Posts Tagged ‘ObamaCare’

NFIB v. Sebelius quote of the day

“For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day,” [Georgetown law professor Randy] Barnett said. “For those of us in this fight to preserve the limits of constitutional government, this is not a bad day.” [Ezra Klein; more from Prof. Barnett at Daily Beast] Similarly, at more length: Sean Trende, RCP via Tom Smith, Right Coast. Contrasting views: Ilya Shapiro, Philadelphia Inquirer (“an unfortunate convergence of two unholy strains of constitutional jurisprudence: liberal activism and conservative pacifism”); Ramesh Ponnuru (“The resulting law may be a better one than Congress wrote. It is not, however, the law that Congress wrote.”).

And here is a podcast from the Cato Institute with colleagues Roger Pilon, Ilya Shapiro, Trevor Burrus, Michael Cannon, and Michael Tanner:

And a video interview with Trevor Burrus here. Don’t forget, if you didn’t check in on it at the time, yesterday’s periodically updated Twitter-scroll post with (at last count) 43 tweets and dozens of links to relevant posts and resources.

SCOTUS upholds ObamaCare mandate as tax

For the real reaction and analysis, you should check with my expert Cato colleagues here and here and (Ilya Shapiro) here. Here are a few additional things I had to say on Twitter, in reverse chronological order (with occasional, but not continuous, updating):

Yet more “cheer up, conservatives” readings, these from @NRO: [Garnett] [Whelan]

Roberts, Kennedy “delivered victory to the right in the one [battle] that mattered” [Scocca via Moller]

James Fallows: Constitution means whatever 19 of 21 con law profs say it means [Bernstein]

RT @davidfrum Randy Barnett’s Win

Why didn’t style-stickler Scalia clean up “majority status” scraps? Daring @David_M_Wagner theory: there wasn’t time

RT @Sam_Schulman look forward to Variorum Edition. RT @jpodhoretz: @Sam_Schulman @walterolson It’s a palimpsest! ?#dissent

Why’d the dissent need to include a big discussion of severability? Another fossil record of former majority-opinion status?

RT @PunditReview Great news, @walterolson will join us Sunday evening at 7:30 on WRKO to discuss the Obamacare ruling. #awesome #mapoli [Update: podcast here]

RT @Popehat Masterful rebuke to a comment troll MT @walterolson Bitch you in MY HOUSE NOW!

Balkinization blog entitled to victory lap for identifying path to today’s ruling;

Hee hee. “Romney website: ‘Mitt will nominate judges in the mold of CJ Roberts’” [@Jamie_Weinstein]

Commenter: Nyaah nyaah, you @overlawyered types say you’re anti-litigation but favored suit vs. ObamaCare. My response;

RT @robinmarty: It’s good that ACA is upheld, since there are some folk at CNN who will need insurance not tied to their employers soon…

“It now falls to Congress…” My colleague Roger Pilon on today’s ruling [Real Clear Politics]

What gets lost in today’s “tax but not a tax” ruling: political accountability [@mfcannon] [Bader]

Here’s a 6/20 prediction from @jtlevy calling it closer than anyone I’ve seen (via Virginia Postrel)

Stop beating on Roberts, he’s living up to “conservative minimalist” billing [Adler] [Ted Frank]

Randy Barnett: Cheer up, both federalism and enumerated powers doctrine did well today [SCOTUSblog]

Roberts avoided confrontation w/prevailing academic gestalt of feds’ Commerce Clause power [@lsolum]

More on “tax power yes, commerce power no” [Epstein] [@ishapiro] [Kerr]

Did Roberts chop down the broccoli stalk, or could it grow back as “tax”? [Somin] [@ProfBainbridge]

Evidence that Scalia’s Obamacare dissent drafted as majority opinion before a Roberts switch [Solum]

Cheer up: at least Roberts chopped down the broccoli stalk & bolstered states against feds [John Steele Gordon]

A tax, yet a non-tax: why court didn’t invoke Anti-Injunction Act to toss challenge [Tejinder Singh, @SCOTUSblog]

RT @TCBurrus Another Justice Roberts is now the new switch in time that saved nine. #SCOTUS #healthcare

RT @JasonKuznicki Americans: Pay this tax or buy a private company’s product. Corporatism at its worst, cheered on by the left. #aca

Roger Pilon: Ruling only a bump in road [@CatoInstitute] Legal battle’s just begun [Adler/Cannon]

RT @CatoInstitute Unhappy with today’s #SCOTUS decision on #ObamaCare? Watch this video on how states can refuse to go along with it

Per Goldstein at SCOTUSBlog, Roberts reasoning on Commerce Clause is super-narrow, won’t help the libertarian side much in future cases.

Exploding-cigar ad hominem argument of the day: RT @MaxKennerly Has John Roberts gone even a minute in his life without health insurance?

The clouded crystal ball: “Why Chief Justice Roberts Won’t Side with the Liberals on Obamacare” [on @NRO yesterday]

@sethmnookin I’m not convinced achievements are as big a motivator as “stop our evil opponents” outrage, which Roberts undercut (for Dems).

