Published in Health Care

At a congressional hearing, HHS Secretary Sebelius has to admit she did not consider constitutionally protected religious liberty when she issued her now infamous HHS mandate on insurance coverage of sterilization and contraception. Congressman Gowdy pins her down. Her worst excuse was that she is not a lawyer.

Jeffrey Rosen has a nice bit of sophistry in The New Republic.  He suggests, perhaps correctly, that Justices Kennedy and Roberts, were asking the government to point to a limiting principle--something which would allow Obamacare, but would nonetheless not allow the federal government legal authority to do whatever it wanted.  Unfortunately, he says:

[Soliciter Genera] Verrilli's error was substantive: He failed squarely to answer Roberts and Kennedy's repeated questions about what limits he envisioned to Congress's power to regulate interstate commerce. Verrilli's evasions weren't only unhelpful--they were also unnecessary.

Rosen suggests that there is an obvious limiting principle, one that can be discovered in the founding.  "In previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women," he notes, "the Court has drawn a distinction between activity that is truly local and activity that is truly national."

More generally, he quotes a new book by Neil S. Siegel suggesting that the federal government was designed to address any problem that was not local in nature:

"The Commerce Clause is best understood in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce." Siegel argues that "to over-come failures to participate in collective action whose effects spill across state borders, the clauses of Article I, Section 8 authorize Congress to require various kinds of private action."

Balderdash!  If that was the meaning of the commerce clause, it would not say: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Rosen's argumen views the Constitution from 30,000 feet. Its particular details fade into nothingness and it becomes a plenary grant to address any issue that Rosen thinks is a national one. 

Consider some constitutional arguments of the founding era. In that era, we should note, it was an open question whether the federal government had the authority to build roads, canals, and other such projects. President Madison thought it might be, but in the end, he decided that such projects required an amendment, which he supported.  Whigs disagreed with that. But if internal improvements were constitutionally controversial, it is hard to claim that there would have been any discussion of whether the federal goverment may regulate my visit to my doctor. 

In his Opinion on the Constitutionality of the Bank, Hamilton said that Congress may create a corporation to fulfil the powers listed in Article 1, section 8.  Among those he listed was the commerce clause.  After all, creating and managing a national circulating medium is a national act, by definition.  The key question between Hamilton and Jefferson turned on whether Hamilton was correct to infer a power to create a corporation in the service of the enumerated powers.  It was self-evident that the object was national in scope.

But Hamilton noted that there were very real limits:

The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city

The federal government, even Hamilton, the man with the most expansive understanding of federal power at the time, argued, did not have a general police power.  And what is the police power, classically speaking, the power to regulate health, safety, and morals and other such things.  But Rosen wants to say that, under modern conditions, my visit to my doctor is a national concern. Ha!  To be sure, my doctor may buy products that are shipped interstate. And if the federal government allowed it, it might be possible to buy heath insurance across state lines (that would be nice).  In those cases there would be interstate commerce.   By my visit to my doctor is hardly interstate commerce--unless we allow, as Rosen implies, that there is no such thing as intra-state commerce.

And that brings us to another celebrated case--Gibbons v. Ogden.  That case involved the grant, by the State of New York, of a monopoly of shipping on the Hudson river.  The Court ruled, not unreasonably, that the Hudson is not an intra-state waterway. ItJus has borders on New York and New Jersey, and it ends at the Atlantic Ocean.  Hence such a monopoly grant was illegal.

This case matters because people on the Left often cite Justice Marshall's opinion to justfy an expansive reading of federal power.  Justice Sotomayor quoted it from the bench this week. But we need to keep in mind that the case involved shipping on a waterway that borders on more than one state, and that ends at the ocean. We should also read more closely what Marshall actually said:

Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description.

A clause that grants the federal government power regarding commerce among the states necessarily implies that there is such a thing as commerce that is local--the very thing that Rosen says does not exist. To be sure, he points to "previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women."  But close observers will note that those are not commercial activities at all.  If my visit to my doctor is interstate commerce, then there is no commerce that is not interstate. 

If that is what the people want, there is a simple remedy, one consistent with the constitution. Amendment. But somehow the amendment clause falls by the wayside in pursuit of the public good.

Rosen's argument is that under current circumstances the health care market is national.  H quotes a Representative from Massachusetts:

A national mandate would free Massachusettes[sic] from being "forced to subsidize through higher premiums and higher Medicare and Medicaid costs the uncompensated care of people in other states who do not have health insurance."

But others might reply that Rosen is attacking the notion that the states in our federal system are laboratories of democracy.  They will have diverse laws, and many different approaches to health care policy. He suggests that a state that passes a policy may not suffer from competition with other states. In other words, he presumes what he is concluding--that health care is naturally a national market.

And that brings us to a point that Walter Russell Mead makes eloquently.  America's health care system is simply too large and complex to be regulated by a bureaucracy in Washington that creates a uniform set of rules for a country as large and diverse as the United States.  Even by his own living constitution model, therefore, Rosen's argument fails.

First, they came for the Puerto Ricans.  The HHS mandate requiring sterilization and birth control coverage in health insurance was anticipated in the New Deal policy toward Puerto Rico. It is now plain how New Deal and successive leftist social engineering embraces all aspects of political, commercial, and family life.

