Weekly Hit & Run Archive 2012 March 22-31

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Obamacare #FAIL: Day 3 at the Supreme Court

"If I was in the Obama administration, I would not be comfortable with how the last three days went."

Reason's Damon Root was in attendance for the third and final day of oral arguments before the Supreme Court on the Patient Protection and Affordable Care Act (ACA), which focused primarily on the issue of severability, which brings into question whether the individual mandate be excised from the law, or if the law in its totality must be struck down.

Now that the case is in the hands of the Court and a decision isn't expected until late June, Root thinks the Obama administration has reason to be concerned not only because their Solicitor General's performance rated poorly, but because "their arguments were nowhere near as strong as they thought they were going to be."

Runs about 3 minutes.

Produced by Anthony L. Fisher, shot by Josh Swain and Fisher.

For more of Reason.tv's coverage of the Health Care debate, click here.

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Some Canadian Health Experts Have Noticed The Drug War and "Tough on Crime" Things Not Working So Well

Portugal gets it; the president of Guatemala gets it; Now some Canadians are noticing that the whole be-like-the-U.S. and declare war on plants and people is not the best policy idea. 

The chief medical officers of three Canadians provinces, British Columbia, Nova Scotia, and Saskatchewan have written a new paper for Open Medicine called "Improving community health and safety in Canada through evidence-based policies on illegal drugs." Its conclusions are a cautious version of the above; law and order harshness does nothing to sate appetites for drugs, marijuana in particular is not terribly bad for people, and U.S. policies are just awful so why emulate them?

According to CBC News:

Looking at illegal drugs solely based on a criminal justice approach has failed, said Dr. Robert Strang, Nova Scotia's chief medical health officer, a co-author of the paper.

"For the last decade, Portugal has decriminalized all drug use and they have some of the lowest rates of drug use in Europe and they have some of the least amounts of harm from drug use," Strang said.

In contrast, drug use hasn't decreased since the $1-trillion US "war on drugs" in North America was declared and aggressive drug law enforcement began.

The paper includes such excellently restrained passages as this:

Given its well-funded drug surveillance systems, the United States has generated excellent data for assessing the impact of drug law enforcement. Remarkably, despite an estimated US$1 trillion spent since former US president Richard Nixon first declared his country’s “war on drugs,” the effort to reduce drug supply and drive up drug prices through aggressive drug law enforcement appears to have been ineffective....

Opponents of drug policy reform commonly argue that drug use would increase if health-based models were emphasized over drug law enforcement,14 but we are unaware of any research to support this position. In fact, a recent World Health Organization study demonstrated that international rates of drug use were unrelated to how vigorously drug laws were enforced, concluding that “countries with stringent user-level illegal drug policies did not have lower levels of use than countries with liberal ones.”

This comes at a time when Canada's government is budgeting and unfortunately for anti-drug war fans, Federal Justice Minister Rob Nicholson is determined that U.S.-style mandatory minimums for drug charges are a great idea, even as the U.S. turns away from them at an admittedly excruciatingly slow pace. 

Or, as the paper's authors put it:

Canadian society would greatly benefit from a reorienting of its drug policies on addiction—that is, with consideration of addiction as a health issue, rather than primarily a criminal justice issue. In this context, evidence-based community diversion programs for non-violent drug offenders could be expanded and evaluated to replace more costly and less effective incarceration efforts....

In this context, several Canadian bodies, including the Canadian Public Health Association40 and the Health Officers Council of British Columbia,41 have recently endorsed the evaluation of a regulated market for all currently illegal drugs. Although a full description of regulatory models is outside the scope of this paper, it is important to stress that regulatory tools would need to be closely evaluated and should be tailored to each specific substance. Examples of regulatory tools that have been described for cannabis are presented in Table 1.36

Advocating for drug policy reform has traditionally been politically unpopular, but a recent Angus Reid poll estimated that 50% of Canadians already support legalization of cannabis.

It's worth noting that Canada has a reputation for being looser about marijuana than the United States (and is certainly not known for quite the same level of draconian punishments doled out to users and sellers) but the level of support for legalization is almost exactly the same in both countries.

Here's hoping our friends to the North ignore the U.S.'s awful, inhumane example and skip over the 40 years of misery part and get right to the tentative talk of legalization. Maybe they'll get there faster than us.

Hat tip to commenter rts

Reason on drug policy

Is the Supreme Court Going to Invalidate the Entire Health Care Overhaul?

Washington, D.C.—The Supreme Court kicked off its third and final day of oral arguments this morning in the legal challenge against the Patient Protection and Affordable Care Act (ACA) with a contentious debate over what happens to the rest of the health care law if its controversial individual mandate is ruled unconstitutional.

The ACA’s challengers, represented by former solicitor general Paul Clement, contended that the individual mandate is not severable from the law’s other provisions and that the entire ACA must therefore be nullified. The government, represented by Deputy Solicitor General Edwin Kneedler, argued that if the mandate is struck down only two other ACA provisions must fall with it: the requirement forbidding insurance companies from denying coverage to anyone with a preexisting medical condition and the requirement that insurers enroll anyone who wishes to sign up.

Judging by what I witnessed during today’s arguments, the federal government faces a very real risk of the Supreme Court invalidating not just the individual mandate, but the entire ACA as well. Perhaps most notable were the comments of Justice Anthony Kennedy, the likely swing vote on this—and other—questions. Consider this revealing exchange between Kennedy and Deputy Solicitor General Kneedler:

MR. KNEEDLER: We think, as a matter of judicial restraint, limits on equitable remedial power limit this Court to addressing the provision that has been challenged as unconstitutional and anything else that the plaintiff seeks as relief. Here the only -­

JUSTICE KENNEDY: But when you say "judicial restraint"... you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was -- one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -­ than striking the whole.

In other words, Kennedy is worried that it would be a greater act of judicial overreach for the Supreme Court to selectively remove one or two or three provisions from the health care law than it would be for the Court to simply wipe the slate clean and let Congress start crafting health care reform all over again from scratch. It’s not difficult to imagine Kennedy's four more conservative colleagues signing on to that argument as a way of voiding the entire ACA.


The Obama Administration's 'Limiting Principles' Seem More Like Expansionary Principles

In an August column about the 11th Circuit ruling against ObamaCare's individual health insurance mandate—the decision the Supreme Court is now reviewing—I noted the basic problems that opponents and supporters of the mandate face in trying to reconcile their positions with the Court's Commerce Clause precedents:

Because the U.S. Supreme Court has treated the power to "regulate commerce…among the several states" like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think. But...the law's defenders have a corresponding problem. Because a limitless Commerce Clause contradicts a fundamental constitutional principle [the doctrine of enumerated powers], they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far they have been unable to do so.

Judging from yesterday's oral argument, that remains true. Consider this exchange between Justice Anthony Kennedy and Solicitor General Donald Verrilli:

Kennedy: Your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

Verrilli: Yes. The rationale purely under the Commerce Clause that we're advocating here would not justify forced purchases of commodities for the purpose of stimulating demand....

Kennedy: But why not? If Congress says that the interstate commerce is affected, isn't...that the end of the analysis?

Verrilli: No....The difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce.

Notice that Verrilli implicitly accepts his opponents' activity/inactivity distinction, saying a person's failure to buy health insurance only looks like inactivity; it is in fact a decision about how to pay for services in a market he has already entered (or will soon enter). That's an argument the adminstration has been making for some time now. But in rejecting the idea of requiring purchases to stimulate demand, Verrilli seems to contradict the logic of Wickard v. Filburn, the 1942 decision in which the Supreme Court said a farmer could be prevented from growing wheat for his own use in excess of a government quota because his self-sufficiency, combined with that of other similarly situated famers, exerted "a substantial economic effect on interstate commerce" by reducing aggregate demand, thereby pushing prices down. The quota did not directly command Roscoe Filburn to buy wheat, but that was its intended function in this context. So if the federal government is going to start making people buy things, why is stimulating demand an impermissible aim under the "substantial effects" doctrine?  

Later in the argument, Justice Samuel Alito asked Verrilli to "express your limiting principle as succinctly as you possibly can." Verrilli's reply:

We got two and they are—they are different. Let me state them. First, with respect to the comprehensive scheme. When Congress is regulating—is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme. It's like—it's very much like Wickard in that respect. Very much like Raich [the case dealing with homegrown medical marijuana] in that respect.

With respect to the—with respect to the—considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the—the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when—when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.

So those—those are our views as to—­those are the principles we are advocating for and it's, in fact, the conjunction of the two of them here that makes this, we think, a strong case under the Commerce Clause.

They've had two years, and this is the best they can do? It sounds like Verrilli thinks either of these conditions would be sufficient to justify congressional action:

1) Congress creates a "comprehensive scheme" and finds that people are behaving in ways that interfere with it. It sets agricultural quotas, but a farmer grows more than allowed. It bans marijuana, but a cancer patient grows her own for medical use. It says health insurers must take all comers and charge them all the same rates, but young, healthy people refuse to participate, creating a danger of adverse selection. This does not seem like a limiting principle to me. If anything, it's an expansionary principle, since a regulatory scheme becomes more constitutional as it becomes more intrusive.

2) There's something almost all of us will need at some point, and we're not sure exactly when, but when we do other people will be forced to pick up the tab if we are unable or unwilling to pay. Health care is surely not the only thing that meets those first two requirements (as Chief Justice John Roberts suggested, why not require people to buy cellphones in case of emergencies?), and the third one is contingent on government policy (such as the federal law requiring hospitals to treat people regardless of their ability to pay). Again, this "limiting principle" encourages Congress to interfere in the economy as promiscuously as possible, thereby creating problems that justify further intervention. 

The president's lawyers, of course, picked these criteria because they fit the policy he wants to implement, not because they flow ineluctably from the power to "regulate commerce...among the several states." They are designed to be permissive, not restrictive. To come up with something better, you'd need to be genuinely concerned about the prospect of a federal government unmoored from its enumerated powers, and I doubt that danger keeps anyone in the Obama administration up at night.

Final Day of Healthcare Oral Arguments, Rep. Bobby Rush Honors Trayvon Martin on the House Floor, Brazil is Mad at the U.S. and Europe: P.M. Links

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Michigan Legislature Wants to Kill Fancy Pigs, My Relatives

A bunch of fancy pigs may get the axe in Michigan on Sunday, and I'm feeling a strong sense of solidarity with these imperiled bacon factories. Let me explain.

The Michigan Department of Natural Resources (DNR) is trying to get rid of feral pigs by going after people who keep boars that might be able to survive in the wild. An order has been issued which mandates the killing of all such swine by April 1, at which point the DNR "hope[s] to be invited onto farms voluntarily. We will be doing inspections" to make sure the forbidden breeds—classified as invasive species—are no longer around.

But there is some confusion about whose porkers will be legal come Fools Day. Naturally, there are exceptions built in for the breeds favored by the huge factory farms. But heritage breeds are in blurrier territory. And that has some farmers freaked out about their livelihoods:

The breeders of Mangalitsa pigs, for instance, were concerned that their animals might fall under the ISO, Golder said. A letter from DNR director Rodney Stokes states in part, "It is the DNR's understanding that purebred Mangalitsa swine do not exhibit characteristics listed in the Declaratory Ruling, other than potentially striped piglets. The Invasive Species Order would not prohibit purebred Mangalitsa swine based solely on this characteristic."

However, in the event that breeders have crossed Mangalitsas with Eurasian wild boar or any of the swine outlawed under the ISO, those hybrid animals would still be prohibited, Golder said.

This particular story caught my attention because I have something in common with those swine set for the chopping block. The first part of my last name (Mangu) may derive from the Romanian name of these medium-sized pigs prized for their fatness. That makes me a Mangalitsa crossbreed—the Wards definitely qualify as wild Eurasian stock. All which adds up to staying the heck away from the Great Lakes State for the time being. (No one likes to be called an invasive species, you know? Not that there's anything wrong with that.)

Watch one Michigan pig farmer defend his product, my cousins, and make hogwash joke around the 4:00 minute mark:

Via alert reader Tom Niedringhaus.

My E-mail Exchange With Michelle Obama

This just popped in my Inbox:

Shikha --

Every night in the White House, I see Barack up late poring over briefings, reading your letters, and writing notes to people he's met.

He's doing that for you -- working hard every day to make sure we can finish what we all started together.

This week, I need you to have his back.

Will you donate $3 or more to support Barack before Saturday's critical fundraising deadline?


Thank you.


My response:

Dear Michelle:

I feel really bad for you that poor Barack has to work so hard. Being the most powerful man in the world is a bitch, what can I say. I can’t give you my $3 dollars but I can give you my two cents. (With the price of gas going up, my date with Uncle Sam on April 15 approaching, and years of moribund wages, thanks to a bad economy that has only gotten worse as Barack has worked harder, life has been tough for some of us on Main Street too, you’ll understand.)

Here’s my suggestion: Why doesn’t Barack work out a deal with Congress to go part time? I know Rick Perry was the most recent figure to float the idea, but that is no reason to dismiss it out of hand. Just as smart presidents can do dumb things, dumb people can occasionally come up with smart ideas. At any rate, think of the benefits. If Congress is in session only half the time, Barack’s workload will be cut in half. That way you can have long, romantic, candle-lit dinners with Barack in the White House. My and my fellow taxpayers’ wallets will be safe(r). And businesses on whom Barack has imposed $46 billion annually in new regulations since he took office might be shielded from further costs.

