February 1-3, 2011
Feb 01 04:15 Wrongly Defining Judicial Activism? Feb 01 05:24 Dayton Introduces Annual DFL Stimulus Bill Feb 01 15:10 Biased Media Cries Judicial Activism Feb 03 04:13 A Little Paranoia Apparently Goes a Long Ways Feb 03 05:14 Presidential PR Stunt or the Real Deal? Feb 03 07:38 Vinson's Ruling a Gift? Feb 03 08:21 Talking Points/Talking Points Rejected Feb 03 14:50 Saving MinnesotaCare
Prior Months: Jan
Prior Years: 2006 2007 2008 2009 2010
Wrongly Defining Judicial Activism?
For years, I'm certain that the left hated hearing their justices characterized as judicial activists. Now that they've got outlets to publish their rantings, they're accusing conservative judges of practicing judicial activism. Such is the case with Adam Winkler's post in the Huffington Post:
The ruling out of Florida is unsurprising in one respect: the judge, a conservative Republican appointee, had already signaled his hostility to the law in hearings a few months ago. So people who follow the health care litigation have been waiting for him to issue the ruling that came down Monday.
It was anticipation over this ruling, and real concern about how the judge would likely distort longstanding case law to reach it, that led over one hundred law professors to sign a statement last week expressing their view that the ACA is constitutional. Their statement pointedly observed that the "current challenges to the constitutionality of this legislation seek to jettison nearly two centuries of settled constitutional law."
The basis for the Florida court's ruling was that Congress did not have the power to require people to obtain health insurance. While Congress does only have limited powers, one of those powers enables Congress to regulate "commerce...among the several States." This "commerce power," as it is known, enables Congress to regulate aspects of the economy that would evade easy solution by regulation at the state level alone.
The national market for health care is in precisely the sort of crisis that mandates a federal, not state, solution. This market consumes more than 17% of the annual gross domestic product and amounts to over $2 trillion annually. Clearly, the ACA regulates interstate commerce and no state law is going to solve it's current problems.
Judge Vinson cited Madison and the Federalist Papers rather than "nearly two centuries of settled constitutional law." What Winkler is arguing is that the principle author of our Constitution and a future president of our nation didn't have a grasp of the Constitution's intent but subsequent courts, far removed from the wisdom of the founders, had an infinitely better grasp of the Constitution's meaning.
James Madison, the chief architect of our federalist system, once famously observed:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. The Federalist No. 51, at 348 (N.Y. Heritage Press ed., 1945) ('The Federalist').2
In establishing our government, the Founders endeavored to resolve Madison's identified ?'great difficulty' by creating a system of dual sovereignty under which '[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.?' The Federalist No. 45, at 311 (Madison); see also U.S. Const. art. I, § 1 (setting forth the specific legislative powers 'herein granted' to Congress). When the Bill of Rights was later added to the Constitution in 1791, the Tenth Amendment reaffirmed that relationship: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'
The Framers believed that limiting federal power, and allowing the 'residual' power to remain in the hands of the states (and of the people), would help 'ensure protection of our fundamental liberties' and 'reduce the risk of tyranny and abuse.'
Madison lived at a time when the memory of the King's tyrannical actions were fresh in people's minds. The Founding Fathers wanted something distinctly different from the English government. Therefore, it's clear that they would've wanted to decentralize power as much as possible.
According to Winkler's theory, though, the court's rulings throughout this nation's history to expand the scope of the Commerce Clause is the appropriate benchmark, not the original intent of the Constitution and the Bill of Rights. If that isn't an antiquated, worthless theory, I wouldn't know what is.
Winkler's writings give him away with this sentence:
While Congress does only have limited powers, one of those powers enables Congress to regulate "commerce...among the several States."
This "commerce power," as it is known, enables Congress to regulate aspects of the economy that would evade easy solution by regulation at the state level alone.
Winkler's argument is essentially an economic argument. According to his stated reasoning, the federal government should jump in whenever the states are faced with a problem that's difficult to regulate. My first question is why a federal remedy is superior than something that the states would create. My next question would be why he thinks the federal government's limited, specifically enumerated powers should expand to help states out of difficult situation.
