Monthly Archives: March 2010

Hank Skinner Execution Update: Texas Board of Pardons and Paroles Deny DNA Test Request

All seven members of the Texas Board of Pardons and Paroles Death Panel voted earlier today to deny Hank Skinner’s request to have DNA samples tested. Unless Gov. Rick Perry or the U.S. Supreme Court intervenes, Hank Skinner will be executed this Wednesday as scheduled. The courts have rejected Skinner’s requests for the DNA tests for over a decade; the rationale being that Skinner failed to request the tests during the original trial.

Supposing for a second that the courts have a valid point,* I would argue that there is more than one interest that is not being served other than Skinner’s. For one, if someone other than Skinner committed these murders, the courts are allowing this person to escape the justice the victims’ families so righteously deserve. If Skinner did kill these individuals, there will be lingering doubts by his supporters and he will become a martyr.

I think there is even a more fundamental question though: What is the true purpose of our criminal justice system? If the purpose is to determine the truth, then the interest of truth is also sacrificed in the process. If, however; the purpose is process – regardless of how absurd/the truth be damned as Alito, Roberts, and the seven members of the Texas Death Panel apparently believe, then I suppose the courts are working just as they should.

Where will Gov. Perry/ SCOTUS fall, on the side of truth or process?

For those of you who abhor the idea that an innocent man could be put to death in the name of process and would still like to try to influence the governor’s decision to grant a 30 day reprieve, here is the contact information one more time:

Opinion Lines
Texas callers: (800) 252-9600
Out of state callers and Austin residents: (512) 463-1782

Office of the Governor, Main Switchboard (from 8:00 a.m. to 5:00 p.m. CST): (512) 463-2000

Office of the Governor Fax: (512) 463-1849

The Innocence Project also has an easy petition that only takes a few minutes to fill out.

If you cannot get through on the “Out of state” line, try the main switchboard. I tried both today; I had no success with the Out of state but actually talked to a real person immediately who said she “would pass my message on to the governor” when I called the switchboard (so don’t be rattled if someone actually answers). Be polite but get your point across.

With that, let me leave you with a closing thought from Dallas Morning News Editor Michael Landauer:

We have just posted our editorial set for tomorrow’s paper urging Gov. Rick Perry to do the right thing and delay Wednesday’s planned execution of Hank Skinner. Is he guilty? Honestly, I don’t know. I tend to think juries get things right most of the time, but in this case, there is a lot of evidence that needs to be DNA tested to be sure. I am hopeful Gov. Perry will do the right thing. There is no downside to ordering a 30-day reprieve. The upside is that he looks like someone interested in the truth and interested in the kind of certainty that the proper dispensation of the death penalty requires.

Point of Clarification (March 23, 2010 9:29 a.m. edit)

I mentioned in the post that the DNA evidence could implicate someone other than Skinner and by not testing the DNA, someone else would escape justice. I have since re-read an article that Radley Balko wrote just over a month ago which reminded me of a detail I had forgotten. According to the article, another man by the name of Robert Donnell could have committed the murders. Witnesses say that Donnell had harassed Skinner’s girlfriend (one of the murder victims) the night of the murders. Donnell allegedly raped her on another occasion and had been stalking her up to the day she was killed. If the DNA sample turns out to be that of Donnell’s rather than Skinner’s, Donnell will still have escaped the justice the victims’ families deserve because Donnell has since died.

Related Posts:

ACTION ALERT: Tell Gov. Perry to Give Hank Skinner 30 More Days

Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

» Read more

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Finding Out What’s In It

We’ll they’ve passed it, so now we can find out what’s in it.

And here’s something that I was a bit surprised to see:

Tucked neatly inside the health reform legislation headed to the Oval Office for a presidential signature is language that will require calorie labeling on chain restaurant menus, menu boards, and drive-through displays, as well as on vending machines. The legislation applies to chains with 20 or more outlets, and requires them to provide additional nutrition information on request.

Similar measures are already in effect or are awaiting implementation in California, Maine, Massachusetts, New Jersey, Oregon, New York City, Philadelphia, and a dozen other localities. The federal standard will supersede the varied state and local requirements.

I wonder what else we’ll find.

Hat Tip: Jacob Sullum @ Reason

ObamaCare’s Immediate Impact

As we all know, most of ObamaCare is pushed out to 2014 or so. But Ezra Klein, ever helpful, points out this nice PDF which explains what will occur nearly immediately. Ezra is always celebrating the cost-control measures of ObamaCare, so let’s see how these provisions stack up:

1. SMALL BUSINESS TAX CREDITS—Offers tax credits to small businesses to make employee coverage more affordable. Tax credits of up to 35 percent of premiums will be immediately available to firms that choose to offer coverage. Effective beginning for calendar year 2010. (Beginning in 2014, the small business tax credits will cover 50 percent of premiums.)

