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You are here: Home / Politics / Domestic Politics / Good Question

Good Question

by Kay|  October 8, 20108:17 am| 35 Comments

This post is in: Domestic Politics, Election 2010

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Following up on Anne Laurie, on the conservative legal challenges to the health care reform act, I’m wondering why Senator Ron Wyden’s good question about the sincerity of those legal challenges hasn’t gotten more attention.

So, in both the Healthy Americans Act and in the current health reform law, I included a provision that would allow states to gain an exemption from certain federal requirements — such as the individual mandate, the employer penalty and the exact standards for designing the exchanges, subsidies and basic health insurance policies — if they could find a way to do a better job of covering their state’s citizens.

To date, I haven’t seen a single one of those states currently filing lawsuits against the individual mandate propose better ways of covering their citizens. In fact, one of the reasons I have been drawing attention to the state waiver is to highlight the insincerity of those filing lawsuits. If states aren’t happy with the federal law they should be spending their energy innovating ways to do better rather than wasting taxpayer dollars on lawsuits that — if successful — would leave their state’s citizens with nothing.

E.D. Kain has referred to Wyden’s amendment several times, but have mainstream media asked any of the conservative lawyers bringing the challenges if they’re aware of the Wyden amendment? It comes into play in 2017.

I don’t believe the legal challenges have anything to do with the actual health care reform legislation, as enacted. I think they’re yet another round in the long-running conservative effort to dramatically roll back the reach of the Commerce Clause.

I don’t mind a fight, but I think we’d all be better off if we could get the other side to admit what they’re actually fighting about. If dramatically rolling back the reach of the Commerce Clause is more important to these state lawyers than health care, I think they have a duty to clue their citizens in on that.

They should have to answer this question:

“Why don’t you use the waiver provision to let you go set up your own plan?” the senator asked those who threaten health-care-related lawsuits. “Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?”

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35Comments

  1. 1.

    Mike Lamb

    October 8, 2010 at 8:21 am

    I think you give them too much credit. This isn’t about principled opposition to an expansive reading of the Commerce Clause. There’s nothing particularly problematic about wanting to reduce how broadly the Commerce Clause is interpreted. No, the lawsuits are about opposition to any and all Democratic policies.

  2. 2.

    WereBear

    October 8, 2010 at 8:25 am

    The lawsuits are about spending tax money on folks, instead of their overlords, as the Lawd intended.

  3. 3.

    Kay

    October 8, 2010 at 8:29 am

    @Mike Lamb:

    I think they have a duty to answer the question, as long as they’re on a government payroll.
    I’m familiar with conservative legal theory. I’ve been listening to it for 20 years. I’m wondering why they think it’s okay to advance this using “health care” as a proxy. Seems a little dishonest, considering their citizens don’t have access to health care.

  4. 4.

    Brandon

    October 8, 2010 at 8:29 am

    @Mike Lamb: You are spot on. But it’s even more pernicious. It is more evidence that conservatives will try to use any mechanism at their disposal, judicial and extra-judicial, to fulfill their present political ambition. They want to overturn the law to embarass Obama and score political points. Can anyone believe that impeachment is off the table?

  5. 5.

    Kay

    October 8, 2010 at 8:36 am

    @WereBear:

    States can also set up a public option. Yup.

  6. 6.

    Xenos

    October 8, 2010 at 8:56 am

    Indeedy. The ‘Commerce Clause’ is one of those things, like Federalism, or Substantive Due Process, where there is really no consistency from the right. Substantive Due Process is great for breaking up unions, but unacceptable as a basis for reproductive rights. Federalism is sacrosanct, but God Forbid Massachusetts wants to enforce it usury laws on a Citibank credit card. As for the commerce clause, it is either terribly overextended, or a perfectly good way to forbid people from growing their own marijuana.

    As long as these cases stay out of the Supreme Court we can expect some rational destruction of these ridiculous arguments. But being in the USSC means you never have to justify breaking, rearranging, and ignoring precedent, so long as you don’t admit you are doing so at the time.

  7. 7.

    Lawnguylander

    October 8, 2010 at 9:00 am

    The AGs filing these suits and the governors they work with wouldn’t even accept the premise behind the question, that they have an obligation to look out for the welfare of the citizens they represent. The question should be asked but I don’t have faith that there are a lot of journalists out there eager to challenge the basic assumptions that wingnut politicians hold. The best you can hope for is that they’ll focus on the process and the legality of the challenges.

  8. 8.

    kay

    October 8, 2010 at 9:04 am

    @Xenos:

    Federalism is sacrosanct, but God Forbid Massachusetts wants to enforce it usury laws on a Citibank credit card.

    Federal tort reform. That was fun because Obama threw their own bullshit right back in the face. Malpractice is state law.

    All innocent-sounding.

  9. 9.

    El Cid

    October 8, 2010 at 9:09 am

    Well, what do you expect?

