Political Transgressions

http://www.ritholtz.com/blog/wp-content/uploads/2011/06/more-magic.png

The 19th-century French economist Frederic Bastiat foresaw schemes like this when he wrote:

"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else."

President Obama Endorses Earlier State Opt-Out of PPACA

The ongoing debate over the Patient Protection and Affordable Care Act is about more than whether this provision or that provision is beneficial or damaging to the nation’s economy and health care system. The debate is also about the appropriate role of the federal government compared to that of state governments and individuals. Health insurance, and consequently much of health care, has long been the purview of the states. The PPACA changes that balance considerably.
Enter Senators Ron Wyden and Scott Brown – the former a Democrat the latter a Republican. They are co-sponsoring a bill allowing states to opt-out of many of the more controversial provisions of President Barack Obama’s health care plan as early as 2014 if they meet certain eligibility requirements. (The health care reform law already provides for this opt-out in 2017, but by then states will have invested heavily in implementing the PPACA).
This legislation, one of the few bi-partisan health care reform-related measures put forward in the past few years, just received a politically important boost. Speaking before the National Governor’s Association meeting in Washington, DC today, President Obama endorsed the Wyden-Brown proposal. Were the bill to pass, states could replace the individual and employer mandate, health insurance exchanges and whatever the federal government comes up with as “essential benefits” all health insurance policies must cover. Yet the states would still receive the insurance subsidies and administrative funding they’d be eligible for under the PPACA.
Gaining this privilege to go their own way, however, is no easy task. As described by Kate Pickert in Time’s the Swampland blog, states would need to show their own health care reform approach would:

• not increase the federal deficit
• provide insurance to as many people as would the PPACA
• provide insurance as least as comprehensive as that called for in the PPACA
• provide insurance that’s just as affordable

Avik Roy at Forbes’ The Apothecary blog has an excellent presentation of the pros-and-cons of the Wyden-Brown legislation. For example, he sites Ben Domenech as observing that “states would have to prove a greater number of people will purchase a product under their alternate plan than would do so under a law requiring them to purchase that product!” However, this may be easier than Mr. Domenech apparently believes. As I’ve pointed out previously, there are other ways to encourage consumers to obtain coverage than a government imposed mandate. The Waiver for State Innovation, as the Wyden-Brown proposal is referred to, doesn’t allow states to return to the status quo. On the contrary, states would still need to put forward comprehensive health care reform. They can just go about it in a different way than that taken by the Obama Administration in the PPACA.
As President Obama said to the Governors when describing the value of moving the state opt-out opportunity to 2014, “It will give you flexibility more quickly while still guaranteeing the American people reform.”
For example, states could set up a system in which consumers are given health insurance vouchers to purchase coverage. Carriers could be required to issue policies to all who apply. To protect their pools from the adverse selection of people waiting until they’re on their way to the hospital to obtain insurance, carriers could be permitted to exclude coverage for pre-existing conditions for as long as a consumer has been without coverage. This kind of approach would do away with exchanges and the PPACA’s approach to the individual mandate. Of course, so would the single-payer approach being considered in Vermont.
A wise man once told me, “You never solve problems, you just replace old problems with new ones.” President Obama is giving states the opportunity to solve – and create – their own problems. Whether any will be able, or willing, to seize this opportunity remains to be seen.

THE ECONOMIC IMPACT OF EXPANDING COVERAGE

The report identifies three important impacts of expanding health care coverage:
1.    It would increase the economic well-being of the uninsured by substantially more than the costs of insuring them. A comparison of the total benefits of coverage to the uninsured, including such benefits as longer life expectancy and reduced financial risk, and the total costs of insuring them (including both the public and private costs), suggests net gains in economic well-being of about two-thirds of a percent of GDP per year.
2. It would likely increase labor supply. Increased insurance coverage and, hence, improved health care, is likely to increase labor supply by reducing disability and absenteeism in the work place. This increase in labor supply would tend to increase GDP and reduce the budget deficit.
3. It would improve the functioning of the labor market. Coverage expansion that eliminates restrictions on pre-existing conditions improves the efficiency of labor markets by removing an important limitation on job-switching. Creating a well-functioning insurance market also prevents an inefficient allocation of labor away from small firms by leveling the playing field among firms of all sizes in competing for talented workers in the labor market.

EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL OF ECONOMIC ADVISERS

ABC News, Science Daily and the National Coalition on Health Care

• The U.S. has the world’s most expensive healthcare system, yet one-sixth of Americans are uninsured. National surveys reveal that the primary reason is the high cost of coverage.
• Approximately one-third (31%) of adults and a little more than one-half (54%) of children do not have a primary care doctor.
• Federal spending on healthcare in 2005 alone totaled $600 billion, a massive one-quarter of the federal budget.
• Someone files for bankruptcy every 30 seconds because of health concerns. And every year, 1.5 million families lose their homes to foreclosure due to unaffordable medical costs.
• The U.S. spends six times more per capita on the administration of the health insurance system than Western European nations, who insure all of their citizens.
• The total medical expenditures for the uninsured of nearly $124 billion in 2004 was more than the combined expenditures of the Iraq war and “war on terror” programs.
• The percentage of adults who receive recommended preventative care and screening tests according to guidelines for their age and sex is only 49%.
• Each year, the number of Americans who die from medical errors is close to 100,000—more than double the annual number of deaths from car crashes.
  
  http://www.realtruth.org/articles/090203-005-health.html

Defining U.S. Healthcare

The U.S. is the only developed country, except for South Korea, that does not provide healthcare for all its citizens. What is unique about the U.S. system is that the private element dominates the public one. For example, the Kaiser Foundation reported that 61% of non-elderly Americans in 2006 received insurance through their employers; 14% were enrolled in public insurance programs like Medicaid; and 18% were uninsured. Those over age 65 were usually enrolled in Medicare.
Here is how the system is organized:

Private Health Insurance

• Employer-sponsored Insurance: The main way Americans receive health insurance coverage is through their employers. Companies provide this as part of their benefits package. These plans are administered by insurance companies both for-profit (Aetna, Cigna, State Farm, for example), and not-for-profit (Blue Cross/Blue Shield).
Some large companies choose to “self-insure,” that is they pay the health costs directly while choosing a third-party (usually an insurer) to administer the plan. Employer-sponsored plans are financed partly by the employers who pay most of the premium, and partly by employees who pay the remainder.
• Individual Health Insurance: This option covers individuals for whom insurance is not provided through their employers, those who are self-employed, and retirees. Plans are provided by private insurance companies. Insured individuals pay the full health insurance premium.