It’ll be a win-win-win.

Hope that helps.


P.S. You might want to rethink your mailing list.

Kennedy's Skepticism About the Insurance Mandate Reflects His Appreciation of Federalism As a Bulwark of Freedom

Supreme Court Justice Anthony Kennedy's skeptical questions about the Patient Protection and Affordable Care Act's individual insurance requirement, which gave hope to the mandate's opponents by suggesting there may be a fifth vote to overturn it, reminded me of his opinion in Bond v. United States, a 2011 ruling that allowed a defendant to challenge her prosecution on 10th Amendment grounds. The case involved Carol Ann Bond, a Pennsylvania microbiologist who was charged with violating the Chemical Weapons Convention Implementation Act by trying to poison an ex-friend who had an affair with Bond's husband. Bond argued that federalizing her offense, which resulted in a sentence substantially longer than she was likely to have received in a Pennsylvania court, unconstitutionally impinged on a power "reserved to the states" under the 10th Amendment. The issue for the Court was whether individuals, as opposed to state governments, can mount such a challenge. It unanimously decided that they can. In his opinion for the Court, Kennedy noted that "Bond seeks to vindicate her own constitutional interests," claiming "injury from governmental action taken in excess of the authority that federalism defines." He emphasized the connection between federalism and individual freedom:

The federal system rests on what might at first seem a counterintuitive insight, that "freedom is enhanced by the creation of two governments, not one."...The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. "State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.' "

This diffusion of power allows each state to decide for itself whether requiring people to buy health insurance is a good idea, and that decision is one of the many factors Americans can consider in deciding where to live. But the federal government, which is limited to explicitly authorized functions, cannot impose such a mandate nationwide without showing that it falls under a power "delegated to the United States by the Constitution" (as the 10th Amendment puts it). An act of Congress ordering Americans to buy officially approved medical coverage, Kennedy suggested during yesterday's oral argument, "changes the relationship of the federal government to the individual in a very fundamental way," which means the Obama administration has "a heavy burden of justification to show authorization under the Constitution."

Reporting on the oral argument in The New York Times, Adam Liptak says overturning the mandate would "revise the constitutional relationship between the federal government and the states." Not in the view of the mandate's opponents, who believe they are preserving (what is left of) the constitutional relationship between the federal government and the states. As Kennedy pointed out in Bond, that arrangement is no mere technicality, and it is not simply about "states' rights." It is a structure designed to protect liberty, as vividly illustrated by the edict at the center of the case the Court is now considering.

Reason-Rupe: 58 Percent of Americans Satisfied with Their Health Care; 23 Percent Dissatisfied

The recent Reason-Rupe poll provides a closer look at the current health care market. 87 percent of Americans report they are covered by health insurance, and 13 percent say they are not. Among those covered by health insurance, a clear majority (63 percent) access health insurance through their employer. 10 percent purchase plans individually, 17 percent have Medicare, and 6 percent are enrolled in Medicaid.

Most Americans report high levels of satisfaction with the health care they receive, with 58 percent satisfied and 23 percent dissatisfied with their health care.

Satisfaction with health care is highest among those with Medicare, with 73 percent satisfied and 16 dissatisfied.  Those with employer-provided plans also report high levels (65 percent) of satisfaction with their health care. 53 percent among those on Medicaid report satisfaction with health care, and 27 percent are dissatisfied.

Satisfaction with health care drops among those who purchase their plans individually, with 48 percent satisfied and 38 percent dissatisfied.  Interestingly, however, they have some of the lowest levels of support for employer-provided plans. 59 percent would prefer employers provide them with an equivalent amount of funds that would have been spent on insurance and allow them to purchase their own insurance independently. Only 26 percent preferred to access health insurance through their employers.

Survey respondents were asked to explain in a few words what they would do to improve their health care. Those with employer-provided and individually purchased plans were most likely to mention something about reducing costs or premiums with 38 percent and 40 percent respectively. Respondents on Medicare were far less likely (21 percent) to mention cost.

Full poll results found here.

Nationwide telephone poll conducted March 10th-20th of both mobile and landline phones, 1200 adults, margin of error +/- 3 percent. Columns may not add up to 100 percent due to rounding. Full methodology can be found here

Emily Ekins is the director of polling for Reason Foundation where she leads the Reason-Rupe public opinion research project, launched in 2011. Follow her on Twitter @emilyekins.

Independent Run by Ron Paul Would Pull 17 percent of Presidential Vote: New Reason-Rupe Poll

As Mitt Romney looks to sew up the Republican presidential nomination, the just-released Reason-Rupe Foundation poll shows that Rep. Ron Paul (R-Texas) could play the spoiler if he mounted an independent campaign by making it virtually impossible for the GOP candidate to beat Barack Obama.

"Ron Paul would probably take about 17 to 18 percent of the national vote," says Reason Polling Director Emily Ekins. While Paul would pull votes from both candidates, he would take more from Romney. The newest version of the quarterly Reason-Rupe Public Opinion Survey of 1,200 U.S. adults was conducted March 10-20, 2012. Full results and discussion are online here .

The poll shows that Romney has pulled well ahead of GOP rivals Rick Santorum, Newt Gingrich, and Ron Paul among Republican voters. President Obama maintains an edge over Romney in a head-to-head matchup, but both are below 50 percent, says Ekins, with the incumbent beating Romney by 46 percent to 40 percent. And in a three-way race among Obama, Romney, and Paul running as an independent, the totals change to Obama with 41 percent, Romney with 30 percent, and Paul with 17 percent.

In an interview with Reason's Nick Gillespie, Ekins also talked about how Americans are wary of war with Iran (only 37 percent support military intervention if such actions will cause "a war that is similar in length and costs to the war in Iraq") and support for an overhaul of tax policy (45 percent support a shift to a flat tax versus 41 percent opposed).

In a previous interview, Ekins talked about the unpopularity of the Affordable Care Act. Watch that here and read full poll results here.

4.30 minutes. Filmed by Jim Epstein & Meredith Bragg. Edited by Joshua Swain.

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Greg Beato on the Cheap, Exciting Afterlife of Modern Mortal Remains

Half a century ago death was a homogenizing force more ruthless than any communist regime. Virtually everyone who died in America got an overpriced casket, an awful post-mortem makeover, and a bland grave marker immortalizing them in the same conventionally abstract fashion as everyone else who had died that century.

But now, writes Greg Beato, we’ve got caskets that look like beer cans, headstones shaped like teddy bears, companies that will provision your loved ones with white doves to release graveside. Major League Baseball teams, many colleges, and the rock band KISS, among others, license their logos for use on caskets. And as the number of afterlife options expands, Beato observes, prices are dropping.

View this article

More on the Irrelevance of 'Stand Your Ground' to the Trayvon Martin Case

In an Orlando Sentinel op-ed piece published yesterday, Reason Contributing Editor Walter Olson explains why the right to "stand your ground" seems irrelevant in the Trayvon Martin case:

Even under the old retreat duty, prosecutors needed to show your route of escape was truly safe; the rule did not require you to turn your back on someone who might well catch up and do you harm. By many accounts, Trayvon had the upper hand in the scuffle between the two before the gunshot (according to his attorney, Zimmerman had a broken nose).

If Zimmerman claimed he had no safe way to disengage from the beating, prosecutors might have had trouble establishing the "safe line of retreat" required under the old law.

There's a pattern here. If Sanford police lacked probable cause to charge Zimmerman under the post-'05 law, they most likely also lacked probable cause under the older law. (Whether they should have worked harder to develop evidence of probable cause is a separate question.)

Even if Zimmerman started the fight (by pushing Martin, say), Florida law still allows him to argue that the response from Martin was such that he feared for his life and that he had no realistic opportunity to escape. Sean Bugg sums up that possibility this way: "Did you start a fight and get your ass kicked? Bang bang bang! Problem solved." Not quite, because you have to reasonably fear "death or great bodily harm," and you have to exhaust "every reasonable means of escape" (or, alternatively, you can disengage from your opponent and make it clear you no longer want to fight, only to be attacked again). That is the old "duty to retreat" standard, and "stand your ground" does not enter into it.

Bugg assumes Zimmerman started the fight, arguing that "you don't have the right—or, at least shouldn't have the right—to chase down a person on a dark street, start a confrontation, get your ass kicked and then shoot that person dead." As I noted last week, the authors of Florida's "stand your ground" law seem to agree that Zimmerman made himself the aggressor by following Martin for no good reason. Northern Kentucky University law professor Michael J.Z. Mannheimer is not so sure, noting that even someone who sets the stage for a violent confrontation by breaking the law will not necessarily be deemed the "initial aggressor." Mannheimer illustrates that point with U.S. v. Peterson, a 1973 decision by the U.S. Court of Appeals for the D.C. Circuit:

The victim trespassed on the defendant's land and stole the windshield wipers from the defendant's vehicle, a misdemeanor. The defendant went into his house, retrieved a gun, returned, and told the victim not to move. The victim approached the defendant menacingly with a wrench and the defendant shot and killed him. The court held that the question of who was the initial aggressor was a question for the jury, rejecting the defendant's argument that the victim's trespass and misdemeanor theft made him the aggressor as a matter of law.

By contrast, it is not clear that Zimmerman broke the law in any way prior to the fight. "Does following someone, even with the intent only to ask questions, render Zimmerman the 'initial aggressor?'" Mannheimer asks. "I would think not." In any case, given Zimmerman's description of the fight—that Martin punched him in the face hard enough to knock him down, repeatedly slammed his head against the pavement, and tried to grab his gun—a jury might conclude the shooting was justified, based on the "duty to retreat" standard that applies to someone who "initially provokes the use of force against himself," even if it believed Zimmerman started the fight. Mannheimer adds that "it might be the case that Martin himself was justified in using physical force because he reasonably believed that Zimmerman was about to do him harm," in which case "both may have had a valid self-defense claim."

Only one of them is alive to make it, of course, which means we will never hear Trayvon Martin's version of events. That is both an advantage for Zimmerman, who cannot be contradicted by the teenager he killed, and a disadvantage, since the tragic outcome predisposes people to think Zimmerman overreacted. That may indeed be what happened, but if so his actions are hardly tantamount to deliberately running a man over with a pickup truck just for kicks.

No-Knock Raid on Wrong House Terrifies 76-Year-Old Man

Fred Skinner was eating a piece of toast when police from three different agencies burst through his front door with guns drawn, put the 76-year-old in handcuffs, and began ransacking his house in search of drugs. Minutes later, one of the officers noticed a piece of mail on Skinner’s table. The name on it didn’t match the name for the suspected drug dealer the officers were after. The officers asked Skinner if the name on the mail was his. When Skinner said yes, the officer shouted “Wrong house,” and the entire raid team headed out the way they’d come, without apologizing or explaining themselves. They were, according to a department spokesperson, in too much of a rush to get next door, where their suspect was supposedly located.

The Finger Lakes Drug Task Force that conducted the raid is made up of three different departments—The  Cayuga County Sheriff’s Office, the Auburn Police Department, and the Rochester Police Department—meaning the cops screwed up in triplicate. Yet nearly two weeks after the March 13 raid, when the Citizen Local News got wind of the story, the police were still refusing to admit they’d made a mistake:

Once they left, Skinner called Barbara Bailey, his neighbor across the street. Bailey saw five or six patrol cars at the house next door to Skinner’s and went out to them.

She asked who they were and what they were doing; they told her they were conducting a drug raid from Rochester, she said.

“I said, ‘What about Fred Skinner’s house?’” Bailey said. “And he shrugged like he wasn’t telling me a damn thing.”

The officers left without an apology or information about how Skinner might get reimbursed for the damage.

No one involved would specify the purpose of the raid or say why the officers broke into the wrong house.

Department spokesman Stephen Scott declined to comment but said there is an investigation into the incident.

“We haven’t determined there was a mistake yet; the investigation is still ongoing,” he said.

The cops eventually forked over $1,250 to fix the front and porch doors after Skinner’s son got involved. Why not beforehand? Possibly because the elder Skinner wasn’t in a position to make much noise. He lives alone, sleeps with an oxygen tank, has memory problems and a pacemaker, can’t hear well, can’t make it up and down stairs, and is recovering from a stroke. 

And it wasn’t until two local TV stations got involved that police publicly admitted they screwed up. 

“It was a mistake,” Auburn Police Chief Gary Giannotta told WSYR-TV. “We're no different than anyone else. We make mistakes just like everybody else. We try to make sure our information is as current and as reliable as possible. Once in a while we get it wrong. When we get it wrong, we make it right.” 

Listen to the Complete Audio of This Morning's Supreme Court Hearing on ObamaCare's Severability

The audio and transcript of this morning's Supreme Court arguments over the question of ObamaCare's severability have now been posted. More on the severability question here

Reason-Rupe: In Addressing Health Care Needs, More Americans Trust Health Insurance Companies Than Government

The recent national Reason-Rupe poll finds that 9 percent of Americans have a high level of trust in government in addressing their health care needs, compared to 27 percent who have a high level of trust in their health insurance companies. 26 percent of Americans report high levels of trust in their employer, and 46 percent in their hospital for addressing their health care needs.

In contrast, majorities of Americans place high levels of trust in their doctors (67 percent), pharmacists (56 percent), and themselves (76 percent) in addressing their health care needs.

Government was the only entity to receive greater low levels of trust than high levels of trust.


