My students then received a lesson about the 10th amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because education is not explicitly mentioned in the U.S. Constitution, education is a power that belongs to the states.

Tell that to U.S. Secretary of Education Arne Duncan.

The U.S. Department of Education unveiled its 50-state strategy on Monday. The strategy, a neglected measure of the 12-year-old No Child Left Behind Act (NCLB), readdresses the uneven distribution of effective teachers across low- and high-poverty schools. It requires states to create new plans that address teacher distribution by April 2015, and Missouri is not immune.

For fewer than half the states that submitted plans post-NCLB, many have not been updated in several years. Below is a table from Missouri’s original analysis identifying core academic subjects (math, science, etc.) taught by highly qualified teachers. The data, though last revised in 2006, shows a lower percentage of highly qualified teachers in high-poverty schools.

Missouri is one of 42 states to receive a waiver from parts of NCLB, including the infamous accountability decree, “All students will be proficient by 2014.” In May, the Missouri Department of Elementary and Secondary Education (DESE) submitted a request for a one-year extension to the 2012 waiver. DESE will have to renew again next May.

Not coincidentally, the Department of Education’s requirement for updated teacher equity plans will have to be submitted one month prior to DESE’s 2015 extension request. The Department of Education gets equity plans, Missouri gets NCLB waiver. The Department of Education gets unified curriculum, states get Race to the Top money. “You scratch my back, and I’ll scratch yours” seems to be the Department of Education’s M.O.

Of course, teacher equity is an issue that ought to be addressed, but the U.S. Constitution did not grant federal authority over education. This power belongs to Missourians. This whole incentive game the Department of Education is playing isn’t fooling anyone. Teacher equity may be a problem, but federal overreach is a bigger one.

The post I’ll Scratch Your Back, If You Comply With This Federal Mandate appeared first on Show-Me Institute.

These are our resolutions for 2013:

1. Ask not what government can do for you; ask what you can do for yourself — without being a burden to others. Recognize, and encourage others to recognize, the grave danger that is posed by a supposedly “caring” government which is in the habit of making promises it cannot keep.
2. Do not go quietly into the dark night of buying into arguments about “fairness” and “social justice” as an excuse for the limitless expansion of government. You will be accused of being heartless, cruel, just plain stupid, or worse. But do not let others define you, or dismiss you — when they are the ones who press ahead in ignoring the lessons of history, common sense, and genuine humanity.
3. Always keep in mind that our history and form of government (unlike many other hopeful but fleeting “democracies”) were not built on the proposition of One Man, One Vote, One Time. The great debate in the U.S.A. about the size and scope of government did not end with the 2012 elections. But the proponents of big government are seeking cloture — attempting to discredit and marginalize those who continue to believe in liberty, limited government, and individual responsibility as the essential pillars of democratic self-rule and human progress.
4. Write out — and be prepared to defend — your own Declaration of Independence against the prevailing orthodoxies of the Hollywood/academic/media elite, who favor every kind of “free lunch” — whether it is universal, “free” health care or universal, “free” college education even if it means severely limiting individual choice, undermining quality, and raising the real costs of health care and higher education.
5. Do not shy away from the battle of ideas as it continues to evolve inside your own family, your circle of friends and acquaintances, your community, and the state of Missouri. Ideas have consequences, and it is time to consider the catastrophic consequences of thinking it is possible to expand government spending and mandates without destroying jobs and economic growth — and condemning young people to the bleakest of futures. You only have to look at the extraordinarily high rates of unemployment and under-employment among young people in much of Europe (the nations teetering on the brink of bankruptcy) to appreciate the magnitude of the threat.

There is solace in the wisdom of our Founding Fathers, who looked upon anti-federalist sentiment at the state and local levels as an important bulwark in an enduring democracy. They used the words “the states” and “the people” interchangeably. Thus, the 10th Amendment, the final element in the Bill of Rights drafted in 1789 as part of the U.S. Constitution, famously states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

We the people can begin to reassert the principles of liberty and limited government by stopping the growth of crony capitalism (and crony unionism) at the local and state levels which occurs when officials award tax credits, Tax Increment Financing (TIF), and other subsidies to politically favored businesses and constituencies.

Along with other states, we in Missouri can say “no” both to the expansion of Medicaid in our state and to the creation of a state-run health insurance exchange that would implement the hugely expensive, deeply flawed, and greatly unpopular Affordable Care Act (aka Obamacare).
The battle for liberty, freedom, and responsible self-government continues. Indeed, it is never-ending.

