November 27, 2015

The Obamacare saga encourages political dishonesty [Contributor]

[Benjamin Lusty is a lawyer and an occasional contributor to Publius Online]


Political dissemblance over the nature of taxes and regulatory architecture looms as an inevitably dark truth of post-Obamacare government.  Through the tortuous legislative course of Obamacare’s genesis, Democrats continually denied that the individual mandate was a tax, the heaviest word in America’s political lexicon.  Instead, the mandate was a “penalty,” or a “shared responsibility payment.”  (A chillingly Orwellian turn-of-phrase).  The Democrats knew that truth in taxation would slay Obamacare and scuttle their century-long obsession with state-directed flu shots and hip replacements.  So they prevaricated.  What do congressmen call a law that amends the Internal Revenue Code, is enforced by the Internal Revenue Service, and forces families to pay up to 2.5% of their incomes into the federal treasury?  Anything but a tax.

Unless you’re in court—there, any word will do.

Federal judges are not elected, and the politicians who voted for the law did not appear to defend themselves.  That task fell to elite lawyers who parsed language with forensic care, while insulated from the heat of constituents’ calls, donors’ demands, and lobbyists’ lists.  Those lawyers were high partisans engaged in definitive legal warfare.  Of necessity, they adopted the tactics of expediency:  prevail at all cost and regardless of any incongruity between the facts of the legal case and those of the political case.  When the stakes are command of an entire industry, and control over 16% of the economy, a favorable outcome justifies all political carnage.

Partisan achievement of controversial policy goals, however, is not the purpose of representative government.  Instead, representative government seeks consensus and accommodation of divergent political aspirations.  It only works when legislative process affords principled dissenters all reasonable opportunities to prevail on the merits.  This is impossible, however, when the agents of government cannot even agree to the meaning of the words they use to engage that process.  When a law is a “tax” for constitutional purposes, but a “penalty” for political purposes, the terms of the debate shift underfoot, confounding the discipline that elective politics is supposed to instill.

Some may counter that this is mere wrestling over words, and that the mechanisms of the law are unchanged by the language used to describe it.  But this begs the question over whether it is desirable for officials to tell constituents one thing and judges another.  Is it really acceptable for politicians to soothe the masses while winking to the legal elites who patrol the boundaries of the political system?  Besides, in its essence, government is simply words.  The miracle of self government by words, however, cannot continue if the words themselves are subject to abuse.

In result, Justice Roberts’ opinion sanctioned deception.  President Obama told the public that Obamacare was not a tax, but he told the court that it was.  The outcome of the affair is that “by-any-means” legislation is entrenched in our government, our constitution, and our political reality.  Now, neither political party has any real incentive to discuss tax policy honestly.

By any measure, Obamacare is the most expansive legislation in at least two generations.  It fundamentally alters the relationship between the federal government, the states, and the people.  It significantly amends the tax code, creates a new class of liabilities, and pours every man, woman, and child into a new, mandated, order of economic transaction.  It should not have passed the scrutiny of all three branches of the federal government through variable solipsism.  It should have been subject to the most exacting standards of honesty, procedural fairness, criticism, and consistency.  It was not.  It is the wreckage of political expediency, and the leading edge of continual obfuscation and cynicism.  Repeal may spare us bad policy, but not bad politics.


The “individual mandate” is a “tax.” Voters are not noticeably relieved.

A colleague pointed this interesting point out to me as we have been reviewing the Affordable Care Act (aka “Obamacare”) decision today:

The government devoted 21 lines of its brief to argue that § 5000A was a tax, and it’s longest statement on the issue at oral arguments was 50 words.

And yet, that’s the crux of what is keeping the individual mandate alive.  I doubt voters feel much better that the individual mandate is really a tax (or, as it’s called in the ACA, a “shared responsibility payment.”)

Huffington Predicts the Demise of Obamacare

[h/t Aaron Bludworth]










Obamacare Proponents Brace for Supreme Court Smackdown

 Jason Kane is a recovering rock star and an attorney in Salt Lake County. He is an occasional contributor to Publius Online.


In the days leading up to the Supreme Court oral arguments on the constitutionality of President’s Obama’s signature health care law, there was no end to the media speculation about which conservative leaning justice(s) would leave the dark-side and vote to uphold Obamacare. We were treated to a barrage of statistics touting the popularity of Obamacare, reminders that Republicans had supported mandates in the past and other specious arguments that have no bearing on the constitutionality of the law. Self-assured Progressives, it seemed, had little concern that socialized medicine was in any danger.