Public Health Insurance

• Medicare: This is a program provided by the federal government which covers individuals aged 65 and older, and disabled individuals as well. It is funded through federal income tax, as well as taxes on employers and employees, and premium payments by those enrolled. Medicare covers hospital services, physician services and prescription drug benefits.
• Medicaid: This program is designed for low-income individuals and those who are disabled. States are required by law to provide coverage for children, the elderly, the disabled, parents and poor pregnant women. Adults without children are not covered, as well as poor individuals who earn too much. A comprehensive set of benefits is offered by the program, including prescription drugs. However, in spite of this, many of those enrolled still have problems finding providers that accept Medicaid, because of its low rate of reimbursement.
• Other Public Systems: These include the Veteran’s Administration (VA), which provides healthcare for military veterans in VA hospitals and clinics, which are government-owned, and the State Children’s Health Insurance Program (S-CHIP), which covers children whose families earn too much to qualify for Medicaid, but too little to purchase private health insurance.

An Economic Perspective on the Individual Mandate’s Severability from the ACA

http://healthpolicyandreform.nejm.org/?p=13830

The Importance of the Individual Mandate — Evidence from Massachusetts

http://healthpolicyandreform.nejm.org/?p=13572

How Changes in Medical Technology Affect Health Care Costs

http://www.kff.org/insurance/snapshot/chcm030807oth.cfm

PBS Healthcare history

http://www.pbs.org/healthcarecrisis/history.htm

Health Insurance Access for Young Workers and College Students Act of 2009

SUMMARY AS OF:
10/21/2009--Introduced.

Health Insurance Access for Young Workers and College Students Act of 2009 - Amends the Employee Retirement Income Security Act of 1974, the Public Health Service Act, and the Internal Revenue Code to require a group health plan that treats an individual who is a dependent child of a plan participant or beneficiary as a plan beneficiary to continue to treat the individual as a dependent child through at least the end of the plan year in which the individual turns age 25.

Improved Employee Access to Health Insurance Act of 2009

Improved Employee Access to Health Insurance Act of 2009 - Prohibits any state from establishing a law that prevents an employer from instituting an auto-enrollment process for coverage of a participant or beneficiary under a group health plan, or health insurance coverage offered in connection with such a plan, as long as the participant or beneficiary has the option of declining such coverage.

Promoting Health and Preventing Chronic Disease through Prevention and Wellness Programs for Employees, Communities, and Individuals Act of 2009

Promoting Health and Preventing Chronic Disease through Prevention and Wellness Programs for Employees, Communities, and Individuals Act of 2009 - Amends the Internal Revenue Code to allow employers a 50% tax credit for the costs of providing employees with a qualified prevention and wellness program. Defines "qualified prevention and wellness program" as a program that is certified by the Secretary of Health and Human Services (HHS) and that includes three of the following components: a health awareness component, an employee engagement component, a behavioral change component, or a supportive environment component. Terminates such credit after 2017.
Requires the Secretary of the Treasury to institute an outreach program to inform businesses about the availability of the prevention and wellness program tax credit.

Amends the Public Health Service Act (PHSA) to require the HHS Secretary, acting through the Director of the Centers for Disease Control and Prevention (CDC), to award grants to plan and implement prevention and wellness programs that promote health and wellness and prevent chronic diseases.

Requires the HHS Secretary to encourage states to work with insurance companies on ways to promote and incentivize the participation of individuals and families in prevention and wellness programs.
Amends PHSA and Employee Retirement Income Security Act of 1974 (ERISA) to set forth conditions under which group health plans may establish premium discounts or rebates for modifying copayments or deductibles for participation in a wellness program.

Sam Johnson re-introduces Association Health Plans

Washington, May 21, 2009 -

Today U.S. Congressman Sam Johnson (3rd Dist.-Texas) re-introduced legislation to increase the insured through the creation of Association Health Plans (AHPs). 
“First and foremost, we need to make health care more affordable and accessible.  That is why my goal is to get every American insured.  Nearly eight in ten Americans in working families lack health insurance.  In fact, Texas has the highest rate of uninsured residents among all employed or self-employed adults -- 27%.  Enacting Association Health Plans is the best way to increase the number of insured Americans,” said Johnson. 
Association Health Plans allow small businesses to band together through associations and purchase quality health care for workers and their families at a lower cost.  The initiative would increase small businesses’ bargaining power with insurance providers, give them freedom from costly state-mandated benefit packages while keeping important consumer protections in place, and lower their overhead administrative costs by as much as 30 percent – these benefits that many large corporations and many labor unions already enjoy because of their larger economies of scale. 
“For many small-business owners, affordable health insurance through Association Health Plans is a matter of fairness.  Fortune 500 companies have excellent access to affordable quality health insurance.  Labor unions have excellent access to affordable quality health insurance.  Small businesses should have that same access to affordable, quality health insurance,” said Johnson.
Johnson represents Collin and Dallas Counties

Gingrey introduces Medical Liability Reform legislation

Gingrey introduces Medical Liability Reform legislation Bipartisan bill will ensure physicians are in our communities when we need them

U.S. Capitol

Washington - U.S. Congressman Phil Gingrey, M.D. (R-GA) today introduced the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act, legislation to reduce frivolous medical lawsuits that are raising the cost of healthcare and driving many physicians out of business.  This bipartisan bill would abolish the financial incentives for filing expansive lawsuits, while providing a fair and timely reparations process for those who have been wronged.
“As a practicing OB-GYN for nearly 30 years, I saw skyrocketing malpractice insurance rates force good doctors to hang up their stethoscopes for good,” said Gingrey.  “Already, brain trauma patients are suffering as emergency rooms scramble to find on-call specialists. Women are forced to cross state lines just to deliver a baby.  Rural communities are left without hospitals.  This shouldn’t be happening in America, home to the best physicians and healthcare technology in the world.”
“Today’s medical tort system is designed for lawyers, not patients,” Gingrey continued.  “Average awards in medical malpractice cases have risen 76% in recent years.  This drives doctors to practice defensive medicine, adding $126 billion a year to our national healthcare costs.  By reforming our medical liability system, patients can still recover full economic damages, such as medical bills and lost income – after all, those who have been wronged deserve fair compensation.  But my legislation would put reasonable limits on run-away non-economic damages, and even maximize patient awards by ensuring the bulk of a patient’s recovery is not misdirected to an attorney.  Patients across America are depending on Congress to pass the HEALTH Act.”
The HEALTH Act:
--  Limits the amount of non-economic damages, or “pain and suffering” awards, to $250,000.
--  Will not permit punitive damages unless an actual economic judgment is rendered, and then limits the amount to no greater than twice the economic damages.
--  Maximizes patients’ awards by allowing courts to ensure an unjust portion of the patient’s recovery is not misdirected to an attorney.
--  Allows patients to recover the full cost of economic damages, such as medical bills and lost income. 
The HEALTH Act currently has 57 co-sponsors.

