Archive for the ‘Supreme Court’ Category

ObamaCare is imploding and no one seems to have noticed

Wednesday, October 21st, 2015

Originally published at Rare

Remember when grassroots conservatives were fired up about fighting ObamaCare?

Despite some repeal battles still being bandied about in Congress, ObamaCare does not seem to be defining the Republican primary in the way that it dominated the discourse during the 2010 tea party sweep of the House and the 2014 GOP takeover of the Senate.

Perhaps it’s about timing. After all, conservatives haven’t been able to defund the law despite an insistence from some corners of the movementthat such a feat was possible with a sitting Democratic president.

And the two cases challenging ObamaCare that made it to the Supreme Court ultimately favored the White House. Meanwhile, despite the fact that various strong policy alternatives to ObamaCare exist, the Republican Party at-large hasn’t coalesced around a specific replacement for the law.

Yet as furor over ObamaCare has been pushed to the political back-burner, many key predictions made by the law’s critics about its impending failures are coming true.

Brian Blase, a contributor to Forbes’ health care reform series The Apothecary, explained in an article published this week, just 10 million people are now expected to enroll in ObamaCare next year; only half the number the Congressional Budget Office projected a mere four months ago.

Blase said, “While there are several factors that explain how the expert community likely erred so significantly (in its enrollment predictions), the most plausible explanation is that exchange plans are much less attractive than experts had projected.”

This is particularly concerning, seeing as the unwieldy law did far more than simply create a now-failing federally subsidized exchange to complement a thriving private market. One of the reasons ObamaCare has been unpopular is precisely because the president’s original promise that everyone could keep their existing health care plans turned out to be false.

In fact, several million people have lost their plans as a direct result of the anti-market provisions that ban insurance policies the government deemed insufficient. All the while, undesirable plans are subsidized by taxpayers who don’t want them, and uninsured individuals are fined for refusing to purchase sub-par, highly regulated insurance.

Additionally, due largely to ObamaCare, federal regulations and their cost to the economy have skyrocketed. In 2013, now Senate Majority Leader Mitch McConnell printed out the 20,000 pages of regulations associated with ObamaCare, noting that there would be more to come; a promise that has, as a matter of course, been fulfilled.

And like all regulations, these come with a cost to the economy.

Regulation Rodeo, a recently launched project of the American Action Forum that tracks the costs associated with ever-increasing regulatory burdens, provides the public with data that shows just how bogged down the economy has become in the years since ObamaCare has passed.

For example, in the four years prior to ObamaCare’s passage, 2006-2009, the cost per year of federal regulations surrounding health care amounted to an average of $3.1 billion. Paperwork hours per year were at 5.9 million, and the cost per regulation was $80.9 million.

These numbers seem high enough. Yet consider what has happened since ObamaCare’s implementation.

Regulation Rodeo shows the cost per year of federal health regulations between 2010 and 2015 now averages $10.3 billion. Paperwork hours have increased to 17.8 million per year, and the cost per regulation is an eye-popping $313.1 million. And we haven’t even made it to the end of 2015 yet.

While these numbers may seem arbitrary on their face, they represent the growth of bureaucracy at the expense of average Americans. Middle class consumers, particularly those in the individual market, are in most cases paying hundreds if not thousands of dollars more for lesser health care—all as a direct result of ObamaCare’s regulatory maze.

As Blase wrote at Forbes, “The fact that people find exchange plans so much less attractive than experts assumed when the law was passed will hopefully convince some supporters of (ObamaCare) that the law needs to be revisited, and likely fundamentally changed.”

Hopefully. But with a Democrat in the White House, don’t hold your breath.

The legal challenges to Obamacare aren’t over

Saturday, September 12th, 2015

Originally published at Rare

When the Supreme Court ruled that Obamacare subsidies could continue to be doled out this summer, President Obama was quick to declare victory. “After multiple challenges to this law before the Supreme Court – the Affordable Care Act is here to stay,” he said.

The trouble for the president, however, is that the legal challenges to his signature health care law aren’t over.

This week, a federal district judge ruled that a case against the law brought by House Republicans has legitimacy. As Judge Rosemary Collyer explained in her ruling:

Through this lawsuit, the House of Representatives complains that Sylvia Burwell, the Secretary of Health and Human Services, Jacob Lew, the Secretary of the Treasury, and their respective departments have spent billions of unappropriated dollars to support the Patient Protection and Affordable Care Act.

She also noted: “The House further alleges that Secretary Lew and Treasury have, under the guise of implementing regulations, effectively amended the Affordable Care Act’s employer mandate by delaying its effect and narrowing its scope.”

