Tag Archives: Tom Coburn

What You Need to Know about the Senate’s Obamacare “Vote-A-Rama”

It’s not a carnival ride—although it might prove even more adventurous. The Senate’s consideration of health-care legislation will soon result in a grueling series of votes dubbed “vote-a-rama.”

After 20 hours of debate on the budget reconciliation measure, equally divided between the majority and minority parties, the Senate will complete consideration of all pending amendments, with the process’ conclusion typically determined when senators exhaust all the amendments they wish to offer—not to mention themselves.

Here’s what you need to know about “vote-a-rama.”

1. It’s Physically Demanding

The “vote-a-rama” process during consideration of the 2010 reconciliation bill that “fixed” Obamacare provides an example. On Wednesday, March 24, senators began voting on amendments at 5:32 PM. Nearly nine hours later, at 2:17 on the morning of Thursday, March 25, senators had completed votes on 29 amendments. The Senate then took a brief break, re-convened at 9:45 the same morning, and disposed of a further 12 amendments over an additional four-plus hours, with a vote on final passage at 2 PM on March 25.

For 20-something or 30-something staffers—let alone senators several times their age—this lengthy process can prove grueling, with long hours, late nights, lack of sleep, and little food (or bad food) the norm.

2. It’s Mentally Confusing

Between votes on amendments, senators usually allow for brief one-minute speeches by the amendment’s proponent and an opponent (generally the majority or minority floor manager of the bill). However, as Senate procedural expert James Wallner notes, that habit has derived from custom and unanimous consent, not any formal rule. If any senator objects to the brief “well speeches” as part of “vote-a-rama,” then the Senate will vote on amendments without any debate or a summary of what the amendment does.

Even with the brief summaries by amendment sponsors, it’s often difficult for senators—and particularly Senate staff—to understand exactly what’s going on down on the Senate floor. Amendment text can occasionally change at the last minute, as can the sequence of amendments offered. On occasion, senators may have to “fly blind” without clear guidance or recommendations from their staff on how to vote. Coupled with the long hours and lack of sleep (for members and staff alike), it’s a recipe for mistaken votes and confusion.

3. It’s Hard to Pass Amendments with a Simple Majority…

As Wallner noted in an article earlier this week, the Senate’s rules essentially give preferential treatment to the underlying reconciliation bill, making it difficult to craft amendments that can pass with a simple (i.e., 50-vote) majority. The amendment must be germane (i.e., relevant) to the underlying bill, and cannot increase the deficit.

Moreover, to pass with a simple majority, an amendment must also comply with the six-part “Byrd rule” test. For instance, an amendment may not have only an incidental fiscal impact, make programmatic changes to Title II of the Social Security Act, or exceed the jurisdiction of the committees who received the reconciliation instructions (in this case, the Senate Finance and Health, Education, Labor, and Pensions committees). Other than simple motions striking particular provisions, amendments will face a difficult time running the procedural gauntlet necessary to pass on a 50-vote threshold.

4. …But It’s Easy to Get Amendment Votes

Even if an amendment does not comply with the budget reconciliation rules, senators can still offer a motion to waive those rules. The motion to waive requires the approval of three-fifths of senators sworn (i.e., 60 votes), which often does not materialize, but the motion to waive provides a way to get senators on the record on a specific issue. Many votes in a “vote-a-rama” series consist of a “motion to waive all applicable budgetary discipline”—i.e., the “Byrd rule” and other restrictions that make passing an amendment with a simple majority difficult.

5. It Will Result in Messaging Amendments

Perhaps the classic example comes from the Obamacare “vote-a-rama” in March 2010, when then-Sen. Tom Coburn (R-OK) offered an amendment that included the following language:

(b) Prohibiting Coverage of Certain Prescription Drugs—

(1) In general.–Health programs administered by the Federal Government and American Health Benefit Exchanges (as described in section 1311 of the Patient Protection and Affordable Care Act) shall not provide coverage or reimbursement for—

(A) prescription drugs to treat erectile dysfunction for individuals convicted of child molestation, rape, or other forms of sexual assault;

The “No Viagra for Sex Offenders” amendment drew no small amount of attention at the time, and led to political ads being run against the Democrats who voted against it (as some predicted prior to the amendment vote).

