The Affordable Care Act is on the November ballot. A Democratic trifecta saves the law. Divided government allows for a troll of a lawsuit to overturn the law.
As I explained in January this was a bet on actuarial tables:
This is in the backdrop of the 5th Circuit mostly agreeing that 90% of the ACA needs to be thrown out as unconstitutional becuase the individual mandate penalty has been zeroed out and they think that the district court was a little too broad in the severability analysis (save calorie counts on fast food menus etc) but mostly right.
The Blue State AGs are betting that the five judge coalition that upheld the ACA in 2012 in NFIB v Sebelius will uphold the ACA against a far weaker trolling argument in 2020. This is a bet on both actuarial tables as two of the justices (Ginsburg and Breyer) are old and a bet on consistency for Roberts. Four justices are needed to grant cert which is the court’s agreement to hear a case. The four liberal justices are likely to supply those votes. Five votes are needed to expedite a case.
Vote, organize and advocate accordingly.
cmorenc
McConnell’s play is to pack SCOTUS with at least 5 hard-right justices, cutting Roberts out as the last potential moderating swing vote – and let them proceed to dismantle the foundations of progressive and secular government going all the way back to the New Deal, irrespective of whether and for how long Democrats may firmly control the other two branches.
Unless at lest two other R Senators besides Collins and Murkowski rebel against Trump/McConnell’s power play and manage to postpone selection and confirmation of RBG’s replacement until after Jan 21 – the Democrats will have no choice but their own “nuclear” SCOTUS play of increasing SCOTUS to 13 Justices. Hopefully, at lest 2 further R Senators will grasp that at worst, postponing RBG’s replacement selection until after Jan 21 still leaves a SCOTUS with a 5-4 majority without any likely conservative wing justice retirements for at least 4, and probably 8 years, whereas they will outright lose their majority in very short order if they let McConnell and Trump plunge ahead.
Of course, next time Rs control both Congress and the Presidency they could increase the court to 15 or 17, but that’s a course for destabilizing and de-legitimizing the court, which hopefully any resisting R Senators would also foresee as in the country’s long-term best interests to avoid initiating by seating a hard-right justice before Jan 21.
sdhays
@cmorenc: If we could count on the Democrats actually pulling the trigger on ending the filibuster and expanding the Supreme Court, I’d say fuck it, go ahead Mitch. Put Ted Cruz on the Supreme Court. Between those two things, a whole lot could get fixed very rapidly.
cmorenc
@sdhays:
You can’t fix the likes of Ted Cruz, nor the impact the likes of him having any seat on SCOTUS.
I don’t think the Ds will have any choice but the nuclear 13 option if Trump/McConnell attempt to long-term pack the court with a 5th hard-right justice before Jan 21. Otherwise, the hard-right 5 will frustrate Biden and the D Majority at every turn when they’re not busy undoing the foundations of progressive government and civil rights laid back decades ago.
What Have The Romans Ever Done for Us
I think one of the things that went sideways with the Kavanaugh fiasco was the whole did he or didn’t he grope or rape women (which it’s understandable that’s where the focus was because it was disqualifying) was it took the focus off his awful judicial record. He wrote lazy poorly researched opinions. This time around we need to focus on the awful opinions, especially those that might be wedge issues that might dampen enthusiasm among Republican voters. Off the top of my head “great, now we’ll have six Supreme Court Justices who think corporations are people.” seems like it could make some conservatives think twice about what they’re getting. I could be totally wrong but my sense is that the rank and file GOP voter isn’t real enamored of corporations getting personhood.
Also, do we know how this conservative majority will treat Social Security and Medicare? If we can scare people into thinking they may find those programs unconstitutional that would freak people out…I see lots of right wing memes on my facebook page thanks to growing up in West Michigan, but most of those people post memes about how SS and Medicare are earned and they’re owed those programs. Conservatives that aren’t filthy rich love those programs and if the new justice puts them in jeopardy, well, they’ll think twice about whether doing away with abortion is worth it.
joel hanes
A whole lot more than the ACA is on the ballot.
Eric Feigl-Ding on Twitter: “OH CHRIST—Trump HHS just did full “power grab” takeover of all drug/vaccines. Via “stunning declaration” of authority, HHS Secretary Azar barred FDA from signing any new rules—power now “is reserved to the Secretary.” Trump now controls all of it. #COVID19 https://t.co/MZcOBN4TGr” / Twitter
Cheryl Rofer
@joel hanes: I agree that a whole lot more than ACA is on the ballot.
