Up in the air

A few thoughts on the Supreme Court ruling, after reading some commentary today and listening to a Federalist Society discussion forum this afternoon:

- I think this is a terribly disappointing ruling. Obamacare represents a massive expansion of federal power and I thought the individual mandate, at least, was unconstitutional under the Commerce Clause ... which it was, and yet the majority strained hard to find a way to rewrite the actual language to call a "penalty" a "tax" and thus save the law by other means. But there's a real difference between a penalty and a tax, as the dissent points out. A tax is levied to provide revenue for the government, and a penalty is imposed as a punishment/consequence for acting in a certain way (or failing to act in a certain way).  Only certain kinds of taxes can be imposed by the federal government: income taxes, excise/duty taxes, and direct taxes, which are supposed to be apportioned among the states. Paying for failing to have health insurance seems clearly not to fall under any of those listed taxes, and it's structured as a punitive cost for failing to act.  I just don't buy the Chief Justice's argument that the individual mandate is a "tax" as written/structured. If it is, then it seems like just as big an expansion of federal government power as a broad reading of the Commerce Clause would have been. Now if the federal government wants to compel any activity, it can just say "do this or pay a penalty (tax)" -- your "choice". The Court didn't appear to put any limiting principle in place on this power.  Put another way, the taxing power was always extremely broad and fairly unlimited, but you should at least have had to call it a tax and there was something inherently limiting about that (because voters don't like taxes). Now the Court is saying you can structure things as penalties to get the same result without the political consequences to openly calling something a tax. That broadens Congress's authority.

- On the other hand, I heard the argument today that at least people won't be fooled again (well, one would hope) by Congress trying to pass something off as a mere "penalty" when it's really enacting a coercive tax.  So hopefully there is a political limit to the newly-styled power.

- And that leads to a thought on the political fallout: as Mike linked below, the Speaker and the President absolutely insisted when this bill was passed that the individual mandate was not a tax.  The President promised he would not raise taxes on people making less than $250,000 a year.  That was always a bit of a joke, but now it's transparently clear: the only reason the individual mandate was held constitutional today is specifically because it was a tax.  As such, it represents a  tax increase on the American middle class.  Most every American household is going to have to either buy health insurance (where premiums will be rising rapidly, as discussed below), or pay a substantial penalty to the IRS every year.  You're not allowed to choose not to pay so the "tax" either goes to the government or it goes to a private company.  There are multiple other taxes built into the Act that are also going to start hitting in the next two years if they haven't already.  The PPACA is already unpopular with a steady plurality of Americans, consistently by a double-digit margin.  Will calling it a tax really make it more popular?  I think people are going to continue to oppose it and this may galvanize some voters in the fall.

- This Act was always an economic disaster in the making.  Here's a bit of why: most employers will have to either offer approved health insurance plans, or else pay a $2000 (and up) fine to the IRS per employee. Most employers spend more than that on insurance per employee, so the economically rational decision will quickly become to stop offering health insurance and just pay the penalties.  Employees will then be left out to get insurance on their own, and they are required to have insurance (the individual mandate) ... or wait, they too can opt to pay the "tax" as the Court held today.  The economically rational decision for many of them will also be to pay the tax, instead of buying expensive health insurance policies on the open market.  Why?  Because the Act requires that insurance companies can't turn anyone away for preexisting conditions -- which means that many people will only buy insurance when they get sick and need it.  Pay the cheaper fine when not sick, buy the insurance only when you need.  This is not economically viable for insurance companies, who need people to pay premiums on a regular basis whether sick or not to cover the costs of those in a given pool who do get sick over time.  Costs are going to spiral, and who's going to pay for insurance when the companies go out of business?  The government?  That may well be the plan (quite a few Democrats voiced this intention when the bill was passed).  But how many Americans are looking for European style socialized medicine?  That's kind of a disaster in itself.

- I will take a silver lining in the fact that the scope of the Commerce Clause was limited by today's ruling.  Taxes are harder to pass politically and by not allowing Congress unlimited license under the Commerce Clause but requiring them to resort to taxes to achieve some ends, there should be more accountability for congressmen.

- I will also take a silver lining in the fact that the Supreme Court has been largely taken away as  an issue for the left this fall.  The demagoguing and feverish outrage was already at full blast before the ruling when liberals thought they were going to lose the Court ruling today - it would have only intensified in the face of a 5-4 ruling striking the Act.  But 5-4 to uphold, and suddenly all is peachy and Chief Justice Roberts is a model of judicial restraint and modesty.  On the other side, the right can only be more energized, since it was passage of the PPACA that was one of the most important drivers of the Tea Party in 2010.  Now that the only option is to overturn it legislatively, we've got to keep pursuing that option.