A Patient-Centered Solution

RSC Chairman Tom Price has introduced H.R. 3400, the Empowering Patients First Act.  This is another positive solution from the Republican Study Committee that grants access to affordable, quality health care for all Americans, and is centered around the patient.  By increasing patients’ control over their health decisions, we will make coverage more affordable, accessible and responsive, while offering more choices and the highest-quality care.

This solution is centered around four main principles:

#1:  Access to Coverage for All Americans

• The Empowering Patients First Act makes the purchase of health care financially feasible for all Americans, covers pre-existing conditions, protects employer-sponsored insurance, and shines light on existing health care plans.

#2:  Coverage is Truly Owned by the Patient

• This legislation grants greater choice and portability to the patient, and also gives employers more flexibility in the benefits offered.  It also expands the individual market by creating several pooling mechanisms. 

#3:  Improve the Health Care Delivery Structure

• Physicians know the best care for their patient.  That's why this legislation establishes doctor-led quality measures, ensuring that you get the quality care you need.  It also reimburses physicians to ensure the stability of your care, and encourages healthier lifestyles by allowing employers to offer discounts for healthy habits through wellness and prevention programs.

#4:  Rein in Out-of-Control Costs

• A key concern in positive reform is reining in out-of control costs.  This legislation does this by reforming the medical liability system.  Also, the cost of the plan is completely offset through decreasing defensive medicine, savings from health care efficiencies, sifting out waste, fraud and abuse, plus an annual one-percent non defense discretionary spending step down.   

GOP Solutions for America

http://www.gop.gov/solutions/healthcare

Thomas More Law Center v. Obama

Randy Barnett, filed a brief supporting that appeal. We argue that the outermost bounds of existing Commerce Clause jurisprudence — the "substantial effects doctrine" — prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce. Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme. Even the district court recognized that "in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression." What Congress is attempting to do here is quite literally unprecedented. "The government has never required people to buy any good or service as a condition of lawful residence in the United States." Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance 1 (1994). Nor has it ever said that people face civil penalties for declining to participate in the marketplace.

The Nuts and Bolts of the ObamaCare Ruling

Recognizing the vulnerability of relying on the Commerce Clause alone, the Obama administration in the Florida case shifted its emphasis to the Necessary and Proper Clause of the Constitution. That clause empowers Congress to enact "all Laws which shall be necessary and proper for carrying into Execution" its enumerated powers. As the Supreme Court has repeatedly explained, the Necessary and Proper Clause does not expand the scope of Congress's enumerated powers. Instead, it gives Congress the ability to select among various means of exercising them — for example, the enumerated power to "establish post offices" necessarily and properly includes a power to print stamps.

The Obama administration claimed that the individual mandate is a necessary and proper means of carrying out its reforms in the health-insurance market. These reforms include requiring insurers to offer coverage to those with pre- existing conditions, to extend coverage to dependents up to age 26, and to eliminate lifetime coverage caps. Because these reforms make health insurance more expensive, the government's lawyers claim that unless everyone is forced to buy health insurance, too many healthy people will sit on the market sidelines as "free riders" until they become ill. So in order to make the "reformed" health-insurance market work, it's necessary and proper to force everyone to buy insurance.

http://www.cato.org/pub_display.php?pub_id=12749

Federalist 45

Madison writes that the new Constitution does not in principle enlarge the powers of the Federal government, but merely renders that government more effective in carrying out its existing duties:

If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.

Central to administering these powers, Madison argues, is the power to tax. Further, he states that this power has precedent in the Articles of Confederation:

The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens

Madison also argues that the National Government is indeed subservient to the State Governments, yet the Federalist structure serves as a method of disguising this truth. Madison argues that the National Government must rely on the states to pass amendments, and the states themselves can propose and pass amendments at their choosing

fallacy of false dichotomy

A false dilemma (also called false dichotomy, the either-or fallacy, fallacy of false choice, black and white thinking or the fallacy of exhaustive hypotheses) is a type of logical fallacy that involves a situation in which only two alternatives are considered, when in fact there are additional options.
False dilemma can arise intentionally, when fallacy is used in an attempt to force a choice ("If you are not with us, you are against us.") But the fallacy can also arise simply by accidental omission of additional options rather than by deliberate deception (e.g., "I thought we were friends, but all my friends were at my apartment last night and you weren't there."). False dichotomies may also arise when it is incorrectly assumed that, as philosopher John Searle^[1] writes, "unless a distinction can be made rigorous and precise it isn't really a distinction;" to the contrary, Searle insists that "it is a condition of the adequacy of a precise theory of an indeterminate phenomenon that it should precisely characterize that phenomenon as indeterminate; and a distinction is no less a distinction for allowing for a family of related, marginal, diverging cases." Similarly, when two alternatives are presented, they are often, though not always, two extreme points on some spectrum of possibilities. This can lend credence to the larger argument by giving the impression that the options are mutually exclusive, even though they need not be. Furthermore, the options in false dichotomies are typically presented as being collectively exhaustive, in which case the fallacy can be overcome, or at least weakened, by considering other possibilities, or perhaps by considering a whole spectrum of possibilities, as in fuzzy logic.

The Whiskey Rebellion

The Whiskey Rebellion, less commonly known as the Whiskey Insurrection, was a resistance movement in the western part of the United States in the 1790s, during the presidency of George Washington. The conflict was rooted in western dissatisfaction with various policies of the eastern-based national government. The name of the uprising comes from a 1791 excise tax on whiskey that was a central grievance of the westerners. The tax was a part of treasury secretary Alexander Hamilton's program to centralize and fund the national debt.