That said, Eric Feigl-Ding is a sensationalist who is better not listened to. I DO NOT follow him on Twitter – my blood pressure doesn’t need that – but I saw this tweet from others retweeting it.
The information in the Times article is concerning, and we need to keep an eye on it. But we already knew that Trump has inordinately influenced the organizations we rely on to provide sound health information and judgments. So setting our hair on fire for this one action of many similar ones isn’t a good idea. We need to keep cool and vote the bastards out.
Matt McIrvin
YES! Someone makes the point I keep bringing up when people talk about SCOTUS killing the ACA. This is really all an effect of Congress being unable/unwilling to make laws. If it can pass one simple legislative patch, this one goes away.
Barbara
@Matt McIrvin: Right. Although I think this is a ridiculous decision by the Fifth Circuit, Congress can sweep it away. And it would but for the Senate.
@Cheryl Rofer: Regarding the vaccine dynamics, I would not have predicted that Alex Azar would be such a bootlicker when he was appointed after Tom Price resigned. However, missing in all of the hand wringing is one very important point: you can’t force manufacturers to ask for emergency use authorization. My money would be on Astra-Zeneca as the most likely to cave to political pressure. Nonetheless, a nakedly politicized vaccine approval process will not be good for Trump (or anyone else). The public missives being put out by manufacturers about respecting the integrity of the process and not asking for authorization before a vaccine is ready is them telling you that they don’t think Trump is going to win.
Cheryl Rofer
@Barbara: I’m not convinced that the statement from the manufacturers is for more than window dressing. I don’t trust Big Pharma much more than I trust Trump.
That said, it’s better that they did this than not. It was probably a shot across Trump’s bow, but he doesn’t care.
There will not be a vaccine before November 3.
Here’s a thread I just saw on Twitter about manufacture and distribution.
Barbara
@Cheryl Rofer: Everything Trump is doing from hereon out is for media impact only, even if he is too stupid or clumsy to understand how to do that effectively. Vaccine approval and distribution is at the far corners of my expertise, but his pronouncements on vaccine availability are in line with what he has been doing with regard to the related subject of pharmaceutical pricing — something I know a lot about — which has been to sign a flurry of pointless executive orders that promise lower prices without any clear mechanism to get there. It’s like promising a symphony and then producing amplified sound without any melodic structure.
Do I trust manufacturers? Not really. However, remember, they don’t really make much if any money money on vaccines. That said, they have incredible expertise, and deploying that expertise at significant expense (though obviously subsidized by you and me) to produce a Covid vaccine should be seen as an investment in public relations as much as public health. If their vaccine turns out to harm people or not be effective, they will not only have wasted a lot of money, they will be much worse off.
dirge
What are the likely impacts for a loved one undergoing, for example, cancer treatment right now?
Can they count on their current health insurance? What if the condition preexisted the current plan, but diagnosis didn’t? Should they expect problems at the end of the plan year? Immediately when the decision comes down?
if Democrats can fix this, can they fix it fast enough to save such a person from death and/or bankruptcy?
Is there anything I can do right now to hedge against the risk?
Matt
Hot take: if we’re having to rely on actuarial tables to avoid having cases decided based on nonsense arguments because fully half of the judiciary is infested with conservatives, we’ve already lost our democracy.
You can’t have a political system based on negotiation with that many people who lie constantly.
Eunicecycle
@Cheryl Rofer: I read somewhere that at least one of these vaccines require 2 doses, that I assume are not at the same time. I can imagine the compliance problems with that. People with one dose are going to think, “Eh close enough” and not get the second dose. And then there are the logistics with just getting about 600 million doses to 300 million people.
Brachiator
@What Have The Romans Ever Done for Us:
Who is “we” here? Democratic senators?
In any case, I have never, never, ever, seen any discussion of any Supreme Court nominee that focused on the quality of their opinions. Never. This is beyond obscure. There is talk about ideology, judicial philosophy, basic qualifications, track record, etc. but nobody gives a rat’s behind about anything as nebulous as “quality of opinion.”
And “poorly researched.” You going to bring in law school professors to grade opinions?