Okay, an immediate hit to Uncle Sugar here, but probably not big unless it really changes behavior immediately. So we start hurting the deficit right away. This is a net hit on government spending, but one might think that it probably won’t do much to private healthcare costs in the short run. I expect this will result in marginally increased coverage and thus will show no real change to health insurance premiums.

2. BEGINS TO CLOSE THE MEDICARE PART D DONUT HOLE—Provides a $250 rebate to Medicare beneficiaries who hit the donut hole in 2010. Effective for calendar year 2010. (Beginning in 2011, institutes a 50% discount on brand?name drugs in the donut hole; also completely closes the donut hole by 2020.)

Another government spending hit on drug coverage. In 2011, a 0% subsidy in this range jumps to 50%. According to Wikipedia, this may affect somewhere in the range of 25% of Medicare Part D enrollees. I’ll leave it to others to quantify this, but this is another spending measure.

3. FREE PREVENTIVE CARE UNDER MEDICARE—Eliminates co?payments for preventive services and exempts preventive services from deductibles under the Medicare program. Effective beginning January 1, 2011.

Oh, look! Another government spending increase subsidy! And as one of Ezra’s colleagues at WaPo points out, preventative care doesn’t really lower total medical spending costs. So overall this is not a cost-control measure for government budgets or spending in general.

4. HELP FOR EARLY RETIREES—Creates a temporary re?insurance program (until the Exchanges are available) to help offset the costs of expensive health claims for employers that provide health benefits for retirees age 55?64. Effective 90 days after enactment

Another subsidy. This’ll mainly hit government, I don’t see a major change to insurance premiums here. There may be additional companies who provide early-retiree benefits, but only union jobs and government tend to do so. Most who are wealthy enough to retire early on their own will cover their own medical insurance costs — not their employer.

5. ENDS RESCISSIONS—Bans health plans from dropping people from coverage when they get sick. Effective 6 months after enactment.

And here we go. The first of [many] provisions that will raise private insurance premiums. Of course, this depends on how common rescissions are. The left says they happen OMG like ALL THE TIME, so if they’re right, it’s a big hit. I don’t think it’s a huge change, but it’s definitely going to raise premiums.

6. NO DISCRIMINATON AGAINST CHILDREN WITH PRE?EXISTING CONDITIONS—Prohibits health plans from denying coverage to children with pre?existing conditions. Effective 6 months after enactment. (Beginning in 2014, this prohibition would apply to all persons.)

Again, an increase to private health insurance premiums. But hey, who’ll complain? After all, it’s for the children.

7. BANS LIFETIME LIMITS ON COVERAGE—Prohibits health plans from placing lifetime caps on coverage. Effective 6 months after enactment.

Again, if you think anything other than that this will increase premiums up front, you’re smoking something. And you shouldn’t be smoking, because it’s bad for you. But on the bright side, in 6 months you can be assured your lung cancer will be treated with no limits. And don’t worry about lying about that smoking habit on your insurance application, because rescissions are banned too.

(UPDATE 7:55 AM PDT: Commenter Fabio Escobar notes that rescissions are still allowed in cases of fraud, so it would be best not to lie on those applications, folks.)

8. BANS RESTRICTIVE ANNUAL LIMITS ON COVERAGE—Tightly restricts new plans’ use of annual limits to ensure access to needed care. These tight restrictions will be defined by HHS. Effective 6 months after enactment. (Beginning in 2014, the use of any annual limits would be prohibited for all plans.)

Again, we have a regulation that’ll up private premiums. [Do you see a pattern here?] Costs must be amortized, so this added risk is going to show up in premium hikes rather than limits on annual coverage. Insurance is built to hedge risk, and its increasingly looking like the risks to the insurer don’t expire [until you do].

9. FREE PREVENTIVE CARE UNDER NEW PRIVATE PLANS—Requires new private plans to cover preventive services with no co?payments and with preventive services being exempt from deductibles. Effective 6 months after enactment. (Beginning in 2018, this requirement applies to all plans.)

Ahh, two fun ones here. Immediate premium increase (costs must be amortized, you know), and a probable increase in total healthcare costs, for the aforementioned reason that preventative care doesn’t lower total spending.

10. NEW, INDEPENDENT APPEALS PROCESS—Ensures consumers in new plans have access to an effective internal and external appeals process to appeal decisions by their health insurance plan. Effective 6 months after enactment.

Again, here come higher premiums. Unless you think the external appeals boards are going to rule less in favor of the patient than the insurance companies would have, of course. Since the left believes insurers deny care left and right, this has to be a big impact, right?

11. ENSURING VALUE FOR PREMIUM PAYMENTS—Requires plans in the individual and small group market to spend 80 percent of premium dollars on medical services, and plans in the large group market to spend 85 percent. Insurers that do not meet these thresholds must provide rebates to policyholders. Effective on January 1, 2011.

