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OpenMarket: Health Care

  • 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...
  • Economic "Recovery" Is Slow and Weak Due to Obama Administration Policies

    April 2, 2012
    Typically, after the economy suffers an unusually severe recession, it bounces back in an unusually rapid recovery -- what some economists and others refer to as the "rubber-band effect."  But not now. Despite the huge worldwide recession in 2008-09, the economy has experienced only a weak recovery, with fewer people employed in America today than when President Obama took office. "At this point in the typical post-World War II recovery, the economy was growing at an average pace of nearly 5 percent. The Obama recovery has managed just over 2 percent." As James Pethokoukis...
  • Obamacare: Constitutionality Argument Misses the Point Entirely

    March 29, 2012
    Conservatives are ebullient over the unexpected hostility and skepticism the government's lawyers faced from the Supreme Court Justices over the three days of hearings on the constitutionality of Obamacare.  In fact, so withering was the interrogation that the consensus of the Beltway-NYC elite has shifted virtually overnight from "Of course the Court will uphold it!" to "Oh my God! The individual mandate is doomed!" It is heartening to see the Justices take the constitutional question seriously, and entertaining to see them pick apart the very weak case(s) for the individual mandate that every American purchase health insurance or face government sanction. And it certainly seems more possible now than it did last week that the Court may throw the baby out, and the bath water too, for good measure. However, it is possible that this focus on constitutionality may someday backfire on...

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