As anticipated, earlier today the Obama Administration announced a change in the requirement for employers to provide contraceptive coverage in the insurance they are required to provide to employees under the PPACA. Unfortunately it seems like more of a smokescreen than a solution and seems to be based on the idea that there is such a thing as “free” birth control:

Seeking to allay the concerns of Catholic leaders and head off an escalating political storm, President Obama on Friday announced an adjustment to the administration’s health-care rule requiring religiously affiliated employers to provide contraceptive coverage to women.

Women still will be guaranteed coverage for contraceptive services without any out-of-pocket cost, but will have to seek the coverage directly from their insurance companies if their employers object to birth control on religious grounds.

Religiously-affiliated non-profit employers such as schools, charities, universities, and hospitals will be able to provide their workers with plans that exclude such coverage. However, the insurance companies that provide the plans will have to offer those workers the opportunity to obtain additional contraceptive coverage directly, at no additional charge.

Churches remain exempt from the birth-control coverage requirement. And their workers will not have the option of obtaining separate contraceptive coverage under the new arrangement.

The administration’s decision to make an adjustment reflected the high political stakes of an issue that had generated intense criticism in recent days from a growing chorus of Catholic and Republicans leaders, as well as some Democrats. In Congress and on the campaign trail, leading Republicans attacked the Obama administration’s position as a war on religion.

In an appearance in the White House briefing room, Obama said he instructed aides to craft a solution quickly in the wake of the outcry.

“After many genuine concerns were raised over the last few weeks — and the more cynical desire to make this into political football — it became clear that spending months hammering out a solution not an option; we had to move this faster,” Obama said, flanked by Health and Human Services Secretary Kathleen Sebelius, whose agency is administering the rule.

“I’ve been confident from the start we could work out a sensible approach here,” the president added. “Some folks in Washington may want to treat this as another political wedge issue, but it shouldn’t be. I never saw it that way. It’s people with goodwill on both sides of the debate sorting through a complicated issue to find a solution that works for everyone. Today’s announcement has done that.”

White House officials said Obama called Archbishop Timothy Michael Dolan, Keehan and Planned Parenthood President Cecile Richards to explain the new rules. The officials declined to elaborate on the nature of the conversations.

During a conference call with reporters to explain details, a senior White House official said that the impact of the change on insurers would be cost neutral–and even potentially cost-saving–because on balance it would reduce the need to provide medical coverage related to unwanted pregnancies and other conditions that can be avoided with birth control.

“The new policy ensures women can get contraception without paying a co-pay and addresses important concerns raised by religious groups,” the White House said in a statement.

Not surprisingly, Administration allies and other groups on the left are hailing the new compromise — after all, who doesn’t like to get stuff when other people are going to be paying for it? — but it’s unclear how Church groups are going to react to this. To some extent, it seems like a shell game after all. Unlike the Hawaii Rule, the new plan does not contemplate employees paying for the additional cost of contraceptive coverage (which is, in all likelihood marginal at best) but it also doesn’t require religious employers to pay for the coverage. Instead, the payments will be made by that abstract entity the “insurance company” who some people in the White House apparently think has a pot of money somewhere that comes from some unknown source. However, as Sarah Kiff notes, there is a huge catch in the plan as revised that is likely to make it difficult to sell:

The catch here is that there’s a difference between “revenue neutral” and “free.” By one report’s measure, it costs about $21.40 to add birth control, IUDs and other contraceptives to an insurance plan. Those costs may be offset by a reduction in pregnancies. But unless drug manufacturers decide to start handing out free contraceptives, the money to buy them will have to come from somewhere.

Where will it come from, since neither employers nor employees will be paying for these contraceptives? That leaves the insurers, whose revenues come from the premiums that subscribers pay them. It’s difficult to see how insurance companies would avoid using premiums to cover the costs of contraceptives. They could, perhaps, use premiums from non-religious employers. Those businesses wouldn’t likely object on faith-based grounds, but they probably wouldn’t be keen on footing the bill for people who aren’t on their payrolls.

The proposal is also likely to raise concerns among religious employers, who may think (not entirely incorrectly, I would submit) that the cost of the contraceptive coverage will still ultimately come out of the insurance premiums they pay, and that it will be taken into account when premium increases are calculated over the life of the plan. From the perspective of the Catholic Bishops and the other religious organizations that have been protesting about this rule, it’s hard to see what has really changed from the original rule. As I said, it’s not as if the insurance companies have sources of revenue independent of the premiums they receive (or that it would even be proper for them to use those revenues for insurance purposes if they did), so ultimately the only entities that pay for the cost of coverage are the employer or the employee.

As I’ve said since the start of this debate, for me this isn’t a religious argument. I’m still not entirely convinced by the religious liberty arguments that the Church and its allies make, although whether or not those claims succeed in court is less important than the political impact that they might have. For me, the issue is whether Congress and the White House should be dictating the terms under which employers provide non-salary benefits to their employees at all. That’s a much larger debate, of course, and it will likely end up being resolved by the Supreme Court. However, if the Obama Administration truly wants to accommodate the concerns of religious institutions, then it needs to get off the high horse and admit that there is no such thing as “free” birth control, or “free anything else for that matter. Someone will end up paying for it in the end and, unless they want to take the political risk of alienating Catholics and other religious voters with a change that seems to be little more than a fig leaf, then maybe they need to consider something like the Hawaii Rule even if that means that employees end up picking up the cost.

Update: This statement from the National Conference of Catholic Bishops, while not an endorsement at all, is more positive than one might have expected:

WASHINGTON— The United States Conference of Catholic Bishops (USCCB) sees initial opportunities in preserving the principle of religious freedom after President Obama’s announcement today. But the Conference continues to express concerns. “While there may be an openness to respond to some of our concerns, we reserve judgment on the details until we have them,” said Cardinal-designate Timothy Dolan, president of USCCB.

“The past three weeks have witnessed a remarkable unity of Americans from all religions or none at all worried about the erosion of religious freedom and governmental intrusion into issues of faith and morals,” he said.

“Today’s decision to revise how individuals obtain services that are morally objectionable to religious entities and people of faith is a first step in the right direction,” Cardinal-designate Dolan said. “We hope to work with the Administration to guarantee that Americans’ consciences and our religious freedom are not harmed by these regulations.”

Obviously, if the Bishops ultimately sign off on this proposal then the issue is closed. The statement, however, makes it seem as if there is at least some negotiation still to be had here.

With the White House under fire for its new rule requiring employers including religious organizations to offer health insurance that fully covers birth control coverage, ABC News has learned that later today the White House — possibly President Obama himself — will likely announce an attempt to accommodate these religious groups.

The move, based on state models, will almost certainly not satisfy bishops and other religious leaders since it will preserve the goal of women employees having their birth control fully covered by health insurance.

Sources say it will be respectful of religious beliefs but will not back off from that goal, which many religious leaders oppose since birth control is in violation of their religious beliefs.

There’s no word on what form this compromise will take, but it will apparently not go as far as the so-called “Hawaii Rule” that allows religious institutions to opt out of the requirement as long as they provide employees with information regarding the availability of additional coverage for contraceptives:

Sources say it will involve health insurance companies helping to provide the coverage, since it’s actually cheaper for these companies to offer the coverage than to not do so, because of unwanted pregnancies and resulting complications.

So, instead of the employer picking up the cost of coverage, insurance companies would. The devil is, as always, in the details, but this may be a way out of what has become something of headache for the Administration.