The recent Republican presidential primary in Puerto Rico drew attention to this constitutional oddity--a commonwealth/colony of American citizens. But the contenders overlooked the most significant element of recent Puerto Rican history for American politics today.

Franklin Roosevelt appointed one of the architects of the New Deal, Rexford G. Tugwell as its Governor.  Serving from 1941-46, Tugwell followed Progressive ideology and transformed the University of Puerto Rico into a think-tank for liberal reforms for the island. He established a decades-long practice of using Puerto Rico as a laboratory for liberal policies, including birth control through sterilization and the pill.  

According to one historian (JSTOR link), heavily Catholic "Puerto Rico became the chief testing ground for the birth control pill."  For a while more women were sterilized there than in any other country in the world. These population control measures, tied with economic reforms, were intended to make Puerto Rico a "showcase for democracy" in the Cold War, a model of enlightened policy toward developing nations.

Bored by their lack of progress, scholars of Puerto Rico such as Oscar Lewis (author of the classic study La Vida) turned instead to that more exciting example of Cuba.

We don't need West Side Story to know that Puerto Ricans "like to be in America." But what happens when America becomes another Puerto Rico?

Three days of oral argument over the constitutionality of Obamacare begin Monday. C-SPAN will replay the oral argument later in the afternoons. It should be kept in mind that the reason we are even talking about the possibility of the Court overturning the law is one justice: Clarence Thomas (no relation to me, incidentally). The New Yorker gave this explanation of Thomas's key role in changing the Court last year.

Toobin writes several silly sentences but note the core of his argument, a warning to the left of his dangerous powers:

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

Conservatives should keep in mind that Thomas was nominated by a president not particularly beloved among conservatives--yet a man who stood by him when he came under vicious attack.

George Weigel contends "the Struggle over the HHS mandate isn't over" in today's NRO.

Despite the White House's rather successful efforts to reframe the media and congressional debate over the HHS "contraceptive mandate" as a right-wing jihad against "women's health" -- a cynical ploy aided and abetted by Rush Limbaugh's one-man circular firing squad -- the real battle against the mandate and in defense of religious freedom has continued.

Weigel cites heavily from Cardinal Dolan's letter (PDF here and USCCB news release here) to American bishops. The letter resists Obama's efforts to demagogue the issue, explores legislative and judicial remedies to the mandate and, "at last, take[s] aim at those within the Catholic family urging an acceptance of the administration's bogus 'accommodation.'" Required reading for those following this incredibly important issue.

When Obama decided to attack Catholics (and religion, in general) by forcing a contraception, sterilization and abortion insurance mandate on private institution, a question arose: Did he not foresee the backlash, or was the goal of subjecting conservative religion to liberal feminism so great that it was worth the fight? I tend to assume the latter - Obama has proved a classless and spiteful president who has consistently demeaned the office by lashing out at private individuals and institutions who dare disagree with his ideology (e.g., the Koch brothers).

The issue is multi-dimensional and profound in relation to both political theory and practical consequence. On the former, see the Conference of Catholic Bishops' website, which declares absolute opposition to the president's violation of "conscience rights and religious liberty." According to Cardinal Timothy Dolan, president of the USCCB, "Never before has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience. This shouldn't happen in a land where free exercise of religion ranks first in the Bill of Rights."

As to the practical consequences, Ed Morrisey at Hot Air asks, "What if Catholic bishops aren't bluffing?"

Earlier this week, Francis Cardinal George of the archdiocese of Chicago sent a message to parishioners in Barack Obama's home town that imposition of the HHS mandate to fund and facilitate contraception, abortifacients, and sterilization would force the Catholic Church to close its hospitals, clinics, schools, and all other organizations that would otherwise have to comply.  "Two Lents from now," Cardinal George warned, "unless something changes, the page [listing Catholic organizations] will be blank."  At the time, some commenters wrote that this has been Obama's plan all along -- to force religious charities out of business to make people more dependent on government.  Others, including myself, figure that Obama just thinks the bishops are bluffing, and wants to engage in a high-stakes bout of brinksmanship to force them to kneel to secular authority over doctrine.

But how high are those stakes?  In my column for The Fiscal Times today, I did a little research just on Catholic hospitals and their significance in American health care.  As it turns out, this bet involved nearly $100 billion in annual costs and about one-seventh of all hospital beds in the US -- and that's not all:

The Catholic Church has perhaps the most extensive private health-care delivery system in the nation. It operates 12.6 percent of hospitals in the U.S., according to the Catholic Health Association of the U.S., accounting for 15.6 percent of all admissions and 14.5 percent of all hospital expenses, a total for Catholic hospitals in 2010 of $98.6 billion. Whom do these hospitals serve? Catholic hospitals handle more than their share of Medicare (16.6 percent) and Medicaid (13.65) discharges, meaning that more than one in six seniors and disabled patients get attention from these hospitals, and more than one in every eight low-income patients as well. Almost a third (32 percent) of these hospitals are located in rural areas, where patients usually have few other options for care.

This is a case of clear principles: a vote for Barack Obama in November is a vote against religious liberty and accessible health care in America. All men of good will and sound judgement should ensure that he does not have the opportunity to erode America's sacred liberties and public services any further.

We misheard Rush on the 30 year-old law student demanding free contraception, via Obamacare mandate.

UPDATE: Now he apologizes.

