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OpenMarket: Health and Safety

  • Dietitian Licensing Board Attempts To Limit Free Speech, Silence Bloggers

    July 11, 2012
    Have you ever given someone advice on how to lose weight through dietary changes? Have you ever recommended that certain foods could be consumed or avoided to aid in sleep, stress, or intestinal issues? Well then, according to the North Carolina Board of Dietetics and Nutrition, you should be thrown in jail for up to a month and a half. Now, newly leaked documents prove what many suspected from the beginning: the effort to silence unlicensed dietitians and online bloggers giving nutritional advice is all about eliminating competition for the Board of Dietetics’ licensed members. The issue received national attention earlier this year after Steve Cooksey, an online blogger promoting the “Paleo” diet, received a letter from the Board of Dietetics telling him that his blog violated state law. By providing advice on his blog for free  and also providing coaching for a fee, the Board of...
  • Court's Obamacare Decision -- What Would John Locke Say?

    July 2, 2012
    Richard Epstein of the Hoover Institution and the University of Chicago Law School gives the Chief Justice some tough love in "What Was Roberts Thinking? The Chief Justice was neither an umpire nor a statesman. Only a lawyer." There are many wise words in Prof. Epstein's column, which I heartily encourage anyone visiting this site to read. My only quibble is that the professor could have been harsher on the Honorable John Roberts. Really, Roberts held that the Obamacare individual mandate is a penalty not a tax so the Court could take jurisdiction but that the mandate is a tax not a penalty so the Court could uphold mandate's constitutionality. Why do Congress’s words (“penalty”) not the provision's alleged function (“tax") count for determining standing but the alleged function not the words count for...
  • The Good, the Bad, and the Broccoli

    July 2, 2012
    Most people thought that the health care decision would hinge on the Court’s interpretation of the Commerce Clause. That’s why I wrote the first three posts in this series; to catch everyone up on the clause’s history before the ruling. Thankfully, the Roberts Court ruled the right way on commerce. They decided that forcing someone uninvolved in commerce to enter into it is not legitimate regulation. That’s good. But they still upheld the mandate under Congress’ power to lay and collect taxes. That’s very bad. The now-infamous broccoli question -- whether it would be constitutional for Congress to require all Americans to eat broccoli -- turned out not to be a yes-or-no question. Technically, the answer is no. Practically, the answer is yes. While the government can’t force you to buy broccoli, it can now penalize you with taxes if you don’t. Whatever your opinion of the health care...
  • Obamacare Lives. So, Now What?

    June 29, 2012
    Former CEI scholar Tom Miller (now with AEI) has some thoughts on the Obamacare decision in today's Los Angeles Times. Tom summarizes the meaning of yesterday's decisions, but the meat of his article is spent asking, in his very thoughtful way, "What's next?"
    "We have already heard cries for repealing the law in Congress, but the fact is that most of the healthcare industry is resigned to shrugging its shoulders and falling back into line with the political deals it cut with the Obama administration several years ago. The political case for repeal will become much stronger among grass-roots voters — particularly independent ones — outside the Beltway this fall if it is...
  • CEI Podcast: June 28, 2012: The Obamacare Decision

    June 28, 2012
    General Counsel Sam Kazman shares his thoughts on the Supreme Court's health care decision, the Commerce Clause, Congress' taxation power, and more.
  • Supreme Court Concocts New "Rational (Tax) Basis" Test in Upholding Health Law

    June 28, 2012
    In a move that seems to have surprised many observers, the Supreme Court today upheld nearly all of the Patient Protection and Affordable Care Act by a 4+1 to 4 majority (I'll explain the math below). Chief Justice John Roberts, who wrote the Court's opinion, joined with the four liberal justices in affirming the individual mandate and essentially all of the Medicaid provisions. The Court's three reliable conservatives, plus Justice Kennedy, wrote in dissent that the entire law should be ruled invalid. The opinions can be read in their entirety here. Addressing the question of the individual mandate, Roberts agreed that the mandate was not a proper exercise of Congress's commerce power:
    "The power to regulate commerce presupposes the existence of commercial activity to be regulated. ... As...
  • Obamacare Upheld, 5-to-4: A Perverse Decision That Undermines Political Accountability

    June 28, 2012
    Today, in a really perverse ruling, the Supreme Court upheld Obamacare's individual mandate as a tax in a 5-to-4 decision, even though Obamacare's supporters repeatedly denied when they were passing it that it was a tax. (The Court did concede that the individual mandate wasn't valid under the Constitution's Commerce Clause, so it instead relied on Congress's tax power.) This ruling lets politicians avoid the political heat by denying that something is a tax in order to pass it (as President Obama and congressional leaders did, to deny that they had broken Obama’s pledge not to raise taxes on...
  • Quick Thoughts on the Health Care Ruling

    June 28, 2012
    The Supreme Court upheld the health care bill, as you've no doubt heard by now. Over at the Daily Caller, I offer a few quick thoughts about the decision.
  • Supreme Court Issues 5-to-4 Rulings, But Not On Obamacare

    June 18, 2012
    The Supreme Court announced four decisions today, three of them decided by slender 5-to-4 margins, but not the long-awaited ruling about the constitutionality of Obamacare. I discuss these four decisions at this link. Two of the three decisions in which the court split 5-to-4 were cases in which there was no ideological division among the justices, and both liberal and "conservative" justices joined the majority opinion. That, too, is unremarkable, as I...
  • More First Amendment Violations from Obamacare, Thanks to HHS

    May 15, 2012
    Obamacare will drive up costs for most patients and insurance policyholders. Yet "health-insurance companies must tell customers who get a premium rebate this summer that the check is the result of the Obama administration's health-care law, according to federal guidelines released Friday. . . .Rules finalized by the Department of...

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