A bill currently making its way through the Florida legislature would bar the use of food stamps for allegedly unhealthy foods:

Florida’s poor can use food stamps to buy staples like milk, vegetables, fruits and meat. But they can also use them to buy sweets like cakes, cookies and Jell-O and snack foods like chips, something a state senator wants stopped.

Sen. Ronda Storms, R-Valrico, also wants to limit other welfare funds, known as Temporary Assistance For Needy Families, from being used at ATMs in casinos and strip clubs and anywhere out of state. The bill comes after reports that the debit cards welfare recipients now receive were used in those places, as well as locations in Las Vegas and the Virgin Islands in a small percentage of cases, but the state does not track what items were purchased.

The bill recently passed a committee. A companion bill in the state House companion is being considered by a subcommittee.

The bill would also require the state to launch a culturally sensitive campaign to educate people about the benefits of a nutritious diet. Supporters say it would help recipients follow healthy eating habits and prevent taxpayer funds from being used to purchase luxury foods like bakery cakes when they can whip up a cheaper box mix.

“Most individuals using public assistance dollars are using the funds to get by and to provide for their families. However, we should do what we can to prevent dollars intended to help Florida’s poorest families from being spent in the wrong places,” Storms said in a statement.

But critics say the government shouldn’t dictate what people eat.

“What I choose to ingest even though I may be on food stamps, that’s at my discretion. I don’t need government telling me what I can and cannot purchase,” said Rep. Gwyndolen Clarke-Reed, a Pompano Beach Democrat who voted in committee against the bill (SB 1658). She said the bill is demeaning and invasive and she worries the education campaign would imply to “minorities and low-income folks that they’re not intelligent enough to make selections on the foods they want.”

Were it not for the fact that this bill is actually making progress in the legislature, it would be easy to laugh it off as the work of a lone nut legislator, but even then the paternalism here would be hard to miss. As with other, more broad, efforts by government to either ban or heavily tax certain supposedly unhealthy food items, we’re dealing with a group of people who think they know better than the people they serve what is good for them. Not to mention the fact that the proposed law also apparently assumes that people who are food stamps are too stupid to know how to bake things on their own. Perhaps it’s just the fact that they’re too busy to pretend to be Martha Stewart, did anyone give that one any thought?

In any event, this isn’t the first time that a state has tried to utilize the food stamp program to regulate what people eat:

The state Department of Children and Families, which oversees the food stamp program, would have to get federal approval from the U.S. Department of Agriculture to implement the bill if it passes, which may be tricky since no other states have been successful. The federal government spent nearly $5 billion last year to help about 3 million Floridians, as an increasing number are relying on the program in a sour economy. The average monthly benefit in the state is about $140 per person, according to the USDA.

In 2004, Gov. Tim Pawlenty tried to make Minnesota’s welfare program the first in the country to ban recipients from buying candy with food stamps, but feds didn’t go for it. Last year, New York City applied for a waiver to restrict the sale of soda and sugary drinks, but that was also denied. Iowa, California and Texas have proposed similar bills in the past two years, but nothing has been passed into law, according to at the National Conference of State Legislators.

The waivers often require cumbersome negotiations with federal officials and, if granted, cannot originally be applied statewide. The USDA requires a control group, meaning it must be started as a pilot program in a few counties, and be evaluated by an outside party, said Sheri Steisel, director of human services policy for NCSL.

So even if this thing does pass the legislature and get signed in to law, there’s no guarantee it will ever get implemented. Here’s an idea though, instead of trying to regulate what people on food stamps eat, maybe the Florida legislature should be concentrating on creating the conditions that make it unnecessary for them to be on food stamps to begin with.

More broadly, though, this is yet another example of the Nanny State attitude that has motivated such actions as the bans on fois gras in Chicago and New York and the continuing calls by some “public health advocates” for excise taxes on sodas and other beverages. More recently, an article in a recent issue of Nature argues that sugar is just as toxic as alcohol and tobacco:

Sugar meets the same criteria for regulation as alcohol, the authors wrote, because it’s unavoidable, there’s potential for abuse, it’s toxic, and it negatively impacts society. They write that sugar is added to so many processed foods that it’s everywhere, and people eat up to 500 calories per day in added sugar alone. Sugar acts on the same areas of the brain as alcohol and tobacco to encourage subsequent intake, they wrote, and it’s toxic because research shows that sugar increases disease risk from factors other than added calories, such as when it disrupts metabolism.

“Many people think that obesity is the root cause of these diseases,” they wrote. But 40 percent of normal-weight people are developing diseases like diabetes, hypertension, lipid problems, heart and liver disease. “Obesity is not the cause; rather, it is a marker.”

That’s why it’s time that the government steps in and regulates sugar in ways similar to tobacco and alcohol, the authors wrote. That includes taxes, age restrictions and other policies to control the distribution of sugar.

“We are now seeing the toxic downside,” co-author and sugar researcher Lustig, a professor of clinical pediatrics at the UCSF Center for Obesity Assessment, Study, and Treatment, told WebMD. “There has to be some sort of societal intervention. We cannot do it on our own because sugar is addictive. Personal intervention is necessary, but not sufficient.”

Dr. Marion Nestle, professor of nutrition, food studies, and public health at New York University, told HealthPop that she agrees that it’s time for policy changes, since many Americans take in roughly 25 percent of their daily calorie intake through sugar.

“I don’t think people have any idea how many calories they take in when they take in soft drinks – particularly because they are consumed in such large quantities,” Nestle said. She thinks regulation could eventually be possible, since many local governments are already enacting policies to curb sugar in schools or tax sodas.

“If you have enough of those, the federal government can step in.”

Of course it can because Congress and the bureaucrats at the FDA know what’s good for us better than we do. Or at least that’s the attitude that pervades this type of argument. If this kind of study were pointed toward the idea of greater public health education it wouldn’t necessarily be such a bad thing. Teaching the importance of a health diet at a young age is a good thing, after all. But that’s not what they’re talking about, as one of the study co-authors makes clear in a CNN Op-Ed where she calls for “supply side controls” on sugar like taxes on products with sugar, and even setting age limits on the purchase of products with sugar in them. Imagine having to show ID the next time you want to buy a 20-oz bottle of Coke at a 7-11 in the middle of a long road trip. That’s the kind of world these people want, because they think we’re too dumb to make our own decisions.

The idea that sugar, a substance that has been part of human diets for thousands of years is a toxic substance is simply absurd. The idea that sugar itself, or saturated fat or any other single substance is responsible for the obesity problem in this country is absurd. For the most part, obesity has become an issue in modern society because our bodies have not caught up to the sedentary lifestyle and rich diets that life in a 21st Century society makes possible. Considering that it wasn’t too long ago in history that people were worrying about having too little to eat (and that some people in the world still do worry about this), the fact that there are people seriously talking about increasing the power of the state because people eat too much is really kind of silly. The only thing that will change the conditions that these study authors, and the sponsor of the Florida bill, complain of are changes in behavior that come about voluntarily. The heavy hand of the state isn’t going to accomplish anything other than making life more difficult and less enjoyable.

Cookies Image via Shutterstock

For the second weekend in a row, Catholic parishioners across the United States were read a message from the U.S. Conference Of Catholic Bishops on the recent decision by the Obama Administration to extend to church-run institutions such as hospitals a requirement that employer-provided health insurance include coverage for contraceptives:

(Reuters) – American Catholic clergy called on the faithful to write Congress to protest new birth control rules from President Barack Obama’s administration, stepping up a campaign that began a week ago with denunciations from the pulpit at Masses across the country.

