From the Washington Post, “Justice Dept. asks Supreme Court to review health-care law“:
The Obama administration moved aggressively Wednesday for Supreme Court review of the 2010 health-care act, making it likely a constitutional ruling on the president’s signature and most controversial domestic achievement will come in the thick of the presidential campaign.
The administration said it was confident the act would be upheld as a valid exercise of federal power, just as Social Security and the Civil Rights Act were. If the court agrees to hear the case in the term that begins Monday, it would almost certainly render its decision by the end of deliberations in June.
The administration called upon the justices to review the decision of a three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta, which is the only appeals court to say Congress exceeded its power in passing the law. The law requires almost every American to have health insurance…
A Justice Department official authorized to speak only on background said a consensus existed within the department that there is much to do on behalf of the federal government, states and the private sector to implement the act by 2014 and that a final decision by the court was needed.
The NYTimes goes into the political thickets:
… The political calculus is complicated. A decision striking down President Obama’s signature legislative achievement only months before the election would doubtless be a blow. But a decision from a court divided along ideological lines could further energize voters already critical of last year’s 5-to-4 campaign finance decision, Citizens United.
A decision upholding the law might also both help and hurt Mr. Obama’s chances. It would represent vindication, but it could also spur some voters to redouble their efforts to elect candidates committed to repealing it.
The three federal courts of appeal that have issued decisions on the law so far have all reached different conclusions, with one upholding it, a second — the 11th Circuit— striking it down in part, and a third saying that threshold legal issues barred an immediate ruling. A fourth challenge to the law was heard last week by the United States Court of Appeals for the District of Columbia Circuit.
And Dahlia Lithwick, who I usually trust, thinks Chief Justice Roberts won’t want to dirty up his name in the history books:
I remain unsure that there just are five justices at the high court eager to have the court itself become an election-year issue. I don’t think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point. And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about. Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom. But the long game at the court is measured in decades of slow doctrinal progress—as witnessed in the fight over handguns and the Second Amendment—and not in reviving the stalled federalism revolution just to score a point.
That’s why I suspect that even if there are five justices who believe the individual mandate is unconstitutional, there probably aren’t five votes to decide that question in this instant. Lyle Denniston over at Scotusblog reminds us that the court has a lot of options to forestall a showdown with the president. If the justices opt to consider the technical question raised at the Fourth Circuit—about who has legal standing to challenge the mandate in the first place—the court could dodge the constitutional question altogether until 2015, when the first penalties will be paid. It’s not so much a matter of the court having to decide whether to bring a gavel to a knife fight. It’s just that this isn’t really this court’s knife fight in the first place.
Normally, I’m in favor of bold strokes, and even his meanest critics admit that President Obama is a very smart man and a skilled poker player. And it behooves us Democrats to rally behind the party banner as we prepare for the election battles in 2012.
I just wish, as someone who spent twelve years being educated by the Dominican Sisters, that there weren’t so many rumors about the four most conservative SCOTUS justices and Opus Dei.
When do we not set our hair on fire?
@Baud: When we set other people’s hair on fire, of course.
Um, so I’m supposed to feel reassured that the SCOTUS Justices have a sense of shame and pride? The same ones who wrote a legal ruling that money is the same as speech?
Pseudo-Jesuit scum. (vaginas cant evah be REAL Jesuits)
I unnerstand the whole “shariah-ridden brown babies” comment now.
This post discriminates against follicularly-dormant-Americans.
Roberts has a way of confounding his observers.
As if the next 14 months needed any more drama.
Risky move. This election season is going to be intense.
Since it’s not actually an individual mandate so much as a tax penalty that is easy to avoid for the poor or others who insist upon an exemption, it’s hardly the case that there is an actual mandate against those who don’t choose or can’t afford to buy health insurance coverage. It’s simply not the case. It’s a tax, not a mandate. Congress gets to make the tax laws. Even this Supreme Court is unlikely to argue against that.
So if the ACA gets overturned, it’s not going to be about the tax provision. They’ll look at every possible nook and cranny for some other reason to attack the law, but they won’t find it in the tax provision.
“A justice department official authorized to speak only on background”?
Any paper printing that line should be ashamed of themselves. That means “we are happy to print the views of powerful people in an accountability-free way”. That’s outrageous.
That “other” reason might be if the five most conservative justices seize this as an opportunity to dramatically redefine the limits of the “commerce clause”, and thereby limit the scope of activities the federal government can regulate on that basis. It’s important to keep in mind that for for certain two of the justices, and possibly two more, think the Supreme Court took a radical wrong turn back in the 1930s and continuing for seventy to eighty years afterward insofar as the permitted scope of the federal government, including the commerce clause.
Though I too generally enjoy Ms. Lithwick’s writings, I believe she’s erring against empirical fact on this one.
There’s ample evidence that Chief Justice Roberts relishes politicized entanglements. I’ll not rehash is “CV”, but will remind readers of Roberts’ penchant for lying about himself and his intentions. Roberts was (and may still be) a committed member and guiding light within the Federalist Society – an affiliation he denied under oath despite the documentary evidence. He also lied about his views on president and the technicals of stare decisis. For more, and more thorough, analysis of Roberts (and the SCOTUS on whole), this link points to list of articles on the Court by Ronald Dworkin writing for the New York review of Books.
Associate Justice Alito is merely a less savvy, super-ego deficient fusion of Roberts and Scalia. Scalia… ’nuff said – so too for the self-loathing misogynist Thomas.
Tony Kennedy may be a “wild card”, but I doubt it. The analysis of long-time SCOTUS watchers – many of whom themselves are attorneys who’ve argued before the COURT – doubt Kennedy’s willingness to break from Roberts.
