Thursday, February 3, 2011

Quote of the day

Tim Kowal, responding to Ezra Klein:
It matters whether a law merely encourages a market participant to choose one transaction over another, or whether it seeks to force citizens into the market in the first place. Subsidizing economic choices is problematic enough. But ultimately, the status quo from the government’s point of view is that economic activity is occurring, taxes are collected automatically, and the government prodding occurs ex post. With a mandate, however, the status quo is changed. From the government’s point of view, no economic activity is occurring. To make it occur, the government has to issue a penalty ex ante.

FLG has written before and will write it again -- Ezra Klein is a green eyeshade bean counter who has zero ability to see the long-term, big picture.


Anonymous said...

Ezra has zero ability to see anything. Did you catch Turley this am:

Our Ford Pinto health care law takes a hit

After this week's decision striking down the entire federal health care law as unconstitutional, the White House went into a full convulsive rage at Judge Roger Vinson of the Northern District of Florida.

Borrowing an attack that has more often been heard from Republican administrations, Stephanie Cutter, a senior adviser to President Obama, issued a statement denouncing Vinson as a "judicial activist." That charge was quickly picked up by Democratic lawmakers. The evidence cited for this charge was the fact that Vinson "declared that the entire law is null and void even though the only provision he found unconstitutional was the (individual mandate) provision," which requires every citizen to buy health insurance.

What the White House does not mention is that it played a game of chicken over health care with the court and lost a critical battle in Florida. Instead of inserting a "severability clause" designed to protect an act from this type of global rejection, the legislation was rammed through a divided Congress with diminishing public support.

The absence of the clause was just one of the flaws in this legislation, which even sponsors now admit must be amended to address serious problems ranging from paperwork overload to uncertain costs to questions over what plans will count under the law. Even for some of us who support national health care, the bill unnecessarily triggered the constitutional fight that led to its rejection in two federal courts. There were alternatives to achieve the same end, but what was lacking was a willingness to reconsider these provisions with the approach of the new Congress.
A standard feature

Yet the failure of lawmakers to insert a boilerplate severability clause is the most puzzling. The standard clause — pardon the legalese — states, "If any particular provision of this act, or the application thereof to any person or circumstance, is held invalid, the remainder of the act and the application of such provision to other persons or circumstances shall not be affected thereby." It is generally on a short list of basic elements for legislation, such as putting a title and preamble on a bill.


Anonymous said...

The national health care bill contained such a provision, but it was removed before passage. Of course, even without such a clause, judges can still avoid striking down an entire law and confine their rulings to a specific provision. That is what Judge Henry Hudson did last year in Virginia after finding the individual mandate unconstitutional. Hudson was right to do so, in my view, but that does not make Vinson a judicial activist.

The charge of activism sounds like the lament of every bad gambler after being discouraged from playing a high-risk hand.
The risk was always there

Many — including yours truly — had raised concerns over the constitutionality of the individual mandate. Even the respected Congressional Research Service noted that such objections might have merit. Ultimately, public officials in 26 states have challenged the law.

Even if one accepts that the removal of the clause was just some colossal, inexplicable blunder, it was the blunder of the White House and Congress — not the courts. The result was a Ford Pinto law — a fast and cheap vehicle that would explode with even low-speed collisions.

The Justice Department undermined its own case by repeatedly warning Vinson in court that if he struck down the individual mandate, the law would be fundamentally crippled. Without the mandate (and young healthy people forced to buy insurance), the plan is fatally underfunded. It appeared to the court that the administration was arguing that it was an "all-or-nothing" proposition. Vinson's ruling: Nothing it is.

Of course, the law could be ultimately saved by the U.S. Supreme Court, where it is clearly heading. In the end, however, it seems a bit forced for the Obama administration to throw around the old cry of "judicial activism" when it pushed through a law that removed the critical safety provision for severability.

The problem with games of chicken is that sometimes the other guy does not jump before the cliff.

They played chicken with the people too by having Nancy Pelosi and the Black Congressional congress walk through the crowds that day of the passage trying to provoke an incident. When it didn't happen they said the n word was hurled at them from the racist tea party.

Mrs. P

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