The U.S. Conference of Catholic Bishops, posted an “Urgent Action Alert” over the weekend calling on Catholics to write to their U.S. lawmakers protesting the rule.

The fight is over a provision of the health reform law announced on January 20 that would require health insurance plans — including those offered by institutions such as Catholic-affiliated hospitals and universities — to offer free birth control including sterilization.

At Immaculate Conception Catholic church in the Philadelphia suburb of Jenkintown, Pennsylvania, Monsignor David E. Diamond read the congregation a letter on Sunday from Philadelphia Archbishop Charles J. Chaput parishioners to contact members of Congress.

“Write them, call them, visit them – and help them understand the deep resistance of Pennsylvania Catholics to this dangerous ruling,” the letter said.

Perhaps sensing a political opportunity, pretty much all of the Republican candidates for President have been hitting the Obama Administration for this decision, with Newt Gingrich being the most vociferous in claiming that the decision constitutes a war on the Roman Catholic Church. While that rhetoric is, in a word, absurd, there’s no doubt that this decision caused more controversy than the Obama Administration seems to have anticipated, although one is not at all clear how they could have not anticipated that this would be a problem for the Church regardless of how you try to spin it. It’s an issue that has the potential to cross ideological lines as well. MSNBC host Mika Brezinski, who is generally quite supportive of the Administration but also happens to be Catholic, said this morning on Morning Joe that she thought the Administration was wrong to push this button not just with the Church, but with Catholic voters.

A piece in CNN last week wondered that same point:

(CNN)-After years of bridge building with the Catholic Church, the Obama administration may have damaged some of the good will it built up with the nation’s 70 million Catholics, which could have steep consequences at the polls in November.

Some rank and file Catholics are beginning to express the same frustrations as clergy about a new U.S. Department of Health and Human Services policy requiring all employers, including religious ones, to pay for FDA-approved contraceptives, such as the birth control pill and Plan B, through health insurance plans. Churches are exempt but hospitals and schools with religious affiliations must comply. The new policy goes into effect August 1, 2012, but religious groups who oppose contraception have been given a yearlong extension to enforce the policy.

“What’s offensive is that we’re being told, our Catholic institutions which serve this nation well, are being told you who find these things offensive, you should pay for them, in fact you must pay for them,” Cardinal Donald Wuerl, the archbishop of Washington, told CNN.

Catholic teaching opposes the use of contraceptives.  Wuerl acknowledged the clergy and the faithful have been at odds over the teachings on contraceptive use. But on this policy he said both are in lockstep over what is being perceived as a violation of religious liberties.

“This time around what people are seeing this isn’t a question of one moral teaching or another, it’s being able to teach at all. Our freedom, and everyone has a stake in freedom in this country, and I think that’s why this resonates across the board,” he said.

And yesterday in The Wall Street Journal, Peggy Noonan argues that the President has entered a battle that he cannot win:

There was no reason to make this ruling—none. Except ideology.

The conscience clause, which keeps the church itself from having to bow to such decisions, has always been assumed to cover the church’s institutions.

Now the church is fighting back. Priests in an estimated 70% of parishes last Sunday came forward to read strongly worded protests from the church’s bishops. The ruling asks the church to abandon Catholic principles and beliefs; it is an abridgement of the First Amendment; it is not acceptable. They say they will not bow to it. They should never bow to it, not only because they are Catholic and cannot be told to take actions that deny their faith, but because they are citizens of the United States.

If they stay strong and fight, they will win. This is in fact a potentially unifying moment for American Catholics, long split left, right and center. Catholic conservatives will immediately and fully oppose the administration’s decision. But Catholic liberals, who feel embarrassed and undercut, have also come out in opposition.

The church is split on many things. But do Catholics in the pews want the government telling their church to contravene its beliefs? A president affronting the leadership of the church, and blithely threatening its great institutions? No, they don’t want that. They will unite against that.

(…)

There was no reason to pick this fight. It reflects political incompetence on a scale so great as to make Mitt Romney’s gaffes a little bitty thing.

There was nothing for the president to gain, except, perhaps, the pleasure of making a great church bow to him.

Enjoy it while you can. You have awakened a sleeping giant

As Noonan goes on to point out, Catholics made up 27% of the national electorate in 2008 and Obama won Catholics at the national level 54% to 45%. There’s no reason to think that the Catholic vote has any particular loyalty to President Obama because of the outcome in 2008, Four years earlier, the Catholic vote had gone 52% to 47% for George W. Bush, and if you track the exit polls going back to 1980 you’ll see that Catholic voters fluctuated between majority Republican and majority Democratic as much as the general electorate has over that time. The Catholic vote also played an important role in many of the swing states that Obama picked up in 2008 that allowed him to score a victory that few Democrats have seen since Richard Nixon was President. In Ohio, for example, Catholics accounted for 23% of the electorate and Obama won them 52% to 47%.  In Florida, Catholics made up 23% of the vote and Obama won that demographic 50% to 49%.  The results were similar in other states and, in many cases, it wouldn’t have taken much of a switch in loyalty for the Catholic vote to have sided with McCain and, if this decision does generate the kind of antipathy that some are anticipating, then it could play a huge role in the outcome of the vote in the swing states that President Obama will need to hold on to if he’s going to be re-elected.

David Friedman comments:

On the one hand, I suspect that many, probably a majority, of American Catholics do not  accept the church’s position on contraception—are, for one thing, willing to use it themselves. One might expect them to accept the requirement, perhaps to approve of it. That might be what Obama is counting on.

On the other hand …  . Human beings have a very strong aversion to being pushed around. I can easily imagine a Catholic who would be delighted if the church dropped its opposition to contraception, who is entirely willing to use contraception, but who is badly offended by having the U.S. government compel the church to pay for services that violate church doctrine.

That, essentially, is the political gamble that the Obama Administration is making here. One can disagree with the Church’s teaching on contraception, and many American Catholics do, but if the perception becomes that this is an example of the heavy hand of the state imposing its will on a religious organization regardless, then the fact that American Catholics support contraceptive use may end up being irrelevant.

They didn’t have to make this choice, of course. They could have followed the example of states like Hawaii that grant a broad exemption on contraceptive coverage for any religious institution, with the only requirement being that they are required to provide their employees with information on where they could obtain such coverage at low cost. Another option would have been to require them to notify employees that they could provide a rider to the basic employer-provided coverage that would cover contraception provided that the employee picked up the entire cost of that additional coverage. Instead, they choose to go this route for reasons that seem inexplicable from a political and policy point of view.

As I said last week, I’m not at all persuaded by the religious liberty arguments that have been made against this decision. These claims will be litigated, however, and it will be interesting to see how they’re treated by the Courts. As a matter of politics, though, the Administration’s decision strikes me as a dumb and inappropriate one that didn’t need to be made.

Photo via Politico

Last week, the Obama Administration announced that it would enforce a rule that is part of the PPACA requiring employer-provided health care insurance to cover contraceptives even if the employer in question happens to be a religious institution that objects to contraception like the Roman Catholic Church. The rule doesn’t apply to a religious institutions core functions, and religious organizations are being given more time to comply than secular employer, but any Church-run hospital, school, or the like would have to comply. The reaction to this on the right has been about what you’d expect it to be and, yesterday, the Catholic Church itself weighed in via a letter that was read to parishioners in very Catholic Church in the country. The letter itself was fairly strongly worded:

I write to you concerning an alarming and serious matter that negatively impacts the Church in the United States directly, and that strikes at the fundamental right to religious liberty for all citizens of any faith. The federal government, which claims to be “of, by, and for the people,” has just been dealt a heavy blow to almost a quarter of those people — the Catholic population — and to the millions more who are served by the Catholic faithful.

