Longtime political operative Eric O’Keefe has a new plan to undermine health reform. Called the “Health Care Compact,” the effort is a legally dubious campaign to enroll states in an interstate compact to take control of all federally funded health care programs. As reporter Stephanie Mencimer notes, the law would not only unravel the Affordable Care Act, but also major health programs like Medicare. The Compact, once approved by Congress, would allow states with Compact laws to use Medicare, Medicaid, and other federal health program funds any way they wish, with no “strings” attached, like reimbursing doctors at a fair rate or ensuring program money is spent on actual health services.
The Health Care Compact campaign started earlier this year, when O’Keefe’s new group donated $250,000 to a Tea Party Patriots convention for a kick-off event. However, ThinkProgress has found that the group isn’t only reaching out to Tea Party members; it’s deceptively recruiting Democrats as well. The “About us” section of “Democrats for the Health Care Compact,” a group affiliated with O’Keefe, lists three influential Republicans, and no actual Democrats, as members:
– “Democrats For Health Care Compact” Member Leo Linbeck III: Born into an elite Texas family, Linbeck is the head of Aquinas Companies, LLC, the Houston-area construction and building management company connected to the fortune of Linbeck’s grandfather. Currently acknowledged as one the major financiers of the Health Care Compact campaign, Linbeck was a George W. Bushdonor and has provided funds to a recently formed Republican political action committee called Citizens PAC. Linbeck’s father, Leo Linbeck Jr., is a major Republican fundraiser who helped create the groups to reduce liability for corporations and drastically reduce taxes on upper income individuals.
– “Democrats For Health Care Compact” Member Eric O’Keefe: O’Keefe has made a career out of orchestrating anti-government front groups, some withno actual members. He has played a pivotal role in the U.S. Term Limits “movement” (bankrolled by the Koch brothers and investor Howie Rich), the Sam Adam Alliance (a Tea Party mobilization group and planning group), the Center for Competitive Politics, a group that filed briefs in support of theCitizens United decision, and a sprawling network of TABOR groups designed to cripple state governments. Recently, O’Keefe has gained attention for his rolein the Wisconsin Americans for Prosperity network and the Wisconsin Club for Growth, two groups that have aggressively promoted the right-wing agenda of Gov. Scott Walker (R-WI). He is also a regular presenter at the secretive Koch brothers gatherings that have acted as fundraisers for Republican attack groups.
– “Democrats for Health Care Compact” Member Michael Barnhart: Barnhart is currently the head of the Sunshine Review, a libertarian nonprofit closely linked with O’Keefe’s Sam Adams Alliance and the GOP training organization called American Majority. Barnhart’s career makes for a strange Democrat: he began his career working for various Republican members of Congress, moving on to work a Republican lobbying firm and the Washington Times.
The trio of Republicans are playing doctor as well. A group called “Physicians for the Health Care Compact” lists only Leo Linbeck III, Eric O’Keefe, and Michael Barnhart as members, despite the fact none of them are physicians. The contact for the group, Meghan Tisinger, is a political operative working for the Franklin Center, a fake news site set up by O’Keefe and other Sam Adams Alliance political staffers. Tisinger doesn’t appear to be a doctor either.
It’s not clear if the fake Democrats’ site, registered in March of this year, or the fake physician site has attracted any actual Democrats or doctors yet. But the larger Health Care Compactcampaign has caught fire with Republicans.
Last month, Gov. Rick Perry (R-TX) was the latest to sign the measure into law. So far, Oklahoma, Georgia, and Missouri have already passed O’Keefe’s Health Care Compact law, and several other states may follow suit.
Supreme Court Justice Clarence Thomas released his new financial disclosure form on Friday under pressure from Rep. Anthony Weiner (D-NY) and others.
Mother Jones reported that his financial disclosure form indicates his wife, Virginia "Ginni" Thomas, received a $150,000 salary from the group Liberty Central in 2010 and less than $15,000 from an anti-health care reform lobbying firm she founded.
Liberty Central, which she helped found, supports the repeal of the the Patient Protection and Affordable Care Act.
Weiner had taunted Thomas via Twitter on Friday, but his criticisms where quickly overshadowed by the so-called"Weinergate" fiasco that broke out Sunday. The congressman had previously called on Thomas to recuse himself from casesinvolving health care reform because of his wife's financial connections to groups dedicated to its repeal.
"The appearance of a conflict of interest merits recusal under federal law," a letter written by Rep. Anthony Weiner (D-NY) and signed by 74 Members of Congress stated. "From what we have already seen, the line between your impartiality and you and your wife's financial stake in the overturn of healthcare reform is blurred."
The Ethics in Government Act of 1978 requires Supreme Court justices to disclose their spouse's income, but Thomas had not disclosed Virginia's income on his financial disclosure forms for 20 years.
"We knew that Justice Thomas' family had a financial stake in opposing health care reform," Weiner said Friday in a statement. "Now we know even more. It's pretty clear the justice has one option here: recusal
Right-wing media have recently revived the falsehood that the Independent Payment Advisory Board created by the health care law will lead to health care rationing. In fact, the law specifically prohibits the Advisory Board from making "any recommendations to ration health care ... or otherwise restrict benefits."
