Archive for June, 2012

June 30, 2012

Judge Napolitano on Roberts’ Health Care Opinion

by Eric T. Phillips

There is an argument going around libertarian, conservative, and mainstream circles that Roberts’ decision was some kind of a masterstroke that gave the Democrats what they wanted but at the same time hemmed in Congress’s power to pass laws justified on an expansive reading of the commerce clause. Roberts did repudiate the ridiculously broad construction of the commerce clause that the administration was arguing for, but he opened the door for Congress to force people to do just about anything through the taxing power. Judge Napolitano explains:


June 29, 2012

On Using the Reductio ad Absurdum

by Eric T. Phillips

From Ginsburg’s health care opinion:

When contemplated in its extreme, almost any power looks dangerous…The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the ‘hypothetical and unreal possibilit[y],’ of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods.

Uhh, I would.

June 29, 2012

The Future of Health Care

by Eric T. Phillips

The Wall Street Journal reports:

A new front opened Friday in efforts to reshape how the federal government implements President Barack Obama’s health-care overhaul now that the Supreme Court has ruled to keep the law in place.

Employers, insurers, hospitals, drug makers and others are angling for an advantage as the government writes the regulations and sets the policies that will bring the law to life.

Hospital owners want the government to reduce the $155 billion in health-care payment cuts they agreed to during negotiations over the law. Makers of medical devices hope to roll back a 2.3% tax on their sales contained in the measure. Insurance companies want more leeway to charge older people higher rates than younger ones. Drug makers are aiming at a provision that could squeeze how much Medicare pays for medicine.

“Let’s face it, this law is going to be amended and adjusted for years and years to come,” said Rick Pollack, executive vice president of the American Hospital Association, a lobbying group.

In other words, the bureaucrats, lobbyists, and corporatists are preparing for the nitty gritty details of central plannings. Setting prices, forming policies, and lobbying for special privileges are the hallmarks of the type of command economy the health care sector is being transformed into; forget individual choice, consumer sovereignty, and market incentives.

It’s true; the American health care industry was already far along on the road to serfdom. Medicare, for example, was already the largest purchaser of medical goods and services in the world. But Obamacare makes things much worse; it essentially completes the transformation of insurance companies from voluntary enterprises into semi-private providers of government-mandated benefits. The distribution of these benefits will be tightly controlled by legions of new bureaucrats, living off of the expropriated wealth of taxpayers. The regulation will be stifling, cronyism will run rampant, and costs will soar.

But don’t worry: to put an end to this horrific government program before it begins, Republicans will vote in droves for a presidential candidate who implemented essentially the same system on a state-wide level in Massachusetts when he was governor and has promised to nominate more judges like the one who cast the deciding vote to uphold the law.

I’m reminded of one of H.L. Mencken’s quotes: “Every normal man must be tempted at times to spit on his hands, hoist the black flag, and begin to slit throats.”

June 28, 2012


by Eric T. Phillips

…that’s what I get for doubting the pessimists.

And it was Roberts, not Kennedy, who defected. I can’t tell you how many times I’ve heard from Republican apologists that even if Bush’s policies were terrible, you at least had to be thankful he appointed good judges, and for that reason you should support him. Well, that worked out well, didn’t it? Bush’s Chief Justice cast the deciding vote on affirming the constitutionality of a fascist health care overhaul.

And now, this fall, people angry at the president for vastly expanding the government’s power over an industry that constitutes one-sixth of the economy will vote for a man who implemented the exact same policy on a state-wide level when he was governor.

The two party system is a fraud. The idea that we have an effective system of ‘checks and balances’ is a fraud. The idea that a paper document can restrain the rapaciousness of the government at all is a fraud.

June 27, 2012

Supreme Court Obamacare Speculation

by Eric T. Phillips

Joe Henchman:

My health care case prediction: I’m inclined to think we’re going to lose the health care case, based solely on the fact that (1) Scalia was more angry than he should have been in the immigration case and (2) Kagan and Ginsburg have made public statements that are more cheerful than they should have been, in the last two weeks.

Roberts will join the 6-3 majority and write the case to limit the damage in some way although it will be hard, as the Democratic judge on the Eleventh Circuit noted, “This theory affords no limiting principles in which to confine Congress’s enumerated power.” If Roberts relies on the taxing power, I will be quite upset as that is wrong (and I wrote them a brief attempting to convince them so.)

But the reality is that 4 justices, nearly all of the politicians, and much of the American public and don’t take questions of constitutionality on non-enumerated-rights issues to be relevant: all that matters is whether it passed the process or not, which is what the court precedents (wrongly) lay out. So this was an uphill fight to begin with and it’s amazing that it’s seen this much success so far. I’m quite concerned how happily some liberals have embraced the notion of government mandates of purchases of private products without attempting (as the Obama Administration clumsily attempted) to suggest that this is only the case for the health care market and not other things.

