ObamaCare SCOTUS Reaction: Why Not Find a Way to Make the Benefits Worth the Price?

I was going to let bmaz handle the ObamaCare debate. But then I read this Jonathan Cohn piece–which asks whether SCOTUS’ likely decision to strike down the mandate will delegitimize the court. And I had to respond.

Cohn started his discussion on legitimacy last week with this post. In addition to, as bmaz argues, downplaying the importance of the limiting principle, Cohn describes how a named plaintiff in the case, Steven Hyder, explained his involvement in the case. Cohn focuses rather more on Hyder’s incoherent TeaParty rhetoric…

“It’s a complete intrusion into my business and into my private life,” he told me. “I think it’s one big step towards a socialist society and I’m purely capitalist. I believe in supply-side economics and freedom.”

Than on his more basic description of why he hasn’t bought health insurance…

He said his motive was straightforward. He’s opted not to carry health insurance because he doesn’t think the benefits justify the price, and he doesn’t want the government forcing him to do otherwise.

I’m rather more interested in this “straightforward motive” bit: Hyder says the benefits don’t justify the price.

I have no idea what Hyder’s income is, but remember that for around 16 to 19% of people affected by the mandate, buying health insurance would only limit, but not eliminate, the possibility of medical bankruptcy, without making health care for serious but not life-threatening problems financially accessible. That chunk of people would not be able to afford to use the insurance for anything more than the guaranteed preventative care and catastrophic care. And yet they would be asked to pay up to 8% of their income for this badly inadequate insurance.

Hyder may spout TeaParty rhetoric that makes it easy to dismiss him, but he also points to one of the realities of health insurance in this country: it is very expensive and for many people, its benefits may not immediately justify the cost.

With all that as background, let’s turn to Cohn’s catalog of opinions on whether SCOTUS’ decision will delegitimize the institution (note: Cohn doesn’t say whether he thinks SCOTUS will throw out just the mandate or the whole kit and kaboodle, which seems rather important, but the Administration’s own choices and arguments about severability may be responsible if the latter occurs).

To summarize the arguments Cohn lays out (these are my summaries–apologies for any distortions of the views portrayed):

Cohn: Overruling an act of Congress should erode the Court’s authority.

David Bernstein: The ruling won’t undermine the Court’s legitimacy because those who might object to it–liberal journalists, lawyers, and activists–have too much invested in the Court to make the case.

Scott Lemieux: The ruling won’t undermine the Court’s legitimacy because a significant chunk of elite opinion and a majority of the public would find the decision legitimate. And also, the ruling won’t lead to anything better because the insurance companies, which are the key agent, won’t let anything better arise.

Andrew Koppelman: The ruling will undermine the Court’s legitimacy because it will “force” Obama to spend “millions of dollars worth of television ads trying to persuade the American public that the Republicans on the Court are a bunch of despicable political hacks” and negative advertising works.

Of note, look at the differing emphasis on who has agency to affect the Court’s legitimacy: the liberal commentariat, insurance companies, and Obama.

Cohn ultimately ends his piece with the question of agency, noting,

Public perceptions of this case, and the Supreme Court, are not some static reality. How people react to the final ruling will depend a great deal on what they hear and read, directly and indirectly. And that’s true no matter what the Court decides.

Right: public opinion will be affected in part–as Lemieux acknowledges–by the widespread dislike for the mandate as well as support for other provisions of the law (which, because the Administration is only now getting around to telling people the good parts of the law, many people may only discover were part of ObamaCare if they’re taken away) that they really like.

But it will also be affected by what gets written now. It will partly be affected by what people like Cohn write now.

And not only do I agree with bmaz that responding to a legal setback by attacking the legitimacy of the Court is unwise (I’d add that because the polling on the mandate is so bad, it also risks making people side with SCOTUS over Democrats as a whole on this), I also think there are far better options.