Right-Wing Media Revive "Rationing," "Death Panel" Claims
WSJ: Advisory Board Could Lead To "Political Rationing Of Care For The Elderly." In an April 20 editorial, The Wall Street Journal wrote that the Independent Payment Advisory Board (IPAB) created in the health care law could lead to "the political rationing of care for the elderly, as now occurs in Britain, or else the board will drive prices so low that many doctors and hospitals drop out of Medicare." FromThe Wall Street Journal:
The Independent Payment Advisory Board was created in the ObamaCare statute, and the President will appoint its experts in 2012 to six-year terms. From then on, look out. Democrats cut $468 billion in Medicare spending by screwing down its price controls and gutting the private insurance options of Medicare Advantage, while also boosting taxes by about $89 billion. This money could have strung along the status quo for a few more years, but Democrats diverted it instead to their new middle-class entitlement, which is like eating all the food left in the life raft.
[...]
The honest-to-Peter Orszag liberal theory here is that, among ObamaCare's well-meaning if speculative pilot programs, someone will find a way to deliver better health care at a lower cost. Then the board will decide "what works" and apply it through regulation to all of American medicine. But small-scale initiatives usually succeed because of local health-care conditions and rarely succeed when mass-scaled. Anyhow, decades of government faith in omniscient miracle workers has left Medicare in its present shambles.
As a practical matter, the more likely outcome is the political rationing of care for the elderly, as now occurs in Britain, or else the board will drive prices so low that many doctors and hospitals drop out of Medicare. Either alternative would create the kind of two-tier system dividing the poor and affluent that Democrats claim is Mr. Ryan's mortal sin. [The Wall Street Journal, 4/20/11]
Taranto: Independent Payment Advisory Board Is "Colloquially Known As Death Panels." In his April 20 Wall Street Journal column, James Taranto wrote:
ObamaCare not only will force people to buy insurance and to subsidize the insurance of others, it ends "Medicare as we know it." In his speech last week, Obama promised: "We will slow the growth of Medicare costs by strengthening an independent commission of doctors, nurses, medical experts and consumers who will look at all the evidence and recommend the best ways to reduce unnecessary spending while protecting access to the services that seniors need." He was referring to the Independent Payment Advisory Board, the ObamaCare creation colloquially known as death panels. [The Wall Street Journal,4/20/11]
Tantaros Fearmongers That Medicare Board Is "Going To Lead To Rationing." On the April 21 edition of Fox News' Fox & Friends, Fox News contributor Andrea Tantaros stated:
TANTAROS: If I were a senior, I would be extremely disturbed by what the president is proposing. He's actually proposing ... an independent panel -- 15 bureaucrats, 15 government-appointed officials -- this is these "rationing boards" we've heard about, who are going to make decisions about how to limit individual expenditures from Medicare patients. What does that mean? They're going to decide what programs you can have, and what programs you can't, what's going to be the most cost-effective. This going to lead to rationing. Just look at England. It always does. If you start to cut payments to doctors, cut payments to hospitals -- which is what the Obama plan does - eventually, doctors start to not want to treat Medicare patients. It's a very, very scary prospect, what the president's proposing. [Fox News, Fox & Friends, 4/21/11]
Stanley Kurtz: "IPAB Is The Real Death Panel, The True Seat Of Rationing." In an April 18 National Review Online post, Stanley Kurtz wrote:
They're back. Rationing, death panels, socialism, all those nasty old words that helped bring Republicans victory in 2010, and that came to seem so impolite after November of that year. They're back because of IPAB. Remember that acronym. It [sic] stand for The Independent Payment Advisory Board. IPAB is the real death panel, the true seat of rationing, and the royal road to health-care socialism. President Obama won't admit to any of that, but his speech in response to Paul Ryan's plan did push IPAB out of the shadows and into public view, however briefly.
[...]
