Health Care ACA Act: Who does the Roberts Court Work For?
It is an article of faith among many on the Left that the answer is easy: the majority on the Roberts Court is in the tank for the Republican Party. And within certain limits and with qualifications that is my view too. But the question today is WHICH Republican Party? The nativist libertarian leaning Christianist Tea Party? Or the internationalist corporatist Republicans? And the answer is critically important when it comes to the ACA bill. And the key factor is the individual mandate.
The sideshow of outright repeal was settled last week The debate over the ‘individual mandate’: Stuck in neutral? the Republicans got an up or down vote, albeit with a 60 vote majority needed and ended up with a party line 47-51 vote to waive the budget rule, or not even the 50 votes actually needed to win final passage on the underlying amendment or the final bill to repeal. They had their shot, demonstrated to both sides of the Party that they were willing to do the ‘right/Right’ thing, but had to move onto one of the other three paths available: defunding implementation, piecemealing it, or supporting court action. But there is where things fall apart on them. More below the fold.
Would the insurance companies welcome total repeal and a return to their old business model? Well probably but it would be a mixed bag, because they love the new locked in customer base and tax breaks for small business even as they hate much of the insurance reform. But the biggest and most powerful driver of that locked in customer base is the individual mandate, the worst possible outcome for them is for just that piece to be knocked out via legislation or the courts. For them it is all or nothing, a piecemeal approach being fatal.
Teabaggers come at this from a different directions. Those who start from a more libertarian position detest the individual mandate while the nativist side is driven by darker visions of socialized medicine and death panels but the real point of communality and the focus of their organized efforts is precisely the mandates. These people could conceivably settle on a package that preserved most of the insurance reforms relating to pre-existing conditions as long as mandates were stipped out.
Meaning that any intermediate solution leaves Teabaggers and Insurance companies in diametrically opposed positions, their only common ground being outright repeal. Which leaves the Supreme Court in a bind. Are they really willing to rely so heavily on the lack of a severability clause that they would just steamroll over the intent of Congress on a matter that had been under constant debate for half a century and throw out the whole bill? Or are they more likely to just focus on the actual legal challenge centered on the mandate and possibly just strike down that provision of the law and so leaving insurance companies high and dry? I don’t know but the vote on Citizens United suggests the majority is weighted towards the corporatist side.
So once again, and starting from the assumption that the Court operates on ideological and Party grounds, which faction are they going to stand with? And this is complicated further by the fact that the interests of other sectors outside big insurance have different stakes in this, if you are a ‘small’ to ‘large’ business as defined (as opposed to ‘largest’) there is a lot to like in the ACA in the way of subsidies. That is the question’s answer does not resolve down to ‘Republicans’, that is more a starting point than ending one.
it’s kind of a sad comment that you just assume the decision will be political. of course you are right, but it isn’t supposed to be that way.
i am by no means up on the details but i take your remark about the lack of severability to mean that if part of it falls, all of it falls. in that case the Supremes will find a way to find the mandate Constitutional.
Which won’t necessarily hurt the Republicans. They will just run against the Supreme Court for the next twenty years, just the way they have run against it since Brown v Board. They don’t care one way or another about segregation, but they know how to play people’s emotions to get votes.
On the other hand, my feeling was that the health care industry needed this “reform” or it would have fallen from its own excesses. So the law will stand.
Bruce made a couple of statments with which I think most conservatives and Tea Party members would disgree. 1) “These people could conceivably settle on a package that preserved most of the insurance reforms relating to pre-existing conditions as long as mandates were stipped out.”
The funny part of the is point is that the Dems have won the debate/battle over reforming HC, but may lose the overall war by insisting on theior way only. That’s the reason the “severability clause” was removed. Just a little compromise would have created a reasonably acceptable HC bill. Instead, the entirety of the bill is now at risk.
2) “Meaning that any intermediate solution leaves Teabaggers and Insurance companies in diametrically opposed positions, their only common ground being outright repeal.” Other than the pejorative use of “Teabagger” the implication is that there actually was a great deal of common ground between Bruce’s two parties. I would suggest that there is much higher common caude with small and medium size businesses and the Tea Party.
At some point Dems and its further left members are going to realize how damaging has been their policies and especially their politics. If November 2010 wasn’t message enough pushing harder for those same policies, in my estimation, will see further erosion of the democratic party’s political power.
As always, YMMV.
Bruce made a couple of statements with which I think most conservatives and Tea Party members would disgree. 1) “These people could conceivably settle on a package that preserved most of the insurance reforms relating to pre-existing conditions as long as mandates were stipped out.”
The funny part of the point is that the Dems have won the debate/battle over reforming HC, but may lose the overall war by insisting on their way only. That’s the reason the “severability clause” was removed. Dems knew the mandate was constitutionally shakey. Just a little compromise would have created a reasonably acceptable HC bill. Instead, the entirety of the bill is now at risk.
2) “Meaning that any intermediate solution leaves Teabaggers and Insurance companies in diametrically opposed positions, their only common ground being outright repeal.” Other than the pejorative use of “Teabagger” the implication is that there actually was a great deal of common ground between Bruce’s two parties. I would suggest that there is much higher common cause with small and medium size businesses and the Tea Party.
At some point Dems and its further left members are going to realize how damaging has been their policies and especially their politics. If November 2010 wasn’t message enough pushing harder for those same policies, in my estimation, will see further erosion of the democratic party’s political power.