NLT is not being spammed: In light of the president's recent health insurance coverage edict, I propose that the President require insurance corporations to make Viagra free for all males over the age of __ (subject to compromise). My man-date poses no free exercise of religion problems (the Church approves of the drug, and not of the alleged compromise). True, it might lead to grandpappy Newt and Bob Dole making up, and re-excite Chris Matthews. But this is how bureaucracy can help strengthen the family. (Not that it would be available only to married men.)

Don't go wobbly on us, Barack. Use the mighty powers you wielded for free contraceptives on behalf of free Viagra. We Medicare-constrained geezers are watching you! Will you grant us a dream older than Aristophanes, and fulfill the Economic Bill of Rights our only greater President only wished for?

In Liberty Fund's new blog Michael Greve points out how powerful and efficient bureaucracies can be when they have determined leaders. The issue here is HHS rules requiring religious organizations to provide contraception coverage in their employee health plans. In sum:

Follow the progression: first comes a statutory text of sufficient ambiguity ["Obamacare"] to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it's been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.

Since the Supreme Court will be hearing arguments about the constitutionality of Obamacare, it might be worth looking back at Lawrence Tribe's claim that there is a "clear case for the law's constitutionality."  Moreover, he takes a smart rhetorical strategy, flatterig the Court's conservatives for being above politics. Hence, he claims:

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is -- a political objection in legal garb.

But what can Professor Tribe mean that the case is "clear"?  To answer that question, we should turn to his other writings, particularly his Constitutional Choices, in which he writes:

Whenever I suggest in these essays, for want of space or of humility, that one or another decision seems to me "plainly right" or "plainly wrong," or that some proposal or position is "clearly" consistent (or inconsistent) with the constitution, I hope my words will be understood as shorthand not for a conclusion I offer as indisputably "correct" but solely for a conviction I put forward as powerfully held.

According to the good Professor, therefore, to assert that any constitutional case is clear, is to pound the table.

In fairness to Tribe, his claim may only be that the heath law is consistent with a chain of precedents that go back to the New Deal.  After all, Tribe believes in a "living constitution."  But, as we have noted before it might be time for Tribe to stop clinging to his horse and buggy constitution, and join the 21st century.

Milton Wolf writes:

Class, for lack of a better comparison, is like bladder control: You either have it or you don't. When it comes to forcing Obamacare upon America with dishonest gimmicks, the Democrats have no class.

Of course, Dr. Wolf - who happens to have the distinction of being President Obama's cousin [At last, a legal relative!] - is speaking with a double tongue, implicating the Democrat's CLASS Act, "a major entitlement program tucked quietly within the 2,700 pages of Obamacare." This portion of Obamacare has been found "totally unsustainable" (in the words of HHS Sec. Kathleen Sebelius).

Doubtless, the media finds this surprising. Or unexpected. Or somehow the fault of partisan opponents to Obamacare. Nevertheless, Obamacare is beginning to crumble.

Wolf predicts that "Obamacare will not survive."

Even if this ill-conceived law does somehow miraculously withstand the potent legal and political challenges, it cannot survive the unforgiving laws of economics. So when the president forces an unconstitutional law on the nation against the clear will of the majority of Americans and it is proving itself to be wholly unsustainable, there's really only one conclusion you can reach about Obamacare: "No viable path forward."

This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives

So reads the majority opinion of a U.S. appeals court decision in Atlanta today, siding with 26 states by ruling unconstitutional Obamacare's individual mandate clause. Interestingly, the court did not overturn Obamacare as a whole, but held the individual mandate severable. This seems contrary to the wording (or omissions) of the law. Nonetheless, the ruling sets up a split on the federal circuit and almost ensures Supreme Court review.

The next Supreme Court term runs from October 2011 - June 2012. Obamacare is thus poised as a key issue for the 2012 election.

In other news making its way all the way around the world, the Ohio Statehouse in Columbus is apparently about to become the first state capital building in America with a fully-stocked bar.

God I'm proud of my state.

Or that other guy named Marx: "Those who worry about socialized medicine won't be happy to learn that according to Lulzsec the password for flag@ whitehouse.gov was 'karlmarx.'"

Will the Dem victory in the NY 26th make the GOP retreat from Ryan?  Henry Olsen notes the loss of blue-collar voters, while a local Buffalo reporter vividly portrays the maladroit GOP contender.    

The politics of the Ryan roll-out did not boost my confidence in the possibility of its success.  Talk about the importance of "beginning a debate" is really an invitation to demagoguery, as was the case in the 26th.  Churchill said that in wartime truth needed a bodyguard of lies.  In this war the other side had the lies, while Ryan had a kind of inconvenient truth.  Simply unveiling a controversial budget plan and expecting reasonable debate to ensue is an act of self-immolation.

Since the passage of the Patient Protection and Affordability Care Act (PPACA) by a Democrat-controlled Congress and President Obama, the Department of Health and Human Services (HHS) has given out 1,372 waivers to part of the law. Of the 204 most-recently approved Obamacare waivers, 38 went to restaurants, hotels, and nightclubs in Nancy Pelosi's congressional district--almost twenty percent. Three entire states have been granted exemptions from the law, the most recent being the state of Nevada--thanks to the work by one of the Obamacare architects, Senator Harry Reid (D-NV). The vast majority of those who have received waivers are large corporations and labor unions such as McDonalds and the Teamsters.