Democrats will almost certainly offer similar messaging amendments this year, including amendments unrelated to the bill, or even health care. They may offer amendments regarding the Russia investigation—those would likely be subject to a 60-vote threshold, as foreign policy is not germane to a budget reconciliation bill, but if Democrats wish to get Republicans on record, any vote will do.

Doubtless Democrats will offer amendments related to Donald Trump’s taxes—the reconciliation bill is in the jurisdiction of the Finance Committee, so these amendments could theoretically prove germane, but amendments specifically targeting the president (i.e., making policy, with only an incidental fiscal impact) could violate the “Byrd rule,” making them subject to a 60-vote threshold. For Democratic political consultants, the possibilities are virtually endless.

6. It May Lead to Chicanery—and ‘Strategery’

Senate Republican Leader Mitch McConnell (R-KY) has generally opposed allowing reimportation of prescription drugs from Canada or other countries, with one noteworthy exception. In December 2009, McConnell, along with several other Republicans, supported one of two reimportation amendments offered on the Senate floor.

While opposing reimportation on the merits, some Republicans supported these particular amendments because they wanted to break up the “rock-solid deal” between Democrats and Big Pharma—whereby pharma agreed to support Obamacare in exchange for a promise from Democrats not to support reimportation of prescription drugs.

As it happened, Democrats spent an entire week—from December 8 through December 15, 2009—without floor votes on amendments to Obamacare. The delay—effectively, Democrats filibustering their own bill—came in part because party leaders could not persuade fellow Democrats to vote against the reimportation amendment—and could not afford to allow the amendment to pass.

One can expect similar gamesmanship by the Democratic minority this time around, as evidenced by their tactical decision to abstain from voting on Tuesday’s motion to proceed to the bill until Republican senators mustered a majority solely from within their own ranks. If only three Republicans defect on an amendment, Democrats could have the power to play a decisive role in that amendment’s outcome. It’s an open question how they will do so.

For instance, will some or all of the 12 Democrats who voted against reimportation earlier this year—during January’s “vote-a-rama,” when the Senate passed the budget enabling the current reconciliation process—switch their votes so the amendment will pass, causing Republicans heartburn with the pharmaceutical lobby? When and how will Democrats use other tactical voting to gum up the process for Republicans? The answers range from possible to likely, but it remains to be seen exactly how the process will play out.

7. It Will Inflict Political Pain

Consider for instance a flashpoint in the reconciliation bill: Whether to defund Planned Parenthood. Two Republican senators, Susan Collins and Lisa Murkowski, have already stated they oppose defunding the organization. If one more Republican defects, Democrats would likely have the votes to strip the defunding provision. (While Democratic Sen. Joe Manchin previously supported defunding Planned Parenthood two years ago, in the immediate aftermath of sting videos featuring organization leaders, he has since reversed his position, and will presumably vote with all Democrats to strip the provision.)

To put it another way: Sen. Dean Heller (R-NV) may not just have to be the 50th vote supporting the underlying bill, he may also have to provide the 50th vote to keep the Planned Parenthood defunding provision in the legislation. Will Heller vote to defund the nation’s largest abortion provider—and what will happen to the bill if he, and the Senate as a whole, votes to strip the provision out? Senate leaders will face several of these white-knuckle amendment dramas during “vote-a-rama,” any one of which could jeopardize the entire legislation.