The U.S. Department of Health and Human Services announced last week that almost all employers, including Catholic employers, will be forced to offer their employees’ health coverage that includes sterilization, abortion-inducing drugs, and contraception. Almost all health insurers will be forced to include those “services” in the health policies they write. And almost all individuals will be forced to buy that coverage as a part of their policies.

In so ruling, the Obama Administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty. And as a result, unless the rule is overturned, we Catholics will be compelled to either violate our consciences, or to drop health coverage for our employees (and suffer the penalties for doing so). The Obama Administration’s sole concession was to give our institutions one year to comply.

We cannot—we will not—comply with this unjust law. People of faith cannot be made second class citizens. We are already joined by our brothers and sisters of all faiths and many others of good will in this important effort to regain our religious freedom. Our parents and grandparents did not come to these shores to help build America’s cities and towns, its infrastructure and institutions, its enterprise and culture, only to have their posterity stripped of their God given rights. In generations past, the Church has always been able to count on the faithful to stand up and protect her sacred rights and duties. I hope and trust she can count on this generation of Catholics to do the same. Our children and grandchildren deserve nothing less.

The letter prompted E.J. Dionne, who is anything but a conservative, to chide the Obama Administration for what he called a breach of faith:

Speaking as a Catholic, I wish the Church would be more open on the contraception question. But speaking as an American liberal who believes that religious pluralism imposes certain obligations on government, I think the Church’s leaders had a right to ask for broader relief from a contraception mandate that would require it to act against its own teachings. The administration should have done more to balance the competing liberty interests here.

Dionne goes on to note that there was a compromise proposed that mirrored a program in Hawaii that allows religious institutions that wish to decline offering insurance that includes contraceptive coverage by informing employees and prospective employees of this and giving them information on how to obtain additional coverage that includes contraceptives a modest cost. Another option would be to make contraceptive coverage a rider to the employer-provided plan that an employee could select, but for which they would have to pay on their own. Ultimately, the Obama Administration refused to do this, and this seems to be the root of Dionne’s problem with the program and the reason that he supports the Church’s position.

Kevin Drum disagrees:

I guess I’m tired of religious groups operating secular enterprises (hospitals, schools), hiring people of multiple faiths, serving the general public, taking taxpayer dollars — and then claiming that deeply held religious beliefs should exempt them from public policy. Contra Dionne, it’s precisely religious pluralism that makes this impractical. There are simply too many religions with too many religious beliefs to make this a reasonable approach. If we’d been talking about, say, an Islamic hospital insisting that its employees bind themselves to sharia law, I imagine the “religious community” in the United States would be a wee bit more understanding if the Obama administration refused to condone the practice.

In the end, I think Drum is correct here. Religious liberty is an important principle, one that I take very seriously, but it doesn’t mean what Dionne and the Catholic Bishops seems to think it means. Operating a hospital or a school or an adoption agency is not a religious undertaking in the same way that, well, operating a church is, and there’s simply no merit to the argument regulations regarding how you operate an institution that is essentially secular in nature are somehow a violation of religious liberty. More importantly, operating such institutions while taking government money (i.e., Medicare and Medicaid) means accepting at least some regulation about how that money is used. As I noted when discussing the issue of Catholic Churches getting ending adoption services rather than provide equal consideration to gay couples, there’s not such thing as a right to receive government money:

Religious liberty does not mean the right to take public money without having to comply with the law because the teachings of your faith tell you those laws are wrong. That’s not how you live in a civil society, and if the Church cannot comply with that simple rule then it needs to rethink its priorities.

I’d also note that it strikes me that the Church is making a fairly bizarre argument here. Providing contraceptive coverage in employer provided insurance is orders of magnitude different from, say, being required to perform abortions, an issue on which I personally think Catholic hospitals should be given wide latitude and the right to object for reasons of conscience if they choose. All it means is that your employees, many of whom might not even be Catholic, have a certain insurance benefit. Considering that there are often medical reasons that women are put on contraceptives that have nothing to do with preventing pregnancy, the relationship between the mandate and Church teaching is tangential at best.

Finally, Drum’s makes a point that is worth noting. Taking the religious liberty argument to its logical conclusion would mean that an Islamic hospital would be able to require its employees, Muslim or not, to adhere to Sharia law. Is that really what the First Amendment means?

As a policy matter I don’t support requiring any employer to provide any specific type of insurance policy. I have doubts that such a requirement is even Constitutional (yes, yes, I know the Commerce Clause, etc. etc). At the very least, perhaps the kind of opt-out that Dionne talks about would have been the better choice. Calling this a matter of “religious liberty,” though, is simply ridiculous. It’s a bad law, yes, but it’s not a violation of the First Amendment.

Newt Gingrich spent much of yesterday making his case against Mitt Romney on the grounds that Romney’s history with the Massachusetts health care reform plan would make it impossible for him to draw real distinctions between himself and President Obama on the issue of health care. As it turns out, though, Romney isn’t the only one who has that problem. Gingrich’s own support for an individual mandate during the Clinton years and even a mere year before Barack Obama was elected have already been noted. Now, though, we’ve got Gingrich on the record supporting the idea of an individual health care insurance mandate in 2009 just as Congress was beginning to debate what would eventually become the Affordable Care Care:

The real foundation, the most important part of this, is individual rights, responsibilities, and expectations of behavior. … We believe that there should be must-carry, that everybody should have health insurance, or if you’re an absolute libertarian, we would allow you to post a bond, but we would not allow people to be “free riders” failing to insure themselves and then showing up in the emergency room with no means of payment. If you have must carry, then the insurance companies have told us that we can have must-issue, and you will therefore have a system in which you don’t have to worry about cherry-picking and maneuvering. … This is the kind of general model we will be advocating.

The quoted section begins at about the 28 second mark, but the entire audio clip is relevant. At the time, Gingrich was speaking on behalf of one of his business ventures, The Center For Health Transformation, an organization that received significant amounts of money from the health care industry, including many large pharmaceutical companies. At the time, it wasn’t really shocking for Gingrich to say this because it was entirely consistent with what he’d been saying since the days of the long, hard debate over HillaryCare in 1994. It wasn’t until the right started turning on ObamaCare, as it came to be called, that Gingrich changed his position. Now, Gingrich says he was wrong for all those years. however as Morgen at Verum Serum notes, the audio clip is fairly damning when it comes to the case that Gingrich himself tries to make against Romney:

Well, here you have it: not only has Gingrich been a long-standing proponent of a federal health insurance mandate, he clearly and unequivocally called for it as part of the White House health reform initiative in May 2009. Mission accomplished then.

There is something else worth noting in this clip. Not only did Gingrich make the “conservative” argument for the mandate in dealing with the free rider problem, he also advanced a favorite argument of the left. Which is that the only way insurers could be required to offer coverage to everyone regardless of their health status (“must issue”), was to require everyone to carry insurance. This was ultimately the argument which convinced none other than Barack Obama, who remember, opposed an individual mandate during the Democrat primary campaign in 2008.

Romney is arguably even more compromised on ObamaCare than Gingrich, but it’s a much closer call in my opinion than some seem to believe. Call me an Alinskyite, but it seemed like Republican voters should probably know about this before the general election.