Andrew B. Wilson is a resident fellow and senior writer at the Show-Me Institute, which promotes market solutions for Missouri public policy.

The post Five New Year’s Resolutions for Enhancing Liberty – And Pulling Back from the ‘Fiscal Cliff’ appeared first on Show-Me Institute.

For states, that is a huge distinction with major policy implications. Many employers under the ACA can be fined/taxed if they do not provide health insurance to individuals who qualify for the federal government’s subsidies. However, if a state does not build its own exchange, then no employee would qualify for the subsidy, and therefore employers in the state would not be subject to the tax because none of their employees would meet the criteria set out in the law.

Then there is the national implication. If the federal government cannot collect those taxes/fines from employers, then the ACA — already rife with budgetary gimmickry — becomes even less sustainable and more fiscally dangerous. If enough states choose not to create exchanges, the ACA would become basically unworkable. (Credit goes to Cannon for really hammering this point home over the last year. You can find his full study on the matter here.)

Not surprisingly, it was only recently that Washington woke up to this reality. The Internal Revenue Service has now put forward an administrative rule that would expand the subsidies and taxes to federal exchanges, despite what the law says. Of course, there are some barriers to the IRS just making up new taxes. Enter the Oklahoma suit:

Under Defendants’ Interpretation, [this rule] expand[s] the circumstances under which an Applicable Large Employer must make an Assessable Payment . . . with the result that an employer may be required to make an Assessable Payment under circumstances not provided for in any statute and explicitly ruled out by unambiguous language in the Affordable Care Act.

Plaintiff believes . . . that subjecting the State of Oklahoma in its capacity as an employer to the employer mandate would cause the Affordable Care Act to exceed Congress’s legislative authority; to violate the Tenth Amendment; to impermissibly interfere with the residual sovereignty of the State of Oklahoma; and to violate Constitutional norms relating to the relationship between the states, including the State of Oklahoma, and the Federal Government.

Earlier this year, Christie Herrera, formerly of the American Legislative Exchange Council (ALEC), and I wrote an op/ed for the Southeast Missourian on the issue of state exchanges. As we made clear, Missouri has not, and should not, implement a state insurance exchange under Obamacare for a variety of reasons. One of the most important reasons out there is that by declining to create the exchange, the state could avoid a bevy of burdensome taxes on employers. Granted, there is no telling exactly how a court will rule on this and to what extent the law could be saved despite itself, but the Oklahoma challenge begins the process of determining once and for all whether the law means what it says, or means something else completely.

The post Oklahoma Challenges Health Care Tax In Federally-Run Insurance Exchanges appeared first on Show-Me Institute.

First, is PPACA severable — that is, if one part of the law is unconstitutional, may the rest of the law remain, or must the entire law be thrown out? Readers can find extended coverage on the severability issue here.

Second, is PPACA’s Medicaid expansion constitutionally permissible? Congress’ broadening of Medicaid’s eligibility rules affects not only the federal budget but the budgets of the states, which, along with the federal government, fund state-managed Medicaid programs. By expanding the pool of who can receive Medicaid, Congress is raising the states’ costs; the states’ contributions to the program would have to increase to pay for the greater number of beneficiaries. That is bad news for already tight state budgets. Medicaid is a “voluntary” program technically, but practically, states have come to rely heavily on the federal dollars associated with the program. Foregoing PPACA’s Medicaid expansion provisions also probably means foregoing those federal dollars.

Therein lies the issue: Do PPACA’s revisions to Medicaid, which expand the program’s eligibility requirements, constitute permissible federal pressure on the states stemming from Congress’ spending power, or does it go beyond “pressure,” constituting “compulsion” in violation of the 10th Amendment? For those following the arguments at home, listen for whether and how the justices use the word “compulsion” during the hearing. If the Court believes the changes to the law are “compulsion,” it may be inclined to say the Medicaid expansion goes too far, violating the 10th Amendment.

The Court is expected to rule on this week’s oral arguments in June or July.

The post Previewing Day Three Of Health Care Reform Oral Arguments appeared first on Show-Me Institute.

Under this amendment, the government would be denied the authority to prevent citizens from offering or accepting direct payment for health care services, and it would not be permitted to substantially limit the purchase or sale of health insurance in private health care systems. In addition to recognizing that this is a sort of common-sense freedom that ought to be enshrined in the Constitution, the proponents of SJR 25 are aware that state constitutions are permitted to afford liberties above and beyond those secured under the U.S. Constitution, and that there is a possibility the courts might find that even a federal statute cannot violate those additional rights.

