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Book Review: Unprecedented: The Constitutional Challenge to Obamacare

October 6, 2013 in Economics

By Ilya Shapiro

Ilya Shapiro

Unprecedented: The Constitutional Challenge to Obamacare
By Josh Blackman
PublicAffairs, USA, $27.99, 352 pages

In 2012, the U.S. Supreme Court became the center of the political world. In a dramatic and unexpected 5–4 decision, Chief Justice John Roberts voted to save the Affordable Care Act, commonly known as Obamacare. Josh Blackman’s magisterial Unprecedented tells the inside story of how this constitutional challenge raced across all three branches of government and narrowly avoided a collision between the Supreme Court and President Obama.

The book offers unrivaled inside access to the key decision makers in Washington, based on interviews with over 100 of the people who lived this journey — including the academics who began the challenge, the lawyers who litigated the case at all levels, and the Obama administration attorneys who defended the law. It reads like a political thriller, providing the definitive account of how the Supreme Court almost struck down the president’s “unprecedented” law. It also explains what this decision means for the future of the Constitution, the limits on federal power, and the Supreme Court.

Unprecedented is not a legal book, in the sense that it’s not a “treatise” by which to teach law students about health care law or even the jurisprudence surrounding the Commerce Clause, Congress’s constitutional power to regulate interstate commerce. There’s plenty of doctrinal explanation, to be sure, tracing the development of modern federal authority to regulate the economy. But fundamentally this book is a story about a lawsuit and how a group of legal activists, intellectuals, and practitioners conceived and executed a stunning attack on the Obama administration’s signature legislative achievement.

As with Thurgood Marshall and the legal heroes of the civil rights era, Georgetown professor Randy Barnett (who wrote the book’s foreword) and other scholars developed theories that snowballed into judicial victories that could not be ignored by the national media and political classes. What had appeared at first to be “off the wall” libertarian thought experiments moved “on the wall” as they were picked up by the attorneys generals of Virginia and Florida and operationalized by leading appellate advocates like Paul Clement and Michael Carvin. On the other side, Neal Katyal and then Don Verrilli pressed the government’s defense, ultimately losing their central arguments but salvaging Obamacare.

At this point I should mention that I was no neutral observer of this tale. The Cato Institute, the libertarian think tank where I hang my …read more

Source: OP-EDS

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It’s Obvious Why People Don’t Trust Obamacare

October 6, 2013 in Economics

By Michael D. Tanner

Michael D. Tanner

If you’re puzzled why Obamacare is so polarizing, consider how a law that’s ostensibly about fairness — health care for all — can be so unfair.

Favored groups like unions and some businesses have carved out exceptions for themselves, while the average American could see their hours cut or their job eliminated.

Perhaps the most frequently talked about, but also most widely misunderstood, dispensations is the one for Congress and its staff.

Despite the Internet shorthand, Congress is not “exempted” from Obamacare. Still, Congress is being treated differently than millions of other Americans who stand to lose under Obamacare.

Currently, congressmen and congressional staff participate in the Federal Employee Health Benefit Program, the same as any other federal employee. Since the federal government is technically their employer, the government pays roughly 75% of the cost of their insurance, $5,000-$10,000 per year depending on family size.

Democrats have made it all to clear that what they are calling for is: Obamacare for thee, but not for me.”

However, under an amendment to Obamacare, sponsored by Sen. Charles Grassley (R-Iowa) and passed in 2010, Congress will be required to give up their FEHBP insurance and purchase a new plan through a health-insurance exchange. The idea was that Congress should be treated just like those ordinary working Americans who will be dumped from their employer’s plan and forced to shop on the exchanges. And, like many of those workers, Congress would, under normal circumstances, lose the employer contribution toward their insurance. As a result, they could expect to have to pay much more out of pocket for their insurance.

That’s exactly the circumstances other regular Americans are finding themselves in. The Congressional Budget Office estimates that as many as 11 million workers could be dumped by employers who choose to pay the penalty rather than the cost of insurance, and that’s the low estimate — the American Action Forum suggested that number could be as high as 35 million.

Last month, for example, Home Depot announced that it was dropping health insurance for some 20,000 part-time workers. Those mostly low-wage workers will now have to buy health insurance on their own through an exchange, without Home Depot covering the employer share of their premiums, meaning that even if those workers qualify for a federal subsidy, many will end up facing much higher costs.

But Congress has been saved from that fate. The White House …read more

Source: OP-EDS