DOMA and ObamaCare

Orin Kerr raises an interesting point:

If the Obama Administration won’t defend the constitutionality of the Defense of Marriage Act, what are the chances that a future Republican administration would defend the constitutionality of the individual mandate? To my mind, this adds a very interesting wrinkle to the individual mandate litigation (and, more broadly, to the role of the Executive Branch in defending statutes in the future).

Prank Call Reveals That Scott Walker Is Standing Up For WhatHeBelieves is Right

Earlier today, when news broke that a liberal blogger from the site Buffalo Beast claimed to have successfully prank called Gov. Scott Walker by posing as liberal hate figure and billionaire libertarian donor David Koch, I thought that if true, this could really embarrass him. Since then, the call has been confirmed by Walker’s office as legit, but after listening to the whole thing, I think Walker comes off rather well.

Throughout the call, fake Koch makes a series of bizarre and over-the-top comments such as “gotta crush that union,” but Walker generally either changes the subject or treats the remarks politely without cosigning them, as a host or guest would do with a crazy caller on talk radio or C-SPAN.

Some liberals are claiming that Walker responded “oh yeah” when fake Koch referred to MSNBC’s Mika Brzezinski as a “piece of a–.” But TNR‘s Jon Chait has had to correct his post to acknowledge that the early transcription was “totally misleading.” If you listen to the audio of the exchange (just before the 7 minute mark), you’ll hear that what actually happened is that fake Koch said, “You gotta love that Mika Brzezinski,” Walker said “Oh yeah” and started to change the subject, there was cross talk when fake Koch referred to her as a “piece of a–,” and then Walker goes on to tell an unrelated story.

Liberals are also seizing on Walker saying “we thought about that” when fake Koch suggested “planting some trouble-makers” among the protesters. But Walker actually goes on at length to explain why he doesn’t think it’s a good idea.  “Let them protest,” he said. “It’s not going to affect us. And as long as we go back to our homes and the majority of people are telling us we’re doing the right thing, let them protest all they want.”

When Walker explained that they may have found evidence that unions were paying to put lawmakers up at hotels, which he said if true, would be an ethics code violation or felony, fake Koch chimes in “they’re probably putting hobos in suits, that’s what we do.” Yet Walker corrects him to say that he’s only talking about lawmakers: “People can pay protesters to come in, that’s not an ethics code (violation).”

Throughout the call, Walker explains why he believes what he’s doing is right, and that he intends to stand firm. “This is about the budget,” he said. “This is about public sector unions — hell, even FDR got it…You’re essentially having taxpayers’ money being used to lobby for spending more of taxpayers’ money. It’s absolutely ridiculous.”

At another point, he said: “If they think I’m caving, they’ve been asleep for the last eight years, because I’ve taken on every major battle in Milwaukee County, and won in a county even where I’m overwhelmingly overpowered politically. And it’s because we don’t budge. If you’re doing the right thing, you stay firm.”

And toward the end, he said, “We’re doing the just and right thing for the right reasons, and it’s all about getting our freedoms back.”

The worst you can say about the call — aside from the screening bungle by his staffers — is that he took 20 minutes of time to speak with a rich guy from out of state. But at the same time, the call undermines the conspiracy that Koch is secretly controlling events in Wisconsin, as Walker is clearly explaining the way things are to fake Koch and the decisions he’s making, rather than acting on Koch’s suggestions. Also, as some have pointed out, their interaction on the call seems to suggest that the two don’t know each other, or at the least, not very well.

Federal Judge Rules Congress Can Regulate “Mental Activity” Under Commerce Clause

A federal judge has upheld the national health care law, making it the fifth ruling on the merits of the legal challenges to the individual mandate.

The ruling by the Clinton appointee, U.S. District Court Judge Gladys Kessler of the District of Columbia continues the pattern of Democratic-appointed judges siding with the Obama administration and Republican judges siding with the plaintiffs in ruling the mandate unconstitutional. Kessler’s ruling comes in a case brought by individual plaintiffs, where as the two decisions striking down the mandate have come in cases brought by 27 states, based in Virginia and Florida.

Like the other decisions upholding the law, the logic of Kessler’s ruling demonstrates how broadly one has to interpret congressional powers to find the mandate constitutional. In something right out of Harrison Bergeron, Kessler notes that Washington has the authority to regulate “mental activity”:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power…However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

It is worth noting, however, that even Kessler concedes that “there is little judicial guidance” on this question.