The national market for health care is in precisely the sort of crisis that mandates a federal, not state, solution. This market consumes more than 17% of the annual gross domestic product and amounts to over $2 trillion annually. Clearly, the ACA regulates interstate commerce and no state law is going to solve it's current problems.
Mr. Winkler again is primarily arguing economic policy, not the law. Stating that "no state is going to solve its current problems" is, again, a matter of economic opinion. Winkler certainly can't cite evidence of that, which is what courts rely on.
That Congress lacks the power to require people to buy a product when the national interest demands it would surprise the Founding Fathers. They required people to do just that . In the second Militia Act of 1792, they required individuals to outfit themselves with a military-style firearm and ammunition. This was the first "individual mandate" and one had to obey even if one had to go out and buy a gun. Being passive didn't put you out of Congress's reach.
First, here's what the second Militia Act required:
The second Act, passed May 8, 1792, provided for the organization of the state militias. It conscripted every "free able-bodied white male citizen" between the ages of 18 and 45 into a local militia company overseen by the state.
In other words, not all people were mandated to buy guns and ammunition, which is what Mr. Winkler suggests. Let's understand that Article 2, Section 2 states that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States ..."
In other words, the Constitution gave the commander-in-chief authority over "the militia of the several states." In a way, they were the Army Reserve or national guard of their day.
These militia weren't just citizens. They were, in a very real sense, part of the military, ready to defend our nation. That's distinctly different from an individual mandate to buy health insurance because the commander-in-chief had constitutional authority over the militia as part of the military.
Neither the president or congress has constitutional authority over our economic decisions.
After years of telling Americans to follow the original intent of the Framers, now the same people want us to ignore what the Framers actually did.
Judge Vinson didn't tell us to ignore what the Founding Fathers instructed us to do. Judge Vinson's citing of Madison and specific Federalist Papers guaranteed that.
Besides, the ACA doesn't regulate "inactivity." It merely requires that, because all of us use health care services, we have the ability to pay for it. Without the requirement to have insurance, people will seek out medical help without being able to afford it, imposing costs on all of us taxpayers and insurance policyholders who do obtain coverage.
Again, we're subjected to more assumptions on behalf of Mr. Winkler. What proof does Winkler have that the people who don't purchase health insurance can't pay for their health care expenses?
Included in the text of Obamacare are other mandates that tell people what coverages their health insurance policies must include. O'Care's individual mandate didn't just tell us that we must purchase health insurance; it mandated the coverages that are mandated.
If a well-to-do person wants to pay for his or her health care out of pocket, why shouldn't they have that option without getting penalized?
Mr. Winkler's post is riddled with faulty assumptions, shoddy research and a terrible understanding of the Constitution. Unfortunately, it's filled with economic policy masquerading as constitutional arguments.
Posted Tuesday, February 1, 2011 4:15 AM
Comment 1 by J. Ewing at 01-Feb-11 09:01 AM
I've always been amazed that the Left sees in the Interstate Commerce clause the right of Congress to compel every individual to engage in an item of intRAstate commerce, but not the authority to permit the intERstate sale of health insurance.
Dayton Introduces Annual DFL Stimulus Bill
Each year for the past 4 years, the DFL has characterized their billion $$ bonding bill as their "jobs bill." This year is no different. Monday morning, Gov. Dayton introduced their annual stimulus bill :
Governor Mark Dayton proposed a $1 billion dollar bonding bill Monday he says will quickly create as many as 28 thousand jobs across the state.
Dayton says the projects listed in his proposal could begin work in time for the 2011 construction season, "Bottom line is Minnesotans are out of work waiting for this bill to put them back to work."
Each year, the ROI on these stimulus bills shrinks. Worse, because so many of the projects are total pork, the next generation is stuck with the debt caused by the DFL's inability to build a 21st Century economy. Instead, they opt for jobs that are totally reliant on government funding.
If the DFL was serious about Minnesota's economic future, they'd stop with the stopgap debt measures and start doing the things that eliminate economic uncertainty and the highs and lows of Minnesota's economy. They'd start reigning in spending, stabilizing, if not cutting taxes, while streamlining the permitting process and instituting litigation reform.
If the DFL did those things, sustainable prosperity would return to Minnesota. Because they're stuck in eternal stimulus mode, Minnesota's economy treads water.
