Why the Supreme Court Should Uphold the Individual Mandate

Posted on Categories Business Regulation, Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, Health Care, Marquette Law School, Public, U.S. Supreme Court17 Comments on Why the Supreme Court Should Uphold the Individual Mandate

This afternoon, I participated in a debate with Rick Esenberg at the Marquette University Law School.  The debate was co-sponsored by the American Constitution Society and the Federalist Society.  I was asked to defend the constitutionality of the individual mandate imposed by the Affordable Care Act.  What follows are my prepared remarks.

Historians tell us that the connection between access to health insurance and employment was an accident. During World War II, wage and price controls prevented employers from increasing cash compensation for their workers. Employers wishing to recruit workers began to offer subsidized health insurance benefits as a way of avoiding this freeze on wages.

This is not a gift to workers from employers. We all pay for our health insurance with our labor. In return for our labor, we receive a combination of cash, employer provided benefits and non-cash prerequisites. The amount that employers pay towards our health insurance premiums is part of our income, which is why we are taxed on our employer-provided insurance above a certain level. The government encourages employers to offer health insurance benefits by allowing the employer to deduct these expenses as a business expense. About 60% of us receive health insurance through our employer.

The elderly and the disabled are not physically capable of working. Employer-based health insurance does not work for them. They receive their health insurance through Medicare. Participants pay certain deductibles and co-payments, but the bulk of the cost is imposed on the rest of us in the form of a payroll tax and the government then pays medical providers.

So our health insurance system has become tied to employment. As the costs of health care rise, it is increasingly difficult for middle and lower income Americans to afford health insurance unless they get it through an employer. This is because, as I mentioned, an employer will partially subsidize the cost of the premium as a component of total compensation. In addition, an employer can offer access to a plan that includes many other workers, thus broadening the risk pool and lowering the overall premium for each worker. An individual who seeks to purchase health insurance on their own gets neither of these two advantages. As health care costs continue to rise (an annual increase of about 8% in recent years), this cost differential becomes more significant. Continue reading “Why the Supreme Court Should Uphold the Individual Mandate”

Baldwin Stakes Out Health, Tax Positions for Fall Senate Campaign

Posted on Categories Congress & Congressional Power, Marquette Law School, Public, Speakers at MarquetteLeave a comment» on Baldwin Stakes Out Health, Tax Positions for Fall Senate Campaign

Two major policy differences between Tammy Baldwin, the only major Democratic candidate for the open US Senate seat, and any of the Republican candidates were clear when Baldwin sat down with Mike Gousha in an “On the Issues” session at Eckstein Hall this week. Both issues are almost certain to be in the spotlight when the race to succeed Democrat Herb Kohl heats up in several months. The two:

Health insurance. Baldwin, who represents south central Wisconsin, including Dane County, in the House of Representatives, supports the Affordable Care Act, while her opponents all want to see the law they call “Obamacare” repealed or overturned by the US Supreme Court. Baldwin told Gousha, the Law School’s distinguished fellow in law and public policy, “It’s not perfect, but it’s a step in the right direction that will lead to far greater coverage and, I hope, drive incredible improvements in quality, too.” She said that the plan for overhauling Medicare proposed by Republican Rep. Paul Ryan would be “a catastrophe” because it would eliminate guaranteed coverage for senior citizens. She said that as a child who was raised by her maternal grandparents and who had a major childhood illness that was not covered by their insurance, she learned early on the value of programs such as Medicare, Medicaid, and Social Security.

Tax reform, including the “Buffet Rule.” Baldwin said she was one of the first members of Congress to propose passage of what has come to be known as the “Buffet Rule” which would require people who make more than $1 million a year to be taxed at at least a 30% rate. The term comes from statements from billionaire Warren Buffet that he pays a smaller percentage of his income in taxes than his secretary does. The proposal has become a hot issue, with President Barack Obama campaigning for it in recent days. Baldwin said she wanted members of Congress to take a straight up or down vote on whether they support the idea.

Asked by Gousha how she responds to those who say she is one of the most liberal members of Congress, Baldwin said she would describe herself as a fighter who is not afraid to take on big, powerful interests. She said she is an advocate for the middle class and for those with lower income.

As for how to cut the deficit, she said she advocated steps such as ending the American military involvement in Afghanistan, which would save large amounts of money, as well as tax reform that goes beyond the Buffet Rule proposal.

Baldwin appears to be on her way to an effectively uncontested path to getting on the November ballot. On the Republican side, four candidates are aiming to be on the a primary ballot in August. They are former Gov. Tommy G. Thompson, former Rep. Mark Neumann, State Assembly Speaker Jeff Fitzgerald, and businessman Eric Hovde.

Baldwin said she knows Thompson the best of the four – she served in the Legislature while he was governor –and worked well with him in those years. But, she said, she sees him now moving to the right in his positions. “The gulf is getting wider” between her and candidates such as Thompson, she said.

In 2010, incumbent Democratic Sen. Russ Feingold was defeated by Republican Ron Johnson. Asked by Gousha what that said about her chances in 2012, Baldwin said she thinks the electorate in 2012 is going to be very different than the electorate two years ago.

Video of the one-hour session may be viewed by clicking here.

The Civil Jurisdiction of Indian Tribes

Posted on Categories Civil Rights, Congress & Congressional Power, Federal Indian Law, Public3 Comments on The Civil Jurisdiction of Indian Tribes

This is the fourth in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights; the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection; and the third explored the criminal jurisdiction of tribes. This post will examine the civil jurisdiction of tribes, both over members and especially over non-members, in each its three major forms: regulation, taxation, and adjudication.

As noted in the last post, tribal jurisdiction (not unlike federal and state jurisdiction) is uniquely limited in a manner that reflects the place and circumstances of tribes on the American legal landscape. In particular, each tribe is said to retain its original or inherent jurisdiction—the sovereign authority possessed prior to European contact and the subsequent formation of the United States—except insofar as such jurisdiction has been (1) relinquished or ceded by tribe itself through a treaty or other agreement, (2) expressly abrogated or taken away by Congress, or (3) deemed by the judiciary, especially the U.S. Supreme Court, to have been implicitly lost by virtue of the tribe’s historical circumstances and contemporary status. Continue reading “The Civil Jurisdiction of Indian Tribes”

Cockfighting, Congress, and Interstate Commerce

Posted on Categories Congress & Congressional Power, Constitutional Interpretation, Criminal Law & Process, Federalism, Public1 Comment on Cockfighting, Congress, and Interstate Commerce

Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several States . . . .” Federal prosecutors successfully applied the statute at the trial level, and now the case is before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.

The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.)  Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them. Continue reading “Cockfighting, Congress, and Interstate Commerce”