“Ensuring value for premium payments” sounds a lot nicer than “capping profit margins”, doesn’t it? If the left’s belief that insurers are fat and happy and spend all their money on lavish bonuses instead of medical services, this would in fact be a cost control measure. One story from late last year suggests insurers already spend above 80% (Wall Street analysts say low 80’s, industry says 87%). Overall, my read is that this probably isn’t a major component either way.

12. IMMEDIATE HELP FOR THE UNINSURED UNTIL EXCHANGE IS AVAILABLE (INTERIM HIGH?RISK POOL)—Provides immediate access to insurance for Americans who are uninsured because of a pre?existing condition ? through a temporary high?risk pool. Effective 90 days after enactment.

Initially there’ll be $5B in subsidy for this risk pool. It’s unclear whether some of this funding will replace existing state gov’t funding (35 states already have high-risk pools), so I’m not sure how much of that $5B is a net adder to the total cost. But the simple fact is this — while it might be better for some of those people currently denied due to pre-existing conditions (i.e. 100% risks), much of the cost will come out of *OUR* pockets.

13. EXTENDS COVERAGE FOR YOUNG PEOPLE UP TO 26TH BIRTHDAY THROUGH PARENTS’ INSURANCE – Requires health plans to allow young people up to their 26th birthday to remain on their parents’ insurance policy, at the parents’ choice. Effective 6 months after enactment.

This one just baffles me. Should we really be disincentivizing kids adults to get good jobs where they might be covered? I can understand an exemption for people on the 7+ year college program (hopefully grad school, not this guy), but if your offspring is 24 and not in school, it seems to me that it’s not your employer’s problem to provide them with health insurance (since it’s usually the cheapest method). Perhaps this *IS* actually a cost-control measure, since most 23-25 year olds are healthy and will add to the risk pool. But even so, I can imagine “Employee + Family” or “Employee + Children” plans increasing in premium, because they’re not usually charged based on how many kids are specifically enrolled.

14. COMMUNITY HEALTH CENTERS—Increases funding for Community Health Centers to allow for nearly a doubling of the number of patients seen by the centers over the next 5 years. Effective beginning in fiscal year 2010.

There’s short-run deficit cost here, but the goal is understandable. Clinics are likely a better way of treating immediate non-emergency medical needs than emergency rooms, so there may be some cost-reduction in the delivery method of care. Presumably not all of the supposed “doubling” of patients will be people whose only alternative was a regular doctor visit or ER visit, so there may be some gross increase in the total number of patients served. This one could go either way, and I’ll leave it to the statisticians to score it. But I’ll grant that there’s at least a possibility of cost-control here.

15. INCREASING NUMBER OF PRIMARY CARE DOCTORS—Provides new investment in training programs to increase the number of primary care doctors, nurses, and public health professionals. Effective beginning in fiscal year 2010.

Again, another big subsidy. Gives 10% bonuses to PCP and General Surgeons starting in 2011, and it’s unclear here what “new investment in training programs” really amounts to, but the early notes I’ve seen suggest it’s largely student loan repayment changes. I don’t see that much here that will blunt the existing trend for doctors to head into specialization rather than primary care. 10% is nice but it’s nowhere near the difference between a specialist’s salary and a primary care doctor.

16. PROHIBITING DISCRIMINATION BASED ON SALARY—Prohibits new group health plans from establishing any eligibility rules for health care coverage that have the effect of discriminating in favor of higher wage employees. Effective 6 months after enactment.

This one is also somewhat vague. But usually when I hear about plans to avoid “eligibility rules” that “discriminate”, I think they’re trying to find ways to make it impossible to discriminate against bad health risks. Richer people tend to be healthier people, so it seems that if they accomplish their goal, it necessarily raises premiums.

17. HEALTH INSURANCE CONSUMER INFORMATION—Provides aid to states in establishing offices of health insurance consumer assistance in order to help individuals with the filing of complaints and appeals. Effective beginning in FY 2010.

Ahh, a two-fer! First is the direct government subsidy to states to hire new “consultants”. The second is the premium increase by pushing harder against health providers regarding complaints and appeals, which will likely often be adjudicated by the external appeals boards mentioned in point 10.

18. CREATES NEW, VOLUNTARY, PUBLIC LONG?TERM CARE INSURANCE PROGRAM—Creates a long?term care insurance program to be financed by voluntary payroll deductions to provide benefits to adults who become functionally disabled. Effective on January 1, 2011.

Voluntary? I wonder how long it will remain so. And how exactly does this different from the disability portion of Social Security? All I see here is a big new shiny bureaucracy, that will work as quickly as possible to entrench themselves by making this as involuntary as possible.

Conclusion:

So there you have it, folks. Of 18 highlighted points, most or all of them will increase payments made by government or increase health insurance premiums. This is “bending the cost curve”.

