Handicapping Obamacare/the Effect of Comstock

Here are a pair of great posts on the Volokh Conspiracy arguing about the meaning of Comstock to Obamacare. 

I think the bottom line is what I tried to get at in my initial post on this topic: Justices Thomas and Scalia are probably going to come out the right way for conservatives, but we have major issues with Justices Roberts, Kennedy, and Alito.  In fact, as I think more and more about this, I may be more worried about Justice Roberts than I am about Justice Kennedy.

Justice Scalia's Brand of Originalism

I've started a series to handicap Obamacare in the Supreme Court.  I explained in a general way in the first post why I'm much more worried than many conservatives, and then examined Justice Thomas's likely vote in a follow-up post. 

I'm planning on going through each of the justices in the same way as I did Justice Thomas, but with very long work days lately its slow going.  I've at least started to work on Justice Scalia, and thinking about him has gotten me off onto another train of thought about the different kinds of ways that judges may be conservative.

Here's a good paper I came across from Randy Barnett, a law professor who in a lot of ways has been huge in the fight against Obamacare.  He talks about Justice Scalia's particular way of being a judicial conservative.  In the long run, I think the legal fight over Obamacare is a good opportunity for conservatives to think more carefully about exactly what they want in a judicial conservative.

Rep. Steve King on Obamacare and Debt Ceiling

Great news in this article!

But before that, note that Representative King explains why the provisions that were included in the Continuing Resolution do not completely block Obamacare in the manner that his offered provision, which I blogged about here, would have. 

Now, on to the good part.  I'll let Representative King say it in his own words: "Weneed to put my language onto every appropriations bill all the way through the 112th Congress . . . [t]he debt ceiling is another good place for leverage . . . [t]here’s been a suggestion just to – with limited constraints – bring a debt ceiling bill and put the complete repeal of ObamaCare right on it.”

Exactly!  Representative King is singing my song.  If I were from the 5th district in Iowa, I'd be pretty proud for my congressman about now.

Now that I've gotten over my elation, I'll go back to my usual pessimistic disposition.  If you read the linked article closely, and a few others Representative King has been in lately (I believe he had one in one of the Washington papers), its hard not to get the feeling that there are a lot of people in the leadership that don't really want to push this.  And that's the House leadership.  Oh well, its good to know there are at least a few Congressmen who are going to keep this fight alive and try and embarrass the leadership in really working to do what they've promised.

I was talking the other day to someone about Obamacare and criticizing the Republican leadership, and they said "But really, given who controls the senate and the White House, what could the really do?"  My reply was that if Republican leadership cared as much about repealing Obamacare as they cared about being elected and advancing their own political careers, it'd be off the books tomorrow.

The Continuing Resolution and the House Rules Committee's Valentine to Obamacare

Red Meat Conservative has some nice posts here and here about Republican opposition to some proposed spending cuts in the Continuing Resolution.  I've long thought someone needs to put together a group to pressure Republicans to vote for spending cuts in the way that Americans for Tax Reform has pressured candidates to sign no tax increase pledges.  Those pledges actually do seem to have some effect.

For me, the biggest dissapointment on the Continuing Resolution was the failure of the (Republican controlled) House Rules Committee in a vote on Valentine's Day to give a special rule to Representative Steve King to offer the following amendment:

"Notwithstanding any other provision of law, none of the funds made available in this Act or any previous Act may be used to carry out the provisions of Public Law 111–148, Public Law 111–152 [Obamacare], or any amendment made by either such Public Law."

Because he didn't get a rule the amendment was out of order under House Rule XXI.  

This was really a beautiful amendment, and would have been much more efficacious than the reconciliation strategy I blogged about here because it would have prevented funds to be used to enforce the law, including the guaranteed coverage provisions.  My understanding is that it would have been at least somewhat unusual for the Rules Committee to have given Representative King a special rule, but in any case I think its fair to say that there are a lot of people even in the House leadership who want to move pass Obamacare and get onto other things.  That's why we as conservatives need to keep the pressure up.

Note that this Continuing Resolution is to authorize spending, not borrowing, and this bill isn't the same thing as the debt ceiling vote I blogged about here.  That's still the point where Republicans are likely to have their greatest leverage, and I hope Representative King or someone else tries this again on that vote.

