Marco Rubio Proposes Heavy Tax Cuts. What About Spending?

US Senate candidate Marco Rubio (R-FL) has released a very gimmicky statement detailing "23 Simple Ways To Create Jobs, Grow Our Economy And Help The Gulf Coast Recover." Of the 23 listed items, 13 involve proposed tax cuts or reforms.

Only one proposal -- "repealing Obamacare" -- involves a specific spending cut. Rubio, however, makes a vague proposal for an alternative healthcare reform measure. This would presumably involve government spending as well. Rubio's plan does not look fiscally conservative at all.

Rubio's campaign website expresses a concern about government spending, but it does not propose any cost-cutting measures. The website, however, lists several categories of tax cuts. Rubio also boasts that he never voted for a tax increase. It is unclear how Rubio would balance the budget, given his support of tax cuts without any specific spending reduction.

A Nation of Hypocrites: Why Do Americans Expect More For Less?

Jacob Weisberg's latest essay in Slate offers a very provocative explanation for the bitter standoff in national politics: American voters embrace highly contradictory positions. Although other commentators have made similar observations regarding public opinion in the past, Weisberg's analysis seems quite relevant to contemporary politics. Here is a sample:

Anybody who says you can't have it both ways clearly hasn't been spending much time reading opinion polls lately. One year ago, 59 percent of the American public liked the stimulus plan, according to Gallup. A few months later, with the economy still deeply mired in recession, a majority of the same size said Obama was spending too much money on it. There's nothing wrong with changing your mind, of course, but opinion polls over the last year reflect something altogether more troubling: a country that simultaneously demands and rejects action on unemployment, deficits, health care, climate change, and a whole host of other major problems. Sixty percent of Americans want stricter regulations of financial institutions. But nearly the same proportion says we're suffering from too much regulation on business. That kind of illogic—or, if you prefer, susceptibility to rhetorical manipulation—is what locks the status quo in place.

Weisberg contends that Americans hate government in the "abstract" but love it in the "particular." They claim to want less government spending and a reduction in taxes and the deficit, but they want more services from the government, which means more spending and taxes and, potentially, greater deficits.

While Weisberg is certainly liberal, he tries to view this problem free of partisanship. Both sides, Weisberg argues, contribute to American hypocrisy: "Where Republicans encourage popular myths about taxes, spending, and climate change, Democrats tend to stoke our fantasies about the sustainability of entitlement spending as well as about the cost of new programs."

My Take: Weisberg's analysis has a lot of truth to it. In the recent past, Americans supported two costly wars with simultaneous tax cuts. Now, they are foaming at the mouth over deficits. Many of these same anti-deficit folks want the government "out of Medicare," which is about as contradictory a statement as possible. The country went into a deep panic when banks were failing, but now people across the political spectrum loathe the fact that two administrations have spent money to stem the crisis and stabilize financial markets. Finally, as Weisberg observes, a majority of Americans want the government to support people who are unemployed, but they apparently do not want to spend any money to accomplish this goal.

What causes people to embrace such inconsistent positions? I would attribute this situation in part to the nation's collectively short attention span, impatience, and the American Idolization of the national culture which causes people to crave shiny results, rather than dealing with the ugly and difficult reality. American pop culture glamorizes some of the most unglamorous work -- crime scene investigation, surgeries, autopsies, policing, and even war. Apparently, Americans can't handle the truth. In turn, the inability to approach the world honestly is probably a significant factor behind hypocrisy and inconsistent behavior.

Update: Kathy Kattenburg at the Moderate Voice has a similar take: Politicians Are All the Same. They Give Us Exactly What We Ask For. Matt Yglesias does not.

More Hot Air from "Hot Air": Implies Healthcare Reform Unconstitutional

No serious Constitutional Law scholar has argued that healthcare reform (in any of the currently proposed formats) is unconstitutional. Some conservative commentators, however, have tried unsuccessfully to float the argument.

Yes, Virginia, Healthcare Reform Is Constitutional
On August 22, David Rivkin Jr. and Lee A. Casey, two rightwing attorneys, argued in the Washington Post, that healthcare reform violated the Constitution. Their argument, however, only captured the hearts of conservatives desperate to find a good good reason to oppose healing the sick.

Today, the conservative blog Hot Air tried to revive the argument by posting footage of Senator Mark Warner explaining why healthcare reform is constitutional. Although the video link no longer works, the summary by Hot Air states that Warner cites to the Commerce Power as authority for healthcare reform. This is exactly correct, but I would add the Taxation and Spending Powers as well. I have thoroughly analyzed this issue in a prior blog post (and in the comments section to that post). Even conservative Constitutional Law professors have made similar arguments (see the post I linked).

Absurdity of the Question
It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

Finally, I find it ironic that the GOP's so-called Bill of Rights for Seniors pretends to offer protection for Medicare, while conservatives have repeatedly asserted that healthcare reform violates the Constitution. If Congress lacks the power to pass healthcare reform, then it probably lacks the power to create Medicare, which conservatives claim to support. The inconsistencies are absolutely dizzying.