Governor and Attorney General pledge to defend health care

http://oregoncapitolnews.com/blog/2010/03/31/governor-and-attorney-general-pledge-to-defend-health-care/

Constitutionality of the Health Care Law Called Into Question

http://www.c-span.org/Events/Constitutionality-of-the-Health-Care-Law-Called-Into-Question/10737419334-1/

The Senate also voted overwhelmingly to repeal a tax reporting section of health-care reform, reports Jennifer Haberkorn:

"The Senate voted Wednesday for the first time to repeal a piece of President Barack Obama’s health care overhaul, rolling back a new tax reporting requirement that’s been universally panned by business owners. The amendment to repeal the 1099 reporting requirement passed 81-17 with broad bipartisan support. The provision was one that Obama identified in his State of the Union speech as something that Democrats were willing to change. The Senate voted several times last year on repealing the requirement, but all the attempts failed amid partisan bickering over how to pay for it."

So, what becomes of Printz v. United States?

In ruling that the Second Amendment applies to the State as the Court announced today in McDonald, the concept that when it comes to gun regulations States are a separate and independent sovereignty as Scalia discusses in the majority opinion does become muddled.

However, Scalia preemptively addressed this point in noting that in New York v. United States in 1992, the Court noted that while Congress may have near exclusive federal jurisdiction under the constitution to regulate an activity under the interstate commerce clause, the federal constitution does not confer Congress the power to compel the States’ to forbid or regulate such interstate activities.  Direct regulation by the federal government is required.  Anything less violates the federal constitutional concept of a unitary executive (this is not the concept of unitary executive as understood and expressed by the Bush/Cheney Administration, but a far more benign conceptualization.)  Therefore, just because a federal court can declare a State’s attempt to regulate firearms as unconstitutional, that doesn’t mean that Congress can commandeer the State government to enforce its federal regulatory scheme.

http://www.plunderbund.com/2010/06/28/so-what-becomes-of-printz-v-united-states/

Florida judge strikes down Obama health care law

A federal judge in Florida struck down President Obama's health care law today, saying it is invalidated by the requirement that nearly all Americans buy health insurance.

http://content.usatoday.com/communities/theoval/post/2011/01/florida-judge-strikes-down-obama-health-care-law/1

Which Side of History?

Interesting theoretical questions, to be sure. But the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no.

The challengers invoke and seek to build upon the Rehnquist court’s “federalism revolution” that flowered briefly during the 1990’s. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal. The court struck down a federal law that barred guns near schools, on the ground that possession of a gun near a school was not the type of activity that the Constitution’s Commerce Clause authorized Congress to regulate. It ruled that Congress could not require states to give their employees the protections of the federal laws against discrimination on the basis of age or disability. It ruled that the federal government couldn’t “commandeer” state officials to perform federal functions like federally mandated background checks of gun purchasers.

So isn’t it reasonable to suppose that the constitutional attack on the health-insurance mandate, which states must facilitate by setting up insurance exchanges, will resonate with today’s majority?
It’s a fair question — to which my answer is, “That was then, this is now.”

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own.

The architects of the Rehnquist federalism revolution were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.

Students of Rehnquist-style federalism will recall that the master himself blinked when his revolution got too close to the core of issues that people really care about. After all, hardly anyone had ever heard of the Gun-Free School Zones Act, the law the court invalidated in United States v. Lopez as beyond Congress’s commerce power. But plenty of people cared about the Family and Medical Leave Act, the law at issue in a 2003 case, Nevada Department of Human Resources v. Hibbs. Chief Justice Rehnquist surprised almost everyone in that case, not only voting to uphold the law’s application to state employees, but also writing a majority opinion displaying so much sympathy for the aims of the law it could have been ghost-written for him by Justice Ruth Bader Ginsburg. And with that decision seven years ago, the federalism revolution sputtered to an end.

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.


http://opinionator.blogs.nytimes.com/2010/03/25/which-side-of-history/

Federalism and Health Care Reform

It seems appropriate at the beginning of this new year to talk about the new healthcare legislation.

One judge has found a crucial piece of the statute – the requirement that individuals buy health care – unconstitutional. It will surely go to the United States Supreme Court which may be very receptive to the attack. The Rehnquist and Roberts Courts have used federalism to narrow national power wherever it conflicted with the justices’ ideologies. The Court even found federal civil rights acts regulated states unconstitutionally, though the Fourteenth Amendment was primarily aimed at state misbehavior. Federalism proved to be a convenient way for the justices to overrule things they don’t like.

If the Supreme Court overturns the legislation it will be too late for the Democrats to try to change it. If the Supreme Court sustains the legislation, the Republicans may be unable to change it. So there may be grounds for some sort of deal between the parties that would substitute a system of state options or tax credits and therefore have a better chance of succeeding when this program goes in front of Roberts Court judges all too ready to substitute their personal views for constitutional law.

http://constitutionalismanddemocracy.wordpress.com/2011/01/04/federalism-and-health-care-reform/

Federalism in the Roberts Court

http://www.naag.org/federalism_in_the_roberts_court.php

Judiciary Reorganization Bill of 1937

The Judiciary Reorganization Bill of 1937, frequently called the court-packing plan,^[1] was a legislative initiative proposed by U.S. President Franklin Roosevelt to add more justices to the U.S. Supreme Court. Roosevelt's purpose was to obtain favorable rulings regarding New Deal legislation that had been previously ruled unconstitutional.^[2] The central and most controversial provision of the bill would have granted the President power to appoint an additional Justice to the U.S. Supreme Court, up to a maximum of six, for every sitting member over the age of 70½.

Lochner vs. New York

Lochner vs. New York, 198 U.S. 45 (1905), was a landmark United States Supreme Court case that held a "liberty of contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. By a 5-4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." Justice Rufus Peckham wrote for the majority, while Justices John Marshall Harlan and Oliver Wendell Holmes, Jr. filed dissents.

West Coast Hotel Co. v. Parrish

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital, 261 U.S. 525 (1923). The decision is usually regarded as having ended the Lochner era, a period in American legal history during which the Supreme Court tended to invalidate legislation aimed at regulating business.^[1]

Board of Trade of City of Chicago v. Olsen

Board of Trade of City of Chicago v. Olsen, 262 U.S. 1 (1923), is a decision by the Supreme Court of the United States, in which it upheld the Grain Futures Act as constitutional under the Commerce Clause of the United States Constitution.

Hill v. Wallace

Hill v. Wallace, 259 U.S. 44 (1922), was a case in which the United States Supreme Court held that the Future Trading Act is unconstitutional use of Congress's taxing power.