Handicapping Obamacare # 1 - Justice Thomas

As I promised in a previous post, I'm going to work my way through the Supreme Court justices and try and determine how likely each is to vote that Congress exceeded its authority under the Commerce Clause when it enacted the individual mandate.  I'll start with Justice Thomas.  This is the good news!

I'll be researching these posts as I do them, but my initial somewhat educated impression is that Justice Thomas is probably the only Justice who is close to being a very high probability "unconstitutional vote" in a case decided on the merits.

To start at the beginning, at least in terms of late 20th century commerce clause jurisprudence, Justice Thomas made it clear in U.S. v. Lopez, the 1995 decision in which the Court struck down a portion of the first President Bush's Gun Free School Zones Act, that he had the stomach to largely rework the Court's Commerce Clause cases, which since the New Deal had come to be extremely permissive.  (As an aside, I presume its fairly well known in conservative circles that the first President Bush was a very anti-Second Amendment president, one of the primary reasons he couldn't carry his base and was defeated by President Clinton, who contrary to popular misconceptions had a lot of weaknesses as a politician but was blessed with two opponents who couldn't generate any excitement among their own base.) 

The Court ruled in Lopez that the government had exceeded its authority under the Commerce Clause in enacting the Gun Free School Zones Act.  At the time, this was a huge decision.  It really marked the first time since the Great Depression cases that the Court said there are in fact limits to what the federal government can do under the Commerce Clause.  Before this case, the conventional wisdom in legal circles was that the federal government could do anything it wanted under the Commerce Clause - i.e., that the federal government was not really one of enumerated powers - and that the only limits on the federal government were the negative limits in the Constitution (the Bill of Rights and a few other constitutional provisions).

In Lopez, the Court finally said that the Commerce Clause does not give the federal government general police powers.  Justice Thomas consented to the Court's decision, saying in a separate opinion that the Court's Commerce Clause cases had gone far beyond the text of the constitution.  He specifically said that what the Court calls the "substantial effects" test - the idea that anything that has a substantial effect on interstate commerce can be regulated by the federal government - needed to be reconsidered and replaced with something respectful of existing precedent but more in line with the original meaning of the Commerce Clause.  (He also said he wanted to chuck the "aggregation principle", but that would be included in any case in doing away with the substantial effects test.)  He has said over and over again that it is very important that the Court make it very clear that Congress does not have a general police power.

Since Lopez, Thomas has been consistent in his opinions on the Commerce Clause.  In the next big case, U.S. v. Morrison, Thomas wrote a one paragraph concurring opinion in which he said simply that the Court needed to ditch the substantial effects test.  Even in Gonzalez v. Raich, the medical marijuana case where many think Justice Scalia apostatized himself (I'll explain in a future post why I think that was a very difficult case for Scalia), Justice Thomas stuck to his guns, asking how Congress could possibly regulate the cultivation and use of marijuana that never crossed state lines.

Finally, in his recent dissent to the Court's denial of cert in the 9th Circuit Alderman case, a case dealing with a federal law making it a federal crime for a person convicted of a crime to own body armor, he again said emphatically that the Commerce Clause does not give the federal government a general police power.  He said in particular that the mere fact that there is an interstate "hook" is not enough to give the federal government the power to regulate something under the Commerce Clause.  The regulation really does need to relate to commerce. 

And that brings us to the present day.  If I were to give someone the cliff's notes to the Court's rulings in Lopez and Morrison, which set out the test the Court purports to apply today, I would say that the cases stand for the principal that the federal government can't do things that aren't really economic under the Commerce Clause.  So you can say that violence against women, or possession of firearms near school property, have an economic effect.  But the Court has said yeah right, we all know those are really criminal laws and have nothing to do with commerce no matter how you define it.  (This is not completely accurate - under the current test, there are other ways Congress could exercise power under the commerce clause.  E.g., even though drug laws really have nothing to do with economics, at least 8 and I think maybe all 9 of the justices would agree that the federal government can make it illegal to sell crack across state lines.  But in general, this is the "point" the Court was making.)

Justice Thomas has been very emphatic on these points, saying basically that the Court needs to discard the substantial effects test and saying over and over again that the federal government does not have a general police power.  When he says this, what he means is that the federal government does not have a general power to regulate the lives of its citizens.  