About the only reason to attack the Court, now, as ObamaCare supporters are doing, is if they believe it’s going to persuade John Roberts or Anthony Kennedy to change their vote; given the defensive response to Obama calling out the Justices for their Citizens United decision, I think that’s a pipe dream.

A better response than Koppelman’s plan, then, would not be to attack the Justices (since the public generally dislikes the mandate), but to use their decision–and more politically unpopular decisions–as a call for really pushing court appointments. Such a response would be even better if it were matched both with the commitment to invest the money and effort to make the American Constitutional Society as effective as the Federalist Society has been at packing SCOTUS. Not to mention a commitment from Obama to take a more aggressive approach on judicial appointments, which would mean fighting for people like Goodwin Liu.

I’m skeptical that’d be all that effective a response: not only have Democrats always run by warning about SCOTUS appointees–with marginal effect–but Obama’s own history doesn’t show the level of commitment to making judicial appointments a politically legitimate issue that you would need to make such an approach credible.

But there is another alternative, one that might have a better impact on the election and help Obama shed the political unpopularity of the mandate. Simply say, now,

Well, we tried to provide health care by relying on the existing insurance networks, but SCOTUS seems like it’s going to say such an approach is unconstitutional. So we’ll have to roll out a way of doing so–after all, the Court recognized the importance of health care–in a way that would be Constitutional. I’m planning on fighting for Medicare buy-in.

Now, Lemieux may be right in suggesting the insurance industry dominates Congress to an extent that Medicare buy-in would never pass (the only thing that scotched the idea in 2009 was Joe Lieberman, who will be retiring, though we’ve lost the majority we once had, in part because of the unpopularity of the mandate). But Medicare buy-in solves all the problems except insuring insurance profits: it would make health care more accessible (and more accessible than it would be under ObamaCare), it would actually help Medicare’s funding problem (because more healthier people would enter the pool with our retirees, and they’d be paying a premium for coverage), and it would help Obama pivot away from the unpopular mandate to something widely popular. If Obama made such an announcement now, rather than waiting for an adverse ruling, it might be more persuasive to the corporatist hacks on the Court to uphold the mandate, who wouldn’t want insurance companies to lose these captive consumers.

And it would provide a health insurance option that might even be attractive to Steven Hyder.

Cohn is right: what people write and say now will have an impact on the public response. And progressives can either double down on a plan that didn’t solve Hyder’s problem: that health insurance remains a really shitty deal in this country. Or they can at least threaten to offer a better alternative.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

97 replies
  1. bmaz says:

    I would not that Medicare buy in, or even universal “Medicare For All” for that matter, would not kill health insurance companies; they would still have a market for excess/supplemental coverage as they do now with Medicare. It would, however, excise a healthy chunk of the economy that serves only their profit greed and bloated overhead.

    I would also note that there were questions – from the conservative doubting justices – during argument that wondered why the tried and tested modalities (referring to tax and expend Medicare) would not have been pursued instead of the novel Constitution stretching mandate that was crafted.

  2. klynn says:

    “I would also note that there were questions – from the conservative doubting justices – during argument that wondered why the tried and tested modalities (referring to tax and expend Medicare) would not have been pursued instead of the novel Constitution stretching mandate that was crafted.”

    bmaz, I need help with what you are inferring here… That due to their questions the court was tipping off O to do what EW suggests — offer a better alternative?

  3. emptywheel says:

    Ah well. It appears Obama’s going the way of Cohn. He just said he’s sure it’ll be upheld bc precedent says it’s Constitutional.

  4. bmaz says:

    @emptywheel: I got news for Cohn and Obama, even the Circuit judges that upheld the mandate (SevenSky by Silberman in DC Circuit and Thomas More by sutton and Martin in the 6th Circuit) went out of their way to say that the mandate, as passed in the ACA was unprecedented, novel and not squarely covered by existing precedent. The posturing, by people like Cohn, Chait and all the others on the left that everything is so cut and dried and proven correct by existing precedent, is a load of bull. It may ultimately be so upheld, but it is unusual enough that it will take SCOTUS to decided properly. Whether you believe they should win or not, there is more than ample legal headroom for the challenges – they are viable questions that are NOT definitively answered by existing precedent.