Matt McIrvin
@Eunicecycle: There’s definitely going to be a danger in the early days of the vaccines that people think of them as a miracle cure that makes everyone invincible to COVID, rather than the highly imperfect tools they will be. A 50% effective vaccine is only any good if people keep following the other precautions too, for long enough for the pandemic to abate. Otherwise it’s probably less effective than just having everyone wear masks!
Brachiator
@Matt:
We lost our democracy when Trump was elected. Maybe a little before, when the Republicans became determined to act as though they were the only legitimate political party in the country.
The question is whether democracy can be restored.
Ruckus
@Brachiator:
The critical question and answer, right here in front of us.
zzyzx
I’m not usually a paranoid person, but it looks like Trump has telegraphed his move this weekend. He’s going to file a horribly argued emergency law suit to stop vote counting in any state where he’s ahead and hope that he’s packed the courts enough for him to win. If he fails, he’ll sign some insane EO saying that Biden cannot be seated and again hope that the courts rule that the executive branch has that power.
I can see 3 Trump appointees, Thomas, and Alito saying, “Sure. Why not?”
Someone want to talk me off of that ledge please?
What Have The Romans Ever Done for Us?
@Brachiator: I saw it WRT to Kavanaugh but it was drowned out. That said I think focussing on how they would vote – as dictated by ideology and past opinions – on Republican wedge issues is the really important thing. And the we is any Democrat that has a microphone in front of them.
Make them fear losing SS and Medicare. Make them fear ever greater corporate power and abuse. Let them decide if overturning Roe is worth it in light of the bad stuff that might come along with it. Peeling off a sliver is enough to turn the election.
joel hanes
@Cheryl Rofer:
CDC just removed the information about aerosol transmission of SARS-CoV2 from their website.
Elizabelle
@zzyzx: If you turn out to be wrong, which excellent cause — political, charity, environmental, pet and/or animal related are you going to make a donation to?
It would be a good cause, and you can reflect on how wrong you were as you send the donation.
TrumpWorld is awful enough. Why imagine even worse things he/they could do? You say you are on the ledge, and I personally don’t enjoy reading comments like that.
Elizabelle
Haven’t read the thread but yes, it is on the ballot, and we can remind each and every blue and undecided voter we come across about that.
The Republicans are such horrors and morons. To be trying to overturn the ACA, during a pandemic when a lot of people have lost their jobs, are on reduced hours, when students may not even be in college and able to access that health-plan … is such a losing idea. Suspect this is to gin up their base of cruel greedy people and morons. I don’t think it plays well with rightwingers.
Matt McIrvin
@Cheryl Rofer: There will not be a vaccine before November 3, but there will be an attempt to create the illusion of a vaccine, probably by taking whatever step on the road to vaccine distribution is breaking news at the time and touting it to the heavens.
Elizabelle
@Elizabelle: Obviously, my last sentence is “doesn’t play well with anyone but rightwingers.” But you knew that.
Geminid
Bearing Drift, published by self-described Va. conservatives, had a good article today by D.J. McGuire, titled “Why Joe Biden is the Pro-life Candidate.” McGuire cites studies indicating that a repeal of Roe would reduce abortions at most 10-15%, maybe less. Because many abortions are because of economic stress, he posits that many more could be prevented through better support of pregnant women and new mothers, than a repeal of Roe. McGuire also compares the Reagan/Bush 1 years (1980-1992), when abortions went up, to the Clinton years when abortions came down 36.9% 1992-2000; and the Bush 2 years 2000-2008 when abortions declined 3.8%, to the Obama years when abortions declined 24.5%. I sent this article to my friend in Atlanta, who has a personal moral objection to abortion but believes the state has no business enforcing that belief. His wife, an ardent Catholic, is fairly liberal except for this one issue. I don’t link, but McGuire’s piece is easily found on the Bearing Drift home page.
Captain C
@Brachiator:
So, no later than 1994.
Bob Hertz
Based on my reading — and I am not an attorney — the current case on whether the ACA “fails” is legally pathetic. Those bringing the suit have no standing, the reasoning is tortured, the precedents are lacking, etc.
I can and do have disagreements with Gorsuch, Thomas, Kavanaugh, and Alito, but they are not party hacks. They will not just do what Mitch McConnell tells them, and John Roberts certainly will not.
If I have missed something here, do let me know. Again from my vantage point, this ACA case will end up 9 to nothing for the Dems’ cause.
Geminid
@Geminid: My Atlanta friend thought the Bearing Drift article was “very compelling,” and forwarded it to his wife.