The Futures Trading Act of 1921, approved August 24, 1921. 42 Stat. 187 187, c. 86 attempted to institute Federal regulation of grain futures contract trading by imposing a prohibitive tax on futures contracts traded on any market other than those that met the statute's requirements and were regulated by the Secretary of Agriculture. The court found it was an unconstitutional exercise of the taxing power of Congress. Congress responded to the Court's decision by passing the Grain Futures Act in September 1922 based on the Commerce Clause. The Grain Futures Act was held to be constitutional by the Court in Board of Trade of City of Chicago v. Olsen (1923)

Grain Futures Act

The Grain Futures Act (ch. 369, 42 Stat. 998, 7 U.S.C. § 1), is a United States federal law enacted September 21, 1922 involving the regulation of trading in certain commodity futures, and causing the establishment of the Grain Futures Administration, a predecessor organization to the Commodity Futures Trading Commission.

The bill that became the Grain Futures Act was introduced in the United States Congress two weeks after the US Supreme Court declared the Futures Trading Act of 1921 unconstitutional in Hill v. Wallace 259 U.S. 44 (1922).^[1] The Grain Futures Act was held to be constitutional by the US Supreme Court in Board of Trade of City of Chicago v. Olsen 262 US 1 (1923).

In 1936 it was revised into the Commodity Exchange Act (CEA). The act was further superseded in 1974 by establishing the Commodity Futures Trading Commission. In 1982 the Commodity Futures Trading Commission created the National Futures Association (NFA).

Sheppard–Towner Maternity and Infancy Protection Act

The Sheppard–Towner Maternity and Infancy Protection Act of 1921 was a U.S. Act of Congress providing federal funding for maternity and child care. It was sponsored by senators Morris Sheppard and Horace Mann Towner, and signed by President Warren G. Harding on November 23, 1921.
The act was a response to the lack of adequate medical care for women and children. The deficit became especially noticeable during World War I, when many potential recruits were rejected for military service due to the sequellae of childhood diseases.^{[citation needed]} However, the act was allowed to lapse in 1929 after successful opposition by the American Medical Association, which saw the act as a socialist threat to its professional autonomy. This opposition was in spite of the fact that the Pediatric Section of the AMA House of Delegates had endorsed the renewal of the act. The rebuking of the Pediatric Section by the full House of Delegates lead to the members of the Pediatric Section establishing the American Academy of Pediatrics.[1

Lochner era

The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights.^[1][2] The beginning of the period is usually considered to be the Court's decision in Allgeyer v. Louisiana (1897) with the end marked forty years later by the overturning of a prior Lochner era decision in the case of West Coast Hotel Co. v. Parrish (1937).^[3] The Lochner era coincided roughly with the Second Industrial Revolution.

The Supreme Court during the Lochner era has been described as "play[ing] a judicially activist but politically conservative role."^[4] The Court invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, child labor, regulations of banking, insurance and transportation industries.^[4] Originating in the late 19th century, the Lochner era carried into the mid-1930s, when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress' regulatory efforts to bring about economic recovery as part of the New Deal.

Free-Market Health Care Policy

We have a health care crisis because doctors, patients, employers and employees are trapped in a wasteful, broken system that is too bureaucratic and far too unresponsive to patient needs and market forces. To solve our problems, your doctor needs the opportunity to produce higher-quality, less-costly care. As a patient, you need access to services you are not now getting. At the workplace, you need access to health insurance that costs less and gives you more.

How Obamacare Burdens Already Strained State Budgets

Finally, state lawmakers should demand that federal officials be held accountable for dumping billions in unfunded liabilities onto states. They should apply maximum pressure on the Obama Administration and Congress to explain how states are expected to implement PPACA without appropriate funding or administrative guidance. This public pressure will inform taxpayers of the incredible burdens that PPACA places on the states and, ultimately, on them. Moreover, it allows citizens to hold the right people accountable for the poor policy outcomes created by PPACA.
The difficult budgetary choices that states face in the years ahead are yet more unintended consequences of President Obama’s health care “overhaul.” Had the Administration instead pursued a federalist model of health care reform, allowing states to be the laboratories of democracy that the Founders intended, states could then focus their energies on the innovative health care reforms that work best for their own citizens. Instead, PPACA has left policymakers in capitals across the country worrying about how to deal with billions in new spending during already-harsh times.

United States v. South-Eastern Underwriters Association

United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944) is a United States Supreme Court decision that held that the Sherman Act, the federal antitrust statute, applied to insurance. To reach this decision, the Court held that insurance could be regulated by the United States Congress under the Commerce Clause, overturning Paul v. Virginia.

Sherman Antitrust Act

Purpose

Despite its name, the Act has fairly little to do with "trusts". Around the world, what U.S. lawmakers and attorneys call "Antitrust" is more commonly known as "competition law." The purpose of the act was to oppose the combination of entities that could potentially harm competition, such as monopolies or cartels. Its reference to trusts today is anachronistic. At the time of its passage, the trust was synonymous with monopolistic practice, because the trust was a popular way for monopolists to hold their businesses, and a way for cartel participants to create enforceable agreements.^[4]

In 1879, C. T. Dodd, an attorney for the Standard Oil Company of Ohio, had devised a new type of trust agreement to overcome Ohio state prohibitions against corporations owning stock in other corporations. A trust is a centuries-old form of a contract whereby one party entrusts its property to a second party. The property is then used to benefit the first party.

The law attempts to prevent the artificial raising of prices by restriction of trade or supply.^[5] In other words, innocent monopoly, or monopoly achieved solely by merit, is perfectly legal, but acts by a monopolist to artificially preserve his status, or nefarious dealings to create a monopoly, are not. Put another way, it has sometimes been said that the purpose of the Sherman Act is not to protect competitors, but rather to protect competition and the competitive landscape. As explained by the U.S. Supreme Court in Spectrum Sports, Inc. v. McQuillan,

“

The purpose of the [Sherman] Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.[6] This focus of U.S. competition law, on protection of competition rather than competitors, is not necessarily the only possible focus or purpose of competition law. For example, it has also been said that competition law in the European Union (EU) tends to protect the competitors in the marketplace, even at the expense of market efficiencies and consumers.[7]

Estimating ObamaCare's Effect on State Medicaid Expenditure Growth

Unless repeal attempts succeed, the Patient Protection and Affordable Care Act of 2010 (ObamaCare) promises to increase state government obligations on account of Medicaid by expanding Medicaid eligibility and introducing an individual health insurance mandate for all US citizens and legal permanent residents. Once ObamaCare becomes fully effective in 2014, the cost of newly eligible Medicaid enrollees will be almost fully covered by the federal government through 2019, with federal financial support expected to be extended thereafter.

http://www.cato.org/pub_display.php?pub_id=12693

The 1798 ”Act for the Relief of Sick and Disabled Seaman”

1798: Congress passes the Act for the Relief of Sick and Disabled Seamen. It provides health services to members of the merchant marine and funds a loose network of hospitals through the Marine Hospital Fund. The MHF is plagued by cost overruns, administrative mismanagement, and rationing of care. Some leaders oppose the new federal subsidies as an abuse of state sovereignty.