8. It Could Unravel the Entire Bill

Ultimately, with no agreement among Republicans to preserve the underlying bill text, and no clear roadmap on how to proceed, “vote-a-rama” could resemble pulling on the proverbial thread—one good tug and the whole thing unravels. What if Heller ends up helping to strip out Planned Parenthood defunding—and conservatives respond by blocking more funding for Medicaid expansion states? What if moderates vote to strip the “consumer freedom” amendment offered by Sen. Ted Cruz (T-TX), and conservatives retaliate by taking out the “side deals” included to assuage moderates’ concerns?

At the end of “vote-a-rama,” senators could be left with an incoherent policy mess, legislation that no one would readily support. It’s the big potential downside of the freewheeling amendment strategy—but a chance that McConnell apparently feels he has no other choice but to take.

9. It’s Why Senate Leadership Is Talking about a Conference with the House

In recent days, Senate Majority Whip John Cornyn (R-TX) and others have floated the idea that, rather than having the House pass the Senate’s bill whole, sending it straight to the White House, members may instead want to have a House-Senate conference to resolve differences between the two chambers. Some have gone so far as to propose the Senate passing a “skinny” bill—repeal of the individual and employer mandates, along with the medical device tax—as a placeholder to get the reconciliation measure to a conference committee.

This strategy would have one beneficial outcome for the Senate’s Republican leadership: By allowing congressional leaders to re-write the bill in conference, it would save them from having to abide by the results of “vote-a-rama.” If, for instance, senators vote to strip out Planned Parenthood defunding, or to add in reimportation language, congressional leaders could re-write the bill in conference to negate the effects of those votes—presenting a new measure to both chambers with a binary choice to approve the bill or not. (In other words, rather than a “wrap-around bait-and-switch” on the Senate floor, senators could instead face a bait-and-switch in conference.)

That leadership has mooted a conference committee speaks to the nature of the “vote-a-rama” ahead. Despite the complaints on both ends of Pennsylvania Avenue about the lengthy nature of the health-care process, Senate leaders are now looking to extend the process further via a House-Senate conference—because they may need to regain control of the legislation after a wild and unpredictable debate on the Senate floor.

This post was originally published at The Federalist.

Mandates and Slippery Slopes

You will by now be aware that the Supreme Court today granted cert to hear arguments on Obamacare – two hours of arguments on the individual mandate, 90 minutes on severability, and one hour each on the Medicaid expansion and Anti-Injunction Act issues.  But when it comes to the individual mandate, a New York Times article this morning talked about its wide-ranging implications on the limits (or lack thereof) of federal power: “If the federal government can require people to purchase health insurance, what else can it force them to do?  More to the point, what can’t the government compel citizens to do?  Those questions have been the toughest ones for the Obama administration’s lawyers to answer in court appearances around the country over the past six months.  And they are likely to emerge again” at the Supreme Court.

Recent months have given just some examples of the requirements Congress, if granted the authority to impose mandates on all Americans due to their very existence:

The CLASS Mandate:  The former Obama Administration budget director first referenced the idea of mandatory participation in CLASS over the summer; other liberal bloggers have agreed.  The Justice Department likewise conceded in a Pennsylvania courtroom that mandatory long-term care insurance would be constitutional.  And seeing as how HHS admitted the program could not be made solvent without a mandate, who does not believe an Obama Administration, emboldened by a Supreme Court ruling upholding the health insurance mandate, would not attempt to require all Americans to participate in this program?

The Home Mandate:  During the 2008 campaign, candidate Obama derided the idea of an individual mandate to purchase health insurance: “If a mandate was the solution, we could try that to solve homelessness by mandating everyone buy a house.”  Of course, he later changed positions on the health insurance mandate – and if the housing market remains stagnant in the future, he could change positions to endorse home-buying solutions as well.

The Broccoli Mandate:  In an exchange with Sen. Coburn during her confirmation hearings, now-Justice Elena Kagan pointedly – and repeatedly – declined to say that passing a law requiring individuals to eat three fruits and three vegetables a day would be unconstitutional.  Such a mandate could be imposed on the grounds that it would slow the growth of health costs, thereby saving the federal government money.

