, they’ve completely failed to limit the federal government to the enumerated powers in Article 1, Section 8, of the Constitution.

The Supreme Court’s first Obamacare decision back in 2012 then took that negligence to a higher level.

Now we have a second Obamacare decision. And this one may be even more outrageous because the Supreme Court decided to act as a pseudo-legislature by arbitrarily re-writing Obamacare.

Here’s what George Will wrote about the decision.

The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally. …The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging. …Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights.

Here’s the bottom line, from Will’s perspective.

The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power.

Here’s how my Cato colleagues reacted, starting with Michael Cannon, our healthcare expert whose heroic efforts at least got the case to the Supreme Court.

…the Supreme Court allowed itself to be intimidated. …the Court rewrote ObamaCare to save it—again. In doing so, the Court has sent a dangerous message to future administrations… The Court today validated President Obama’s massive power grab, allowing him to tax, borrow, and spend $700 billion that no Congress ever authorized. This establishes a precedent that could let any president modify, amend, or suspend any enacted law at his or her whim.

Now let’s look at the responses of two of Cato’s constitutional scholars. Roger Pilon is less than impressed, explaining that the Roberts’ decision is a bizarre combination of improper deference and imprudent activism.

With Chief Justice Roberts’s opinion for the Court, therefore, we have a perverse blend of the opposing positions of the judicial restraint and activist schools that reigned a few decades ago. To a fault, the Court today is deferential to the political branches, much as conservatives in the mold of Alexander Bickel and Robert Bork urged, against the activism of the Warren and Burger Courts. But its deference manifests itself in the liberal activism of a Justice Brennan, rewriting the law to save Congress from itself. As Scalia writes, “the Court forgets that ours is a government of laws and not of men.”

And Ilya Shapiro also unloads on this horrible decision.

Chief Justice Roberts…admits, as he did three years ago in the individual-mandate case, that those challenging the administration are correct on the law. Nevertheless, again as he did before, Roberts contorts himself to eviscerate that “natural meaning” and rewrite Congress’s inartfully concocted scheme, this time such that “exchange established by the state” means “any old exchange.” Scalia rightly calls this novel interpretation “absurd.” …as Justice Scalia put it, “normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.” …like three years ago, we have a horrendous bit of word play that violates all applicable canons of statutory interpretation to preserve the operation of a unpopular program that has done untold damage to the economy and health care system.

Now I’ll add my two cents, at least above and beyond expressing disgust. But I won’t comment on the legal issues since that’s not my area of expertise.

Instead I’ll have a semi-optimistic spin. I wrote in 2013 that we should be optimistic about repealing Obamacare and fixing the government-caused dysfunctionalism (I don’t think that’s a word, but it nonetheless seems appropriate) of our healthcare system.

This latest decision from the Supreme Court, while disappointing, doesn’t change a single word of what I wrote two years ago.

P.S. Since today’s topic (other than my conclusion) was very depressing, let’s close by looking at something cheerful.

I’ve commented before that America has a big advantage over Europe because of a greater belief in self-reliance and a greater suspicion of big government.

Well, now we have further evidence. Here’s some polling data from AEI’s most recent Political Report. As you can see, there’s a much stronger belief in self-sufficiency in the United States than there is in either Germany or Italy.

Polling data like this is yet another sign of America’s superior social capital.

And so long as Americans continue to value freedom over dependency, then there’s a chance of fixing the mess in Washington. Not just Obamacare, but the entire decrepit welfare state.

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When I write about the importance of understanding the difference between a disease and its symptoms, I’m almost always seeking to help people understand why it’s important to focus on the problem of government spending rather than the side-effect of government borrowing.

But the same analogy is useful when looking at issues such as lobbying and campaign contributions.

It’s very understandable for people to get nauseated when we see things such as lobbying for corporate welfare or campaign contributions being given in exchange for things such as ethanol subsidies.

So would it make sense to outlaw lobbying or to restrict campaign contributions? Setting aside constitutional issues (the First Amendment protects our rights to petition the government and to engage in political speech), the answer is no.

Why? Because lobbying and campaign contributions are a function of government being too big and being involved in too many areas.

If we shrink the size and scope of the state, we reduce incentives to manipulate the system. But if we leave big government in place, laws to restrict lobbying and campaign contributions will simply lead to different forms of “rent seeking.”

Not surprisingly, leftists want the wrong approach. Here are some excerpts from Dana Milbank’s Washington Post column, which argues that campaign spending is the problem.