The real wild card is Clinton appointee Breyer. Breyer’s “claim to fame” as a judge now justice is his prowess on business and commerce minutia. There’s certainly no love-lost between Breyer and his leading Flanagist-5 antagonists Scalia and Roberts. But, on a matter than has the potential to re-engineer more than 100 years of “commerce clause” precedent, Breyer may see an opportunity to again lavish extra-textual Constitutional prerogatives on business as a means to amplify his stature as a business law savant.
Lastly, the Roberts Court – both the Falangist-5 and the “liberal” members – have indulged Roberts’ habit of taking the process of addressing the question(s) put before his Court well beyond the narrow framing petitioners labor to articulate in filing for SCOTUS review. Premier and historically consequential examples of such “liberal” interpretive preferences for the Roberts’ Court are found in Citizens United, the Alaska 1st Amendment matter and the DC 2nd Amendment matter. In each, the Falangist-5 returned rulings that were loosely related to the specific legal questions put before them and aggressively reversed decades of precedent established over many decades through many decisions.
The behavior described above is to me, and others, the very definition of Justices inhabiting a politicized and ideological posture regarding the law and their role as final arbiters.
Suffice it to say that it is well within reason to suspect if not expect the SCOTUS’s Falangist-5 (with Breyer too?) taking a “wide-stance” in the process of neutering ACA.
On the political front, I don’t see a “win” scenario for the President. At best, he gets a break-even result.
Recognizing that the SCOTUS may well return opinions that address aspects of the ACA which were not raised nor contested prior to and within the SCOTUS arena itself, attempts to pre-sage responses to responses at this time is a fool’s errand. As such, let me rush in – I have the credentials (being a foolhardy foole – final “e” courtesy of George Carlin).
No matter the SCOTUS’s ruling, most of the right/GOP will feel vindicated. Whether, for example, the ACA is upheld or invalidated in whole, the right can (and will/would) claim vindication on grounds that A) they knew X and Y components of the law were unconstitutional and therefore striking it down was inevitable or B) they knew that judges, even justices are all corrupt tools of ZZZ (pick your favorite boogey-man) and therefore their long-made warnings about the anti-American nature of judges unchecked ability to impose their personal views on society was inevitable …..
In each or the ruling/reaction scenarios, the right will insist that voting for them is th e only way to avoid/correct such calamity in the future.
As for the other segments of the electorate, I don’t think there’s any unanimity in how people understand the ways in which ACA will effect them. Of course, the nature of the law and the arena it addresses is itself to is diverse and therefore engenders a multi-factorial “cause/effect” calculus that’s difficult to either précis or map to a given individual’s circumstances. And therein lies the gaping political hole that almost any ruling can be forced through to the political advantage of the GOP.
If memory serves me correctly, the vast majority of insurance-holders will neither realize nor be asked to make any changes to their coverage or providers. What these people have encountered are both threats of and actual premium increases all justified by carriers as a “business” response to the requirements of “ObamaCare”. A “same service/higher cost” reality is a losing political formula for the President and Congressional Democrats.
The ~30 million Americans who currently lack coverage will find their way onto carriers’ roles slowly – so slowly that a large percentage will still be uninsured on election day.
Another scenario, one that’s been bandied-about in the MSM, is that the SCOTUS will invalidate the “mandate”. At this point, invalidating the mandate is a “final nail” that will kill the entire law. Consider the number of waivers to “mandate” compliance the Administration has thus far issued. IN many ways, the SCOTUS may only add insult to the injury already being delivered.
I know that there are pros and pundits who argue the ACA can stand without the “mandate”, but they’re wrong. No state and no carrier has any incentive to form pools and policy arbitrages if those vehicles to coverage draw only low-revenue/high-cost subscribers. Remember, waivers are being granted at a furious pace already.
A different take altogether is premised on the nature of the cuts resulting from the Cat Food Commission v2.0’s action or inaction regarding Medicare/Medicaid cuts. Firstly, the “trigger” institutes cuts in those programs automatically. Any negotiated outcome will be shaped by the demands of the President (whose been very unreliable on Medicare/Medicaid), ConservaDem committee members who have publicly discussed the necessity of safety net cuts and, last but not least, the TeaOP who wants the ACA and Medicare and Mediciad and SocSec abolished. To my eye, the players and the field have been rigged against the “progressive” position.
Now, imagine the mood of the electorate with Medicare and/or Medicaid being cut – by choice – by the “Super Committee” and that the ACA is crippled if not mortally wounded by the SCOTUS.
me thinks we all lose – but the GOP loses less since they will the electoral argument.
However, if things remain as they are, the electorate is still left in a state of 1) unaffected, 2) not yet affected, 3) affected for the better because s/he is under 25 and lives at home and 4) any of those and is still confused as to what, how and by how much the ACA will help them secure quality health care.
One last wrinkle to consider. A DoD review panel is proposing a radical revamp of Veterans’ healthcare benefits. The proposal favored within the Pentagon is to shift the majority of veterans’ coverage from the VA system to a private sector “equivalent”. The Army Times have written about this prospect with alarm and disgust. The fellow vets I’ve chatted with when I’m at my PT sessions at my local VA hospital are more aware of this threat to their than one might suspect. Now, add 1 or 2 million vets to the mix of above scenarios – a la carte.
Can you say confusion, consternation and chaos? Can you say electoral positive for the President with a straight face??
It was always heading there anyway. Why not cut to the chase. It’s damned if he does and damned if he doesn’t for the President but I think it may go better with closure on this issue rather than continue all the bs challenges in different courts around the country which may make the opposition seem greater that it actually is.