Unfortunately, I haven't seen anything that proves Gov. Dayton is serious about bringing Minnesota's economy into the 21st Century. Gov. Dayton's PR stunt from a week ago just proved he loves creating positive PR. It doesn't prove he's serious about permitting and litigation reform.
Until Gov. Dayton is serious about litigation reform, Minnesota's workers will lack employment opportunities. The environmental extremists' litigation has done more harm to Minnesota's economy than anything else, including the supposed damage done by "the no new taxes crowd." In fact, it isn't even close.
The other thing I'd ask Gov. Dayton is, after the construction projects are done, what will we have. Will we have spent money on something that's adding to Minnesota's economic health or will we have burdened the next generation to pay for 're-election insurance'?
Posted Tuesday, February 1, 2011 5:24 AM
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Biased Media Cries Judicial Activism
Jonathan Cohn's op-ed is just another reminder that the left will whine about Judge Vinson's ruling. The pattern is predictable. They'll whine about judicial activism first like they did in this post . Then people like Cohn will argue that yesterday's ruling is just about raw politics at its worst:
Did Roger Vinson, the federal judge who on Monday ruled the Affordable Care Act unconstitutional, have a particularly conservative take on politics as well as the law? His ruling certainly suggests as much. There's what looks like a shout-out to the Tea Party , specifically, a reference to the American Colonists' outrage over the tax on tea. (Page 42.) There's the gratuitous reference to General Motors as 'partially government-owned.' (Page 45.) And there's the use of President Obama's campaign rhetoric against the law Obama now supports. (Page 68).
The next round of attacks won't be this polite. They'll get nastier and less rational. Be that as it may, let's look at Judge Vinson's ruling and see how political it was.
First, let's just admit that any ruling on a political matter will have political implications. That's like admitting that, if you go to a casino, you're likely to people gambling. Where's the news in that?
On Page 2 of Judge Vinson's opinion, he cited James Monroe and Federalist 51. That's as foundational as you'll get. Most people will remember that Monroe was one of our earliest president. More importantly, he's considered the chief author of the Constitution. If ever there was someone who could be cited in an important ruling like this that takes it out of the political realm, it's Madison.
How on earth can someone cite the foundational principles of the Founding Fathers and be considered getting political?
Cohn also mentions that Judge Vinson cited then-Sen. Obama's words during a debate with Hillary Clinton. Then-Sen. Obama told Hillary then that the individual mandate she was proposing in her health care legislation was unconstitutional, ridiculing her by saying that, if that were valid, they could "end homelessness by making everyone buy a home."
How isn't that central to this ruling? President Obama's lawyers argued before Judge Vinson that the individual mandate is constitutional a year after President Obama argued on national TV that it was unconstitutional. If you're going to argue on national TV that something is unconstitutional, then expect people to use it against you later if you argue that it's now constitutional.
Cohn's logic in this paragraph is stunning:
But perhaps the clearest indicator of bias in the decisions against the Affordable Care Act is the gist of the decisions themselves. For generations, conservatives have championed 'judicial restraint.' If judicial restraint means anything, it means deferring to the Congress on matters of policy preference, like, for example, whether it's better to run a national health insurance system with a system of regulated private insurance (which is what people will get with the Affordable Care Act) rather than via a single-payer, government-run plan (which is what the elderly already get with Medicare). But if these decisions by Judges Vinson and Hudson carry the day, and, please remember, two federal judges have already ruled the other way, they would effectively take that discretion away from the Congress.
Whoa. If Cohn is arguing that ruling on whether the ICC applies to the individual mandate is a "policy matter", that's a stretch far beyond where it was ever meant to go.
The proper application of the ICC isn't a policy matter. It's a constitutional matter. PERIOD.
What Cohn isn't admitting is that, before determining "whether it's better to run a national health insurance system with a system of regulated private insurance", you have to consider whether the federal government has the constitional authority to make those types of policy considerations. Judge Vinson and Judge Hudson rightly said federal authority doesn't stretch that far. PERIOD.
Well, almost anything. Most judges at least try to ground their rulings in the language of the Constitution, as interpreted in modern times. My colleague Jeffrey Rosen, who knows far more on these subjects than I do, has argued persistently and elegantly for this sort of judicial restraint.