…the Supreme Court…has created a campaign-finance system that is directly responsible for the rise of uncompromising leaders on both sides of the Capitol. …Political money was again before the Supreme Court on Tuesday morning, and, judging from their questions, the conservative justices are poised to make things even worse. Milbank CorruptionNow they are prepared to expand on their 2010 decision that caused an explosion of independent spending by allowing the wealthy to give about $3.5 million apiece to candidates and parties in each election cycle. …The 1976 decision in Buckley v. Valeo made government for sale and created the arms race in campaign financing by equating unlimited spending with free speech. The John Roberts court in 2010 made the system dramatically worse in its Citizens United decision, loosening restrictions and spurring wealthy donors to make hundreds of millions of dollars in independent expenditures. …Justice Elena Kagan said those who give $3.5 million should expect “special treatment” from Congress — and Burchfield didn’t disagree. Under the Citizens United decision, he said, “gratitude and influence are not considered to be quid-pro-quo corruption.”

Milbank puts the cart before the horse. Big donors aren’t the problem. We should worry about big government.

If we had the type of limited central government envisioned by the Founding Fathers, there would be very little reason for billionaires (or the rest of us) to spend time or energy worrying about what happens in Washington.

I elaborate in this video on the real causes of political corruption in Washington.

P.S. In the title, I wrote that campaign contributions are a “possible” symptom. That’s because campaign contributions (like lobbying) don’t necessarily imply corruption. If John Doe gives money to someone like Rand Paul, he’s probably not looking for a government handout. But if the realtors cut a big check to someone like Chuck Schumer, it’s quite likely that they’re looking to obtain or preserve some undeserved goodie from Washington.

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I posted five good Obamacare cartoons last week (and included two others in this post and this post), and was planning on stopping there.

But the cartoonists have come out with a lot of good material, so let’s enjoy this new material. After all, we deserve a few laughs before we deal with the pain of more spending and higher taxes.

Let’s start with my favorite, which is very appropriate for today.

Sticking with that theme, here’s one that uses the Constitution instead of the Declaration of Independence.

Here’s one that should be in this same group. It’s very good as is, but I would have replaced the Tea Party flag with either the Constitution or Declaration of Independence (yes, I’m becoming an armchair cartoonist, as you can see here and here)

Since the last two cartoons have mocked Chief Justice Roberts, let’s continue with that theme.

By the way, I can’t resist adding a bit of what Thomas Sowell just wrote.

…there are people in Washington — too often, Republicans — who start living in the Beltway atmosphere, and start forgetting those hundreds of millions of Americans beyond the Beltway who trusted them to do right by them, to use their wisdom instead of their cleverness. …ObamaCare was an unprecedented extension of federal power over the lives of 300 million Americans… These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States. …What he did was betray his oath to be faithful to the Constitution of the United States.

Powerful, but accurate.

Now let’s go with the theme of mocking Both Roberts and Nancy Pelosi.

She’s an easy target, having become infamous for utterly inane comments, so let’s pile on with another.

Now let’s look at another good cartoon, but this one should worry us because it shows the door that Roberts opened.

This seems over the top, but 15 years from now, we’ll look back at this cartoon with better (and bitter) understanding.

Last but not least, here’s a cartoon that should worry Republican readers.

I’ve already explained why Mitt Romney is not a proponent of liberty. This cartoon underscores that sentiment and also shows why he will have a problem going after Obama on this issue.

But that’s a depressing way to end this post, so put all the statists out of your mind. Go out and enjoy the 4th, ideally with some illegal fireworks to show that the spirit of rebellion still exists.

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One of my very first blog posts was about the link between big government and big corruption.

For the rest of my life, I can now cite the Obamacare travesty as an example.

Here’s some of what Tim Carney wrote for the Washington Examiner.

Chief Justice John Roberts’ judicial sleight of hand, transforming Obamacare’s mandate into a tax, was a fittingly twisted save for a law of such grisly provenance. Born of tawdry liaisons between industry lobbyists and political hacks, passed through naked logrolling and legislative skullduggery, Obamacare wasn’t finalized until Thursday, when the chief justice, in effect, amended the bill so that it would become constitutional.

Tim recounts some of the sleaze and corruption that allowed Obamacare to move through Congress.