First, Mr. Hurley, your analysis is very compelling. However, I see Kennedy as more of a wild card than you do.
Another political calculation could be to remind some progressives the importance of the president to select Supreme Court justices, especially considering Ginsburg’s age and health issues. I for one do not want President Romney/Perry/Christie/Palin picking Ginsburg’s replacement.
Finally and more practically, by appealing, the Obama administration sets the potential Supreme Court decision on its own terms. At the same time, all appeals of the ACA are likely to be consolidated, so at the very least this action shows people that Obama is willing to defend the law.
If the Court strikes it down now, Obama has nearly a year to hammer “the rich are waging war against the middle class” message, and no matter what anyone says, he’s most effective when hammering away at an issue. The wild card are the Congressional democrats. Will they support the president or will they fold?
Excuse me while I go throw up.
Kennedy has more sympathy for civil liberties than the rest of the Gang of Five (he wrote a very stirring opinion in the Lawrence case, concluding that states could not make it illegal to be gay). But on economic issues–including ACA–my guess is he won’t break ranks.
@Emma: Except it looks like a decision won’t come down until the middle of next year, which should have an impact on the election regardless of how it’s decided.
Davis X. Machina
Obama’s ultimate appeal to all twenty-seven real progressive liberal Democrats is the presidential power to nominate SC judges, and the virtual certainty that the next president will appoint two or three of them
If Roberts next October unleashes Son of Bush v. Gore, the good justice becomes the “See, that’s why we can’t have nice things…” of the run-in to November.
This argument is a.) true, and b.) bound to be ignored by the twenty-seven, because Sending A Message is a higher priority.
@lacp: Then it’s worse, because it can be spun as a way by a conservative court to influence the election — and disenfranchise the middle class.
I have my disagreements with the Obama style of governing but not his style of campaigning. They’ve thought this one through. They want a positive battle hymn, especially if the economy doesn’t show signs of improvement.
@Davis X. Machina: Pardon the question, but I seem to remember the beneficiary of Bush v Gore winning re-election in the subsequent cycle. Am I missing something, or is it your argument that’s missing something?
Way to take a stand.
@Emma: Will they support the president or will they fold?
@Davis X. Machina:
I expect Ginsberg will retire before the end of Obama’s first term if the election still looks very close. Kennedy will be replaced in the 2012-2016 term. he is 75 now and has considered retiring before.
who is the possible third?
5 of the justices are conservative appointees, 4 are liberal.
the founders and framers understood human nature very well…especially my hero Thomas Jefferson. The US government is supposed to be a tension between conservatives and liberals. But the topology of the Union is still being deformed by slavery and civil rights issues.
And the impending hammergun of the demographic timer is warping conservative ideology out of rational shape. The conservatives know its coming, and they cannot talk about it.
I think Lithwick is right. The only part of the law that is even remotely unconstitutional is the individual mandate, and I could see them saying no one has standing to challenge that yet.
They aren’t going to overturn it on some zany theory that health care isn’t interstate commerce. Not even Clarence Thomas is that reactionary.
umm…cuts payments to the providers (healthcare professionals and hospitals). and will be paired with equivalent defense spending cuts.
Did you miss the Bobo’s wailing about Obama sneakily turning defense cuts into revenues?
Also we will have 47,000 troops returning from Iraq in December.
the End of Iraq is roughly 50 million dollars a day we wont be spending.
I know Panetta plans to leave tens of thousands of CIA and contractors there (CIA gets funded from the Black Budget), but i do not think Muqtada is going to discriminate between american mercs and american troops, do you?
I would be very surprised if that happened. The potential shitstorm of a retirement at that time would be epic, and not in a good way.
@Samara Morgan: I don’t think he wants armed Americans of any stripe over there, but his reaction might depend on how low a profile they can keep.
@Mark S.: agreed. overturning the interstate commerce clause would open up a ginormous can of freed market worms.
Davis X. Machina
@William Hurley: Obama’s argument, when Roberts & Co. do what they doubtless plan to do, isn’t all that complex:
“In the light of this decision, do you want Rick Romney — or is it Mitt Perry? — appointing the next two-three SC justices, or me?
Sending those appointments to an almost certainly GOP-controlled, filibuster-free Senate?
Just how many more Federalist Society practitioners of outcome-based jurisprudence can the Republic stand?
Do you really want to find out?”
@lacp: every friday since februrary there have been Arab Spring style protests in Iraq’s major cities. Repel the occupiers is a consistant theme. Have you seen ANYTHING in the american news media on that?
If you dont think the vast majority of the Iraqi people are going to turn in any CIA handler they cop to, you are naive. And the contractors wont be able to hide. They will have to guard the stupid Vatican sized embassy. They will be sitting ducks.
This is the scenario where a street flash mob could tear an outed CIA field operative (or a suspected one) into pieces in front of al-Jazeera english’s live cameras.
@arguingwithsignposts: why? Ginsberg is 78 and has health issues.
@Samara Morgan: The timing. She retires right before the election.
1. She’s accused of trying to influence the election.
2. Wingnuts scream bloody murder.
3. It gives both sides an immediate issue to hammer on.
4. If Obama delays making an appointment, he’s accused of using the appointment in electoral politics.
5. If Obama makes an appointment, he’s accused of not waiting for the electorate to have their say.
And I haven’t even gotten to the potential shitstorm in the Senate.
It’s one thing to talk SCOTUS appointments in the abstract during a campaign. It’s quite another for one to be landing in the lap of candidates.
If ACA is overturned but the Roberts Court, wouldn’t the ruling jeopardize most of the safety net? The Reagan law EMTALA is a mandate that emergency rooms treat everyone. How does that survive?