Cohn's argument appears to be that citing the chief author of the Constitution and the Federalist Papers isn't grounding his opinion "in the language of the Constitution."
Finally, let's take a look at Mr. Cohn's final trip into fantasyland:
Still, there is one other check on the courts' discretion: Public perception. Judges can defy public values up to a point, but only up to a point. And while the public remains divided on the Affordable Care Act, it has expressed a clear and unambiguous preference for health insurance that is affordable and available to all--while preferring, for better or for worse, to keep the existing system of private insurance in place. Is the Supreme Court really ready to reject that preference?
Does Cohn seriously think, especially after the midterm elections, that the American people really want to keep O'Care? What color is the sky in Cohn's world?
I'll finish by saying that this is what happens when liberals don't get their way in the courts. As you can see, it isn't pretty.
Posted Tuesday, February 1, 2011 3:10 PM
Comment 1 by eric z. at 02-Feb-11 09:03 AM
The biggest news about the Vinson opinion you did not focus upon.
Vinson, at his District Court level in the case before him, invalidated the entire act, based on the forced payment provision [which other district judges before him had struck down while yet others have said it is all constitutional]. His reasoning was that the act was passed without including a severability clause; so he read the intent of Congress to not have favored implied severability.
That is a divergence from any opinion I know of, in other districts.
Making severability an issue. The prevailing norm is in constitutional challenges, if there is a constitutional reading possibly if the statute is read narrowly, than that reading should be preserved; even if the full possible reach of the legislation is struck down.
This severability focus seems to cut against that guideline, so this is a case of greater importance than and directly opposed to those that have struck down the mandatory insurance purchase part of the law, without throwing the entire baby out with the bathwater.
This probably will get to the clearly politicized Supreme Court, and we at this point can only guess how the severability thing will go.
A good guess, Scalia, Roberts, and the Scalia second vote, Thomas, will buy the severability argument Vinson opined.
However, how the 5-4 expected split will go on severability, that's anyone's guess and I'd not risk a bet either way.
My guess, the mandatory buy-in provision does have constitutional dimensions about how far the reach of the commerce clause goes - can it force unwilling persons to very particular acts of commerce - which might doom it with a court majority; so that the severability dimension will be the pivotal thing in appellate review. Now that Vinson has interjected it into things.
Response 1.1 by Gary Gross at 02-Feb-11 07:31 PM
O'Care will be shot down because a ruling that says it's constitutional means that federalism is dead, along with the Ninth & Tenth amendments. When the Constitution was written, it was written with the thought in mind that the states were where almost all of the domestic issues got dealt with & that the federal gov't was in charge of basic human right (Bill of Rights), defending the nation from outside forces & treaties with other nations.
The states thought that they were borrowing the federal gov't a tiny portion of their sovereignty. The Robert court understands those principles.
Are there political ramifications to their decision? Without a doubt. That doesn't mean that the court is politicized. In fact, I'd argue that the liberal justices not using the Constitution is the real politicization of the SCOTUS. People following the Constitution like the Founding Fathers did isn't political. It's just doing things right.
Comment 2 by walter hanson at 02-Feb-11 12:50 PM
Gary:
I think you did a major typo in this post. I think you meant to reference James Madison the fourth president of the United States who is considered to be the father of the constitution. James Monroe was the fifth president of the United States, but I don't think he had a big role in the constitution being approved.
Walter Hanson
Minneapolis, MN
Response 2.1 by Gary Gross at 02-Feb-11 04:05 PM
You're right. I've been meaning to correct that but I've been swamped today.
A Little Paranoia Apparently Goes a Long Ways
Ever since Chip defeated Lord Oberstar, the DFL have had their long knives out. The good news is that they're exremely incoherent. This LTE is proof of the DFL's incoherence and their ability to stick to their talking points.
His argument for cross-state insurance sales, the latest Republican mantra, avoided a crucial point: There is no federal regulation for health insurance, and it would simply mean insurance companies could sell junk policies, avoid state regulation and leave citizens without recourse; in short, the freedom to sell garbage for profit with no watchdog. It would do nothing to provide health care and simply increase profits for an already-bloated industry.