This proposed amendment has sparked the interest of some in the media, including an article from the St. Louis Beacon (authored by William Freivogel, director of the School of Journalism at Southern Illinois University–Carbondale) with a headline suggesting that, if passed, SJR 25 would itself violate the U.S. Constitution. I quickly posted a rejoinder in the comment section of that article, but I felt it would be worthwhile to restate in this forum the points I made in those comments.

There are four major constitutional issues raised by the potential federal health insurance mandate and Sen. Cunningham’s proposed amendment: 1) Does the proposed law fit within the powers that the Constitution gives to Congress? 2) Does the proposed law infringe upon powers reserved to the states by the Tenth Amendment? 3) Does the requirement to buy health insurance unconstitutionally infringe upon the individual liberties secured to American citizens under the First, Fifth, and Ninth Amendments? And, 4) Does the Supremacy Clause allow for the enforcement of a federal statute even if that statute conflicts with individual rights protected under a state constitution? I’ll address these points in order.

As we all remember from high school, congressional authority is limited to those powers explicitly granted by the Constitution. In this case, the question would be whether the Constitution gives Congress the authority to punish citizens for refusing to purchase health insurance.

Those backing the bill suggest that this authority is part of part of Congress’ power “to regulate commerce … among the several states[.]” It is true that courts have generally interpreted this power very broadly, resulting in the decision that a farmer named Filburn was bound by agricultural regulations even though he was not taking his grain to market, as well as the decision that Angel Raich was subject to federal drug laws even though her medical marijuana was homegrown and neither bought nor sold.

But courts have also recognized limits to congressional authority under the Commerce Clause. In U.S. v. Lopez, the Supreme Court held that the Commerce Clause did not permit Congress to create a federal law banning possession of firearms in a school zone. In U.S. v. Morrison, the court struck down a law that addressed the subject of gender-based violent crime. The primary reason that the court struck down the laws in Lopez and Morrison was that the subjects Congress sought to regulate lacked a clear impact on commerce among the states.

While much of the health insurance industry is handled within the bounds of individual states (it is very unusual to be able to purchase insurance from a company in a state other than the one in which you are domiciled), I believe that courts will be inclined to find that health insurance as a whole is an issue with a sufficient connection to interstate commerce to permit congressional regulation. But, if Congress passes a bill mandating that individuals must either buy health insurance or face financial sanctions, courts will have to answer a very specific question: Does the power to regulate interstate commerce give Congress the authority to penalize citizens who do not wish to engage in commerce? As Prof. Randy Barnett pointed out at a recent Heritage Foundation debate, the Supreme Court has never faced such a question, so we cannot be certain how it will be answered. I tend to agree with Barnett that the Court’s response will likely hinge on the solicitor general’s ability to explain which aspects of citizens’ lives (if any) would remain beyond the reach of congressional regulation if the Court permitted these mandates to be enforced.

One of the law professors cited by Freivogel argued that even without relying on the Commerce Clause, authority for the health insurance mandate could be found in Congress’ power “to lay and collect taxes … [to] provide for the … general welfare of the United States[.]” I disagree. While this provision might permit the creation of a tax-based public health insurance system like Medicare that all workers pay into, this is not what is anticipated in the insurance mandate under consideration, which is neither tax-based nor public. Nor would the alleged “tax” be collected from all workers. Furthermore, even if the fees for failing to purchase health insurance were classified as a tax, Congress is specifically denied the authority to impose capitation taxes “unless in proportion to the census,” a requirement that this proposal does not seem to meet.

Assuming the courts were to determine that Congress does have the general authority to impose a health insurance mandate, the next question would be whether the issue should be reserved to the states under the Tenth Amendment. While Congress has for decades been active on the subject of health care, this does not necessarily imply that Congress may remove state governments’ ability to decide whether their citizens should be punished for failing to purchase health insurance. In fact, this is an issue that several states have previously dealt with, in which at least one state (Massachusetts) has adopted such a mandate and a number of other states have considered — yet refrained from — doing the same. Federal courts have previously been very willing to permit congressional interference even in areas that were traditionally the sole province of the states, but considering the current ideological composition of the Supreme Court, it is possible (although, admittedly, unlikely) that a majority might take this opportunity to redefine (or restore) the balance of power between the federal government and the states.

