Entries Tagged as 'individual mandate'

Why Kagan Has Skin in the Game

December 5th, 2011 at 12:00 am 52 Comments

In my last post I argued that Justice Elana Kagan is obliged by 28 U.S.C. 455 (b)(3) of the federal recusal statute, see which applies to Supreme Court justices, to recuse herself from the challenge to the Obama Health Care law. The provision requires a judge to recuse if he or she “has served in governmental employment and in such capacity participated as counsel, adviser… concerning the proceeding or expressed an opinion concerning the merits of the case in controversy.”

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Res Judicata: The Case for Kagan’s Recusal

November 28th, 2011 at 12:02 pm 49 Comments

The Solicitor General of the U.S. (a position Elana Kagan held in 2010) is the government’s advocate in every case heard in any federal court. Typically the Solicitor will personally argue some cases in the Supreme Court. He or she will certainly be involved with any case that challenges the constitutionality of a federal law.

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A Decision That Will Set Libertarians’ Hair on Fire

November 8th, 2011 at 5:36 pm 27 Comments

Judge Silberman has issued another tour de force in the extremely interesting opinions generated by Obamacare. I have noted other opinions on Obamacare’s constitutionality but this one is full of interesting tidbits.

The first and most interesting tidbit is who wrote it. The Honorable Laurence H. Silberman is no hippie.

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Who is Judge Silberman?

November 8th, 2011 at 4:27 pm 17 Comments

Who is Laurence H. Silberman, the judge who has just written a ruling for the DC Appellate court upholding the President’s healthcare law?

He is a judge who came of age at the time when conservatives were responding to the activism of the Supreme Court in the 50′s and 60′s. He is a significant member of the conservative legal world, with membership in the Federalist Society and with a record of service in the Nixon, Ford, and Reagan administrations.

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Now SCOTUS Has to Rule on Obamacare

November 8th, 2011 at 2:02 pm 51 Comments

By a 2-1 vote a panel of the U.S. Court of Appeals for the District of Columbia has upheld the constitutionality of the Patient Protection and Affordable Care Act, President Obama’s healthcare law.

The plaintiffs, taxpayers rather than states, contended that the mandate to purchase health insurance exceeded Congress’ powers under the commerce clause of Art. I of the constitution.

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Worry About Costs, Not Mandates

October 11th, 2011 at 6:05 pm 29 Comments

Revelatory Headline: “White House used Mitt Romney health-care law as blueprint for federal law.”

I am no fan of Obamacare. The notion that a top down system will control costs flies in the face of the fact that virtually every advanced country on earth that has a top-down scheme to manage its health care system has a rate of growth in costs that matches ours. The only difference is that we start at a much higher baseline, shop the result of high prices and high availability of services and technology.

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Obamacare Won’t Die in the Courts

June 29th, 2011 at 5:48 pm 31 Comments

The Sixth Circuit’s decision upholding the constitutionality of President Obama’s massive health reform bill is a death knell for the current Republican strategy of bloviating against the bill and hoping that it will, somehow, go away. Although I dislike the bill quite a lot, I’m not convinced that it is unconstitutional and I’m very skeptical of the idea that conservatives should ever cheer judicial efforts that attempt to strike down broad democratically determined policies, if there’s any wiggle room not to do so. (In other words, ending segregation made sense because it clearly violates the 14th amendement, while extensive precedent provides Congress with broad powers to tax and mandate.)

Quite simply, the law should be a wake-up call for conservatives to start formulating “plan B” on health care–a legitimate replacement for most of Obamacare’s bad features. Conservatives should embrace solutions like a near-universal premium support mechanism as a replacement for the patchwork of subsidies that Obamacare provides, taxes on employer-provided health insurance (not as a revenue raising measure but, rather, to encourage the emergence of a system where people buy their own health coverage), straightforward cuts in subsidies Obama wants for the middle class, and greater use of waivers to let states experiment with their own solutions.

A real plan isn’t going to be possible without compromises. For example, getting insurers to cover pre-existing conditions as the most recent Republican platform and the Pledge to America says the GOP wants to happen, isn’t going to be possible unless a Republican plan also includes a tax provision (it can be called a “health tax credit,”  if it makes people happy) that’s basically equivalent to the individual mandate. Although they might be rearranged, furthermore, most of the reductions in Medicare spending also make sense and should probably stay in place. Finally, if Republicans really want states to become laboratories of democracy, they need to write waiver language that supports both free-market experiments and market restricting ones. Above all, however, the decision should wake Republicans up to the fact that they have to get serious about healthcare reform.