…within weeks of his inauguration, Obama started playing the game. An early Obamacare confab was held at the headquarters of the Democratic Senatorial Campaign Committee — showing how this was a political exercise as much as a policy one. At this April 2009 meeting, top lobbyists from the drug industry and White House Deputy Chief of Staff Jim Messina hammered out a deal — exposed by recently released emails — whereby the drug industry would pay for pro-Obamacare ads basically written by the White House. Big Pharma would also spend big to re-elect Democrats who voted for the bill. …The Senate bill was authored mostly by Finance Committee Chairman Max Baucus and Majority Leader Harry Reid, probably the two senators most notoriously cozy with lobbyists. To win over wavering Democrats, Reid loaded the bill up with special favors. Nebraska’s Ben Nelson got the “Cornhusker Kickback,” and Reid bought Mary Landrieu’s vote with the “Louisiana Purchase” — both deals giving those states extra Medicaid money. … Democratic staffers who wrote the bill cashed out to K Street nearly immediately, becoming health industry lobbyists. Democratic Reps. Bart Stupak and Earl Pomeroy, who both lost their seats (Stupak retired, Pomeroy was defeated) thanks to their votes for Obamacare, were also rewarded with lobbying gigs for health care companies.

The combination of a politically motivated Chief Justice and a tawdry legislative process led Tim to this conclusion.

If this is how a bill becomes a law, our kids are going to need new civics textbooks.

Since this is a very depressing topic, we need to add some levity. I already did a post with several good Obamacare cartoons, but I can’t resist adding this one.

Returning to our unpleasant topic, Richard Epstein opined last Friday in the New York Times about the Obamacare decision and explained (as I noted last week as well) that the power to tax does not create a power to spend.

By giving Congress independent powers over taxation and other revenue sources, the Constitution ended that dependency. But as a quid pro quo, the Constitution also restricted the use of these revenues to classical public goods — benefits that must be given to all citizens, if given to any — like paying off national debts and paying for the nation’s defense. General welfare, mentioned in parallel with these two phrases, is best read as covering only matters that advance the welfare of the United States as a whole. The redistribution of income, or “transfer payments” among citizens, like those mandated under the Affordable Care Act, doesn’t qualify for taxation in this originalist reading of the Constitution. Through the early 20th century, the Supreme Court was cognizant of this tight relationship between the power to regulate an activity directly and to the power to tax it. The basic idea relies on a simple economic insight: taxation and regulation are close substitutes, so a limitation on one power matters little if the other power is still available. There is no practical difference between ordering an action, and taxing or fining people who don’t do that same thing. If the Constitution limits direct federal powers, it must also limit Congress’s indirect power of taxation.

Unfortunately, Supreme Court Justices sometimes don’t care what the Constitution says.

P.S. This is the second time the Obamacare Frankenstein monster has appeared on this blog. He was with his twin brother last time.

P.P.S. This is a post about the unseemly genesis of Obamacare, but I’m a fiscal policy wonk, so I want to remind everyone that this new entitlement will be a budget buster.

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I’m not a lawyer, or an expert on the Constitution, though I sometimes play one on TV.

But I can read, and I’ll agree with my friends on the left that the federal government has a broad power to tax. I wish the 16th Amendment had never been ratified, but its language gives the federal government a green light to rape and pillage.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

That being said, the power to tax is not the same as the power to spend. And at the risk of sounding old fashioned, my big objection to the Obamacare decision is that health care is not listed as one of the federal government’s enumerated powers in Article I, Section VIII of the Constitution.

Sadly, that horse got out of the barn many decades ago, culminating in a horrible 1942 Supreme Court decision that said a man couldn’t grow crops on his own land to feed his own animals for consumption by his own family.

But let’s look at the bright side. Even though the Obamacare case was decided incorrectly, at least the judiciary is beginning to reconsider these issues, thanks in large part to the work of the Cato Institute’s legal scholars and adjunct legal scholars.

P.S. While the federal government has a broad power to tax, I should add that this doesn’t – or at least shouldn’t – vitiate other provisions of the Constitution. This is why it is so disappointing that we’ve seen the erosion of key civil liberties such as the presumption of innocence and the 4th Amendment’s protection against unreasonable searches and seizures.

P.P.S. This Michael Ramirez cartoon about Obamacare and the Constitution is amusing, though that’s not much solace given what happened. And here’s another one of his cartoons, this one on the broader theme of Obama vs. the Founding Fathers.

P.P.S. Speaking of cartoons, this one seems especially appropriate today.

If you like that one, you can see another Breen cartoon here.

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I was born 54 years ago in the People’s Republic of New York.

Back then, all I wanted was a new baseball glove

But I don’t mention that because I want you to send me a present or to say Happy Birthday.

Instead, I’m hoping at least five of the Justices on the Supreme Court will make this day special by rejecting Obamacare.

And I mean the entire legislation, not just the mandate. I want them to throw out all the new taxes, all the new spending, all the new subsidies, and all the new market distortions.