Given last week’s controversy over the “Christmas tree tax,” some observed that if the government wanted to promote the Christmas tree industry, it need not impose a tax on conifers to fund a Christmas Tree Promotion Board – it could just force everyone to buy Christmas trees instead.

It is these types of questions, integral to the relationship between individuals and the federal government, which surround the Obamacare case the Supreme Court will consider next year.

Medicaid and Obamacare

Senators Hatch and Coburn this afternoon released a list of ten reasons – examples of fraud, waste, and/or questionable policies – illustrating why Medicaid needs fundamental reform.  To that can easily be added an eleventh, which comes in the form of an article in this morning’s Los Angeles Times:  In California, a provider organization has sued to block reimbursement reductions from taking effect – less than a week after the federal government approved those reductions.  In other words, a group of trial lawyers has taken it upon itself to play “back-seat driver” after the state passed, and the federal government approved, Medicaid reimbursement changes.

The story illustrates perfectly the ever-tightening vise states are facing with their Medicaid programs:

  • At a time when states face budget deficits totaling a collective $175 billion, Obamacare is imposing new unfunded mandates of at least $118 billion.
  • Because Obamacare prohibits Medicaid programs from altering their eligibility criteria, one of the few levers left for states to achieve fiscal balance comes through reimbursement reductions – yet even these are being micro-managed.
  • The Obama Administration has proposed regulations that would impose more mandates on Medicaid programs seeking to adjust reimbursement levels, forcing states to climb through new bureaucratic hoops dictated by Washington in order to achieve budgetary savings.
  • And the Supreme Court last month heard arguments in a series of cases from California that, if successful, would allow trial lawyers to launch many more suits like the one filed last week – creating uncertainty for states in a tough fiscal environment, and potentially resulting in judges weighing the minute details of provider reimbursement levels in Medicaid programs across the country.

Some of these trends precede Obamacare – but by imposing yet more mandates on broken Medicaid programs, the 2700-page law has only made states’ already difficult fiscal realities worse.  It’s one more example of how the unpopular law does not represent true reform of America’s unsustainable entitlements.

Rising Costs — And Whether Government Can Solve Them

Phil Bredesen’s op-ed in the Wall Street Journal last Thursday on employers dropping coverage comes as the outgoing Tennessee Democrat releases a new book outlining his platform for reforming health care.  Gov. Bredesen offers his reform platform because he believes the health care law focused largely on expanding health coverage rather than containing costs.  Sen. Coburn’s office has prepared a helpful précis of Gov. Bredesen’s criticisms of the health care law, based on quotes from his book.

While Bredesen’s criticisms of the new law are largely consistent with the arguments by Republicans throughout the debate, his solutions are incoherent with the critique.  The Governor criticizes the law as creating “yet more complexity, more regulations, and the need for more bureaucracy” – but he then argues that to lower rising health costs (which the law did not do), the government should directly negotiate prices with pharmaceutical companies, and promote a “least costly alternative” plan, whereby the federal government would not pay more for costly but effective treatments and therapies.  Those solutions would by definition involve more regulations, more bureaucracy – and, just as important, more government involvement and intrusion into doctors’ relationships with their patients.

The outcomes of existing government micro-management of the health care sector can be clearly seen in an article from this morning’s Wall Street Journal profiling the Relative Value Scale Update Committee, which helps determine the levels at which various physicians and procedures are reimbursed within the Medicare program.  The article explains how the committee tries to assess the relative value of thousands of medical procedures, based on minute estimates of input costs: “a subcommittee once debated whether to factor tissues into the payment for a psychoanalysis session.”

Yet despite all these minute, even seemingly absurd, attempts to micro-manage payment levels in the government’s Medicare program, official estimates indicate that the federal program has NOT succeeded in containing costs.  In fact, the Congressional Budget Office’s long-term budget outlook earlier this year noted that from 1975 through 2008, excess cost growth in Medicare grew FASTER than costs nationally, by more than half a percentage point per year. (Table 2-1, page 47 of the PDF)

Governor Bredesen is right to note that the additional bureaucracy created in the health care law will not lower skyrocketing health costs.  But he veers from the mark in his suggestions that new government involvement in other areas of the health sector will prove an effective tool in solving the nation’s health care woes.

