The legal whizzes on the editorial board of the Denver Post have spoken: Amendment 63, the Right to Health Care Choice Initiative, is bad because Obama Care is constitutional. Today’s editorial reads:

[W]e believe [Obama Care] will survive legal challenges and will be found to be constitutional. The Constitution provides Congress authority to impose an individual mandate through the power to regulate interstate commerce and the power to tax.

The Post says so, even though, “We’re sympathetic to the argument that an individual mandate is a curtailment of personal freedom or an infringement of states’ rights.”

Well . . .  maybe not too sympathetic.

Because if they were more sympathetic, they might have noticed that the merits of Amendment 63 don’t depend at all on the constitutionality or non-constitutionality of Obama Care.   Amendment 63 merely says that whatever the feds can or can’t do, Colorado state government isn’t going to join any jack-booted drive to crush our health care freedom.

Anyway, the Post is also wrong on the constitutional issue.   First, it’s flat wrong about what the Constitution really means.  Second, it may well be wrong on how the courts will rule.

According to the real meaning of the Constitution—as the Founders understood it—a “tax” is a levy to raise revenue for the government.  Obama Care’s mandates aren’t designed to raise money.  They are designed purely to punish innocent people.  President Obama himself has denied they are a form of taxation.   Even if they were a form of taxation, they would violate the Constitution’s requirement that direct taxes, other than income taxes, be apportioned among the states.  The modern Supreme Court still respects that rule.

So the only way to justify Obama Care constitutionally is to claim that Congress can take over the health care system because the Constitution grants Congress power to pass “necessary and proper” laws to “regulate Commerce . . . among the several States.”

But as the Constitution uses the term, “Commerce” doesn’t include all economic activity.  It means trade among merchants, mercantile finance, mercantile insurance and a few other items.  It does not include health care.  It does not include health insurance.  And—as advocates of the Constitution explained while the document was being debated—it does not include social services.

Even if it did, Obama Care goes far beyond regulating insurance “among the several States” to include health care decisions made solely within individual states.

Now, I recognize that the modern Supreme Court has stretched the congressional Commerce Power far beyond its original meaning.  The Court’s persistent misreading in this area is probably what the Post is counting on.  But even under its modern rulings, the Court has never gone as far as those who claim that regulating “Commerce” includes punishing innocent people because they refuse to engage in commerce.

The Constitution grants Congress power to “define and punish Piracies and Felonies committed on the High Seas.”  Does that mean Congress has power to punish people who refuse to engage in piracy?   The Constitution grants Congress power to “provide for the Punishment of counterfeiting.”  Does that includes authority to punish citizens who refuse to counterfeit?

The Post should consider one more point: Today the feds are attacking doctors, nurses, insurers, and patients, but not newspapers.   But tomorrow they may be coming for the editorial board of the Post.   Yes, the Constitution says that “Congress shall make no law . . . abridging the freedom of . . . . the press.”  But if we read that language the way the Post reads the Commerce Clause, perhaps it means Congress may make laws abridging freedom of the press.

The Post needs to remember that there’s nothing unscrupulous and power-hungry people can’t do with a little clever wordplay.  Our Constitution is too important to subject it to that kind of treatment.

Ever heard of “palliative care?” Well, you might want to get familiar with the term. According to Independence Institute Health Care Policy Center Director Linda Gorman, “In certain health policy circles ‘palliative care’ is code for withholding medical treatment that health care bureaucrats deem ‘too expensive’ for ordinary people.”

In her latest op-ed, Linda explains how Amendment 63 protects your right to spend your own money on the health care that you think you need, instead of what government decides you can have. Re-printed in its entirety:

Passing Amendment 63 in November would ensure that you will have the right to use your own money to pay for the medical care that you think you need.

If you live in Colorado you need this protection, and you need it now.

Colorado’s health agencies plan to control your health care even if you have private insurance. They are staffed with people who think that it is their right to control the amount of money you should be allowed to spend on health care. They also believe that they should have the right to determine the treatments that you should be allowed to get.

H.R. 3590, the Patient Protection and Affordable Care Act (aka ObamaCare) has finally given them the power to make their dreams a reality. It puts government in control of the medical care that private insurers may offer, lets government track all medical care encounters, and will let the state determine the value of different kinds of medical care.

The Center for Improving Value in Health Care (CIVHC) is just one of the “public-private” entities within the Colorado Department of Health Care Policy and Financing that wants to tell you what to do. It is cooperating with a number of private foundations, and private businesses, to put limits on your medical care expenditures.

In reports to the private foundations that help support it, CIVHC says that it hopes that the experiments it runs on people in Medicaid, a group forced to accept whatever health care state agencies decide to deliver, “can later be replicated for private payer populations.”

An April 2010 email update from the State Quality Improvement Institute discusses CIVHC’s current project to measure the cost savings from using more palliative care in Medicaid. The email brags that the Colorado Department of Health Care Policy and Financing and CIVHC “are teaming up with the University of Colorado Denver School of Medicine, Kaiser-Permanente Colorado, the National Palliative Care Research Center, and the Center to Advance Palliative Care to conduct a study in Colorado measuring the cost savings of palliative care services for the state Medicaid program.”

People in Medicaid can already get palliative care if they wish. So can everyone else.

In certain health policy circles “palliative care” is code for withholding medical treatment that health care bureaucrats deem “too expensive” for ordinary people. Government agencies trying to lower their health care expenditures love palliative care. They feel that too few people in their programs choose it.

