Jeb! calls for convention of states

In the weeks since the election, Jeb(!) Bush has been conspicuously absent. He ended his absence today with a surprising op-ed in the Wall Street Journal that, among other advice to the president-elect and the Republican Party, calls for a convention of states to amend the Constitution.

Bush, who acknowledges that Mr. Trump “tapped into the anger and deep distrust that voters feel toward Washington” and the belief that “our system is skewed in favor of the powerful and the connected,” points out that “This election was more about voting against something than voting for something. Americans voted against the ‘establishment,’ against the country’s changing culture, against a dysfunctional Washington, against the privileged, against Hillary Clinton—and, yes, against Donald Trump.”

Bush notes that, even though Republicans won a decisive electoral victory, neither Trump nor the party is popular. To assume that the election results are a mandate for everything that Trump campaigned on, even as he trails by more than 2 million popular votes, might lead to the same trap of federal overreach that ensnared Barack Obama.

Instead, Bush argues for a positive agenda that will appeal to the majority of Americans. “Americans, by wide majorities, agree that Washington is broken, so let’s send power back to the people and back to the states,” Bush writes. “Republicans should support convening a constitutional convention to pass term limits, a balanced-budget amendment and restraints on the Commerce Clause, which has given the federal government far more regulatory power than the Founders intended.”

What Bush is referring to here is typically referred to as an “Article V convention” or a “convention of states,” an alternative method of amending the Constitution that has never been used, but that has been much discussed in recent years. Article V of the Constitution provides that two-thirds of the states can call a constitutional convention and amendments can then be ratified by three-fourths of the state legislatures or conventions in three-fourths of the states. This would require 34 states to call for the convention and 38 states to ratify.

While the election of 2016 may give Republicans their best chance at a successful Article V convention, it is by no means a slam dunk. Ballotpedia shows that starting in 2017, Republicans will control all three branches of government in 25 states. While this is a historic high, it falls short of the number of states required to ratify an amendment or even call for a convention. Conversely, only five states are completely controlled by Democrats. This falls short of the 13 states needed to block an amendment.

These numbers give the Republicans have an advantage, but the 20 states with bipartisan government control will be decisive. A constitutional convention would be dominated by Republicans, but there would be no blank check. Republicans would be forced to compromise to amend the Constitution.

Perhaps realizing the difficulty of amending the Constitution, Bush offers an agenda that can be accomplished through Congress. “Most critically, Republicans should reverse the Obama-era policies that have made America weaker, both here and abroad. We need to repeal and replace ObamaCare, eliminate business-killing regulations, and reverse the massive expansion of government. While we protect our borders and our laws, we should also take on the hard work of reforming legal immigration and affirming the role that immigrants play in building up our economy and our nation.” Bush also calls on the new president to “restore American leadership in the world” and “protect and reassure our friends and allies.”

He also calls upon Republicans to repair their party’s tarnished image. “Republicans must restore our brand as the party of conservative ideals, shared prosperity, liberty and responsibility,” he writes. He stresses that this should be done “without stooping to the identity politics of the left. Let’s not focus on angst, grievance and division over race, class or gender.”

Bush makes the point that Trump’s victory was neither a license for Republicans to take reckless action or an excuse to take the reins of power and then rest on their laurels. Democratic overreach and disregard for the will of the people is what handed the Republicans this victory. The voters will hold Mr. Trump accountable if he does not follow through with his promise to “make America great again.”

“The GOP has no excuse for failure,” Bush writes. “We are in charge of both the executive and legislative branches in Washington, and we dominate in the states like never before. We have the power to set the agenda, and we have the responsibility to govern, not merely on behalf of the voters who supported President-elect Trump, but for all Americans.” 

SCOTUS ruling not the end for Obamacare opponents

President Obama finally got some good news today.

The Supreme Court, in a 5-4 decision, upheld most of the Affordable Care Act, including the individual mandate, today. In a stunning proof that judicial activism can cross ideological lines, Chief Justice John Roberts joined the Court’s liberals in finding that the individual mandate is constitutional under Congress’ authority to tax.

There was some good news for those who oppose Obamacare as well according to a Wall Street Journal analysis. The Court decided that the federal government could not expel states from Medicare if they refuse to comply with the law. The Court also limited abuse of Commerce Clause by stating that the Affordable Care Act was not permitted by Congress’ power to regulate interstate commerce.