Can’t say I’m surprised at ACA. With rare exceptions, the Court behaves as a small-c conservative institution.

Republican outlook for November just got big boost. So maybe Jeff Toobin’s right to claim Roberts looks after GOP interests.

RT @@NYDNHammond Robertscare

RT @Hudsonette: haha RT @delrayser: CONVENE THE DEATH PANELS!

Tom Goldstein of @SCOTUSBlog predicts Court will uphold ACA

Liberals shouldn’t defend FDR’s attacks on the Court” [Megan McArdle]

All indications are Dems planning all out assault on the court if it overturns PPACA” Don’t, says @toddeberly

RT @macrmccoy I love Web 2.0. RT @ABAJournal: Obama Will Learn Fate of Health Care Law Through SCOTUSblog, Media

“Judicial activism!” placards all made up. Now the only question is which side to hand them to come 10 a.m. [Alt]

Randy Barnett thanks those who made the SCOTUS ObamaCare challenge possible [@VolokhC]

RT @santaclaralaw #healthcarereform? Randy Barnett interview with Politico: You can find it here. #sculaw

Medical roundup

  • Government’s hospital care guidelines may be fueling dangerous overuse of antibiotics [White Coat] FDA says fewer drugs are in shortage [Reuters, earlier here, etc.]
  • “Post-tort-reform Texas doctor supply” [Ted Frank/PoL and commenters] “Change in Procedures Lets Medical Malpractice [Insurance] Industry Thrive” [PC 360]
  • Forcing companies to make politicized disclosures to customers implicates First Amendment [Hans Bader on HHS “must credit ObamaCare” reg]
  • Iqbal and Twombly SCOTUS decisions on pleading have helped protect pharmaceutical defendants from flimsily based suits [James Beck, who has changed law firms to Reed Smith]
  • How accurate is hospital data coding? Ask thousands of pregnant British men [Nigel Hawkes via Flowing Data]
  • Class-action-fed boom in Medicaid dentistry + “let’s put docs in schools” idea = scope for horrific abuse, no matter how it’s financed [Bloomberg via Jesse Walker]
  • Suits blaming obstetricians for cerebral palsy rack up $78 million win in Philadelphia, $74 million in California [Legal Intelligencer, Cal Coast News]
  • Ninth Circuit: on reflection, let’s not seize control of VA mental health programs [AP, earlier here, etc.]

Disagree with your AG? Sue him.

Rob McKenna, attorney general of the state of Washington, is among many state AGs who has joined in courtroom challenges to ObamaCare. Now a local “public interest” law firm, Smith & Lowney, has sued McKenna on behalf of a group of residents who disagree with that decision, saying he is breaching his duty to represent the state’s citizenry by taking a view contrary to theirs. [KOMO]

Medical roundup

NYT profiles Randy Barnett

The Times devotes a front page profile to the Georgetown law professor (and Cato colleague),who is more closely identified than any other thinker with the legal case against ObamaCare’s individual mandate. (More: ABA Journal, Bernstein/Volokh, Chicago Reader.) I’ve known Prof. Barnett and admired his work for longer than I can remember and this gives me the chance to point out self-servingly that he also wrote one of the very nicest blurbs for my book Schools for Misrule:

“While the public loves to bash lawyers, judges, and politicians, law professors have escaped all blame. Olson provides the inside story of how progressive political ideology became the reigning orthodoxy of elite legal education, providing the legal theories responsible for an overweening government committed to mandating, prohibiting, or regulating every aspect of American life in the ‘public interest.’ I wish I could say he exaggerates but, sadly, the legal foundation of the road to serfdom was devised by law professors.”

— RANDY E. BARNETT, Carmack Waterhouse Professor of Legal Theory, Georgetown Law Center; author of Restoring the Lost Constitution: The Presumption of Liberty

March 12 roundup

Scope of existing state employer-contraceptive mandates

It has been asserted in various outlets that many states already mandate contraceptive coverage, that the Catholic church has been content to live with those mandates, and so that the current firestorm over the ObamaCare provision must just be something cooked up by Republican consultants. Here is a response from the National Council of Catholic Bishops via NR’s Kathryn Lopez:

6. The federal mandate is much stricter than existing state mandates. HHS chose the narrowest state-level religious exemption as the model for its own. That exemption was drafted by the ACLU and exists in only 3 states (New York, California, Oregon). Even without a religious exemption, religious employers can already avoid the contraceptive mandates in 28 states by self-insuring their prescription drug coverage, dropping that coverage altogether, or opting for regulation under a federal law (ERISA) that pre-empts state law. The HHS mandate closes off all these avenues of relief.

More on the controversy from my Cato colleague Roger Pilon and from Jonathan Rauch. And: John Cochrane on the wider folly of letting the feds mandate contraceptive coverage in the first place: “Sure, churches should be exempt. We should all be exempt.”