Rationing, death panels, socialism, and deception. It's all there. When Sarah Palin first raised the "death panel" issue, she was referring to end-of-life counseling. But IPAB is the real death panel (as Palin herself later noted), a body of unelected bureaucrats with the power to cut off care through arbitrary rules based on one-size-fits-all cost calculations, just as in Britain. [NRO, 4/18/11]
In Fact, IPAB Specifically Prohibited From Making "Any Recommendations To Ration Health Care"
Law Specifically Prohibits Advisory Board From Making "Any Recommendations To Ration Health Care ... Or Otherwise Restrict Benefits." As Media Matters has noted, the health care law specifically prohibits the Independent Payment Advisory Board from making "any recommendations to ration health care ... or otherwise restrict benefits." [Media Matters, 10/12/10; Patient Protection and Affordable Care Act, accessed, 4/21/11]
White House: "IPAB Is Specifically Prohibited By Law From Recommending Any Policies That Ration Care." In an April 20 blog post on the White House website, White House Deputy Chief of Staff Nancy-Ann DeParle wrote that the "IPAB is specifically prohibited by law from recommending any policies that ration care, raise taxes, increase premiums or cost-sharing, restrict benefits or modify who is eligible for Medicare." [WhiteHouse.gov, 4/20/11]
Kaiser Family Foundation: Board Cannot "Ration Care, Increase Taxes, Change Medicare Benefits Or Eligibility, Increase Beneficiary Premiums And Cost-Sharing Requirement, Or Reduce Low Income Subsidies Under Part D." From the Kaiser Family Foundation's "Explaining Health Reform: Medicare and the New Independent Payment Advisory Board":
The Board is prohibited from submitting proposals that would ration care, increase taxes, change Medicare benefits or eligibility, increase beneficiary premiums and cost-sharing requirements, or reduce low-income subsidies under Part D. Prior to 2019, the Board is also prohibited from recommending changes in payments to providers and suppliers that are scheduled to receive a reduction in their payment updates in excess of a reduction due to productivity adjustments, as specified in the health reform law. The law establishes specific rules and deadlines for Congressional consideration of the Board's recommendations, and specific timelines and procedures for Congressional action on alternative proposals to achieve equivalent savings.[Kaiser Family Foundation, Explaining Health Reform: Medicare and the New Independent Payment Advisory Board, 5/10/10]
PolitiFact Named "Death Panels" Its 2009 Lie Of The Year. In December 2009, PolitiFact wrote that "[o]f all the falsehoods and distortions in the political discourse this year, one stood out from the rest. 'Death panels.'" [PolitiFact, 12/18/09]
By Igor Volsky
Moments ago, the Congressional Budget Office released its cost estimate for the GOP’s health care repeal bill — H.R. 2, the Repealing the Job-Killing Health Care Law Act, introduced yesterday in the House by the new Republican majority:
– 32 million Americans will lose coverage compared to current law: “Under H.R. 2, about 32 million fewer nonelderly people would have health insurance in 2019, leaving a total of about 54 million nonelderly people uninsured. The share of legal nonelderly residents with insurance coverage in 2019 would be about 83 percent, compared with a projected share of 94 percent under current law (and 83 percent currently).” (p. 8-9)
– Increases deficit by $230 billion over 10 years: “Consequently, over the 2012–2021 period, the effect of H.R. 2 on federal deficits as a result of changes in direct spending and revenues is likely to be an increase in the vicinity of $230 billion, plus or minus the effects of technical and economic changes to CBO’s and JCT’s projections for that period.” (p. 5)
– Huge deficit increases over next decade: “Correspondingly, CBO estimates that enacting H.R. 2 would increase federal deficits in the decade after 2019 by an amount that is in a broad range around one-half percent of GDP, plus or minus the effects of technical and economic changes that CBO and JCT will include in the forthcoming estimate. For the decade beginning after 2021, the effect of H.R. 2 on federal deficits as a share of the economy would probably be somewhat larger.” (p. 7)
– Individuals would pay more for health insurance: “Although premiums in the individual market would be lower, on average, under H.R. 2 than under current law, many people would end up paying more for health insurance— because under current law, the majority of enrollees purchasing coverage in that market would receive subsidies via the insurance exchanges, and H.R. 2 would eliminate those subsidies.” (p. 9-10)
– Average health care benefits would be worse: “In particular, if H.R. 2 was enacted… the average insurance policy in this market would cover a smaller share of enrollees’ costs for health care and a slightly narrower range of benefits.” (p.9)
– Premiums for employer-sponsored insurance would increase: “Premiums for employment-based coverage obtained through large employers would be slightly higher under H.R. 2 than under current law, reflecting the net impact of many relatively small changes.” (p. 10)
The GOP is excluding the vote from its new cut-go rule — under which increases in mandatory spending would have to be paid for but tax cuts would not — and dismissing the CBO’s estimates of savings in the health law by claiming that the initial savings from reform are largely imaginary. But this now places the new majority at odds with the ‘gods’ at the CBO — who they’ve routinely cited to bolster their own proposals — and its repeated pledges to lower spending in the new Congress.
From Media Matters:
Conservative media are praising a federal court decision striking down a portion of the Affordable Care Act, with Fox's Peter Johnson Jr. saying people should give the judge's opinion to their children, their church, and their synagogue because "this is the Constitution." However, other federal judges have upheld the statute, and legal experts from across the political spectrum agree that the opinion was incorrect.
Conservatives Laud Decision Striking Down Individual Mandate
Fox's Johnson: "People Have To Read This [Opinion]. It's The Dream Of The Tea Party" And "Americans Who Say 'The Constitution Means Something.' " On Fox News' Fox & Friends, Johnson, a Fox News legal analyst, discussed the decision by Virginia federal district judge Henry Hudson to strike down the individual mandate portion of the Affordable Care Act, which requires that most people purchase health insurance or pay a fee:
JOHNSON: [T]his is a ringing proclamation here in America. And it gives hope to so many people, December 13, 2010, in the case of Virginia against Sebelius, that this district court judge says you've gone crazy with our constitution and that you are bowdlerizing and exaggerating what the Welfare Clause of the Constitution is, what necessary and proper is. What the Commerce Clause is. You cannot regulate, according to this district judge, inactivity, and you cannot demand with a fine -- a fine, not a tax -- that you buy insurance or that you buy an avocado or that you buy a car or that you do anything because the government says you have to.