My video on Obamacare, for instance, completely focused on how the legislation would expand the burden of government. The mandate is a bad idea, without question, but it’s also a big mistake to impose more spending and taxes when government already is far too big.

I’m worried, though, that the Court will reject the mandate and decide the rest of the law is okay. Not only does this mean we’ll be stuck with bigger government, but it also creates a scenario where politicians – including squeamish Republicans – may decide to enact other bad laws.

John Stossel shares my concerns about what may happen after a Supreme Court decision.

I’m scared. I fear that even if the Supreme Court overrules most of Obamacare (or did already, by the time you read this), Republicans will join Democrats in restoring “good” parts of the law…parts of Obamacare are popular. People like getting what they think is free stuff.

John elaborates, noting that politicians may enact laws that destroy the insurance market.

…discrimination is what makes insurance work. An insurance regime where everyone pays the same amount is called “community rating.” That sounds fair. No more cruel discrimination against the obese or people with cancer. But community rating is as destructive as ordering flood insurance companies to charge me nothing extra to insure my very vulnerable beach house, or ordering car insurance companies to charge Lindsay Lohan no more than they charge you. Such one-size-fits-all rules take away insurance companies’ best tool: risk-based pricing. Risk-based pricing encourages us to take better care of ourselves. Car insurance works because companies reward good drivers and charge the Lindsay Lohans more. If the state forces insurance companies to stop discriminating, that kills the business model. No-discrimination insurance isn’t insurance. It’s welfare. If the politicians’ plan was to create another government welfare program, they ought to own up to that instead of hiding the cost.

And since big business has a dismaying habit of getting into bed with big government, John isn’t expecting the insurance industry to defend markets.

Women go to the doctor more often than men and spend more on medicines. Their lifetime medical costs are much higher, and so it makes all the sense in the world to charge women higher premiums. But Sen. John Kerry pandered, saying, “The disparity between women and men in the individual insurance market is just plain wrong, and it has to change!” The industry caved. The president of its trade group, Karen M. Ignagni, said that disparities “should be eliminated.” Caving was safer than fighting the president and Congress, and caving seemed to provide the industry with benefits. Insurance companies wouldn’t have to work as hard. They wouldn’t have to carefully analyze risk. They’d be partners with government — fat and lazy, another sleepy bureaucracy feeding off the welfare state. Alcoholics, drug addicts and the obese won’t have to pay any more than the rest of us. But this just kills off a useful part of insurance: encouraging healthy behavior. Charging heavy drinkers more for insurance gives them one more incentive to quit. “No-discrimination” pricing makes health care costs rise even faster.

I’ve repeatedly written that the only way to fix healthcare is to get rid of the government-created third-party payer problem.

Unfortunately, that will be very difficult precisely because people like the illusion that they don’t pay (even though they do bear the costs in the form of lower take-home wages and higher taxes).

So while I want a full-repeal birthday present from the Supreme Court, that will only provide fleeting happiness unless we solve the third-party payer problem caused by Medicare, Medicaid, tax distortions, and other forms of government intervention.

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I’ve narrated a video on the fiscal nightmare of Obamacare and written several times about the serious problem of government-caused third-party payer – including just as few days ago while nit-picking about an otherwise excellent column by Robert Samuelson (and I’ve even used the abortion market to make the point that prices don’t rise when consumers are spending their own money).

But, other than mocking E.J. Dionne’s sophomoric understanding of America’s political system and making a general point about how the judicial branch is supposed to protect us from untrammeled majoritarianism, I haven’t said much about the constitutional issues being discussed at the Supreme Court.

Simply stated, I’m not a lawyer or an expert on the Constitution, so I try not to pontificate too much where my knowledge is lacking. Fortunately, though, I can turn to others who are competent to discuss such matters, and this new Learn Liberty video is a great introduction to the key issue that the Justices must decide.

Seems pretty straightforward. For all intents and purposes, the Justices are being asked to decide whether the Founding Fathers were serious when the outlined the limited powers of the federal government.

Let’s all keep our fingers crossed that the Court will imminently announce that the entire law is unconstitutional.

P.S. The Learn Liberty videos are superb. Here’s one on protectionism and here’s another about how excessive federal spending is America’s real fiscal problem.

P.P.S. Just in case the Court makes the wrong decision, here’s some Obamacare humor to cheer you up, including one on a new medical device the Administration is introducing, a cartoon about the real impact of the new health system, an R-rated explanation of the difference between private health care and government health care, the White House’s new motto for Obamacare, and (ouch!) a look at vasectomies once the government is in charge.

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