ObamaCare Is Still Constitutional

Today I particpated in another debate over the constitutionality of the Affordable Care Act’s individual mandate.  At the invitation of the Milwaukee Chapters of the Federalist Society and the American Constitution Society, I debated Robert Levy of the Cato Institute over luncheon at the Milwaukee Athletic Club.  My thanks to our hosts, to Mr. Levy, and to the audience.  Below are my prepared remarks.  My previous post on the consitutionality of the individual mandate can be viewed here.

In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army.  He did not use his toast to offer a tribute to individual liberty.  Nor did he sing the praises of limited government.  Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

We must never forget that our Constitution is a document that was intended to create competent powers for Congress for general purposes.

Much of what Mr. Levy cites in oppostion to the individual mandate is based upon abstract principles.  However, when we interpret the Constitution, we do not begin with abstract theories of political philosophy, and then attempt to shoehorn those theories into the text.

Instead, when we interpret the Constitution, we begin by looking to the text itself.

The power to “regulate,” which is the power delegated to Congress under the Commerce Clause, is the power to prescribe the rules by which commerce is governed.  The word “regulate” means “to direct” or “to command.”  Therefore, the plain meaning of the word “regulate” in the text includes a grant to Congress of the power to require action.

Continue ReadingObamaCare Is Still Constitutional

SCOTUS to Decide on Padilla Retroactivity

Earlier today, the Supreme Court granted cert. in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). Chaidez held that the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), would not be applied retroactively to defendants whose convictions were already final when Padilla came out. In Padilla, the Court held that a lawyer performs below minimal constitutional standards when he or she fails to advise a client of the deportation risks of a guilty plea. Now, the Court itself will have an opportunity to determine whether its decision should have retroactive effect.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whether Padilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

Continue ReadingSCOTUS to Decide on Padilla Retroactivity

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 ReadingWhy the Supreme Court Should Uphold the Individual Mandate