You will probably have noticed that, say what you want about it, Obamacare really is about economics.  So even for Justice Thomas, I think Obamacare is in some sense "new ground."  There's nothing in his record that you could point to and say he will obviously say this is unconstitutional. 

But I'm nonetheless pretty sure he's going to be an "unconstitutional" vote in any case decided on the merits.  Why is that?

If you read his opinion in Lopez closely, he pretty clearly says that he thinks the Court took a wrong turn during the Great Depression cases, and that he thinks commerce really means commerce.  He said that for purposes of "stare decisis and reliance interests" he, or at least the Court generally, was willing to make some sort of peace with the Court's New Deal commerce clause jurisprudence.  But with Obamacare, you have something that is really distinguishable.  The regulation of inactivity, even as a part of a larger scheme that clearly is economic, is something new.  And where there isn't a compelling reason not to, Justice Thomas clearly wants to go back to an original understanding of the Commerce Clause.

Under that understanding, I think the case is pretty easy.  "Commerce . . . among the several states" means pretty much what it sounds like it means - trade between the states.  And regulation of that commerce means regulation of the trade, not regulation styled as regulation of trade that in practical effect amounts to regulation of production or something else.

So under the original understanding, could Congress regulate the offering of an insurance product by an insurer in Texas to an insured in California?  That's a tough question.  The answer is that it probably could regulate that trade to some extent.  But that wouldn't give it general authority to regulate the Texas insurer - it could only literally regulate the offering of insurance across the state line. 

Lets give some examples.  Under that original understanding, the federal government could probably say if you want to offer insurance outside of Texas, you have to tell the truth in your offering across state lines.  But it probably couldn't have said if you want to offering insurance outside of Texas, you have to be adequately capitalized.  (Or, if you want to offer insurance outside of Texas, you have to offer it to people with pre-existing conditions.)  Because that isn't really regulating commerce.  That's really Congress stepping in and regulating the business of insurance, and that's something that was left to the states.

(I admit that insurance is a difficult case.  The principle might be easier to see with securities.  Congress could say that if you want to sell securities across state lines, you need to not commit fraud in the sale.  But it probably couldn't say that the company offering the securities needs to have at least a majority of independent directors.  That has everything to do with business and economics, and nothing to do with trade.  Remember, the Constitution talks about commerce among the several states the same way that it talks about commerce with foreign nations.  Also remember that I'm talking about the original understanding, not the current interpretation.  Under current doctrine, Congress can regulate pretty much any activity that is economic.)

I would guess that even Justice Thomas probably would say that he's stuck on the question of whether Congress can require insurance companies to offer insurance to people with pre-existing conditions.  But would that in turn give Congress the authority to tell the citizen of California they had to buy the Texas insurer's insurance?  No way.  Your decision of whether to buy insurance might be very economic, but commerce doesn't mean "economic", it means commerce. And sitting at home just isn't commerce any way you slice it.

What about the argument that the government has made, that it really is commerce because of its economic effects on the insurance industry?  Or that they can do it because its necessary and proper to do it in order to be able to effectively regulate the insurance industry.  (This is really a necessary and proper clause argument the federal government has made.  To Justice Thomas, that wouldn't make any difference here, as I think he made clear in Comstock.)  It seems clear that Justice Thomas would say you can't make that move.  That's pretty clearly getting you back to a general police power, and Justice Thomas has said over and over again that the Court can't let that be the case. 

So if I'm a lawyer for the government, I'm saying that my main issue in getting a vote from Justice Thomas is how do I describe Congress's power to require people to purchase insurance in a way that does not give the federal government a general power to regulate the activities of the American people?  If I have to start combining it with other things that Congress can do, then I think I pretty quickly get back to a general police power. 

So I think you could say with a high degree of probability that in a case on the merits, Justice Thomas would vote "unconstitutional". 

One last note - Why do I keep referring to a decision on the merits?  The reason is that I think the standing issue, which is one that in general the conservatives on the Court have taken more seriously than the liberals (I know, this is painting with a very broad brush), is a very serious issue here.  I'm not a litigator and am very unqualified to analyze the standing issue, but my gut feeling is that this case seems very much like something the Court might say is not really a "case or controversy".  What I can say with some certainty is that whatever you think the likelihood is that the Court will say Obamacare or any part of it is unconstitutional, you should revise the likelihood of the law being held unconstitutional downward because of the standing issue.  It at least has the potential to pick off a vote or 2.