Most of the arguments I’ve heard so far regarding the proposed health insurance mandate have neglected to address whether it might violate the First, Fifth, or Ninth Amendments, but I think this is an oversight. The Supreme Court has previously recognized that the Constitution protects citizens’ rights to associate with others of their choosing, to enter into contracts, to make their own decisions regarding health care, and, of course, their right to privacy. A violation of any one of these rights could be sufficient to invalidate the health insurance mandate.

While some people may not carry health insurance because it is unaffordable, many choose not to purchase health insurance. Some people’s religions may not permit the use of modern medicine, while others may not believe it to be effective. Still others are simply confident enough in their propensity for health that they are willing to risk the costs of illness or injury in order to direct their money to concerns that they believe to be more pressing. And there are some who, recognizing that most people pay far more to insurance companies than they are ever likely to need for their own treatment costs, would prefer to self-insure by creating their own health fund. For each of these people, a congressional directive to purchase a health insurance policy would mean giving up a huge amount of money — as well as a significant amount of privacy — committing themselves to a contract for goods and services that they do not want, and in some cases may be prohibited from using.

There is a principle in American law that says the government may not punish someone for exercising a constitutional right, and neither may it offer a benefit on condition of the citizen’s willingness to refrain from exercising a constitutional right. In the case of an individual health insurance mandate, the government would be telling its citizens that if they choose not to associate with an insurance company by entering into a contract under which they will be required to pay large sums of money while also disclosing private information about their health, they will be subject to very large fines. I think that this is clearly an infringement of some, if not all, of the constitutional rights listed above.

Unfortunately, establishing an infringement of rights does not end the analysis. In fact, the Supreme Court has long permitted infringement of these kinds of liberty, as long as the government could advance what the court considered to be a sufficiently important interest in doing so. In the case of the individual health insurance mandate, the goal advanced by the government would be to bring about slightly lower insurance premiums and, thus, to increase the number of people with access to health care. This is just a hunch, but I suspect that courts will not find this interest sufficiently compelling to justify forcing citizens to purchase coverage that they do not want and may have no intention of using, particularly when doing so necessarily requires an invasion of their privacy.

My final point is that if the courts find that the U.S. Constitution does not afford citizens protection from being forced to participate in a health care system, the courts will have to decide whether the Supremacy Clause permits a federal statute to be applied in such a way that it violates an individual freedom recognized by a state constitution. As I pointed out in my first comment, it is very possible — perhaps even likely — that the courts will decide that these state constitutional amendments do not bind the federal government. It is important to note, however, that this sort of holding would not strike these provisions down as “unconstitutional.” Rather, it would simply prevent their application against the federal government — perhaps foiling the hopes of the state constitutions’ drafters, but certainly not preventing the effectiveness of the provision against state governments and their subdivisions.

The post Health Care Reform and Constitutional Limits appeared first on Show-Me Institute.

When the Springfield News-Leader expressed interest in running the op-ed, they asked me to trim it down by 50 words so that it would fit their publishing parameters. As I hope readers will see, an op-ed’s final form rarely allows the author to offer a comprehensive picture of all the information they would convey if space were no constraint. Perhaps as a result of this necessary brevity, some of the News-Leader‘s readers have posted a few skeptical comments about my op-ed, so I’d like to take this opportunity to respond to the points they raise.

The first issue I’d like to address is that of my motives for writing on this topic. The commenter writing under the name “Ray Smith” suggested that I am part of a general effort to “undermine public education,” and that I have simply seized upon President Barack Obama’s “Race to the Top” initiative (which, in part, promotes the expansion of charter schools) as an opportunity to promote my own agenda.

I do have one comprehensive, all-encompassing agenda when it comes to the subject of education, and I don’t care who knows it. I want to make sure that all parents have the greatest possible range of options when it comes to deciding where their children will be educated. While I, myself, am a proud product of an excellent public school system, it does not matter to me in the slightest if parents prefer traditional public schools, charter schools, parochial schools, or secular private schools. All that concerns me is that children get the best available educations — and I firmly believe that the greatest likelihood of achieving that goal is to fashion education policy in such a way that parents can vote with their feet if they decide a school is not meeting their child’s needs.

As should be clear, many parents do not believe that their local traditional public schools are the best educational option for their children — and, with that being the case, it makes the most sense to help those parents find alternatives that will serve their families better. I suggested in my op-ed that, to the extent that charter schools expand the range of options available to parents, they serve as a step toward this goal. Thus, expanding charter school availability represents good policy. In my mind, it is merely a bonus that the best academic research is showing that most (though far from all) charter schools are performing as well as or better than their traditional public school counterparts when it comes to certain measures of academic achievement.