As always, YMMV.
CoRev
I wish you would finish your thought:
In what way would most conservatives disagree with Bruce’s statement number one?
What compromise would have created an acceptable bill?
How does “only common ground” imply “great deal of common ground”?
I recall reading articles that have looked at this Robert’s court and finding that the court rules to the favor of business over the person or people almost all the time if not all the time. Being that the Tea Party is presented as the people party, I think it’s a safe bet (though I don’t gamble) that the Insurance Co’s are protected.
Also, the powers behind the Tea Party do seem to be corp rule oriented.
Then we have the division within the monied business class represented by the Koch Brothers anti climate change/maintain the status quo on energy vs GE and Obama’s new playmate. So, I think it is a matter of which side of the debate the Insurance Co’s fall on. Are they in the corporata group that is currently in control? I mean, they are closely related to banks now. Or is it banks are related to them?
Hey, maybe we see Scalia and Thomas break from Roberts?
DOLB a distinct possibility. Scalia might well come down Teabag. On the other hand Thomas may know who is buttering his bread, which is to say the corporatist behind Heritage and the three quarters of mil his wife took home (did he just think Ginni was scorely great deals at Goodwill? How do you miss $700.000 flowing through your household in a year?
Yeah and my mileage did vary in real time right here at AB.
http://www.angrybearblog.com/2009/09/gang-of-six-regular-order-johnson.html
In August 2009 Obama and Reid allowed HCR to be hijacked by the SFC Gang of Six which had three Republicans to three Democrats and included two Conservadems in Baucus and Conrad while freezing out all progressives on that Committee including the Chair of the Senate Finance Committee’s Sub-Committee on Health. And in the process allowed Baucus to simply shit can the House Tri-Committee Bill and the Senate HELP Dodd-Kennedy Bill in favor of some grand bi-partisan compromise that would get Republican votes even at the cost of alienating the Democratic caucus. And was allowed to do that for a full five months of fruitless negotiations.
And your takeaway from that abdication by Dems to first President Enzi and then President Snowe was “was insisting on their way only”? And that all it would have taken is a “little compromise”. WTF were Democrats doing between August and December besides crawling to Republicans in search of compromise on HCR and in the process abandoning first the strong PO and then even the weak PO?
In the words of P.G. Wodehouse your method of argumentation reminds me of his numerous villains that “were so crooked they could hide behind a spiral staircase”.
And if Tea-baggers didn’t want to be called such maybe they should have rethought that symbolic stunt of trying to dump a million teabags over the White House fence?
http://www.gunslot.com/pictures/1-000-000-tea-bags-delivered-outside-white-house
“Fox News televised the partial unloading of more than 1 million of our tea bags at Lafayette Park in Washington, D.C. near the White House this morning (note background of photo)! Unfortunately, representatives of The Patriot Depot and Reagan.org were told by National Park Services officials to reload the truck. Why? Even though the original protest permit was approved, our tea bag team was conveniently told that it was not the “proper” permit. This is an absolute outrage and a denial of our First Amendment rights, which read:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
But our tea bags are not leaving the Capitol City any time soon! We’ve just set up a towering display of more than 1 million tea bags at a new location in Washington, D.C..—the headquarters of a free market think tank, The Competitive Enterprise Institute. Your tea bags are sending a loud and clear message: Enough is Enough.
Even though more than 1 million tea bags are already on display in Washington, D.C., several hundred thousand remain unsponsored. You can still help us offset our protest expenses by sponsoring a tea bag for just one dollar! We have big plans for these tea bags, so stay tuned.”
If you decorate your neighbors trees with 50 rolls of toilet paper you are likely to be called a TP-er. If you decide to deliver a million tea-bags to the White House and cleverly ask supporterss to SPONSOR AN INDIVIDUAL TEA BAG at a book a pop and claim “we have big plans for these tea-bags” you deserve all the mockery you get. What would you call these people but ‘teabagger’? And since when does a protest permit come complete with the right to dump trailer trucks on soon to be soggy garbage in Lafayette Park?
Yeah I am sure it hurt the Baggers to be made fun of by an out lesbian (Rachel) passing jokes with a commenter who first made her […]
Bruce, shout your anger at not getting the “progressive” version of the bill, but stop the BS. Having absolute control over the House, presidency and near absolute control over trhe Senate wasn’t enough to get that last percenage of the “progressive” HC agenda. The “Bill” was in the end a Democratic bill, passed on a partisan democratic vote, using a democratic legislative process.
It is a badly written, horribly structured, uses a terrible implementation strategy, and has been fought due primarily of the disingenuousness of the Democratic messagng selling it. Few if anyone in congress read the final version, and passed it essentially sight unseen. Now under the bright lights of political reality it is being fought even harder.
Your own comment is indicative of the angy rhetoric that permeated the politics of the 111th congress. The HC bill is representative of the quality of the legislation passed. The voters realized it in Nov. 2010, and continuing the same level of angy rhetoric will just reinforce their reality and let them show their own feelings in Nov. 2012.
DoLB said: “Also, the powers behind the Tea Party do seem to be corp rule oriented.” Maybe from leftist view where nearly evey political action is “centrally” controlled, but the Tea Party is largely a decentralized, organic organization/movement made up mostly of conservatives and centrist (notice the lack of party affiliation) voters.
“Christianist”
Low rent bigotry, unworthy of this site.