[...]
JOHNSON: What the judge did in a 40-something page decision and I suggest that people go to the Fox News Web site and they download it, and they print it, and they give it to their children, and they give it to their civics class, and they give it to folks at church on Sunday at the synagogue on Saturday. And they say this is the Constitution. This is the living, breathing Constitution. This is what the General Welfare Clause is. This is what it means to be unnecessary and improper and an infraction on our rights as Americans.
[...]
JOHNSON: Great opinion. People have to read this. This is the dream of the Tea Party and this is the dream of a lot of lawyers and a lot of Americans who say the Constitution means something. [Fox News' Fox & Friends, 12/14/2010]
McCaughey: The "Ruling Emphasized The Importance Of Upholding The US Constitution's Limits On Federal Power." In an op-ed titled, "ObamaCare overreach," serial health care misinformer and former New York Lt. Gov. Betsy McCaughey stated:
Health and Human Services Secretary Kathleen Sebelius tried to ridicule Virginia's strategy as mere politics and get the Virginia case thrown out of court. [Virginia Attorney General Ken] Cuccinelli told the court that, "in the view of Secretary Sebelius, federalism is so withered and near death that states lack the power and right to go to federal court" to stop excessive federal power. But federalism is not dead. Hudson's ruling emphasized the importance of upholding the US Constitution's limits on federal power and drew a clear boundary around the Commerce Clause.
The Obama administration claims that the Commerce Clause gives Congress the authority to mandate coverage. It cited Wickard v. Filburn (1942), in which the court ruled that the federal government could limit what a farmer can grow to feed his own animals. Similarly, in Gonzalez v. Raich (2005) the court found that the federal government could bar a sick person from cultivating a mere six stalks of marijuana, even where state law allows it. Growing something for personal use doesn't seem like interstate commerce, said the justices, but individual decisions in the aggregate could have an impact on national commerce.
Sebelius stretched the meaning of commerce even farther, to include an individual's decision not to do something. Allowing people to forego insurance will raise the price of coverage for others, she said. Hudson resoundingly rejected Sebelius' artifice, warning that it could be used to give the federal government authority over people's decisions about their own nutrition, transportation and housing and "invite unbridled exercise of federal police power." [New York Post, 12/14/2010]
Two Federal Judges Have Upheld Law's Individual Mandate
Judge Moon: "Congress Acted In Accordance With Its Constitutionally Delegated Powers" When It Passed The Mandate. Fox & Friends co-host Steve Doocy noted during the segment that White House press secretary Robert Gibbs pointed out that two judges have found that the individual mandate is constitutional. Indeed, in his decision, Judge Norman Moon of the Western District of Virginia stated:
For the reasons provided below, I hold that Congress acted in accordance with its constitutionally delegated powers under the Commerce Clause when it passed the employer and individual coverage provisions of the Act.
[...]
Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies. [U.S. District Court for the Western District of Virginia, 11/30/10]
Judge Steeh: Individual Mandate "Is A Reasonable Means Of Effectuating Congress's Goal" Of Regulating Interstate Health Care Market. From a decision on the constitutionality of the individual mandate by Judge George Steeh of the Eastern District of Michigan:
There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.
[...]
The Act regulates a broader interstate market in health care services. This is not a market created by Congress, it is one created by the fundamental need for health care and the necessity of paying for such services received. The provision at issue addresses cost-shifting in those markets and operates as an essential part of a comprehensive regulatory scheme. The uninsured, like plaintiffs, benefit from the "guaranteed issue" provision in the Act, which enables them to become insured even when they are already sick. This benefit makes imposing the minimum coverage provision appropriate.
[...]
The minimum coverage provision, which addresses economic decisions regarding health care services that everyone eventually, and inevitably, will need, is a reasonable means of effectuating Congress's goal. [U.S. District Court for the Eastern District of Michigan, 10/7/2010]
Legal Commentators From Across Political Spectrum Say Ruling Was Wrong
Former Cornyn Adviser Kerr: Health Care Decision Has "A Fairly Obvious And Quite Significant Error." George Washington University Law Professor Orin Kerr, who served as Sen. John Cornyn's (R-TX) special counsel for the Sonia Sotomayor confirmation proceedings and has previously said that "there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress's Article I power," wrote in a blog post:
I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause -- "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" -- does not expand Congress's power beyond the Commerce Clause itself. The key line is on page 18:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of "logic" or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that's not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way. [Volokh Conspiracy, 12/13/10]
Law Professor Balkin: Hudson's Commerce Clause Holding Is "Blinkered To Reality." From an opinion piece by Yale Law professor Jack Balkin:
When uninsured individuals get sick, they borrow money from their families to pay for the costs of health care. They buy over-the-counter medicines. Above all, they go to emergency rooms and demand medical services. In 2008 these demands cost hospitals some $43 billion. All of these are significant effects on interstate commerce.