  5. SpanishInquisition says:

    “He said his motive was straightforward. He’s opted not to carry health insurance because he doesn’t think the benefits justify the price, and he doesn’t want the government forcing him to do otherwise.”

    Which is the very same thing Candidate Obama said in order trick people into voting for him:
    “She’d have the government force every individual to buy insurance and I don’t have such a mandate because I don’t think the problem is that people don’t want health insurance, it’s that they can’t afford it. So, I focus more on lowering costs. This is a modest difference. But, it’s one that she’s tried to elevate, arguing that because I don’t force people to buy health care that I’m not insuring everybody. Well, if things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.”
    Now Obama is the Scammer-In-Chief, so he wants to pretend he never said that.

  6. rosalind says:

    @emptywheel: yup, mark knoller tweets:

    “In response to question, Pres Obama says he’s confident the Supreme Court will uphold his health care law because its constitutional.”

    “Pres Obama confident health care law willl be upheld. Says that view shared by “a whole lot” of law profs, academics and judges.”

    “Pres Obama says he hopes SCOTUS will not take the extraordinary step of overturning law passed by strong majority of a dem Congress.”

    “Pres Obama says if Individual Mandate is struck down, health care law coudn’t provide coverage for those with pre-exisiting conditions.”

    gah.

    https://twitter.com/#!/markknoller

    (anybody else’s edit buttons missing?)

  7. PeasantParty says:

    Shouldn’t this ruling on mandates affect required Home Owner’s Insurance and Auto Insurance as well?

  8. jo6pac says:

    @rosalind: I agree that it will be upheld but for a different reason, its good for the health care corp. bottom line. This court is all about the bottom line and nothing about Main Street.

  9. Bay State Librul says:

    “Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter.” according to Paul Krugman.

    “That comparison horrified health care experts all across America because health insurance is nothing like broccoli.” “Why?” Krugman goes on. “When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.”

    Scalia is a dickhead.

  10. emptywheel says:

    @Bay State Librul: Yeah, but so is Krugman in this case, bc there are a lot of things that make health insurance unaffordable. Like profit.

    Why are we picking on the most abstruse?

  11. bmaz says:

    @Bay State Librul: We should also be clear that Scalia did not invent “broccoli”, it has served as a stand for “acceptable limit” discussion in in previous considerations and briefing.

  12. rosalind says:

    man, obama really is going all in. again, via knoller:

    ‘Pres Obama said it would be judicial activism of the kind Republican denounce if SCOTUS strikes down “ObamaCare.”‘

  13. SpanishInquisition says:

    @Bay State Librul: So is Krugman. Much of the whines about the mandate has been because everyone has to get healthcare whether they are insured on not, so his argument collapses in a heap of logic while he engages in self-contradictory sophistry. Krugman is trying to simultaneously say that because those without insurance get healthcare that healthcare is unavailable, which is obviously false. So many contradictory arguments are being made to justify corporatecare and privatization, that it should come as no surprise that someone from the Peterson Institute (which Krugman is) is doing it.

  14. SpanishInquisition says:

    @rosalind: It’s not that Obama is above the law, he is the law. Courts and transparency get in the way of the absolute corporarchy.

  15. Bay State Librul says:

    @bmaz:

    Broccoli also is another name for a Doobie.

    Six years ago, Justice Scalia gave a “thumbs up” to the Commerce Clause.

    Evidently Scalia thinks Hippies who smoke dope should be regulated by the Government, but health care can’t.

    “The case was Gonzales v. Raich, and the issue was whether the federal government had the right to forbid California residents to grow medical marijuana in their own homes, for their own personal consumption. It was a perfect test case: California law permitted medical marijuana, and the drugs, being illegal for the growers to sell, had absolutely nothing to do with commerce of any kind.