Ivan Ivanovich Renko
QFT, only I’m adding that (given the Melissa Harris-Perry kerfluffle) it’s not just conservatives who cannot talk about it.
Almost none of it would survive. That’s why it won’t happen.
@Ivan Ivanovich Renko:
yeah, ABL talks about stealthy racism and how it muzzles even liberals though.
alhandullellah for ABL.
i wish muslims had a voice like hers.
@arguingwithsignposts: that all happens anyways.
Lithwick’s analysis is spot-on, in my view (and, with all due respect to Mr. Hurley, his is way off, for reasons which were discussed here at great length several months ago).
The notion that the Administration “moved aggressively” by choosing not to seek rehearing en banc in the Eleventh Circuit is complete nonsense. There is no assurance that it would have been granted, and given the current makeup of the Eleventh Circuit there is no reason to believe that the full court would have overturned the panel decision. Finally, the panel opinion is of such transcendently poor quality that it is a juicy piece of low-hanging fruit.
That said, I fully expect that the strategy will be to tell the Supremes that they should rule on the procedural issues presented by the cases coming up from the Fourth and Sixth Circuits before reaching the merits, which is the way the Supreme Court has gone about its business for 220 years. Those cases were both correctly decided in my view, and the Sixth Circuit plurality opinion is custom-tailored to appeal to Roberts’ oft-expressed distaste for facial challenges to Constitutionality.
Finally, I will ask Mr. Hurley the same question I have asked everyone who has predicted that Scalia will vote to invalidate the statute: how does your theory account for his concurring opinion in Gonzalez v. Raich?
Judge Chamberlain Haller: Mr. Gambini?
Vinny Gambini: Yes, sir?
Judge Chamberlain Haller: That is a lucid, intelligent, well thought-out objection.
Vinny Gambini: Thank you, sir.
Judge Chamberlain Haller: Overruled.
We knew the GOP was going to be screaming about “Obamacare” during the entire 2012 campaign season anyway, yes?
POTUS did the right thing here.
@Mark S.: Didn’t the Bush v Gore ruling come with a special footnote saying that this was a unique one time only ruling that only applied in that special situation (because shut up, that’s why)? Ignoring the fact that there’s probably a couple of justices that wouldn’t mind wrecking what safety net there is, there’s no reason why SCOTUS couldn’t do the same thing on an ACA decision.
I’m going to have to agree with John Caruso on this one. Overturning the mandate is basically the only chance whatsoever of taking power away from what he (correctly) calls “some of the most predatory and exploitative corporations in the US.”
Seems to me that folks tend to either see the justices as being (A) hypocritical, partisan and power seeking, in which case past opinions don’t mean much, or (B) as ideologically centered, in which case past opinions are a valid indicator to look at, and IIRC both camps can cite specific decisions which appear to support their view of the court, as illustrated by the two of you above.
I don’t think these two interpretations are as incompatible as they seem on the face of them. I can readily believe that Scalia for example votes ideologically most of the time but is willing to stray off the reservation if the target is tempting enough. The thing which distinguishes those decisions (e.g. Bush v. Gore) in which ideological consistency was blantantly tossed overboard in favor of partisan advantage is that they presented an opportunity for a direct, straightforward and immediate power grab. I don’t see how overturning the ACA translates into that sort of political power grab for the Right. It would certainly shake the table but I don’t think anyone has a good enough crystal ball to be able to predict what the short term effects would be, much less the longer term effects.
For that reason I think the ideological flexibility shown by the right wing justices in this case will be less than the pessimists here are predicting, because the payoff to their side for overturning the law is neither obvious nor certain. It seems to me that the court is both highly political (in both a partisan and an ideological sense) and very tactical in the way they pick and choose their political battles as a function of what is to be gained or lost. In the case of the ACA, I don’t think these mangoes aren’t ripe enough to justify getting out of the boat. I’m guessing that we get a 7-2 decision upholding the law on very narrow technical grounds (the price for having Roberts and Scalia with the majority) with only Thomas and Alito in dissent.
Hold the phone, Thomas vote differently from Scalia? That only happens when schools want to strip search 13 year olds for Advil.
Re: Scalia, see the comment burnspbesq made at #37. For Thomas on the other hand I think the chance to take a poke at the Commerce Clause (and to do so in a consequence-free manner since he will be in a minority of 2) will be just too tempting to resist.
contessakitty (AKA Karen)
POTUS is ripping off the bandaid instead of having the GOP and its buddies the media take it off little by little. It’s not as if he is borrowing trouble by starting a fight he can’t win. If he can’t win now, more than likely, the law wouldn’t have held anyway and it’s best to do it with Ginsburg still there. If SCOTUS shoots the law down then yes, the GOP cackles with mad delight and the media pops the champagne cork. But if the law survives, then the following will happen:
The GOP will gnash its teeth and scream about how liberal all the judges are (including the Conservative ones)
and they will be even more extreme when they talk about letting the rabble put on a bandaid and take an aspirin (the equivalent of Marie Antoinette saying “Let them eat cake”)
If the law is overturned then (hopefully) that will light a fire under people’s asses and all those people like me who for right now have insurance with pre-existing conditions.
It’s a gamble. But it’s not like the law wasn’t eventually headed for SCOTUS anyway.
This thread, imo, contains, on the one hand, a particularly intelligent, concise, well-reasoned and well-written take on the situation. That would be your comment.
It also contains, on the other, an exceptionally verbose, confused, self-conscious and incoherent mess dressed up to look like scholarly analysis. I’ll just look at the party and whistle.