Following the Battle of Bunker Hill, British General Sir Henry Clinton wrote that it was “A dear bought victory, another such would have ruined us." The same is likely true for President Obama of today’s victory.

Obamacare was not popular before it passed. It took parliamentary tricks and bribery to pass the law over strong public opposition, even with large Democratic majorities in both houses of Congress. The Cornhusker Compromise and the Louisiana Purchase will long be remembered with scorn. The deal that pro-life Democrats won from President Obama to keep federal money from funding abortion has already been forgotten as new mandates force all insurers to cover abortifacient drugs. Many Democrats who voted for the law are no longer in Congress due their violation of the public trust. Next January, there will be even fewer.

Obamacare is still not popular. Immediately after passage 55 percent of Americans favored its repeal according to Rasmussen. Forty-two percent were opposed. Last week, Americans still favored repeal by 54-39 percent. President Obama and the Democrats went to the wall to fight for a law that Americans oppose by a landslide.

In Georgia, a plaintiff in the lawsuit, Gov. Nathan Deal and Attorney General Sam Olens issued a joint statement on the ruling. Deal said, “Today, the highest court in the country let the American people down.”

Olens agreed, ““I disagree with this decision. Congress explicitly said this was not a tax. I call on Congress to act swiftly, repeal the law and replace it with real reform that respects the Constitution as written.”

Americans don’t like to be told what to do and they don’t like to be lied to. The Democrats have committed both sins. Most Americans know that the law was passed on lies. Americans were told that Obamacare would cut insurance premiums. Since the law was passed, premiums have risen even faster than before according to Forbes. Americans were told that Obamacare would decrease the deficit and be revenue neutral. A new study by the Mercatus Center says that the law will add more than a trillion dollars to the deficit. Americans were told they could keep their insurance and that everyone would have coverage. The Congressional Budget Office says that the law could cause 20 million Americans to lose their insurance. Barack Obama promised that there would be no tax increases for the middle class. In reality, the Heritage Foundation points out that the law includes $500 billion in tax increases, much of which will be borne by the middle and lower classes. While portraying themselves as anti-corporatists, the Democrats were secretly working with the health insurance companies to pass the law according to emails published in the Wall St. Journal.

Most glaringly, Americans were told that the individual mandate was not a tax. President Obama himself told CBS News that “I absolutely reject that notion” [that the individual mandate is a tax] when queried. "What it's saying is, is that we're not going to have other people carrying your burdens for you anymore," Obama continued. "Right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase."

Yet that is how the government presented its case in court. That is how the Court interpreted the law in order to find it constitutional, even though the law itself structured the mandate as a penalty, not a tax. It is obvious that President Obama and the Democrats lied.

Today’s defeat is not the end of the opposition to Obamacare. The law will ultimately be defeated. One effect of the ruling will be to fire up opponents of Obamacare for the November election. Mitt Romney will likely succeed President Obama and the Republicans will likely gain control of the senate. If the Republicans control both Congress and the White House, Obamacare’s days will be numbered.

Even if the Republicans are unable to repeal the law, it will almost certainly collapse under its own weight. Obamacare is too complex and unwieldy to succeed. It ignores market realities in exchange for centralized mandates and does nothing to control costs. The trillions that it adds to the deficit will add to the risk that the United States economy will collapse in the same manner of the European countries. Obamacare will not work any better than the stimulus or Obama’s other economic initiatives if it is allowed to take effect.

Even if repealed, the lasting legacy of Obamacare will be that it fundamentally and irrevocably changed the relationship between the American people and their government. Until today, the government had no power to coerce its citizens into engaging in commerce. Now, with the Supreme Court’s blessing, the federal government has no practical limits on its power as long as it can configure its mandates as a tax. Obamacare has left a gaping hole in America’s constitutional protections.

The Democrats will certainly expect to use that precedent to expand their power if the voters allow them to. After the arrogance, disregard for the law, and blatant lies of the Democrats and the Obama Administration, Americans should think long and hard before ever letting liberals near the levers of power again.

Obamacare ruling is election wild card

The Affordable Care Act finally gets its day at the Supreme Court this week. Although it may be several weeks before the Court publishes its ruling on the case, it is a sure thing that, whatever the ruling is it has the potential to have an explosive impact on the elections in November.

