Archive for the 'obamacare' Category

Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab

Posted by on Jan 01 2014 | congress, Constitutional History, Constitutional Law, Economics, federalism, Growth of Government, Health Care, Natelson Rob', obamacare, Op-eds, Rob Natelson, supreme court, Tenth Amendment, U.S. Constitution

When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.

Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.

You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.

As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”

The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.

The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)

Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:

Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).

At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:

Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).

The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.

The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.

Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.

“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.

But were you?

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How a Conspiracy Cracked a Monopoly

Posted by on Dec 01 2013 | Constitutional Law, Constitutional Theory, federalism, Health Care, health control law, Individual Mandate, Internet, Law schools, Legal professor, Natelson Rob', obamacare, Popular Constitutionalism, Rob Natelson, Spending Clause, supreme court, Taxing and Spending Clause, Tenth Amendment, U.S. Constitution

Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.

This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.

The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools. These schools include the University of Michigan, Columbia, the University of Chicago—and most notably Harvard and Yale.

Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.

The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school. My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.

When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings. In addition to the Independence Institute’s own Dave Kopel, the authors include five full-time law professors, none of whom work at Harvard or Yale. They are Randy Barnett of Georgetown, Jonathan Adler of Case Western, David Bernstein and Ilya Somin of George Mason, and Orin Kerr of George Washington University. All lean libertarian except Kerr; his dissents add spice to the discussion.

Of course, these authors ultimately were vindicated. The Supreme Court’s decision to uphold the individual insurance mandate as a “tax” was a 5-4 squeaker. The Court also held that the mandate was outside the Commerce Clause and the Necessary and Proper Clause, and that the Obamacare Medicaid expansion was partly unconstitutional. As you make your way through the book, you can see how the winning arguments evolved. My favorite was the realization that the Supreme Court’s “substantial effects” test is a (mis-) application not of the Commerce Clause but of the Necessary and Proper Clause.

At the end of the volume is a section called “Postscript and Concluding Thoughts.” It encompasses six original essays in which the authors discuss the Obamacare case and its outcome. Probably the longest of these is Dave Kopel’s. I personally found it most interesting because it provides historical context and tells the story of the Independence Institute’s participation in the case.

A Conspiracy Against Obamacare is published by Palgrave MacMillan and edited by the Cato Institute’s Trever Burrus. Paul Clement, the former U.S. Solicitor General who argued the case against Obamacare in the Supreme Court, has written an engaging Foreward.

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Obamacare decision throws constitutional shadow on federal tort reform

Posted by on Oct 18 2013 | Constitutional History, Constitutional Law, Constitutional Theory, Corporate Welfare, defunding Obamacare, federalism, House Republicans, Natelson Rob', obamacare, Originalism, Rob Natelson, U.S. Constitution

Just to show you that hypocrisy is alive and well in Washington, D.C. (as if you didn’t know), Title V of the Republican bill to “repeal and replace Obamacare” contains some of the same constitutional problems that led 27 states to challenge Obamacare. Under Title V, Congress would partially assume command of state court procedures—including how they conduct jury trials and what evidence is introduced.

Not surprisingly, the bill’s purported “justification” is the much-abused Commerce Power. However, it likely runs afoul of those parts of Chief Justice Roberts’ decision in which he held that (1) Congress could not invade certain core state powers and (2) although the individual insurance mandate was valid as a tax, it exceeded the Commerce Power.

This week I wrote an essay on the bill’s constitutional problems, which I’ve reproduced below, and in PDF form here.

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Shut ‘Er Down!

Posted by on Sep 29 2013 | defunding Obamacare, federal shutdown, House Republicans, Natelson Rob', obama, obamacare, Rob Natelson, shutdown

Two stories in today’s Denver Post show how cynically the mainstream media are playing the story about what they misleadingly call a “government shutdown.”

Of course, it’s really not a shutdown, just a slowdown—more on that below. And in our constitutional system the states, not the feds, are the primary line of government. The states will still be around to help us through.

And neither story comes to grips with the truth: If we have to endure the full force of Obamacare, it will be a far greater, and far longer lasting, disaster than any temporary federal slowdown.

One of the two stories is “House Pushes Closer to Federal Shutdown.” The e-version is “Budget Fight: GOP Refuses to Drop Assault on Health Law.” It originated at the Washington Post. As both titles suggest, it is written to blame everything on House Republicans. No mention of President Obama’s unprecedented refusal to negotiate. Prior Congresses and Presidents have always been willing to give a little to come to a deal. The Obama position has been “My way or the highway.”

Actually, the House Republicans have been quite moderate about this whole affair. They have repeatedly passed appropriation bills. They have asked only to de-fund one program and have not asked for any other significant budget cuts. (With a $17 trillion deficit, you have to ask “Why not?”) Very moderate, in the overall scheme of things.

A second story, originating at the Los Angeles Times, is entitled “Federal Shutdown Would be Monumental,” but its on-line version is “Federal Officials Warn of Shutdown’s Effects.” Again, both headlines reveal the co-authors’ goal: To panic people—just like they tried to scare us about the sequester.

Would a federal slowdown really be so bad? Social security and other entitlements will continue to flow. Truly vital services will continue. The military and other federal workers will get their back pay. (Anyway, House Republicans stand willing to pass a military appropriations bill at any time.)

Yes, some unconstitutional federal programs will pause. There might be a delay, for example, in grants to promote political correctness or to study the mating habits of apes. But that’s a good thing. Yes, The national parks will close, but for most of them the season’s pretty much over anyway.

Is anyone really horrified at the prospect of, say, not being about to reach an IRS bureaucrat on the telephone?