Why pay for medical treatment, they reason, when such treatments have only a moderate chance of success and when it is much less expensive to provide people with all the drugs they need for comfort care?

This attitude permeates government controlled health care systems. It is one reason why European countries with government run systems have much higher cancer mortality rates than the US. It is a lot less expensive to give someone pain killing drugs than a course of radiation or chemotherapy.

Passing Amendment 63 would send a message to elected officials. It would tell them that it is wrong for government to cooperate with private entities to limit an individual’s right to use his own money to pay for the medical care that he needs. It would also amend the Colorado Constitution to preserve the right to spend your own money to buy the medical care that may save your live or the lives of those you love.

(David Kopel)

That’s the topic of my article in yesterday’s edition of The New Ledger. Bottom line: in the Venn diagram, Republican gains and pro-Second Amendment gains sometimes overlap, but not always.

New Hampshire, West Virginia, Indiana, North Dakota are guaranteed gains for Second Amendment supporters, regardless of which party wins.

The most important races, from a right to arms viewpoint, are Connecticut, New York (Gillibrand), Pennsylvania, Ohio, Missouri, Colorado, Washington, and California.

A Democratic-controlled Senate in 2011 with a Majority Leader other than Harry Reid could well be more problematic for Second Amendment rights, even though the total number of pro-rights Senators would have increased.

Over at the Pueblo Chieftain, Lola Spradley, former speaker of the Colorado House of Representatives, has an excellent op-ed endorsing Amendment 63, the “Right to Health Care Choice” citizens amendment. Writes Lola:

We can choose to see a doctor outside of our plan or to pay for health care with cash. That is an important right especially if we want a specific type of health care, such as assisted living, chiropractic, naturopathic, massage, cosmetic surgery and others. Amendment 63 preserves the right to have and pay for the type of health care choices that we want even if state government should decide such services are not medically necessary or may not be covered under insurance.

Amendment 63 preserves your right to buy or not buy insurance from any particular health care plan or system. It preserves your right to buy what best suits your needs and the needs of your loved ones.

Check out the whole thing here.

Watch me take on a Princeton educated lefty about health care choice in Colorado. (in case you were wondering, he was a classics major…)

Watch the full episode. See more Colorado State of Mind.

Colorado taxpayers are on the hook for more than $1 billion in unfunded liabilities incurred in the defined benefit retiree health plan administered by the Public Employee Retirement Association (PERA). An additional $79 million in unfunded liabilities was incurred in 2008, reflecting both a rapid growth in retiree benefits and losses in the assets held in the Health Care Trust Fund. Prospects are for continued volatility and deterioration in the funding status of PERA’s retiree health plan.

These are just some of the findings by Independence Institute Senior Fellow Barry Poulson in his potent new issue paper, “How to Save a Billion Dollars in Other Post Employment Benenfit Costs.”

In it, Barry lays out the looming fiscal crisis driven by, among other things, flawed actuarial assumptions by PERA, and outrageously optimistic assumptions (which have failed to be realized) about the rate of return on assets held in the Health Care Trust Fund.

As Barry writes:

The Colorado Legislature should replace PERA’s retiree health plan with a defined contribution plan, similar to that enacted in Idaho. We estimate that in the short run this reform would reduce the employer annual required contribution to the plan from $72.6 million to $29.0 million. The annual required contribution from the state would be reduced from $24.6 million to $14.5 million, a savings of $10.1 million. More importantly, this reform would reduce the accrued actuarial liabilities in the plan, and enable the state to pay off the $1 billion in unfunded liabilities over a 30 year period.

Check the whole report out here.

Could Republicans become a minor party in Colorado? Check out this Friday’s Devil’s Advocate as the Denver Post’s Chuck Plunkett and Independence Institute investigative reporter Todd Shepherd join me for a discussion of the Colorado Republican Party’s post-election prospects. That’s Friday Sept. 24 at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30PM.

(David Kopel)

Earlier this week, I was the subject of a false Tweet. It claimed, more or less: ” Everybody’s jaw in the room dropped when @davekopel said that Jay –Z is the most over-rated hip-hop artist. LOL.” This way followed by a link, which (being in the typical TinyURL format) gave no clue as to its destination.

The destination was a website written in Japanese. It’s probably true that at least some of the people who follow me on Twitter would be mildly curious about this alleged incident. However, very, very few of my Twitter followers can read Japanese. So the phony tweet was not a particularly well-crafted example of Twitter spam.

For the record, until I saw the aforesaid Tweet, I had never had an opinion on Jay-Z, never expressed an opinion on Jay-Z, and never possessed any basis of knowledge about whether his high rating among hip hop fans was deserved. However, this week I used my Zune to download Jay-Z’s latest album, The Blueprint 3. I love how the Zune makes it possible to check out an entire album of unfamiliar material, at zero marginal cost. So yesterday I listened to the album, and thought it was pretty good. I don’t particularly like hip hop, but even I could tell that Jay-Z is pretty talented.

(David Kopel)

This is a question raised by The Race to the Bottom, a DU Law School blog. Please discuss.

Can the Colorado gubernatorial race get any stranger? And what’s the status on Buck and Bennett in the U.S. Senate race? Tune in to Devil’s Advocate this week to find out as I am joined by Denver Post reporter Tim Hoover and Fox 31 political reporter Eli Stokols for a general election update. That’s tonight, September 17 at 8:30 PM. Re-broadcast the following Monday at 1:30 PM.