Growing Concerns about CLASS Act Fraud

This morning’s Wall Street Journal notes that the Social Security Administration has embarked on an investigation of an administrative law judge in West Virginia, after yesterday’s front-page story in the Journal noted that this judge approved 99.7% of the Social Security disability claims he heard last year – and has approved every one of the 729 claims he has heard thus far this year.  The judge reportedly complained to one of his fellow judges that “some of these judges act like it’s their own damn money we’re giving away.”  The Journal story and subsequent investigation came on the same week in which Sen. Coburn’s office wrote to the Social Security Administration questioning taxpayer-funded disability benefits being paid to an “adult baby.”

Both these stories create serious concerns about benefits being paid through the CLASS Act, which will also rely on a system of eligibility determinations – and could be subject to similar types of questionable and abusive tactics as those described above.  Moreover, the financial incentives for abuse are actually HIGHER under the CLASS Act – while the average Social Security disability benefit was $1,068.90 during April 2011, the CLASS Act guarantees a cash benefit of at least $50 per day, or $1,500 per month.

According to the health care law, the Secretary of Health and Human Services must establish an eligibility assessment system for CLASS by January 1, 2012.  The Department has yet to explain how it will meet that deadline in a manner that ensures the program will not become a haven for fraudulent crooks – thus increasing the risk of a taxpayer-funded bailout.  Particularly given this week’s disconcerting stories about fraud within the Social Security disability system, many may hope that HHS focuses on the CLASS Act’s potential for fraud and abuse sooner rather than later.

Revised Bill Summary: Coburn/Gillibrand Substitute to H.R. 847, 9/11 Bill

As you have probably seen, the Senate recently passed a revised version of the 9/11 bill by unanimous consent; the House may consider the measure later today.  A summary of the changes made to the legislation follows.

 

Health Program Changes:

  • Requires the Program Administrator to provide for the uniform collection of claims data in addition to other data on WTC-related health conditions.  Requires a study of the feasibility of consolidating data centers.
  • Prohibits Clinical Centers of Excellence from including construction or capital costs for purposes of their federal reimbursement for “fixed infrastructure costs.”  Requires a study of the adequacy of Clinical Centers of Excellence collection and submission of claims data.
  • Prohibits the Program Administrator from designating the NIOSH Director or other NIOSH officials from making determinations about the certification of diseases eligible for coverage under the WTC program.
  • Provides for a maximum cap on reimbursements for medical treatments provided – payments shall not exceed the rates established by the Office of Worker’s Compensation within the Department of Labor.
  • Requires a study of the feasibility of using existing federal purchasing programs to provide pharmaceutical benefits to individuals covered through the WTC program.
  • Requires a study of the feasibility of using Veterans Affairs facilities to provide monitoring and treatment services to WTC program participants, particularly those outside New York.
  • Shortens the period of funding from ten years to six.  Eliminates the $1.8 billion in funding for Fiscal Years 2016-2020. (Funding levels for Fiscal Years 2011-2015 remain unchanged.)  Allows unspent funds to be used in Fiscal Years 2016 and future years, but prohibits additional federal transfers in 2016 and future years.  Shortens the period of required contributions by New York City from ten years to six, consistent with the shortened period of federal funding.