I bet they will after this starts showing up in SuperPAC ads in the near future.

Sarah Kiff makes an important point about one of the primary motivations behind the force restructuring that President Obama announced earlier this week at the Pentagon, basically we are nearing the point where the largest item in the military budget will be health care costs:

About 9.6 million Americans are eligible for military health care right now. That includes active duty soldiers, military retirees (those who served 20 or more years) and their dependents. It is, importantly, a separate health care plan from veterans’ health care, which covers those who served less than 20 years in the military, and commands a budget of more than $50 billion annually.

Putting veterans’ care aside, the military’s health care costs have grown annually by 6.3 percent for the past decade, rising to $52.2 billion in the department’s most recent budget proposal. Health care spending now accounts for about half the military spending on personnel costs, and 9.5 percent of the defense budget. The military now spends just as much on salaries as it does providing health care benefits.

And that total is expected to grow. Todd Harrison, a policy analyst at the Center for Strategic and Budgetary Assessments, recently crunched the numbers on what would happen if personnel costs kept growing at the same rate they have for the past decade, and the overall defense budget only kept pace with inflation. Under that scenario, the entire defense budget would be consumed by paying benefits, both for health care and other services, in 2039. “We’ll have well-paid, happy and healthy retirees, but we’ll also have no money for equipment, training or regular operations,” Harrison says. “Obviously, we can’t let that happen.”

(…)

Part of it has to do with an increase in the military workforce, which has expanded in the course of the Iraq War. Within that larger population, more military families are opting to stay in Tricare, the Defense-run health plan, rather than go into private coverage. This has been happening for about a decade now, and increases the number of military retirees and dependents that the Department of Defense covers.

One reason that more military members are choosing Tricare is that fewer employers are offering health benefits, and those who are have raised premiums. By contrast, Tricare had a fixed, monthly premium of $38 since 1995. It rose for the first time, in over a decade, by $5 in the fall.

According to the Kaiser Family Foundation, this is but a fraction of what the average American worker contributes to the cost of their health coverage, which is sometimes less generous than TriCare. According to the most recent study I could find from the Kaiser Family Foundation [PDF], an employee with family health insurance paid an average of $4,000 for their insurance in 2010, that’s an average of $333.33 per month, or ten times more per month than a retired member of the military utilizing TriCare pays. (Active duty personnel do not have any money dudcted from their salary for health care). One of the rumored changes set to be announced with the upcoming budget package increasing the contribution made by TriCare recipients to their premiums, and perhaps even a deduction from the salaries of active duty personnel to cover the cost of non-combat related health care. Unless we want the Pentagon to be turned into little more than a processor of retiree benefits, it seems like a necessary first step toward bringing these costs under control.

Without mentioning them by name, Chief Justice Roberts effectively defended the decision by both Justice Thomas and Justice Kagan that they did not need to recuse themselves from the Supreme Court’s upcoming deliberations over the constitutionality of the Affordable Care Act:

In the face of a growing controversy over whether two Supreme Court justices should disqualify themselves from the challenge to the 2010 health care overhaul law, Chief Justice John G. Roberts Jr. on Saturday defended the court’s ethical standards.

The chief justice’s comments came in his annual report on the state of the federal judiciary. In it, he made what amounted to a vigorous defense of Justices Clarence Thomas and Elena Kagan, who are facing calls to disqualify themselves from hearing the health care case, which will be argued over three days in late March. He did not, however, mention the justices by name.

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Chief Justice Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

Federal law requires that judges disqualify themselves when they have a financial interest in a case, have given ad-vice or expressed an opinion “concerning the merits of the particular case” or when their “impartiality might reasonably be questioned.” For lower court judges, such a decision can be reviewed by a higher court, but the Supreme Court has no such review.

Chief Justice Roberts said the Supreme Court’s unique status made it impossible for the justices to follow the practices of lower-court judges in recusal matters. Lower-court judges can be replaced if they decide to disqualify themselves, he said, and their decisions about recusal can be reviewed by higher courts.

“The Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse in the course of deciding a case,” he wrote.  “Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”

(…)

Chief Justice Roberts said the justices also comply with the recusal law, though he added that “the unique circumstances of the Supreme Court” must be taken into account.

“There is only one major difference in the recusal process: There is no higher court to review a justice’s decision not to recuse in a particular case,” he wrote. “This is a consequence of the Constitution’s command that there be only ‘one Supreme Court.’ ”

That also means, he added, that recusal at the Supreme Court is particularly problematic.

“If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place,” he wrote. “But the Supreme Court consists of nine members who always sit together, and if a justice withdraws from a case, the court must sit without its full membership.”

“A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy,” he added. “Rather, each justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

I’ve written about the controversy raised mostly by left-wing pundits regarding the alleged reasons Thomas needs to recuse himself and the questions raised by those on the right about Kagan’s involvement with the health care litigation while she was still Solicitor General. While I think the issues surrounding Kagan remain partially unanswered because of the Department of Justice’s refusal to release all the email and correspondence related to the matter, I think Roberts gets it about right here. The issues surrounding a Supreme Court Justice’s recusal are far more complicated than those that take place District Court or Court of Appeals level, not the least because there is no mechanism to replace a Justice who has recused themselves and the absence of even one member of the Court could impact the outcome of the case significantly.

As James Joyner noted back in 2010, Senator Patrick Leahy proposed a solution to this issue that would involve retired Supreme Court Justices taking the place of a Justice that recused themselves so that the Court would always have a bench of nine justices to hear any case. There’s a certain logic to this, of course. After all, retired Justices like Sandra Day O’Connor, David Souter, and John Paul Stevens are all already familiar with the procedures and practices of the Court and would have little trouble fitting in to hear a case on an ad hoc basis. Additionally, retired Supreme Court Justices are already used to fill in for Judges at the Court of Appeals  level, and sometimes even the District Court level. Justice O’Connor has done this many times since she retired in 2006. At the same time, though, Justice O’Connor is 81, and Justice Stevens is in his 90s, age is certainly a factor worth considering here.  Another possible idea would be to draw a replacement justice at random from among the Chief Justices of the Courts of Appeal (excepting, of course, the Court form which a particular appeal originated). Both solutions could potentially require Constitutional Amendments to be effective, though.

At this point, though, I think the Chief Justice’s words ring true. Justice Thomas and Justice Kagan, both of whom have recused themselves from cases in the past, have made the determination that they don’t need to do so this time. That decision should be respected.

That was 2008.

Newt Gingrich voiced enthusiasm for Mitt Romney’s Massachusetts health-care law when it was passed five years ago, the same plan he has been denouncing over the past few months as he campaigned for the Republican presidential nomination.

“The health bill that Governor Romney signed into law this month has tremendous potential to effect major change in the American health system,” said an April 2006 newsletter published by Mr. Gingrich’s former consulting company, the Center for Health Transformation.

Sadly the rest of the Wall Street Journal article this comes from is behind the paywall at the moment, but the gist is pretty clear, no?

Update: Via ABC News, here’s the relevant portion of the full Gingrich newsletter:

The most exciting development of the past few weeks is what has been happening up in Massachusetts. The health bill that Governor Romney signed into law this month has tremendous potential to effect major change in the American health system.

We agree entirely with Governor Romney and Massachusetts legislators that our goal should be 100% insurance coverage for all Americans. Individuals without coverage often do not receive quality medical attention on par with those who do have insurance. We also believe strongly that personal responsibility is vital to creating a 21st Century Intelligent Health System. Individuals who can afford to purchase health insurance and simply choose not to place an unnecessary burden on a system that is on the verge of collapse; these free-riders undermine the entire health system by placing the onus of responsibility on taxpayers.