Will the slowdown hurt the economy? I’m not so sure. If the slowdown reduces the deficit or keeps money in the private economy, it might help. If it forces federal regulators to take a holiday, on balance that might help, too. After all, we’ll still have state regulators available to deal with egregious situations.

For this constitutionalist and fiscal conservative, the stakes are “Obamacare or temporary slowdown?” Given that choice, I’ll take the slowdown any day.

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Lefty Group “Progress Now” May Send Their Apology c/o Us

Posted by on Sep 09 2013 | obama, obamacare

Progress Now Colorado recently had a “Thank You Obamacare” project that supposedly informed citizens of the “benefits” of Obamacare. (In lefty linguo, a “benefit” is something taken at gunpoint from the rest of us and given to the privileged. Decent people call it something else.)

Anyway, Number 1 on their list of “benefits” is “Congress will have the same health care as the rest of us.”

This claim remains on their website even after the nation has learned it simply not true.

It turns out that the Obama administration plans to implement a new rule that allows members of Congress—unlike the rest of us above a certain income level—to continue to enjoy taxpayer-subsidized access to the health care “exchanges.” The rest of us pay full freight. Members of Congress get subsidized.

That’s not fair treatment. In fact, not much about Obamacare is fair, as America has been learning: in one news story after another, we learn how the powerful get exempt, and the rest of us just get stuck.

We expect an apology and formal correction of the error from Progress Now. They can send it to the press, or to us here at the Institute. When we get it, we’ll pass it on.

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27 Ways Obamacare Increases Our Premiums

Posted by on Jun 27 2013 | Health Care, health control law, obama, obamacare, Regulation, Taxes

Serious question: Is there any reasonable person out there who truly believes that ObamaCare will reduce health care costs and insurance premiums? And by reasonable, I mean someone who can point to some evidence for their belief, not just some command and control fanboy. After all, even Jonathan Gruber, one of Obama’s architects for the health control law, admits that health insurance premiums in Colorado would rise 19% under ObamaCare.

It seems so obvious to those of us who understand the most basic of economics. When you centralize an entire industry and impose a top-down scheme of price controls and subsidies, the once functioning market place no longer functions. Why? Because free people are not acting freely anymore. Individuals within that scheme are no longer making free choices. Therefore, there is no market. It’s just a bunch of people being forced to buy and sell goods and services. Forcing is not trading.

It’s no wonder that under these circumstances health insurance premiums in Colorado will rise under ObamaCare. Health Care Policy Center director Linda Gorman gives 27 concrete reasons why this is the case in her new Issue Backgrounder. Or as she likes to put it, “Here are 27 specific reasons why the law is the problem.”

Please share this information with the people you know who are still skeptical about the destructive effects of ObamaCare. Show them the difference between a functioning market and top-down central planning.

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After the election: What now?

Posted by on Nov 09 2012 | Commerce Clause, congress, Constitutional Amendments, Constitutional History, Constitutional Law, Growth of Government, Health Care, health control law, obama, obamacare, Presidency, Tenth Amendment, U.S. Constitution, U.S. Constitution

The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

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The Latest On Obamacare: Destroying Full-Time Jobs

Posted by on Nov 05 2012 | Health Care, health control law, obamacare

Today’s Wall Street Journal has an article about a potentially heart-rending development: The movement by many companies, forced by the Obamacare insurance mandates, to permanently replace full-time workers with part-timers.

Obamacare forces businesses to purchase expensive health insurance for full-time workers or pay stiff penalties. Businesses are not permitted to compromise, as many now do, by purchasing cheaper, skeleton policies—even though those are fully adequate for most younger workers. (I covered myself with such a policy when I was in my early 30s, but they will be essentially illegal under Obamacare)

The businesses most affected are in retailing and hospitality, except for those that cater to the ultra-wealthy. The latter, such as the parent company of the Ritz-Carlton Hotels, can afford to meet the health care law’s mandates.

It doesn’t take much imagination to see how this development will affect workers and families, particularly young families. Some will be forced to take multiple part-time jobs. Some will be forced into the ranks of the working poor. Primary-caretaker parents who otherwise would stay at home to care for small children will be forced into outside employment so they can pay their bills.

As Nancy Pelosi promised, only after its passage are we now learning about the details of Obamacare. And specifically, we are learning that it is more than just bad policy: It is an evil, evil law.

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VIDEO: ObamaCare Ruling, Waldo Canyon Wildfire

Posted by on Jul 16 2012 | Health Care, health control law, Idiot Box (TV Show), obama, obamacare, Originalism, PPC, U.S. Constitution

Here is our constitution scholar Rob Natelson explaining the ObamaCare Supreme Court ruling on my TV show:

Here is Colorado Springs Gazette editorial page editor Wayne Laugesen on the saga of the Waldo Canyon wildfire.

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Obamacare Decision, Waldo Canyon Wildfire on Devil’s Advocate

Posted by on Jul 13 2012 | Constitutional History, Constitutional Law, Constitutional Theory, Idiot Box (TV Show), Necessary and Proper, obamacare, PPC, U.S. Constitution

Friday night means the Independence Institute’s public affairs television show Devil’s Advocate on Colorado Public Television 12. First, Independence Institute constitutional scholar Rob Natelson sits down with host Jon Caldara to discuss his amicus brief on the Necessary and Proper Clause of the U.S. Constitution in the recent Obamacare Supreme Court case and how that clause affected the rulings. Then Colorado Springs Gazette editorial page editor Wayne Laugesen swings by to talk about the Waldo Canyon wildfire. That’s tonight at 8:30PM on Colorado Public Television 12.

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