This may help explain the 50 percent of Americans with an unfavorable opinion of the new health care law passed by Congress in 2010, since much of the public debate over the law has focused on the role of government, health insurance companies, and employers in providing care, and less on the role of individuals and doctors.

Please rate on a scale of 1-7 the following things according to the level of trust you have in each in addressing your health care needs. With 7 indicating a high level of trust, 1 indicating a low level of trust, and 4 being neutral. The first one is…


Full poll results found here.

Nationwide telephone poll conducted March 10th-20th of both mobile and landline phones, 1200 adults, margin of error +/- 3 percent. Columns may not add up to 100 percent due to rounding. Full methodology can be found here

Emily Ekins is the director of polling for Reason Foundation where she leads the Reason-Rupe public opinion research project, launched in 2011. Follow her on Twitter @emilyekins.

Tennessee Legislators Offer Advice on How to Teach "Critical Thinking" in Public School Science Classes

The House and Senate of Tennessee passed legislation that offers their guidance to the Volunteer State's public school science teachers on how to teach science. In the just passed bill [PDF], the legislators find:

(1) An important purpose of science education is to inform students about scientific evidence and to help students develop critical thinking skills necessary to becoming intelligent, productive, and scientifically informed citizens;
(2) The teaching of some scientific subjects, including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning, can cause controversy....

Hmmm. What kind of scientific controversy might concern the solons of Tennessee? Are they perhaps worried that high school biology teachers might skimp in their presentations about the RNA world hypothesis for the origin of life on earth?

And why are the legislators particularly concerned about the development of critical thinking skills in science classrooms? Surely such skills could be usefully encouraged in history and political science classes too. Applying such critical thinking to politics might suggest that Tennessee legislators are not really all that worried about the paucity of critical thinking in public school science classes. In fact, critical thinking suggests that the legislators are really concerned about smuggling anti-science views (a.k.a. fundamentalist Christian dogma) into science classrooms.

Tennessee's governor could still veto this bill.

Go here for my column, "Evolution in the Blackboard Jungle," for my solution to this "controversy."

Andrew Napolitano on the CIA's Deep Domestic Reach

When Congress created the CIA in 1947, it expressly prohibited the agency from spying on Americans in America. Nevertheless, it turns out that if your microwave, burglar alarm or dishwasher is of very recent vintage, and if it is connected to your personal computer, a CIA spy can tell when you are in the kitchen and when you are using that device. How do we know this? None other than Gen. David Petraeus himself, writes Andrew Napolitano. 

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Can ObamaCare's Mandate Be Severed from the Rest of the Law?

The Supreme Court will hear arguments on two questions about ObamaCare today. Reason's Nick Gillespie already outlined the basic case against the law's Medicaid expansion here. (Read my take on the states' case against the Medicaid expansion here.) 

The court will also hear arguments on the question of the law's severability. Because the law was passed without a severability clause, which would have ensured that remaining parts of the law would stand should any part be overturned, the court will have to decide how much of the law to strike and how much to let stand should it rule that the mandate (or any other provision) fails to pass constitutional muster. There are three plausible outcomes:

  1. The whole law goes down. This is the position being argued by the 26 states challenging the law. It's also the position that Judge Roger Vinson took when he struck down the entire law in a lower court last year. One thing to note about Vinson's ruling is that although he scrapped the entire thing, he did not actually rule in favor of the states on the Medicaid expansion. He simply said that the mandate was unconstitutional, and that the whole law was woven too tightly to try to remove just one provision. 
  2. The mandate goes down, as do the law's major insurance regulations. This is the position being argued by the administration, which says that the rules banning insurer discrimination against indidivuals with preexisting conditions cannot stand without a mandate. The administration points to market meltdowns in the states to make its point. 
  3. The mandate goes down, but the entire rest of the law stands. This is the position taken by the 11th Circuit Court of Appeals in Atlanta, which heard the case following Judge Vinson; it will be argued by an outside lawyer. 

The administration is correct that the insurance regulations are deeply connected to the mandate. But so is the rest of the law. And that's why the whole thing should go.

In deciding what parts of the law to sever in the absence of a severability clause, the court is in a somewhat dicey position as it has to determine what Congress would have done had the unconstitutional provisions not been available as options. It is of course impossible to know the counterfactual. But it's relatively easy to make a case that the mandate—the provision most likely to be judged unconstitutional—ties the entire law together; after all, the Obama administration has repeatedly argued that the mandate is essential to the law. Nor is it the provision merely essential to the law's functionality; it can also be argued that the provision may have been essential to the law's passage. As Cato's Ilya Shapiro told me back in 2010, "It could be that nothing would’ve passed without the individual mandate—because the bill was a whole bunch of logrolling, finely balanced compromises, etc.—in which case even more falls than just the provisions directly related (including the Medicaid expansion)." If the mandate—or any part of the law—is held to be unconstitutional, then the rest of the law should be thrown out too. 

From the archives: If ObamaCare's mandate is struck down, then what?

Update: Striking down the entire law was always going to be a long shot, even more so than simply striking the mandate. And it looks like several justices on the court are less than interested in taking the entire law down. Via the AP:

Several Supreme Court justices seemed receptive Wednesday to the idea that portions of President Barack Obama's health care law can survive even if the court declares the centerpiece unconstitutional.

On the third and last day of arguments, the justices seemed skeptical of the position taken by Paul Clement, a lawyer for 26 states seeking to have the Patient Protection and Affordable Care Act tossed out in its entirety.

In their questions, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg - and even conservative Chief Justice John Roberts and Justice Antonin Scalia - seemed open to the idea that the wide-ranging law contains provisions that can be saved - even if the mandate for Americans to have health insurance is struck down.

Update 2: The severability argument is now complete. Other reports from observers in the court room suggest it's tougher to predict how the Court might rule. The New Republic's Jon Cohn tweets: "Tough questions to both sides, still hard to predict final verdict, but not out of question SCOTUS throws out entire law." The Examiner's Philip Klein agrees: "Very hard to call where they'll end up," he writes, noting also that "Kennedy argued it may be more extreme to pick & choose parts of law to overturn than to just strike down the whole thing."

The Ryan/GOP Budget Plans: Dessert First, Spinach Later, Defense Always

Reason columnist and Mercatus Center economist Veronique de Rugy has an entry up at The New York Times' latest Room For Debate, which is about Paul Ryan's recently released GOP budget.

De Rugy's take?

Paul Ryan deserves praise for his continuous efforts to address the explosion of Medicare spending. Also, his proposed tax reform would make our system flatter and less burdensome, both steps in the right direction. However, reducing taxes today is not as noble as it seems if lawmakers aren’t willing to cut spending enough to ensure that future generations don’t foot today’s bill. Sadly, this plan doesn’t make the hard choices necessary and continues to kick the can down the road...

It would increase spending from $3.6 trillion in 2013 to $4.9 trillion in 2022 and wouldn’t balance the budget for 28 years....

This plan is a “dessert now, spinach later” policy. In this proposal, the elderly would get the dessert now, and one day, younger people will have to eat all the spinach. Given the inevitable negotiations and compromises to come, Chairman Ryan should have offered a much stronger starting point — one that recognizes we all need to eat some spinach, now and later. Otherwise no one will get any dessert.

Whole entry here.

In a National Review/The Corner post about the new Republican Study Committe budget plan, which would balance the budget in five years, de Rugy notes that the RSC, like Ryan, just can't seem to truly deeply madly put defense spending on the table. "It exempts defense from scheduled sequestration cuts," she notes, which is a bad move politically and fiscally. Politically because the GOP comes across as having weird priorities and fiscally because defense is where a huge pot of money is and is traditionally the part of the budget that can be cut relatively effectively.

Above and to the right is a chart showing national defense spending in constant 2005 dollars.

As de Rugy has noted elsewhere, assuming full sequestration cuts (which isn't going to happen if the GOP and Obama get their way), we'd go all the way back to 2007 levels of funding for the Pentagon.

Which ain't so bad, especially considering the United States accounts for about 45 percent of all military spending globally.

Sheldon Richman on How to Lower Gas Prices

Republicans see rising oil and gasoline prices as an opportunity to score political points on President Obama. To be sure, Obama is partly responsible for the rise in world prices and could do something about it. The irony, writes Sheldon Richman, is that Republicans would emphatically oppose the one measure that would be most effective in easing the pressure on prices right now: defusing tension in the Middle East by taking the war threat against Iran off the table.

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Reason Writers on TV: Peter Suderman Talks ObamaCare, Mitt Romney on The Melissa Harris-Perry Show

On Wednesday, March 25, Reason Senior Editor Peter Suderman appeared on MSNBC's Melissa Harris-Perry show to discuss the Supreme Court health care case and the what the GOP primary says about the state of the Republican party. Approximately 23 minutes. 

Does Obamacare's Medicaid Expansion Plan Violate the Constitution as Badly as Medicaid Fails its Patients?

While much of the discussion and analysis of the oral arguments at the Supreme Court over Obamacare have centered on whether the individual mandate to purchase health insurance is constitutional, the law's Medicaid expansion raises serious legal questions as well. The Affordable Care Act includes provisions that opens up the nation's health care program for the poor to many more people starting in 2014 - about 16 million more.

While the feds fund the majority of the program, states are responsible for a good share, too and Medicaid spending is the single-largest item in most (if not all) states. While states are technically free to opt out of Medicaid, it's virtually impossible to do so under Obamacare. Any state that withdraws from the program to avoid the expansion would also lose all of the feds' contribution to Medicaid. One of the challenges to Obamacare is that such a rule violates the states' rights to govern thenselves and to access their residents' tax dollars. The major precedent here is a 1987 ruling that allowed the federal government to withhold 5 percent of federal transporation dollars from states that didn't "volutarily" raise the drinking age from 18 years of age to 21 years (thanks, Ronald Reagan!). The court said that 5 percent was a small enough figure not to be an issue, but it did raise some questions about the feds' supremacy over the states that are back in play now. 

Here's Forbes' Avik Roy's summary of the issues at stake:

Most importantly from the standpoint of the Obamacare litigation, the Supreme Court [in 1987] said that these spending conditions could not be “coercive,” noting that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’”...

Roy points out that lower courts have so far said the Medicaid provisions are OK, but not without voicing big-time reservations. For instance:

The Eleventh [Circuit Court] determined, “not without serious thought and some hesitation,” that Obamacare’s Medicaid expansions weren’t coercive. They gave four reasons: (1) Medicaid-participating states were “warned from the beginning…that Congress reserved the right to make changes to the program”; (2) “the federal government will bear nearly all of the costs associated with the expansion,” capping at 10 percent in 2020; (3) “the states have plenty of notice—nearly four years from the date the bill was signed into law—to decide whether they will continue to participate in Medicaid by adopting the expansions or not”; and (4) it’s not a “foregone conclusion” that states will lose their Medicaid funding if they don’t comply with the law. “Indeed, the Medicaid Act provides HHS with the discretion to withhold all or merely a portion of funding from a noncompliant state.”

Roy thinks this Supreme Court is too timid to make a big statement over this but...

If the High Court decides that Obamacare’s Medicaid expansion is coercive to the states, this would be a huge victory for the supporters of a federalist system, and would do much to recast the balance of power between Washington and the states.

However, this group of Supreme Court justices doesn’t seem especially taken to bold action. The most likely scenario is that they uphold Obamacare’s Medicaid expansion, for the same reasons that the Eleventh Circuit did, but use the opportunity to articulate a multi-factor test for prohibiting Congressional coercion in the future. Either way, the Supreme Court’s decision on this aspect of the case will be as momentous as its decision on the individual mandate.

More here.

By the way, in case you're wondering whether Medicaid is a good thing in reality, think on this:

Numerous studies show that, on an array of specific maladies, Medicaid’s health outcomes are dismal—and in some cases worse or no better than the outcomes for individuals who lack health insurance entirely. A University of Pennsylvania study, for example, reported that colon cancer patients in Medicaid have a 2.8 percent mortality rate, compared with 2.2 percent for the uninsured. A study of Florida’s Medicaid patients found they were more likely to have late-stages of prostate cancer, breast cancer, and melanoma at diagnosis than the uninsured.

More in that jugular vein here, courtesy of Reason Senior Editor Peter Suderman.

Medicaid is not a good program despite (because of?) its huge and always-growing expense. If we really want to help the poor get better medical care, scrapping this program, as inefficient and fraud-ridden as it is, would be a good first step.

Brickbat: Sweet Hitchhiker

Rodney Peterson has three children and has a fourth due later this year. So when he spotted two teenage girls walking in a snow storm with “no umbrellas, no coats or hood” he says he felt he should help. He pulled his vehicle over and asked if they needed a ride. They said no, so he drove on. But the girls reported his offer, and three days later, Barrington, Illinois, police came to his house and arrested him for disorderly conduct.

Brickbat Archive

A.M. Links: Day 3 of Obamacare Oral Arguments Begin, Newt Gingrich Fires One-Third of His Campaign and Replaces Them With Twitter, California Dem Accused of $7 Million Fraud

  • Last day of Obamacare oral arguments, SCOTUS weighs severability, Medicaid expansion.
  • Newt Gingrich is going to use Twitter to make a brokered convention
  • California Democratic treasurer busted for stealing $7 million.
  • Poll: America likes Mitt Romney more than Rick Santorum; wants Ron Paul and Newt Gingrich to drop out.  
  • Sanford cops originally requested an arrest warrant for George Zimmerman, but the State Attorney's office kiboshed it
  • Shocker: Women voters not crazy about Republicans. 
  • Joe Biden attacks Romney for "sending jobs overseas." 