Constitutionally speaking, all legislation that spends taxpayer money must originate in the House of Representatives. It is also not constitutionally appropriate for the executive branch to rewrite law, but where the line between implementation and rewriting is drawn has long been a source of contention. (The recent King v. Burwell case also alleged an Obamacare rewrite, but the Supreme Court ultimately rejected that argument.)

As Judge Collyer further explained:

The Secretaries move to dismiss, arguing that the House lacks standing to sue. They argue that only the Executive has authority to implement the laws, and urge this Court to stay out of a quintessentially political fight in which the House is already well armed.

In response to Collyer’s ruling, Speaker Boehner said:

The president’s unilateral change to ObamaCare was unprecedented and outside the powers granted to his office under our Constitution. I am grateful to the Court for ruling that this historic overreach can be challenged by the coequal branch of government with the sole power to create or change the law. The House will continue our effort to ensure the separation of powers in our democratic system remains clear, as the Framers intended.

The next step for this case—which is rare because it’s a battle between two co-equal branches of government—will be a hearing in the U.S. Court of Appeals for the D.C. Circuit. It’s possible that the case will ultimately end up at the Supreme Court, though it’s not yet clear if that will occur.

As for Obamacare itself, the law is facing other challenges as well. As Investors Business Daily reported:

ObamaCare enrollment has fallen sharply since March, and that’s before consumers confront huge rate hikes for 2016. These are not the signs of a successful program.

In its latest enrollment report, the Centers for Medicare and Medicaid Services says 9.9 million were still enrolled in ObamaCare exchange plans.

That’s almost 2 million fewer than the administration claimed in the spring, when it bragged that 11.7 million had signed up, and way below the Congressional Budget Office’s earlier forecast of 13 million. And if this year is anything like last year, that 9.9 million will dwindle further as the year goes on.”

Whether the president’s beleaguered law can survive this latest round of adversity remains to be seen.

Can Libertarians Separate Government and Marriage?

Monday, June 29th, 2015

Originally published at EveryJoe

In the wake of the Supreme Court ruling in Obergefell v. Hodges that same sex marriage is now legal nationwide, prominent liberty advocates offered a variety of reactions. Senator Rand Paul, who is known as the most libertarian Republican presidential candidate, believes the government should respect contracts between consenting adults, but stop defining marriage. Although Paul trends libertarian compared to his colleagues, he leans more toward conservatism than other pro-liberty individuals on the broader ideological spectrum. His reaction to the marriage ruling reflects that nuance.

As Paul explained at TIME:

While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract.

The Constitution is silent on the question of marriage because marriage has always been a local issue. Our founding fathers went to the local courthouse to be married, not to Washington …

Marriage, though a contract, is also more than just a simple contract.

I acknowledge the right to contract in all economic and personal spheres, but that doesn’t mean there isn’t a danger that a government that involves itself in every nook and cranny of our lives won’t now enforce definitions that conflict with sincerely felt religious convictions of others.”

Senator Paul’s position mirrors a sentiment that can now be seen in action in states such as Alabama, Mississippi, Louisiana, and Texas. As David Simpson, a libertarian-leaning State Representative from Longview, Texas has stated:

In light of the Supreme Court’s actions, I believe that the best way to protect marriage is to divorce marriage from government. I am asking the governor to recall the legislature so that legislation may be immediately considered to remove state and local officials from the process of issuing marriage licenses. In its place, the process of issuing a certificate of marriage will be performed by any willing clergy member consistent with their conscience and in respect for our culture and our heritage. For those who do not wish to have a religious ceremony, any authorized notary may approve a certificate.

Congressman Justin Amash, another prominent libertarian-leaning Republican, took a similar approach to both Paul and Simpson ideologically. However, Amash deferred more to the court’s ruling from an equal protection standpoint than did Senator Paul.

From Amash’s official Facebook page:

What makes marriage traditional is not its adherence to a universal definition but rather that it is defined by personal faith, not by government. For thousands of years, marriage flourished without a universal definition and without government intervention. Then came licensing of marriage. In recent decades, we’ve seen state legislatures and ballot initiatives define marriage, putting government improperly at the helm of this sacred institution.

Those who care about liberty should not be satisfied with the current situation. Government intervention in marriage presents new threats to religious freedom and provides no advantages, for gay or straight couples, over unlicensed (i.e., traditional) marriage. But we shouldn’t blame the Supreme Court for where things stand.

To the extent that Americans across the political spectrum view government marriage as authoritative and unlicensed marriage as quaint, our laws must treat marriage—and the corresponding legal benefits that attach—as they would any other government institution. So, while today’s Supreme Court opinion rests upon the false premise that government licensure is necessary to validate the intimate relationships of consenting adults, I applaud the important principle enshrined in this opinion: that government may not violate the equal rights of individuals in any area in which it asserts authority.

