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.

It's Not a Tax

Updated:

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

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:

BREAKING NEWS !!1!!@!!

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!

When the government runs things

I think everyone agrees there are lots of problems with the health care system -- insurance companies can be awful to work with, it's really hard to be covered if you don't have a job, it's very expensive even if you do have a job, and the market gets distorted because people sometimes stay in their jobs, even if they'd be better off elsewhere, solely for fear of losing benefits. Et cetera. But the government taking over everything isn't going to work. Just think about your ordinary experiences with the DMV. You want those guys reviewing every doctor's visit and minor procedure for whether it's going to be covered or not? Do you want the government reviewing all of your private medical records generally? (It's not even working out now for the major healthcare area the government already controls, Medicare.) Furthermore, everyone (from the nonpartisan Congressional Budget Office to the New York Times to the president himself) understands that the implied "free" nature of universal coverage is a myth. It's going to cost $1 trillion over the next ten years, just to start. The bill's not done yet; probably it will end up costing $4 trillion. That's all going to come from us taxpayers; a $600 billion tax hike is part of the plan already. Even if we pony up, though (not that we'll have a choice), we aren't going to be happy with what we get for it. One health care consultant writes here about how, if the current health care "reform" bill passes, all our experiences will be worse off -- and fast.

Fortunately, if all these facts are publicized, this bill (unlike the major spending bonanzas rammed through earlier this year) has a chance of being slowed or stopped. That's good -- we need a better alternative than the one we're getting now.

Unsustainable

Blogger Ace had a good post today about the President's out-of-control spending and huge government growth -- and the massive tax hikes that are inevitably going to follow. Only, most people don't fully realize this yet (and despite Governor Palin warning us last year) because the mainstream media are still carrying water for their favorite politician (who's "sort of God," according to one senior Newsweek editor over the weekend). Ace points out that most people operate under the general assumption that presidents don't change policy all that much -- Democrats move things a little to the left, Republicans a little to the right, but none of them will really affect our lives all that much. The policies of this president, however, are different in scope and scale. The policies he's enacting are going to seriously impact our lives for a long time to come, and not in good ways.

As the Dan Aykroyd character in Tommy Boy says, "What the general public doesn't know is what makes them the general public."

But it seems that the general public is finally getting savvy to the idea that these budgets aren't just large, aren't just "what Bush did too," and aren't merely "a little worse than Bush." They are entirely unprecedented, except for a brief period during the Second World War.

Here's the graph of what Obama's deficits over the next decade look like -- according to his own projections.

Even if Obama taxed that awful, evil "wealthiest 5%" at 100% of their income, it wouldn't come close to covering this. And remember, he's not done spending billions and trillions he doesn't have yet. We just got the new health care plan released this week. No one's read it all yet. It probably doesn't matter to the Congressional Democrats, because they didn't read the $750 billion "stimulus" bill either before they passed it. But you can be sure it will require a lot of money we don't have. Obama proposes taxing soft drinks, reducing charitable deductions, raising gas taxes, raising payroll taxes, and raising income taxes across the board, among other things. Nevermind that he promised he wouldn't raise taxes -- "not a single dime" -- on anyone making under $250,000 per year. It was never true.

By the way, speaking of the "stimulus," how's that working out? We absolutely, positively needed $750 billion passed by President's Day or else we'd have the worst recession since the Depression OMG!!! Unemployment would hit 8% without that stimulus!!!

Well, here we are in June. Maybe 5% of that stimulus money has been spent so far. And the unemployment rate, even with the stimulus, is spiking above what the White House claimed was the worst-case scenario.


Good thing the President is "sort of God," though. Whew. Otherwise, who knows how bad it would get?

Obama situation gets worse

Arizona State isn't going to give the President an honorary degree at their commencement this because they don't think he's done enough yet in his career.  But Notre Dame is conferring a law degree when the only things he *has* done as President in a legal capacity are things pretty much antithetical to Catholic principles?  (Unless spending $2 trillion dollars is such a pro-Catholic thing somehow it negates the federal funding for abortion groups and embryonic stem cell research -- how, I'm not sure.)  I have more here and here.

April Fool's!

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