- Finally, I note that the many lawsuits pending against HHS for the mandate requiring religious employers to offer insurance policies that cover abortion, abortifacients, sterilization, and contraceptives in violation of their religious beliefs, are still alive in the courts.  Even if Obamacare isn't overturned in its entirety, there is still a hope that religious freedom will prevail in these matters.  I'll do a post on these sometime soon, especially as we are in the middle of the Fortnight for Freedom right now.  St. Thomas More, pray for us!

ETA: a picture of Admiral Ackbar from Reason.com that I found amusing.

Obamacare lives

Just a quick rundown of the opinion today in National Federation of Independent Businesses v. Sebelius, the healthcare law ruling by the Supreme Court that everyone's been waiting for. (Although, several people in my office had no idea it was in the news at all, so ... maybe just law/politics junkies were waiting for it?)  In the next post I'll put down a few of my takeaways.  Stick with me through the summary first ... it was a complicated case!

The Patient Protection and Affordable Care Act (which doesn't protect patients and will in short order bankrupt us, but I digress) was challenged in this case on the individual mandate, the requirement to buy health insurance or pay a penalty; and on the expansion of Medicaid by the states, which involved a requirement for the states to expand their Medicaid funding/services or else be subject to losing all Medicaid funding, not just new funding.  I will just focus on the first issue.  The challengers said that the individual mandate was not authorized by the Constitution's grant of powers to Congress.  The government said it was either authorized under 1) the Commerce Clause, 2) the Necessary and Proper Clause, or 3) almost as an afterthought, the Taxing and Spending Clause.

No lower courts really addressed the tax issue because the PPACA never uses the word "tax" in connection with the mandate - it says buy health insurance or pay a "penalty".  So pretty much everyone thought the mandate would stand or fall based on the Commerce Clause.  The Commerce Clause, which gives Congress the right to regulate interstate commerce, has been read so expansively since the 1930s that there is almost no limit to what counts as interstate commerce -- almost anything can be said to affect interstate commerce in the aggregate.  Even growing wheat for your own family, and not selling it to anyone in state or out of state, can be "commerce" under the famous Wickard v. Fillburn case from the 30s.  But even as broad as this grant of authority has been read, the Court had never found that inactivity could be regulated the same as activity, so theoretically there was some limit to federal government power.  In this case, I would say that not buying health insurance is not an "activity" because you haven't actually done anything.  Some lower courts found Wickard and the line of cases following it were broad enough to make this inactivity count as commerce, though, and some didn't.  So, this should have been the big issue at the Supreme Court.  If it were upheld under the Commerce Clause, that would be huge, and imply there is no limit to what Congress can do (this is where the infamous, "the government can force you to eat broccoli" argument comes from).  On the other hand, if the individual mandate were struck down under the Commerce Clause, that would be a big step to restraining congressional power.  Since it was so key to the PPACA overall -- since if not everyone was forced to buy health insurance, the whole program would be uneconomical -- the next question would have been whether the whole law had to fall or whether it could be "severed" and the rest stand.  The four dissenting justices would have struck down the whole law once they found the mandate was unconstitutional.

Surprising pretty much everyone, the Court did hold 5-4 that the individual mandate was not authorized by the Commerce Clause ... but then Chief Justice Roberts switched his vote to the join the four Court liberals in holding that it was authorized by taxing power.  And since the mandate was upheld, the Court didn't reach the severability question, and the whole Act was upheld.

Why did he do this?  Here's one thing to note: no one I'm aware of ever argued that the PPACA would have been unconstitutional as an exercise of the taxing power.  If Congress levied a general tax on everyone, then gave credits to people who bought health insurance and/or spent the tax funds on its own healthcare programs, I readily concede that would be constitutional.  What the Chief Justice did was to follow a general principle of interpretation that if there is any "fairly possible" reading of a law that would make it constitutional, even if that's not the most natural or obvious reading, then a court should go with that "fairly possible" reading and uphold the law.  He said that in this case, because the IRS collects the penalty, the penalty amount is somewhat tied to income, and one can opt either to buy insurance or pay the penalty, then the penalty could fairly be said to be acting like a tax, and thus it could be a tax.  The law does not use the word tax, and it says people "shall" buy health insurance or pay a penalty, so yes, the most natural reading is that it's a mandate and a penalty ... but it COULD be the case that it is merely imposing a tax for not having health insurance.  Since that is a fairly possible reading that would allow the provision to be upheld as constitutional, he believed he was compelled to read it that way.  Therefore, the mandate was upheld under the taxing power.