Most of these waivers are not complete exemptions from the law, and so far do not appear to be permanent. They mostly target one section of the law that makes it illegal to place annual or lifetime limits on health plans, and most of the big businesses and unions in question currently offer limited coverage plans to some employers that would be rendered illegal due to Obamacare. Without the resources to be able to afford the more comprehensive coverage demanded by the law, businesses would need to drop coverage for their employees altogether in order to avoid being penalized. Rather than do that, they have lobbied HHS to get waivers that exempt them from this provision in the law.

The Obama Administration has justified this waiver practice by saying it avoids disruptions to some people's current health plans. It is worth noting that Congress did include language in PPACA that explicitly grants HHS authority to grant waivers to other particular provisions of the law, but did not make such permission for HHS to arbitrarily grant waivers for this portion. Thus it is no surprise that, without authority and thus without guidelines from Congress, the recipients of these generous waivers have been the wealthy, the well-connected, and the politically muscled rather than the struggling small businessman or the Midwestern farmer.

This waiver practice represents gross contempt for the rule of law by establishing an unequal application of the law, resulting in some being more burdened by Obamacare than others. It favors those wealthy and powerful enough to work their way through the complicated provisions of this overreaching boondoggle, opening the door for completely unacceptable corruption and favoritism. The waivers also serve a political purpose of allowing the Obama Administration to placate their political allies and wealthy corporations for a few years until the full law comes into effect, helping to mute criticism of Obamacare and keep its bad provisions from being fully realized in the mean time; they are betting on the belief that Americans would notice if tens of thousands of McDonalds employees suddenly lose their health plans, but not if a dozen people at the mom and pop place down the street do.

Some in Congress are doing what they can to rein in the Obama Administration and reinforce the rule of law. Congressman Michael Rogers (R-MI) and eighty others are sponsoring House Resolution 984: Health Care Waiver Fairness Act of 2011, which requires the administration to establish an official waiver process with clear, particular guidelines. The summary of the proposed law provided by GovTrack.us is:

"Health Care Waiver Fairness Act of 2011 - Amends the Patient Protection and Affordable Care Act (PPACA) to require the Secretary of Health and Human Services (HHS), the Secretary of Labor, and the Secretary of Treasury to establish waiver processes under which the administrator of a health plan, an employer, an individual, or other entity may seek to waive the application of a health insurance coverage requirement under PPACA. Sets forth PPACA requirements that may be waived, including those related to minimum essential coverage and employers offering health care coverage to employees. Establishes requirements for the waiver process, including requiring submission of a statement describing how the imposition of the PPACA requirement would result in a significant decrease in access to coverage or a significant increase in premiums or other costs for such plan, employer, individual, or entity. Deems to be approved any waiver including such a statement. Requires the Secretary of HHS to conduct a public awareness campaign of the waiver process with funds made available for the Prevention and Public Health Fund."

Congress would do well to pass the Health Care Waiver Fairness Act in order to allow everyone who stands to suffer from Obamacare's implementation to have the same opportunities as the labor bosses and the Wall Street executives to receive a waiver. While it is important to take the seeking and giving of waivers as further proof that Obamacare is bad policy and thus should be repealed or radically amended, there is an even more important thing to protect here: respect for the rule of law.

We must remember that laws, not men, rule us. Before the law, with Justice deaf to our pleas and blind to our station in life, we are equal. When we allow men to become the arbitrators of their own personal form of law, politics and corruption overcome unprotected Justice and we find ourselves in a land of inequality and uncertainty. In engaging in this corrupt waiver practice, the architects and enforcers of this far-reaching health care law express contempt both for the power of Congress and the rule of law, and insult the common decency of our political order. Without the rule of law, we are without the protections of liberty and justice. It is shameful, and it must stop.

The Sage of Mt. Airy reminds us what's really wrong with Gingrich's opportunistic attack on Paul Ryan:  as a deprivation of liberty, social engineering is by definition left-wing.  Moreover:

Use of the phrase belies a fundamental belief that what currently divides our country can be adequately captured on some continuum of thought, left to right.  But that notion itself belies an even more fundamental belief that, actually, nothing divides our country, that it's all a matter of degree.  The modern, nanny-state leviathan is the norm; we're only arguing about more or less, (Always privileging "more", of course.)

Ross Douthat writes:

Asking a population that's increasingly brown and beige to accept punishing tax rates while white seniors receive roughly $3 in Medicare benefits for every dollar they paid in (the projected ratio in the 2030s) promises to polarize the country along racial as well as generational lines.

Wouldn't it be more accurate to say, they will receive "roughly $3 in Medicare benefits for every dollar they have paid to benefit those who have retired before them"?

NY Times trash talks the Wall Street Journal:  "The [Pulitzer] awards this year included other notable firsts. The Wall Street Journal won its only Pulitzer since Rupert Murdoch bought the paper in 2007."  The WSJ won this year for its Obamacare editorials, written by 28-year old Joseph Rago.

Murdoch lives to destroy the NY Times, and it knows it.  The WSJ is now clearly the daily paper of intelligent readers.

Among other prizewinners, the LA Times won an award for its investigation of the Bell, California city government salary scandal, and Ron Chernow won for his bio of George Washington.  In a setback to Lincoln scholarship, Eric Foner won for his book on Lincoln and slavery.