Do you want hot links and other Reason goodies delivered to your inbox twice a day? Sign up here for Reason's morning and afternoon news updates. 

New at Reason.tv: "Constitutional Thunderdome: Day Two of Obamacare Oral Arguments"

32 Percent Favorable of New Health Care Law; 50 Percent Unfavorable

A recent national Reason-Rupe poll finds 32 percent of Americans have a favorable opinion of the new health care law passed by Congress in 2010, compared to 50 percent with an unfavorable view of it. The law once enjoyed majority support back in July 2010 with 50 percent favorable and 35 percent unfavorable, according to the Kaiser Foundation Health Tracking poll.

When asked whether Congress should repeal the health care law, or let it stand, 36 percent want to let the law stand, 49 percent say Congress should repeal it. Essentially favorability toward the law maps on to whether individuals want Congress to repeal it or let it stand.


Democrats are highly favorable of the new health care law with 57 percent favorable, and Republicans highly unfavorable with 81 percent. Independents, or self identified independents who do not lean toward either party, were split with nearly half unfavorable and 27 percent favorable. A clear majority (61 percent) of Democrats believe Congress should let the new health care law stand, but a majority of independents and Republicans said Congress should repeal the law.

Interestingly, half of Americans say they know very little - to not much about the new law. Only 9 percent say they know a great deal, yet this is understandable given the length and breadth of the legislation. 39 percent say they know a moderate amount about the law.

Those most opposed to the law are among those who say they know the most about it. 70 percent among those who say they know a “great deal” about the law have an unfavorable opinion, compared to the 33 percent with a favorable opinion of it. Even among those who say they know a “moderate amount” about the law, 53 percent have an unfavorable opinion of the law compared to 41% with a favorable opinion of it.


Note: "Pure Independents" indicates self-identified independents who do not lean toward either Republicans or Democrats.

Full poll results found here.

Nationwide telephone poll conducted March 10th-20th of both mobile and landline phones, 1200 adults, margin of error +/- 3 percent. Columns may not add up to 100 percent due to rounding. Full methodology can be found here

Emily Ekins is the director of polling for Reason Foundation where she leads the Reason-Rupe public opinion research project, launched in 2011. Follow her on Twitter @emilyekins.

You're Invited to Join Peter Schiff with Reason and FreedomWorks in DC on Thursday, 3/29 at 3 p.m.!

On Thursday, March 29, Reason and FreedomWorks are excited to host a special lecture from renowned economist Peter Schiff as he responds to Federal Reserve Chairman Ben Bernanke's upcoming College Lecture Series at George Washington University's School of Business.

This month, Chairman Bernanke will deliver a four-part lecture series on the Federal Reserve and the financial crisis. Offered as part of an undergraduate course, these lectures will also be streamed live to the general public starting on March 20 at 12:45 pm ET.

In response to Bernanke, economist and investment advisor Peter Schiff is offering an alternative perspective on the importance of the Fed and current state of the American economy.

Please join us:

  • When: Thursday, March 29 at 3:00 pm
  • Where: Reason's DC HQ, 1747 Connecticut Ave. NW

Q&A and Reception to follow the presentation.

Kindly RSVP to Emilia at RSVP@FreedomWorks.org

If you are unable to attend in person, please join us online at www.facebook.com/FreedomWorks for a Live Stream of the event.

Essential Reading and Viewing for the Day 3 of Obamacare SCOTUS Arguments

As the third day of oral arguments about the constitutionality of The Patient Protection and Affordable Care Act (a.k.a. ACA and Obamcare) before the Supreme Cout gets underway, here are some recent Reason articles and vids to read and watch:

The Obamacare Penalty That Isn't: Even if Congress can't regulate you, it can tax you into submission, Jacob Sullum, March 28, 2012

The 4 Best Legal Arguments Against ObamaCare: Why the president's sweeping health care overhaul should be struck down by the Supreme Court, Damon W. Root, March 24, 2012

Above: Here's a Reason playlist of our recent Supreme Court/Obamacare videos, including 3 Reasons to End Obamacare Before It Begins, Remy's Cough Drop Mandate Rap (feat. Sandra Fluke), Damon Root's reports on days one and two of the Supreme Court arguments, and more. It's a total of seven videos. Click to start watching or scroll through selections.

Why Obamacare is the "Most Important Case" in 50 Years: Q&A with Timothy Sandefur of Pacific Legal Foundation, Nick Gillespie and Jim Epstein, March 27, 2012 (Video)

Damon Root's first-person accounts of the first two days of the oral arguments are here and here. Videos of his reactions are here and here.

Read also Peter Suderman's ongoing blogposts about the Obama administration's shifting positions on whether ACA actually involves a mandate and more, and Reason Polling Director Emily Ekins' parsing of the new Reason-Rupe poll, which shows scant public support for Obamacare.

Come back later tonight for Root's final video and article dispatches about Obamacare and the Supreme Court.

And tomorrow, we'll be releasing a new Remy video about Obamacare.

For more on health care, go here.

Jacob Sullum on the ObamaCare Penalty That Isn't

On Monday U.S. Solicitor General Donald Verrilli told the Supreme Court the "shared responsibility payment" required of Americans who fail to obtain government-approved medical coverage is not a tax. On Tuesday he said it is. Noting the contradiction, Justice Samuel Alito asked Verrilli, "Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?" Whether or not the Court is prepared to accept that confusing claim, says Senior Editor Jacob Sullum, the tax argument suggests how little is at stake in this case when it comes to enforcing substantive limits on the federal government's powers.

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Ronald Bailey on Atheists and Rapists

This past weekend at the Rally for Reason, atheists, agnostics, freethinkers, and other assorted godless folks had themselves something of a "coming out" party on the National Mall in Washington, D.C. The relatively young crowd of 20,000 or so nonbelievers was treated to talks, rants, and routines by such faithless luminaries as biologist Richard Dawkins, American Atheists president David Silverman, professional skeptics Michael Shermer and James Randi, mythbuster Adam Savage, profane musician Tim Minchin, and via video comedian Penn Jillette. Reason Science Correspondent Ronald Bailey went down to the Mall for the day to join in the fun and ponder why it is that so many Americans claim to dislike their irreligious fellow citizens. 

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Kennedy and Roberts Raise Powerful Objections to the Individual Mandate

Washington, D.C.—I walked into the U.S. Supreme Court early Tuesday morning expecting a knock-down, drag-out constitutional showdown over the Patient Protection and Affordable Care Act’s individual mandate, which requires all Americans to buy or secure health insurance. I did not leave disappointed.

The day’s biggest loser was Solicitor General Donald Verrilli, whose key responsibility was to convince a majority of the justices that while the federal government’s power under the Commerce Clause is vast, it is not unlimited. Unfortunately for the Obama administration, Verrilli struggled and stumbled in his attempt to persuade the two justices whose votes matter the most to the government’s case: Justice Anthony Kennedy and Chief Justice John Roberts, either of who might conceivably cast a fifth and deciding vote in the government's favor.

“I understand that we must presume laws are constitutional,” Kennedy told Verrilli, “but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

Kennedy later repeated that point with even more force, telling Verrilli, “here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”

This doesn’t mean that Kennedy is a surefire vote against the mandate, of course. He still has plenty of time to ponder the arguments put forward in the government’s legal briefs—as well as to entertain the private arguments made in chambers by his colleagues on the bench. But his comments today do absolutely reveal that Kennedy takes the constitutional challenge to the individual mandate very seriously. That’s bad news for the White House, since Kennedy so often casts the fifth vote in a tight case.

Chief Justice John Roberts also drew blood from Verrilli, suggesting at one point, “once we say that there is a market and Congress can require people to participate in it...all bets are off.” Roberts also raised an argument that might prove quite effective in a future decision striking down the individual mandate. First, here’s how the relevant exchange with the solicitor general went down:


ABC News: Lead Homicide Investigator Did Not Buy George Zimmerman's Story

ABC News has more details about George Zimmerman's description of the fight that ended with Trayvon Martin's death. Zimmerman reportedly told police "he was heading back to his truck when Martin knocked him down with a punch to his nose, jumped on him, repeatedly banged his head on the ground, [and] then tried to grab Zimmerman's gun." This is the first confirmation I've seen that Zimmerman claimed Martin tried to grab his gun, which makes Zimmerman's claim that he feared for his life more plausible. But even if we believe everything Zimmerman said, it is still possible that Martin was responding to what he perceived as a potentially deadly threat from Zimmerman. ABC News says Chris Serino, "the lead homicide investigator," did not buy Zimmerman's story and wanted to charge him with manslaughter but was overruled by the state attorney's office.

[via Julian Sanchez's Twitter feed]

Activists Would Like the Feds to Pay a Call to the Albuquerque Police, Please

The Albuquerque police department has been involved in 23 shootings since January 2010, with 18 of those leading to dead suspects. That fact, plus the recent discovery that the police department union has a policy of paying several hundred dollars to officers involved in shootings, is making activists around the U.S. very peeved. And a few of them are very keen on a Department of Justice investigation into whether the department has too many fatal incidences for a city of half a million people.

According to the AP: 

There were six police shootings last year, all fatal. And there have been three fatal police shootings so far this year.

By contrast, New York City police fatally shot eight people and injured 16 in 2010. The population of New York is about 8 million.

A DOJ spokeswoman said Monday that her office is conducting a preliminary review of the Albuquerque shootings, but no decision has been made regarding a formal investigation.

Worse still is the 300-500 dollar "bounty" (an accusation coming from those who think it's a bad idea). And, you know, it's not quite enough money to make anyone go on a killing spree or something but it's not exactly a healthy disincentive, either. It looks like a reward for killing a suspect, even if it isn't one. 

The AP also reported last week that the mayor of Albuquerque isn't happy with the payment system:

Mayor Richard Berry called Friday for an immediate halt to the practice, which was first reported in the Albuquerque Journal during a week in which Albuquerque police shot and killed two men.... 

"The administration has nothing to do with how the union conducts their business," Berry said in a statement, "but I was shocked yesterday when made aware of this practice. I cannot stand aside and condone this practice. It needs to end now."

The police union pleads that it's simply a way to let an officer relax after the stress of a shooting incident; So that officers can "find a place to have some privacy and time to decompress outside the Albuquerque area." And yes,it's doubtful that a few hundred bucks would mean the difference between an officer shooting and not shooting , but even aesthetically, it's incredibly distasteful and sends the wrong message to citizens. 

Reason on police, including the controversy-dogged NYPD and Seattle PD

Hat tip to commenter sloopyinca

Another "Domestic Terror" Failure: Hutaree Militia Acquitted on Most Charges

Detroit News reports:

A federal judge acquitted seven members of the Hutaree militia Tuesday of the most serious charges following six weeks of testimony in a high-profile terror case.

On the second anniversary of the Hutaree arrests, U.S. District Judge Victoria Roberts granted a defense motion Tuesday to acquit the militia members on seven charges, including seditious conspiracy and conspiracy to use weapons of mass destruction. The most serious charge could have resulted in life prison sentences.

She ordered the trial to continue against Hutaree leader David Stone Sr. and his son, Joshua Stone, on weapons-related charges....

The judge said the government's case was built largely on circumstantial evidence.

"While this evidence could certainly lead to a rationale fact-finder to conclude that 'something fishy' was going on, it does not prove beyond a reasonable doubt that defendants reached a concrete agreement to forcibly oppose the United States government," Roberts wrote.

The judge's order cannot be appealed, said Peter Henning, a former prosecutor and current law professor at Wayne State University. That would constitute double jeopardy.

"Ultimately, this was a case that was all talk and no action," Henning said. "This is a blow to the government. They put a lot of resources into this case. It demonstrates how difficult it is to prove conspiracy cases that have not advanced very far."...

Defense attorneys sought acquittals Monday, saying prosecutors failed to show proof of a conspiracy to commit rebellion. They admitted there was plenty of offensive talk about police and the government but all was protected by the First Amendment.

I blogged on the beginning of their trial last month, and their arrest in March 2010, and Jesse Walker contextualized "The Myth of the Menacing Militias" in May 2010.

I asked "Where's the Terror?" on the fifth anniversary of 9/11, and it's still an apt question.

Does ObamaCare's Essential Benefits Regulation Undermine the Case for the Mandate?

Part of the argument for ObamaCare’s health insurance rests on the argument that mandatory health insurance does not actually require anyone to purchase something they wouldn’t buy; it’s merely regulating the financing of health care. One problem with this argument, however, is that the mandate does not merely require that individuals carry some sort of insurance. Instead, the minimum essential coverage provision requires that individuals carry policies that cover an array of specific benefits.

As The Hill’s Sam Baker points out, Chief Justice Roberts raised this point at today’s oral arguments, suggesting that the existence of mandatory benefits that many people won’t use invalidates a key defense of the provision: 

Verrilli said the mandate doesn’t force people to participate in commerce because everyone is, or might unexpectedly be, in the market for healthcare services.

But Chief Justice John Roberts questioned that argument. He noted that the mandate will force citizens to buy plans with benefits they might know for sure they’ll never use.

“If I understand the law, the policies that you're requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance abuse treatment,” Roberts said. “It seems to me that you cannot say that everybody is going to need substance abuse treatment or pediatric services, and yet that is part of what you require them to purchase.”