But according to Judge Hudson's decision striking down the individual mandate, these effects on commerce are completely irrelevant and Congress cannot take any of them into account. Congress cannot regulate uninsured individuals, Judge Hudson explained, because these individuals are not doing anything when they fail to buy insurance -- yet they are borrowing money, purchasing drugs, or visiting emergency rooms instead.
This is pure sophistry. Such arguments are reminiscent of the constitutional struggles over the New Deal, when the Supreme Court's conservative majority argued that no matter how great an effect labor strikes had on the national economy, Congress could not regulate working conditions because their effects on interstate commerce were only indirect. Judge Hudson's decision is yet another example of a long line of formalist jurisprudence that is blinkered to reality. [The New York Times, 12/13/10]
NRO's Severino: The Decision Erroneously "Conflates" Analyses of Different Constitutional Provisions. Carrie Severino, chief counsel for the conservative Judicial Crisis Network, has stated that the individual mandate is unconstitutional. Nevertheless, she stated that Hudson's interpretation of the Necessary and Proper Clause of the Constitution was incorrect:
The court noted that, rather than arguing that the individual mandate had an "independent freestanding constitutional basis," the government was focused on it as necessary to its other health-insurance-market reforms. This sounds like a Necessary and Proper Clause argument, but Judge Hudson treats it as a Commerce Clause argument, which conflates the two analyses (perhaps as a result of the briefs having done so -- I have not yet read them all). Hudson later states that the Necessary and Proper Clause cannot apply in this case if there is no Commerce Clause authority. On the contrary, I believe it is only relevant if there is no independent (i.e. Commerce Clause) basis for the mandate.
Hudson's error seems to stem from his statement that only constitutional means are permitted under the Necessary and Proper Clause. This could indicate, as seems most logical, that only means that don't violate constitutional prohibitions are possible. But Hudson interprets it to allow only means that have independent constitutional authority. If that were so, the Necessary and Proper Clause would be meaningless and give Congress no power it did not already possess.
In fact, there are good reasons the Necessary and Proper Clause doesn't apply here (shameless plug: check out JCN's amicus brief on behalf of Rep. Boehner in the Florida litigation that covers that Clause), and it's a shame this decision misses a chance to discuss them. [National Review Online, 12/13/10]
Law Professor Tushnet: Hudson's Decision Is "Inconsistent With The Governing Precedents." From a post by Harvard Law professor Mark Tushnet:
I don't think anyone was surprised that conservative Judge Henry Hudson held the individual mandate unconstitutional. What's surprising is the traction that the distinction he relied on has gotten. Congress, according to Judge Hudson, has the power to regulate economic activity but not economic inactivity, that is, a failure to participate in some market such as the insurance market. This distinction seems to me unsound in principle but, more important, inconsistent with the governing precedents. The primary one is Wickard v. Filburn, which is usually described as holding that Congress has the power to regulate economic activities that, taken in themselves, have no substantial effect on interstate commerce but when aggregated do have such an impact. The economic activity in Wickard was the consumption on a person's own farm of wheat grown on that farm.
What the farmer did, though, could just as easily -- indeed, probably more easily -- be described as a failure to purchase wheat in the general market. (Justice Jackson's opinion made the point in this way: "The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs" (emphasis added). Those who do not purchase health-care insurance "forestall resort to the market" by paying the full out-of-pocket costs of their medical care when they incur those costs (or at least assert that they are willing to do so) or by relying on charity to cover the costs (although I would think that in principle the person should forgo that portion of the charity care attributable to the public decision to grant tax-exempt status to charitable health care -- or at least that Congress could require that the person do so). [Balkinization blog 12/13/10]
Law Professor Koppelman: The Decision Invented "Bizarre New Legal Theories." From a post by Northwestern Law Professor Andrew Koppelman:
Today's federal ruling striking down the Obama health care law is powerful proof that the law is, in fact, constitutional.
This apparent paradox emerges from the bizarre new legal theories that Judge Henry Hudson had to invent in order to invalidate the law - theories that, if taken seriously, would randomly destroy large parts of federal law.
[...]
Judge Hudson correctly observes that exercises of the Necessary and Proper power "must not violate an independent constitutional provision." But then he reads this to mean that it may not go beyond the specifically enumerated powers. The mandate is unconstitutional because "no specifically articulated constitutional authority exists to mandate the purchase of health insurance." This does more than implicitly overrule McCulloch v. Maryland. It reads the Necessary and Proper power out of the Constitution, because it won't allow it to add anything to the enumerated powers. [Balkinization blog, 12/13/10]
Health Care Law Professor Hall: Decision "Fumbled" Its Necessary And Proper Clause Analysis. From a blog post by Wake Forest Law Professor Mark Hall:
On that question [of whether the individual mandate was Necessary and Proper], the Richmond court reasoned inscrutably (p. 24) that
"Because an individual's personal decision to purchase-or decline to purchase-health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary."
