Editore"s Note
Tilting at Windmills

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October 15, 2009

GRASSLEY, GOING AROUND THE BEND.... Two months ago, when Sen. Chuck Grassley (R-Iowa) first endorsed the notion that health care reform might include "a government program that determines if you're going to pull the plug on grandma," it was pretty obvious the conservative Iowan was a lost cause.

At the time, Joe Klein called Grassley's comments "sheer idiocy," adding that the senator "either (a) hasn't the vaguest notion of what's in the bill or (b) he is so intimidated by the ditto-head-brown-shirts that he is trying to fudge a response to keep them happy. Either way, he should be ashamed."

Except, Grassley wasn't embarrassed in the slightest. Despite being the leading GOP negotiator on a "bipartisan" approach to reform, the Republican senator proceeded to lash out wildly against the effort. This included trashing specific policy proposals he'd already endorsed.

This week, Grassley appears to have completely lost it, offering at least tacit support for radical "Tenther" theories that insist that health care reform may be unconstitutional.

"I'm not a lawyer, but let me tell you, I've listened to some lawyers speak on this. And you know, it's a relatively new issue. I don't think we've ever had this issue before of having to buy something. And a lot of constitutional lawyers, saying it is unconstitutional or at least in violation of the 10th Amendment. Now maybe states can do this, but can the federal government? So, I have my doubts."

This was specifically responding to a question about individual mandates -- a measure he's already endorsed as a good idea that he supports.

Obvious inconsistencies notwithstanding, the notion that health care reform is "in violation of the 10th Amendment" is demonstrably ridiculous. The idea that "a lot of constitutional lawyers" see health care reform as unconstitutional is absurd.

But the fact that Grassley is even talking like this suggests the reform fight has really pushed him over the edge. He's up for re-election next year -- in a state Barack Obama won by about 10 points -- and there are reports Grassley may face a very credible Democratic challenger.

Embracing fringe, right-wing legal theories may excite the base a bit, but in general, Grassley's bizarre turn to the far-right is not only painful to watch, it's a risky political strategy that may cost him his job.

Steve Benen 4:50 PM Permalink | Trackbacks | Comments (21)

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Grassley's bizarre turn to the far-right is not only painful to watch, it's a risky political strategy that may cost him his job.

Couldn't happen to a more deserving guy. He's been at the beck and call of the most wild-eyed wingnuts this year.

Posted by: low-tech cyclist on October 15, 2009 at 4:55 PM | PERMALINK

May he be consumed by the evil fire breathing deficit dragon chart.

Posted by: Trollop on October 15, 2009 at 5:03 PM | PERMALINK

Can the government make someone pay a certain amount of money to another person by fiat? It feels like tax but it is certainly not. Recall that the federal income tax required a constitutional amendment. We shan't go to whether actual services are performed, perhaps for even more money; I think, on this, conservatives have a point, but not because of the tenth amendment but more on contract interference. Which is why a public option is needed; people opting out of a contract can be mandated to pay a tax to the government (public option)- but without it, the unconstitutional argument may be legitimate.

Posted by: Raoul on October 15, 2009 at 5:12 PM | PERMALINK

Well, as you've noted before, Steve, the Republicans in Congress have VAYS of dealing vith uncooperatif members! But so do the voters, and I hope they kick the bum out.

Posted by: T-Rex on October 15, 2009 at 5:12 PM | PERMALINK

i thank the gods that the strong agenda pushed by Obama and the Democrats, and well-and-accurately reported to an active and informed citizenry by the media, means that crazy people like Chuck Grassley haven't a chance for re-election spouting the kind of gibberish and nonsense he is spouting almost daily.

Oh. Wait. Nevermind.

Posted by: neill on October 15, 2009 at 5:22 PM | PERMALINK

i know i'm going to regret this. . .

Raoul, let me start by making sure we are on the same page. The individual mandate assumes certain people have health insurance (they would not need to do anything new) and others do not. That is, certain people do not have an existing contract for health insurance.

So how can the mandate be "contract interference" if the whole point is that there is no insurance contract for these folks?

Posted by: zeitgeist on October 15, 2009 at 5:24 PM | PERMALINK

I'm with Grassely. Forget mandates (i.e., "having to buy something"). Just give us single payer health care, increase income taxes accordingly, and make it free at the point of service. Constitutional issue averted.