The Romney plan attempts to bring everyone into the system. The individual mandate requires those who earn enough to afford insurance to purchase coverage, and subsidies will be made available to those individuals who cannot afford insurance on their own. We agree strongly with this principle, but the details are crucial when it comes to the structure of this plan. Under the new bill, Massachusetts residents earning more than 300% of the federal poverty level (approximately $30,000 for an individual) will not be eligible for any subsidies. State House officials had originally promised that there would be new plans available at about $200 a month, but industry experts are now predicting that the cheapest plan will likely cost at least $325 a month. This estimate totals about $4000 per year, or about 1/5 of a $30,000 annual take-home income.

While in theory the plan should be affordable if the whole state contributes to the cost, the reality is that Massachusetts has an exhaustive list of health coverage regulations prohibiting insurers from offering more basic, pared-down policies with higher deductibles. (This is yet another reminder that America must establish a cross-state insurance market that gives individuals the freedom to shop for insurance plans in states other than their own.)

In our estimation, Massachusetts residents earning little more than $30,000 a year are in jeopardy of being priced out of the system. In the event that this occurs, Governor Romney will be in grave danger of repeating the mistakes of his predecessor, Mike Dukakis, whose 1988 health plan was hailed as a save-all but eventually collapsed when poorly-devised payment structures created a malaise of unfulfilled promises. We propose that a more realistic approach might be to limit the mandate to those individuals earning upwards of $54,000 per year.

While the Commonwealth’s plan will naturally endure tremendous scrutiny from those who assert that the law will not work as intended, Massachusetts leaders are to be commended for this bipartisan proposal to tackle the enormous challenge of finding real solutions for creating a sustainable health system. I hope that Massachusetts’ initiative to provide affordable, quality health insurance for all continues to ignite even more debate around the subject of how to best address our nation’s uninsured crisis and the critical problems within the health system at large.

The Supreme Court has taken the somewhat unusual step of setting aside three days on its calendar just to hear the various aspects of the Constitutional challenge to the Patient Protection And Affordable Care Act:

The Supreme Court will hear arguments on President Obama’s healthcare law over a three-day span in late March.

The schedule further confirms the universal expectation that the court will issue a ruling on the healthcare law next June, at the height of the 2012 campaign.

The Supreme Court will begin on March 26 with one hour of arguments on whether it can reach a decision on the reform law before 2014. There is a possibility that a separate federal law will prevent the courts from ruling until the law’s individual mandate has taken effect.

On March 27, the justices will hear two hours of arguments on the core question of whether the mandate is unconstitutional.

And on March 28, the court will hear arguments on two issues: how much, if any, of the law’s other provisions can be upheld if the mandate is unconstitutional, and whether the health law’s Medicaid expansion is constitutional.

There hasn’t been another case in recent memory that’s been argued on this kind of schedule, and it no doubt reflects the Court’s own recognition of the complexity and importance of the issues involved. Additionally, setting each individual issues for argument on separate days allows the Justices to prepare for each argument individually rather than re-familiarizing themselves with all the briefs at once and spending an entire day in a 5 1/2 hour hearing.

There was no announcement today, but it doesn’t appear the Court has ruled yet on the various applications that have been filed by media entities to allow these arguments to be televised live. My suspicion is that they will deny that request.

C-Span has formally petitioned the Supreme Court for permission to televise the 5 1/2 hour oral argument on the Constitutionality of the Affordable Care Act:

Ruling on the health reform law is sure to be one of the most important Supreme Court cases of this generation and the court has budgeted more than 5 hours for the arguments. When the court decides next year if the government can require every American to buy health insurance or pay a fee, they’ll make a decision that effects every citizen in the country.

But unless the court changes current policy, none but the few Americans able to score a ticket or stand in line will be able to watch the arguments.

C-Span’s Brian Lamb sent a letter to Chief Justice John Roberts today asking him to permit C-Span to televise the health care oral arguments, which pit lawyers for 26 states the federal government.

“We believe the public interest is best served by live television coverage of this particular oral argument” Lamb says in the letter and adds the case “will affect every American’s life, our economy, and will certainly be an issue in the upcoming presidential campaign.”

No hearing at the Supreme Court has ever been televised. The arguments will be held in the end of March over 5 ½ hours. Lamb says the length of time “begs” for camera coverage. The chambers can seat up to450, but that includes lawyers for both sides, the public and the press.

Personally, I think think this is a great idea. There have been experiments with this idea at the Court of Appeals level and they’ve worked out spectacularly. Considering that this is perhaps the most significant case to be argued before the Court in decades, I think it’s entirely appropriate.

Here’s the letter from Brian Lamb:

Letter from Brian Lamb to Chief Justice Roberts

With the Supreme Court now on track to hear the lawsuit challenging the Constitutionality of the Affordable Care Act in March, with a June ruling likely, the political maneuvering is beginning. One of the more obscure arguments has been over whether any members of the Court should recuse themselves from hearing the case due to conflicts of interests. On the left, the argument that Clarence Thomas ought to recuse himself because of his wife’s involvement with Tea Party groups that have advocating for the law’s repeal has been around for months. As I discussed when I looked at that issue in February, as well as a post last October, there seems to be very little merit in the argument that Thomas himself has a conflict requiring recusal under the Canons of Judicial Ethics is a pretty far stretch to say the least, and completely without merit to say the most. More recently, some on the left have argued that both Thomas and Justice Scalia are disqualified because they have attending Federalist Society gatherings on a regular basis. To be honest, there’s even less support for this argument than the one advanced earlier this year, but of course this is politics not the law so that probably doesn’t matter to those advancing the argument.

Not surprisingly given the nature of this case, the right has it’s own recusal argument to make and it focuses on current Associate Justice and former Solicitor General Elena Kagan:

Conservative legal activists on Wednesday renewed their calls for Supreme Court Justice Elena Kagan to abstain from cases involving President Obama’s healthcare law.

Conservatives say Kagan should recuse herself from suits over the law’s individual mandate because the administration began planning its defense while she was solicitor general. Kagan has recused herself from dozens of cases because of her work in the Justice Department, but has shown no signs so far of sitting out healthcare suits.

The justices are slated to meet privately Thursday to discuss whether they should hear a challenge to the healthcare law’s constitutionality. Ahead of that meeting, the conservative Judicial Crisis Network (JCN) reiterated suspicions about Kagan’s objectivity.

“Her jump from advocate to judge on the same issue raises profound questions about the propriety of her continued participation in the case,” JCN said. “Moreover, the legitimacy of any decision where she is in the majority or plurality would be instantly suspect if she chooses not to recuse herself.”

The JCN paper cites previously released emails in which Justice Department officials discuss their preparations for defending the healthcare law in court. The documents do not provide concrete evidence that Kagan was personally involved in the planning, but JCN has inferred from the emails that Kagan played an active role

The groups paper [PDF] appears to be based on the same emails that are raising some eyebrows on the right today that show Kagan “excited” about the passage of the new health care law in March 2009:

At her confirmation hearing in 2010, now-Supreme Court Justice Elena Kagan that she “was not” asked at any time to give her opinion on the merits of the Obamacare legislaton. Newly released emails suggest that whether or not she was asked, Kagan was not shy about her enthusiasm for the bill that eventually became law.

Kagan, while serving as President Obama’s Solicitor General, exchanged emails with her then-colleagues in the Justice Department indicating her support for the Obamacare legislation when it was under consideration in Congress.