 Washington Post and Forbes.

On the politics of this, note that John Adams, who signed the bill into law as president, was on the “big government” end of the Founders, and his big-government approach in office in the 1790s–like signing the Alien and Sedition Acts–led to the ouster of the Federalists by Thomas Jefferson in 1800.

Individual Mandate is severable

U.S. District judge Henry E. Hudson ruled that the interstate commerce clause has no power to compel individuals to buy policies from private health insurers. Unfortunately judge Hudson also found that this clause was severable from the legislation, leaving the rest of Obamacare intact. Despite this outcome, many believe that the elimination of the individual mandate must lead to the downfall of Obamacare. According to this line of thinking, if the government outlaws actuarially accurate premiums, by forbidding insurers from taking account of pre-existing conditions, people will just wait until they get sick to apply for health insurance.

This is precisely what happened in a number of states, such as New York, when they imposed these limits on the market for individual health insurance. Premiums skyrocketed and only older and sicker people bought coverage. Such a “market” cannot survive.

Unfortunately, this will not be the case with Obamacare. Once the political class expresses a sentiment for “universal coverage” it will assert control of people’s access to medical care irrespective of an individual mandate. The actual mechanism is a “death spiral” of taxation and subsidy.

Faceoff! States tell feds to back down

What if Washington made a law and nobody paid attention? Or even more significantly, what if states specifically repudiated it and threatened to prosecute those enforcing it?
The questions no longer are rhetorical but a real option as eight states consider a blanket nullification of the Obamacare nationalization of health-care decision-making advances in their legislatures.

"Thomas Jefferson advised, 'Whensoever the general government assumes undelegated powers … a nullification of the act is the rightful remedy,'" states the Tenth Amendment Center, which advocates a return to the constitutionally delegated powers for the federal government.
"When states pass laws to reject and nullify unconstitutional federal 'laws,' regulations and mandates – it's not rebellion … it's duty," the organization states.

Read more: Faceoff! States tell feds to back down http://www.wnd.com/?pageId=253521#ixzz1BvDPCEfh

Paul v. Virginia

Paul v. Virginia, 75 U.S. (8 Wall) 168 (1869), was a historic case in corporate law in which the United States Supreme Court held that a corporation is not a citizen within the meaning of the Privileges and Immunities Clause. Of greater consequence, the Court further held that "issuing a policy of insurance is not a transaction of commerce," effectively removing the business of insurance beyond the United States Congress's legislative reach.

In the case of Paul v. Virginia, 75 U.S. 168 (1868), the Court said the following:

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws.

Privileges and Immunities Clause

The Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner. The text of the clause reads:

“

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

”

Obamacare is Unconstitutional

First, there’s a difference between health care and health insurance.  Nobody in the United States is denied health care.  Between Medicaid and federal law requiring emergency rooms to treat all comers, we simply do not have children dying in the street (like in, say, Rwanda, where, according to the Times, the most common causes of death are “diarrhea, pneumonia, malaria, malnutrition, infected cuts”).  As Michael says, “Yes, the poorer nation has a higher levels of health insurance coverage.  But the wealthier nation does a better job of providing medical care to everyone, insured and uninsured alike.”  That is, you can (and often do) have universal health insurance that provides universally bad care – except for the political elites, who pay extra for proper Western care.  Is there any American who would have better health living in Rwanda or any number of countries where the government provides universal health insurance?

Second, and relatedly, health care is not and cannot be a “right” — because rights are things that inhere in human beings by virtue of their being human.  As the Declaration of Independence says, we are “endowed by [our] Creator with certain unalienable Rights.”  These “natural” rights are things we enjoy without burdening the rights of others: freedom of speech and belief, the right to earn an honest living, freedom of movement, the right to acquire and possess private property, the right to decide what we do every day . . . all the way down to the right to get out of bed on the left or right side (or to stay in bed all day) – and the right to defend ourselves against those who would take away these rights.  Once you start making “rights” out of things that somebody has to provide you — food, shelter, health care, employment — then you’ve violated everyone’s natural rights and reduced their inherent liberty.

PAYGO, the CBO, and Repealing ObamaCare

When the CBO believes that the law and actual policy are at variance, they actually do two types of cost projections: one based on the law as written and one based on the policy they think Congress is likely to adopt, based on past performance. They call the latter their “alternate fiscal scenario.”
ObamaCare opponents submit that this law is one of those instances where law and policy are at variance. So even though ObamaCare will reduce the deficit under existing budget rules, the spending cuts (actually, reductions in future spending growth) in the law were never going to take effect anyway. The CBO, CMS, and even the IMF have all discredited the idea that ObamaCare would reduce the deficit, because they all question the sustainability of ObamaCare’s spending “cuts.” Exempting ObamaCare repeal from PAYGO rules is appropriate if those rules have failed to protect taxpayers.

Chart: Comparing Health Reform Bills: Democrats and Republicans 2009, Republicans 1993

http://www.kaiserhealthnews.org/Graphics/2010/022310-Bill-comparison.aspx

Talk of Replacing ObamaCare Is a Bit Premature

Now that a bipartisan coalition in the House has voted to repeal ObamaCare, an even larger bipartisan coalition has approved a Republican resolution directing four House committees to “replace” that ill-fated law.  House Resolution 9 instructs the committees to “propos[e] changes to existing law” with the following goals:

1. Foster economic growth and private sector job creation by eliminating job-killing policies and regulations.
2. Lower health care premiums through increased competition and choice.
3. Preserve a patient’s ability to keep his or her health plan if he or she likes it.
4. Provide people with pre-existing conditions access to affordable health coverage.
5. Reform the medical liability system to reduce unnecessary and wasteful health care spending.
6. Increase the number of insured Americans.
7. Protect the doctor-patient relationship.
8. Provide the States greater flexibility to administer Medicaid programs.
9. Expand incentives to encourage personal responsibility for health care coverage and costs.
10. Prohibit taxpayer funding of abortions and provide conscience protections for health care providers.
11. Eliminate duplicative government programs and wasteful spending.
12. Do not accelerate the insolvency of entitlement programs or increase the tax burden on Americans; or
13. Enact a permanent fix to the flawed Medicare sustainable growth rate formula used to determine physician payments under title XVIII of the Social Security Act to preserve health care for the nation’s seniors and to provide a stable environment for physicians.