The healthcare law requires most plans to cover a set of “essential health benefits,” which will be defined by each state in accordance with 10 broad categories written into the law itself. Because of those requirements, Roberts said, the law requires people to buy services they won’t use.

This could end up being a big problem for the mandate. On the one hand, its advocates say the mandate does not compel purchase and merely regulates how people purchase care. In fact, the law compels people to purchase coverage for specific health benefits that many would presumably not otherwise buy. 

If the Penalty for Uninsured Taxpayers Survives, Good Luck Collecting It

My column tomorrow will consider whether the "shared responsibility payment" demanded from Americans who fail to obtain government-approved medical coverage is properly viewed as a "tax," a "penalty" (which is what the Patient Protection and Affordable Care Act calls it), or both (as Solicitor General Donald Verrilli maintains). That question of nomenclature is relevant in deciding whether the individual insurance mandate is constitutional under the Taxing Clause and whether the Anti-Injunction Act of 1867, which generally bars legal challenges to taxes until they are assessed, makes this case premature. Putting those issues aside, the discussion of the penalty's mechanics by the mandate's defenders leaves the impression that it is unlikely to work as intended even if it survives Supreme Court review. 

First of all, the penalty is low compared to the cost of insurance. The minimum payment is $95 in 2014, $325 in 2015, and $695 in 2016 (and thereafter, adjusted for inflation). Alternatively, it is a percentage of the difference between the taxpayer's household income and the filing threshold (currently $9,500 for single people and $19,000 for a married couple filing jointly), assuming the amount generated by that method is higher. The percentages are 1 percent in 2014, 2 percent in 2015, and 2.5 percent in 2016 and thereafter. So an individual earning $50,000 a year would be assessed a penalty of about $400 in 2014, rising to about $1,000 in 2016, still a lot cheaper than buying insurance.

In any case, these penalties can be easily evaded. "Although the act provides that the IRS may not use criminal prosecutions, notices of federal tax liens, or levies on property to collect an unpaid penalty," the Obama administration says in its brief, "the IRS may employ offsets against federal tax refunds. The IRS may also seek payment through correspondence or phone calls." But as a group of tax law professors note in a brief arguing that the Supreme Court should not address the constitutionality of the insurance requirement until it takes effect, taxpayers who know that the IRS has been deprived of its scariest enforcement tools may be less responsive than usual to the agency's letters and calls. The professors also argue that, while the IRS could in theory sue taxpayers for owed penalties, the amount of money involved in any given case is unlikely to justify the effort. 

That means the IRS generally will have to collect the penalties by withholding money from taxpayers' refunds. When those refunds are due to overpayments, recalcitrant taxpayers who do not want to buy health insurance can simply adjust their withholding so the IRS does not owe them anything at the end of the year, which will leave the government with no realistic way of collecting the money. When the IRS owes people money because of the earned income tax credit (which is refundable), the taxpayers are apt to be either exempt from the insurance mandate or eligible for subsidies because of their relatively low income. The upshot is that healthy taxpayers who can readily afford insurance—the people the government needs to subsidize the premiums of the sick policyholders insurers will be required to cover without charging them higher rates—are unlikely to buy it in response to the threatened penalty.

Why did Congress make enforcement of the insurance requirement so toothless? Presumably for the same reason it stopped calling the penalty a "tax" (as it was labeled in early versions of the law): to avoid provoking public anger with the prospect of uninsured taxpayers mercilessly hounded by the IRS. As the Tax Foundation reminds us in its brief against using the tax power to justify the insurance mandate, President Obama "abolutely reject[ed]" the notion that the penalty was a tax during the debate over the legislation. "For us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase," he insisted to ABC News in September 2009. After the mandate was enacted and challenged in court, the administration started calling it a tax because it initially sought to delay resolution of the issue by citing the Anti-Injunction Act. Later it abandoned that position, although it continues to call the penalty a tax when defending its constitutionality. Given the difficulty the government will have extracting this money from taxpayers, the administration probably should call the penalty a "suggested contribution."

"Constitutional Thunderdome": Day Two of Obamacare Oral Arguments

Reason's Damon Root attended the pivotal second day of oral arguments before the Supreme Court on the Patient Protection and Affordable Care Act (ACA), which he described as a "Constitutional Thunderdome." The debate over the legality of the mandate to purchase insurance at the heart of ACA was, says Root, a rough-and-tumble colloquy about the "the role of government in our lives" and "what sort of limits the Constitution places on the federal government."

"I'm more confident after today's arguments than I was going in that the individual mandate is in trouble," says Root. Oral arguments end tomorrow and the Supreme Court's decision is expected in early June.

Runs about 3 minutes.

Produced by Anthony L. Fisher, shot by Josh Swain and Fisher.

To read Root's dispatch from Day One of the proceedings, click here.

For more of Reason.tv's coverage of Health Care debate, click here.

Go to http://Reason.tv for downloadable versions and subscribe to Reason.tv's YouTube Channel to receive automatic updates when new material goes live.

Defenders of Mandatory Health Insurance Provision Still Arguing That It’s Not a Purchase Requirement

Obamacare’s requirement to purchase health insurance—the individual mandate? It doesn’t really compel anyone into commerce. That’s what the government is still claiming in its defense of the mandate, anyway.  

During Supreme Court arguments this morning, Solicitor General Donald Verrilli resisted the charge that the individual mandate to purchase health insurance was creating commerce—and is not actually a purchase requirement.

Asked by Justice Anthony Kennedy whether it is permissible to “create commerce in order to regulate it,” Verrilli responded: “That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis.” Instead, he argued that “what is being regulated is the method of financing health—the purchase of health care.” Later he made a similar claim: “This is not a purchase mandate,” he said. “This is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming...or inevitably will consume.”

In defending the mandate, Verrilli is representing the Obama administration’s position that the mandate is constitutional. And he is making an argument similar to arguments made in lower courts. It’s still not very convincing. And it doesn’t match how President Obama talked about the mandate just a few years ago. As I noted yesterday, on the campaign trail in 2008, Obama, who opposed the mandate at the time, explained the mandate differently on several occasions. Obama explained Hillary Clinton’s support of the mandate by saying that “she believes we have to force people who don’t have health insurance to buy it.” He also stressed the importance of understanding what what a “mandate” meant for individuals: “A mandate means that in some fashion everybody will be forced to buy health insurance.” The key phrase here is “forced to buy,” which makes it sound an awful lot like the purchase mandate that Verrilli claims it is not. 

Supporters of Obamacare Not Optimistic on Oral Arguments' Second Day, Russia Not Number One Enemy of U.S. Anymore Says Medvedev, Syrian Draft-Aged Men Banned from Leaving the Country: P.M. Links

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New at Reason.tv: "Why Obamacare is 'the Most Important Case' in 50 Years: Q&A with Timothy Sandefur of PLF"

Libertarian Lawyer Randy Barnett's Health Care Fight

As the libertarian movement's historian (see my book Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement) I was especially fascinated by today's New York Times front-page profile of longtime movement legal theorist Randy Barnett.

The story focuses on his role in the intellectual fight against health care mandates as the Supreme Court considers the issue this week. Some excerpts:

[O]ver the past two years, through his prolific writings, speaking engagements and television appearances, Professor Barnett has helped drive the question of the health care law’s constitutionality from the fringes of academia into the mainstream of American legal debate and right onto the agenda of the United States Supreme Court....

Professor Barnett, who watched Monday from the spectator seats, was not the first to raise the constitutional critique of the health law, but more than any other legal academic, he is associated with it....

He is a fierce advocate of economic freedom who is accustomed to being a legal underdog. In 2004, in his first (and, he says, probably his last) appearance before the Supreme Court, he argued that Congress could not criminalize the production of home-grown marijuana for personal medical use. There again, critics said he would lose 8 to 1. He did lose, but took satisfaction in the actual vote, 6 to 3.....

Amid the rise of the Tea Party movement, some Republican lawmakers argued during the legislative debate that the mandate was unconstitutional. With his academic credentials, Professor Barnett helped bolster the mandate’s conservative critics.... 

Professor Barnett says he learned early on the importance of being able to communicate with ordinary people, “and not be a pointy-headed intellectual.”....

He discovered libertarianism as a student at Northwestern. Later, as a Harvard law student, he took a class in constitutional law from the liberal scholar Laurence H. Tribe, and found himself disenchanted with the Supreme Court’s interpretation of the Constitution....

He became a prosecutor and later, a contracts professor. But a 1986 invitation to speak to the Federalist Society, then a fledgling group of conservative lawyers, ignited his interest in the Constitution. He developed a specialty in the Ninth Amendment, a favorite of libertarians, which says that rights not spelled out in the Constitution are “retained by the people.”

Professor Barnett’s work on the health care law fits into a much broader intellectual project, his defense of economic freedom. He has long argued that the Supreme Court went too far in upholding New Deal economic laws — a position that concerns his liberal critics.

And well it should!

Barnett is in many ways a walking example of the slow but real progress that specifically libertarian movement libertarians have made starting from their positions of obscurity. Barnett's a guy whose career was aided and shaped by groups such as Center for Libertarian Studies and Institute for Humane Studies (IHS) in the 1970s and '80s and was an old-school member of the circle around Murray Rothbard in those days (and still fights for greater fame for 19th century libertarian movement forefather and hero Lysander Spooner.)

Barnett was a lecturer at the first IHS seminar I attended as a student in the summer of 1988. His bravura lecture on the benefits and rightness of a polycentric legal system--in my memory he never once used the words anarchy or anarchism--first made me an anarchist, for what it's worth.

Barnett went on to argue (and, alas, lose) the medical marijuana case Gonzales v. Raich at the Supreme Court in 2005, and he's now recognized by the establishment mouthpiece NYT as one of the major players in the most important legal debate of the year. And he assured me in my interview of him for Radicals that his large-scale intellectual project is as rooted in Rothbardianism as ever. It's a nice moment for people watching libertarian influence grow and shift over the past few decades.

The Structure of Liberty: Justice and the Rule of Law is his best book, in my view, laying out the philosophical and legal case for law that need not be singular and monopolized.

Bonus old-school Barnett: he takes on Robert Nozick's defense of the state in the 1977 first issue of Journal of Libertarian Studies.

The Associated Press Carries Water for U.S. Predator Drone Program

The AP released a fascinating report this morning about Washington's fight with the Pakistani government over the use of CIA drone strikes. The story describes the lengths to which CIA Director David Petraeus has gone to maintain Pakistan's blessing in the use of drone strikes, Pakistan's unwillingness to continue blessing said drone strikes, and the Obama administration's incredible snow job on the entire affair, which amounts to, "Everything is fine, predator drones are great, terrorists are bad." 

The real treat, however, is the AP's description of the 8-year drone program. According to the wire service, it's been nothing but a smashing success: 

The diplomatic furor threatens to halt the CIA's drone program, which in the last eight years, has killed an estimated 2,223 Taliban, al-Qaida and other suspected militants with 289 strikes, peaking at 117 strikes throughout 2010, reducing al-Qaida's manpower, firepower and reach, according to Bill Roggio at the Long War Journal website, which tracks the strikes. U.S. officials say his figures are fairly accurate, though they would not give more precise figures.

If U.S. officials aren't objecting to a reported death tally, you're doing something wrong. In this case, we know the AP is committing a sin of omission by not including Sadaullah, a 15-year-old Pakistani who lost both legs, one eye, his wheelchair-bound uncle and two cousins during an errant drone strike; or 16-year-old anti-drone activist Tariq Aziz and his 12-year-old cousin, both of whom were killed by a CIA drone while driving to retrieve their dear old aunty. 

The Long War Journal's numbers are also contradicted by the UK's Bureau of Investigative Journalism, which estimates that

civilian casualties occur in approximately one fifth of U.S. drone attacks in Pakistan. Since the drone war began in Pakistan in 2004, more than 2,300 people have been killed and at least 1,150 wounded in these strikes. The Bureau estimates that the dead could include as many as 780 civilians, including as many as 175 children.[13]

The New America Foundation, meanwhile, put the number of civilian casualties from drone strikes at 32 percent

There's a lot of daylight between those three estimates; enough that the AP should know better than to regurgitate the claim that every person killed by a CIA drone strike in the last eight years was a terrorist. 

Reason-Rupe: Majority of Americans Open To Medicare Reform

The recent national Reason-Rupe poll of 1200 adults finds 65 percent of Americans are open to changing Medicare for those under 55 years old into a program that gives individuals a credit to purchase a private insurance plan.

Intensity lies with those open to reform with 36 percent strongly favoring such a plan and 16 percent strongly opposed.

These results may reflect Americans’ desire to have greater choice in health care. For instance, 69 percent of Americans report they would like to have similar ability to shop around for a less expensive and better health insurance policy as they do for auto insurance.

23 percent of Americans are concerned that a Medicare credit reform would worsen the quality of care that seniors and the disabled receive. However, 33 percent believe it would not significantly impact the quality of care and 34 percent believe it would instead improve the quality of care.

Full poll results found here.

Nationwide telephone poll conducted March 10th-20th of both mobile and landline phones, 1200 adults, margin of error +/- 3 percent. Columns may not add up to 100 percent due to rounding. Full methodology can be found here

Emily Ekins is the director of polling for Reason Foundation where she leads the Reason-Rupe public opinion research project, launched in 2011. Follow her on Twitter @emilyekins.