What?? I thought the whole point of the N&P clause was to expand powers beyond those enumerated. If the Commerce Clause itself provided the power, then we wouldn't need N&P; thus, the ONLY time we need N&P is when the power in question is beyond enumerated powers.
The court continued:
"This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. . . . The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce."
What!? (I'm channeling Jon Stewart here). Doesn't this reason that the power in question is untethered because it's not tethered to itself? Shouldn't we be looking to link to OTHER powers or objectives that ARE within the Commerce Clause? The government's clearly stated position, summarized by the court itself, is obviously that regulating how insurance is offered and sold is easily within the core of the commerce power. That forms the anchor to which the individual mandate is tethered - a straightforward position to which the court never responded. [Health Reform Watch, 12/13/10]
Fox Paints Judge As Nonpartisan, But He Has Deep GOP Ties
Fox's Johnson: Judge Acted In A "Dispassionate, Non-Political, Straightforward, Law-Based Way." From Fox & Friends:
JOHNSON: Well, what this judge did in a dispassionate, non-political, straightforward, law-based way was to say "No, it doesn't fall under the Commerce Clause." And let's look at what he said in terms of the constitutionality here. He said the minimum essential coverage provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce. [Fox News' Fox & Friends, 12/14/2010]
Judge In The Case Repeatedly Received Appointments From GOP Presidents. Hudson was appointed as U.S. attorney for Eastern District of Virginia by President Ronald Reagan in 1986. He was subsequently appointed as director of the U.S. Marshals Service by President George H.W. Bush in 1992. In 1998, he was appointed by Republican Governor Jim Gilmore to be a Virginia state court judge. And in 2002, he was appointed to his current position as a federal judge by President George W. Bush.
Judge Ran in Elections as a Republican. The Washington Post reported that Hudson was elected as Arlington County commonwealth attorney as a Republican and that he "briefly ran against U.S. Rep. James P. Moran (D-Va.) in 1991." [The Washington Post, 12/7/10]
Judge Chaired Reagan Administration Commission On Pornography. As Politico reported:
By far the most colorful item on the resume of U.S. District Court Judge Henry Hudson, the jurist who ruled unconstitutional a key part of the Obama health care law on Monday, is his stint as head of Attorney General Ed Meese's commission on pornography during the 1980s.
You can view the report, released in 1986, here. Hudson's personal views, as stated in the report, are here. He complained that the report's finding should have been "couched in more forceful language, and that our recommendations for enhanced law enforcement, particularly with respect to violent and degrading materials, [should have been] likewise more pronounced."
Hudson also dissented from a commission recommendation that obscenity prosecutions not be brought in connection with written works that describe adult conduct. [Politico, 12/13/10]
Judge Owns Stock In GOP-Allied Firm Associated With VA AG Who Brought The Lawsuit. As the Huffington Post's Sam Stein and others have noted, Hudson's financial disclosure forms show that for several years Hudson has owned shares in Campaign Solutions, Inc. According to the most recent publicly-available disclosure form, in 2009, Hudson owned between $15,001 and $50,000 in Campaign Solutions stock. Stein reported:
A powerhouse Republican online communications firm, Campaign Solutions, has done work for a host of prominent Republican clients and health care reform critics, including the RNC and NRCC (both of which have called, to varying degrees, for health care reform's repeal). The president of the firm, Becki Donatelli, is the wife of longtime GOP hand Frank Donatelli, and is an adviser to former Alaska Gov. Sarah Palin, among others.
Another firm client is Ken Cuccinelli, the Attorney General of Virginia and the man who is bringing the lawsuit in front of Hudson's court. In 2010, records show, Cuccinelli spent nearly $9,000 for Campaign Solutions services. [Huffington Post, 7/30/10]
Stein also reported that Campaign Solutions says:
Judge Hudson has owned stock in Campaign Solutions going back 13 years to the founding of the company or well before he became a federal judge. Since joining the federal bench, he has fully disclosed his stock ownership in the company. He is a passive investor only, has no knowledge of the day to day operations of the firm, and has never discussed any aspect of the business with any official of the company. [Huffington Post, 7/30/10]
A blog post on The Washington Post's website reported that "In August, Cuccinelli called Hudson's tie to the company 'so unbelievably distant as to be irrelevant.' " The Post also reported:
In a recent interview, U.S. District Court Judge Henry E. Hudson said that he invested in the company before joining the bench in 2002 and that he has no day-to-day involvement with the company.
In the interview, a rarity for a sitting federal judge, Hudson said he and his wife invested in Campaign Solutions Inc. at the invitation of friend and neighbor Becki Donatelli, the company's founder and a major Republican fundraiser, more than a decade ago. Other than suggesting the firm to some charitable organizations, he's had no involvement since. [WashingtonPost.com, 12/14/2010]
After an internal struggle within the House Republican caucus, the GOP Steering Committee voted to select Rep. Hal Rogers (R-KY) as the new Chairman for the Appropriations Committee yesterday. Rogers campaigned for the position promising to carry out the wider Republican agenda of defunding popular progressive policies, particularly with a pledge to “stop” money from being spent on health reform. Despite a pledge to be a fiscally responsible chairman, Rogers has one of the worst records in Congress when it comes to reducing the deficit: he voted for both the wars in Iraq and Afghanistan, trillions of dollars worth of Bush tax cuts, and is affectionately known as the “Pork King” for requesting nearly half a billion dollars worth of earmarks. However, earmarking and these votes are fairly common within the Republican caucus.