David Boaz, Executive Vice President of the libertarian think-tank Cato Institute, defended the Obergefell logic more forcefully than many of his fellow ideological travelers. Said Boaz:

Here and now, or more specifically last week, when many states were discriminating against gay people in marriage, did you think that was OK, at least until marriage is — some day, maybe — fully privatized? And if so, back in 1965, when the government was discriminating against interracial couples in marriage, did you think THAT was OK? Do you think the Court should have refused to strike down laws against interracial marriage, and we should have waited until government got out of marriage entirely? And if you’re a libertarian and believe that government shouldn’t run the schools, what would you say if government ran schools only for white Christian kids? Should libertarians oppose that policy, or just insist on full privatization of schools with no intermediate remedies?

Other libertarians were less moved by the 14th amendment equal protection argument, expressing concern that the centralization of power necessary to justify the Supreme Court’s ruling is a threat to liberty, despite an agreeable outcome. Channeling sentiments similar to Rand Paul’s, Independent Institute’s Research Fellow Melancton Smith, penned a reaction entitled “Libertarians Should Be Cautious in Celebrating Obergefell.” In it, he makes several specific points.

Smith contends that issues such as marriage, child custody, and divorce have always been dealt with on a local and state level. He argues that because there is no federal power delegated to deal with them in the Constitution that the Supreme Court’s ruling threatens self-government. He also believes that when judges – who are unelected – expand the plain meaning of the Constitution, even if we agree with their opinions, we risk centralizing power to a dangerous extent and exposing ourselves to tyranny we would oppose in the future. Smith finally concludes by agreeing with Chief Justice Roberts that gay marriage likely would have been instituted in this country through democratic means, and posits that allowing the Supreme Court to take on the role of legislator will ultimately spell doom for various libertarian policy measures.

Generally, libertarians span the left-right spectrum in terms of personal social views, and opinions on the matter of gay marriage reflect this. One can be a devout social conservative or an extreme “libertine,” and still believe that the government has very little or no right to regulate the personal behavior of consenting adults who aren’t harming others.

Ultimately, most libertarians tend to agree that in a perfect world, two adults would not have to ask government for permission to be married. Many see it as a strictly religious institution, or one that can be dealt with on a civil level without hijacking the term marriage. The point that Rand Paul and other privatization advocates make, is that there’s no reason benefits such as spousal rights surrounding inheritance, visitation, custody, etc. could not be worked out through mutually agreed upon contracts, absent one overarching federal definition of marriage.

Paul and others argue that since marriage itself does not need to be recognized by government for the appropriate social and legal benefits it ought to confer to exist, it could revert to being a matter dealt with by religious institutions. This would allow both gay and straight couples equal civil rights under the law, while protecting the sanctity of marriage and religious liberty. As states continue adjusting to nationwide marriage equality, it will be interesting to see to what extent the libertarian argument of marriage privatization takes hold legislatively. Today, the question remains as to whether this vision can become a policy reality.

SCOTUS Rewrites ObamaCare: The Sequel

Thursday, June 25th, 2015

Originally published at Rare

In a strikingly political decision, the Supreme Court ruled in favor of providing federal subsidies to states that did not set up their own Obamacare exchanges—despite the law explicitly calling for the opposite.

King v. Burwell emerged because thirty-six states either chose not to set up their own Affordable Care Act “marketplaces” or failed to properly maintain them and resorted to use of a federal exchange. As a result, the question of whether consumers in states without their own exchanges qualified for federal subsidies became a point of contention that eventually landed at the Supreme Court.

As Justice Antonin Scalia explained in his Burwell dissent:

“This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.”

Scalia’s point is central to understanding the backwardness of this ruling. Obamacare was written with the language Scalia described for a very specific reason. The goal was to coerce states into creating their own exchanges by tying access to federal subsidies to the creation of state-specific Obamacare “marketplaces.”

Recall Jonathan Gruber, the MIT economist and architect of Obamacare, who became a household name when it was revealed that he mocked the “stupidity of the American voter” for believing Obamacare wouldn’t ban their insurance plans or increase costs. He also stated in January 2012: “I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.

This directly contradicts the Supreme Court’s claim that Obamacare was just “sloppily written” and congressional intent was to provide federal subsidies in all 50 states. These coercive measures were baked into Obamacare, and the Supreme Court has now rewritten the statute for a second time.

Using federal law to coerce the states in this manner has become a time-tested American tradition. Take the drinking age as an example. States technically do not have to follow the guidelines set forth in the 1984 National Minimum Drinking Age Act. However, if they allow individuals under 21 to purchase alcohol, they lose a portion of their federal highway funding.

Notice that every state has since conformed to this federal standard. Also note that the Supreme Court ruled in South Dakota v. Dole that the National Minimum Drinking Age Act was in fact constitutional because, according to the Court, the level of coercion was just-so as to not violate the 10th and 21st amendments.