As I said, this result surprised pretty much everyone, and there are a lot of conflicting views on how to read the results.  I'll put some of my thoughts in the next post.

Topical

Given at St. Peter's, Rome, on the 25th day of July, the feast of St. James the Apostle, in the year 1968, by Paul VI: 

Responsible men can become more deeply convinced of the truth of the doctrine laid down by the Church on this issue if they reflect on the consequences of methods and plans for artificial birth control. Let them first consider how easily this course of action could open wide the way for marital infidelity and a general lowering of moral standards. Not much experience is needed to be fully aware of human weakness and to understand that human beings—and especially the young, who are so exposed to temptation—need incentives to keep the moral law, and it is an evil thing to make it easy for them to break that law. Another effect that gives cause for alarm is that a man who grows accustomed to the use of contraceptive methods may forget the reverence due to a woman, and, disregarding her physical and emotional equilibrium, reduce her to being a mere instrument for the satisfaction of his own desires, no longer considering her as his partner whom he should surround with care and affection.
 

Finally, careful consideration should be given to the danger of this power passing into the hands of those public authorities who care little for the precepts of the moral law. Who will blame a government which in its attempt to resolve the problems affecting an entire country resorts to the same measures as are regarded as lawful by married people in the solution of a particular family difficulty? Who will prevent public authorities from favoring those contraceptive methods which they consider more effective? Should they regard this as necessary, they may even impose their use on everyone. It could well happen, therefore, that when people, either individually or in family or social life, experience the inherent difficulties of the divine law and are determined to avoid them, they may give into the hands of public authorities the power to intervene in the most personal and intimate responsibility of husband and wife.

Health Care

Global Warming: Threat Level Midnight

While Obama and other world leaders were busy in Copenhagen over the past 48 hours trying to hammer out some climate change accord (which seems to have mostly failed), this was happening in Washington, D.C.:

http://voices.washingtonpost.com/capitalweathergang/2009/12/update_double_digit_snowfall_f.html

Many parts of the metro region -- particularly in the south -- have received 10 or more inches of snow through 11 a.m. Around Charlottesville, totals have reached 15-20". Another 5-9" is likely, with locally heavier amounts, especially east of town. The worst part of the storm will continue through the mid-to-late afternoon hours, with snow decreasing in coverage and intensity from southwest to northeast. Overnight, snow will be lighter and more intermittent and should end most places before dawn.

I know this doesn't exactly prove whether or not human activity has been causing the Earth to heat up, but don't you think God has a wicked sense of humor when the most important global warming conference ever is inundated with below freezing temperatures and snow, and, back here in the United States, our nation's capital is slammed by the largest December snowfall in recorded history?

Jobs FAIL

More good news out of Washington today!

The unemployment rate rose from 9.8 to 10.2 percent in October, and nonfarm
payroll employment continued to decline (-190,000), the U.S. Bureau of Labor
Statistics reported today. The largest job losses over the month were in con-
struction, manufacturing, and retail trade. (BLS)

That's awesome! Just what we were promised by the President when he signed the Stimulus bill. Let's take a look at what the Obama administration promised us October would look like with the stimulus (DARK BLUE LINE):



Whoops! What happened here? Did the $780 Billion Stimulus have no effect on the economy? Let's see what Obama has to say about that:

Nearly 650,000 jobs have been saved or created under President Barack Obama's economic stimulus plan, the government said Friday, and the White House declared the nation on track to meet the president's goal of 3.5 million by the end of next year.

New job numbers from businesses, contractors, state and local governments, nonprofit groups and universities were released, showing 640,329 positions credited to the stimulus, according to the independent federal board monitoring the program's progress. (Yahoo!)

That sounds good. But how did the Obama administration figure out how many jobs were "created or saved"?:

- A review of the latest stimulus reports - which the White House promised would undergo extensive reviews to ensure accuracy - found that more than two-thirds of 14,506 jobs credited to the recovery act by Head Start programs involved pay increases. (Boston Globe)

- An early progress report on President Barack Obama's economic recovery plan overstates by thousands the number of jobs created or saved through the stimulus program, a mistake that White House officials promise will be corrected in future reports.

The government's first accounting of jobs tied to the $787 billion stimulus program claimed more than 30,000 positions paid for with recovery money. But that figure is overstated by least 5,000 jobs, according to an Associated Press review of a sample of stimulus contracts.

The AP review found some counts were more than 10 times as high as the actual number of jobs; some jobs credited to the stimulus program were counted two and sometimes more than four times; and other jobs were credited to stimulus spending when none was produced. (AP)

- More than $4.7 million in federal stimulus aid so far has been funneled to schools in North Chicago, and state and federal officials say that money has saved the jobs of 473 teachers.