Why Obamacare is "the Most Important Case" in 50 Years: Q&A with Timothy Sandefur of PLF

Does the fate of a federal government with limited powers rest in the hands of Supreme Court Justice Antonin Scalia? And if so, will he rule against broad federal powers (as he did in the Gonzales case) or in favor of the feds' right to regulate just about anything (as he did in the Raich case)?

The Supreme Court case over The Affordable Care Act, a.k.a. Obamacare, "is certainly the most important case on the reach of federal power in 50 years" says attorney and legal scholar Timothy Sandefur of the Pacific Legal Foundation. "The constitutional principle of where is the line drawn on federal power - that's a matter that our children and grandchildren will have to live with."

The ruling will come sometime in early June, predicts Sandefur, who tells Reason.tv that the Affordable Care Act raises mutliple constitutional issues: Can part of the law be struck down and other upheld? Is the "individual mandate," which forces all Americans to purchase insurance as a condition of simply being alive, legal? Does the law's massive expansion of Medicaid shred the right of states to govern their own finances?

"If the Court says yes, the federal government can compel you to buy health insurance," Sandefur tells Reason's Nick Gillespie, "then it would be a matter of politics whether Congress chooses to force you to buy a Chevy Volt or buy whatever else they think is good for society or the economy or whatever else a politician thinks is a good idea." What's more, Obamacare's Medicaid provisions, which call for an ever-increasing number of citizens to be covered by the nation's health care program for the poor, deny states the right to opt out and still receive federal money. "The federal government has never done something like this before," explains Sandefur, "where it expanded eligibility requirements so dramatically."

Sandefur, who is attending the Supreme Court's oral arguments, maintains the blog Freespace and is the author of The Right to Earn a Living: Economic Freedom and the Law. He is a principal attorney at the Pacific Legal Foundation, a public-interest law firm headquartered in Sacramento, California that works for economic freedom and individual rights. PLF filed several amicus briefs against The Affordable Care Act and represented the plaintiffs in Sackett v. EPA, the just-decided Supreme Court case which ruled that compliance orders by the federal Environmental Protection Agency can be challenged in court by affected landowners. The case is being hailed as a major victory for property rights. Watch a Reason.tv video about Sackett v. EPA here.

Approximately 7 minutes.

Shot by Jim Epstein and Meredith Bragg, and edited by Epstein.

Go to Reason.tv for downloadable versions and subscribe to Reason.tv's YouTube Channel to receive automatic updates when new material goes live.

12 Colleges that Suck When it Comes to Free Speech. Does Your Alma Mater Make the Grade?

Over at Huffington Post, the head of The Foundation for Individual Rights in Education (FIRE) Greg Lukianoff dishes on the "12 Worst Colleges for Free Speech in 2012." Among the dismal dozen: Harvard, Yale, Michigan State, St. Augustine's, and eight more politically correct institutions. From Lukianoff's write-up:

Many of the 12 are repeat offenders for refusing to undo serious punishments of what should be clearly protected speech on campus, while others are new additions that have shown particular hostility to student criticism and, in one case, limiting free speech to a tiny zone on campus. Also bound to raise a buzz, Yale and Harvard, two of the most iconic colleges in the country, top the list for disappointing but ongoing retrenchment against the principles that are supposed to animate higher education. Also, check out our short video below about the list.


Read the whole piece here.

87 Percent of Americans Agree With Conservative Supreme Court Justices on Broccoli Mandate

The Associated Press reports:  

Conservative justices on Tuesday sharply questioned whether the government can force Americans to buy health insurance. In oral arguments over the new health care law passed by Congress in 2010, justices wondered if the law could set precedent allowing Congress to require Americans to buy other products, such as cell phones, burial insurance, gym memberships and broccoli.

“If the government can do that, what else can it do?” asked Justice Antonin Scalia, referring to the individual mandate portion of the Patient Protection and Affordable Care Act. He then questioned whether Congress could also require individuals to buy vegetables, such as broccoli.

The recent national Reason-Rupe poll of 1200 adults released yesterday shows 87 percent of Americans believe it is unconstitutional for Congress to mandate that you buy broccoli. Eight percent think Congress can constitutionally force you to buy vegetables.

A lower percent, but still a clear majority (62 percent) believe it is unconstitutional for Congress to require Americans to buy health insurance, and a 51 percent do not  believe Congress should require individuals to buy health insurance.


Proponents of the law disagree vegetable mandates logically follow from a health insurance mandate. The Obama administration’s lawyer Donald Verrilli responded to Justice Scalia: “No, that’s quite different” because participation in vegetable market is not unpredictable and involuntary.

Full poll results found here.

Nationwide telephone poll conducted March 10th-20th of both mobile and landline phones, 1200 adults, margin of error +/- 3 percent. Columns may not add up to 100 percent due to rounding. Full methodology can be found here

Emily Ekins is the director of polling for Reason Foundation where she leads the Reason-Rupe public opinion research project, launched in 2011. Follow her on Twitter @emilyekins.

Gene Healy on What Nanny State Busy Bodies Are Up to Now

This Wednesday, the city council of Elk Grove, California, will consider a bill to ban smoking in all apartment buildings, publicly or privately owned. You might see this as an effort to "harass the people and eat out their substance." Others prefer to call it "public health policy." From Elk Grove to Westminster, writes Gene Healy, we seem to have forgotten what governments are for: to secure us in our basic rights and otherwise mind their own business.

View this article

Ron Paul Roundup: Thoughts on ObamaCare and SCOTUS, Not Dropping Out, Doing Well in Missouri, Shenanigans in Washington State, and a Brokered Convention?

Ron Paul, presidential candidate, still in the news. Some of the latest items of interest:

*Paul hopes for good, expects bad, from the Supreme Court as it judges the constitutionality of ObamaCare this week, as Huffington Post reports:

Paul said on Bloomberg Television that he believed the court would not overturn the law. 

“I suspect they're going to rule it constitutional, but that is a big guess out of thin air,” he said according to The Hill, explaining, “this Supreme Court is slightly better than in the past, [but] they haven't done a real good job in defending the free market and the original intent of the Interstate Commerce Clause.”....

Paul said that if the Supreme Court were to support the law, it would "be a real tragedy."

*Paul pushes back against Piers Morgan when he asks him why he's still in the race:

In an interview on CNN, host Piers Morgan asked the Texas congressman on Monday night, “If I was prescribing some medicine for you right now, congressman, I think I would say the situation is looking pretty terminal for your race to the GOP nominee. Why don’t you just do the decent thing and pull out?”

Paul responded, “Why don’t you do the decent thing and not pester me with silly questions like that? That would be decent of you.”

The two seemed to trade these words in good humor, but when Morgan pressed the 2012 hopeful about his lag in the polls as well as in the delegate race, Paul pushed back firmly, insisting that his campaign is “doing quite well” as far as delegates go, before finally interjecting, “Why don’t you let me finish?”

According to Paul, his campaign is doing “very well” in states like Washington and North Dakota, and seeing some good news come out of others like Missouri.


Jonathan Chait's "Contrived Hysteria" Against Opponents of the ObamaCare Mandate

Jonathan Chait of New York Magazine accuses those (like me) who believe that allowing ObamaCare to stand would give Uncle Sam unprecedented powers to regulate economic “inactivity” of being hysterics – and then manages to whip himself into hysteria. “The ‘regulating inactivity’ argument is a pure contrivance,” he declares. Why? Because:

The distinction is factually shaky (there are, in fact, examples of regulating inactivity, like not getting a vaccine or not joining the military.) It’s also conceptually shaky (distinguishing between an action and a lack of action is not so easy, if you think about it.) They emphasize over and over that regulating inactivity is unprecedented. Therefore the Court can ignore reams of precedent and rule pretty much any way they’d like – which, for at least four and probably five justices, means striking down the law.

Let’s take these claims one at a time, and I’ll try and speak slowly and calmly.

Factual Shakiness: The issue, facing the court, Jonathan, is not Congress regulating inactivity. It is Congress regulating inactivity under the Commerce Clause. Your examples of Congress mandating vaccines and military service don’t work because:

(a) Congress has never required Americans to get vaccinations, only states have.  As the Congressional Research Service pointed out last year: “Current federal regulations do not include any mandatory vaccination programs; rather, measures such as quarantine and isolation are generally utilized to halt the spread of communicable diseases.”  (Might I implore you to check your facts before accusing others of “factual shakiness.")

(b) Congress’ power to draft Americans was based on the Constitution's “necessary and proper” clause. This clause gives Congress the authority to do whatever is "necessary" to discharge its "proper" functions. And declaring war is constitutionally “proper,” regardless of what one thinks of war or the draft. Regulating individuals’ health care decisions is an entirely different matter.

Conceptual Shakiness: You think that there is no meaningful distinction between Congress prohibiting a farmer from producing wheat for his personal consumption, something the Supremes said it could do in Wickard vs. Filburn, and requiring individuals to purchase health insurance. Unless opponents of the individual mandate are willing to challenge Wickard, they can’t challenge ObamaCare – not without becoming guilty of serious contradictions and inconsistencies, in your view.

I confess that I do think Wickard is a terrible ruling and – insha Allah – one day the time might be ripe to overturn it. But let me take another crack at explaining why there is no contradiction in letting Wickard stand (for now) and killing the individual mandate.

In Wickard, Congress was regulating the producer of a good by telling him to stop producing that good. This is awful, but not as awful as the ObamaCare mandate.


Is the Supreme Court Skeptical of ObamaCare's Insurance Mandate?

Initial reports from today's Supreme Court arguments suggest there's a reasonable chance the individual mandate to purchase health insurance may be struck down. From The Wall Street Journal:

Supreme Court Justice Anthony Kennedy on Tuesday challenged the Obama administration's arguments for the health-care law, saying the government has a "very heavy burden of justification" for the measure's requirement that people carry health insurance or pay a penalty.

Justice Kennedy, often a swing vote on the high court, said the government must show where the Constitution authorizes Congress to change the relation of individuals to the government.

...Solicitor General Donald Verrilli was defending the law before the justices. He argued that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product.

Justice Kennedy probed Mr. Verrilli on whether the same reasoning could apply to food. The justice asked what limits, if any, there would be to government powers under his argument.

And The L.A. Times:

The Supreme Court’s conservative justices Tuesday laid into the new requirement that Americans have health insurance  as the court began a much-anticipated second day of arguments on President Obama’s 2010 healthcare law.

Even before the Obama administration’s top lawyer could get three minutes into his defense of the mandate, the justices accused the government of pushing for excessive authority to require Americans to buy anything.

“Are there any limits,” asked Justice Anthony Kennedy, one of three conservative justices who are seen as critical to the fate of the unprecedented insurance mandate.

Chief Justice John G. Roberts, Jr.suggested the government might require Americans to buy cell phones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles.

“If the government can do this, what else can it … do,” Scalia asked?

Check back for more from Reason's Damon Root, who is attending this week's hearings, later today. Here's Root on the first day of arguments:

A. Barton Hinkle on Republican Disillusionment With Mitt Romney

It is Mitt Romney's bad luck that he has taxed the patience of the GOP without the pleasure of passing through the hero stage first. Still, being disillusioned about a candidate before you vote for him beats being disillusioned about him afterward. On the off chance that Romney prevails, writes A. Barton Hinkle, he'll find it impossible to be a bigger disappoinment than Barack Obama. 

View this article

54 Percent of Americans Expect New Health Care Law Will Lead to Rationing

According to the latest national Reason-Rupe poll of 1200 adults, 54 percent of Americans believe it is likely that the new health care law passed by Congress in 2010 will lead to government rationing of health care services. Rationing meaning, some forms of medical care would no longer be covered because they are too costly, not essential, or have too little chance of success.


Expectations of the new health care law’s impact may help explain favorability toward the law. For instance, among those who believe that government rationing of health care will likely result from the new law, 63 percent have an unfavorable view of the law in general. A majority among those who believe government rationing is unlikely favor the new law.

Full poll results found here.

Nationwide telephone poll conducted March 10th-20th of both mobile and landline phones, 1200 adults, margin of error +/- 3 percent. Columns may not add up to 100 percent due to rounding. Full methodology can be found here

Emily Ekins is the director of polling for Reason Foundation where she leads the Reason-Rupe public opinion research project, launched in 2011. Follow her on Twitter @emilyekins.

New Details About George Zimmerman's Account of His Fight With Trayvon Martin

The New York Times, by way of The Orlando Sentinel, has a few more details about George Zimmerman's account of his fight with Trayvon Martin:

Zimmerman said that Trayvon had punched him and then repeatedly slammed his head into the sidewalk in the moments leading up to the shooting....

In the 911 calls that have been released, Mr. Zimmerman is heard deciding, against a dispatcher’s advice, to follow Trayvon, whom he deemed "up to no good."

In Mr. Zimmerman’s account to the police, he returned to his S.U.V. after he was unable to find him. Trayvon then approached Mr. Zimmerman from behind and they exchanged words. Then, Mr. Zimmerman said, Trayvon hit him hard enough that he fell to the ground — which would explain what Mr. Zimmerman’s lawyer, Craig Sonner, has said was a broken nose — and began slamming his head into the sidewalk.

This account is consistent with Zimmerman's injuries and the report of an eyewitness who called 911, although that man (identified in the papers only as John) did not see how the fight started. It is also consistent with what Martin's girlfriend, who was talking to him on his cellphone right before Zimmerman shot Martin, said she heard. Judging from that conversation, Martin was understandably worried about the guy in the SUV who was tailing him and decided to confront him.