    I don’t believe the legal challenges have anything to do with the actual health care reform legislation, as enacted. I think they’re yet another round in the long-running conservative effort to dramatically roll back the reach of the Commerce Clause.

    We of the Confederate-American community are tired of being subject to the vastly over-expanded reach of the federal government in asserting its power over our states’ rights, except in areas like when the federal government prevents the homos from marrying and such.

  10. 10.

    Nick

    October 8, 2010 at 9:10 am

    I think a good example of what Wyden is saying is if a state sets up a single payer plan.

    Despite big losses next year, it’s possible some states will see a Democratic governor and Democratic legislature (Vermont, Rhode Island, Connecticut, Minnesota, California, Hawaii, possibly Oregon), as well as already existing ones like Delaware, Maine?, West Virginia, Arkansas, Washington State, New York?. What we should do, I think, is push some reform on the state level to coincide with the federal law. Canada’s single payer system developed out of Saskatchewan. Why shouldn’t ours develop out of, say, Minnesota?

    I wasn’t in favor of a sudden move to single payer, I think it would be too disruptive, and while I liked the public option and supported it, I thought it could possibly be overburdened and would essentially become a single payer plan except it wouldn’t have been designed as one. I strongly favor(ed) expanding Medicare to 55 (or lower) and Medicaid. I do think single payer is the direction we need to go, in the most non-disruptive way. Perhaps having states institute systems first is a good idea.

  11. 11.

    cleek

    October 8, 2010 at 9:11 am

    It comes into play in 2017.

    snicker

    let’s see… wait 7 years to comply with a law you hate, thus giving your opponent a victory, or work now to deny that victory.

    tough call!

  12. 12.

    Steve

    October 8, 2010 at 9:13 am

    Has Massachusetts sought a waiver so they can continue with the superior Romney plan?

  13. 13.

    kay

    October 8, 2010 at 9:15 am

    @Nick:

    Wyden is pushing hard to move the date of the exemption up, for his state. He has a good liberal argument. If we had decent conservatives who operate in good faith, they could help him with that.

    But we don’t. We have these assholes, who hide the ball and make shit up, in order to serve some abstract “agenda”.

  14. 14.

    kay

    October 8, 2010 at 9:17 am

    @cleek:

    They could be hugely influential in moving the 2017 date up.

    You know, if they actually gave a rat’s ass about health care, or doing something productive while on the taxpayer dime.

  15. 15.

    Comrade Javamanphil

    October 8, 2010 at 9:18 am

    @Nick: The Democratic candidate for Governor of VT is running on a platform of universal health care and he advertises the fact. He may not win but it will be interesting if he does.

  16. 16.

    Omnes Omnibus

    October 8, 2010 at 9:29 am

    @Mike Lamb: Yes and no. Conservatives have been pushing the rollback of the Commerce Clause since FDR’s day. So, to the extent, that they are continuing to make those arguments today, they are being consistent. On the other hand, they would glom onto any legal theory they could find, consistent or inconsistent with their stated principles, in order to fight against Democrats.

  17. 17.

    beltane

    October 8, 2010 at 9:36 am

    @Nick: In Vermont, the Democratic candidate for governor has campaigned on single-payer, saying he is certain he can get the required waivers from the Obama administration. That is why out-of-state Republican groups are pouring money into the state. They are petrified of a successful single-payer system being implemented anywhere, even a state as small as ours.

  18. 18.

    Dennis SGMM

    October 8, 2010 at 9:40 am

    @Omnes Omnibus:

    On the other hand, they would glom onto any legal theory they could find, consistent or inconsistent with their stated principles, in order to fight against Democrats.

    Bingo! Any tool that they can employ in an attempt to thwart those things (Largely Democratic) of which they disapprove is automatically legitimatized by their employment of it. Thus anti-sodomy laws are a matter of sacred states’ rights while a state’s passage of a death with dignity act necessitates the intervention of the fed. It’s all about power. The contortions necessary to justify their exercise of power are subsumed in conservatives’ inability to experience cognitive dissonance.

  19. 19.

    Brian S (formerly Incertus)

    October 8, 2010 at 9:46 am

    If dramatically rolling back the reach of the Commerce Clause is more important to these state lawyers than health care, I think they have a duty to clue their citizens in on that.

    If Republicans clued citizens into their long-term goals, they’d never get elected. This has been the case for at least 30 years., and there’s no sign it’s about to change any time soon.

  20. 20.

    cleek

    October 8, 2010 at 9:57 am

    @Dennis SGMM:

    The contortions necessary to justify their exercise of power are subsumed in conservatives’ inability to experience cognitive dissonance.

    contortions and cognitive dissonance don’t happen because professional Republicans remain perfectly consistent with their fundamental driving principle: “libruls are bad, mmK. gotta beat the libruls.” all their visible arguments are simply tools in service of that principle.

