This Spring Break Potpourri of stuff that happened through the Health Care debate and other Capitol Hill happenings that are worth knowing for policy questions on the AP Test.
First for fun, the SNL current and former cast donated their time to be directed by Ron Howard for a 5-minute skit of 5 former US Presidents advising President Obama on government regulation of banks and credit. Jim Carey's advice as President Reagan might evoke a thumbs-down from some for student viewing, but this will be a nice opening to discuss government regulation in current context for many.
I embedded the video in my article here: http://tinyurl.com/y98cxjz
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From Senate.gov:
Reconciliation is rarely used; it is used much more in the Senate; it has generally been used to "tidy up" budgetary figures in a bill, rather than alter the character and provisions of a bill; Obama was against it as a Senator but has encouraged it for the health care bill since Scott Brown won his Senate seat.
"Deem and Pass" is just a nightmare to explain. It involves House members voting for procedural provisions that would allow the bill to move forward ("pass") without actually being on the record for casting a vote in support of the bill.
A blog post on the New York Times does the best job of explaining it that I have seen:
http://prescriptions.blogs.nytimes.com/2010/03/16/passing-legislation-without-voting-on-it/?scp=1&sq=passing%20health%20care%20legislation,%20tucked%20in%20a%20rule&st=cse
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From CBS2School:
Bracket Buster
March Madness this year has lived up to its name. We are all mad because our brackets have been completely decimated by the number of low seeded teams who have advanced. Even the ratings are down for CBS. It appears we do not want to watch underdogs play. They cost us big, literally.
Looking back at the Obama health care debate there was an equally big upset that made the difference. That score broke the bracket wide open and allowed the Democrats to achieve a victory that had eluded them for a generation.
The Congressional Budget Office provided the score that made the difference. Facing angst against another big government program, the Congressional Budget Office (CBO) scored Obama’s health care reform as not only budget neutral but also a bill that would reduce the federal deficit by trillions of dollars. The CBO substantiated Obama’s claim that his plan would not “add a dime” to the deficit.
What next? Butler will advance to the Final Four?
The CBO reported that Obamacare, costing close to 1 trillion dollars, would actually reduce the federal deficit by over 1 trillion dollars. Without that report health care reform would not have passed.
Obama and the Democratic leadership could boast that health care reform was not another big government program but a plan that would shrink government liability.
The CBO numbers gave the Democrats cover. As laughable as those numbers looked on face value, the integrity of the CBO allowed Democrats to pass a giant new entitlement program under the pretense that it would save money.
What is the Congressional Budget Office (CBO)?
The Budget Impoundment Act of 1974 created the Congressional Budget Office. The CBO was created to be an objective, nonpartisan federal agency responsible to give timely analysis to economic and budgetary decisions. It currently employs over 250 analysts and has an annual budget of close to $50 million. Douglas W. Elmendorf is the current Director. Speaker of the House Nancy Pelosi appointed him.
Though many have criticized the CBO projections, history would suggest that their forecasts tend to overstate deficits. Their projections often underestimate economic growth. Our gut says not this time.
Certainly the Democrats are hoping the CBO score of health care reform is true. They have pinned their future on these CBO numbers. If health care reform does in fact reduce the federal deficit the Republican rhetoric will be quieted. If so the CBO will have busted another bracket. This time it will be the Republican racket.
The impact of their last score, however, will mean the CBO will be scrutinized more than ever. In the past we have trusted their nonpartisanship. Republicans will not forget the role the CBO played in passing health care reform.
This trust may foul out before playing a role in the next big game.
Constitutional challenges to the Health Care Bill
From Harvard's Carl Herman:A law school grad and writing colleague, Ryan Witt, just wrote a useful article that has topical importance for students: An analysis of the constitutional challenges to the health care reform bill.
So is the bill unconstitutional? The most honest answer is no knows for sure. A law like this has never been passed and therefore no clear precedent applies. Georgetown law professor Randy E. Barnett seems to give credence to the constitutional challenges to reform but others such as Professor Timothy Jost at Washington and Lee University suggest the legislation is clearly constitutional. So some very knowledgeable people have contrary opinions.
Here is a breakdown of what we do know about the Constitution as it relates to the legislation.
