May 22, 2013

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TANSTAAFL: Obamacare turns three and the costs continue to tally [Infographic]

March 27, 2013 by Leave a Comment

English: Barack Obama signing the Patient Prot...

This week in TANSTAAFL news: it’s  Obamacare‘s third anniversary, and, as then Speaker Nancy Pelosi famously said, we had to pass it to find out what’s in it.

We’re still trying to find out what’s in it. Today, for your pleasure, a small infographic on the costs that have come with the ironically named Affordable Care Act.

 

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“There ain’t no such thing as a free lunch,” said Robert Heinlein. It’s as true today as it was fifty years ago. Someday, the piper’s going to come calling, and the cost may be more than we can afford. What then?

 

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The Obamacare saga encourages political dishonesty [Contributor]

July 19, 2012 by 3 Comments

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

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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.

 

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What is the role of the Supreme Court, anyway?

July 2, 2012 by 2 Comments

From the dissenters to the ACA decision:

“The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.”

So much for making the hard calls as a referee.

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Exaggerated Claims: Swallow at Supreme Court to “ensure” unconstitutionality of Obamacare?

May 30, 2012 by 7 Comments

If you’re on the Swallow for AG campaign email list (and I suspect that I will shortly be purged from that list), you just got an email making some exaggerated claims about John Swallow‘s role in the Supreme Court’s review of the Affordable Care Act.

In short, the email walks through a loose timeline for the Affordable Care Act (also known as “Obamacare” more colloquially), putting Swallow at each crossroad of the legal battle. But for him, and Utah, Obamacare might not have made it before the Supreme Court.

Except that isn’t quite how it happened. We’ve already learned that Idaho had passed a law that gave standing to challenge Obamacare, and that Utah jumped on board. Sincerely, of course, but not necessarily crucial to the fight against the Affordable Care Act. It was important politically, but not really legally.

Now, Swallow’s campaign is claiming that he was at the Supreme Court to “ensure” the law was found unconstitutional. It’s a claim that stretches the truth.

Here’s a picture of the claim from Swallow’s campaign:

There is some question about the accuracy of the campaign's claim.

Swallow was in the observation section–the chamber–of the Court during the arguments, but he wasn’t really there “representing” Utah to the Supreme Court and he didn’t have any role to “ensure” that Obamacare be overturned during that trip. In fact, there wasn’t a ton for him to do to “ensure” that Obamacare was ruled unconstitutional. Mostly, his role involved “sitting” and “observing.” Also, later that week, while still there on taxpayer dollars, it involved “campaigning.”

I wanted to be sure, though, that in all of the news I had listened to, read, and watched that week during the historic oral arguments (see posts on it here and here), that I hadn’t missed something.  Maybe Swallow really was doing something to “ensure” it was overturned during that March 26, 2012 date the campaign cites?

No, not really.

The closest article I could find was on March 27, 2012 in the Salt Lake Tribune that indicated Swallow was there…along with four hundred others, including attorneys from twenty-six states who were also on the lawsuit and observing the oral arguments that day.  Other than that, I could not find anything to indicate a more active role in the case. Other lawyers argued, other lawyers filed the briefs, and other lawyers responded to the judges questions.

Other than that, the most prominent mention that Swallow received was for a campaign call he made to 55,000 Utahns during his taxpayer funded trip to D.C. And Swallow did not appear happy about that mention.

“I have a right when I’m not working to do whatever I want to do,” Swallow said. “I have a right to campaign. I have a right to decide if I want to make something an official call or something to promote my candidacy.”  Truly the words of someone intensely focused on fighting Obamacare.

So: was Swallow in D.C. to “ensure” the Affordable Care Act was ruled unconstitutional? Or was he there to promote his candidacy?  Because while I am sure that it was thrilling to be there for the arguments, I’m not convinced that his presence was necessary in the chamber to “represent Utah” or strike fear into Justice Kennedy‘s wavering heart and “ensure” anything other than a call to voters to say “hey! Look! I’m in D.C at the same time as Obamacare is being argued, so, you know–vote for me because there must be an association between being here and my role in the case.”

That’s my theory. It’s a campaign gimmick. If only he hadn’t made that call to exploit his taxpayer-funded trip to D.C.

Other attorneys in the Attorney General’s office, and who were closely connected to the lawsuit against Obamacare, have called Swallow’s role in the case into question, too:

[...]Utah’s former solicitor general, Annina Mitchell, who was the designated point person for the state [on the Obamacare challenge] up until her retirement last year, said Swallow’s claim is exaggerated.

“That’s so disappointing. It’s not true,” Mitchell told The Tribune Friday. “I’m disappointed, as someone who worked with him, that John feels it necessary to mislead Utahns about his role.”

Mitchell, who served at the Attorney General’s office for twenty years (which also means she has more than twice as many years actually practicing law as John Swallow,  where ”practicing” means more than just having a law degree), was solicitor general for the state for nine years. No small fry in the legal community. When she speaks, other lawyers pay attention. With her litigation experience, she was assigned to the case for her litigation background, not her political connection.  She knew who was lifting the load.

“I don’t remember John Swallow ever making a substantive comment in those conference calls,” Mitchell said. “We read and evaluated the materials, but we’re not talking about a huge investment of time or litigation skill.”

Back to the beginning: Swallows campaign has exaggerated his role in the fight against the Affordable Care Act. And if they’re willing to exaggerate that, what else are they willing to exaggerate about Swallow?