Ben Boychuk had this interview, last November, with Chernow.

I'm pretty critical of WaPo for their liberal bias, but today they dished it out to the Democrats. In a post titled "Gifts of bogus statistics for the health-care law's birthday," the Post reports:

House Democrats held a birthday party last week for passage of the health-care law. ... Both Democrats and Republicans can pick and choose numbers and studies to make their case, but we found that generally McConnell did not exaggerate or use bogus figures. In fact, he correctly described a Congressional Budget Office analysis suggesting a potential reduction in employment of 800,000 jobs.... By contrast, House Democrats appear to show little hesitation about repeating claims that previously have found to be false or exaggerated.

WaPo then damningly fact-checks Pelosi and the blue-boys on job creation, debt reduction and increased health coverage.

Obama has rescinded a federal conscience clause "designed to protect health workers who refuse to provide care they find objectionable on personal or religious grounds." The Bush-era law was principally intended to protect Catholic health-care facilities (accounting for more than 20% of U.S. admissions) and religious workers by allowing them to opt out of providing abortifacients such as Plan B.

Obama and Democrats apparently have no interest in protecting Catholics. If only these hospitals were Muslim, or the workers were Democrat-voting union members, I'm sure Obama devotion to diversity or self-interest would have softened his heart. But a man who refused to oppose infanticide is unlikely to sympathize with pro-life Catholics.

Obama's foreign policy is often criticized for punishing friends and rewarding enemies. At least domestically, Obama's Chicago-style instincts are just as one would expect.

A prime example of the Obama Administration's lawless behavior is its exemption of entities from the legislation Congress passed and he signed into law--waivers.  The sober Columbia University law professor Philip Hamburger (see his Separation of Church and State) has pointed out how the Obama Administration has undermined the rule of law and the separation of powers, and led us back into the Middle Ages with its practices:

The Department of Health and Human Services has granted 733 waivers from one of the statute's key requirements. The recipients of the waivers include insurers such as Oxford Health Insurance, labor organizations such as the Service Employees International Union, and employers such as PepsiCo. This is disturbing for many reasons. At the very least, it suggests the impracticability of the health-care law; HHS gave the waivers because it fears the law will cost many Americans their jobs and insurance.

More seriously, it raises questions about whether we live under a government of laws. Congress can pass statutes that apply to some businesses and not others, but once a law has passed -- and therefore is binding -- how can the executive branch relieve some Americans of their obligation to obey it? ....

As it happens, waivers have a history. In the Middle Ages, the pope granted waivers, known as dispensations, and English kings soon followed suit....

The Florida case of 26 states vs. Obamacare has just been decided ... against Obamacare.

The judge ruled the individual mandate that requires all Americans to purchase health insurance invalid and, according to the decision, "because the individual mandate is unconstitutional and not severable, the entire Act must be declared void."

UPDATE: The judge stayed his ruling pending SCOTUS review, so Obamacare is still in effect. Obamacare is thus 2-2 in the federal courts, having been found constitutional by two courts and unconstitutional by two (though the ruling delivered today responded to complaints by 26 states and the National Federation of Independent Business).

This ruling is a symbolic victory for Republicans at the moment, as it will take many months for the case to arrive in the Supreme Court (though it is now sure to rise to the high court). However, in that time, the spector of judicial repeal will loom large over the Democrats while Republicans can focus on the need to have a replacement bill prepared for the inevitable overthrow of Obama's unconstitutional power-grab.

"Clearly,  the nation's founders serving in the 5th Congress, and there were many of them, believed that mandated health insurance coverage was permitted within the limits established by our Constitution.  The moral to the story is that the political right-wing has to stop pretending they have the blessings of the Founding Fathers as their excuse to oppose whatever this president has to offer.  History makes it abundantly clear that they do not."

Well, what do you think?

CNN is reporting that a study purporting to connect autism to vaccinations was an "elaborate fraud": 

The now-discredited paper panicked many parents and led to a sharp drop in the number of children getting the vaccine that prevents measles, mumps and rubella. Vaccination rates dropped sharply in Britain after its publication, falling as low as 80 percent by 2004. Measles cases have gone up sharply in the ensuing years.

I wonder what Jim Carrey and the rest of the anti-vaccination fanatics think about this revelation?

Rumor has it that the study's author, Dr. Andrew Wakefield, is up for a job at the University of East Anglia's Climate Research Unit.

An interestig debate has broken out at Commentary's blog between Peter Wehner and J. E. Dyer over Sarah Palin's criticism of the national healthy-eating campaign.

Wehner takes Palin to task:

Michelle Obama has encouraged parents to make sure their children exercise and eat healthy and has emphasized more nutritious school lunches. Ms. Palin seems to view this as an attack by Leviathan against individual liberty and parental authority. "What [Mrs. Obama] is  telling us is she cannot trust parents to make decisions for their own children, for their own families in what we should eat," according to Palin. "Just leave us alone, get off our back and allow us as individuals to exercise our own God-given rights to make our own decisions." And at a visit to a Pennsylvania high school, she handed out cookies to students. The reason, she wrote on Twitter, was to "intro kids 2 beauty of laissez-faire" amid a "Nanny state run amok."

This is worse than silly; what Palin is doing is downright counterproductive.

