Archive for January, 2011

Judge Vinson rules federal health control unconstitutional

Posted by on Jan 31 2011 | Health Care

(David Kopel)

The decision from the Northern District of Florida is available here. In brief:

1. The 26 states lose on the argument that the mandate for drastically increased state spending under Medicaid is unconstitutional. State participation in Medicaid always has been voluntary, and remains so. The states did not argue that the revisions to the Medicaid grant program violate the 4-factor test in S.D. v. Dole as to when conditional federal grants to states are permissible.

2. The plaintiffs win on the individual mandate. The individuals plaintiffs, and the National Federation of Independent Businesses have standing to challenge the mandate. So do Utah and Idaho, at the least, because of state statutes forbidding health insurance mandates. According to original meaning, “commerce” was trade. Citation to Randy Barnett. Even the modern precedents require “activity” as a predicate for commerce clause regulation. Discussion of the pre-Revolution boycott of tea, in protest against the Stamp Act; surely the new Constitution did not empower Congress to mandate the consumption of tea. The decision not to purchase health insurance is not an “activity.” Congress cannot use the commerce power to mandate the purchase of broccoli or General Moters automobiles. (Contra Chemerinsky’s cited argument that Congress can mandate automobile purchases.) The health insurance mark does not possess unique characteristics to justify a mandate. Characterizing the refusal to purchase health insurance as a regulatable economic activity would violate “the non-infinity principle” (a Kopel/Reynolds term, not the court’s) that the commerce clause does not give Congress the power over almost everything.

If it has the power to compelan otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actualtransaction is itself “commercial and economic in nature, and substantially affectsinterstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest thatCongress could do almost anything it wanted. It is difficult to imagine that a nationwhich began, at least in part, as the result of opposition to a British mandate givingthe East India Company a monopoly and imposing a nominal tax on all tea sold inAmerica would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failingto engage in commerce, the enumeration of powers in the Constitution would havebeen in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate therecesses of domestic life, and control, in all respects, the private conduct ofindividuals”) (Thomas, J., concurring).

3. Necessary & proper does not save the mandate. The mandate fails at least 2 of the 5 factors from Comstock. Necessary and proper is not an independent source of power, but rather an authorization of additional means for ends which are themselves among the enumerated powers.

Here, the “essential attributes” of the Commerce Clause limitations on the federalgovernment’s power would definitely be compromised by this assertion of federalpower via the Necessary and Proper Clause. If Congress is allowed to define the scope of its power merely by arguing that a provision is “necessary” to avoid thenegative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the“perfectly harmless” part of the Constitution that Hamilton assured us it was, andmoves that much closer to becoming the “hideous monster [with] devouring jaws”that he assured us it was not.

4. The mandate is not severable from the health control act. Defendants themselves have argued forcefully that the mandate is absolutely essential to the entire regulatory scheme. There is no severability clause. The mandate is tightly integrated into the entire act.

5. No injunction. Declaratory relief is sufficient, especially since there is a presumption that the federal government will comply with judicial decisions.

6. The entire act is declared void. According to Cato’s Ilya Shapiro, this means that the federal government (presuming that it will obey the law) must immediately stop enforcing the entire health control law. Of course the 11th Circuit might grant a stay, and Judge Vinson might also do so, but as of right now, there is no stay.

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But the Founding Fathers Didn’t Have Email

Posted by on Jan 31 2011 | Regulation

(Cartoon courtesy of Ben Hummel at

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Double Dose of Your Devil’s Advocate

Posted by on Jan 28 2011 | Idiot Box (TV Show), PPC

Get ready for a double dose of Devil’s Advocate this week. It’s the same half-hour of public affairs excellence, just in two different segments. First, I am joined by Colorado’s assistant house majority leader, Representative Mark Waller, for the new leadership’s perspective on the 2011 legislative session, then I go one-on-one with the Independence Institute’s Amy Oliver-Cooke for a look at what’s on tap for transparency legislation in Colorado this year. That’s tonight, January 28 at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30 PM.

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Citizens’ Budget Facts Part Deux

Posted by on Jan 27 2011 | Citizens' Budget, Economics, Economy, education, Government Largess, Health Care, PPC, Taxes

These little nuggets are taken from our massive Citizens’ Budget project, headed up by Fiscal Policy Center director Penn Pfiffner.