Posted by: Chris on October 15, 2009 at 5:24 PM | PERMALINK

Individual mandates are a crappy idea, on every possible level. Bad policy, bad politics, bad all around.

Well, I guess they're good if you're the CEO of an insurance company. But otherwise . . .

Posted by: kc on October 15, 2009 at 5:35 PM | PERMALINK

Steve - The United States Supreme Court, as currently configured, could make this a very big issue, notwithstanding past precedent.

Posted by: Scott F. on October 15, 2009 at 5:45 PM | PERMALINK

Z: After I posted I read Article 1 Section 10- and is not exactly on point (it discusses state obligations)-and it seems many legal experts believe that it can be done; now I can't really articulate it but it seems wrong to impose a birth tax on everyone which is used to prop another entity (not the government) - why not have everyone pay $1000 every year to Boeing (or a consortium) for national defense. They are not the government- it is almost as if the privatization movement has become the government. OK- I am ranting- to answer your question directly: the right to enter into a contract includes the right not to enter into one; if you do, it becomes an unforceable contract of adhesion.

Posted by: Raoul on October 15, 2009 at 5:47 PM | PERMALINK

In Dr Strangelove, the Commies were trying to "sap our precious bodily fluids."

Now, some nefarious entity is trying to "sap our precious mental powers."

They seem to be targeting Republicans. . .

Posted by: DAY on October 15, 2009 at 5:47 PM | PERMALINK

Grassley's stuck between a rock and a hard place.

The rump fundagelical Right is all that remains of the shrinking Iowa Republican Party organization. If Grassley wants the nomination from that party, he must tack hard right to match their increasingly-ideological extremism.

But then, in the election, that same veer rightwards will probably cost him the centrist votes he needs to win.

I'm hoping this same scenario is re-enacted in many states over the next two years.

Posted by: joel hanes on October 15, 2009 at 5:57 PM | PERMALINK

He's being paid handsomely to try "anything" to stop reform. It's disgusting to watch him lie and manipulate the elderly and he did nothing but stall and delay a reform bill.

Grassley is a con and a smart ass who thinks that exciting the loonies of his party will lead to reelection...it won't. He's been exposed nationally. Can't hide anymore Grassley, we got a good look at you.

Posted by: bjobotts on October 15, 2009 at 6:12 PM | PERMALINK

I'm so confused. Grassley thinks it might be wrong for the federal government to compel people to send money to a private entity. I'm not sure if it's conservative to be against it (because it's a new government power) or if conservatives should be for it (because it's a privatization of government function).

Problem is I'm against individual mandates. But I'm liberal. But I'm for health care reform.

This issue is beyond knee-jerk "tea-baggers think it so it must be wrong." Raoul and I aren't buying it. And whether you think it's a bad reading of the constitution or not, Scott F points out it could be on shaky constitutional grounds. I really don't want to see this narrow window of opportunity closed by the gavel of John Roberts.

Posted by: inkadu on October 15, 2009 at 6:18 PM | PERMALINK

I would cheer the day that the court strikes down an individual mandate to buy health insurance. First of all, it would mean that the individual mandate was in place, and that everyone was accustomed to the idea that everyone needs health insurance. If we couldn't use the mandate method, the only method left is taxation and entitlement -- a method called Social Security, Medicare and Single Payer.

Posted by: tom in ma on October 15, 2009 at 7:16 PM | PERMALINK

I disagree w/the notion that Sen. Grassley is going around the bend; he clearly did so years before, + we're only just noticing.

-Z

Posted by: Zorro on October 15, 2009 at 7:25 PM | PERMALINK

joel haines @ 5:57 called it accurately, but even so, Grassley appears to be embracing the wingers a little too passionately -- like them, he seems to have gone around the bend. Call it ammunition for Christie Vilsack, then breathe a sigh of relief. I can only imagine a debate between the two of them: she all sweetness and light (and if you know her, that's an apt description in the best possible terms), he a grumbling, stuttering tinfoil gnome.

Posted by: ericfree on October 15, 2009 at 7:39 PM | PERMALINK

So... what I'd wonder here is whether inkadu, raoul or Sen. Grassley have read the bill. I will ignore Sen. Grassley on the assumption he is not trustworthy and respond to the concerns raised by Raoul. Raoul suggests that the government cannot compel someone to enter into a private contract, but then suggests a workaround: "people opting out of a contract can be mandated to pay a tax to the government".