The Individual Mandate and the Powers of Federal Government
First the legislation does present a new case in that it proposes to force individuals to buy insurance from a private companies. If individuals do not purchase insurance they will be fined approximately $700 or 2.5% of their income whichever is greater. There are some exceptions granted based on religious objections and financial hardships.
Now there are some similar laws but nothing that goes quite this far. For example states require individuals to have insurance in order to drive a car but if individuals do not want to obey that law they simply can chose not to drive. Under health care reform everyone would need to purchase insurance. People are also automatically taxed for Social Security and Medicare but these taxes are on income and not technically a fine for not engaging in some kind of behavior.
However just because the federal government has never done something this does not mean that it is unconstitutional. The Department of Justice is likely to point to many parts of the Constitution in defending the legislation. Article 1, Section 8 proscribes the powers given to Congress. The relevant powers in this case could be:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"
The government's power to tax is generally interpreted very broadly by the courts so if the Obama administration was able to effectively argue the mandate was in fact a "duty" or "tax" the courts would probably approve the mandate. Of course the state attorneys generals will argue the legislation does not fall under this power since a "fine" is different in nature than a tax.
The Department of Justice could also argue that the legislation is merely an attempt to "regulate Commerce." The commerce power is certainly not unlimited but generally Congress can regulate anything which has a substantial relation to interstate commerce. The Obama administration would have a strong argument here since health care makes up over one-sixth of the economic activity of the entire nation.
A Challenge Based on the Tenth Amendment
Idaho has already passed a law which states their citizens are not bound by the health care laws. While this is likely a nice political tactic in general states can not simply exempt their citizens from federal law. For example if Missouri passed a law exempting their citizens from the federal income tax the IRS will still be able to demand my payment next year. Under the Supremacy Clause (Article VI, Clause 2 of the U.S. Constitution) federal law generally trumps state law.
A reader may have noticed how I emphasized the "generally" part of my last analysis. There are exceptions to the Supremacy Clause rule. If a power is considered "reserved" for the States under the Tenth Amendment then theoretically a federal law could be nullified if it conflicted with state law.
The problem for the attorneys general is that once again a regulation of health care seems perfectly within the federal government power either to tax or to regulate interstate commerce. Given the vast nature of Medicare and Medicaid it will be hard for the states to argue that the regulation of health care is a power reserved solely for them.
A Challenge Based on the Fourteenth Amendment
The Supreme Court has interpreted the 14th Amendment as granting substantive due process rights to American citizens. Basically what this means is that citizens have certain rights which are not explicitly enumerated in the Bill of Rights. For example the Supreme Court determined a woman has a limited right to have an abortion based upon a right of "privacy" under the Fourteenth Amendment even though privacy is never explicitly mentioned as a right in the U.S. Constitution.
In order to challenge the health care bill a U.S. citizen would have to allege the bill violates a fundamental right they have as part of the "liberty" interest under the Fourteenth Amendment. Generally something is determined to be a "fundamental right" if it is "deeply rooted in American history and traditions." A claimant would have to identify a right such as "the right to make one's own health care decisions" or "the right to abstain from purchasing insurance." They would then have to show that this right has been deeply rooted in American history and traditions. The Department of Justice would of course argue to the contrary.
Even if the court agreed that a "fundamental right" was at issue the government could still argue the legislation is constitutional. Even legislation affecting fundamental rights is constitutional if it is necessary to advance a compelling state interest. The government would argue the individual mandate is necessary to meet the compelling state interest of providing affordable health care for all or something to that effect. It would then be up to the court to determine which side was right.
The hardest step in this process would be convincing a court that a "fundamental right" was at stake. Generally the courts are reluctant to create new fundamental rights since it opens the door to challenges of all sorts of other laws. For example if a court determined an individual has a "fundamental right" not to purchase insurance it could lead to a challenge of automobile insurance laws among other things.
Conclusion:
Anyone who says they know for certain how the court system will rule on an issue this complicated does not know of what they speak. Having said that the lawsuits that seek to have health care reform overturned are facing some long odds. The Department of Justice has a large staff of experienced and qualified lawyers who have many credible legal arguments to make for the bill. I have just scratched the surface of the legal arguments they are sure to come up with in defending the legislation. A federal court is unlikely to declare such a bill unconstitutional without a really good basis for doing so. Faced with such obstacles it is hard to imagine opponents of reform succeeding in getting rid of the law through the court system.
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