UPDATE 7:09 AM PDT: Welcome Instapundit, Powerline, and Tigerhawk readers! Feel free to take a look around to find out more about us, and we hope a few of you may come back from time to time.

Historically Appropriate Fact Of The Day

It was 245 years ago today, that The Stamp Act of 1765, one of the first of the many punitive taxes imposed on the American colonies and precipitated the Revolution, was passed by Parliament.

244 years and 364 days later, the United States Congress passed a piece of legislation that makes the Stamp Act look like a walk in the park.

Just sayin’

Lawsuits Await As ObamaCare Passes

Shortly, ObamaCare will be the law of the land, then the next round in the battle begins:

WASHINGTON — The battle over health care is poised to move swiftly from Congress back to the country as Democrats, Republicans and a battery of interest groups race to define the legislation and dig in for long-term political and legal fights.

President Obama plans to open a new campaign this week to persuade skeptical Americans that the bill holds immediate benefits for them and addresses the nation’s shaky fiscal condition. Republicans said they would seek to repeal the measure, challenge its constitutionality and coordinate efforts in statehouses to block its implementation.

The politics of health care are fragile — and far from certain — in the eight-month midterm campaign that will determine which party will control Congress next year. But both sides steeled for a fight to extend well beyond November, involving state legislative battles, court challenges and, ultimately, the next presidential race.

Even before the final vote, Republicans began relentlessly assailing lawmakers who supported the legislation, suggesting Democrats are spendthrift and proponents of big government. Democrats said they would seek to capitalize on the momentum from their success and strive to move beyond the political arguments in hopes of demystifying the complicated legislation.

“We ought to focus on not the political stakes, but the stakes for the country,” David Plouffe, an adviser to Mr. Obama, said on ABC’s “This Week.” “We’re going to go out there and not just talk about what we’re for, but what the Republicans are voting against.”

The next chapter in the health care fight will play out not only in the midterm elections, but also in the courts.

Already three state Attorneys General have announced their intention to file suit as soon as the bill becomes a law.

Virginia:

RICHMOND, Va. (AP) – Less than eight hours after Congress passed sweeping healthcare reforms, Virginia’s Attorney General became the first to announce a legal challenge against it.

Republican Ken Cuccinelli said early Monday that he will file a court challenge against what he and other conservatives decry as an unconstitutional overreach of federal authority.

Cuccinelli said he would file the lawsuit as soon as President Barack Obama signs the bill passed Sunday night into law.

South Carolina:

COLUMBIA, S.C. (AP) — South Carolina Attorney General Henry McMaster is again promising a legal challenge of the health care reform measure passed by the U.S. House.

McMaster issued a statement late Sunday calling the health care legislation “clearly unconstitutional.”

(…)

He says he took part in a conference call Sunday night and expects attorneys general in nine other states to join the challenge.”

And, Florida:

ORLANDO, FL — Moments after Congress voted to approve President Obama’s health care legislation, Florida’s Attorney General announced he will file a lawsuit to declare the bill unconstitutional.

Bill McCollum will join Attorneys General from South Carolina, Nebraska, Texas, Utah, Pennsylvania, Washington, North Dakota and South Dakota to file a lawsuit against the federal government.

“The health care reform legislation passed by the U. S. House of Representatives this evening clearly violates the U.S. Constitution and infringes on each state’s sovereignty,” McCollum said in a statement distributed late Sunday night.

“If the President signs this bill into law, we will file a lawsuit to protect the rights and the interests of American citizens.”

More to come, I’m sure.

Remember…

A little ditty for those who love liberty:

Remember, remember come every November,
The April Obamacare plot;
I know of no reason
Why the “health care” treason
Should ever be forgot.

No matter what the tyrants of the Hill and the White House hope, this fight isn’t over.

It’s ON.

>;-)

A Victory for the Democrats

Tonight’s Obamacare vote was a victory for the Democratic Party. That much cannot be questioned. Was it just a victory over heathen Republicans who have yet to see the light? No. It was so much more…

It was a victory over ethics:

“When the deal goes down… All this talk about rules… we make ‘em up as we go along.”

It was a victory over the economy:

When Congress inevitably fails to implement the Obama plan’s spending cuts, and expands its subsidies to more and more people, the cost of this legislation will grow beyond $3 trillion. The CBO did an admirable job of projecting the cost of this legislation as written. But the text of the legislation does not reflect the reality it would create.

Most Democrats know that even though the projected cost is $1.2 trillion, they are setting in motion political forces that will guarantee even more government spending. The question is, do enough Democrats know it?