This gentleman's argument is the argument of a lightweight. Car insurance is already sold across state lines. Furthermore, the states mandate what products can or can't be sold in their states. Certainly, the AG's office would file lawsuits on companies who sold junk policies. That's the type of stuff that Lori Swanson lives for.
In other words, this LTE's author is almost totally wrong.
Cravaack conveniently avoided the nonpartisan Congressional Budget Office's recent study, showing reform's savings and coverage increases. He ignored the consistent premium increases and insurance company profit increases that happen regardless of reform. I would remind him that profits and executive compensation are also 'costs' in health care.
The CBO numbers don't mean anything when the people who fed them the numbers took more shortcuts than Bo and Luke Duke took when they were chased by Boss Hogg. Last week, CNN's John King interviewed House Budget Committee Chairman Paul Ryan about CBO's scoring of O'Care. Here's the key portion of that interview:
Here is how the CBO works. You put in front of them whatever you want to put in front of them, and they have to score it. So, what do they put in front of them? They put in front of them a bill that double counts Medicare money, that double counts Social Security money, that double counts class act money, that omits discretionary spending, that omits the doc fix.
If you take away the double counting, all the money they didn't count. It is about a $700 billion deficit. The reason I say, $700 billion deficit is we asked CBO to look at this bill without all the gimmicks, without all the smoke and mirrors. And that was their conclusion.
Let me say it this way, CBO, when they look at the debt, they can look at everything, not just this narrow piece of legislation. They say this health care bill increases the debt. So how can it be that this legislation reduces the deficit but increases the debt? The reason is because in this bill which is scored, which gives you that score that you just mentioned, they have all this double counting, all these smoke in mirrors.
Mr. Ojanen isn't the first Democrat citing the CBO figures. In fact, it isn't the first time that the DNT has published an LTE written by a DFL activist who cited the CBO. It's been a staple in the DFL's LTE's. Chairman Ryan has explained that this is DC Democrats' gimmickry. The $500,000,000,000 in Medicare cuts aren't being applied towards reducing the deficit. They're being spent on a new entitlement, the CLASS Act.
The Democrats can't count that $500,000,000,000 as deficit reduction if it's being spent on the CLASS Act. There are other dollars that are double-counted, too. Here's a telling exchange between Rep. Tom Campbell and Richard Foster :
REP. JOHN CAMPBELL(R- Calif.): "Is it legitimate to say... that you can add a dozen years to the solvency of Medicare or that you can reduce the deficit, but it is not correct to say both simultaneously?"
FOSTER: "Both will happen as a result of the same one set of savings, under Medicare. But it takes two sets of money to make it happen. It happens directly for the budget deficit, from the Medicare savings, and then when we need the money to extend the Hospital Insurance Trust Fund, we have a promissory note; it's an IOU, not a worthless IOU, but it is an IOU, and Treasury has to pay that money back. But they have to get it from somewhere. That's the missing link."
In other words, the Democrats tried scamming the CBO figures. They didn't instruct the CBO to not double-count the Medicare cuts.
Mr. Ojanen shouldn't parrot the DFL's discredited talking points. He should know that they're, putting it mildly, BSing the people.
Posted Thursday, February 3, 2011 4:13 AM
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Presidential PR Stunt or the Real Deal?
After reading this article , I'm left wondering if this trip will actually help the Iron Range or if it's just another PR stunt from Gov. Dayton.
As for President Obama's potential visit to the Range, that's up in the air right now.
But Gov. Dayton reportedly says he would love for Mr. Obama to learn first hand about the mining industry, its importance to Minnesota and even the entire country.
Sadly, there's little chance that President Obama will help cut through the red tape to help get PolyMet into operation. Just this afternoon, President Obama said that he'd veto legislation that would restrict the EPA's ability to impose Cap and Tax through regulations without passing Cap and Tax legislation.
What's worse is that Gov. Dayton hasn't shown any interest in litigation reform, which is the biggest thing holding the PolyMet project up. Gov. Dayton showed he's prone to making splashy PR stunts by signing EO-04, which commands the MnDNR and the MPCA to get their work done in a timely fashion.
That, by itself is stunning. The rules on the books haven't changed yet Gov. Dayton felt the need to sign EO-04 to tell these regulatory agencies to get their work done on time.