Obamacare Divides the Sixth Circuit Court

June 29th, 2011 at 5:47 pm 14 Comments

Say what you want about Obamacare, it has generated tremendous opinions on first principles of Congressional and Constitutional power.  A little while ago, the Sixth Circuit rejected a facial challenge to the bill popularly (among Republicans, anyway) known as Obamacare.  The panel was split 2-1. One of the concurring opinions notes that he felt compelled by Supreme Court precedent to rule this way, but the Supreme Court can walk back its previous pronouncements in a way lower courts may not.  I will not focus on Judge Martin’s majority opinion because I think it is not as interesting, simply upholding federal power against its opponents.  The concurring and swing judge, Sutton, says the most interesting things in my view.

The government lost one important point all across the board: Congress imposed a penalty, not a tax.  This is important because this bill is unlikely to be able to fall back on taxing power for its legitimacy.  It stands or falls-as all the judges acknowledged-on the breadth of the Commerce Power.

The Court was so divided that everybody wrote an opinion.  Judge Martin simply upheld the law as an exercise of the commerce power and the individual mandate as a way to get around the “free rider’ problem.

Judge Graham dissented on the fact that here Congress is not regulating an “activity” but inactivity.  While this is a great argument based on Supreme Court cases explaining Congressional power and is relied on by opponents of Obamacare, as an originalist I have to note the Constitution states congressional power is “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  Activity or inactivity in commerce is not mentioned.  Judge Graham also gives a shout out by name to the recent and current Justices who have promoted a limit on the Commerce clause: Rehnquist, O’Connor, Thomas, Scalia and Kennedy.

Judge Sutton’s concurrence is the most interesting.  He largely relies on the case that I think is most shocking to first year law students: Wickard v. Filburn.   In this case a farmer grew wheat on his own land and fed it to his own cows.  He did not sell it inside his state nor across state lines.  The meddling Roosevelt administration fined him for growing “too much” wheat.  He argued he did not engage in interstate commerce and the law was unconstitutional as applied to him.  He lost.  The Court, by now packed with Roosevelt flunkies, expanded the commerce power beyond anything previously sanctioned.  Through this case Congress was allowed, with the virtual removal of judicial review, to regulate huge swaths of American life never before subject to its regulation. And, under a footnote in Carolene Products, states would eventually be unable to legislate in areas they had always had power to regulate.

Judge Sutton agrees with the plaintiffs that no Congress has ever asserted power this broad.  However, he also agrees with Wikipedia on Wickerd v. Filburn: “Wickard arguably marked the end to any limits on Congress’s Commerce Clause powers.”  Judge Sutton argued that if Wickerd , which has recently been reaffirmed in a case called Raich about marijuana (O Tempora! O Mores!), it is to be cut back only by the Supreme Court, not a lower court.

The dissenting Judge Graham believes that the Sixth Circuit was not bound by Wickerd or any other case precisely because every judge admitted this was a novel situation.

It is also clear that at least with the Sutton, the swing vote, this case failed because it was a “facial challenge.”  That is, the plaintiffs were not relying on how the case had been applied to them, but that it was unconstitutional on its face.  These are theoretically the hardest cases.  Judge Sutton noted that other plaintiffs would have an uphill struggle, but that facts make a case which is another reason not to strike down the law, but to allow politics to work themselves out.

I think this is a good case to enter in an exhibit against the idea of political judging by Republican nominees.  Two of the judges are Republican appointees.  All telegraph an uneasiness with the actual law in question, but that does not decide the outcome.  All three opinions are well-written and strong.  But in this novel area they are in the position of thinking anew. It is amazing how differently they all come out-except on the legally-important but boring anti-injunction act.

The Sixth Circuit is a conservative, Republican-dominated circuit court.  The administration has a right to crow about this opinion but it is not a home-run.  The Supreme Court is not likely to buy the taxing arguments, the standing arguments, or any of the other lawyerly dodges of the main question.  This case, when appealed, will stand or fall on whether commerce power extends so far.  I believe Obamacare will be upheld.  Since I believe Democratic appointees will never strike down Congress’s power to seize, direct, and confiscate private wealth on any pretext, then it has four votes in Breyer, Ginsberg, Sotomayor and (if not recused) Kagan.  Scalia and Thomas are the only reasonable votes against the individual mandate, with Kennedy a possibility.  Justices Roberts and Alito are what I call “big government” or Hamiltonian conservatives.  Their lives have been dedicated to the vindication of federal power.  Justice Roberts was a Rehnquist clerk and succeeded him, and there may be some residual pull to vindicate the enumerated powers view of the Constitution. However, that is a thin hope. Republican justices and nominees have shown a divergence of Constitutional views.  Democratic justices will not.  The plaintiffs must pull an inside straight to get five.  The government needs only a pair of deuces.  The proper course is for Republicans to repeal this bill before the Court can rule and make legal a breadth of federal power never before seen.