Rusty
I am not sure “Christianist” is bigotry. There are a lot of folks out there getting political mileage by claiming to be Christians. But the are the sort of “Christians” that Christ might have been talking about when he said he would say “I never knew you.”
It’s hard, I know, in this evil world, to keep track of the labels and false labels. Sheep’s clothing, you know.
Rusty
I am not sure “Christianist” is bigotry. There are a lot of folks out there getting political mileage by claiming to be Christians. But they are the sort of “Christians” that Christ might have been talking about when he said he would say “I never knew you.”
It’s hard, I know, in this evil world, to keep track of the labels and false labels. Sheep’s clothing, you know.
DoLB, we have differfing views. One from inside the movement, and one which is based upon news reports. From the UK??!!?? Now, that’s close to the core movement.
As far as Koch funding, I’ll trump that with Soros funded groups, and astro turfing, which BTW is just another unsupported Dem talking point. To parphrase: “Look over here, they’re not actually Tea Party members their hired (fill in your own negative term here)!”
CoRev
I gave you a chance to make your thought comprehensible.., but jskit intervened. Your reply to Bruce tells me you prefer arm waving.
Your assertion of “absolute control” does not, at the least, reply to Bruce’s description of Democrats desperately looking for a compromise… and ending up with what the right was willing to give them. The real right, not the demagoguery that you fall for.
No doubt the bill is badly written etc, but your argument would have more credibility if you cited some examples.
And if the Congressmen don’t read the final version, what does that say about “democracy”?
What the voters “realized” in 2010 was that angry rhetoric from the Right could win elections.
“Feelings” I will grant you. “Thought” is not apparent.
WE have Bruce’s view of the future courts action and his recital of its history. Here’ another: “With their 2009 filibuster-proof majority in Congress, the Democrats built their own massive vessel and raced it full steam ahead despite all the warning signs. In a classic YouTube moment, now former Illinois Democratic Rep. Phil Hare looked squarely into the camera and summed up his party’s approach to governing thusly: “I’m not worried about the Constitution on this.” When now former House Speaker Nancy Pelosi was asked about the constitutionality of Obamacare, she incredulously replied, “Are you serious?” Full steam ahead!
…
… this particular danger (my add here: constitutionality) would be lurking within Judge Vinson’s ruling: “I note that in 2008, then-Sen. Barack Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that ‘if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.’ “
…
Chief Actuary Richard S. Foster admitted that the administration underestimated Medicare costs by more than $400 billion and that “about 20 million” Americans would lose their private insurance and be forced into the second-class coverage of Medicaid.
…
By a staggering margin of almost 10-1, doctors think Obamacare will have a negative impact.
Despite Mrs. Pelosi’s assurances to the contrary, patients are no more convinced of Obamacare’s virtues than are their doctors. A recent Gallup poll reveals that just 13 percent of Americans approve of Obamacare as it is written – 13 percent. There are more people who believe Elvis is still alive. There are more New York senators who can name all three branches of government than Americans who believe in Obamacare.”
All of this is from here: http://www.washingtontimes.com/news/2011/feb/4/uss-obamacare-takes-on-more-water/
And you wonder what the SCOTUS will do? Worry more about the voters, as they have a clear view of the quality of this bill. 2010 was mostly a referendum on Democratic spending. 2012 votes will turn on the HC bill while continuing to rein in Fed govt growth.
As always, since this is my opinion, YOMV.
CoRev:
“It is a badly written, horribly structured, uses a terrible implementation strategy, and has been fought due primarily of the disingenuousness of the Democratic messagng selling it. Few if anyone in congress read the final version, and passed it essentially sight unseen. Now under the bright lights of political reality it is being fought even harder.”
It is always fun to find you out here posting on something in which you have little knowledge of other than what Fox News and the pundits superficially present. The resulting bill was a compromise in Congress and was passed with the help of the blue dogs who loiter between the Repubs and the Dems (mostly on the Repubs side). That the Reublican party did not get what they wanted is because no bill would have suited them as their stance was strictly obstructionist as led by McConnell and Boehner. In the end, the Repubs presently no alternatives of significance.
There is no reason to date that the SCOTUS has to take the ACA bill up as it is often found that courts disagree and yet bills go onward and are implemented into law. If the bill goes forward and is fully implemented by 2014, its overturn will not change much as Congress will bypass the court’s ruling and simply change the wording of the ACA Law. It is that simple.
You conflate political reality with the substance of the bill which is what you should be discussing. The bill was hashed and bashed about and the various portions of it changed and rechanged to suit various beliefs and wishes. That Nebraska and Texas did not get 100% of their wishes is not the issue as this was and still is a bill of compromise. The political reality played into the compromise and the Repubs said what? “No,” and hardly a compromise.
SCOTUS has ruled on insurance and the Commerce Clause. People claiming they should not be forced to buy insurance and engage in interstate commerce is a silly at best as at sometime in their lives they will be forced to used healthcare either voluntarily or involuntarily. Why should the taxpayers be forced to pay for their laziness. Congress does have the authority under Article 1 to force them to be a part and as Vinson stated; “his decision was a political one” (so much for blind justice based upon facts).
If states refuse to implement the law, Congress has the ability to withhold $billions in funding for other things such as highways, and this has been done before. CoRev, your stance is without merit and has little basis other than a rant.