For one thing, nearly one out of three children are overweight or obese. The annual cost of treating obesity and related preventable chronic conditions like diabetes, heart disease, and orthopedic issues constitutes fully 16.5 percent of all U.S. spending on medical care ($168 billion).

Dyer begins by noting that Wehner has recently been arguing that conservatives must make a moral case for economic freedom.  Ultimately, he thinks that mocking the First Lady's efforts is probably not prudent, but the heart of the argument is here.  The moral case for economic liberty:

cannot stand alone. Economic conservatism is intrinsically linked to political liberty, a liberty meaning not just the right to speak freely on political matters and to vote, but the right to set limits on the central government's power and regulatory reach. This debate we have had, if possible, even less over the past two decades than the debate on the moral foundations of conservative economics. This very question is what motivated the American colonists to declare independence from the British king, but our public discourse today has fallen into a set of unexamined bromides on topics like the meaning of political liberty and the proper relation of man and the state.

In this vein, I took particular notice of the following passage from Peter Wehner's post today on Sarah Palin mocking the First Lady's anti-obesity campaign.

... the problem of childhood obesity is real. And there are entirely reasonable steps that can be taken to address it, including (to name just one) banning vending machines from schools. Does that constitute the "nanny state run amok"?

I understand the question is meant to be rhetorical. But there is actually a very large segment of the American population that would answer, "Of course." The central government's interesting itself in our obesity because that government has made the cost of our health care "its" problem - and proposing therefore to ban vending machines from schools putatively governed by local school boards and the states - can legitimately be considered at odds with the American idea of government as limited, constitutional, and federal. This arguably puts the proposition at odds, by extension, with the American idea of the citizen, the state, and natural rights. 

The New Republic's Noam Scheiber suggests, by implication, that the web will make it very difficult, if not impossible, to have a single, large bureaucratic organization in charge of health care for 300 million people.

Powerline cites Michael Fumento's powerful and contra-PC stance against excessive AIDS funding. Domestically, Fumento's argument that AIDS research receives an egregiously disproportionate share of public funding is undeniable - and his corollary thesis that this imbalance was founded and is perpetrated upon a series of lies and misinformation is damning of the AIDS lobby (particularly when one fully recognizes that the cost is literally a matter of life and death for those needlessly dying of unfunded diseases for which cures might otherwise have been discovered).

All of this is basically irrefutable in America. Research funds are finite, and should be used to the greatest benefit of the greatest number of people - particularly targeting diseases which cannot otherwise be prevented. Regardless of liberal stammering, AIDS can be fully prevented through responsible personal behavior - as the link notes, heterosexual men are more likely to contract breast cancer than AIDS. AIDS research is overfunded, and so cancer, Alzheimer's and Parkinson's (among other afflictions far more deadly than AIDS) are underfunded.

My only observation would be that AIDS is a far graver matter overseas - particularly in sub-Saharan Africa, where infection rates may exceed 1/3 of the adult population. Yet generally unpreventable illnesses such as respiratory infections, diarrheal diseases and malaria are just as prevalent - and cancer, heart disease and other "common" causes of death are just as prevalent overseas as in the U.S. Thus, there is a greater global rationale for AIDS research than exists in the U.S., yet even those areas would profit more abundantly from a reallocation of some funds away from AIDS.

But medicine is money, and money is politics. The AIDS lobby - intimately associated with the homosexual lobby, for quite understandable reasons - has dominated the political game and confiscated an incredible amount of money for their efforts. I sympathize with their compassionate self-interest, but research funds should be allocated by need and promise of progress - political correctness and unethical lobbying tactics result in increased deaths, both here and abroad. 

The 20-state lawsuit against Obamacare has been given a greenlight to proceed by a federal judge in Florida, who denied the administration's claim that the law is plainly constitutional under the commerce clause. The judge denied the administration's legal argument (which contradicted their political rhetoric) that "individual mandates" were a tax (and thereby constitutional under the government's power to tax). Transcript here.

The next hearing is in December, so this is the state of affairs until the election. Like many things pertaining to the Obama administration, it is in Limbo.

A U.S. District Court in Michigan has refused a request for injunction of Obamacare's individual mandate provision (requiring everyone to buy health insurance or face a federal penalty). The opinion lays out a brief history of Commerce Clause adjudication in the Supreme Court before addressing the merits of the arguments at hand. It's worth a read, particularly because it is short, legible and seemingly intended for a non-legal audience.

The significance of the ruling is only of particular interest because it is the first official ruling on Obamacare. It is only a denial of the plaintiff's request for injunction - the court was merely required to find a reasonable basis for constitutionality (not actual constitutionality) for denial. The ruling will be appealed.

Further, two independant suits have been brought in other courts. A federal judge already refused to dismiss a challenge to Obamacare in Virginia, meaning to case will proceed. And another suit brought by twenty states and small-businesses is pending in Florida. A victory in any of these three courts would demand Supreme Court review of the law.

Should that day come, it will be of particular significance to Obama and the Democrats. The lack of a severability clause in the law, requiring that the whole law be held void if a single provision is found unconstitutional, could swiftly and easily effect the end of Obamacare. The principle acheivement of the Obama administration would not only be nullified, but it would be found unconstitutional and many Tea Party criticisms would be vindicated.