After one day of arguments that didn’t go particularly well for the government, the Obamacare cheerleaders seem to be in full back-peddle mode. One blog post at the Daily Beast is especially entertaining, arguing that if the individual health insurance mandate is struck down, it will actually be a boon to Obama’s reelection. Obama would no longer have to defend the controversial law and be free to run on his other spectacular achievements, like killing Bin Laden and… killing Bin Laden. This line of thinking, of course, flies in the face of common sense and everything we know about politics. Losing is bad for business and tends to embolden the opposition. In this particular election year, it also happens to help rid Romney of much of the health care baggage that continues to poison the well with many Republicans.

To be sure, I think it is premature to start dancing on the grave of Obamacare. But the tough skepticism exhibited by Justice Kennedy, the left’s only hope in a 5-4 decision, gives Obamacare proponents good reason for concern. We cannot foretell the outcome based on oral arguments alone, though they do seem to hold particular weight in this case. At the very least though, the seeds of self-doubt have been sewn among the Progressives. We should allow ourselves savor this rare phenomenon while it lasts.

The Constitutionality of the Individual Mandate: The Very One-Sided Fordham Debate. [video]

There are few things in politics or the law quite so enjoyable as watching one use words to bludgeon and destroy a weak or faulty idea.

Recently (as in, on Monday of this week) the University of Utah‘s SJ Quinney College of Law hosted the Fordham Debate. The topic for the two Ivy League educated scholars who would take up opposing sides?

Be it resolved that the individual mandate provision of the Patient Protection and Affordable Care Act is constitutional under the commerce clause of the U.S. Constitution.

Yeah. Pretty much the lodestone for the entire political right’s anger at the elected left and why Obama, for all his panache, brilliance, and Vulcan-like demeanor, has lost the blessing of nearly  a majority of Americans.

And we all love debates, right?

In favor of the resolution (that the individual mandate is constitutional) was David Orentlicher, a JD/MD with two of his degrees from Harvard.  He is the Samuel R. Rosen Professor of Law, Co-director of the William S. and Christine S. Hall Center for Law and Health at Indiana University Robert H. McKinney School of Law – Indianapolis.

Opposing the resolution was Jonathan Adler, a Yale (and George Mason)  man, an attorney, professor, and director of the Center for Business Law and Regulations at Case Western Reserve University School of Law (as well as a regular contributor to the Volokh Conspiracy, which says a lot in itself).
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Seriously. Did Orentlicher even have a chance? Was he paid to put forth weak arguments and avoid more than a passing reference to any law (statute, common, or constitutional)?

English: Barack Obama signing the Patient Prot...

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Having earned my JD from SJ Quinney and listened to my share of left leaning professors pontificate, I was more than a bit surprised that a more able defender of Obama’s biggest legislative accomplishment. In the end, though, his argument boiled down to something like this: the healthcare plan won’t work without the individual mandate, so therefore it’s legal. 

Never-mind precedent or the constitution…

Take an hour, and watch the debate. I think  you’ll enjoy, and learn from, the arguments both for and against the individual mandate part of the Affordable Care Act (may it die a quiet death before the Supreme Court this year).

“Unconstitutional,” says the 11th Circuit.


The news making its way through the legal blogosphere, and the online news outlets, is that the 11th Circuit has ruled the individual mandate part of the Patient Protection and Affordable Care Act (the “Act”) is unconstitutional.

Let me underscore that: only the individual mandate was found unconstitutional. The rest of the law has been, for now, left untouched.

The Washington Post called it one of the “most significant legal setbacks to the Obama administration’s health-care overhaul.”

If  you’re short on time, read at least the excerpts of the 2-1 decision  (of a very lengthy opinion) over at the Volokh Conspiracy. In short the Act is:

[…] the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional.

Etc, etc…and, here’s the part the right will love:

This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. “

Too bad this didn’t come out yesterday. The Iowa Republican debate would have been that much more juicy with the ruling hanging in the air, even with the Supreme Court still in the Act’s future.

If  you have more time, here are a few more commentaries you might look at:

From Utah Political Summary’s Curt Bentley:

One of the more odd things about the majority opinion — at least in my humble opinion — is its use of an overinclusiveness argument.  Over/underinclusiveness is a consideration in individual rights cases, but, in my opinion, has no real role to play when it comes to evaluating a Congressional action under the Commerce Clause.  The over/underinclusiveness analysis is designed to get at the sincerity of a legislature’s expressed motivations.  For example, if a legislature regulates more broadly (or narrowly) than necessary to solve a particular problem, one can infer that it may be dislike for a certain group, rather than a desire to solve the stated problem, that motivates the legislature action.

Jonathan Turley, expressing concerns about federalism issue the Act affects opined that

I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.

In other words, if the feds can do this, what can’t they do? (And, I would add, what does that mean for the 10th Amendment?

Ilya Somin, also at Volokh, noted that this wasn’t a partisan decision:

Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional.

Jonathan Adler says “Hear, hear!