Hi Bruce;
Its better to look at the court in terms of whether they are Federalist or not. Clearly Roberts, Alito, Thomas, and Scalia are Federalists or those who believe in a strict interpretation of the constitution in most cases. Ginsberg, Sotomayer, Breyer, and probably Kagan are not Federalists; which leaves Kennedy as the swing vote.
Kennedy is more about crafting a compromise than overturning a law by Congress if this gets to SCOTUS. He has been open to gay rights, porn, and the death penalty and no so open with the environment and gun laws. Too soon to tell what he may decide.
One thing for sure, there is no mention of corporations in the constitution and it has been conflated to include corporations and granting them the same rights as individuals. This court is certainly and activist court.
Run
i am not sure the Constitutional argument is “silly.” It seems to me a huge step for the Congress to require people to buy a product from a private, profit making entity. Looks like a transfer payment to me: from the poor to the rich.
Of course the Supremes will find a way. But taxes are one thing. Offers you can’t refuse are another.
CoRev
has correctly identified the state of the public mind. more than 13 % of them believe that Elvis is still alive. And even more of them “don’t like the HC bill,” which of course they have no more read and understood than the Congress.
the quotes from Pelosi and Hare could easily mean “we aren’t worried about the Constitution because we are so sure that this is Constitutional,” but, of course, if you think Democrats are stupid arrogant bastards you would think they meant “we don’t care if it is Constitutional.”
And if you are CoRev it would never occur to you that it might mean something other than what you know it means.
run
i would quibble about Federalists believing in “strict interpretation” and the others not.
The Federalists believe in their OWN interpretation. As do the others. The problem with fundamentalists everywhere is they are incapable of imagining that words mean something other than what they think they mean. So of course they have the “strict” interpretation, and every one else is trying to get away from the Word as revealed to Our Fathers.
DoLB, I loved your links. Source Watch had this embedded comment after quoting one journalist claiming a once removed relationship, evidence of which was years ol: “Koch Industries has denied specifically funding Freedomworks or tea parties directly, however. The company’s director of communications wrote “”Koch companies value free speech and believe it is good to have more Americans engaged in key policy issues. That said, Koch companies, the Koch foundations, Charles Koch and David Koch have no ties to and have never given money to FreedomWorks. In addition, no funding has been provided by Koch companies, the Koch foundations, Charles Koch or David Koch specifically to support the tea parties.”
I remember the Big Oil claims of skeptical Global Warming scientists, which were similarly old, old references, and in most parts totally wrong. Making claims of funding does not make it so. Indeed, most of these funds can be tracked. IRS or FEC have records of charitable and election donations.
As an early member of the “movement” I can attest that it was organic, with minimal political support from the Republican party. If only it had received even more funds from deep pocket donors, maybe the candidate I supported would have won.
Sorry, run, I’m with Coberly on this one. The Federalists only CLAIM to believe in a strict interpretation of the constitution. More often than not, they simply fabricate. Their interpretation of the Eleventh Amendment, for example—an Amendment that directly addresses federal vs. state powers—is an utter rewriting of that Amendment.
And as you know painfully well, run, the federalist judges—at least the 1980s-era appointees—claim that the Fourteenth Amendment, particularly the Due Process Clause, whose very purpose was to impose state compliance with the Constitution’s civil rights guarantees, simply does not apply to the states’ judicial branches. It’s a grossly anti-libertarian view, and a patently non-strict interpretation of the Fourteenth Amendment.
I tend to agree with Coberly on this one. A legally mandated purchase from a private seller (whether for-profit or supposedly “non-profit”) feels pretty onerous to me. The availability of a public option would have mitigated this by giving people an alternative to doing business with one of these historically predatory private businesses, but that wound up on the cutting room floor.
It may be that the health insurance industry can find a way to survive with the rest of the law intact and the mandate gone, but the numbers don’t look good. For them, it would be the worst of all possible worlds, I’d think.
As a thought experiment, that has its appeal, but if actual access to affordable quality health care is the goal, it won’t get us there.
Run said: “You conflate political reality with the substance of the bill which is what you should be discussing. The bill was hashed and bashed about and the various portions of it changed and rechanged to suit various beliefs and wishes.” The whole article is about politics. Wondering what SCOTUS might do when it is accepted at their level.
Twenty seven of 50 states have filed law suits against the HC bill. FL + its 25 partners with VA following its own separate path, and OK signalling it will also follow a separate path to court. When we reach 30 or 40 or more does that mean liberals/Dems will ralize how bad this bill actually is? Doubtful
I looked at the L.A. Times piece…
“Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress’ sweeping tax powers. Wrong again. A basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment.
If Congress can tax me, and can use my tax dollars to buy a health insurance policy for me, why can’t it tell me to get a policy myself (or pay extra taxes)? Vinson offers no cogent answer to this basic logical point.”
The problem here is that in order to get the bill passed, it was necessary to characterize that payment as a fine, or penalty, rather than as a tax. Regardless of the language, those opposed characterize it as a tax because of IRS involvement (a la “death panels”) while simultaneously decrying the mandate/penalty logic. From there, it devolves into the usual war of words.
A quick look at the comments following the L.A. Times piece cited by Beverly Mann above (http://discussions.latimes.com/20/lanews/la-oe-amar-health-care-legal-20110206/10) revealed this:
“Shawn P at 10:08 AM February 7, 2011
Wow. Talk about “distorting the law” to arrive at your desired outcome. This guy merely repeats the same canards that the Democrats have been using for their power grab all along. Democrats have seriously twisted the “Commerce Clause” out of all recognition, and it is way beyond time for them to be reined in.”