Victim Compensation Fund Changes:

  • Provides that claims filed under the re-opened 9/11 Victim Compensation Fund may only be filed within “five years after the date on which such regulations are updated,” which is required within 90 days of enactment (shortened from 180 days in the bill).  The underlying bill provided for filing of claims through December 22, 2031.
  • Narrows definition of the “immediate aftermath” of the 9/11 attacks to the period between September 11, 2001, and May 30, 2002; the bill included eligibility through August 30, 2002.
  • Eliminates the ability of applicants to the 9/11 Fund to have their legal claims re-instated in court if their application proves unsuccessful.  (As background, applicants to the 9/11 Fund during the 2001-03 period were required to waive their right to pursue legal action in court.)
  • Limits spending on the 9/11 Fund to $2.775 billion, $875 million of which “shall be available to pay such claims beginning on such date” that the 9/11 Fund re-opens.  Remaining claims would be paid within one year after the end of the five year period, at which point “the Victim’s Compensation Fund shall be permanently closed.”
  • Eliminates exceptions to the 10 percent cap on attorneys fees, and gives the Special Master permission to lower fees in the event of a finding of “excessive compensation.”

Pay-fors:

  • Maintains the 2% “excise tax” on federal procurement payments provisions included in the Gillibrand substitute.
  • Includes a one-year extension — until September 30, 2015 —  of the Emergency Border Security Appropriations Act of 2010, currently set to expire in 2014, which raised fees on H1-B and L-1 visas for those companies that have more than half their U.S.-based employees on such visas.  The previous Gillibrand substitute to the 9/11 bill included this extension through 2021.
  • Strikes the extension of travel promotion fees used as a pay-for in the Gillibrand substitute.

More on Virginia Obamacare Suit

The Wall Street Journal’s editorial this morning does a good job of summing up the significance of yesterday’s ruling in the Virginia health care lawsuit. (Politico has a news story on the ruling here.)  While the White House released a blog posting suggesting that the lawsuit was frivolous – judges should “ensure that our courts do not become forums for political debates” – Judge Hudson rightly noted that this case is novel in its sweeping scope, as the federal government has never penalized people for NOT buying a product. (Also worth noting: The White House’s blog posting did not attempt to defend the mandate’s constitutionality through the federal taxing power – indicating that the Administration is still attempting to “have it both ways” when it comes to saying that the individual mandate to purchase insurance is a tax.)

It’s also worth noting that the morning after the judge in Virginia rejected an attempt to dismiss the first challenge to the health care law’s constitutionality, the Senate will begin debating the Supreme Court nomination of Elena Kagan, who in an exchange with Sen. Coburn during her confirmation hearings pointedly (and repeatedly) declined to say that passing a law requiring individuals to eat three fruits and three vegetables a day would be unconstitutional.  As Judge Hudson noted yesterday, the health care law “literally forges new ground and extends Commerce Clause powers beyond its current high watermark” – a major constitutional development with which Ms. Kagan, during her confirmation hearings, expressed no qualms.

Elena Kagan and the Individual Mandate

Solicitor General Kagan responded to a series of questions posed by Sen. Sessions and all Judiciary Committee Republicans yesterday, writing a letter in which she states that she did not have a role in formulating the Administration’s response to the lawsuits challenging the health care law.  On a related note, the New York Times has an editorial this morning on the Kagan nomination that criticizes Republicans for raising the issue of the individual mandate, and the seemingly infinite power granted to Congress under the commerce clause should it be found constitutional, during her confirmation hearings.  The editorial alleged Republicans are making “a huge ideological fuss” about the issue, evidenced by the fact that Sen. Coburn raised the “seemingly silly hypothetical” about Congress’ constitutional ability to order individuals to eat three fruits and three vegetables a day. (Video of that exchange can be found here.)

However, the real point of the exchange was that such an “eat your vegetables” law, while silly, would NOT be a hypothetical if the Supreme Court asserts that not buying health insurance constitutes economic activity – thereby granting Congress the power to force individuals to perform all sorts of “seemingly silly” tasks so long as they have some form of economic impact.  Congress has never required individuals affirmatively to purchase a good or product, and requiring all individuals to purchase health insurance on the grounds that NOT doing so constitutes “economic activity” raises legitimate questions about the other ways in which Congress can intrude on individuals’ lives.  Even noted liberals like Jonathan Turley have acknowledged that challenges to the individual mandate “should not be dismissed as baseless political maneuvering,” due to the expansive authority such a mandate, if deemed constitutional, would grant to the federal government.