Also, Kessler joined the other four judges in dismissing the Obama administration’s fallback argument that the mandate was justified under Congress’s taxing power, ruling “that Congress did not intend the mandatory payment…to act as a revenue-raising tax, but rather as a punitive measure.” Given that even those judges sympathetic to the Commerce Clause argument have rejected the taxation argument, I wonder if the administration will eventually abandon it as the case moves up the food chain.

Daniels Calls For Truce in Indiana

In another move unlikely to endear him to conservative primary voters should he decide to seek the presidency, the Indianapolis Star reports that:

Gov. Mitch Daniels signaled this afternoon that Republicans should to drop the right-to-work bill that has brought the Indiana House to a standstill for two days and imperiled other measures.

Daniels told reporters this afternoon that he expects House Democrats will return to work if the bill dies. It would be unfortunate if other bills are caught up in the turmoil, he said.

He will not send out state police to corral the Democrats, the Republican governor said.

The Democrat minority has right to express its views, he added.

The governor clung to his view that this is not the year to tackle right to work.

Jim Geraghty is running out of patience with Daniels:

If the Indiana House Democrats get what they want through this tactic, what’s to prevent them from using it again and again every time they think they’ll lose on a big issue?

I had been open-minded about Daniels’ “truce” talk – no matter how much a Republican presidential candidate talks about the importance of social issues, 75 to 90 percent of the president’s time from January 2013 to 2017 will be spent on economic and fiscal crises and managing a dangerous and rapidly changing world. But a concession to Democrats on major reforms like these will spur a lot of talk about Daniels’ toughness, or whether he’s too conciliatory to an opposition that has gone completely off the rails, or more accurately, out of the stateâ€_.

When it came to the social issues “truce” statement, my attitude was that Daniels was stupid to make the comments if he intended to run for president, but in reality he was merely explicitly stating what most other Republican politicians were also doing implicitly — focusing on economic and fiscal issues. By in large, the GOP message of the 2010 midterms was not big on social issues — the Pledge to America, for instance, barely mentioned them. But my bigger fear with Daniels has been that, like Bush 41, he’d be willing to raise taxes as part of a bargain with Democrats. And this latest cave in adds to that perception.

UPDATE: Transcript of Daniels’ remarks here, his office claiming that his comments were misinterpreted.

UPDATE II: Josh Barro defends Daniels’, arguing that private sector unions are in decline in Indiana and thus the “Right to Work” law isn’t as important as other priorities in Indiana. Also, he notes that Daniels’ has the same position he’s held since December, and thus wasn’t caving under pressure.

Thune Won’t Run for President

Sen. John Thune announced that he will not run for president, saying, “I feel that I am best positioned to fight for America’s future here in the trenches of the United States Senate.”

I think this is a wise decision by Thune. If the reaction to his rather pedestrian speech at CPAC earlier this month was any indication, there simply wasn’t much enthusiasm for a run by this South Dakota Senator, and really the only reason he was discussed at all was because of the weakness of the rest of the field.

Others are already starting to speculate as to how this will affect the rest of the race — who it will help, who it will hurt. But honestly, his absence is unlikely to have much of an impact, because his candidacy wasn’t going anywhere in the first place, which is probably why he decided not to run.

Still, coming on the heels of the announcement by Rep. Mike Pence that he won’t run for president, it seems like next year’s primaries could be devoid of high-profile members of Congress. We may be looking at a field of mostly governors and novelty candidates a la Herman Cain.

Obama Administration Embraces Social Security Denialism

Note to White House budget director Jacob Lew: when you open a newspaper op-ed by using the phrase “win the future” in a a non-ironic way, you forfeit your right to be taken seriously as a fiscal analyst.

In a “no Social Security problem to see here” piece for USA Today, Lew writes:

The budget put forward by President Obama last week is a blueprint for how we can live within our means and win the future. As this begins the budgeting process in Washington, we need to be clear about the causes of the pressing fiscal problems we face. Specifically, looking to the next two decades, Social Security does not cause our deficits.

Social Security benefits are entirely self-financing. They are paid for with payroll taxes collected from workers and their employers throughout their careers. These taxes are placed in a trust fund dedicated to paying benefits owed to current and future beneficiaries.