I have no theory, but after Bush v. Gore it is clear that nothing is beyond Scalia. God only knows what he will come up with if he is given the chance to save the republic.
@Pliny: IMHO this is a Ron Paul-style argument where the abstract value of liberty (from an intrusive government in Paul’s case; from overweening corporations in this other case) outweighs the many tangible benefits of the extant policy, which have no chance of being achieved without it for the foreseeable future. Principled nose-cutting to spite one’s own face.
Jesuits and Carmelites here. And they’re not rumors. At least three of them are (nobody’s been able to confirm the link for Roberts, though given his background it’s likely). Scalia also has ties with the right-wing Knights of Malta.
Not sure why the indigestion: Silly Da Vinci Code nonsense aside, these claims shouldn’t be any more controversial than noting who’s in the Federalist Society, or the Masons (another group that gets absurdly dramatized).
My conclusions are, in the matter of Scalia’s proclivities, as free of theory as the opinions he issues. I, nor anyone else, needs to comprehend the theories of gravity nor the calculus to know the sun will rise in the east and set in the west as empirical fact.
Scalia’s recalcitrant ideological egotism belies divining what might be construed conventionally as a theory behind his practice. In fact, try plumbing for a vein of jurisprudential consistency from Scalia by comparing Gonzales against Morse. Or his episodic embrace – never before or since repeated – of the 14th Amendment where he found wisdom and power in the “equal protection” clause when selecting Bush in Bush v Gore.
Keeping with the theme of consistency or indulgent partisanship, how do you square your comments regarding Roberts specifically and the Court in the 200+ years before his Chief Justiceship and its meanderings since? Again, witness the majority’s flagrant disregard for precedent and protocol and the horror in reaction to that behavior alone from seasoned SCOTUS watchers of all persuasion. Why would Roberts enforce a “stick to the question before us rule” for ACA when he clearly imposed no such structures in CU and Heller. In fact, Breyer’s CU dissent consisted of part legal rebuttal and part, larger, deconstructing the majority’s wanton departure from the issue at-hand in service of satisfying their ideological objectives by creating precedent unmaking law from whole cloth.
In which situation do you think our health care crisis is more likely to be improved: the mandate being upheld, or the mandate being overturned? That’s what is in question here, not the provision allowing parents to keep their children on their insurance plans through college, or the outlawing of coverage denial based on preexisting conditions. What is in question is whether the federal government has the power to force citizens to buy a product from a private corporation.
Maybe, maybe not. Time will certainly tell.
At the moment, I’m both relieved and delighted that my military service qualifies me for cost-free healthcare. I’m not suggesting that that makes me Puck-ish and irreverent. I’m suggesting that having something so important that can’t easily be taken away affords a critical liberty that I exercise here – occasionally – but more often via routes of actual engagement and issue activism.
B W Smith
@Pliny: There are times when I am a person of principle and there are times when I act on ‘what’s in it for me’. The ACA is one of those times when I’m all about me and the multitude of other Americans who have pre-existing conditions. I would love a medicare for all option or some other progressive answer. I just don’t see it in the cards, not now and not for years in the future. You may have the luxury of waiting 20 years until conditions are right, I, unfortunately, do not. For the first time since deciding for self-employment, I have affordable insurance coverage. And it is good.
Though your assessment of the locus of them matter is accurate, the court’s new found fondness for judicial meandering out-weighs what in the past were reasonable expectations of the court’s behaviorwhen adjudicating matters it chooses to hear.
@B W Smith:
Unfortunately, the political test of a “medicare for all” or “single payer” model was not put before the voters. It was the President who, of his own volition and without informing Congress, negotiated away those more cost-effective and comprehensive alternatives behind closed doors with lobbyists and executives representing the insurance, hospitals, provider, pharmaceutical and other affiliated industries.
Once he made his deal, he told Pelosi and Reid that the goalposts had been moved.
I’m still confused by the framing of this: Some people speak as though the entire ACA was potentially under the threat of repeal… but isn’t this only about the individual mandate portion of it?
Should the mandate be found unconstitutional, on what grounds could SCOTUS repeal the entire ACA? (I realize that taking away the mandate ‘breaks’ the ACA, but that’s a different issue).
B W Smith
@William Hurley: Well, unless you are advocating a constitutional amendment, how exactly do you put it in front of the voters? Just because Obama made a deal doesn’t mean that congress had to uphold that deal. I am well aware that opinion polls showed support for the public option and a sort of medicare for all substitute. Unfortunately, it is votes in congress that count. We’ve plowed this row multiple times. It always turns into vitriolic screaming match. My only point is that I and many others have chosen self-interest over principle because we don’t have the luxury of waiting on the what-if’s.
B W Smith
@Judas Escargot: You would need to rely on one of the attorneys on board for a full explanation but I think it has to do with the lack of a severability clause. Some have feared that SCOTUS would take that opportunity to knock down the entire law.
@B W Smith:
Yeah, that’s what they’re talking about, but I think they’re wrong when they say a court has to strike down an entire law if one provision is found unconstitutional unless there’s a magic severability clause in there.
This lady agrees with me:
Oh really? So I guess all those meetings of various Senate subcommittees in which the details of the different proposed bills were worked out over the course of months in agonizingly prolonged negotiations involving multiple individuals (e.g. Max Baucus and the Maine Twins), frequently without consulting the WH, and the late stage attempt to come up with a Medicare for all solution (which was torpedoed by Joe Liebermann), all those things were merely a figment of my imagination. Well crap; note to self: next time lay off the really cheap Tequila.
@Davis X. Machina:
I don’t disagree with your speculation about the make-up of the court with a GOP President and GOP Senate (or a Democratic Senate that will be as compliant with Republicans’ demands “tomorrow” as they’ve been in the past).