It was a victory over the Constitution:

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

It was a victory over the People of the United States:

My health insurance policy, which is an actual “insurance” policy that insures me against catastrophic medical costs but leaves me with responsibility for day to day expenses, just became illegal. Over the last couple of years, I have documented my learning curve as, for the first time, I actually had an incentive to shop around for medical care, or to push back on doctors when I thought they are calling for too many tests and procedures. I have learned a lot about saving money, but all of this education is now for naught, as I will now be required to buy a pre-paid medical policy that leaves very little of the decision-making to my family and provides zero incentives for me to be cost conscious. Apparently, the operators of the US Postal Service and US military procurement felt they were better qualified to manage these cost/value trade-offs than I am.

Barack Obama says tonight was a “victory for the people”. As one of the people, I know no victory was won for me. A victory was won over me. I will have less money, less privacy, and less freedom under Obamacare than I had before, and I know who to blame.

I hope Obama, Pelosi, and Reid celebrate heartily this night, because they have made clear that they are the enemies of the People of the United States. With this bill, they will make us pay in ways we don’t fully yet understand. We will make them pay by taking from them the power they worked a lifetime to assume. It is our duty as freedom-loving Americans.

Liberty Papers Bracket Challenge Update


Well, big things have happened this weekend. The opening round of the NCAA tournament brought far more excitement than last year’s, with some major-league upsets.

I’ve heard that some big vote occurred in Washington as well, but I’ll have to look into that later.

In our own bracket challenge, the first weekend has ‘sploded quite a few of your brackets — at least for anyone who chose Kansas to win it all (just under half the field picked them). The standings of the top 5:

1. 256 pts – Brad Warbiany
2. 249 pts – Nate McHugh
3. 230 pts – Brad Porter
4. 221 pts – Jim Johnson
5. 220 pts – Nic Stersic

Of those top 5, only Jim and I have someone other than Kansas taking the trophy [Kentucky for me, Syracuse for him].

There’s a lot of time for people to catch (and pass) me though, as half my bracket is already crushed — I chose Kansas into the final game and Pitt into the Final Four, so I’ve got a lot of concern…

But I don’t care, because Purdue has now upset* their first two opponents and will be ready to [actually] upset Duke on Friday night. It reminds me [and should remind Jim] of a day back in 2000, when a bunch of hung-over frat boys participated in the Boiler “Academic Super Bowl” and upset the field by taking second place against a bunch of the schools professional societies in a trivia challenge.

Good luck to all the competitors who joined the challenge [17 total]. Next year I’ll make sure to start things off with more advance notice, and I think I’ll adjust scoring somewhat to even out the first weekend with the rest of the tournament — I think it’s too heavily weighted for the first weekend.
» Read more

Quote Of The Day

From Billy Beck:

I keep hearing about how this DeathCare deal will be the end of the Democrats in November. I cannot think of a single reason why that should matter, and there are many why it doesn’t. (For instance: when this thing is in the bag and done, who do you think is going to come along and take it all apart? Like Medicaid, for instance? {snort} Stop with the comedy, already. You will go to your grave carrying this rock.)

The incumbent Democrats are being constantly threatened with being voted out if they put this through. But that’s a sacrifice their leadership is willing to make, because while people may be voted out, we’ll get stuck with this monstrosity.

ObamaCare, The Constitution, And The Next Round In The Health Care Wars

The Constitutionality of ObamaCare is apparently a subject that neither Nancy Pelosi, nor any other Member of Congress has given any consideration to. In today’s Washington Post, however, Law Professor Randy Barnett takes a look at the probable Constitutional challenges to the health care bill:

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

As I’ve written before, this may be the one area of the health care bill that it most vulnerable to a Constitutional challenge. Neither the Commerce Clause, nor any other provision of Article I, Section 8 of the Constitution would seem to be capable of being read in a reasonable manner so as to grant to Congress the power to force every American man, woman, and child to purchase a produce whether they wanted to or not.

Will the Court’s see it the same way ? That remains to be seen, but there have been signs in recent years that the Supreme Court wants to step back from the overly broad interpretation of the Commerce Clause that we’ve become familiar with:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

So, this is as not nearly as much of a long-shot argument as it might have been twenty or thirty years ago.

Barnett concludes:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

In other worth, even if ObamaCare passes today, the political firestorm isn’t over, and the legal firestorm is just getting started.

Is “Deem And Pass” Constitutional ? Neither The Question Nor The Answer Are As Simple As You Think

As the debate over health care reform approaches it’s final hours in the House of Representatives, there’s been much discussion over the past week over a rather obscure topic — the internal operating procedures of the House of Representatives, and specifically the apparent intention of House Democrats to use something that has been called “deem and pass” to get the Senate Bill approved and a Reconciliation Bill to the Senate.

The first question, of course, is exactly what “deem and pass” actually is, and George Washington University Professor Sara Binder gives perhaps the best explanation I’ve seen to date:

So how is the process likely to unfold? We can’t be entirely sure of all the details yet, but it will likely start on Saturday when the Rules Committee meets, most likely in its usual room in the Capitol—a tight squeeze with just a handful of spectator seats. At that point, the committee will unveil its recommended special rule and debate it. We don’t know yet for sure what the rule will say. There will most likely be that self-executing provision that “deems” the Senate-passed health care bill as passed by the House upon adoption of the rule or upon House passage of the reconciliation bill.