A heavily reduced Democratic presence in Congress would leave the president with a difficult decision: accept defeat or compromise with Republicans. The loss of a near-super-majority in Congress will likely prove crippling to a president so unwilling to compromise.

Imagine that you are president.  Your party has passed a major overhaul of health care.  However, on the eve of midterm elections you learn that about a million people, many (perhaps most) of whom normally support your party, will lose their health care coverage as a direct result of provisions of that law.  Do you:

1) Admit that the law, which few if any legislators read beforehand, was a mistake, and work to repeal it.

2) Offer exemptions to the law to the companies that employ these people, effectively putting the problem off until after Election Day.

Click here for the answer.

Character, so goes the saying, is what you do when you don't think anyone is watching. Relevant wisdom when considering Ohio Democratic Party Chairman Chris Redfern's on-tape, profane disparagement of Tea Partiers and others opposed to Obama-care. Redfern explained that he thought the cameras had stopped rolling.

Chris Littleton, the president of the Cincinnati Tea Party, responded that just because Redfern didn't know the cameras were rolling doesn't mean his point of view changes. He added that all the accusations that Tea Partiers are racist or hateful are a "projection" of opponents' own thoughts and he'd be willing to explain to Redfern why the health care law is problematic to Tea Party participants.

It's helpful to remember that "those f-ckers," on behalf of whom Mr. Littleton would be speaking, constitute the 61% of voters who favor repeal of the health care law. One wonders just how the Ohio Democratic Party really views Ohio's voters.

One of the many ironies of the current situation is that, on the right, there is a mismatch between the stridency of rhetoric and the radicalism of policy proposal.  The more established conservative media figures often have an unusual relationship to policy.  Their policy bark is more radical than their bite.  In Liberty and Tyranny, Mark Levin is highly critical of Social Security and Medicare as bankrupting statist projects designed to tie down the people.  His main policy proposal is to fight against nationalized health care.  In  Arguing with Idiots, Glenn Beck took a similar path.  He bashed the NHS, Michael Moore and pointed out how Medicare's actual costs have far outstripped the initial cost projections.  As a positive program, he mentioned some information technology and productivity enhancing developments but there was little on policy.  

Neither guy came out for the actual repeal of Medicare (though Levin seemed to make an implicit argument for allowing younger people to somehow opt-out of Medicare.)  The focus is less on undoing the resented past, than to prevent the next state intrusion into medicine.  Medicare isn't going away, but we can learn from the problems of Medicare to stop nationalized health care.  The result is a combination of rhetorical maximalism and policy stand patism. The result is also a ratchet effect in which conservatives resentfully acquiesce to the last expansion of state power over health care and do battle against the next one, and then, when that fight is lost, throw up new defenses against the next statist proposal.  The result seems to be the super slow motion government takeover of health care.

I'm not singling out Levin and Beck.  This strikes me as having been the general position of most conservatives since at least the mid-90s.  I'm irritated at hearing liberals argue that Obamcare's (at least it's current iteration) combination of individual mandates, coverage mandates, and subsidies was the conservative position on health care reform because similar proposals had been floated by some guy at Heritage, Orrin Hatch and Mitt Romney.  Just because a position was taken up by some think tank guy I never heard of, an FOTK (Friend of Ted Kennedy) Senator I didn't care about, and a politician I never trusted didn't make it the conservative position.  I knew what I thought, what the other conservatives I talked to thought, what I read, and what I heard and saw in the broadcast media.  The conservative position was that government involvement had gone too far already and , minus some tweaks like tort reform and (later) interstate purchasing, the government should leave the private health care system alone.  

This defensive mentality creates a situation in which whenever liberals move policy closer to government-run health care, they win and when they fail, they don't lose - because policy doesn't go backwards.  This has implications for the future of Obamacare.  There are structural reasons to think that Obamacare won't be repealed anytime soon (though Republicans should try.)  The danger is that, five or seven years from now, conservatives will have come to a resentful acquiescence of Obamacare and thrown up a new set of defenses that will be worn down over time as the current iteration of Obamacare makes existing problems of medical inflation worse. Based on the experience of Massachusetts, it is reasonable to expect that Obamacare will lead to an even faster increase in insurance premiums.  This will, over time, lead liberals to advocate for some combination of price controls and a government-run insurance option that will crowd out private health insurance.  Conservatives will point to the problems caused by Obamacare as a reason not to go further in the direction of government-run health care.  They will be right, but a merely defensive policy position will be overrun.  The premium increases really will be unsustainable and liberals will only have to win the policy battle once.  A mere repeal of Obamacare strategy will also be problematic because with premiums much higher than at present, people will be terrified of losing guaranteed issue and government subsidies in the hope of declining insurance prices that might never happen.

If conservatives really want to stop a government takeover of health care, they (and I don't just mean some think tank nerds and Paul Ryan) are going to have to go on the policy offensive and popularize the arguments for a more free-market driven health care system and a series of policies that will help people of low income and preexisting conditions participate in such a system.  It means more than just undoing Obamacare, it means creating a more free market health care policy than we had before Obamacare.  This strategy will have to be specific.  It will have to offer real world benefits and be constructed in such a way that it can be implemented a little at a time with victories here and there that increase the number of health care consumers that act like health care customers and are better off for doing so.  We should move to a strategy on health care in which winning means more than temporarily not losing. 