My two points are these:
1) Members of the electorate who are or would be moved by the scenario your describe are a fraction of the electorate as a whole. Cycle after cycle, the argument regarding the crucial dynamic of President and SCOTUS corpus is put forward. It bites more often on the right than on the left, to my eye, I’m afraid to report.
2) It is, in fact, the gravity of such nauseating outcomes that spur my calls here and elsewhere for a primary challenge to Obama. By my estimation, he cannot win reelection. I’ll not load my “employment” numbers tape, for now. The “other shoe” is one that is as damning to his prospects but is far less appreciated by virtue of the conditional novelty.
The novel feature of the 2012 Presidential cycle is the effect that the Roberts courts’ reinvention of campaign finance law brings to bear on the elections – from the race for the White House to every obscure local aldermans’ contest and county commissioners’ race. It’s prima facie evident that Obama, Plouffe, Axelrod and the rest “get” the fact of the unpredictability of this novel “wrinkle”. The “tell” was Obama’s very public pronouncement of a $1 billion fund raising (and spending) goal. $1BB, that’s normally a huge sum. However, contextualized against the sum of quarterly bonuses Wall St financial houses hand-out, it’s a total that wouldn’t even cover 2 quarters of bonuses. Consider too, how many billions might the oil and gas industry lose in subsidies – grants, tax relief, loan guarantees and other perks – before $1 billion seems small. I’d say pretty quickly. How about the portent of a reversal of fortunes for the nuclear power industry. Without granting a new penny or dime, but by simply unwinding itself as guarantor of construction bond issues and loans to meter cash-flow/balance sheet requirements would top $1 billion before accounting for half of the outstanding and rolling obligations of operations today.
And even Barry’s and Bill’s buddies who make fabulous profits in financial services stand to lose 11 or 12 figure sums if Obama and the Dems recoup losses from the 2010 elections. Were it not for Barry’s undying need for Wall St’s largesse, Elizabeth Warren would now be an Executive Branch officer and not a candidate for Senate in MA. With Obama out and the prospects of a “clean sweep” within the GOP’s grasp, you can bet your bottom dollar that both Senate Republicans and the President are steadfastly avoiding any efforts to “people” the CFPB and other agencies newly re-empowered by Dodd-Frank.
Adding insult to injury, on the funding front, various media outlets and “think” tanks recently reported that so-called small dollar donors contributions are notably lagging the 2008 pace. Now, there are numerous conditionally valid reasons for a dip now. No primary being a#1 on the list. But, the trending of small dollar donations across the Democratic Party spectrum are down. The question I’d like answered about this data is whether there’s any correlation to wage deflation and/or employment or is there a correlation between approval ratings and inflows.
But, in the final analysis, Obama is not re-electable. That’s a reality “circular firing-squads”, in-group recrimination nor panicked blindness will remedy. Another candidate is needed. A primary challenger or two might well provide the party with a true alternative – or it may enliven the entire electoral landscape propelling Obama up and over the many mountainous obstacles that will otherwise kill him reelection.
And let me be clear, Obama losing is very, very bad. Even a replacement as the Democratic nominee losing would be very, very bad. Therefore, what are the options? What are the risks? How is the entire landscape effected?
I can’t answer all or those, yet. But I can say with confidence that the prospects of the President and the formal/connected Party apparatus will work – is already working overtime to vacuum-up every single dollar they can see or smell. That fact leaves “down-ticket” candidates in a very vulnerable position, competing for campaign cash with primary opponents first (if applicable), then their local opponents and the President as well. Meantime, Labor has already “cold-shouldered” the President for his passivity and, in certain instances, his active hostility to labor-favored candidates and – more importantly – the running battles underway in dozens of states.
These circumstances are further complicated by the cyclical bad luck that the GOP has 11 of its Senate seats up for election while the Democrats have 24 to “defend”. if you add Warren, assuming she prevails in the primary (quote likely), there’s more contests and, again an accident of timing, more of the Dems defense will be mounted in the most expensive states in which to campaign – NY, NJ, PA, OH, MA, CA……
Oh yeah, the senior Senator from California is up for re-election and only recently discovered her campaign’s flat broke – victimized by a trusted operative turned embezzler. In addition to the imbalance in the costs of defensive races, the GOP enjoys a situation in which 2 maybe 3 of its seats are “competitive” – Brown being one. Defending and competing for enough seats to hold the Senate is a hugely expensive undertaking all on its own.
So, in conclusion, the employment math, the funding math, the despair factor and the rightward drift of the “middle” and other factors present the Democratic Party – and the nation – with a very knotty problem. Again, dropping Obama now gives a replacement candidate or contests enough “runway” to establish her or himself with the public, raise funds and create a real dramatic fire that will captivate and potentially capture more prospectives voters than the President – left unchallenged – will garner on election day.
The make-up of the SCOTUS – for decades to come – is a premium trophy due the victor. Let’s make sure its a Democrat who wins that honor!
@B W Smith:
Fair enough, I remember reading about the severability issue from last year, and it didn’t make much sense to me back then, either.
My other issue: Isn’t the “mandate” actually implemented as a tax? Here in Mass, you won’t get arrested or fined for not having health insurance. You’ll just pay an extra tax come tax prep time if you can’t provide legitimate proof of insurance.
So the whole colloquial framing is, IMO, incorrect: No one is forcing you to buy a damn thing. Feel free to be an uninsured parasite on the health care system, but you’ll be paying an extra tax for that choice.
IANAL, yadda yadda, but paying an extra tax that’s triggered by making a choice just doesn’t seem like that special of a case to me.