One man’s fact is another man’s canard. When we disagree on the meaning of language, the details of history, and on objective facts, is it possible to have any meaningful discussion or debate? A bucket filled with plastic fruit has no capacity for peaches. Worse yet, you can’t live and thrive on plastic fruit.
Linda:
There will always be distortion. As long as we know the reality of the situation, we can still present the truth and overlay the distortions.
Regardless:
The decison will be made by Kennedy. Kagan may be a mystery; but, I believe she will sidle up with Ginsburg, etc.
Coberly:
The argument put forth by the teabaggers is somewhat silly in what they claim. Congress does have the ability to tax people who do not get healthcare insurance.
Linda:
It is not a matter of “feel,” and it is a matter of whether Congress has the ability to tax people who do not have healthcare insurance. Bev’s LA Times points out the issues in a straight forward manner. Constitutional authorities such as Bev, Erwin Chemerinsky, and others have supported Congress’s ability to do so.
The ability to have a PO, single payer, or even Medicare was stopped cold in its tracks by the Blue Dogs and the Repubs. This was the best to come forth and the prerequisite MLR and ratios governing what can be charged to insurees and what can be taken as administrative is there. How would you envision healthcare insurance companies escaping such? Furthermore, if the present reform was scrapped; how do you envision the PO would come about and in what year?
The plan can still be altered in the future the same as SS and Medicare have been. It is a start and a good one at that.
Bev:
Regardless, where is the split? I see it the same with Kennedy being the deciding vote. I did mention this court is an activist court which has reversed years of precedent to stamp its own view on the law.
The Republican campaign leading up to the ’10 elections was like a huge party – voices raised in jubilance as well as in disagreement, scuffles and seductions, leaders and followers increasingly high, throwing caution and reason to the wind. On the morning after, waking up in their own beds, the guests began to wonder if perhaps they’d gotten a bit carried away.
Public opinion is a capricious thing. What happens in Vegas may stay in Vegas, but what happens in elections does not.
The Supreme Court was meant to address issues from a more long-term point of view, judging by a specific standard. Even so, on that standard, there are disagreements. Problems arise when those disagreements translate into political action on the part of the Justices – both inside and outside the Court.
As to what the Court may decide on ACA, I am agnostic. If they strike down the entire law based on the mandate and a lack of severability, the issue will live to be fought yet again… down the road. If they strike down the mandate, and leave the rest, I suspect the law will be hopelessly damaged… same result. If they uphold the law, the slow slog to its full implementation will go on. It will do some good, but unless it is improved through further legistlation, problems will remain to be solved… and resistance to that will include rhetoric about having already “solved” that so let’s move on. Ultimately, politics will assure that a real solution will be a long time coming.
No time to read the 31 comments – off to rehearsal tonight. But I will state with absolute unequivocal conviction that the court willl decide whatever is in the best interests of the corporate internationalists. They showed this clearly a year ago with the Citizens Unted decision.
The Koch brothers own the tea party faction, and the entrnched Rethugs as well. The conflicts don’t matter. It’s divide and conquor.
WASF,
JzB
run,
I agree on Congress’ ability to tax people. Obviously, if we had single payer, or Medicare-for-All, it would take taxation to make it work. I’m running short on time, here, but it’s my impression that the financial result of refusing to get insurance is called a penalty or a fine, not a tax. If I’m wrong, I’d be happy to look at a citation.
In practical terms, money collected by the IRS as a result of what one reports on a form, at tax time, can be seen as a tax. For purposes of legal argument, the difference may matter.
In that it didn’t accomplish enough, I was opposed to ACA. However, it was neither an active opposition nor an adamant one. I know people need help, and it helps. Now that the milk is spilled, I oppose going back to square one, particularly at the order of the Supreme Court. That’s a personal, political position.
I don’t know what SCOTUS will do, but I do know that legal arguments on both sides have some basis. If they leave it alone, the program can evolve, as SS and Medicare did. If they do not, if they effectively strike it down, I have suspicions (maybe hopes) that a new and better idea will emerge. Having had an opportunity to see how health care delivery is distorted by Big Insurance, and having begun to imagine what life would be like if health care was not ruled by it, the people may not be willing to wait a few more decades.
run
i think you are conflating “constitutional” with “what i like.”
not at all unusual, even among Supreme Court Justices. But not much different from Linda’s “feel.”
Linda
actually it “devolved” into the usual war of words long before “from there.” It is always possible to … uh… shape…. words to make the law look consistent. But those on whom the law falls, tend not to see the ultimate reasonableness of it all.
Lnda Run
one mans distortion is another mans truth. me and the Constitution have never figured out a better way to tell them apart that to have elections, and balance of powers, and adversarial due process with a jury of your peers. and that’s only until the next election. or the next court rules.
Agreed. The problem is that those like Shawn P above believe the exact same thing. So when/if one encounters an open and uninformed mind, what they ultimately decide may or may not reflect reality depending on their own personality, character, history, etc., and how it “matches up” with what they hear and/or experience.
Some think that eventually, reality will jump up, smack people in the face, and convince them. I’m sure it happens – some of the time. On the other hand, there are people who can deny reality even while it’s assaulting them.
coberly,
You’ve very neatly summed up all that I’ve had to say about the political side of this issue.