There are four likely outcomes for the Supreme Court ruling. First, the Court could rule that challengers to the law have no standing to sue since they have not had to pay the fine for not purchasing health insurance. This would delay a decision on the law for two to three years until after it takes full effect. Most observers consider this unlikely. Next, the Court could uphold the law in its entirety. Conversely, the Court could strike down the entire law. Finally, the Court could throw out part of the law, the individual mandate for example, and allow the remainder to stand.

The ruling will have an uncertain effect on the election. Hints at how the voters will view the ruling can be gleaned from two recent polls. According to Rasmussen, likely voters have never favored the health law. Immediately after passage in 2010, repeal was favored by a margin of 55-42 percent. In the most recent poll, taken on March 17-18, repeal was favored by 56-39 percent. Within those numbers are 46 percent who strongly favor repeal versus only 29 percent who strongly oppose it.

In a USA Today/Gallup poll of adults, Americans were split 45-44 percent on the question of whether passage of the ACA was good or bad, but the same poll shows that 38 percent believe that the law will make things worse for their family. Only 24 percent believe it will make things better. A strong majority of 72 percent believe that the individual mandate is unconstitutional. Only 20 percent believe that the requirement to purchase health insurance or pay a fine is legal under the Constitution.

Since Americans overwhelmingly oppose the ACA, Republicans have the most to gain from the Supreme Court’s decision. A victory for the administration or a muddled outcome, such as a decline to rule on the law or striking it down only in part, seems likely to aid Republicans because of the large number of Americans who strongly oppose the law. If the Court leaves the law largely intact, Republican candidates who promise to repeal the law if elected will tap into that voter anger. Anger at Democratic spending and the expansion of government fueled a landslide Republican victory in 2010 and if the Supreme Court upholds the ACA it could fuel a similar result this November.

Democrats have little to gain electorally from a Supreme Court victory. If the law is upheld, it may keep President Obama’s legacy from being tarnished as it would have been if it was found unconstitutional, but Obamacare is still a fundamentally unpopular law that was enacted without the support of the people. A reform that was supposed to have kept health insurance costs down has instead contributed to their increase at twice the normal rate of growth according to Kaiser and the cost of the law, which was touted as a plan that would reduce the deficit, is now projected cost almost double the initial estimates. If the law goes into effect, people may well find that there is even less to like about it than was previously thought.

Rep. Tom Price (R-Ga.), who is also an orthopedic surgeon, told Newsmax.com, “Both fiscally and for the sake of our health care system, Americans cannot afford the president’s healthcare law. The longer the president’s healthcare law remains on the books, the greater the threat it poses to our nation’s healthcare and our fiscal well-being.” He continued, “The CBO’s revised cost estimate indicates that this massive government intrusion into America’s health care system will be far more costly than was originally claimed. The law’s true cost to American taxpayers is part of a series of promises President Obama and Democrats in Congress made that will be broken.”

On the other hand, if the Supreme Court strikes down the law, it won’t necessarily help Republicans or hurt Democrats. A major source of contention will have been removed from the political landscape and voters who would have voted for Republicans because they opposed the ACA may move to other issues where they are more moderate. Similarly, the voters who favor the law, almost all of whom are probably Democratic voters anyway, are unlikely to be influenced by an unfavorable Supreme Court decision.

The biggest casualty of a decision sustaining Obamacare and the individual mandate would likely be the American people’s faith in government. Public opinion has been against the bill from the very beginning. Revelations of backroom deals like the “Cornhusker Compromise” and the “Louisiana Purchase” further hurt the law’s image even before it was passed. The abuse of parliamentary procedure to avoid a Republican filibuster further inflamed public opinion.

The United States has reached a point where trust in government is near 20-year lows. According to Gallup, only 19 percent trust the government most of the time. In a separate poll from Gallup last year, the federal government rated dead last in approval among a list of industries. The -46 percent net approval rating put the federal government at a historic low. Notably, respondents told Gallup that they rated state and local governments far higher than Congress or the president.

The Supreme Court is viewed more positively. Gallup’s approval rating for the Court is 46 percent versus 40 percent who disapprove. This can be compared to the approval rating for Congress at 12 percent. Sixty-three percent of Americans still trust the Supreme Court. However if the Supreme Court votes to uphold an unpopular law that was never wanted by a majority of the American people, a law that the majority of voters believes overwhelmingly to be unconstitutional, then the Supreme Court may face the same loss of trust and approval that the other branches of the federal government have experienced.