My guess is as good as yours; I make no claim to inside information. I also think losing the case will be a net win for Republicans and conservatives in the short term electoral situation but bad for long-term constitutional law. (Vice versa if the mandate is struck down.) If you bet on my prediction, I am not responsible for your loss.

Stephan Kinsella:

My guess: it will be upheld, and only 2 or 3 will vote to strike down any of it (probably Thomas and Alito, and maybe Roberts; not Scalia, the majoritarian, or Kennedy, the unprincipled waffler). The majority will have to realize that overturning this law will have to have consequences for many existing and possible future federal programs and laws, and they will not want to threaten the underpinnings of their cushy perches.

I do hope I am wrong and that it is overturned. But it is arguably constitutional: the whole thing could be done by a taxing provision, and taxes are sadly constitutional. And the mandate is a tax, whether it’s called one or not. And Sheldon Richman has persuaded me that the IC clause is unfortunately broader than we libertarians would like it to be. The problem is all these years libertarians have either pretended, or actually self-deluded themselves, that the Constitution is such a great thing, quasi-libertarian, and that if we only return to it all would be fine. IN order to find a way to argue for incremental changes towards liberty, we say “just restore the Constitution” and in so doing we buy into the myth that the Founding, the Founders, and the Constitution were great and quasi-libertarian.

Richard Epstein:

It will be a close call, but here are my predictions

Strike down mandate, because Justice Anthony Kennedy will decide that insurance (at least real insurance) always covers risk.  Health care not unique. 5 -4; straight conservative liberal split.

Marjority will strike down Title I, which sets up exchanges etc.  Too closely integrated. Same vote, same reasons. The liberals will be narrow, and strike down only those provisions that implement the mandate proper.

Medicaid extension: upheld alas. A bone to the left from the right.  One of the four liberals will write.  It will be a horrendous opinion.  Indeed not a single opinion that upheld that extension understood its implications.

I think the pessimists are so used to political defeat that they can’t bring themselves to believe that five justices will vote in the way that their questioning during the oral arguments suggests they’ll vote–which is against the mandate. Of course, Kennedy may have been playing devil’s advocate during questioning and may have since changed his mind, as he is wont to do. But I have no reason to believe that. I think the mandate is going down.

According to Intrade, there is a 72% chance that I’m right.


June 26, 2012

We Don’t Need More Teachers, Cops, and Firemen

by Eric T. Phillips

We need fewer. On Reason’s blog, Nick Gillespie writes:

A real question remains, and it’s one that affects the objectively dreary state of public-sector America, which is flat-out broke at every level of government. Do we in fact have our staffing levels for teachers, cops, and firemen right? Could we get by with fewer of these sorts of employees or do we need yet more, to make up for the supposedly draconian cuts that have descended upon schoolhouses, police departments, and firehouses like Herod’s minions murdering innocents?

A lot of Obama’s stimulus was spent on keeping public-sector payrolls going full-tilt and now that the stimulus has dried up (and clearly failed to “prime the pump” of general economic activity in any serious way), some of those folks are being let go. At least at the state and local level. As Keith Hennessey notes, outside of the Postal Service (which has long been shrinking), Obama has added 1420,000 workers to the federal payroll.

Read the rest.

June 24, 2012

Rand Paul and the Libertarian Movement

by Eric T. Phillips

I was not surprised by Rand Paul’s endorsement of Mitt Romney. He said he would endorse the party’s nominee all along. I also knew he didn’t refer to himself as a libertarian, preferring instead to be called a ‘constitutional conservative’ or some such term.

I admit, though, that I had not seen his statement that appeared in a 2010 Time Magazine article, that,

They thought all along that they could call me a libertarian and hang that label around my neck like an albatross, but I’m not a libertarian.

It’s one thing to prefer to stress the constitutional and traditional elements of your political philosophy; it’s another thing entirely to explicitly repudiate libertarianism.

I hope that relations between Rand and those “legions” of us who support his father and “think we rule the internet” improve. Despite this episode, he has supported a lot of good ideas in the Senate. But unless he fundamentally changes the way he thinks about his political philosophy, he will never be a leader of the libertarian movement.


June 23, 2012

Jonathan Corbett on the Inept and Criminal TSA

by Eric T. Phillips

The TSA is trying to hide the ineffectiveness of its naked body scanners by threatening the media, says Corbett:

June 21, 2012

Mitt Romney is Running for Bush’s Fourth Term

by Eric T. Phillips

Great video by djgabrielpresents that highlights the connections between Bush’s foreign policy advisers and Romney’s foreign policy advisers and between Bush’s charges against Iraq and Romney’s charges against Iran:

June 20, 2012

“No Way”

by Eric T. Phillips

Wolf Blitzer: “Your son has endorsed Mitt Romney for president. Are you ready to endorse Romney?

Ron Paul: “No. No way.”


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