So what would SCOTUS do? Make taxes unconstitutional? (That breaks the whole government). Claim that the law “discriminates” against the uninsured? (that opens a can of worms I doubt they’ll want to open).
I guess my point is– I just don’t see a rational argument that SCOTUS can make against the mandate that wouldn’t reverberate through every other aspect of the current system. Is a “conservative” court really going to shatter some load-bearing wall (so to speak) –causing unforseen consequences for decades to come– just because their party hates Obamacare?
Must I again, on this site, provide links to the multitude of sources – sources in this matter being White House memos and e-mails – definitively proving that the President did in fact act as I’ve described?
How many times must I re-post such info before we’ve descended into a “birther-like” land of impulsive denial?
@B W Smith: Agreed.
My hus has cancer, and the fact that he cannot be turned down for coverage is absolutely HUGE for our family. (I know it hasn’t started yet, but knowing it’s coming has made getting insurance easier. Plus we can figure out how to bridge health care if need be, for a couple of years)
Do you not know that this SCOTUS has no care nor concern for consistency, jurisprudential integrity nor the indulgence of abject randomness?
You’re referring to the presence of a logic that does not exist. Have you read bush v Gore? It’s merely one of many pro-active and irrational (assuming the presence of an operating logic) decisions that rationalizes the majority’s naked assault on stare decisis.
(1) Name the last time in American political history that a party holding the WH dumped the incumbent President, ran another candidate instead, and won the general election.
(2) I’ll wager you $100 to be donated by the loser to the non-profit charity of the winner’s choice that your first statement quoted above is falsified when Obama wins the 2012 general election. Taker?
That’s a good question. The only time I can think of is Franklin Pierce being replaced by James Buchanan.
Wow, I’m a nerd.
I was asking a process question, not an ideological one. No matter what their motivations, they’ll have to actually write a decision that will outlive them all. Even in Bush v Gore, they had to write something that vaguely resembled a rational legal argument (including the ridiculous “Onesie Time Only! Gimme a Pony!” clause).
If ideology is truly their only concern, they will also not want to risk being one-upped by Obama’s DOJ or some future Democratic Congress. A radical decision that (for example) happens to overturn some core principle of the New Deal would unravel the legal basis of most of the current government. That is not something that will lead to a nice, gradual change in the way things work here– they’d be setting off a period of 20-40 years of utter legal chaos, as new structures were developed so the country could still exist under whatever new theory they came up with… with no real guarantee that their side would end up on top.
IMO, Thomas and Alito may be that stupid, but Scalia? Roberts? So… what would a decision overturning part or all of ACA have to look like, to keep the rest of the government from unraveling?
The possibility of passing a public option and/or Medicare for all lived or died in the Senate. Obama didn’t and doesn’t control the US Senate, a notably willful body throughout its history and especially so when tasked with passing progressive legislation. During the months leading up to passage of the ACA Obama was roundly criticized (with some considerable justification IMHO) both on this blog and elsewhere in left blogistan for not being forceful and proactive enough in dictating terms to the key Senators who were in charge of the subcommittess tasked with drafting the actual legislation. The idea that Obama erred on the side of tyrannically dictating terms to Congress is absurd.
I’m not impressed by your claim that a blizzard of links will somehow prove your point, or prove much of anything other than your skill at cherry picking information in order to fit your chosen narrative. We’ve already been over this exact terrain a thousand times before in detail right on this very blog. I’m also not interested in an exchange of ad-hominem attacks, so if you want to call me delusional, go right ahead and be my guest. The folks who were reading the numerous posts on this blog re: the ACA during that period know the truth or falsity of my version of events and can make up their own minds.
B W Smith
@Mark S.: That answer may get you my nerd of the year nomination. Love that you could come up with that!
JoyousMN: Sorry I’m not savvy enough to do two links so I hope you see this. If your husband does not now have insurance or loses it before 2014, HHS has a program through which one with a pre-existing condition can get coverage. That’s where I got mine. It’s on their website.
William Hurley: Where are you going with this? At this point it does no good to place blame and recrimination on past deeds. Are you saying you support SCOTUS striking down the mandate and the entire ACA?
And the latter’s administration certainly ended well, didn’t it? Perhaps this is not the best choice for a precedent we should seek to emulate.
And important article to re-read on this issue. May have been linked from here before.
What could you possibly mean when you say that the Democrats didn’t control the Senate upon Obama’s inauguration? Seriously?
The Democrats held an 18 seat advantage in the Senate and an 80 seat advantage in the House.
As for the President’s back-door negotiations, without Reid’s or Pelosi’s knowledge, take a look at the White House memo embedded in the item linked here. If you breath slowly, and read through the entire article, you’ll see that the item is densely populated with linked references to a multitude of reports and internal docs regarding the President’s serial concessions to industry.
What I find amazing is your incredulous reaction to information about the President’s duplicitous behavior that’s been in the “public domain”, depending on the instance, for upward of 2 years. And yes, there have been many instances where the President misled Reid & Pelosi as well as Democratic committee chairs spearheading specific negotiations with the GOP. For example, there this report regarding the President’s secret, direct meetings with Beohner, Cantor and McConnell while pretending to be uninvolved in such actions without Congressional Democrats knowledge. You’ll find that info linked here.
People like you do real damage to the long term prospects for the Democratic Party specifically and left politics generally. Willfully ignorant, kool-aid guzzing mindlessness is a posture that the authoritarians and megalomaniacs on the right require. Such foolishness is antithetical to open, engaged, informed exchanges that are – and have long been – the sources of strength that enables the left to conceive and deliver politics and policies that better the human condition.