Problem is, the district employs only 290 teachers.

"That other number, I don't know where that came from," said Lauri Hakanen, superintendent of North Chicago Community Unit Schools District 187. (Chicago Tribune)

- The federal government sent Bob Bray $26,174 in stimulus aid to fix a fence and replace the roofs on public apartments in Blooming Grove, Texas, a town of fewer than 900 people outside Dallas. He hired five roofers and an inspector to do the job.

But the number of jobs he reported to the government looked very different — 450 jobs.

"Oh, no," said Bray, who runs the local public housing authority part-time with his wife, Linda, when asked about the discrepancy. He said that he told the government that he had created six jobs but that a federal official told him that wasn't right. So he reported the number of hours the roofers worked instead. The Department of Housing and Urban Development caught the mistake, but he couldn't fix it before the jobs figures were published. "The money was great, but the reports are really confusing," he said. "I've been fighting with it for over a month and a half." (USA Today)

Gosh, It looks like there's been a lot of "rounding up" going on in the Obama administration. Sometimes you have to do that so that numbers aren't too confusing. Math is hard. :/

Maybe this graph will clear things up:

9.7

The chart below shows the actual unemployment rate in red, and the blue lines represent the White House projections for the unemployment rate with and without the $787 billion stimulus package that was passed earlier this year.

Whoops!

Smart Power

While much of the media fawns over Obama's miraculous diplomatic healing powers, I think the two items below provide a clearer picture of who is the clear winner during this meeting.


Russian hospitality.

Putin praises Bush hospitality during Obama visit
Tue Jul 7, 2009 4:22am EDT

MOSCOW (Reuters) - Russia's Prime Minister Vladimir Putin praised the hospitality and openness of U.S. former President George W. Bush in a telegramme sent hours before meeting his successor Barack Obama.

"During the last years we have been working on strengthening Russia-U.S. cooperation. Although there were differences between our countries, I always valued your openness and sincerity," Putin said, congratulating Bush on his 63rd birthday on July 6.

"With special warmth I recall your hospitality in the Crawford ranch and your family estate in Kennebunkport," Putin wrote, referring to their 2007 meeting at the Bush family vacation home when the two leaders went fishing and ate lobster.

Bush had said he "was able to get a sense of his soul" when he first met Putin and since then their warm rapport has helped limit the damage from a series of rows that returned ties between their administrations to chilly Cold War lows.

On Tuesday, Putin, who stepped down as president last year but remains the most influential Russian politician, invited Obama for a "Russian-style" breakfast during their first meeting at Putin's forest residence outside Moscow.

Russian agencies, quoting the government's press service, said Putin treated Obama to black caviar with sour cream, smoked beluga with pancakes and tea made in the traditional Russian samovar, a big coal-fired kettle.

(Writing by Gleb Bryanski)

I know this doesn't necessarily need to be said, but I'll say it anyway. Sending President Bush a birthday telegram is a nice gesture. Releasing a copy of said telegram to the media hours before you meet with our current President is cold and calculating.

More fallout at ND

I have another post up here.   Bishop D'Arcy has decided not to attend Commencement for the first time in his 25-year tenure, and several student groups, including the pro-life group, have organized to express their opposition to recognizing President Obama with an honorary law degree.  As the students note, "To award a Notre Dame law degree to a lawyer and politician who has used the law to deny equality to the unborn diminishes the value of the degree itself."  That somewhat understates the matter, but it's clearly correct.  The media are starting to take notice.  I think the University must have known they weren't doing the right thing here, but they must be surprised by the scope of the reaction.  How are they going to respond?

Money for Nothing

Barack Obama was elected on a mandate of change in the November presidential election, and boy has he delivered! After his stern remarks last night in his manufactured press conference, the Democrats (and 3 Republican traitors) did their job this afternoon in passing the stimulus bill.

U.S. Senate Approves $838 Billion Stimulus Package

Feb. 10 (Bloomberg) -- The U.S. Senate approved an $838 billion economic stimulus package, clearing the way for negotiations with the House over a compromise plan that President Barack Obama wants lawmakers to send him within days.

The Senate today voted 61 to 37 to approve its measure. The bill provides $293 billion in tax cuts and more than $500 billion in new spending that the legislation’s supporters call critical to preventing the economy from sinking deeper into recession.

After the Senate added $838 billion (with interest!) to the national debt, President Obama's tax-evading treasury secretary Timothy Geithner did his part to destroy the confidence of the American financial system.