“I hear they have the votes, Larry!! Simply amazing,” Kagan wrote, in an email obtained by Judicial Watch, on the day Obamacare passed through Congress. Larry Tribe, a Harvard Law professor and Supreme Court attorney who served as “senior counselor for access to justice” in the Department of Justice (DOJ), replied to Kagan that the bill’s passage was “remarkable.”

“And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!” Tribe added in delight, and in derision for the pro-life Democrats.

There are two relevant pieces of law that govern recusal of Federal Judges. First, there’s 28 USC 455(a):

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Second, there is the Code of Conduct for United States Judges, specifically Canon 3(C)(1), which is codified at 28 USC 455(b) and covers circumstances where recusal is mandatory:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(a)  the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;
(c)  the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:

(i) a party to the proceeding, or an officer, director, or trustee of a party;
(ii)  acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
(iv) to the judge’s knowledge likely to be a material witness in the proceeding;
(e) the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy

The only relevant question in Kagan’s case is whether she was involved in formulating the legal strategy for the government’s defense in the lawsuits that had been filed against the Affordable Care Act even before she was nominated to the Supreme Court. The emails that have been released to date don’t strike me as reaching that threshold at all, though. The fact that Kagan, obviously a Democrat, was pleased over the passage of what was the most important piece of legislation of the First Term of the Administration she worked for is no surprise, and doesn’t necessarily create an ethical conflict, although there are some problematic areas that raise concern about whether the ethical lines would be crossed by Kagan sitting to hear the case. Jonathan Turley, who is by no means a conservative points them out:

Of greater concern, in my view, is a separate email exchange on March 21, 2010 (the day PPACA was passing the House) with her top deputy Neal Katyal. Associate Attorney General Tom Perrelli had send a message to a group of DOJ lawyers, including Katyal, notifying them that there was going to be a meeting the next day to plan for the litigation expected to challenge PPACA. Kagan was included in the mailing, which would seem to confirm her offices involvement in the litigation planning. As head of that office, it raises a serious appearance problem and may reflect additional conversations that could have occurred between her and Katyal or other lawyers in effort. This was already one of the top priorities of the Administration and one would expect a comprehensive team at Justice Department that would include the Solicitor General’s office.

At the very least information likes this raises questions that ought to be answered. The problem is, the Justice Department is refusing to release anymore emails or other documents that might shed light on Kagan’s involvement in the preparation of defenses to the litigation against the PPACA:

Back in July, some 49 members of Congress signed a letter asking DOJ to produce certain documents on then-Solicitor General Kagan’s involvement with the ObamaCare case. Four months later the Justice Department wrote back declining to produce the documents. In that letter, Assistant Attorney General Ronald Weich explained that the department has “grave concerns about the prospect of a congressional investigation into the pre-confirmation activities of a sitting Supreme Court Justice.” Justice Kagan, he added, had addressed the issue of her ObamaCare involvement during her confirmation hearings.

In a letter to U.S. Attorney General Eric Holder on Friday, GOP Sen. Lamar Smith noted that in rejecting the request for documents, the Justice Department “did not assert any legal privilege to support the decision but instead concluded it would be ‘unseemly’ to comply with my request.” If the Justice Department does intend to assert a legal privilege, he added, he’d like to be informed of the basis for it by Friday.

In her testimony at her confirmation hearings, Kagan said she was not involved in preparing defenses to the lawsuit, and as Turley notes, Attorney General Eric Holder at one point said publicly that efforts were made to shield Kagan from any such discussions:

“I can tell you that certainly, one of things that we did while she was solicitor general was physically-physically-literally move her out of the room whenever a conversation came up about the health care reform legislation . . . I can remember specific instances in my conference room when we were going to discuss that topic. We asked Justice Kagan to leave and she did.”

If that’s true then that may be enough to deal with this issue and answer the questions. But yet, as Turley notes, there is that email conversation, and there is the fact that Justice is refusing to release any more documents. At the very least, it strikes me that those documents should be released. If it’s true that Kagan wasn’t involved in litigation planning then the documents should reflect that. If they show that she was, however, then it strikes me that she may need to recuse herself. Recusal isn’t anything new for Kagan, though. During her first year on the Court, Kagan recused herself from more than half the cases that were heard because of her involvement with them as Solicitor General. If she was equally involved with the ObamaCare litigation before being elevated to the Court then she ought to consider doing the same here.

Lloyd Green likens Kagan’s position to that of another former Justice Department official, and political partisan, who was elevated to the Supreme Court:

Elena Kagan meet Bill Rehnquist. That Bill Rehnquist.

Like Kagan, Rehnquist was once young, smart, and ambitious. Like Kagan, Rehnquist served as a political appointee at the Department of Justice. And like Kagan, Rehnquist was once an Associate Justice of the United States Supreme Court.

But Kagan and Rehnquist have one more thing in common. And it is a big one. As a Supreme Court Justice, each was asked to pass upon the assertions of constitutionality invoked by their former bosses.

In the case of Justice Rehnquist, the Supreme Court was confronted by Richard Nixon’s claim of Executive Privilege in connection with the Watergate Tapes. Rehnquist had served in the Nixon Justice Department under John Mitchell. And, Nixon had referred to him as “Renchberg” in a taped conversation. Rehnquist was on the Team.

However, faced with Nixon’s appeal from a lower federal court order directing Nixon to hand over the Watergate Tapes, Rehnquist recused himself and allowed the Supreme Court to decide the case without his input or vote.

In the end, the Court rejected 8-0 Nixon’s claim of Executive Privilege. Nixon went on to resign after the House Judiciary Committee subsequently voted to impeach Nixon.

A legal ethics expert, however, doesn’t believe that either Kagan or Thomas should be required to step aside in this case:

James Sample, a law professor at Hofstra University School of Law who studies recusal issues, said the outside groups’ calls are misplaced.

“I am generally one of the most pro-recusal scholars you can find, and yet I think in this instance those who are trying to argue for the recusal of Justice Kagan and Justice Thomas alike are opportunists who are trying to use a mechanism that just doesn’t fit,” he said.

The standard for recusal is whether a judge’s or justice’s impartiality can be reasonably questioned.

Mr. Sample said Justice Thomas’ judicial approach is well-known and it’s unlikely that his wife’s associations would influence him in this case. As for Justice Kagan, he said her “extraordinarily limited exposure to the health care policy when she was in government service is, I think, just a nonissue.”

Should Elena Kagan do the same thing as Rehnquist? It’s difficult to say based on the information that has been provided publicly and, ultimately this is a question that is within the discretion of the individual Justice to make. No other member of the Court is going to require Kagan to recuse herself, and there’s nothing that Congress can do about this. My preference would be that the Justice Department release the documents so that the public can be assured that there is no impropriety here, but if Justice Kagan believes she can decide this case on the law and not based on her political positions and that she is not conflicted out as discussed above(and if Justice Thomas believes the same), then I’ll take her word for it absent evidence to contrary.

The Supreme Court announced today that it will in fact rule on the Constitutionality of the PPACA during its current term, setting down an argument schedule that is likely to stand as one of the longest in the history of the Court:

WASHINGTON — The Supreme Court on Monday agreed to hear a challenge to the 2010 health care overhaul law, President Obama’s signature legislative achievement. The development set the stage for oral arguments by March and a decision in late June, in the midst of the 2012 presidential campaign.