Still, the biggest thing holding PolyMet up is the constant stream of attrition litigation filed by MCEA and other militant environmental organizations. Without the streamlining contained in Rep. Fabian's HF1 bill, Gov. Dayton's EO is nothing more than a quaint gesture.
Atkins said it would be great for the president to see the many rich fines and minerals the Iron Range has to offer. He said it would be great for the U.S. to focus on our mining region with a focus on exporting it to other parts of the world.
"These copper-nickel fines are some of the richest in the world, and the United States imports most of its nickel from foreign sources,' Atkins said.
While it'd be great if President Obama got serious about cutting through the EPA's red tape so hundreds of permanent jobs could be created on the Range, the reality is that the EPA is filled with militant environmentalists.
The good news for Iron Range union workers is that Chip Cravaack is working hard to get PolyMet opened :
New Minnesota congressman Chip Cravaack (cruh-VAHCK') says he's planning a closed-door roundtable meeting soon with top state and federal regulators to try to push forward on the state's first copper mine.
Cravaack tells the Duluth News Tribune in an interview that he isn't trying to circumvent environmental reviews for the PolyMet Mining Co. project near Hoyt Lakes. He says he just wants to "act as a facilitator" for a project that would bring jobs.
Cravaack says he'd like the meeting to include tribal officials as well as PolyMet and Gov. Mark Dayton or a Dayton aide.
Cravaack promised during his campaign to help the PolyMet project as well as another precious metals mine in the works near Ely.
This is a refreshing change from Rep. Oberstar, who didn't take an interest in this project until the race started tightening up :
It's been in the works for more than four years, but when the environmental review came out last fall, the federal government blasted the report as inadequate.
Oberstar says he wants a thorough review, but it shouldn't take so long.
'The red tape, the slowdown, the lack of full attention by federal and state permitting agencies has dragged this process out much too long,' said Oberstar.
Oberstar said the No. 1 issue people talk about in northeastern Minnesota is jobs. And the Polymet mine promises 400 jobs.
'I've heard some concerns, 'Be careful about our environment. We love this land, we don't want our waters to be adversely affected.' And I've assured people that corners will not be cut, there will be no exceptions made, but we have to do this in an expeditious manner,' he said.
This was a PR stunt. The miners saw through it and worked hard to elect Chip Cravaack. Here's my commentary on Rep. Oberstar's inaction:
It's been 4 years since the permitting and inspection process started. Finally, it's got the attention of Rep. Oberstar? Why didn't he take interest before this?
Oberstar wasn't interested in this project. President Obama's EPA has fought against this project. Finally, Gov. Dayton has taken a half-hearted interest in getting the project running.
How pathetic is that?
Posted Thursday, February 3, 2011 9:47 AM
Comment 1 by Greg at 03-Feb-11 08:37 AM
Please explain exactly what litigation has slowed up the PolyMet environmental review. To my knowledge, not a single lawsuit has delayed the project. Pretty sure it's taken this long because you can't put an open pit sulfide mine in a wetland without serious pollution issues. Anyway, what litigation?
Vinson's Ruling a Gift?
Based on Michael Walsh's op-ed , the Obama administration should view Judge Vinson's ruling as a gift:
Monday's ruling by federal Judge Roger Vinson that the Patient Protection and Affordable Care Act, aka ObamaCare, is unconstitutional is a signal event in modern American history. For the first time since FDR browbeat the Supreme Court into accepting most of his New Deal, the Leviathan known as the federal government has been rocked back on its heels.
If the administration and the Senate Democrats had any sense, they'd take Judge Vinson's ruling as a gift, not a setback. Because, whether they know it or not, the judge just handed them an opportunity to get health care right.
The Democrats have already signalled that they're digging in their heels on this and fighting. They really don't have an option, meaning they won't take Walsh's advice. Judge Vinson wrote compellingly about what's at stake with this case:
In finally containing the infinite elasticity of the Commerce Clause, Vinson has laid down a marker about how far the text of the Constitution can be stretched before it becomes meaningless.
"This case is not about whether the act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health-care system," the judge wrote. "In fact, it is not really about our health-care system at all. It is principally about our federalist system, and it raises very important issues regarding the constitutional role of the federal government.