    In a 6–3 decision, the Supreme Court sided with the federal government. Scalia fleshed out his views in a concurring opinion that was primarily based not on the Constitution itself, but on the Supreme Court’s ever-loosening interpretation of it.

    “The court [has] recognized that [non-economic activity can] be regulated as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,’” Scalia wrote. Then, he endorsed a rather broad interpretation of the Necessary and Proper Clause: “As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

    You see Scalia is still a partisan, activist judge when it comes to Right Wing Dickhead

  16. lefty665 says:

    Please remember:

    March 2009 = Deal with PHARMA to prohibit competitive bidding/reimports
    April 2009 = Deal with Hospitals/Providers to prevent cost controls
    May 2009 = Deal with insurers to add 30+mm lives to manage

    The rest of the time is what it took to keep anyone from screwing up those deals. You may recall O’s comments after it passed to the effect that he got what he wanted.

    ACA does some nice things, but what it does not do is change the cost basis of US healthcare. That will remain 2x the rest of the world. Change in the cost structure is what we needed more than anything else. Same locked into law for the long term is what we got, unless the court overturns it.

    Remember women’s rights traded to Bart Stupak. Insult to injury is that they were pissed away for nothing.

    What makes anyone think O will turn his back on his fat cat buddies now?

  17. bmaz says:

    @Bay State Librul: Listen, even the judges who upheld the mandate have explicitly said that Raich and Wickard are not direct precedent and that the mandate was novel and not squarely within their purview. Those are the judges that upheld the mandate, the ones that did not are a lot less kind.

    You are biting off on spoon fed baloney by people that either have not read the opinions and briefs, or are disingenuously portraying where things stand.

  18. Bay State Librul says:

    @lefty665:

    Cost structures, in my view are changing.
    The problem is that it takes time…
    No overnight solutions.
    However, if ACA is struck down, we are back to square one.

  19. Bay State Librul says:

    @bmaz:

    If Judges can say that corporations are people, anything is possible.
    Even conservative judges have said that the Commerce Clause applies.
    Are you for or against the ACA?

  20. bmaz says:

    @Bay State Librul: They have said that the Commerce Clause can apply to healthcare issues. So? The question is not whether the Commerce Clause applies, but whether it permits Congress to impose a mandate of the construct of this one. That is a FAR different matter.

    It does not matter whether I am for or against the ACA; these are legal issues as to which rah raqh side people are on is irrelevant. I am for better healthcare solutions, and think the ACA, while having a few very good parts is, in its core effective parts, one of the biggest pieces of legislative shit I have ever seen.

  21. perris says:

    hi marcy!

    I left something down on bmaz that I would like your opinion but I have something to add here;

    the only thing that scotched the idea in 2009 was Joe Lieberman, who will be retiring,

    according to joe, he was acting on obama’s behalf with that, so while I do despise joe, I don’t think you aught to be blaming him for the loss of a public option, that was all obama

  22. Bay State Librul says:

    @bmaz:

    Yes, a whole lot of sausage making, but something Teddy Kennedy
    hoped for.

    I would hate to see it go bye-bye.

  23. perris says:

    here’s what I left for bmaz, hope to get your opinion as well;

    hey guys, miss you!

    Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too

    I thought the same, however david linked to something this morning which has changed my mind

    Has the federal government done it before? Yes, that’s the Militia Act of 1792, where you had to buy your own musket. You needed to buy an ammunition pouch. A knapsack. It was a very detailed mandate. So Obamacare’s critics say, in response, “that’s justified based on a different clause.” Okay, but the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a “well-regulated” militia with a mandate, why can’t Congress regulate interstate commerce the same way?

    from here

    http://www.washingtonpost.com/blogs/ezra-klein/post/amar-the-most-important-limit-the-one-we-fought-the-revolutionary-war-for-is-that-the-people-doing-this-to-you-are-the-people-you-elect/2012/03/28/gIQARJUDhS_blog.html

    would LOVE your take on that bmaz, does it or does it not apply?