In her dissent, Justice O’Connor opined: “In my view, establishment of a minimum drinking age of 21 is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose.” The majority disagreed.

Today, there remain similar federal incentives built into funding for education, health care (most notably Medicaid), infrastructure, and countless other policy areas, all of which tie the hands of states and cajole them into a preferred federal model.

Given the long-standing effectiveness of this coercive federalization, our central planners were sure that no state would pass up the opportunity for “free” money when it came to Obamacare. Thus, they penned the section on exchanges accordingly, per Gruber, expecting state governments to line up at the trough as usual. Obamacare passed without much thought given to the state exchange issue, and was signed into law in March of 2010.

Then the tea party wave happened. Remember the contentious town hall meetings where constituents confronted their members of Congress over the absurdities of Obamacare? Recall when Democrats lost 60 seats in the House during the 2010 elections due in large part to dissatisfaction with the law?

This led to direct grassroots pressure on state legislatures and governors to refuse a state-based Obamacare exchange. Ultimately, 26 chose to forego the creation of their own exchanges outright. Others chose state-federal partnerships, and some eventually failed in their attempts at creating a state-based system.

Given the fact that the majority of states ultimately lacked their own exchanges, the executive branch decided to take matters into its own hands—as it has upwards of 30 times with Obamacare, congressional intent be damned. Federal subsidies were granted to those who qualified, despite the plain letter of the law. This gave birth to several lower court cases and what eventually became King v. Burwell.

Justice Scalia’s scathing dissent makes several good points about how shamelessly the Supreme Court has rewritten and protected Obamacare. As he artfully stated:

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it.”

Ultimately, Burwell leaves us with the messy Obamacare status quo, as written more by the executive and judicial branches rather than the actual lawmaking one, and will likely lead to further centralization of struggling state exchanges at taxpayer expense. Six million and counting have had the insurance plans they were promised they could keep banned, prices have skyrocketed (hence the need for the cost-hiding subsidies in question), and people have Obamacare health insurance cards without health care.

So much for affordability and access.

Post-ObamaCare: Have Republicans Learned Their Lesson?

Wednesday, March 28th, 2012

Originally posted at the Republican Liberty Caucus

Given that the third and final day of ObamaCare Supreme Court oral arguments are now complete, I’d like to focus more on the political implications of what has occurred thus far rather than spending time analyzing the details of the case, which several others have done with far more of expertise than I could ever provide. I particularly recommend the Wall Street Journal live blogs (day one summary, day two, and day three), and the Texas Public Policy Foundation’s comprehensive coverage at

While we won’t know until June whether ObamaCare will be struck down, either in part or as a whole, it’s certainly safe to say there’s a chance that the individual mandate will be declared unconstitutional, thus creating chaos that will need to be addressed one way or the other. Justice Kennedy and others made note of potential impending disaster in that regard today, as reported by Brett Kendall at the Wall Street Journal:

“Several justices express concern about doing harm to insurance companies if the mandate falls but the rest of the law is left in place.  Justice Kennedy worries about imposing a ‘risk’ on insurance companies ‘that Congress never intended.'”

The Justices who made note of the trouble with striking down the individual mandate while keeping the law’s other provisions have a very good point. The entire aim of the mandate, in theory, was to avoid an adverse selection situation where only those who actively need insurance would seek it out while the healthy would then determine that remaining uninsured until they got sick was economically viable. Given the chaos that could ensue if the law is partially upheld, which could certainly happen, means that Republicans need to be prepared to address either strike-down scenario – and in my humble opinion, a ruling that declares only the individual mandate unconstitutional (which the liberal Justices seemed to be pushing for today) would actually be worse, and absolutely destroy private insurance companies. Nevertheless, as I touched upon in my Day two analysis of the SCOTUS hearings over at my personal blog, conservatives need to be very cautious in regards to declaring imminent victory in the event that the court does in fact declare ObamaCare unconstitutional; even as a whole. Winning a battle, important as it might be, certainly does not imply victory in an overall, extremely extensive war.

However, let’s assume for a moment that ObamaCare is declared unconstitutional in its entirety. The obligatory period of celebration will inevitably occur, but where will we really be as conservatives? Right back where we were when the left, during the Bush years and 2008 election, framed the narrative in a manner that convinced voters that Republicans had no solutions regarding this important matter. And honestly, is that premise even entirely inaccurate when Republican ideas regarding health care have in recent history been either virtually non-existent or only marginally less evil than the absurdities served up by Democrats? Republicans in the latter half of the 20th century, and particularly post-Reagan, have been incredible at screaming about Democratic proposals while inevitably compromising in the direction of further government growth – perhaps slowing the car headed toward the cliff down a few miles per hour, but in no way changing the vehicle’s direction.