(I’m not even clear that John Swallow always understood the legal path the case would need to take to get to the US Supreme Court. At one point in 2011, he tweeted that the Florida Supreme Court was about to rule on the case, instead of the District Court of Florida. [blackbirdpie url="https://twitter.com/JohneSwallow/status/32122629380898816"] Any first year law student could tell you that a challenge to a federal law like Obamacare would need to come through federal court, not state court. Further, anyone who was as closely connected to the case–let alone leading it, would know which court was about to rule on it. It may be a minor mix up, but for a lawyer who is claiming leadership on the case, it’s an embarrassing faux pas that could have been resolved even by just looking at the newspaper that day).

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Obamacare before the Supreme Court: “The Emperor Has No Clothes!”

March 29, 2012 by 3 Comments

Courtroom illustration shows Deputy Solicitor General Edwin Kneedler speaking to Justice Antonin Scalia and Chief Justice John Roberts of the U.S. Supreme Court in Washington

In a case of “the Emperor has no clothes,” the justices played the part of the skeptic to the Obama Administration’s protestations of Obamacare’s constitutionality.  With the oral arguments on constitutionality of the Affordable Care Act over, let’s take a look back at the reactions to the arguments:

First, the crux of the argument? That the government cannot regulate “inactivity,” an angle that has been pushed by Georgetown professor Randy Barnett:

On Monday, as the court began three days of arguments, questioning by the nine justices suggested they were ready to review the law now rather than wait until it has fully kicked in. That lays the groundwork for arguments for the challenge championed by Professor Barnett: that Congress’s power to set rules for commerce does not extend to regulating “inactivity,” like choosing not to be insured.

Apparently, the Supreme Court is buying the argument, much to the Obama Administration’s dismay.

In “Obama’s Supreme Court Disaster,” Adam Serwer says that the government’s lawyer Donald Verilli should be glad that the Supreme Court doesn’t allow cameras in the court room; his performance was that bad.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.

Investors Business Daily feels bad for Verilli, but doesn’t blame him. The Affordable Care Act just isn’t constitutional, the editorials says.

We almost felt sorry for Donald Verrilli, the solicitor general who had to defend the constitutionally indefensible. Over three days of intense interrogation by nine Supreme Court justices, Verrilli failed to muster a single coherent, reasonable argument in support of the ObamaCare law’s constitutionality.

Instead, his shambling, unfocused talking points left the government case in disarray — underscoring what a poorly conceived, badly designed law this was in the first place, and why it must be overturned.

Some think that the disasterous arguments have put the Obama Administration on the defensive over the heart of Obamacare, the individual mandate on Americans to buy healthcare insurance.

That’s a purely political argument to a constitutional question. [White House Press deputy press secretary] Earnest  offered no defense along the lines of the precedential history of Congress and the commerce clause. It is the reach and scope of commerce-clause authority that is at the heart of the high court’s scrutiny of the health care law.

A week ago, ACA supporters were looking forward to a triumph. Now, they’re counting their losses. What happened?

Perhaps the most telling moment was during a question from Justice Kennedy. Ilya Shapiro describes it:

By this point the government’s head appellate advocate was on his heels, dodging increasingly skeptical queries, until Justice Kennedy delivered what in poker would be seen as the key “tell”:

JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Although you can’t hear it on the audio recording, the audience gasped.

Just like that, the headlines started changing.

The law isn’t dead, yet though, say supporters.

As Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law’s scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the “individual mandate.” The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument’s end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.

On the other hand, Dr. Milton Wolf in the Washington Times is more than sanguine about the demise of Obamacare. He’s predicting complete overturn, and, if not, the downfall of America.

The die is cast: Obamacare will not survive. This is not a prediction of how the Supreme Court will rule on President Obama’s health care takeover, mind you. It’s the harsh reality that if Obamacare does not die a judicial or political death – or better yet, both – it will die an economic death, and if it does, it will take America down with it.

Obamacare’s costs are exploding in the land where budgets already have burst. The $900 billion bargain-basement 10-year cost estimate that Mr. Obama promised for his overhaul recently ballooned to $1.8 trillion. Of course, these are still just estimates, and considering that the government underestimatedMedicare’s cost by a factor of 10, who really knows how massive the final price tag will be?

Welcome to the United States of Greece, where our $15.6 trillion national debt has surpassed the size of our total economy.

Which begs the question: if not Obamacare, what? Healthcare reform is clearly necessary. In the Chicago Tribune,

“One way or another, Congress will have to revisit it in toto,” Justice Antonin Scalia said of the health law.

One way or another.

That should be a clarion call in Washington. The prospect that the court will strike down all or part of the law known as Obamacare hands political leaders of both parties a formidable challenge — and a vast opportunity: a second chance to get health care reform right.

On that point, James Pethokoukis asks “What will Republicans do if the Supreme Court kills healthcare” reform and suggests that perhaps combining Rep. Paul Ryan’s plan (block grants to states for Medicare0 with future president Mitt Romney’s plan (known as the “Hubbard Plan“) might be workable.

The Hubbard Plan has five elements: 1) allow all Americans to deduct from income taxes all their healthcare expenditures—premiums, employee contributions, out-of-pocket costs, etc.; 2) deregulate insurance markets to foster nationwide, portable health insurance; c) making health information more available; d) control anti-competitive behavior such as hospital mergers; e) malpractice reform.

In the meantime, stay tuned. The law hasn’t been overturned, yet, and still may stand. While you’re waiting, jog on over to the Sweaty Federalist for his snark on some of the arguments being made to uphold the law.

[AEI] [Glenn Hubbard] [Mother Jones] [Washington Times] [Investors Business Daily] [National Journal] [The Nation] [Chicago Tribune] [New York Times]

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Huffington Predicts the Demise of Obamacare

March 28, 2012 by Leave a Comment

[h/t Aaron Bludworth]

 

 

 

 

 

 

 

 

 

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Obamacare Proponents Brace for Supreme Court Smackdown

March 27, 2012 by 7 Comments

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

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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.

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