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The Commerce Clause argument in Virginia v. Sebelius, among others

Yesterday, the headlines shouted that individual mandate of the Affordable Health Care for America Act (let’s just call it “the Act” for short) was found unconstitutional by a federal court in Virginia. (see my short post on it here) Partisan critics of the ruling were quick to point out that there have already been two cases upholding it; partisan supporters were just as quick to note that this is the first substantial ruling on the act.

After a brief reading of the opinion, here are a few quotes from it and a couple of thoughts:

The Obama Administration‘s arguments in support the Act fall can be boiled down to this: Congress was within its powers to pass the Act because it acted under its power to regulate interstate commerce. To pick that apart, the Administration is arguing that Congress has the right to regulate activities that in the aggregate “substantially affect” interstate commerce. The Administration is relying upon aggregation theory, says Judge Hudson:

“…which is conceptually based on hypothesis that the sum of individual decisions to participate or not in the health insurance market has a critical collective effect on interstate commerce.”

In other words, each of us make enough decisions on health care that all taken together it is enough to affect interstate commerce. Under the Commerce Clause argument, the Minimum Essential Coverage Provision–what is more commonly known as the “individual mandate“– is necessary to make sure that the program of reforms in other areas work. In essence, if not everyone is paying into the system, then there won’t be enough people paying in to support the sick and poor that cannot pay for the benefits of health care. The dysfunctional system cannot be reformed if every person does not participate because, well, to put it simply–it’ll cost too much. So, to sum up the argument, since Congress has the power to regulate healthcare under the Commerce Clause, it also has the power under the Necessary and Proper Clause to make the regulations necessary.

Judge Hudson notes that although the Necessary and Proper Clause “vests Congress with broad authority to exercise means […] to implement legislation, it is not without limitation.” This is an interesting, and perhaps understated commentary, on what many, including Speaker Pelosi, see as the definition of the Necessary and Proper Clause. It is an unenumerated power, but there are still limits. The means to accomplish the end must be “rationally related to the implementation of a constitutionallyenumerated power, but it must not violate an independent constitutional prohibition.” And here is the crux of the Virginia assault on the Act; it is a violation that “offends a fundamental restriction” on the Commerce Clause powers.

Central to the Commerce Clause is that it relates to economic activity. Can the government compel an unwilling person to perform an involuntary activity? Previous cases that the Administration cited dealt with individuals who grew wheat or cannabis and thereby voluntarily inserted themselves in the stream of interstate commerce. Here, however, the individual mandate compels a person to do an involuntary act, buy health insurance, and thereby become subject to the Commerce Clause. Because this goes beyond the bounds of the Commerce Clause, Congress is outside of its ability to use the Necessary and Proper powers to force the purchase. Congress can use its authority to pass constitutional laws; outside those bounds its powers are “bridled.” Quoting Chief Justice Marshall,

[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.

And thereby is why Judge Hudson ruled the individual mandate of the Act unconstitutional. As laudable as were the intentions of Congress in passing the Act, “the legislative process must still operate within constitutional bounds. Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers. And, my favorite quote: “Congressional findings, no matter how extensive, are insufficient to enlarge the Commerce Clause powers of Congress.”

What are those boundaries? Judge Hudson cites case law that limits Congressional powers under the Commerce Clause to subject matter that is economic in nature and voluntary activity. However, despite arguments by the Administration that everyone will at some point in their life need healthcare of some sort, this was the bridge too far for the Judge.

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individuals to involuntarily enter the stream of commerce by purchasing a commodity in the private market.

Because it is not voluntary, the government cannot require individuals to make a purchase, to participate in the market.  Ironically, this seems to be the very lynch pin upon which the entire scheme relies–without participation, voluntary or otherwise, of healthy individuals paying into healthcare, the government will be unable to pay for the costs of covering the poor and sick.

Interestingly, critics are attacking Judge Hudson’s interpretation of the Necessary and Proper Clause powers. See their discussion here. Others suggest that Judge Hudson is writing for Justice Scalia, and that it is a better opinion than the critics are giving him credit for. “Nonetheless, once read in light of Scalia’s concurring opinion in Raich, Judge Hudson’s analysis is considerably more coherent that his critics allow.”

There are other arguments in the case, including a tax argument that Judge Hudson calls “simplistic.” (He also refers to the precedent it cites as “dicta,” a slap at the value of the authority the Administration cites).  I thought the Commerce Clause argument, however, was the most interesting, not to mention the most important.

A last and important element of the opinion is that of the severability of the individual mandate clause from the rest of the Act. In other words: can the rest of the Act survive even though the individual mandate is unconstitutional? In this case, because it is difficult for the court to determine whether Congress intended that the rest of the Act to survive the invalidity of any single clause, the Judge ruled only on the section (1501 in this case, if you were wondering) is invalid and the rest of the Act, as it is currently unchallenged, survives.

Read the opinion here.