1. Further reform of PERA must be one the highest priorities of this General Assembly. Although PERA boasts assets with market value of $32.9 billion, its total liabilities were nearly twice that amount – $56.3 billion – even after the legislature adopted the latest PERA bailout: SB1 (2010). That means the stated unfunded liability is $23.4 billion, or a little over $10,100 for every family or household. PERA’s 2009 Certified Annual Financial Report confirms that the Board of Trustees’ assumed future rate of return greatly affects the funding ratio. If trustees were to assume a conservative return of 4 percent the real liability would approach $40 billion, or $20,000 per household. [ PERA Certified Annual Financial Report (CAFR), December 31, 2009.]

2. Adopt tuition tax credits to save money for the State and local school district. Setting the credit scholarship below a student’s per-pupil revenue share ensures both short-term and long-term savings while empowering more families with a wider range of quality education options. We urge legislators to utilize an econometric model from the Cato Institute to measure the fiscal impact of education tax credits, as we did. Plug in your own assumptions to see their effects. Our cautious inputs projected saving $21.3 million at the state level during the first three years of the program. Over 10 years, State savings would reach $176 million, with nearly $697 million saved at the district level.

3. In Colorado, the Medicaid caseload has expanded faster than the state’s population, and faster than the proportion of the state’s population in poverty because the state has continuously expanded Medicaid eligibility. The state share of expenditures on Medicaid has continued to increase in good times and bad. Simply rolling eligibility levels for Medicaid and Medicaid mental health back to the FY 2007 levels would save about $243 million in state funds each year. The Governor and legislators must start the waiver process, or oppose the Maintenance of Effort, to ensure that the State maintains some control over the program.

4. The State’s Old Age Pension Plan costs $105 million per year. A resident qualifies if over age 60 and meets the need-based standard for eligibility. The Plan provides financial benefits up to $699 per month to beneficiaries. The Plan is even more generous than Social Security because, unlike the federal program, beneficiaries do not need to show they have ever earned income, lived in the state before applying for benefits, nor ever paid any taxes of any nature to Colorado!

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The Conservative Event of the Year

Posted by on Jan 26 2011 | Events, PPC

Our friends at the Leadership Program of the Rockies know how to throw a party. This coming February, they are hosting a retreat down at the Broadmoor in Colorado Springs with some very big names in our movement. The likes of Charles Krauthammer, English MEP Daniel Hannan, and Grover Norquist are already confirmed. There will be other speakers announced as they become confirmed.

The event is on February 25th and 26th, but registration closes on February 18th. So please register now before it’s too late!

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Independence Institute Writers In The News

Posted by on Jan 26 2011 | education, Health Care, PPC, Taxes

Independence institute writers have opinion pieces published today on both education innovation in Colorado, and the prospects for repealing a health care tax not so cleverly disguised as a fee.

First, in today’s Colorado Springs Gazette, education policy analyst Ben DeGrow writes on innovative ideas at Falcon District 49 designed to “empower families, to streamline bureaucracy and to give principals the tools and incentives to succeed.”  Check it out here.

Then in the new edition of the online news site Health Policy Solutions, health care policy center director Linda Gorman makes the case for the repeal of Colorado’s Health Care Affordability Act, which according to Linda is anything but “affordable.”

If truth in advertising applied to legislation, the act’s title would have landed someone in jail. In its first year, it raised health care costs by levying $340.9 million in new taxes on nursing home and hospital bills.

Whole thing here.

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The Petition Process is Dead in Colorado

Posted by on Jan 25 2011 | ACORN, Amendment 63, Capitol Crazies, First Amendment, Freedom of Speech, Petition Rights, PPC, Purely Personal

This legislative session there will be yet another attempt to make it harder for citizens to change the Colorado State Constitution by raising the signature requirements to get something on the ballot. Why bother? The petition process in Colorado is already DEAD.

I mean it. Dead. Only a fool with a financial death-wish would try to get ANY initiative on a statewide ballot.

You see, the petition process frightens many in government because it gives us little people the ability to have a meaningful say in restricting government. When the legislature fails to address our needs, we can bypass them and bring an issue directly to our fellow Coloradans. Over the years we’ve been able to do this on a number of occasions. Take for example the Taxpayers Bill of Rights (TABOR) or Term Limits. Without the petition process, we would not have TABOR in place now saving us from an even larger budget deficit. And legislators certainly would never have limited their own terms in office.