    IMO, whenever you see someone arguing for two seemingly contradictory ideas, it’s a safe bet that those ideas aren’t deeply held convictions; really, they’re merely tactical gambits used to promote an unstated deeper principle. there’s no cognitive dissonance in the arguer because neither of those conflicting ideas are deeply held. in other words: cognitive dissonance is in the eye of the beholder.

  21. 21.

    Dennis SGMM

    October 8, 2010 at 10:01 am

    @cleek:
    You’re right; there’s no possibility of cognitive dissonance when one’s only deeply held conviction is that the ends justify the means.

  22. 22.

    Nick

    October 8, 2010 at 10:15 am

    @Comrade Javamanphil: @beltane:

    Shumlin? Well, that would convince me enough to send him some money.

  23. 23.

    Redshift

    October 8, 2010 at 10:16 am

    @Brian S (formerly Incertus):

    If Republicans clued citizens into their long-term goals, they’d never get elected. This has been the case for at least 30 years., and there’s no sign it’s about to change any time soon.

    Actually, it’s been the case for more than 30 years, except that before Reagan, they did clue citizens into their long-term goals, and they didn’t get elected (at least not to Congressional majorities.) The true innovation of the Reagan “revolution” was how to lie effectively about GOP intentions.

  24. 24.

    Xenos

    October 8, 2010 at 10:32 am

    @Redshift: And the brilliance of the George W./FoxNews era is how to lie effectively to Republicans. The propagandists have become the propagandized, in a circulating connubiam of assholery.

  25. 25.

    cleek

    October 8, 2010 at 10:41 am

    @Dennis SGMM:
    precisely.

  26. 26.

    Dennis SGMM

    October 8, 2010 at 10:43 am

    @Redshift:

    Look at it from their point of view: “We’re going to do whatever it takes to ensure that every last thing of value in this nation is transferred into the hands of the top decile,” won’t fit on a bumper sticker.

    They could openly state that and as long as they waved the flag and thumped the Bible while doing so they’d still get 28% of the popular vote.

  27. 27.

    Nick

    October 8, 2010 at 11:03 am

    @Redshift:

    The true innovation of the Reagan “revolution” was how to lie effectively about GOP intentions.

    Dear America, I know you like your welfare state, but it isn’t for you anymore, liberals put lazy black people and illegal immigrants before you, oh, and they hate Jesus.

  28. 28.

    Menzies

    October 8, 2010 at 11:11 am

    @Redshift:

    Not just that, I think, but also to question and denigrate the patriotism of anyone opposing their policies.

  29. 29.

    Rick Massimo

    October 8, 2010 at 11:24 am

    “Why don’t you use the waiver provision to let you go set up your own plan?” the senator asked those who threaten health-care-related lawsuits. “Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?”

    Because setting up your own plan helps people and shows that government can improve people’s lives, as opposed to turning in the general direction of the White House and shouting “Fuck you n*@@er,” which is what they really want to do. That’s why.

  30. 30.

    Comrade Javamanphil

    October 8, 2010 at 11:48 am

    @Nick: Yep, Shumlin.

  31. 31.

    Emrventures

    October 8, 2010 at 12:18 pm

    This is all kabuki theater on the part of GOP politicians. Oppose the health care through a series of lawsuits they know are likely to fail. Oppose the health care bill through threats of repeal they know will get vetoed if they actually passed.

    If they actually turned over or repealed the Health Care bill, they’d own the problems. As it is, the Democrats own all the problems and that’s just fine with them.

  32. 32.

    Mike Lamb

    October 8, 2010 at 12:31 pm

    @Omnes Omnibus: Considering that individual mandates started as a Republican idea, I’m still sticking with the “it’s a knee jerk anti-Democratic respose.”

  33. 33.

    Mike Lamb

    October 8, 2010 at 12:36 pm

    @Kay: I guess my point is that it’s not a “little” dishonest. It’s completely and totally 100% dishonest. I also agree that the quesion should be asked, repeatedly, in order to shine a light on how fully dishonest the legal challenges are (we can dream right?).

    But I still believe the primary motivator here is anti-Obama/anti-Democratic animus…

  34. 34.

    patrick II

    October 8, 2010 at 2:03 pm

    “Why don’t you use the waiver provision to let you go set up your own plan?”

    That question presumes that they care enough about the people of their own state to set up their own, better plan. They don’t. They want the plan they have now, the one where about 15% of the people are not covered and some of those uncovered get sick and die, and health care is tenuous and expensive. In spite of this, they want the current plan because a few of their friends and contributors are getting wealthy.

    Good health care plan = accumulating health for my cohorts.
    By those terms they would assert they already have a better plan.

  35. 35.

    kay

    October 8, 2010 at 2:11 pm

    @Mike Lamb:

    It’s completely and totally 100% dishonest.

    I had never read Wyden before. He has that earnestness mixed with (mild) exasperation of a person who wants to solve something.

    But he’s talking to the wrong people. These people are on a mission to prove a point.

    I don’t know how people like him last in the Senate. They’d take me out of there in handcuffs, after I beat someone around the head with my cane.

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