Using Reconciliation to Repeal ObamaCare

Karl Rove has suggested in a WSJ article that large parts of Obama Care could be repealed through reconciliation, meaning that Republicans could repeal with just a majority of the Senate and not need to worry about a filibuster.  So, in essence the idea is to (i) maintain control of the House, (ii) gain control of a majority of the Senate in 2012 (which at this point seems somewhat likely), and (iii) win the presidency in 2012 (which at this point unfortunately appears somewhat unlikely).

The point of Rove's argument here is that we're closer than we think we are to repeal.  Everyone knows its unlikely at this point that the Republicans will have 60 seats in the Senate after teh 2010 elections, but its likely they will have a majority. 

But if we did all that, are we saying we could repeal the entire thing in 2012 as long as we kept every Republican senator in line?  Not exactly.  Here's what Keith Hennessey, a Bush administration economist and as I understand it the inspiration for Rove's article, says:

 "A few minor odds and ends could not be repealed in reconciliation.  That is strategically unimportant".  Rove clarifies that the things that could not be repealed through reconciliation are not the "big-cost drivers".  He also says specifically that the insurance provisions might not be able to be removed through reconciliation.

My understanding is that the test of whether something can or cannot be changed through reconciliation is whether the item affects the federal government's taxes (or other revenues) or its spending.  So what are some provisions that might not be repealable through reconciliation?

My biggest worry is that the provisions regulating the insurance industry, particularly those preventing insurance companies from denying coverage based on pre-existing conditions, would not be repealable through reconciliation.  This is worrisome because it is hard to understand in theory how a private insurance company can operate without being able to decide not to write insurance for someone who has an existing illness.  (I might feel a little schadenfreude at this whole state of affairs given the cynical role of the insurance companies in structuring the health care law as basically a statute that mandates that every single person in the country buy their product, but notwithstanding that I don't think its in anyone's interests to regulate the industry out of business.)

No sane business person would do that - it doesn't have anything to do with the business of insurance.  Its really just old-fashioned redistribution and is what I would call an off the books entitlement program.  The spending part of the program is providing "insurance" to people with pre-existing conditions, and the tax part of the program is the individual mandate.  The democrats could have set up an economically identical scheme with a traditional government spending program but they didn't because they understand that this is off the books (meaning it doesn't look like it massively increases the size of government, even though it does in fact) and they know how popular the pre-existing conditions provision is.

So my worry is that if you pass repeal through reconciliation, you might have to leave unrepealed for another day incredibly horrible policies like the pre-existing conditions provisions of the law (and I haven't even touched on all of the other stupid stuff that you might not be able to get through reconcilation, like the requirement that fast food restaurants post calorie information on their menus).

This is why I would say that defunding is a dangerous option.  Politically, it would be very difficult for even a Republican Congress to repeal the pre-existing conditions provision.  To me its just as bad as the individual mandate, but its nonetheless extremely popular.

If I thought it were the case that either (i) I'm wrong and these provisions could get through reconciliation or (ii) the repeal of the individual mandate would lead the insurance companies into such a lobbying frenzy that even Democrats would agree to repeal the insurance provisions, then I'd so go for it.  But if neither of those things are the case, I'd worry that we'd be left with a lot of bad policy that would be very hard to repeal on its own.  At the end of the day, Policy Priority # 1 needs to be repealing this entire monstrosity and returning the health insurance industry back to the pre-Obama status quo.  I think the jury's out on whether repeal through reconciliation would move us further towards that goal or put us in a position where its politically impossible.

Stick a Fork in It!

So said Megan McCardle on January 20, 2010, referring to Obama Care.
http://www.theatlantic.com/business/archive/2010/01/stick-a-fork-in-it-its-done/33859/#. 
Two months and three days later it was signed into law, fork notwithstanding. 

I don't mean to pick on Ms. McCardle.  That was a common opinion among conservatives at the time.  After the special election of Scott Brown, I was told by someone with connections to Republicans on the Hill that the Democratic staffers were already leaving Washington to go start the campaigns back home, and that there definitely wouldn't be any big legislation until after the elections.  In my dreams!