I've said all along that this case would turn on the fact that ruling this legislation constitutional would essentially end the concept of federalism. Not only that but it would gut the Tenth Amendment. Judge Vinson's ruling isn't about health care or policy. It's about the Constitution.
Then-Speaker Pelosi thought it was ridiculous when a CNSNews.com reporter asked what constitutional authority gave Congress the right to deal with this issue. Her response was "Are you kidding me? That isn't a serious question." Liberals had gotten so used to getting their way by arguing the ICC gave them the authority they needed.
Judge Vinson's opinion brought that practice to a screeching halt.
This puts President Obama in a difficult position for re-election. If O'Care is ruled unconstitutional, then President Obama will head into the 2012 election season as having overreached on O'Care and having passed the failed stimulus bill.
Not even a master salesman like President Obama can sell that as reason to return him for another term. In fact, that record would give the GOP nominee the opportunity to run against a 'do-nothing president'. Alot of voters would find that compelling, especially amongst independents.
While I'm thinking that this puts President Obama in a difficult position, Dick Morris is more emphatic with his prediction :
So where does this leave President Obama? His stimulus package was a disaster, conceded by all to have failed. Democrats, of course, ascribe its failure to its puny size (only $800 billion)! Republicans understand that when the government spends and borrows it destroys jobs rather than create them. But, obviously, the stimulus bill didn't work.
And now his health care bill is unconstitutional.
What happens to an arch when it loses its cornerstone? It collapses. The same fate awaits Obama in 2012.
The DCCC recently announced their list of people they're targeting in 2012 in hopes of retaking the House. After yesterday's vote in which every Democrat voted against O'Care's repeal and after President Obama's stunning defeat in Florida, Democrats will be fortunate if Republicans don't have the White House, the House and the Senate when the dust settles on Election Night, 2012.
Posted Thursday, February 3, 2011 7:38 AM
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Talking Points/Talking Points Rejected
This op-ed is a great illustration on how Democrats stick with discredited talking points. Here's a perfect illustration:
We will not allow any such effort to pass the Senate. Nor do we believe that acts of judicial overreach, like Monday's court ruling in Florida, which deviates from other courts' judgments on the new law, will stand.
That's more than a little boring. It's also been discredited by liberal ConLaw professor Jonathan Turley:
Even if one accepts that the removal of the clause was just some colossal, inexplicable blunder, it was the blunder of the White House and Congress, not the courts. The result was a Ford Pinto law, a fast and cheap vehicle that would explode with even low-speed collisions.
The Justice Department undermined its own case by repeatedly warning Vinson in court that if he struck down the individual mandate, the law would be fundamentally crippled. Without the mandate (and young healthy people forced to buy insurance), the plan is fatally underfunded. It appeared to the court that the administration was arguing that it was an "all-or-nothing" proposition. Vinson's ruling: Nothing it is.
Of course, the law could be ultimately saved by the U.S. Supreme Court, where it is clearly heading. In the end, however, it seems a bit forced for the Obama administration to throw around the old cry of "judicial activism" when it pushed through a law that removed the critical safety provision for severability.
There's nothing that Judge Vinson did that remotely approaches overreach. His was a well-reasoned, even eloquent, opinion that cited the Founding Fathers and tons of constitutional logic. Judge Vinson used the DoJ's lawyers words against them. He even used President Obama's words against him:
'I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that ' if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house ,' Judge Vinson wrote in a footnote toward the end of the 78-page ruling Monday.
The "overreach" that Sens. Brown, Cardin, Schumer and Stabenow referenced is something that then-Sen. Obama used in criticizing Hillary Clinton's health care proposal. If these senators want to argue overreach, they'll have to explain how then-Sen. Obama's argument isn't overreach, too.
That should make for some fancy tap-dancing.
Posted Thursday, February 3, 2011 8:21 AM
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Saving MinnesotaCare
Each week, I get Steve Gottwalt's e-letter update to keep track of what's happening in the committees Steve serves in. The biggest news from this week's edition is his work on the Healthy Minnesota Contribution Program, which is a reform on Minnesota's MinnesotaCare program.