(…)

The Rules Committee has now written up a special procedure for its debate and the House has approved it. If the rule is written in such a way that enactment of the rule itself deems the Senate bill passed, the Senate bill would—at that point—be ready for presidential signature. Health care reform, in other words, would be ready to become law. But it’s more likely the rule will stipulate that the Senate bill becomes law only after the House approves the reconciliation package. If so, reform’s fate will still not be settled. It will depend on whether the reconciliation bill passes.

And so the House will proceed to debate the reconciliation package, in whatever manner and for whatever duration the rule stipulates. Most likely, no amendments will be allowed. Once debate is exhausted, the House will move the previous question motion again, this time in preparation for final passage of the bill. Again, it will take 216 to agree to the previous question motion, setting up the climactic vote

(…)

[I]f all has gone according to plan for the Democrats, the chamber will come to its up-or-down vote on the reconciliation bill. If 216 members vote yes, the reconciliation bill will go to the Senate. And the main Senate bill? That one will enter the “enrollment” process to prepare it for its journey up Pennsylvania Ave to the White House.

Doesn’t exactly sound like Schoolhouse Rock does it ? That, I think is one of the reasons that we’ve seen such a strong reaction to this issue from many pundits and members of the public. Whether it’s right or wrong, it doesn’t seem right. Politically, it’s a dumb move that I think Democrats will come to regret. But what about the Constitution ? Is “deem and pass” Constitutional ?

Former Federal Judge Michael McConnell was among the first to state publicly that the answer is a clear no:

To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

It seems like a fairly straightforward, textually sound argument, and many on the right have essentially adopted McConnell’s argument as their own. Both Virginia Attorney General Ken Cuccinelli and talk show host Mark Levin have said that they intend to file lawsuits if the House utilizes the “deem and pass” strategy.

It turns out, though, that the answer isn’t quite as simple as McConnell makes it out to be.

In 2005, the Circuit Court of Appeals heard a case titled Public Citizen v. US District Court for DC. In that case, Public Citizen, joined by Members of Congress including Nancy Pelosi and current Rules Committee Chairperson Louise Slaughter (of the “Slaughter Solution) were challenging a “deeming” procedure used by the Republican-controlled House.

Here’s what the Court said:

The District Court held that Public Citizen’s bicameralism claim is foreclosed by the Supreme Court’s decision in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of “the two houses, through their presiding officers” as “conclusive evidence that [a bill] was passed by Congress.” Marshall Field, 143 U.S. 672-73. Under Marshall Field, a bill signed by the leaders of the House and Senate – an attested “enrolled bill” – establishes that Congress passed the text included therein “according to the forms of the Constitution,” and it “should be deemed complete and unimpeachable.” Id. at 672-73. Recognizing that Marshall Field’s “enrolled bill rule” prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen’s complaint and denied its motion for summary judgment. Public Citizen, 451 F. Supp. 2d 109. …

We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case. We therefore affirm the judgment of the District Court. We find it unnecessary to determine whether Public Citizen has standing to bring suit, because we conclude that the Marshall Field rule of dismissal “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v.Doe, 544 U.S. 1, 6 n.4 (2005).

In Marshall Field, the Supreme Court said:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.

(…)

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself—nothing to the contrary appearing upon its face—that it passed congress

So, assuming that Marshall Field applies, once Nancy Pelosi and either Vice President Biden, as President of the Senate, or Senator Byrd, as President pro tempore attest that the bill has passed their respective houses, that is the end of the matter unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis.

KipEsquire has made some good points suggesting that Marshall Field might not apply in this case, but it doesn’t end there.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That’s because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener’s errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

I understand the Presentment Clause arguments, and have blogged about them, favorably, over the past week or so. Based on a strict reading of the text of the Constitution, I think that it’s probably correct that the House is required to actually vote on the Senate Health Care Reform bill. However, the Presentment Clause does not state the manner in which the vote must be taken by each chamber, and Article I Section 5 says the following:

Each House may determine the Rules of its Proceedings,

In United States v. Bellin 144 U.S. 1 (1892), the Supreme Court stated:

The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

If the House of Representatives passes a Rule stating that the Senate bill is deemed as having been passed by the House, that would seem to fall within the discretion of the House under Article I, Section 5. And, as Jack Balkin notes, it would be part of a method under which “deem and pass” could occur without violating the Presentment Clause:

[T]here is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.

How that would not be in compliance with the Presentment Clause is beyond me.

Politically, “deem and pass” is a stupid idea because it smacks of dishonesty and, more importantly, there seems to be something wrong with using this method to pass such a major piece of legislation, even if the method itself is Constitutional.