To be sure, the enemies of the petition process have come from both the left and the right. In 2009, the legislature passed the 24-page HB 1326, which placed several restrictions and regulations on the petition process that did not exist before – restrictions that would hamper ordinary citizens from petitioning their government by greatly raising the cost of petitioning. Of course this does not effect the rich, union backed forces nearly as much as the little guy (us).

Additionally, the law for the first time opened up the individual proponents of petitions to be liable for a much more loosely defined “fraud” or wrongdoing by nearly anyone working or volunteering on behalf of the amendment. And here is where the story really begins. With the proponent of a petition forced to personally pay the legal costs if someone else commits “fraud” – even when their amendment does not pass – who in their right mind would take on that risk? Answer: me.

Right now I am the target of a legal complaint and may be personally liable for so-called “fraud” committed by other people during the signature gathering process for Amendment 63, our Right to Health Care Choice initiative. As this MUST READ Citizens in Charge article outlines, I could be forced into personal bankruptcy because of this legal complaint. All because I wanted my fellow Coloradans to have a say in how our government was run.

Despite the initiative process still officially on the books, it has effectively been nullified by this 2009 legislation. I join Vince Carroll at the Denver Post in calling for cleaning up these rules.

My current situation now serves as a warning to those who might be considering running an initiative in the future. Now read this Citizens in Charge article.

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Win a Big Red Calculator!

Posted by on Jan 24 2011 | Government Largess, PPC

What’s a big red calculator? Well, it’s big in the sense that it will not fit in your shirt pocket (sorry geeks). And in the sense that it goes up to 16 digits, which makes it the official calculator of our national debt. Of course, that also explains why it’s red. It is the “largest collection of zeros every assembled!”

So what does a guy or gal have to do in order to win one of these cool calculators? It’s simple really. Log onto Facebook and “like” the Mothers Against Debt fan page. After that you can see and participate in the contest that Mothers Against Debt is running that will enable you to win one of these calculators. As Amy explains,

Mothers Against Debt is running a contest and will give away one BIG RED calculator every week for the next four weeks. And because we are really nice, we have a swag bag of other goodies for you as well. All you have to do is provide an answer to the question of the week in the comment section, and get your facebook friends to “like” your comment. The MAD fan with the most “likes” will win the BIG RED calculator along with a grab bag of other free market swag. At the end of four weeks, the four winners will compete for $100 cash prize. MAD will present a new question each Saturday evening. Voting will be shut down for the previous week’s question with the appearance of the next question. Be creative and pithy with your answer. Or if you just have a whole bunch of friends, convince them to like your comment! We look forward to your answers.

We have just begun this week’s contest, so get in on the action before it’s too late!

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Citizens’ Budget on KNUS and 850 KOA

Posted by on Jan 21 2011 | Citizens' Budget, Economics, Government Largess, PPC, TABOR, Taxes

Citizens’ Budget project director Penn Pfiffner continues his mission of spreading the good word about the solutions found in our Citizen’s Budget project. This past week found Penn on two different radio shows. The first was on Ross Kaminsky’s Backbone Radio program on KNUS. Filling in for Ross that day was Krista Kafer, who did a great job interviewing Penn on how Colorado can move towards fiscally responsible government. And just this morning we were honored to have Penn on News Radio 850 KOA’s Mike Rosen show. You can hear Penn talk about our current fiscal crisis about a quarter of the way into this audio file of the 9am hour of the show. We want to thank both KNUS and KOA for letting Penn spread the important message that our budget gap is not a “revenue shortfall” as some like to argue. Rather, the gap is fiscally unsustainable and requires structural changes with spending cuts, NOT raises in our fees and taxes.

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The State of Investigative Journalism in Colorado

Posted by on Jan 20 2011 | Idiot Box (TV Show), PPC, Transparency

What’s the state of investigative journalism in Colorado? Tune in to Devil’s Advocate this Friday to find out as I am joined by Denver Post staff writer Chuck Plunkett and Independence Institute investigative reporter Todd Shepherd to discuss the Denver Post’s new political investigative project, the place of new media in investigative reporting, and the benefits and challenges of utilizing the Colorado Open Records Act (CORA). That’s this Friday, January 21 at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30 PM.

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