Which brings us to Mr. Smith’s suggestion that I believe charter schools to be a “magic bullet” that will solve the education problems rampant in our state — and his intimation that I was ignoring evidence that I did not like. To the contrary, when writing the op-ed, I wanted to make sure that I pointed out the evidence in our own study that calls into question whether charter schools always generate better results than traditional public schools. Mr. Smith correctly points out that the Stanford study shows that a significant number of the nation’s charter schools appear to be attracting students, even though the schools do not currently appear to measure up to their traditional school counterparts in regard to academic achievement as measured by standardized tests. The reason I addressed the Stanford study in the op-ed was because the authors of the recently released Show-Me Institute study did not have access to research that isolated Missouri’s charter schools, and I believed that it would be valuable to highlight the fact that, in spite of the Stanford study’s broader findings, the data do suggest that Missouri’s charter schools are performing better than most.

Here at Show-Me Daily, I can address the Stanford study’s findings a little more broadly. For charter opponents, of course, the suggestion that some charter schools are not improving their students’ academic achievement is a clear signal that these schools need to close. Maybe … but maybe not. I have previously stated on this very blog that I do not generally oppose the closure of especially bad charter schools. But the facts also bear out that official action is not necessarily needed to close these schools, because in cases where the situation is truly bad, parents will voluntarily move their children to a different school and that bad school will fail for lack of funding (much as any other business would).

Also,as I note in the op-ed, parents consider a wide array of factors when deciding where to send their children to be educated — and, for many parents, academic achievement may not be the most important factor. So, if a charter school lags a little bit behind its traditional charter school counterparts in academic performance, but dozens of parents still want to send their children there, maybe government officials shouldn’t force its closure. After all, we don’t allow government officials to tell wealthy parents what factors they can consider in choosing a school for their children, so why should we assume that government officials are within their rights to tell lower-income parents what factors they can consider?

And, finally, I will add that I would actually prefer that Missouri not seek “Race to the Top” funding. In my opinion, the Tenth Amendment should preclude the federal government from interfering with educational matters, because they have always been reserved to the states. While I do think it would be good policy to expand the availability of charter schools in our state, if Missouri’s legislators are not persuaded that a particular policy is the best idea for our families, they certainly shouldn’t adopt it simply because the federal government is dangling money out there as an incentive.

The post In Which the Author’s Secret Agenda Is Made Plain appeared first on Show-Me Institute.

• Reform tort liability laws.
  Defensive medicine needlessly drives up medical costs and creates an adversarial relationship between doctors and patients.

Now, to be clear, this is the last of the seven recommendations and the least discussed within the paper, but how do they mean for it to apply? This exact issue is being discussed all over the web. It also appeared in that great op-ed from the Whole Foods CEO that I linked to yesterday.

The health care bills being discussed are, as you all know, part of a federal issue that has tremendous effects on the states. But, because it is for the most part a federal issue, I’ll stick with how tort reform might be implemented nationally. I fully support tort/malpractice reforms in federal courts. But only a very small percentage of malpractice claims are filed in federal court — usually claims against a veterans hospital, or something like that. The vast majority of malpractice cases occur in state courts, and just four years ago Missouri passed greatly needed comprehensive changes to the state’s malpractice system.

So, are supporters of tort/malpractice reform talking about just changing the malpractice system at the federal level, which would probably be a good thing but would only affect a very low percentage of total cases filed? Are they talking about encouraging states to reform their own malpractice laws, which Missouri has already done very successfully and which I fully supported at the time and still do? Or — stay with me, here — are people who generally support states’ rights arguing in this instance for changing the law so that tighter federal laws would replace and overrule state laws in malpractice cases? I realize that it is incomprehensible that someone, especially a politician, would generally support doing things one way but change that opinion in an instance where it would work against you. (Please note dripping sarcasm.) So, which of the three is it?

I have to fear it is the latter, which is also the only one of the three possibilities I don’t support. Civil tort laws have long been the province of the states (I’ll stand corrected by any lawyers in the audience). Just because a federal takeover/usurpation in this instance might fall along the lines of something I support in general (tighter malpractice laws) does not mean I am going to give up on the 10th Amendment.

Missouri succeeded in making significant improvements to how our system deals with civil justice and malpractice a few years ago. It is my hope that Illinois will also do so soon. However, this is still something for the states to determine, rather than the federal government.

The post Let’s Talk About Tort Reform! appeared first on Show-Me Institute.

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