Just because it’s politically stupid, though, doesn’t mean it’s unconstitutional.

Note: This post was developed from a series of posts I published on my personal blog earlier this week.

Update 2:39pm EDT: The Washington Post is reporting that the House leadership has decided not to use a “deem and pass” rule for tomorrow’s vote. To me, that means that they are confident they have the votes.

ACTION ALERT: Tell Gov. Perry to Give Hank Skinner 30 More Days

With less than five days until the scheduled execution of Hank Skinner, a DNA testing laboratory in Phoenix, AZ has offered to test evidence that Skinner’s attorneys say will prove his innocence. Chromosomal Laboratories has told Texas Gov. Rick Perry that they will run the tests for free if Perry agrees to grant Skinner a 30-day reprieve. Under Texas law, the governor has the authority to grant a one-time reprieve for capital cases.

The Texas Tribune reports that Gov. Perry has not decided whether or not he will grant the reprieve and said that any decision to test the DNA will be decided in the courts.

My question for Gov. Perry is what is there to think about? The man has been on death row for 15 years; what is the harm in giving him just 30 more days to determine once and for all if he is guilty or not? The state cannot give Skinner his 15 years back if the state turns out to be wrong but he could at least live the rest of his life a free man. The state obviously cannot give Skinner his life back once the state takes it from him, however.

Whether you oppose the death penalty or not we can all agree that the state should at least make every reasonable effort to ensure that the person being put to death by the state actually committed the crime. This is not an unreasonable request.

The execution is scheduled for March 24, 2010 so there isn’t much time left to act (see the contact information below).

Opinion Lines
Texas callers: (800) 252-9600
Out of state callers and Austin residents: (512) 463-1782

Office of the Governor, Main Switchboard (from 8:00 a.m. to 5:00 p.m. CST): (512) 463-2000

Office of the Governor Fax: (512) 463-1849

The Innocence Project also has an easy petition that only takes a few minutes to fill out.

Related: Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

Quote Of The Day

From the LA Times, a story about the LA City Council. Electronic auto-voting allows council members to avoid actually attending council meetings, much to the chagrin of voters:

Still, their physical absence frequently infuriates members of the public who show up to testify only to find themselves addressing one or more empty chairs.
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“We go there to talk to the full City Council,” said Ziggy Kruse of the Hollywood Studio District Neighborhood Council. “If you get eight people in their seats, you’re lucky.”

Oh, you naive citizen… You’re assuming they actually give a shit what you say.

Hat Tip: Reason

The CBO Health Care Numbers Are Phony And Meaningless

While the Democrats in Congress will try to spin it otherwise, the truth about the CBO numbers released today can be found on the first page of CBO Director Douglas Elmendorf’s letter to Speaker Pelosi:

Although CBO completed a preliminary review of legislative language prior to its release, the agency has not thoroughly examined the reconciliation proposal to verify its consistency with the previous draft. This estimate is therefore preliminary, pending a review of the language of the reconciliation proposal, as well as further review and refinement of the budgetary projections.

In other words, this isn’t a final scoring of the the health care bill, and it isn’t complete because Congress hasn’t told the CBO what’s in the reconciliation package that they’ve supposedly been working on for a week now.

One Capitol Hill reporter stated on Twitter earlier that a final CBO scoring won’t be released until tomorrow, or Saturday. If that’s the case, then the 72 hour clock has NOT started running yet and we won’t see a vote on this until early next week.

Don’t let them fool you.

Liberty Papers Bracket Challenge 2010

March Madness has arrived. For the first time, I’ve decided to throw together a Liberty Papers Bracket Challenge. Hosted at CBS Sports (p/w “thomaspaine”), feel free to sign up. Hurry, of course, as the games start Thursday morning.

Scoring rules are somewhat standard, but with a kick on the first two rounds. Picking a winner adds their seed to your point total, meaning you get significant benefit from picking the right upsets during those first two games.

The winner will earn a guest post here at The Liberty Papers, with minimal restrictions on tone and subject.

Sign on up and let’s see what you’ve got! And of course, consider this an open thread to root for your favorite team. I think my allegiance is well known…

How To Shrink The Size Of Government

It’s very simple… Just require federal employees to follow the law, and they’ll make themselves ineligible for service:

`SUBCHAPTER VIII–INELIGIBILITY OF PERSONS HAVING SERIOUSLY DELINQUENT TAX DEBTS FOR FEDERAL EMPLOYMENT

`Sec. 7381. Ineligibility of persons having seriously delinquent tax debts for Federal employment

`(a) Definition- For purposes of this section–

`(1) the term `seriously delinquent tax debt’ means an outstanding debt under the Internal Revenue Code of 1986 for which a notice of lien has been filed in public records pursuant to section 6323 of such Code, except that such term does not include–

`(A) a debt that is being paid in a timely manner pursuant to an agreement under section 6159 or section 7122 of such Code; and

`(B) a debt with respect to which a collection due process hearing under section 6330 of such Code, or relief under subsection (a), (b), or (f) of section 6015 of such Code, is requested or pending; and

`(2) the term `Federal employee’ means–

`(A) an employee, as defined by section 2105; and

`(B) an employee of the United States Postal Service or of the Postal Regulatory Commission.