The thing is that its easy to believe that the things you want the most will come to pass.  And the reaction of conservatives on the net to the Florida ruling reminds me a lot of their reaction to Scott Brown.  I hope they're right and I'm not, but I'm worried that's not the case. 

That's why I think we need to take every other action we can to fully repeal Obama Care as
soon as possible.

Handicapping Obama Care in the Courts

In my last post, I promised I'd explain why I don't think we can count on the federal courts to help us out on Obama Care.  I should say up front that I'm not saying I think the courts shouldn't rule Obama Care unconstitutional.  I think the federal government has gone so far past what its permitted to under the constitution that its hard for me to see a way back.

And I'm also not saying that I think the federal courts definitely won't help us out.  I think there's a chance they will.  But since the Florida decision, I've seen a lot of conservative blog posts seeming very satisfied with how the process is going and with our chances.  And I think that's a mistake - I think at the best we're talking about a 50% chance - and I want to explain why that is.

Here's the main point.  What if I told you candidate A was running against candidate B in a jurisdiction with 9 voters.  Polls showed that 2 of the 9 voters will definitely vote for candidate A, 4 of the 9 will definitely vote for candidate B, and that while we think all 3 of the other 9 voters will vote for candidate A, there's a 30% chance each of them won't.  Who would you predict would win the election?  Well, the way I count it A has 2+(.7*3) = 4.1 votes and B has the other 4.9 votes.

I'm sure most people can guess who each of the 9 voters is.  I'm not trying to suggest that these percentages are exact.  In fact, I think they're definitely wrong.  If someone made me give an estimate, I'd guesstimate the chances of an "unconstitutional" vote as being something like Thomas = 100%, Scalia = 90%, Alito = 80%, Roberts = 60%, Kennedy = 50%, Sotomayor, Breyer, Kagan, Ginsburg = 0%. 

But to some extent the exact numbers don't matter.  The point is that we have 2 votes, Obama has 4, and we have to pick up all 3 remaining votes to prevail.  That isn't impossible - it may well be more likely than not that we'll pick up each of the other three - but its hard.  The bottom line is that the numbers are bad enough that we need alternative plans.

In subsequent posts, I'll look at each of the 5 "conservative" justices to try and figure out in a little more detail how they might vote.

Obama Care and the Debt Ceiling

With my first post, I want to talk about the issue that inspired me to start this blog.  Very soon, Congress will have to vote to raise the federal government's statutory debt limit.  The limit is currently at $14.3 trillion.

At the end of 2010, the Republicans retook control of the U.S. House, in a sea change election based in large part on public disgust with the ballooning size of the federal government, with the bail outs, with the "stimulus", and with one piece of legislation in particular: The Patient Protection and Affordable Care Act, aka ObamaCare.

But the anti-Obama Care party only controls one half of one of the three branches of government.  As has already been shown, and as was obvious anyway, Republicans in Congress have no ability to push through repeal by ordinary legislative means.  Obama Care simply will not be repealed at least until 2013 through the legislative process, and even 2013 is a stretch.

And what if we get to 2013, and despite all indications to the contrary Republicans control the House, 60 seats in the Senate, and the Presidency?  What always happens?  Something else will have the chattering class's attention, and the conservatives who got us to that point will be abandoned again.

I started this blog and I'm writing this post to ask conservatives who agree with me that repealing Obama Care, in its entirety, needs to be Policy Priority # 1, to let their GOP representatives know that a repeal of Obama Care should be tied to the debt ceiling vote and sent to the Senate as one piece of legislation.  Call them, talk about it, publish it, ask them about it in print.

I've called my representative, called one of my Senators (I didn't waste my time with Lindsey Graham), called the House budget committee, called the House majority leader's office, and emailed the National Review.  And I've gotten crickets.  Is there some procedural reason this isn't possible?  Maybe there is, but we deserve an explanation of what that is, and an explanation of what else is going to happen other than votes that no one expects to win.

So now I'm sending this out into space.

I'm not a cheerleader.  The chances of ever repealing ACA are slim.  Quick, name me all the entitlement programs that have ever been repealed?  If there's any chance Obama Care is going to be repealed, it needs to happen quick.  And the debt ceiling vote is the best leverage we're going to get.

In subsequent posts, I'll explain why I don't think the courts are going to help us, and talk about some other avenues we also need to pursue.