As Rogers postures as the greatest opponent of Obama’s health reform plan — calling it a “monstrosity” and “socialistic” — he has taken a very different tone in private. Using a Freedom of Information Act (FOIA) request, ThinkProgress has obtained a letter from Rogers to the Health Resources and Services Administration, a bureau of Health and Human Services, seeking money from health reform. Rogers asked for a Nurse Managed Health Clinics grant (HRSA-10-282), a program authorized by Obama’s health reform law that averages $1.5 million per grantee, for the Frontier Nursing Service Community Health Center in Clay County, Kentucky. “With this funding,” Rogers explained, “Frontier Nursing Service will be able to continue operations for the next three years, and continue to provide critical care in an area in extreme need of access to adequate health care.” View a screen shot of the letter below, and download a copy here:
Another ThinkProgress FOIA request revealed that Sen. John Ensign (R-NV), who called health reform “unconstitutional,” also quietly lobbied the Obama administration for nearly a million dollars in health reform money. In his letter, Ensign lavished praise on a health reform program he said would alleviate the “growing challenges Nevada continues to face with providing access to much-needed health care.” Similarly, Sen. Chuck Grassley (R-IA) has taken credit for Medicare improvements made possible by the law. Every Republican in Congress voted against the bill.
Unfortunately, the community health clinic Rogers lobbied for did not win the million dollar grant. But Roger’s lobbying shows that even health reform critics who have told the public that the law is “socialistic” support its benefits for their constituents.
By Igor Volsky
Today, the Department of Health and Human Services announced the “first round of applicants accepted into the Early Retiree Reinsurance Program,” a $5 billion program established by the new health care law to help employers and states “maintain coverage for early retirees age 55 and older who are not yet eligible for
Medicare.” According to the agency, “nearly 2,000 employers, representing large and small businesses, State and local governments, educational institutions, non-profits, and unions” applied and have been accepted into the program and “will begin to receive reimbursements for employee claims this fall.” Ironically, one of those employers is the oil, chemicals, and manufacturing conglomerate Koch Industries, which as Lee Fang has reported, has also spent millions of dollars opposing reform:
The contradictory practice of opposing the health care law while applying for its funding has been common among states. As the Wonk Room points out, 19 of the 22 states that are suing the federal government over health care reform have applied for the law’s rate review grants and at least 7 of those states also applied for the reinsurance dollars.
"Missouri voters on Tuesday overwhelmingly rejected a key provision of President Barack Obama's health care law, sending a clear message of discontent to Washington and Democrats less than 100 days before the midterm elections," the Associated Press reports.
The AP's David A. Lieb adds,
About 71 percent of Missouri voters backed a ballot measure, Proposition C, that would prohibit the government from requiring people to have health insurance or from penalizing them for not having it.
The Missouri law conflicts with a federal requirement that most people have health insurance or face penalties starting in 2014.
Tuesday's vote was seen as largely symbolic because federal law generally trumps state law. But it was also seen as a sign of growing voter disillusionment with federal policies and a show of strength by conservatives and the tea party movement
Republicans eyeing more momentum for the mid-term elections interpreted Missouri's passage of Proposition C as a backlash against the White House and bigger government," Bill Lambrecht reports for the St. Louis Post-Dispatch.
Republican National Chairman Michael Steele called Missouri's rejection of the federal mandate to purchase health insurance "a significant blow to the Obama administration."
Steele called the Missouri vote "another reason why Republicans will win back the majority in November" in congressional elections.
"By rejecting ObamaCare with nearly three-quarters of the vote in a critical swing state, Missouri sent a clear message to Democrats and the Obama administration that government-run health care is a gross overreach of the federal government that needs to be repealed and replaced," Steele said in a statement.
"Democrats, who did little to combat Proposition C, were largely quiet about the Missouri results as the returns from Tueday's elections circulated this morning," Lambrecht adds.
Republicans are this morning hailing the vote as evidence of "the steadfast opposition of the American people to out-of-touch Washington Democrats' plan," in the words of House Republican leader John Boehner.
"The more the American people know about the Democrats' new law - with its job-killing mandates, tax hikes, and Medicare cuts to set up a new federal entitlement and massive new bureaucracies - the more they oppose it," he added. "How long will Washington Democrats ignore the will of the American people? What will it take for them to work with Republicans to repeal ObamaCare and replace it with commonsense reforms to lower costs?"
However, Brian Montopoli notes at the CBS Political Hotsheet blog, "While Republicans are pointing to the ease with which the measure passed as evidence that Americans are overwhelmingly opposed to the Democrats' health care plans - Proposition C got 71 percent of the vote - opposition to the plan is not quite that high (though there is still more opposition than support). In a CBS News poll last month, 36 percent of Americans said they approve of the health care reform law, while 49 percent opposed it."