`(b) Ineligibility for Federal Employment- An individual who has a seriously delinquent tax debt shall be ineligible to be appointed, or to continue serving, as a Federal employee.

`(c) Regulations- The Office of Personnel Management shall, for purposes of carrying out this section with respect to the executive branch, prescribe any regulations which the Office considers necessary.’.

(b) Clerical Amendment- The analysis for chapter 73 of title 5, United States Code, is amended by adding at the end the following:

`subchapter viii–ineligibility of persons having seriously delinquent tax debts for federal employment

`7381. Ineligibility of persons having seriously delinquent tax debts for Federal employment.’.

Sounds like it’s time to get some folks with clout to push this. Get Ron Paul on board, get Jeff Flake on board, and get the TEA Party folks on board. I say we make this happen.

Hat Tip: Reason

Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

Hank Skinner is scheduled to be executed by the State of Texas on March 24th. Despite more than a decade of requests to have his DNA tested, Texas courts have denied him every step of the way. The Medill Innocence Project has even offered to pay for the testing to no avail. Skinner’s attorneys have appealed to the U.S. Supreme Court to force the issue before it’s too late. Given the recent ruling in Osborne, I’m not optimistic that Alito and Roberts would put their slavish allegiance to process aside long enough to allow the truth of Skinner’s guilt or innocence to see the light of day…at least until after Skinner is executed (maybe).

Former Texas prosecutor Sam Millsap wrote an op-ed piece in The Houston Chronicle explaining why he believes the courts should grant Skinner’s request, if for no other reason, to learn the truth. He also pointed out that only a week ago, Gov. Rick Perry pardoned Tim Cole posthumously some 9 years after he died while in prison. Why wouldn’t the same governor want to avoid making the same mistake again?

Millsap:

I’m not an advocate for Hank Skinner. I’m an advocate for the truth. If DNA tests could remove the uncertainty about Skinner’s guilt — one way or the other — there’s not a good reason in the world not to do it […]

[…]

It is cases like Skinner’s that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

From there Millsap gets personal and explains why he, acting in good faith, may have been responsible for prosecuting an innocent man who was executed in 1993.

Why the change of heart? Millsap explained that one of his star witnesses against Ruben Cantu recanted his testimony 20 years later. Millsap said he believes the witness’s latest version of the events because the witness had nothing to gain from changing his testimony “except a whole lot of trouble.”

Beyond Cantu, Millsap also believes Texas has executed at least two other men he says “were almost certainly innocent”: Carlos DeLuna, executed in 1989 and Cameron Todd Willingham, executed in 2004.

Millsap is by no means the only individual inside the Texas criminal justice system who recognizes inherent flaws in the system which kills more people every year than any other state. State District Judge Kevin Fine recently granted a pretrial motion declaring the death penalty unconstitutional due to his belief that innocent people have been executed in Texas and elsewhere:

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It’s safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society’s standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

The article goes on to point out that Judge Fine’s ruling will likely be overturned on appeal and is more symbolic than anything else (i.e. a way to force people to discuss the issue of the death penalty). Fine is taking quite the career risk in a very pro-death penalty state which elects its judges. His critics, who like to point out that Judge Fine is a former cocaine addict, argue that his ruling has no basis in the law.*

And maybe Judge Fine’s critics are technically right** about his “judicial activism,” but can anyone really argue with the judge’s logic? Is it possible for sates to execute only guilty individuals 100% of the time when states have admitted to wrongfully convicting others for lesser charges? If not, what is the acceptable margin of error when we are talking about allowing the government to kill?

These are the kinds of questions which I hope keep Gov. Perry up at night with the scheduled execution of Hank Skinner and those who will undoubtedly follow.

» Read more

Quote Of The Day

Economist Donald Marron:

I often tell my students that, in my humble opinion, one purpose of government is to help people be happy. The DC government did a good job on Wednesday.

I disagree with that on so many levels. The government’s job is to secure people’s rights, and as Thomas Jefferson so eloquently said, one of those inalienable rights is the pursuit of happiness. But we cannot move from a government built to secure negative rights to one built to fulfill positive rights just by wishing it so.

But this is one of those special cases where the government got it right. The government, through bigoted discrimination, was actively denying some citizens of their right to pursue happiness as they see fit. In this case, they did help people be happy, by getting out of the way.

Hat Tip: Ezra Klein

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