I know what I want/feel/like, but I’m not a lawyer or an expert on the Constitution – which doesn’t matter, since I won’t be involved in the SCOTUS decision. By nature I am not a patient person when lives are at stake, but I’m working on recognizing the limits of my power. 😉
Right now, I’m at the mercy of the clock. May return later!
In addition, Congress has the ability to tax everyone and give tax credits. (For example, a health care tax of X and a tax credit of X if insured.) There are multiple ways to skin the cat that are equivelent except in wording. I think some normally sensitive BS detectors are failing because people use the word “mandate” and the ACA uses the words “requirement” and “penalty.” Courts may or may not decide that Congress’s reluctance to use the word “tax” renders the bill’s language unconstitutional, but they will not rule that Congress cannot do precisely the same thing by using the word “tax.” And of course that word is a problem.
Linda (Linda Beal?)
Erwin Chemerinsky quote:
“Some who object to the health care proposals claim that they are beyond the scope of congressional powers. Specifically, they argue that Congress lacks the authority to compel people to purchase health insurance or pay a tax or a fine.
Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, “substantial effect” can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.
The relationship between health care coverage and the national economy is even stronger and more readily apparent. In 2007, health care expenditures amounted to $2.2 trillion, or $7,421 per person, and accounted for 16.2 percent of the gross domestic product.
Ken Klukowski, writing in POLITICO, argued that “people who declined to purchase government-mandated insurance would not be engaging in commercial activity, so there’s no interstate commerce.” Klukowski’s argument is flawed because the Supreme Court never has said that the commerce power is limited to regulating those who are engaged in commercial activity.
Quite the contrary: The court has said that Congress can use its commerce power to forbid hotels and restaurants from discriminating based on race, even though their conduct was refusing to engage in commercial activity. Likewise, the court has said that Congress can regulate the growing of marijuana for personal medicinal use, even if the person being punished never engaged in any commercial activity.
Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect.
There is a substantial likelihood that everyone will need medical care at some point. A person with a communicable disease will be treated whether or not he or she is insured. A person in an automobile accident will be rushed to the hospital for treatment, whether or not he or she is insured. Congress would simply be requiring everyone to be insured to cover their potential costs to the system.
coberly:
BS
Coberly:
What is a jury of your peers?
Linda:
You are peddaling baloney. The cost of Hillary-Care would have been 25% of this bill. The cost of the next bill will increase exponentially in a decade as identified by the Urban Policy Center.
You state nothing of what should be improved and are no better than the blue dogs and Senator Lieberan who distiorted what healthcare reform could be.
run
sorry to hear you say that. i have no doubt your constitutional reasoning will be similar to what the Supremes come up with. But your preposterous certainty that you know the “right” of it, tells me you must be a judge or some other person immune from normal human doubt, not to say skepticism.
your reading of the constitution would pretty much justify any damn thing the congress wants to do. which is pretty much the state of the law in this country today, with a few exceptions determined not by “justice” or “the constitution” but by the political preferences of the justices.
sorry you don’t understand my point. i hope the tea partiers don’t lynch you. you might find out something else about “law” in the proces.
run
well, i wrote a little story about that once. involved some puppies who had a serious discussion about my strange behavior in getting them up at two in the morning to go outside.
Linda R
Pilate famously asked “what is truth?” i think Pilate had given up looking for truth, or was born cynical, because he made no effort to see the truth when it was looking him in the face.
But the rest of us would do well, i think, to be a little shy of claiming to know the truth, or, worse, to have the truth on our side. We must of course often act as though we do, but a little humility would probably prevent some of the worst crimes committed in the name of justice.
Run,
No, I’m not Linda Beale. I added my initial when she became a regular poster to avoid confusion.
Your citations are all interesting, and somewhat convincing – to me (for what that’s worth)! I live in California. When a mandate was proposed here, I was vehemently opposed to it, but not on Constitutional grounds.
First, as an uninsured person of limited means, I was extremely concerned about a law that might require me to purchase insurance at a price I could not afford. The men in suits that cost more than my income for a month promised it would be “affordable.” Could they even guess what might be affordable for me?
Second, having been uninsured for years now, I understand the degree to which Big Insurance distorts both the cost and delivery of health care. Being uninsured is no picnic, but it does save me from the frustrations, hassles, and delays experienced by those I know who are insured. In short, I don’t trust Big Insurance. One of many deciding factors in my vote for Obama (in the primary) was his opinion that a mandate would not be necessary. Nevertheless, I found a way to support the PO with a mandate.
As I wrote, below, I’m in favor of doing something about the cost and availability of health care. I will always favor universal single-payer cradle-to-grave health coverage. It’s what I want for my daughter and her children, and for everyone in the US. In the meantime, I cannot get excited about ACA but I’m not out there opposing it, either.
I’m not sure I understand your question. Are you asking if I’d prefer that this plan get struck down? Or if I’d prefer that it fails when it is implemented?
The battle to get it passed took time, effort, and money that we don’t get back if it fails. Further, it has raised the floor from which we can build. From that standpoint, I want it to succeed. What I do get excited/angry about is what’s going on with SCOTUS – in general. I absolutely disagree with some of the activist decisions it has made, especially regarding the personhood of corporations and the equating of speech and money. I could on about either of those issues for hours.
well, coberly, I remember someone i knew on another blog who was very happy with GWB’s administration and policies. This person liked to go on and on about people who behaved irresponsibly and wound up in default on their mortgage. He saw social welfare programs as unnecessary and morally repugnant. The idea of government taxing him and handing the money over to lazy freeloaders (iow, anyone on assistance) especially galled him. And then… he lost his job. That’s the sort of reality I’m talking about.