Reihan Salam points us to an old column by Mark Thompson post in which Thompson argues that conservatives usually failed to offer effective health care reform proposals because they were in thrall to the radical antistatism of Ayn Rand.  I think that is false and could lead to confusion about the course of the debates (over decades) that led to Obamacare.

I'm going from my personal experiences both as a consumer of right-leaning media and from conversations with conservatives over the last twenty years, but my impression is that the reason radically reforming health care has not been a huge priority for most conservatives (as opposed to some wonks and members of Congress) is because most conservatives were mostly happy with the existing system.  It seemed like a private system.  You worked for a private company that contracted your insurance to a private insurance company.  You went to your doctor who was not a government employee.  The system of tax subsidies and regulations that made this somewhat unnatural system  the default was mostly invisible.  You had access to timely and very high quality care.  You heard stories about lines and waiting lists in the socialized medical systems of Britain and Canada.  America had a system of private health care and it was the best system in the world.  Rand had little or nothing to do with it.  In fact, if you were to try to get all Randian and eliminate the tax subsidy for employer-provided health insurance for most conservatives and also Medicare for their parents (not replace them with other, more consumer-driven systems that include government subsidies, just get rid of them as Rand would want) most of these same conservatives would try to tear you apart - politically of course.

The system had problems.  For one thing, premiums seemed to be going up to quickly.  Both the left and right had explanations and likely suspects for the rise in premiums.  The suspects included greedy insurance companies, greedy trial lawyers, greedy pharmaceutical companies, illegal immigrants, and uninsured people who were clogging up the high-cost emergency rooms.  People mostly weren't told by conservative popularizers and mostly didn't want to hear that much of the spike in premiums was inherent in the system of comprehensive employer-provided health insurance that conservatives were defending from liberal attempts to "socialize" medicine.

That  isn't to say that conservatives weren't in favor of some changes or that the changes weren't worthwhile.  They were in favor of tort reform, regulatory changes to make it easier for small businesses to work together to buy insurance at lower rates, and regulatory changes that would allow people to buy a wider range of insurance products (including high deductible/lower premium plans) and bypass state-level regulations that were driving up the cost of health insurance.  I remember some mentions of Health Savings Accounts, but not in any detail.  But the conservative reforms weren't really the priority on health care policy.  Stopping the liberal Democrats from destroying America's best-in-the-world private health care system was the priority.  Oh, the Democrats are filibustering health care reform?  That just shows that the Democrats are in the pockets of the trial lawyers and don't really care about real health care reform.  Lets move on to cutting marginal tax rates.

In any analysis of how most conservatives acted on the health care issue from 1993-2010, I don't think you can overstate the investment of most rank-and-file conservatives to the existing system.  There were good (or at least understandable) reasons why the Republican congressional leaders offered a plan of tort reform and interstate purchasing of health insurance rather that the Ryan health care plan as their alternative to Obamacare.  That is where most conservatives probably are, and any plan that will destroy the system of employer-provided health insurance (which the Ryan plan would) will face intense public skepticism - including from conservatives who now get their health care through their employers.  And this gives some idea of the demands of finesse and public education that conservatives wonks and politicians will face in advancing the cause of free market-oriented heath care policy.

As this post on the Corners notes, it's amazing what's in the Democrats' health care law. Now that it has passed, we can find out what's it it. For example:

 If a self-employed individual makes numerous small purchases from an office supply store during a calendar year that total at least $600, the individual must issue a Form 1099 to the vendor and the IRS showing the exact amount of total purchases," the IRS release said.

The rule applies to all businesses and charities too.

Matthew Yglesias has an interesting post about the slow rate of organizational innovation in health care.  He is right that the slow rate of organizational innovation is helping fuel cost inflation in health care, but I think his example tends to tell against the kinds of policies Yglesias favors.  Yglesias uses the example of IKEA and earlier Nordic furniture producers.  IKEA isn't as good, but it is lots cheaper so it attracted lots of customers.  Yglesias list psychology as one of the reasons people don't want that kind of organizational innovation in health care.  Who wants not-quite-as-good cancer drugs?  That is partly true, but not every form of medical care is that high stakes.  You might go for your routine care to a doctor who is ninety percent as good as the best doctor in the world if the fee was one-tenth as much.  Or would you?

Part of the problem is that health care lacks customers in any recognizable form.  To borrow an example from David Goldhill, imagine if we paid for "furniture insurance" which was really just a form of comprehensive prepayment for furniture.  Imagine you sent your furniture bill to an insurance clerk to review your purchases and have the insurance company reimburse the furniture store.  Now imagine the government forces you to buy furniture insurance and forces the insurance companies to provide comprehensive coverage ("no longer will Big Furniture deny people access to needed end tables").  You might as well buy the good Nordic furniture.  It doesn't cost you that much more.  But it is a shame about how those furniture insurance premiums keep going up.  Perhaps we need a law that extends furniture insurance coverage through government subsidies, and makes it even more comprehensive.  Then when costs really spiral out of control and the "insurance" system collapses, government can then directly tell what furniture to buy and put us on waiting lists for purchase.

And no I'm not against health insurance, but I am in favor of health insurance reform that allows health care consumers to act more like health care customers.  Then we might get some of that innovation that saves people money, time, and maybe even gives them more security than the current system.