Is Healthcare Reform "Unconstitutional"? No -- Why Rivkin and Casey Are Wrong

FOR UPDATED DEVELOPMENTS, SEE: More on the Constitutionality of Healthcare Reform


David Rivkin Jr. and Lee A. Casey, two very conservative partners (see sample of their writings following this article) at the law firm Baker Hostetler LLP, have co-authored an op-ed in the Washington Post that attempts to challenge the constitutionality of pending healthcare reform legislation. Specifically, Rivkin and Casey argue that Congress lacks the authority to require everyone (with a few exceptions) to have health insurance. Rivkin and Casey argue that neither the Commerce Power nor the power to "tax" authorizes Congress to mandate universal coverage.

The Commerce Clause authorizes Congress to regulate commerce with "foreign nations," "Indian tribes," and "among the several states." As Rivkin and Casey acknowledge, for six decades beginning in the 1930s, the Supreme Court interpreted the Commerce Power quite expansively. During that time it became a major source of power authorizing the enactment of measures as diverse as federal criminal laws, environmental laws, labor laws, securities laws and civil rights. The Rehnquist revolution, however, has led to a conservative shift (the degree of which is debatable) in the Court's interpretation of the Commerce Power.

Although the Court has seemingly shifted to a more restrictive analysis of the Commerce Clause, it has not completely abandoned showing deference and flexibility to Congress. In the 2005 Gonzales v. Raich decision, the Court upheld Congress' authority to regulate the "intrastate, noncommercial cultivation, possession and use of marijuana."

Rivkin and Casey argue that Raich cannot justify the individual insurance mandate because the Court found that the Controlled Substance Act (CSA) regulates "economic" activity, while a mandate to enroll in a health plan does not. There are two serious problems with this argument: It misreads Raich, and it fails to recognize the economic impact of uninsured people on the medical services and health insurance markets.

Requiring Health Insurance = Prohibiting Use of Medical Marijuana?
In Raich, the Supreme Court held that Congress could regulate the intrastate use or possession of medical marijuana for three reasons. First, the CSA represents a valid exercise of the Commerce Power because the statute "regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market." Second, considered in the aggregate, the use or possession of medical marijuana substantially affects interstate commerce because it increases the availability of marijuana in the nonmedical and interstate markets. Third, regulating the use or possession of medical marijuana is "an essential part of the larger regulatory scheme" accomplished by the CSA.

Justice Scalia wrote separately, concurring in the judgment, and he based his arguments exclusively on the fact that the marijuana prohibition is part of a broader commercial regulation (the CSA). Only two justices (O'Connor and Thomas) dissented.

Raich could indeed justify the insurance mandate. The proposed reforms seek to reduce costs, inefficiencies and inaccessibility in the health insurance and medical services markets. These markets are inherently interstate and commercial. Caring for uninsured persons unduly increases the costs associated with health insurance and medical services and diminishes access and coverage for consumers who desire these services. Finally, requiring universal coverage is an essential part of the Congressional scheme designed to lower costs and expand access in health insurance and medical services markets.

Taxation
Although the Constitution gives Congress the power to "tax" and to "spend" in the general welfare of the country, Rivkin and Casey argue that the Tax Power cannot justify mandatory coverage because Congress cannot use this power to circumvent the constraints imposed by the Constitution. To support this argument, Rivkin and Casey reached deeply into the vault and retrieved the 1922 case Bailey v. Drexel Furniture. In that case, the Court invalidated a 10% tax on the profits of companies that used child labor. The Court held that even though the Tax Power is very broad, Congress could not use it as a pretext to accomplish an otherwise unconstitutional end. There are major differences between Drexel Furniture and proposed healthcare reform.

First, in Hamer v. Dagenhart, decided just 4 years prior to Drexel Furniture, the Court explicitly invalidated a federal law that banned the use of child labor. Because the Court had so recently held that Congress could not prohibit child labor, it was easy to view the onerous tax in Drexel Furniture as an improper attempt to evade prior case law.

Over time, the Court has expanded the scope of the Commerce Power and explicitly overruled Dagenhart. This same doctrinal evolution authorizes Congress to mandate individual coverage. Clearly, if Congress can mandate coverage under the Commerce Power, then taxing or imposing a penalty upon individuals who fail to pay would not contradict Drexel Furniture.

Final Thoughts
On some level, I agree with Rivkin and Casey who argue that raising taxes and funding "universal care" (rather than mandating universal coverage) would provide a "neater" solution to these issues. But this is not a politically popular solution. The fact that a cleaner solution exists, however, does not make the one that Congress has proposed unconstitutional. The current case law permits Congress to regulate health insurance and medical services markets. Requiring universal coverage is an essential component of that broader regulatory effort.

Note: Jonathan Adler, writing for the Volokh Conspiracy, has a similar take:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

Note: My essay only addresses the Congressional authority claim. Whether some individuals could successfully assert an individual right against the mandate is a different question. Because the mandate operates like a tax, it is difficult to imagine a successful "rights" claim.

Note: Speaking of "wrong," look at this essay by the same duo: David B. Rivkin Jr. & Lee A. Casey on Amnesty International on National Review Online.

Or this nugget: Tortured Logic on Torture.

Despite all of the evidence to the contrary, Rivkin and Casey still deny that the Bush administration engaged in torture: The Memos Prove We Didn't Torture - WSJ.com.