This is the great tragedy of the Obama era: that a president who once had the support and admiration of nearly all of the country, a president who pledged to eschew the “politics of cynicism” for the “politics of hope,” would become even more divisive than his predecessor; that a president who once preached the practicality of compromise and the need for national unity would use his position to short-circuit the democratic process, circumventing the will of the people and their elected representatives in Congress. The unpopularity of the Affordable Care Act and federal government itself is symbolic of the failure of President Obama to unite the people of the United States.

Originally published on Examiner.com:

http://www.examiner.com/elections-2012-in-atlanta/obamacare-ruling-is-election-wild-card

Supreme Court to hear Obamacare case this week

Next week the long awaited Supreme Court hearing on the Affordable Care Act, better known as Obamacare, will finally take place. The hearing comes just over two years after the law was passed. In a rare move, the Court is scheduling three days of oral arguments for the various aspects of the Affordable Care Act case. Typically, the Court hears two one-hour oral arguments each day that it is in session.

The Court has consolidated six lawsuits against the government about the Affordable Care Act. Four questions will be addressed. First, the Court will decide whether the Anti-Injunction Act means that the Court has no jurisdiction until the ACA goes into effect. The Tax Anti-Injunction Act of 1867 holds that a person protesting a tax in court must first pay the tax. The government’s position is that the fines that are levied as part of the individual mandate is a tax and therefore the court cannot hear the lawsuit against the tax until it is assessed. The individual mandate does not go into effect until 2014. The flaw in this defense is that President Obama and the Democrats specifically denied that the fine was a tax before the bill passed.

Second, the Court will address the question of the individual mandate, called the “minimum coverage provision” in court filings. The government holds that the Constitution’s Commerce Clause gives it the right to regulate the health insurance industry. Opponents argue that the failure to purchase health insurance is not commerce and therefore cannot legally be regulated by the federal government.

The government also argues that the mandate is also permissible under the Necessary and Proper Clause. Opponents argue that the Necessary and Proper Clause does not give the federal government the power to enact legislation that is otherwise unconstitutional because it is not among the powers granted to the government by the Constitution.

Next, the Court will determine whether the individual mandate is severable from the rest of the law. Generally, laws contain a severability clause that says that if any part of the law is found unconstitutional, the remainder shall remain in force. The ACA, for whatever reason, does not contain such a clause. Therefore, opponents argue that if the mandate is deemed unconstitutional then the entire law must be struck down. The government will argue that the rest of the law should stand even if the mandate is struck down.

Finally, the Court will hear whether ACA’s expansion of Medicaid places an unconstitutional burden on the states. Under the ACA, the states are required to expand Medicaid eligibility to an estimated 16 million people according to Yahoo. States that refuse will lose matching federal funds for their Medicaid programs. Twenty-six states have filed suit claiming that the Medicaid expansion is an unconstitutional violation of the Tenth Amendment, which states that powers not delegated to the federal government are reserved to the states and the people. Georgia is a party to this lawsuit.

Proponents of the law argue that courts have supported Congress’ ability to mandate that the states carry out programs that are paid for by federal money. They also note that the Medicaid expansion is paid for by federal funds for the first ten years.

Americans remain split on the Affordable Care Act. According to a recent USA Today/Gallup poll, 45 percent believe that it was a good thing that Congress passed the law versus 44 who believe it was bad. However, most believe that the law will make things worse for their family by a margin of 38-24 percent. An astonishing 72 percent Americans believe that the individual mandate is unconstitutional.

Public opinion notwithstanding, the decision is likely to be 5-4 in one direction or the other. The Court’s four liberals, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, are almost certain to vote in favor of the health care law. The Court’s four conservatives, John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito, are just as likely to vote to overturn it. That leaves Anthony Kennedy, appointed by President Reagan but often a swing vote, as the likely deciding vote.

Regardless of the outcome, the decision will affect almost all Americans. The public will have to wait for the outcome, however. Even though the Court will hear arguments in the first three days of next week, a decision on the case may not be published for several months. Most decisions are not issued until the last months of the term: May, June and July.