The court’s decision to step in had been expected, but Monday’s order answered many questions about just how the case would proceed. Indeed, it offered a roadmap toward a ruling that will help define the legacy of the Supreme Court under Chief Justice John G. Roberts Jr.

Appeals from three courts had been vying for the justices’ attention, presenting an array of issues beyond the central one of whether Congress has the constitutional power to require people to purchase health insurance or face a penalty through the so-called individual mandate.

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also whether, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.

Even the Obama administration, while arguing that the mandate is perfectly constitutional, has said that it is “absolutely intertwined” with two other provisions — one forbidding insurers to turn away applicants, the other barring them from taking account of pre-existing conditions.

The 11th Circuit ruled for the administration on another point, rejecting a challenge to the law’s expansion of the Medicaid program. The Supreme Court also agreed to hear an appeal from that ruling.

The 26 states, represented by Paul D. Clement, a former United States solicitor general, had argued that Congress had exceeded its constitutional authority by expanding the eligibility and coverage thresholds that states must adopt to remain eligible to participate in Medicaid.

The problem, Mr. Clement wrote, was that “Congress did not tie its new conditions only to those additional federal funds made newly available under” the Affordable Care Act. “It instead made the new terms a condition of continued participation in Medicaid, thereby threatening each State with the loss of all federal Medicaid funds — on average, more than a billion dollars per year — unless it adopts the act’s substantial expansions of state obligations.”

On Monday, the justices agreed to consider that question

The Supreme Court will also hear argument on an issue that could delay any ruling on the merits of the laws Constitutionality for several years. As I noted back in September, the 4th Circuit Court of Appeals in Richmond threw two lawsuits over the law out on the ground that they were barred by the Anti-Injunction Act, a law which prohibits taxpayers from challenging a tax in Federal Court until after that tax has actually been assessed and paid. This isn’t an argument that any of the other Courts that heard the law had accepted, and even the Federal Government didn’t make that argument in their briefs in any of the lawsuits. Nonetheless, if the Court accepted the Fourth Circuit’s reasoning, it would result in any decision on the merits being delayed for years.

The most striking thing about the Court’s decision today is perhaps the amount of time that the Court will be devoting to this case. as Lyle Denniston explains:

Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours — probably in March — for oral argument.  The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it.  It is unclear, at this point, whether all of the cases will be heard on a single day.

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.

(…)

The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.   The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments.   There is also a hot political debate going on across the country now on federal vs. state power, and the Court’s coming decision is likely to become an issue in that debate — especially since the final ruling is expected to emerge from the Court in June, in the midst of this year’s presidential and congressional election campaign.

Indeed, one might argue that the most important debate of the 2012 Presidential Campaign will actually take place in the Supreme Court’s courtroom in March 2012. The result in this case is likely to shape a good deal of the debate during the General Election campaign that will just start getting heated up when the decision is likely to get handed down. If the law is upheld, it’s likely to embolden the base of the Republican Party who has spent the last two years campaigning on opposition to the President’s health care law, it’s also likely to embolden the President’s supporters and be seen as a huge political victory for him. If the law is struck down, the same thing is likely to happen. And, if the Court punts on the issue by invoking the Anti-Injunction Act, then the health care debate will continue and Republicans will make repealing ObamaCare a huge part of their re-election strategy. In any case, with four Justices over age 70, and three over 75, the issue of retirements and Supreme Court confirmation is likely to be a huge issue this election cycle, both in the Presidential race and in the Senate elections as the GOP tries to retake majority control of the upper chamber.

The fate of the law is unclear, obviously. The natural inclination given the state of Commerce Clause precedent is to assume that the law will be upheld, as I argued nearly a year ago. Also worth noting, although not entirely decisive, is the fact that the majority of Courts that have heard arguments on the law’s Constitutionality have upheld the law. While the Court may not take polls of the Circuits when it makes its decision, they are no doubt aware of this fact and it’s going to be hard to ignore the fact that most Federal Judges have ruled that the law is fully authorized by the Court’s own precedents. Of course, the Court could decide to distinguish those precedents, or even overrule them to some extent, although both are exceedingly rare events. Finally, of course, the Justices could decide to adopt the Fourth Circuit’s argument on the AIA, thus returning the health care debate to the rough-and-tumble of politics for at least the next four years.

This will no doubt be one of the most closely watched cases in years. One would hope that the Court might actually open up its Chambers and allow these important arguments to be broadcast to the public, but that’s probably unlikely. The best we can hope for in that regard, I think, is that they follow the procedure they have adopted in other high profile cases in recent years and allow the recording of the arguments to be made public immediately upon conclusion of the hearing. It would be beneficial to the public to actually hear these arguments, I think.

If you’re interested in keeping up with the case, one of the best places to keep an eye on will be SCOTUSBlog’s tracking page for the case. They’ll post all the briefs that get filed there when they get submitted, as well as analysis from legal experts on both sides of the many issues involved here. And, of course, we’ll keep on top of it here at OTB as well.

A three-judge panel on the D.C. Circuit Court of Appeals — comprised of two judges appointed by Republican presidents and one by a Democrat — upheld the constitutionality of a key section of President Obama’s health care law in a ruling released Tuesday.

Senior Judge Laurence Silberman and Judge Harry Edwards ruled to uphold the law — specifically the mandate that requires Americans to purchase health insurance — on the merits. Judge Brett Kavanaugh dissented from their ruling, but he, too, would have ruled against the plaintiffs seeking to overturn the mandate. His opinion argued that federal courts lack jurisdiction to enjoin the mandate, which functions similarly to a tax.

Silberman, a conservative all-star, was first nominated to the D.C. Circuit by Ronald Reagan, and became a senior judge when Kavanaugh — a George W. Bush nominee — was confirmed to the court. Edwards was nominated by Jimmy Carter.

In their opinion, Silberman and Edwards conclude that penalizing individuals for failing to obtain health insurance is within Congress’ powers under the Constitution’s Commerce Clause.

It is worth nothing that DC circuit court is arguably the most important of the US appeals courts (at least those inferior to SCOTUS).  This was an affirmation of the lower court’s ruling, which had upheld the constitutionality of the PPACA.

More from the LAT:  In a surprise, D.C. appeals court upholds healthcare law

Giving a surprise boost to the new healthcare law, one of the nation’s most closely watched federal courts ruled Tuesday that law’s requirement that most Americans get health insurance is constitutional.

The split opinion by the conservative-leaning U.S. Court of Appeals for the District of Columbia marks the second time this year that a federal appellate court controlled by Republican appointees has backed the law and its insurance mandate

And though the ruling has little practical impact, it comes just as the U.S. Supreme Court begins considering the constitutionality of the landmark legislation that President Obama signed last year.

In terms of the appellate court scorecard:

With the opinion, three federal appellate courts – in Washington, in Richmond, Va., and in Cincinnati, have now rejected substantive challenges to the healthcare law. Only the 11^th Circuit U.S. Court of Appeals in Atlanta backed such a challenge.

In regards to the author of the opinion:

One of the GOP appointees–Judge Laurence H.  Silberman–was appointed to the bench by President Reagan and is considered a  conservative intellectual leader on the court. He won plaudits from gun rights groups recently for writing an opinion that the District of Columbia’s handgun ban was unconstitutional.

But in a concise majority opinion in the healthcare case, Silberman categorically rejected the central critique Republican attack on the healthcare law’s expansion of federal regulation of healthcare.

Interesting, the dissenting judge based his position not on the substance of the case, but on the notion that he could not review the law until after it had actually gone into force in 2014.