“Truth”, on the other hand, can be problematic.
Run,
I’ve responded to another of your posts, at length, above.
As for the cost of Hillary-care, you cannot know what it would have cost by the time the House and the Senate got through with it.
I think you have misinterpreted something I said. The Bill I could have supported whole-heartedly was Kucinich’s. Nevertheless, I wrote numerous letters, made numerous phone calls, and explained what was going on during the debate on Obama-care to anyone I encountered who was falling for the opposition rhetoric.
Don’t lump me with Lieberman! Those are fighting words…
Run, Do you get that I am saying public opinion began swinging back towards approval of ACA right after the elections? Do you get that I’m saying the people may be regretting their votes for Republicans and Tea Partiers, but we’re stuck with the results for at least 2 years? Do you get that I disapprove of the Court engaging in politics of the moment? – precisely because it’s not their job.
I want every American to have access to AQHC (“affordable quality health care”). To the extent ACA doesn’t achieve that, it’s not good enough and will need to be improved upon. Do you disagree with that? Isn’t that what you meant when you referenced how SS and Medicare were improved over time?
As for speculation about what SCOTUS will do, it’s a pastime – even for lawyers (and I am not one). We will know when it is done. We cannot vote them out or submit petitions to them based on our desires. What we CAN do is continue to spread the word that there is a better way than “market solutions” which leave too many with inadequate care.
And, I might add, it’s time to start reminding people that Supreme Court appointments are part of the results of elections. All of this speculation shows how close the Court is to a tipping point, and major issues approach.
If one follows SCOTUS rulings, they find that they are traditionally quite/very narrow applying to the specific case.m For ACA that could translate to a decision centered upon the use of the “mandate”. My best guess, is they will rule against it. My reasoning goes along with Ezra Klein’s: http://www.washingtonpost.com/wp-dyn/content/article/2011/02/07/AR2011020706020.html There were alternatives to the mandate.
Furthermore, I thin Democrats are on a path to self destruction (or at best long term loss of seats) over this issue. In crafting this bill they insisted on their solution, as the best and in some circles, the onliest. Only Dems were entitled to take any credit for its successful passage. They are now at all costs defending that bill, whil getting all the blame for its passage.
A better political strategy would be to accept that the public intensely dislikes the bill. Once accepted it would release Dems (along eith Republicans) to craft a new and better bill. Whether in total or in parts doesn’t really matter.
The current Dem strategy of fighting to the bitter end may result in a devasting SCOTUS ruling just before the 2012 elections. Keep the issue paramount, and continue them as the blamed party for the majority of voters.
Alternatively, they could embrace the Republican “replace” strategy, and in a proactive political move put the Repulicans on the defensive. All of this while proposing and thereby protecting the key changes/portions of the existing bill Democrats feel are the most important.
Regrettably, due to their angry arrogance, I think the Democrats will continue to follow their losing, maybe even catastrophic, political strategy.
This is again, only my opinion, and YOMV.
If one follows SCOTUS rulings, they find that they are traditionally quite/very narrow applying to the specific case. For ACA that could translate to a decision centered upon the use of the “mandate”. My best guess, is they will rule against it. My reasoning goes along with Ezra Klein’s: http://www.washingtonpost.com/wp-dyn/content/article/2011/02/07/AR2011020706020.html There were alternatives to the mandate.
Furthermore, I think Democrats are on a path to self destruction (or at best long term loss of seats) over this issue. In crafting this bill they insisted on their solution, as the best and in some circles the onliest. Only Dems were entitled to take any credit for its successful passage. They are now at all costs defending that bill, while getting all the blame for its passage.
A better political strategy would be to accept that the public intensely dislikes the bill. Once accepted it would release Dems (along with Republicans) to craft a new and better bill. Whether in total or in parts doesn’t really matter.
The current Dem strategy of fighting to the bitter end may result in a devasting SCOTUS ruling just before the 2012 elections. Keep the issue paramount, and continue them as the blamed party for the majority of voters.
Alternatively, they could embrace the Republican “replace” strategy, and in a proactive political move put the Repulicans on the defensive. All of this while proposing and thereby protecting the key changes/portions of the existing bill Democrats feel are the most important.
Regrettably, due to their angry arrogance, I think the Democrats will continue to follow their losing, maybe even catastrophic, political strategy.
This is again, only my opinion, and YOMV
ah, Linda, THAT reality. Yes.
not to argue, because i agree with you, but the trouble with that reality is that there are always people whom that reality does not touch. they are smart or lucky. then they tell the rest of us we should be smart or lucky and above all make no provision to defend ourselves from bad luck or being cheated by someone smarter than us.
Well, CoRev
run has pushed me into your camp for the time being. i get angry about a government that has no iimits. i thought the whole point of the constitution was to establish limits… or at least bright lines the people would defend. maybe the tea partiers are trying to do that.
but the angry arrogance i see all comes from the right, not the left. and you’d be pretty naive to think that it is “the left” that is constantly pushing for unlimited government.
on the other hand my recent experience with the Democrats tells me they are hand in glove with the Republicans on shaping the new world order, and that won’t be much fun for either you or me.
Unlike some people I have a hard time convincing myself I know what the Constitution “means.” And when I think I know, some Supreme Court always decides against me.