@B W Smith:
Let’s visit your questions in order.
Where am I going? I honestly don’t know how to answer this question.
As for “blame and recrimination”, I disagree. I may have chosen to use different language but these terms will suffice for now. The principal reason I disagree with your assessment that “it does no good” to assess, learn and require accountability from elected leaders, business leaders and other such persons.
Why? I believe comes next.
The “why” is informed by both near and long term considerations of “next steps”. For instance, sticking with the ACA as an example, if the SCOTUS does issue a ruling that cripples, neuters or simply invalidates the law – what happens next as a response from the left? Successfully reforming the nation’s health care system is a necessary undertaking. In the wake of a hypothetical invalidation of this effort, resulting in Obama’s ACA, how does the Democratic Party and the left restart the effort to achieve reform? I say this because, consistent with the scenario, there will be politicians, MSM types and the “victors” – being those who made it their mission to kill any reform to the health care system – who will give-up (as happened in 1993) or will encourage surrender because as victors those folks consider the “fight” won.
Without a clear understanding of the means by which failure became the result, restarting the exhaustive and complex project to try yet again to fix healthcare languishes – as it did in 1993. Holding various advocates, actors and strategist to account for their respective roles in producing failure keeps the institutional experience of organizing and negotiating policy directions fresh in the minds of those who pick-up and restart the project. Again, hypothesizing that the ACA is killed, would those who take-up the effort be following a better path to potential success? In public policy, the debate of how to start, let alone which policy direction to embark upon happens with the very decision to do the work. So, would a plan (policy and politics) be more or less likely to succeed with the electorate, elected representatives, the courts and a President if the reform model was based even more than the ACA on a “free-market” paradigm? Or would a near polar opposite stand a better chance of becoming law? I know my views. But in the scrum of assembling a coalition, past bad actors (knowingly or unknowingly) will gravitate toward the reinvigorated project if for no other reason than because of their past years of commitment to the past failed effort and the aura of expertise that may well be used as a bargaining chip to get back into a new coalition. Where these people good, misguided, bad faith or merely over-matched actors when working in support of the prior, failed project?
Ask Larry Summers – or don’t. He was a loud-mouthed pain in the ass – and very wrong – in the policies he trumpeted as a Rubinite in the Clinton Administration. Had he, Rubin and the rest of the gang been held accountable politically – if not legally – for the shitty and destructive policies they pushed into law, we – as a nation – would not have had to endure Summers’ follow-up round of “sound-alike” shitty advice to Obama urging him to follow the most timorous policy path when seeking to pass the initial stimulus package (ARRA). Had accountability and an understanding of past bad policy goals been enforced, the dynamics and personalities providing Obama guidance as to the size and structure of ARRA would have been necessarily different. Better, maybe, maybe not. But it would not hav been the guaranteed failure that Summers and crew demanded as they aped their shitty advice given to Clinton now given to Obama.
So, which path and which “experts” are at the core of restarting the project to rebuild a healthcare reform movement? Without accountability, institutional bed-bugs will fuck over the process from the start.
The last question you posed asked if I hoped or wanted to see the ACA damaged or rejected by the SCOTUS. The simple, true answer is no.
The enhanced answer is still no, but again, since the ACA is a shadow of a workable family of policies designed to truly fix the system, then what options and which people are brought together to launch and advance the reform the reform movement?
In such a case, being unaware that the President had unilaterally and secretly conceded core policy objectives and popular functional mechanisms, one might not think to check the sitting President’s influence over the process. Hard? Yes. But neglected, as we saw with the ACA, more efficient options such as “medicare for all” or an independent “single payer” alternative were traded away before the political horse-trading got underway – and as a result we have a brand new policy that is in need of reform.
Doing that over and over again is what makes the metaphor about “sausage-making” so apropos complex, wonky policy making. It’s also why “average” citizens burnout so quickly in the policy realm.
That seems to me to be a very peculiar reading of Robert’s concurrence in Citizens United. I read his concurrence as an attempt to reassure the world that the Court was not following Thomas through the looking glass into a world where there is no stare decisis and no reliance interest can ever be legitimate. I think it’s relatively clear that the only thing Robert’s liked about the majority opinion in Citizens United was the outcome.
As far as Heller is concerned, Roberts did not write separately, so there is no principled basis on which to base any conclusion as to how completely he bought into Scalia’s rejection of the conventional historical narrative about the Second Amendment. I happen to think that Heller is horrible policy. I’m less certain that it’s bad law.
B W Smith
@Willam Hurley: Damn, that was a long and at times incoherent answer. You’re an attorney, right? That’s not condescending I was married to one. Basically, all I wanted to know was where you stood re: SCOTUS decision. So you wish to see the ACA upheld including the mandate. Good. The rest is your preoccupation with the process which is fine. I’m sorry you feel the president sold out single payer and medicare for all. Maybe he did, but there were multiple bills introduced for reforming health care in America. I found one that offered single payer. That was Bernie Sanders’ bill which I think he introduces in every congress. Almost all the other Democratic proposals included some form of the individual mandate. Some of these were prior to the crucial meeting with PHARMA. I guess those guys were prescient.
I said nothing of the sort. In response to your allegation that Obama inappropriately dictated the terms of the ACA to Congress, I said that the President (not the Democratic Party) did not control the Senate. This is a true statement both formally in a constitutional sense and informally in a practical sense, and the rest of my comment flows logically from there. No point in addressing the rest of your comment if we can’t even agree on something as simple as that. And I see that you haven’t attempted to address the two very simple questions I posed in my other comment at #66. At this point I doubt that you and I have anything constructive to discuss so I’ll leave you alone from here on out.