 

Originally published on Examiner.com:

http://www.examiner.com/conservative-in-atlanta/supreme-court-to-hear-obamacare-arguments-this-week

Obamacare ruled unconstitutional

Obamacare is in legal trouble (Maverick2003)

In a welcome Christmas present to the majority of Americans who oppose President Obama’s health care reform law, a federal judge ruled the individual mandate to purchase health insurance unconstitutional this week.  US District Judge Henry Hudson declined to overturn the whole law, but said that requiring Americans to purchase health insurance “would invite unbridled exercise of federal police powers” as part of his 42-page ruling.

This is the third time that the health care law has had its day in court.  In October, a federal judge in Michigan ruled that a decision not to purchase health insurance was an activity that could “substantially affect interstate commerce” and could be regulated under the Constitution’s commerce clause.  In November, another judge in Virginia similarly found that the mandate was constitutional on the grounds that “Far from ‘inactivity,’ by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.”  This meant that the commerce clause could be applied.

In contrast, Judge Hudson pointed out that the Democratic interpretation of the commerce clause was too broad.  “…  The same reasoning could apply to transportation, housing, or nutritional decisions.”  In other words, the government could solve the auto industry crisis by requiring everyone to buy a car, the homeless problem by requiring everyone to buy a house, and the obesity problem by requiring that everyone buy only healthy food.  If the government can force you to buy one product or service, there is no limit to what it can force you to do.

Additionally, Judge Hudson pointed out that requiring to Americans to engage in a private business transaction is unprecedented.  States require that drivers buy car insurance, but the health care mandate is different in several key points.  Auto insurance is not required for everyone; it is only required for people who want to operate vehicles on roads that are owned by the state.  Additionally, states are bound by their own constitutions and many of these do not have the same limitations of the US Constitution.

Judge Hudson also addressed the Administration’s claim that the individual mandate is constitutional under the government’s power to tax.  The mandate’s fine was clearly intended to be a punishment for not purchasing health insurance.  President Obama and other Democrats claimed before passage of the law that the fine was not a tax.  These claims were made in part because of President Obama’s promise not to raise taxes on middle and lower-income Americans.  Judge Hudson noted that the fine “lacks a bona fide intention to raise revenue” and therefore was not a tax.

There is yet another lawsuit winding its way through the courts as well.  In addition to Virginia’s suit, twenty states led by Florida are suing to overturn the law as well.  A federal judge in Florida had refused to throw out the case in October.  A hearing is scheduled for December 16.

Georgia is a party to the Florida lawsuit.  After (outgoing) Democratic Attorney-General Thurbert Baker refused to join the lawsuit, Republican Governor (also outgoing) Sonny Perdue was forced to appoint a Special AG to fight the law.

If the individual mandate is thrown out, then Obamacare will become unworkable.  The law’s mandates, such as not allowing insurance companies to turn away people who are already sick, would mean that health insurance would become either prohibitively expensive or unprofitable for insurance companies.  In the first case, people couldn’t afford it and there would be more uninsured.  In the second, there would soon be no insurance companies left to write policies.  Obamacare is already causing shortages of health insurance and rising health insurance premiums.  The government is already granting more and more exemptions from the health care law’s provisions.  It is becoming apparent that the law is an unpopular failure and a ruling against the mandate would speed its demise.

It is extremely likely that the case will eventually find its way to the Supreme Court.  A ruling there against Obamacare, while not assured, seems likely given the current makeup of the Court.  Interestingly, the recent rulings against Obamacare reflect a partisan bias by judges.  Both judges (George Steeh and Norman Moon) who upheld the law were appointed by President Clinton.  Both judges who ruled in favor of the challengers to the law were appointed by Republicans.  Roger Vinson was appointed by President Reagan and Judge Hudson was appointed by President George W. Bush.

This partisan divide underscores the key difference in judicial philosophy between Republicans and Democrats.  Democratic appointees typically favor activist judges who often rule the way they believe the law ought to be rather than how it is written.  In contrast, Republican appointees usually favor strict constructionists who rule based on actual wording of the law and the intent of Congress.  This means that Democratic appointees usually grant the government much more latitude to expand its control into American life.  It is yet another reason to consider party affiliation when voting.

http://www.examiner.com/conservative-in-atlanta/obamacare-ruled-unconstitutional">