    thanks in advance

  24. perris says:

    @bmaz:

    GOT it, here’s the answer to that one;

    Second, the requirement was to possess, not necessarily to purchase, and certainly not to purchase from effectively monopolistic for profit entities

  25. perris says:

    @Bay State Librul:

    Even conservative judges have said that the Commerce Clause applies.

    this is peculiar though, the justices have reversed roles here, where the “conservative” judges are making like they are against an entirely corporate inspired and republican written mandate and the “liberal” judges are making like they are for that corporate inspired and republican written mandate

    it’s bizzaro land,

  26. Bay State Librul says:

    @Z:

    Good point.
    But main argument is that if Ted Kennedy were alive today, would
    he hope that the ACA be overturned?
    I think not.

  27. harpie says:

    President lobbying the Court?; Lyle Denniston; ScotusBlog; 4/2/12
    http://www.scotusblog.com/2012/04/president-lobbying-the-court/

    […] The Justices are free, of course, to ignore the arguments both of the President and of his Solicitor General. Only they will know, though, whether they thought it was appropriate for the President to give them a piece of legal and constitutional advice even as they were studying the issues. Some of the Justices are known to have resented it when the President in January 2010 told them what he thought about their controversial ruling in the case of Citizens United v. Federal Election Commission – a ruling that may have had something to do with the flow of huge volumes of money into this year’s presidential election campaign.

  28. emptywheel says:

    @Bay State Librul: The political realities are that SCOTUS will do what they’re going to do one way or another.

    The political realities are that Obama can either take an approach that will hurt him in November (or take a lot of energy better spent on issues where voters already agree with him), or he can preempt what he appears to believe the govt will do for better political gain.

    Who knows what will be left of ObamaCare after SCOTUS is around. But better to take the option that 1) stands a chance in hell of persuading SCOTUS–unlike calling them names, and 2) will shift the Overton window to a place where O’s on the offensive again, pushing policies people like, rather than defending defeated ones that people don’t like.

  29. emptywheel says:

    @Bay State Librul: But we have almost NO WAY of changing that, and browbeating the Justices is the least likely way of doing so.

    So why not turn a defeat into an offensive move that is a winner politically?

  30. emptywheel says:

    @perris: There’s public option and there’s Medicare buy-in. I’m not sure O asked him to do the latter.

    And in any case, since then, O has seen the Insurance companies renege on their part of the bargain, his signature achievement potentially shot down (we think) by SCOTUS). So what’s he gonna do? Run on a defeat the majority of the country prefers, or turn and go on offense?

  31. emptywheel says:

    @Bay State Librul: But Teddy would have no power either.

    Again, my question is not what do we want to happen (I certainly wouldn’t want the whole thing to be shot down but I have no love for the mandate), but what Dems SHOULD do now that it appears likely it will be shot down.

  32. MadDog says:

    As IANAL, I don’t understand the conservative bloc of SCOTUS. What’s the difference in mandating the purchase of health insurance from mandating that drivers buy car accident insurance?

    Are they saying from their Federalist catbird seats that States have the constitutional right to mandate the purchase of private insurance, but that the Federal government does not?

    That what States can do to their citizens (discrimination, separate schools, etc.) reigns supreme over that of the Federal government?

    What is the exact difference?

    And in closing, would the State of Massachusetts health care law with its mandate to purchase private insurance be constitutional simply because it was a State requirement rather than a Federal government requirement?

  33. bmaz says:

    @emptywheel: Obama also makes himself look stupid that way for belligerently arguing something that is dead. As you say, much better to say “hey I tried it the corporate way, doesn’t work – here is what we have to do”. Make it a positive and put the lipstick on the dead ACA pig in the process.

  34. bmaz says:

    @MadDog: Maddog, there are boatloads of differences. Owning a car is a permissive activity you choose to do, and being licensed to drive it is a license granted to you by the state. You don’t have to do it and, indeed, many people do not. Being alive, which is the only criteria for ACA, is not in that category.