Geithner unveils new bank rescue plan

Creating a private-public partnership to take toxic assets off banks' balance sheets. Policymakers believe clearing bank balance sheets of badly deteriorated loans and securities is a prerequisite for restoring the normal flow of credit into the economy. Geithner said the plan will aim initially to use public financing to create as much as $500 billion in private sector buying capacity, with the prospect of an expansion to $1 trillion down the road.

The U.S. stock market processed both actions today with incredible swiftness:

[caption id="attachment_623" align="aligncenter" width="468" caption="-381.99 (4.62%)"][/caption]

This exchange from Arrested Development pretty much sums up today:

Board Member #3: Why should we believe in you?

G.O.B.: For the same reason you should believe a hundred dollar bill is no more than a hundred pennies!

G.O.B.: They approved me unanimously.

Michael: Why wouldn’t they? You’ve only lost them 99 dollars so far.

Change you can't believe in

Among President Obama's first official acts scheduled for tomorrow, the anniversary of Roe v. Wade, will be ones destructive of human life.  As promised, he will sign an executive order overturning the Mexico City policy, which was implemented by President Reagan to stop federal funding of international abortions.  President Clinton overturned it his first few days in office, but President Bush had reinstated it.  Now, American taxpayer dollars will once again be used to fund abortions and abortion advocacy abroad.  Anyone who values the rights of the unborn has to feel grieved that we have changed from a president who understands what the culture of life is all about -- who knows that protecting the lives of the innocent and voiceless includes protecting the lives of the unborn -- to one who, far from recognizing the sanctity of human life, will work actively to entrench and expand abortion rights.

Relatedly, President Obama is also planning to reverse Bush's executive order banning federal (taxpayer) funds for embryonic stem cell research, which involves the creation and destruction of human embryos.  Nevermind that such research is immoral, ineffective and unnecessary (adult stem cell research is far more promising and already effective, with no moral issues), and that in this economic climate federal money might better be spent elsewhere.

Finally, Obama told Planned Parenthood last year that the first thing he'd do as president would be to sign the Freedom of Choice Act, which supposedly would codify Roe, but would actually go far beyond that to wipe out all abortion laws in the country: parental notification laws, waiting periods, counseling laws, bans on partial-birth abortion, and so forth.  It would allow taxpayer money to directly fund abortions through Medicaid by eliminating the Hyde Amendment.  And it could threaten the right of conscience for Catholic hospitals and pro-life physicians not to perform abortions.  In short, it's pretty much the most radical pro-abortion legislation we could have, and with a Democratic majority and a committed president, it's going to take tremendous effort on the part of Catholics and other pro-life supporters to fight it.

It's a terrible shame that, even in a year in which the bishops spoke out more than ever about the Church's clear teaching on abortion, around 54% of Catholic voters picked likely the most pro-abortion president we've ever had.  Please pray for the marchers in the annual March for Life in Washington tomorrow, for the defeat of FOCA, and for the conversion of this president to recognize the value of unborn human life.

Post Mortem

[caption id="attachment_310" align="aligncenter" width="360" caption="Baby 20 Weeks"][/caption]

- Barack Obama is the most pro-abortion candidate ever elected.

- He scored a 100% record from NARAL Pro-Choice America.

- He has repeatedly promised to sign the Freedom of Choice Act when he becomes president, which would eliminate all current legal restrictions on abortions in the United States, including states limiting the number of abortion providers and age of consent laws for teenagers.

- Joe Biden has a 75% rating with NARAL Pro-Choice America, but the only blight on his record is voting for the Partial Birth Abortion Ban in 2003.

- Barack Obama and Joe Biden believe that Roe v. Wade should be upheld.

- Joe Biden's support of Roe v. Wade, and abortion rights in general, is in direct opposition to Catholic teaching and tradition. He has consistently mis-stated Church teaching and history to rationalize his support of Roe v. Wade.

- 3 Supreme Court Justices are very close to retiring in the next four years. With the current Democratic majority in the Senate, any person chosen by President Obama would easily be confirmed by them and appointed to fill those vacancies.

- President Obama voted against Supreme Court Chief Justice John Roberts and Samuel Alito, and has publicly stated he would have voted against Justice Clarence Thomas, the only African-American on the Supreme Court at this moment.

- Between 1973 and 1990, 28 million babies where aborted by their mothers. All of those potential citizens would have been eligible to vote in the election.

- Since 1973, it is estimated that 49,915,603 million babies have been aborted in the United States alone.

http://thomas.loc.gov/cgi-bin/query/z?c108:S.2020:

http://www.prochoiceamerica.org/elections/statements/obama.html

http://www.nrlc.org/Factsheets/FS03_AbortionintheUS.pdf

http://online.wsj.com/article/SB121901817146948231.html?mod=rss_opinion_main