Thing is, this workaround is exactly how the mandate is implemented. Here's the section describing the Mandate from the Finance version of the Health Care Bill:

"In order to ensure compliance, individuals would be required to report on their Federal income tax return the months for which they maintain the required minimum health coverage for themselves and all dependents under age 18...The consequence for not maintaining insurance would be an excise tax of $750 per adult in the household. This per adult penalty would be phased in [over the first four years it is law]... The excise tax would apply for any period for which the individual is not covered by a health insurance plan with the minimum required benefit but would be prorated for partial years of noncompliance. The excise tax would be assessed through the tax code and applied as an additional amount of Federal tax owed..."

I've previously seen the same provision in the HELP bill, and the HELP bill works the same fundamentally (tangential elements like the way the amount of excise tax is calculated and the conditions under which you get an exemption are different).

So: This is sort of awful for everyone except the insurance companies, if you ask me, and I'm still kind of perplexed how Democrats came to not only suggest this provision in the first place but initially consider its inclusion the "progressive" position. But as written, I don't see what could be considered unconstitutional about it. It does what raoul suggests: It increases the existing income taxes for a certain group of people, specifically those who don't have health insurance. Congress I think it's pretty well established has wide discretion to put highly arbitrary increases or exemptions on people's income taxes.

A couple of other thoughts:

(1) This would be just as constitutional or just as unconstitutional whether there is a public option or not. Here the money paid to the public option is not a "tax", it is a payment for a service paid as if to any other business. The mandate does not differentiate between money paid to the public option and any other insurer.

(2) inkadu brings up the argument that "[if the health care bill] could be on shaky constitutional grounds... I really don't want to see this narrow window of opportunity closed by the gavel of John Roberts". Here the narrow window of opportunity we're talking about is the window of opportunity to pass health care reform. Thing is, if the mandate is found unconstitutional (which again, I can't conceive of grounds on which that might happen), they'll just strike down the mandate. It would not be normal practice for the courts to strike a whole thousand-page bill because of a problem with one separable clause, and if there is any risk of something like that happening then I assume (as most legislation does) the final bill passed will specifically contain a clause saying something like "if part of this is struck down by courts, the remainder stands".

Posted by: mcc on October 15, 2009 at 8:27 PM | PERMALINK

It will be interesting to see whether the final bill would were to have (is that even proper grammar?) a severance clause. I would not assume it is an automatic since so many provisions depend on each other. Taxing the same class of individuals different rates does not sound like equal justice. Imagine your tax rate being cut in half if a family dependent enlists in the Army!? At best, the issue is an open question, as I do not know of similar laws; and please do not bring up car insurance.

Posted by: Raoul on October 15, 2009 at 8:57 PM | PERMALINK

The notion that the health care proposal is unconstitutional is simply ludicrous to anyone who actually knows anything about basic, first-year-in-law-school constitutional law. The Congress has the power to tax and to regulate interstate commerce. Period. It has the constitutional power to levy extraordinarily discriminatory taxes based on virtually *anything* beyond a few (extraordinarily narrow) "protected classes".

It similarly has extraordinarily powers to regulate interstate commerce (which is to say it has the power to regulate *all* commerce that has *any* effect on interstate commerce in virtually *any* way).

Raoul says, "taxing the same class of individuals different rates does not sound like equal justice." Hate to break to you, brother, but that ship sailed in the 1800's, and hasn't been open for discussion for 100 years. Good old McCray (1903) says it best:

"The judiciary is without authority to avoid an act of Congress lawfully exerting the taxing power, even in a case where, to the judicial mind, it seems that Congress had, in putting such power in motion, abused its lawful authority by levying a tax which was unwise or oppressive, or the result of the enforcement of which might be to indirectly affect subjects not within the powers delegated to Congress; nor can the judiciary inquire into the motive or purpose of Congress in adopting a statute levying an excise tax within its constitutional power."

Even the so called "tenthers" don't bother arguing that the government is somehow limited in its ability to levy taxes. They prefer fighting on the more fertile ground of the commerce clause, which has only been settled for 70 years and forms the basis of our entire federal regulatory scheme.

Posted by: owenz on October 15, 2009 at 9:54 PM | PERMALINK

Interestingly enough, Digby wrote exactly the same thing I wrote. The issue here is *not* taxes per se; but mandated payments from one private entity to another with no opt out- again I ask, are there any such laws in the books?

Posted by: Raoul on October 15, 2009 at 10:01 PM | PERMALINK
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