The 19th-century French economist Frederic Bastiat foresaw schemes like this when he wrote:

"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else."

Cognitive dissonance

Cognitive dissonance is defined as holding two completely contradictory ideas at the same time.

McCarran–Ferguson Act

The McCarran–Ferguson Act, 15 U.S.C. §§ 1011-1015, is a United States federal law that exempts the business of insurance from most federal regulation, including federal anti-trust laws to a limited extent. The McCarran–Ferguson Act was passed by Congress in 1945 after the Supreme Court ruled in United States v. South-Eastern Underwriters Association that the federal government could regulate insurance companies under the authority of the Commerce Clause in the U.S. Constitution.

The McCarran–Ferguson Act does not itself regulate insurance, nor does it mandate that states regulate insurance. "Acts of Congress" that do not expressly purport to regulate the "business of insurance" will not preempt state laws or regulations that regulate the "business of insurance."

The Act also provides that federal anti-trust laws will not apply to the "business of insurance" as long as the state regulates in that area, but federal anti-trust laws will apply in cases of boycott, coercion, and intimidation. By contrast, most other federal laws will not apply to insurance whether the states regulate in that area or not.

Getting Health Care Reform Back on Track

There are many policy options Congress should consider, after repeal of PPACA, to begin moving the system in the right direction and put the country on the right path toward market-based health care change that gives people better choices and allows them to take account of the price and value of health care. For example, Congress should:

• Provide individual tax relief for all persons purchasing private health insurance, regardless of where they work;
• Eliminate barriers to individuals purchasing health care coverage that best suits their personal needs across state lines;
• Allow employers to convert their health care compensation from a defined benefit package to a defined contribution system;
• Promote new group purchasing arrangements based on individual membership organizations and various associations, including union, fraternal, ethnic, and religiously based groups;
• Improve consumer-directed health options (such as health savings accounts, health reimbursement arrangements, and flexible spending accounts) that encourage greater transparency and consumer control over health care decisions;
• Extend rational pre-existing condition protections in the non-group health insurance markets for those with continuous creditable coverage, thus rewarding responsible persons who buy and maintain coverage;
• Set up a fair competitive bidding process to determine government payment in traditional Medicare fee-for-service and Medicare Advantage programs;
• Review Medicare rules and regulations and eliminate those that unduly burden doctors and patients, such as the restriction preventing doctors and patients to contract privately for medical services outside of the traditional Medicare program;
• Encourage the states to set up mechanisms such as high-risk pools and risk transfer models that help lessen the problems of individuals who are difficult to insure;
• Expand states’ ability to develop consumer-based reforms that enable states to customize solutions for their citizens;
• Strengthen premium assistance in Medicaid to enable young families to obtain private health insurance coverage;
• Improve patient-centered health care models for those on Medicaid;
• Increase federal and state efforts to combat fraud and abuse in Medicaid, including tightening eligibility loopholes in Medicaid for long-term-care services;
• Encourage personal savings and the development of a robust private insurance market for long-term-care needs;
• Make the ban on taxpayer-funded abortion permanent and government-wide and extend a similar permanent policy to ensure protection of the right of conscience among medical providers and personnel; and
• Stop new tax increases and promote tax cuts that would expand private insurance coverage and grow the economy.

Dual Federalism

Dual federalism, a legal theory which has prevailed in the United States since 1787, is the belief that the United States consists of two separate and co-sovereign branches of government. This form of government works on the principle that the national and state governments are split into their own spheres, and each is supreme within its respective sphere. Specifically, dual federalism discusses the relationship between the national government and the states' governments. According to this theory, there are certain limits placed on the federal government. These limits are:

1. National government rules by enumerated powers only.
2. National government has a limited set of constitutional purposes.
3. Each governmental unit—state and federal—is sovereign within its sphere of operations.
4. Relationship between nation and states is best summed up as tension rather than cooperation.

Footnote Four

Carolene Products is best known for its "Footnote Four", which is considered to be "the most famous footnote in constitutional law." ^[2] The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases.
Justice Stone suggested there were reasons to apply a more exacting standard of judicial review in other types of cases. Legislation aimed at discrete and insular minorities, who lack the normal protections of the political process, should be an exception to the presumption of constitutionality, and a heightened standard of judicial review should be applied. This idea has greatly influenced equal protection jurisprudence, and judicial review.

[edit] Text of Footnote Four

“

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth… It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

”

Footnote Four introduced the idea of levels of judicial scrutiny. In keeping with the New Deal Revolution, Footnote Four established the rational basis test for economic legislation, an extremely low standard of judicial review. The "rational basis test" mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest.
Therefore, Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain conditions:

1. On its face violates a provision of the Constitution (facial challenge).
2. Attempts to distort or rig the political process.
3. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.

This higher level of scrutiny, now called "strict scrutiny", was first applied in Justice Black's opinion in Korematsu v. U.S. (1944).
Some argue that this "most famous footnote" was in fact written not by Justice Stone, but by his law clerk, Louis Lusky.^[3] In fact, the cited work above (while quite useful on the origin and growth of the footnote) does not claim that the law clerk was the author, and implies the opposite through letters between the justices. In his later work, Our Nine Tribunes: The Supreme Court in Modern America, however, Lusky includes facsimiles of the original drafts of the footnote, the first of which is in his own hand. Stone edited the second, typed draft and, at the behest of the Chief Justice, added certain passages. While Justice Stone was doubtless intimately involved in the writing of the footnote, it seems clear that original authorship belongs to Lusky.