I respect the “founding fathers” because they had had some experience of government tyranny and tried to write a constitution that would prevent that. The “framers” relied on checks and balances, but poorer, wiser, heads insisted upon a Bill of Rights. They were all smart enough to know these would be subject to “interpretation” and need to be defended from clever liars… on both sides.
What I look for in a constitutional interpretation is readings that seem, to my best ability to tell, to favor the freedom of the people and limit the power of government. Unfortunately, life is not that simple. So I might have to accept a small loss of freedom with respect to the government in order to gain protection against non-government evils. All of this is a matter of judgement, and as CoRev would agree, honest people can disagree.
Where we go wrong is that not all people, or judges, or politicians, are honest. And we have massive propaganda machines telling us that any limit on business is a threat to all our freedom, but any limit on government’s ability to interfere with the personal lives of citizens, or put them in jail on dubious charges… protects us all from crime and moral degredation.
So what can you make of all this? Not much probably, but I’d suggest you look at “constitutional” in terms of how will this or that protect the people from the government, or if there are other dangers we need to be protected from, is the law in question the best way to protect ourselves, or would there be another way that does not increase the danger from the government itself,
This might take a little more thinking than what people are used to. I would suggest that the health care law is a bad law, whether constitutional or not. Because while it aims to protect the people against the high cost of health care, it does so by delivering them into the hands of the very people responsible for those high costs, and simultaneously creates a new “right” of government to coerce your behavior. You may like the results in the case of health care. You won’t like the results as they emerge over time.
Then two odds and ends: quoting “experts” about the constitutionality of this or that doesn’t carry a lot of weight with me, nor should it with you. Experts are literally a dime a dozen. They are for sale, if they have not already simply sold out their brains (souls are so old fashioned) to a “cause” that they feel really really strongly about.
The other odd end… John Marshall established the right of the Court to determine the constitutionality of an act of congress… or the president. This itself was of dubious constitutionality. But it was a good thing because it created a new check and balance in the system that does tend to limit the potential for democratic tyranny. not eliminate, limit.
And that’s the best “rule” I can come up with for evaluating constitutionality: does the law in question unnecesarily intrude upon the basic right of human beings to be left alone.
But not left alone to become a public nuisance.
coberly:
If you meet a jury of your peers, let me know. At most they will be whoever they can drege up from the area.
Hi Linda:
Ok, I can drop the legalese then which Bev and I go back and forth on at times. This bill like SS, Medicare, Medicaid will change. We can hope for a PO and if Insurance companies drop out of this; we most certainly will get a PO of sorts. SCOTUS will split exactly as I stated unless Kagan is a Federalist in disguise. Kennedy will make the decision. As I stated and if you goole him, you will find he is somewhat of an enigma. He is moderate on gay rights and the death penalty and conservate with the environment and other topics. We got a good chance this will be sustained
run
hate to say it, but that’s who “they” think my peers are.
coberly:
and you would be correct. Those with a brain are exempted.
Rev–States have been trying to nullify federal laws since before the Civil War. The Confederate States certainly didn’t get far. But, in modern terms, we have the Supremacy clause to foil attempts to nullify federal legislation. Meanwhile, SCOTUS will not rule in such a way as to argue against its powers of judicial review.
The modern interpretation of the Commerce clause was created by a long line of federal court cases. To overturn these would have results much farther reaching than merely setting aside the ACA. It would say that the Court is so completely political as to have no legitimate authority at all.
Here is a link to a new article by Lawrence Tribe in the NYT about what the Court will do when ruling on the various State’s attempts to have the ACA and specifically the individual mandate struck down. http://www.nytimes.com/2011/02/08/opinion/08tribe.html?src=me&ref=general He thinks the Court will do the right thing, namely rule the against the various lower Court decisions on Commerce clause grounds. Don’t forget that the ACA provides for a tax or penalty for failing to obtain health insurance. If you don’t want it, you just pay a tax. No one is forcing you to do anything except pay a tax against the day when you need health care and the rest of us have to pay for it. NO
coberly, I’ll agree with you on lucky. Even smart people fall prey to the notion that they made it to third base on their own when in fact it was luck (before or after birth) … or ruthless exploitation of others.
I’d have to disagree on “smart.” In a world where smart guaranteed anything, you and I (and many others) would be set for life.
Nancy
maybe, but words matter. because they determine attitudes and expectations. an america in which the government can tell you what to buy and who from will be a very different place from one in which people expect to be left alone.
i am aware that it has never been “pure” in this expectation, and I am generally on the side of government action when it is clearly for the public good. Since there is a better way to do health care… including single payer… I don’t think the “mandate” is a good way to go.
Consider that a private insurance company is… private. And they will resist inquiries into exactly how they run their business. but a public option would be… public… and, well, you see.
on the other hand, maybe that is the answer for all us freedom lovers: refuse to buy the insurance and just pay the tax, and see what they do about that. if enough of us ,,,
NO, we have differing opinions. That’s OK! What I see as the political fall out is as Dems fight harder, the more ground they lose with voters. And, 2012 is just around the corner.
CoRev
polls are useful to tell you how well your propaganda is doing. but if the polls are against you , it doesn’t mean you should change your policy; it means you should change your propaganda.
CoRev
polls are useful for telling you how well your propaganda is doing. but when the polls are against you that doesn’t mean you need to change your policy; it means you need to change your propaganda.