Looking beyond Lew’s buffoonish attempt to make the “WTF” phrase happen, the rest of the argument falls short on several levels. For one, it’s silly to talk in terms of Social Security not causing our deficits. In any budget that’s running a deficit, any money that is spent is part of what’s contributing to the deficit. This is especially true in the case of Social Security, which will be the biggest component of government spending over the next decade. From 2012 through 2021, the U.S. is projected to spend $9.9 trillion on the program, according to the Congressional Budget Office, representing more than one out of every five dollars spent by the federal government over that period. That’s $2 trillion more than will be spent on defense. To say that this won’t be put pressure on our deficit is absurd on its face.

What’s more absurd is Lew’s insistence on talking about the Social Security trust fund. The Social Security program is financed primarily by payroll taxes. When the amount of tax revenue collected exceeds benefits, the surplus is theoretically put in the trust fund. But in reality, the federal government uses that surplus to finance ongoing government operations, and puts a stack of bonds — or IOUs — in the funds instead. So, while it’s true that for the next few decades, there’s theoretically enough money within the system to keep paying beneficiaries, the program is currently running a deficit when we acknlowlege that ultimately everything comes from the same bank account. Specifically, in a report last month, the CBO wrote that, “surpluses for Social Security become deficits of $45 billion in 2011 and $547 billion over the 2012 to 2021 period.” To meet its obligations to beneficiaries, either the government will have to raise taxes, cut other government services, or issue more debt — either way it’s contributing to our budgetary problems.

Way back in 2007, candidate Obama drew the ire of progressives when he dared to refer to the “Social Security crisis.” In their world, the program is in splendid shape, and they spent most of last year raising alarms over the Obama fiscal commission, which they saw as a pretext for gutting Social Security. But Obama clearly got the message — in his State of the Union, he rejected any real reforms to the program and ignored the problem in his budget. Now his administration is setting the stage for a battle with Republicans should they propose any changes to the program, by echoing progressive denialism.

Poor Gerald Ford

Just in time for President’s Day, Gallup is out with a new survey finding that a plurality of Americans identify Ronald Reagan as the greatest U.S. president. While I’m happy to see the Gipper get his due, looking at the list, something else disturbs me:

If you take a closer look, you’ll notice that there are only 17 presidents identified by name — yet the list also includes 11 of the 12 most recent presidents. Bill Clinton is just a hair behind Abe Lincoln, and bests George Washington (as does JFK). In just two years in office, as many people identified Barack Obama as the greatest as did Teddy Roosevelt and Thomas Jefferson combined. Jimmy Carter even gets a nod. Poor Gerald Ford stands as the odd man out in terms of modern presidents.

Yet the overall pattern suggests that unfortunately, many Americans lack knowledge of their own history, and tend to simply name the presidents they’ve heard of.

CBO: Repealing ObamaCare to Reduce Gross Spending By $1.4 Trillion Over Next Decade

Repealing the new national health care law would result in gross savings of $1.4 trillion, a new report by the Congressional Budget Office finds.

During the health care debate, Democrats were hard pressed to keep up with President Obama’s promise that the legislation would cost “around $900 billion.” So they employed the gimmick of delaying the major spending provisions until 2014 to make the legislation appear cheaper within the CBO’s ten-year budget window, then 2010 through 2019. At the time, I calculated that this tactic deferred 98 percent of the spending to the last six years of that period. Well, now two years have passed, and the CBO’s budget window has shifted to 2012 through 2021 — and volià — the estimate that was $940 billion at the time of passage has suddenly gone up to $1.4 trillion. Keep in mind that this estimate still includes two years (2012 and 2013) prior to full implementation. Clearly, the actual 10-year cost of the major coverage provisions is going to be even higher — likely something closer to $1.8 trillion.

Of course, Democrats are going to focus on the CBO’s other finding — that repealing the health care law would add $210 billion to deficits over this period. But let’s break that down. It’s true that the law also includes $732 billion in spending cuts (primarily for Medicare). Right now, we’re engaged in a bitter debate over how to wring savings out of the federal budget so we can reduce the debt. Well, if the $732 billion in cuts had not been used to pay for a new entitlement, they’d still be available for deficit reduction.   

Even so, when all the cuts are taken into account, net spending still goes up by $604 billion under the health care law. The way it achives deficit reduction is through $813 billion in tax hikes. In other words, the law “saves” money only if you think alll money is government property to begin with — it certainly doesn’t save the taxpayers who are coughing up the additional $813 billion.