The Constitution in One Sentence: Understanding the Tenth Amendment

n a certain sense, the Tenth Amendment—the last of the 10 amendments that make up the Bill of Rights—is but a truism that adds nothing to the original Constitution. Since the federal government only possesses those powers which are delegated to it (Article I, Section 1), this amendment merely restates that all powers not delegated are in fact reserved to the States or to the sovereign people. In this sense, the Tenth Amendment concisely articulates the very idea and structure of a government of limited powers. The Tenth Amendment reinforces the federal system created by the Constitution and acts as a bulwark against federal intrusion on state authority and individual liberty. While the Supreme Court has countenanced a far-reaching expansion of federal power since the New Deal, Congress, as a co-equal branch of government, is not bound by these precedents and should uphold the concept of federalism embodied in this amendment.

http://www.heritage.org/Research/Reports/2011/01/The-Constitution-in-One-Sentence-Understanding-the-Tenth-Amendment

PPACA - social legislation

On March 23, President Barack Obama signed one of the most sweeping pieces of social legislation in American history. The new health care law would require nearly all Americans to purchase health insurance or face fines and possible jail time. The U.S. Constitution grants Congress the power to regulate interstate commerce, but does that mean that Congress can compel Americans to engage in specific commercial transactions? Several states and other plaintiffs have filed suit against this "individual mandate." How will those cases fare?

ObamaCare: Historic, but Is It Constitutional?

Federalist No. 78 - The Judiciary Department

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Free-Market Health Care Policy NCPA

We have a health care crisis because doctors, patients, employers and employees are trapped in a wasteful, broken system that is too bureaucratic and far too unresponsive to patient needs and market forces. To solve our problems, your doctor needs the opportunity to produce higher-quality, less-costly care. As a patient, you need access to services you are not now getting. At the workplace, you need
access to health insurance that costs less and gives you more.
At the NCPA, we believe sensible reforms, based on the innovative
and competitive nature of the free-market, would help us build a more sustainable health care system

NCPA Repeal and Replace

Repeal and Replace: 10 Necessary Changes

The National Center for Policy Analysis and four other think tanks are conducting a Capitol Hill briefing today to discuss 10 structural flaws in the Affordable Care Act (ACA).  The briefing will be shown live on C-SPAN at noon Eastern.  Below are five of the 10 flaws and solutions.
An impossible mandate.

• The ACA requires individuals to buy a health insurance plan whose cost will grow at twice the rate of growth of their incomes.
• Solution: Repeal the individual and employer mandates and offer a generous tax subsidy to people to obtain insurance.

A bizarre system of subsidies.

• The ACA offers radically different subsidies to people at the same income level, depending on where they obtain their health insurance.
• Solution: Offer people the same tax relief for health insurance, regardless of where it is obtained or purchased.

Perverse incentives for insurers.

• The ACA creates perverse incentives for insurers and employers to attract the healthy and avoid the sick, and to overprovide to the healthy and underprovide to the sick (to encourage them to leave).
• Solution: Instead of requiring insurers to ignore the fact that some people are sicker and more costly to insure than others, adopt a system that compensates them for the higher expected costs.

Impossible benefit cuts for seniors.

• By 2020, Medicare nationwide will pay doctors and hospitals less than what Medicaid pays.
• Solution: Medicare cost increases can be slowed by empowering patients and doctors to find efficiencies and eliminate waste.

Lack of portability.

• The single biggest health insurance problem for most Americans is the lack of portability.
• Solution: 1) Allow employers to do something they are now barred from doing: purchase personally-owned, portable health insurance for their employees; 2) Give retirees the same tax relief now available only to employees; and 3) Allow employers and employees to save for postretirement care in tax-free accounts.

Source: John C. Goodman, "What Most Needs Repealing and Replacing," National Center for Policy Analysis, January 17, 2011.
For text:
http://healthblog.ncpa.org/what-most-needs-repealing/
For more on Health Issues:
http://www.ncpa.org/sub/dpd/index.php?Article_Category=16

The Impact of the PPACA on the HI Trust Fund and on the Budget as a Whole

In a report released this afternoon, CBO and the staff of the Joint Committee on Taxation (JCT) estimated that the PPACA, incorporating the manager’s amendment, would reduce Part A outlays by $245 billion and increase HI revenues by $113 billion during the 2010-2019 period. Those changes would increase the trust fund’s balances sufficiently to postpone exhaustion for several years. However, the improvement in Medicare’s finances would not be matched by a corresponding improvement in the federal government’s overall finances. CBO and JCT estimated that the PPACA as amended would add more than $400 billion ($245 billion + $113 billion + interest) to the balance of the HI trust fund by 2019, while reducing federal budget deficits by a total of $132 billion by 2019.

What are national health accounts (NHA)?

They address a basic set of questions:

• Where do the resources come from?
• Where do the resources go?
• What kinds of services and goods do they purchase?
• Who provides what services?
• What inputs are used for providing services?
• Whom do they benefit?

According to the WHO

Three fundamental, interrelated problems restrict countries from moving closer to universal coverage. The first is the availability of resources. No country, no matter how rich, has been able to ensure that everyone has immediate access to every technology and intervention that may improve their health or prolong their lives.

At the other end of the scale, in the poorest countries, few services are available to all.
The second barrier to universal coverage is an overreliance on direct payments at the time people need care. These include over-the-counter payments for medicines and fees for consultations and procedures. Even if people have some form of health insurance, they may need to contribute in the form of co-payments, co-insurance or deductibles.
The obligation to pay directly for services at the moment of need – whether that payment is made on a formal or informal (under the table) basis – prevents millions of people receiving health care when they need it. For those who do seek treatment, it can result in severe financial hardship, even impoverishment.

The third impediment to a more rapid movement towards universal coverage is the inefficient and inequitable use of resources. At a conservative estimate, 20–40% of health resources are being wasted. Reducing this waste would greatly improve the ability of health systems to provide quality services and improve health. Improved efficiency often makes it easier for the ministry of health to make a case for obtaining additional funding from the ministry of finance.

The path to universal coverage, then, is relatively simple – at least on paper. Countries must raise sufficient funds, reduce the reliance on direct payments to finance services, and improve efficiency and equity. These aspects are discussed in the next sections.

Chief Justice John Marshall said very clearly in a case called Barron vs. Baltimore, 1833, that the Bill of Rights

"...demanded security against the apprehended encroachments of the [federal] government - not against those of the [state] governments... These amendments contain no expression indicating an intention to apply them to the state governments. This Court cannot so apply them."

Bill of Rights Purpose - Response of the Anti-Federalists

Federalists such as Alexander Hamilton and James Madison believed that a Bill of Rights was unnecessary because they didn't think that people were giving up these rights in the first place by accepting the Constitution. They also worried that if certain rights were spelled out in the Constitution as being protected, that it might imply that other rights that were not mentioned, were not protected.