At pollster.com, nearly every recent national poll indicates that -- for whatever reasons -- more and more Americans are continuing to change their minds on the health care plan.
A year ago, most polls showed the opposite: wide support for health reform.
In June of 2009 the New York Times reported, "Americans overwhelmingly support substantial changes to the health care system and are strongly behind one of the most contentious proposals Congress is considering, a government-run insurance plan to compete with private insurers, according to the latest New York Times/CBS News poll."
When asked which party was more likely to improve health care, only 18 percent of respondents said the Republicans, compared with 57 percent who picked the Democrats. Even one of four Republicans said the Democrats would do better.
The Washington Post recently reported, "Opposition to the landmark health care overhaul declined over the past month, to 35 percent from 41 percent, according to the latest results of a tracking poll, reported Thursday."
But that poll appears to be an anomaly.
According to the Associated Press polling, the debate is going up and down, but stands in stark contrast to where it was a year ago. The last AP poll showed 49 percent totally approved of Obama's handling of health care, with 46 totally disapproving. Disapproving led the month before with 51 to 45, and the month before that by 52 to 44, but Obama had approval of 49 in March with 46 opposed.
In April of 2009, approval for handling of health care by Obama in the AP poll was 53 percent, with only 28 percent totally disapproving.
Of course, some of that disapproval comes from liberals unhappy with the abandonment of the public option. And while they most probably won't be changing parties, there's a chance that disappointed Democrats may feel unenthusiastic about voting this November, and perhaps beyond.
M.C.L Comment: I never understood why there is a segment of this country population that always chose to slit their own throats to protect the already big and powerful.. And why we have people on my side of the political fence behave like children when their pet issue isn't dealt with the manner they want it. How is staying at home and allowing your state version of Michele Bachman or Jim DeMint to win a United State Senate or congressional seat is going to teach anyone a lesson?
If anything you helped the Republicans and kill any chance of your pet issue to be dealt with. If you're a gay person and your issues are repealing DADT or DOMA who do you rather have sitting in a senate seat a centrist to moderate Democrat or a far right wing Republican?Barack Obama has done enough positive things since becoming president that has turned me from an primary election critic to a full time supporter, this man has lay down a foundation to build upon change doesn't happen in 18 months it happens over time.
And getting pissed and threatening to stay home on election night because health care isn't 100% what you want, DADT hasn't been repel yet and wanting President Obama to be the left wing version of George W.Bush is stupid.. If you stay home on election night of 2010 you're in sense are telling people you're a spoiled selfish bastard who rather screw the future of others because your issue of choice wasn't dealt with the way you wanted.
INSKEEP: As you know, Democrats are already pointing to things that are changing in America because of this bill. They will point to the fact that college seniors, who would have been kicked off their families’ insurance plans when they graduated, will get to stay on. Insurance companies are now saying they’re going to end the practice of “rescission,” where they take, or at least modify…
BOEHNER: Both of those ideas, by the way, came from Republicans, and are part of the common sense ideas that we ought to have in the law.
INSKEEP: Well, are you going to repeal those two specific things?
BOEHNER Uh, what I want to repeal are the other 158 mandates, commissions, boards that set up all the infrastructure for the government to take control of our health care system.
Listen:
Boehner’s refusal to call for a full repeal could cause a rift with the more conservative members of the Republican party. Last week, for instance, Rep. Steve King (R-IA) — who has proposed a bill calling for complete repeal — warned leadership that “if we leave any component of it in there, it has, it’s just become a malignant tumor that’s attacking our liberty and our freedom and it’s diminishing our aspirations and it saps our overall productivity as a nation,” King said. “If we can’t come to that conclusion, then I want some new people to come help me.” Currently, repeal legislation has has no more than 62 co-sponsors in the House and 20 in the Senate.
Yesterday, while speaking at the Ritz-Carlton Naples Golf Resort during an event hosted by the Ave Maria School of Law, Fox News President Roger Ailes took shots at his cable news rivals and attacked the health care legislation signed by President Obama. “It doesn’t seem constitutional to me to have the government tell you you have to buy something,” said Ailes. He told a reporter after the talk, “I don’t do politics, I do the news.” Nevertheless, when Ailes was asked how Republicans could win in November, he responded, “We have got to get back to the Constitution.” In a separate interview with a local Fox affiliate, Ailes defended Fox’s conservative content, saying, “We think we are fair and balanced. We think the others aren’t.” Watch it:
In his interview with the local Florida affiliate, Ailes also defended Fox over the recent scandal involving Sean Hannity and the Cincinnati Tea Party. “Sometimes mistakes happen,” said Ailes. “If they happen, you go on the air quickly, say this is what happened, this is what we did and keep moving. And that’s what we do.” According to a ThinkProgress review of his show’s transcripts, Hannity has yet to address on-air Fox’s decision to cancel his appearance at the Cincinnati Tea Party.