While it's clear that Zimmerman created the circumstances that led to the fight, it's not clear who made the first aggressive move after the two of them "exchanged words." By Zimmerman's account, Martin threw the first punch, but for all we know Martin was responding to what he perceived as a potentially deadly threat—a plausible reaction if we assume that Zimmerman displayed his gun or Martin caught a glimpse of it. In other words, something similar to the scenario outlined by Julian Sanchez, in which both Martin and Zimmerman reasonably feared for their lives, may actually have happened. If so, Zimmerman would still be responsible for needlessly setting these events into motion. But if his account of how the fight unfolded is true, his use of force could be justified under Florida law—not because of the right to "stand your ground" established in 2005 but because of the right to use deadly force when you reasonably believe you are "in imminent danger of death or great bodily harm" and have "exhausted every reasonable means to escape."  

Addendum: Joe M notes in the comments that Martin's girlfriend (as quoted by The Guardian) "thinks she heard Zimmerman push Martin 'because his voice changes, like something interrupted his speech.'" If so, it may have been Zimmerman who started the fight. When I said Zimmerman's account was consistent with hers, I had in mind the brief exchange between the two men that preceded the fight.

Are There Five Votes to Uphold ObamaCare's Mandate?

Tom Goldstein of SCOTUSblog has a brief mid-argument update from inside today's Supreme Court hearing over the constitutionality of ObamaCare's health insurance mandate:

It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle.

At the time of Goldstein's post, the challengers had yet to argue, so things could change quickly. We'll know more soon enough. 

Update: Justice Anthony Kennedy, believed by many to be the crucial swing vote in determining the mandate's constitutionality, said the government faces a "very heavy burden of justification" to show how the Constitution would authorize the mandate, according to The Wall Street Journal

The Next Genius Idea About Private Pensions: Let's Hand 'em Over to the States!

Just when you thought they couldn't think up anything worse:

As growing numbers of baby boomers face retirement with inadequate savings, some state officials are considering a novel proposal to rebuild America's ailing retirement system — having state pension funds run retirement plans for companies.

Because more companies are ditching their own pension plans or not offering retirement benefits at all, the idea would be to give companies an easy way to offer a firm pension without having to run the plan themselves.

On Monday, the labor economist Teresa Ghilarducci, who developed the proposal, held a public forum at the New School for Social Research with New York City's comptroller, John Liu. [...]

[Liu] said that more elderly people were turning up in the city's homeless shelters and that a program to make it easy for employers to offer better retirement benefits might reduce future strain. Lawmakers in Connecticut and California have introduced bills to either study or create such a program and the Pennsylvania state Treasurer has expressed interest[.]

In paragraph 7 of the New York Times story, we get the first hint that this might not be such a swell idea. You will especially enjoy the scare-quotes:

But the idea could be controversial, because the role of managing the money would fall to state pension systems, now under fire in many places for their handling of city and state workers' pensions. Republicans have tended to see the idea as one more manifestation of "big government."

State pensions are underperforming, over-promising, and catastrophically under-funded. Read all about it in our February 2009 cover story "The Next Catastrophe," and in columnist Veronique de Rugy's April 2011 piece on "The State Pension Time Bomb."

The Secret Word for CBO is Banana, Or: How Obama Flip-Flopped on the Mandate

On the campaign trail, Barack Obama repeatedly argued against the passage of a federal mandate to purchase health insurance. Once in the White House, however, he signed a signature health law that included a mandate. Why did he change his mind? The New Yorker's Ryan Lizza, who previously uncovered evidence that Obama signed off on health budgeting "gimmicks," has posted a revealing White House memo from Nancy-Ann DeParle, the administration's point person on health reform, to President Obama. 

In the memo, which was sent in April of 2009, as the health reform battle was just warming up, DeParle advises President Obama on the state of the legislation, asks him to make a choice about whether or not to finally endorse a mandate, and seems to nudge him in the direction of saying yes. It worked. By mid-summer, Obama publicly supported a mandate. 

Lizza offers two takeaways from the memo. The first is that President Obama felt some pressure based on scores from the Congressional Budget Office (CBO). The memo notes that without a mandate, the CBO would score the legislation as being a little less expensive but also far less effective in terms of coverage. In the memo, DeParle writes that leaving out the mandate "reduces federal costs—by roughly $270 billion over 10 years—but also reduces coverage (insuring that only 28 of the projected 56 million uninsured in 2014)." According to Lizza, Obama was so frequently irritated with the Congressional Budget Office that at one point he refused to let anyone name the agency in his presence:

This was not the last time that the C.B.O., which “scores” all legislation and has a major influence on how issues are framed in Washington, would force Obama’s hand on a significant aspect of health-care policy. In fact, Obama became so frustrated with the C.B.O. that at one point during the health-care debate he banned his aides from using the term “C.B.O.” in his presence. Instead, the President called the C.B.O. “banana.”

Finally, Lizza points to another passage in the memo in which DeParle specifically points out that Massachusetts had already passed a mandate with some income-based exemptions that might help assuage the president's concerns about the provision. Congratulations, Republicans: Your presidential primary frontrunner passed the health plan that helped convince President Obama to support a mandate. 

Federal Government Suing Warren Buffett-Owned Company Over Unpaid Taxes

Not sure what's funnier here, the underlying story, or the way The New York Times' Andrew Ross Sorkin tries to work through the cognitive dissonance:

The United States government, in a little-followed case in Ohio, filed a lawsuit this month against a unit of Mr. Buffett’s Berkshire Hathaway, seeking $366 million in taxes and penalties. The Berkshire division at the center of the suit is NetJets, the private-aircraft company that caters to the nation’s wealthiest — the people Mr. Buffett says should pay more in taxes.

It is an odd twist that a company controlled by Mr. Buffett — perhaps the most outspoken businessman in the country in support of raising taxes on the “mega-rich” — is now in a dispute with the government over his company’s paying too little in taxes.

Perhaps more important, the case is a remarkable window into the nation’s byzantine tax code. It is an arcane dispute that raises questions about the Internal Revenue Service’s interpretation and enforcement of its own tax rules. And it shows why even someone like Mr. Buffett would seek to challenge them.

Whole thing here.

Re-read Peter Schweizer's recent but already-classic Reason piece, "Warren Buffett: Baptist and Bootlegger."

How Government Failure Leads to More Government Failure: Another ObamaCare Example

Government failure is an outcome of policies enacted to regulate trade which create systemic inefficiencies and economic costs that adversely affect a product's manufacture or sales. Unfortunately, the usual way to address a government failure is to pile more government failures on top of the original one until the whole industry has been regulated into a complete clusterf*ck. The current primary example: health insurance and health care. 

This comment in a segment on NPR's Morning Edition today provoked this meditation on government failure: 

"I could get struck by a bus tomorrow or have a heart attack today and show up in the emergency room," says former Solicitor General Neal Katyal, who argued the health care cases for the Obama administration in the lower courts. "If I don't have insurance, it's the other American taxpayers who do have insurance that are effectively footing the bill for that."

Indeed, Congress found families who do have insurance right now shell out on average $1,000 a year more than they would otherwise, in order to subsidize the health care costs of the uninsured. Put another way, when the uninsured show up at a hospital and are unable to pay, federal and state laws require those individuals to be treated, and the costs are passed on to those who are insured and to the taxpayers.

So just why do families have to "shell out on average $1,000 a year" to cover people who fail to buy insurance? Oh, that's right: because the government mandates that hospitals and physicians treat the uninsured. Hospitals and physicians then, in turn, jack up their prices in order to get compensated for the "free" care which then feeds into higher insurance premiums for people who buy health insurance. 

This particular government failure (systemic inefficiency caused by regulation) has many consequences, one of which is that some people who could otherwise purchase insurance don't do so because they know that they will receive "free" treatment if anything goes wrong.

I doubt that Americans would allow too many bodies to pile up at emergency room entrances (commendable charitable instincts would kick in), but if a few did, that would be a far more powerful inducement to buy insurance than the piddily tax penalties that will be imposed by ObamaCare. 

What's Next: Children Barred From Coal Mines? Nanny State Bans Undermine School Tests, Satanic Rituals, Farm Work

Here's two stories from the frontlines of American childhood (which truth be told, died whenever I went through puberty).

First up is a classic case of nanny-state stupidity from the unlikely epicenter of so many stupid rules: New York City.

A ban in Big Apple schools prevents tests from using such filthy words as dinosaur, birthday, and Halloween on city-wide tests. Why?

...such topics “could evoke unpleasant emotions in the students.”

Dinosaurs, for example, call to mind evolution, which might upset fundamentalists; birthdays aren’t celebrated by Jehovah’s Witnesses; and Halloween suggests paganism.

Even “dancing’’ is taboo, because some sects object. But the city did make an exception for ballet.

The forbidden topics were recently spelled out in a request for proposals provided to companies competing to revamp city English, math, science and social-studies tests given several times a year to measure student progress....

Officials say such exclusions are normal procedure.

“This is standard language that has been used by test publishers for many years and allows our students to complete practice exams without distraction,” said a Department of Education spokeswoman, insisting it’s not censorship.

In fact, sensitivity guidelines recently published by a group of states creating new high-stakes exams also caution against mentioning luxuries, group dancing, junk food, homelessness or witches.

Yet a comparison shows the city’s list, at 50 topics, is nearly twice as long and has fewer exceptions.

Lord, that I had been spared exam questions about "group dancing"! I might have made something of myself! It's a good thing that New York school-prisoners are waiting for Superman and not Devil Dinosauar and Moon-Boy, because the latter ain't allowed anywhere near a school.

Read the whole NY Post article here.

And just so you don't think that it's only big cities that are hell-bent on protecting the delicate little flowers that are the ineffective leaders of tomorrow, check out the rumblings in America's heartland, where farm states that get more from the federal government than they pay in are in a tizzy over proposed farm-labor regs that will keep Junior from riding a tractor until he's collecting Social Security:

Proposed labor restrictions cutting a path through Congress may adversely affect younger teens. Last fall, the U.S. Department of Labor proposed modifying child labor regulations for work on the farm in an effort to "strengthen the safety requirements for young workers employed in agriculture."

New laws would keep teens under 16 from operating nearly all power-driven farm equipment. Legislation would prohibit anyone under 18 from working at a grain elevator, feed lot or similar facility....

"It's a terrible idea to restrict kids on their own family farm," [a farm co-op manager] concluded. "I don't mind good government and good laws. Sometimes, the laws can over-reach."

More here.

Anxieties about children are nothing new, and neither are stupid, well-intentioned laws. By virtually any and all measures, kids are doing better than ever. To better understand the panic attacks that grow with every passing year, check out this 1997 Reason story by yours truly that is titled "Child-Proofing the World." A snippet:

The threats are everywhere, we are told: If children are not hounded by ritual satanic child abusers at day care or by perverts on the Internet, then they're sucking in too much asbestos at school, or chewing on too much lead at home; if television, purportedly the babysitter of choice in the overwhelming majority of American homes, hasn't transformed kids into underperforming, slackjawed dullards, it has overstimulated them into feral children who must be tamed with Ritalin and Prozac; if we haven't failed the kids by not spending unlimited amounts of tax money on them, then we have transformed them into shallow consumers who can only measure affection in terms of dollars spent; if they're not at elevated risks of brain cancer from eating hot dogs, then they're likely to become punch- drunk from heading soccer balls; and on and on.

Whole thing here.

Bonus story about "helicopter parents" being the real problem (duh): Colorado Springs Cancels Easter Egg Hunt Due to Misbehavior by Parents.

Brickbat: Hugs and Kisses

Students at New Jersey's Matawan-Aberdeen Middle School says officials announced a "no hugging" policy and threatened to suspend students caught breaking that rule. School officials refused to discuss the matter with a local TV station. In a recorded telephone message sent to parents, the principal denied the school has banned hugging but said officials want to make sure there's "no inappropriate contact" between students.

Brickbat Archive

A.M. Links: Nearly 70 Percent of Americans Want Afghan War to Be Over, Democrats Introduce $3.6 Trillion Budget, Newt Gingrich Now Charging $50 for Photos With Supporters

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New at Reason.tv: "Obamacare at the Supreme Court: Day One"

Shikha Dalmia on the Procedural Trickery Democrats Used to Pass Obamacare

Judicial modesty is certainly a virtue. It prevents courts from casually overturning laws enacted by a duly elected Congress and substituting the wishes of unelected judges for the will of the voters. But acts of Congress are not acts of God, never to be questioned. If Democrats' congressional transgressions against voters don’t justify the jettisoning of judicial modesty, writes Shikha Dalmia, then what does? 

View this article

Coal Slotted to Die in America Tomorrow: RIP

Washington Post’s Juliet Eilperin reports that the Obama’s administration has found other ways to skin the global warming cat after Congress refused to cap carbon emissions. It is poised to issue tomorrow strict new emissions restrictions that will ban any new power plants that emit more than 1,000 pounds of carbon dioxide per megawatt of electricity produced compared to the current 1,768 pounds of carbon dioxide per megawatt. The story goes:

The move could end the construction of new conventional coal-fired facilities in the United States…Industry officials and environmentalists said in interviews that the rule, which comes on the heels of tough new requirements that the Obama administration imposed on mercury emissions and cross-state pollution from utilities within the past year, dooms any proposal to build a new coal-fired plant that does not have costly carbon controls.