It’s also worth pointing out – as this space has done previously, and the Times’ own Robert Pear noted over the weekend – that the Administration has now decided to invoke the taxation power as one way to justify the individual mandate, contradicting the President’s own strenuous assertions last September “absolutely reject[ing]” that the individual mandate represents a new tax on the middle class.  The fact that even liberals have acknowledged the expansive powers lurking behind the individual mandate, and that the Obama Administration felt compelled to engage in a significant flip-flop over whether the mandate is a tax to defend its legitimacy, suggests that this issue should not be treated as glibly as the Times would believe – and that there are legitimate questions surrounding both the lawsuits and Republican questions of Ms. Kagan regarding her involvement in them.

An Individual Mandate — To Eat Your Vegetables???

During their questioning of Elena Kagan yesterday afternoon, Sens. Cornyn and Coburn both touched on the Commerce Clause issues surrounding the individual health insurance mandate and the limits (or lack thereof) on federal power.  In response to Sen. Cornyn’s questioning about the scope of the Commerce Clause, Ms. Kagan said that “the current state of the law is to grant broad deference to Congress in this area, to assume that Congress knows what’s necessary in terms of the regulation of the country’s economy, but to have some limits.”  However, the limits she went on to describe were centered around “activity…not itself economic in nature.”  Left unstated in this exchange was whether NOT buying health insurance constitutes economic activity, as the health care law, and the Justice Department’s defense of it, assert.

Dr. Coburn followed up on this point, asking whether Congress could pass a law forcing individuals to eat three fruits and three vegetables every day.  Ms. Kagan replied that such a measure would be a “dumb law,” but did not answer as to whether or not the Constitution gives Congress power to create and enforce such a mandate.  In fact, she implied that Congress MAY have such a power, noting that “We can come up with, sort of, you know, just ridiculous sounding laws, and the – and the – and the principal protector against bad laws is the political branches themselves.”

Dr. Coburn went on, pointing out Ms. Kagan that a finding that “eating three fruits and three vegetables a day would cut health care costs 20 percent, now – now we’re into commerce.  And since the government pays 65 percent of all the health care costs, why – why isn’t that constitutional?”  Once again, Ms. Kagan declined to say a law would be unconstitutional, and instead asserted that “deference should be provided to Congress with respect to matters affecting interstate commerce.”

It’s worth asking: If Ms. Kagan is unwilling to admit that Congress cannot regulate the diet of all Americans, is there any area where she believes the federal government CANNOT invoke the Commerce Clause to intrude upon every facet of Americans’ daily lives?

Coburn Amendment 3700 to H.R. 4872 — Veterans’ Second-Amendment Rights

Senator Coburn has proposed an amendment (#3700) to the Health Care Reconciliation Bill, H.R. 4872, to ensure that no veterans be denied their Second Amendment rights without due process.  This amendment is identical to S. 669, the Veterans 2d Amendment Protection Act.

Summary

  • This bill requires no veterans be denied their Second Amendment rights without due process.
  • Specifically, veterans who are considered mentally incompetent for purposes of assigning benefit payments, may not be considered “adjudicated as a mental defective” unless they have been found by a judicial authority to be a danger to themselves or to others.
  • Currently, these veterans are immediately considered “adjudicated as a mental defective” and lose their rights to possess and purchase firearms even though they are no danger to themselves or others.

Considerations

  • According to CRS, Over 140,000 veterans have been added to a national database of those prohibited from owning or purchasing a firearm.
  • This bill is endorsed by the American Legion, the Veterans of Foreign Wars of the United States, AMVETS, the Military Order of the Purple Heart, Gun Owners of America, the NRA, and the National Alliance on Mental Illness.
  • S. 669 is a bipartisan measure, Senator Jim Webb is one of the original cosponsors.