Steve notes that it's important to know that "the Health Care Access Fund (HCAF) which pays for traditional MinnesotaCare, is $150 million in structural deficit." That certainly isn't good news for anyone.
According to Minnesota's HHS, HCAF will likely run out of money in less than 2 years, at which time we'd face several options, most of which are terrible for Minnesota families.
Theoretically, the options include kicking people off MinnesotaCare or raising taxes significantly. The only positive option is enacting the Healthy Minnesota Contribution Program. According to the MMB's fiscal note to the bill, HMCP would save Minnesota's taxpayers $100,000,000 per biennium while making MinnesotaCare a sustainable program.
This would be a major step in the right direction in both balancing Minnesota's budget and in eliminating HCAF's structural deficit.
Steve notes that "HMCP would replace MinnesotaCare for about 100,000 low income Minnesotans by providing them with a state subsidy to help them purchase private health insurance." This is definitely a positive step in the right direction since this would become a family's private health insurance that's totally portable.
In the past week, Steve's met with Gov. Dayton and "with federal officials responsible for implementing the federal health care legislation often called "Obamacare." Because of Minnesota's long history of health care excellence, the federal government is planning on giving Minnesota some additional flexibility:
I shared with them that Minnesota intends to maintain its lead as one of the best states in the nation in terms of health care costs and outcomes, and they indicated a willingness to provide flexibility for Minnesota.
I've argued in the past that the states are the best testing grounds for reform, not at the federal level. It's because of specialized testimony that they get at the state level that better reforms are possible at the state level. This is one such example:
[Last week, Steve's]committee heard from the chief reform executive at the Mayo Clinic, Dr. Doug Wood. Whenever people here and around the world discuss successful models in health care, they think of the Mayo Clinic. One important factor Dr. Wood emphasized was the need to pay for healthy outcomes, not just procedures, and to make sure there are
incentives for people to be engaged in their own health and wellness.
It's important that all these factors are considered part of reforming Minnesota's health care system. It's also telling that these considerations weren't part of O'Care. I'd love knowing why it wasn't. It certainly should've been.
It looks like HMCP will reach Gov. Dayton's desk. Hopefully, Gov. Dayton will sign it into law. Really, he can't afford not to, especially considering the structural deficit HCAF has.
Everytime a thoughtful reform is passed is another time when Minnesota's taxpayers and Minnesota's job creators are spared the additional costs of the DFL's tax increases. That should be the goal of every legislator.
Unfortunately, the DFL's approach to budgeting has been to spend now, figure out how to pay for it later. Thanks to the work Steve and other GOP legislators are doing, we're getting a reprieve from that approach.
Posted Thursday, February 3, 2011 2:50 PM
Comment 1 by J. Ewing at 04-Feb-11 09:05 AM
At last, somebody from Mayo has reiterated the three "great reforms" that would cut the cost of US medical care by half. They are:
1) Elimination of fee for service - "pay for healthy outcomes, not just procedures"
2) Elimination of First Dollar coverage - "incentives for people to be engaged."
3) Elimination of third party payers (like government) - "help them purchase private health insurance."
If you could just add medical liabilty reform to that, you would have a pretty good "medical safety net" and these reforms might begin to seep into employer and privately-held policies, making Obamacare not only totally wrong but unnecessary.
Comment 2 by Rex Newman at 04-Feb-11 10:24 AM
Just once I'd like to hear the libs admit the real problem: socialized medicine, like socialized anything doesn't work. It never has, throughout history, throughout the world. They act like Emperor Ming is somehow inflicting these runaway costs on us from Mars.
Response 2.1 by Gary Gross at 04-Feb-11 10:32 AM
Rex, the great thing about Steve's reform is that the person buys a private policy, then the state reimburses them for buying the policy based on a sliding scale. Once a person is back on their feet, the subsidy ends but they've got a policy that's totally portable. That plus the fact that it's cheaper should make this an easy bill for Dayton to sign.
Comment 3 by soloriobrown at 15-Mar-11 03:02 PM
Capital Bonds
half a decade as environmental considerations butted up against the promise of jobs during the project's movement through state and federal bureaucracies. Given the new Republican majorities in the Legislature, the project will likely move through the remainder of the review process without any clear roadblocks left in its path.