“This standard effectively bans new coal plants,” said Joseph Stanko, who heads government relations at the law firm Hunton and Williams and represents several utility companies….”

The proposal does not cover existing plants, although utility companies have announced that they plan to shut down more than 100 boilers, representing more than 40 gigawatts of capacity — nearly 13 percent of the nation’s coal-fired electricity — rather than upgrade them with pollution-control technology.

Coal supplies 40% of electricity in America, hardly surprising since this country has the largest recoverable coal reserves in the world. It is regarded as the Saudi Arabia of coal, having enough reserves to meet 250-plus years of domestic demand.

So much for President Obama’s “All of the Above” energy strategy.

Obamacare at the Supreme Court: Day One

Reason's Damon Root got a coveted seat for the Supreme Court oral arguments on the Patient Protection and Affordable Care Act (ACA). Day one of this epic judicial showdown focused primarily on whether or not the individual mandate constitutes a tax. If the justices rule that the penalties associated with the mandate should be considered a tax, the challengers to ACA would have to wait until 2015, when the law goes into effect to challenge it.

The main event of these proceedings, the arguments over whether or not the individual mandate is constitutional, will take place tomorrow.

For more of Root's coverage of the Obamacare-SCOTUS hearings, go to Hit & Run.

Produced by Anthony L. Fisher, shot by Josh Swain and Fisher.

About 1.40 minutes.

Go to Reason.tv for downloadable versions and subscribe to Reason.tv's YouTube channel to receive automatic notifications when new material goes live.

Nick Gillespie Talks Paul Ryan-GOP Budget with Fox Business' Tom Sullivan


Over the weekend, I was on Fox Business' Tom Sullivan Show to discuss the 2013 GOP budget plan authored by Rep. Paul Ryan (R-Wis.). The longer version: It ain't good if you care about reducing the size, scope, and spending of government.

The shorter version? Click above to hear my critique.

Supreme Court Hears Day One of Obamacare Oral Arguments, Majority of Economists Want Fed to Hold Off on Quantitative Easing, Raúl Castro Tells The Pope Cuba Has Religious Freedom: P.M. Links

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Yes, ObamaCare's Mandate Compels People to Buy Health Insurance

The Obama administration has repeatedly and somewhat counterintuitively argued that the individual mandate to purchase health insurance is not, in fact, a requirement that compels anyone to purchase health insurance. Arguing the case in front of an appeals court in Atlanta, Neal Kumar Katyal, the Obama administration’s former acting solicitor general, told judges that the government is “not asking people to buy something they otherwise might not buy.” 

Eventually, Katyal argued, everyone will need health care. Requiring individuals to purchase health insurance merely regulates how that care will be financed.

Katyal and other defenders of the mandate have used this idea that the provision merely regulates financing as a response to the concerns about the mandate’s novelty and the scope of congressional action it might allow. Congress already regulates the financing of health care, the argument goes; this would simply be a new way to regulate that financing. By minimizing the provision’s novelty, the law's defenders can sidestep concerns about the breadth of power granted to Congress under the Commerce Clause should the mandate be ruled constitutional.

It also masks a crucial distinction. There is an important difference between regulating commerce that an individual has chosen to engage in and compelling someone to engage in a specific form of commerce when they have not.

Yet Katyal has stuck by the assertion. As the Cato Institute’s Michael Cannon notes, Katyal repeated a similar line on NPR last week. With the mandate, “the government is regulating financing,” Katyal said. “It’s not the government coming in and saying, oh, consume this product you wouldn’t otherwise consume.”

This may come as a surprise to anyone who ends up forced to purchase health insurance under the law should it be upheld. And I think it is safe to suggest that this is not how most people understand the mandate.

At minimum, however, it is fairly clear that this is not how President Obama, who signed the law and fought for its passage, claimed to understand the mandate when he opposed it on the campaign trail in 2008. Instead, he understood it as a policy that forced people to buy a product. Indeed, that's part of why he said he opposed it. 

Criticizing Hillary Clinton for her support of the mandate, Obama said that “she believes we have to force people who don’t have health insurance to buy it.” At another debate, candidate Obama stressed the importance of understanding what it means to mandate health insurance: “A mandate means that in some fashion everybody will be forced to buy health insurance.” The government, in other words, would be asking people to buy something they otherwise would not buy.

The mandate does not merely regulate commerce—it requires it. In 2008, President Obama understood this distinction. In 2012, his administration is pretending the distinction does not exist. 

Minimalist Economics Posters

NPR's Planet Money made up some posters illustrating economic concepts, minimalist propaganda style. Then they had readers submit designs. Here is the latest (and best) round: minimalist econ posters by actual economists.

The winner:


Click though for the inevitable invisible hand humor.

Ira Stoll on Paul Ryan's Budget

If Mitt Romney wins the presidential election, Paul Ryan's budget, which he endorsed, is a good guide to what he will try to accomplish. If Mr. Romney loses, the budget is a good guide to what Mr. Ryan might try to run on as a Republican presidential contender in 2016. And it’s certain that President Obama and his allies will try to use the plan to attack the Republican candidates in the upcoming election. For all those reasons, writes Ira Stoll, it’s worth going back and taking a careful look at what is actually in the Ryan budget. Proponents of smaller government may be unpleasantly surprised.

View this article

Photo of the Day: Remember When Ads Tried to Get You to Spend?

Zombie Abraham Lincoln and a possibly unwilling bride wearing a painful look of forced glee we haven't seen on a woman in a billboard since Newport cigarettes stopped advertising are here to teach a lesson that used to come naturally to Americans: If you save your money instead of spending it, you'll have more money.

The American Institute of Certified Public Accountants has been publicizing this none-too-complicated lesson in economic disequilibrium for a few years, but these hard-sell wedding day billboards have recently been cropping up everywhere. The one above towers above Los Angeles's once-trendy Melrose Ave., just to bum out shopping hipsters and purveyors of skinny jeans. 

The Ad Council, clearly phoning this one in, put together the campaign for AICPA's Feed the Pig campaign, which features a video spot from horrifying spokessaver "Benjamin Bankes." Bankes himself is an avatar of the "financial literacy" movement that has been rocking the U.S.A. for a decade or so now and is a favorite cause for frauds like Elizabeth Warren and Jump$tart Coalition founder William Odom. 

These folks are really doing the lord's work. Saving money is way complicated, and the tips they give are, like, Talmud or something. 

From the Feed the Pig web site: 

  • Don't go to an ATM that isn't owned by your bank.
  • Avoid Appetizers; or, if out with friends, consider splitting one.
  • Balance your checkbook frequently to avoid overdrafting.

From 360financialliteracy.org:

  • Help put money away for college funds or your kids
  • Pay off your house early

From the Jump$tart Coalition: 


Man, who can keep all that stuff in his head at the same time?

The folly of financial literacy has nothing to do with insufficient federal education funding, or not enough "plain English" prospecti, or the machinations of Madison Avenue captains of consciousness. The problem is that the actual creators of our money are doing everything in their power to prevent saving.

Federal Reserve Chairman Ben Bernanke, recently praised as a "hero" on the cover of The Atlantic and lauded within its pages as the savior of the global economy, is hilariously described in this BusinessInsider post as a "deeply conflicted, but unfathomably human character" who is at the same time a "pillar of strength" and a "veritable messiah of fiat currency," yet still humble enough to be "buoyed when strangers stop him in airports to offer an encouraging word." 

That's all nice to know, but Bernanke's incompetence has not just generated a half-decade of economic stagnation. It has made it impossible to teach the simple savings tips outlined above to the pre-adolescents who might actually benefit from such lessons — as I have learned to my chagrin

We've clearly turned some corner in the dumbification of America when ad campaigns stop trying to pry us from our natural thrift in order to encourage spending, and instead try to put across thrift as a novel and exciting concept. But the issue isn't that we lack financial literacy. It's that our actual experience of the dollars in our pockets is teaching us all the wrong lessons. 

And no, I don't know what the hanged teddy bears (which I've seen recently in both Virginia and California) are supposed to mean. But it can't be good. 

L.A. City Hall Singles Out Anti-L.A. City Hall Radio Program for Racism, Sexism, and Insufficient Workplace Diversity

On Feb. 14 or 15 (accounts differ), less than 100 hours after Whitney Houston died, Los Angeles AM radio talkers John Kobylt and Ken Chiampou, known ubiquitously in Southern California as "John & Ken" (and also as "the most listened to local talk radio program in the United States"), reacted to the news by pointing out that the death was no surprise given Houston's two decades of erratic, drug-addled behavior. Oh, and they also called her "crack ho'." Listen here:

The reaction was swift: Before the end of the week, KFI, a Clear Channel flagship station, suspended its popular drive-time duo for six working days "for making insensitive and inappropriate comments" about the singer. "KFI AM 640 Management does not condone, support or tolerate statements of this kind," management said. John Kobylt swallowed his medicine: "We made a mistake, and we accept the station's decision. We used language that was inappropriate, and we sincerely apologize to our listeners and to the family of Ms. Houston." The hosts were slated for "sensitivity training."

That did not prove to be enough for the L.A. City Council (whose members, incidentally, earn [as of one year ago] an average salary of $178,789, widely considered to be the highest in the country). The Council last week voted by a 13-2 margin in favor of a resolution stating that "the derogatory language used by some radio personnel has no place on public airwaves in the Great City of Los Angeles or anywhere in America," and urging "the management of radio and television stations in Los Angeles to do everything in their power to ensure that their on-air hosts do not use and promote racist and sexist slurs over public airwaves in the City of Los Angeles."

What does "everything in their power" include? The Council includes this guideline:

a truly diverse work environment must include the hiring of women, Blacks, Latinos and Asians not only as on-air talent, but as fill-in talent, paid contributors, producers, engineers, news reporters and online Web site owners.

It is to my free-speechin' heart never a good thing when an organ of government singles out a company, a station, a show, and its hosts for a tongue-lashing that includes the word "must." Though the legion of John & Ken haters in the media will complain about the resolution being toothless, it is next to impossible to do any kind of business in the City of Angels without going through a series of potentially politicized approvals at City Hall. And as Jesse Walker discussed in his 2008 feature "Beyond the Fairness Doctrine," the issue of ethnic diversity is precisely where the federal government has been concentrating its leverage over the radio business. I have no doubt that the most popular public-affairs radio station in Southern California is feeling intense pressure to placate the politicians it otherwise criticizes, which veers damn near close to the dictionary definition of "chilling" (a fact I was happy to see at least Salon's Mary Elizabeth Williams admit).

I cannot imagine saying the phrase "crack ho'" even in private jest (though maybe that's because I find the fully pronounced "whore" much more hilarious), and if I had a dime for every time I winced at John and Ken talking about illegal immigration I could probably buy the Tribune Company*. But the fact that the City Council passed this resolution after KFI suspended the two suggests to me that the only real distance between L.A.'s politicians and The National Hispanic Media Coalition's "Take John and Ken Off the Air" campaign is that meddling Congress-shall-make-no-law stuff.

Though I take non-politicians who accuse John and Ken of "hate radio" at their word, I am much more suspicious about the motives of those in power. That's because having both listened to John and Ken on occasion and appeared on their show (including twice during their suspension!), I can testify that those two shouties, whatever you may think of them, cover the living hell out of local news. Here they are last week, for example, going after the L.A. city attorney, whose name is probably known by less than one in five journalists in town. It is one thing to throw long-distance rhetorical bombs at Rush Limbaugh (who is name-checked in the City Council's resolution, natch), but another altogether to target a powerful duo who come to prominence by knowledgeably ridiculing the local (and eminently ridiculable) political class. There was, needless to say, nothing like this level of enthusiasm for a City Council resolution back when Augustin Cebada was spouting anti-Semitic nonsense on the local Pacifica outlet.

* Joke totally stolen from Matt Novak.

President Obama vs. the Individual Mandate

The Obama administration is defending its 2010 health care law at the Supreme Court this week—including the law's most widely disliked provision, an individual mandate to purchase health insurance. But President Obama wasn't always a defender of the requirement. On the campaign trail in 2008, Obama opposed a mandate, and used his opposition to differentiate himself from his chief opponent, Hillary Clinton. Buzzfeed's Andrew Kaczynski has put together a highlight reel of Obama's criticisms of the mandate: 

Obama Leads Romney by 6 and Is Ahead of Santorum and Paul by 10 In New Reason-Rupe National Poll

President Barack Obama leads former Massachusetts Gov. Mitt Romney 46 percent to 40 percent in the latest national Reason-Rupe poll of 1,200 adults. With independent voters, Obama holds a 12-point advantage over Romney (47-35).

Rep. Ron Paul and former Sen. Rick Santorum both trail Obama by 10 points, 47 percent to 37 percent. However, Paul performs better than Romney and Santorum among independents, trailing Obama 45-40.

In a hypothetical three-way presidential race with Paul running as an independent candidate, Obama’s support drops to 41 percent, but he still easily tops Romney’s 30 percent and Paul’s 17 percent.

In another three-way race, Obama beats Santorum 42 percent to 27 percent, with Paul getting 18 percent of the vote as an independent.


Full poll results found here.

Nationwide telephone poll conducted March 10th-20th of both mobile and landline phones, 1200 adults, margin of error +/- 3 percent. Columns may not add up to 100 percent due to rounding. Full methodology can be found here

Emily Ekins is the director of polling for Reason Foundation where she leads the Reason-Rupe public opinion research project, launched in 2011. Follow her on Twitter @emilyekins.