  35. MadDog says:

    @bmaz: I was waiting for that argument/tack. Tell me please where in any State constitution it speaks to driving as a right granted to its citizens by a State?

    Isn’t that a State constitutional grab?

    Doesn’t the Federal constitution argue for freedom of movement by its citizens, and that therefore no State can impede a citizen’s right to freely choose how, when, and where they travel?

    If I understand the Federalists, their constant whining is about Federal constitutional overreach. They appear to make no such complaint about State constitutional overreach.

    It seems that the difference you cite may in reality not be any difference at all. Other than the bias Federalists hold against the Federal government.

    And note, I can’t honestly say that I support the Federal health insurance mandate of the ACA. And I don’t particularly care for broccoli either. *g*

  36. bmaz says:

    @MadDog: No, there is absolutely tons of caselaw saying that the right to drive upon the roads of a state is a privilege granted by the state. The right to do it interstate is accomplished through an interstate compact.

  37. spanishinquisition says:

    @bmaz: I bet he’s doing it under corporate orders or at least because he’s expecting to cash in once he’s out of office. The Obama admin did a blatantly corporate argument at SCOTUS trying to pick and choose what parts of the legislation to keep and now through their media cheerleaders they’re contradicting the very arguments they were making in SCOTUS.

  38. coral says:

    As much as I disliked the ACA, I am disheartened at the prospect of SCOTUS overturning the law.

    It seems the ACA, as passed, is the only way that people lacking health insurance are going to be helped in the near future (next few years). Many people will have illnesses that are untreated or under-treated as a result. Many will die.

    One only has to speak to doctors who care for the indigent and uninsured to understand the horrible tragedy that goes on daily in the nation’s emergency rooms. Not to mention people who are locked out of the insurance market because of pre-existing conditions.

    I would love to see a Medicare buy-in, but I can’t imagine a Congress that cannot get together enough of a consensus to pass a transportation bill passing anything close to a Medicare buy-in.

    I also fear for the overturning of the Medicaid expansion–which would hit the people most unable to access care.

  39. MadDog says:

    @bmaz: I’ll buy your argument that there is tons of caselaw on the point, but I’ll still argue that the original precedent was likely made out of thin air.

    Almost all of the States have constitutions that predate automobiles (I’m unsure of you folks in Arizona with your statehood in 1912 *g*).

    That position of “the right to drive upon the roads of a state is a privilege granted by the state” must then be seen in the light of something postdating a State’s constitution, and either was enacted into law by a State or ruled such by a State court.

    I don’t doubt that both circumstances have occurred. But the underlying fact is that no State constitution spoke to “driving as a privilege”. It is, to use my words, a State-controlled privilege invented by States themselves.

    I don’t even have a problem with States mandating car accident insurance. I think it is a good thing.

    But the “logic” behind the assertion of a State mandate for car accident insurance doesn’t seem to differ significantly from that of a Federal health insurance mandate.

    I do give you points though for the “being alive” criteria difference with the ACA mandate.

  40. Bay State Librul says:

    @emptywheel:

    In my opinion, if ACA dies, we will not re-legislate.
    It’s gone for at least ten years.
    It was too contentious.
    Puff, the magic dragon.
    The Kudlows of the world, who believe in free-market capitalism,
    will seize the day.
    I’m hoping that Justice Kennedy or maybe even Justice Roberts goes with
    settled law…. and a reasonable approach to the Commerce Clause.

  41. emptywheel says:

    @Bay State Librul: But all that is entirely irrelevant from the question at hand, which is what is the best approach assuming you expect SCOTUS to overturn the mandate (with or without the rest). Saying over and over and over that you don’t want that to happen does not make you Clarence Thomas.

    So answer that question. Is the best thing to do to double down on the mandate, which is widely disliked, or making the Republicans pay a price for not trying to fix the resulting problem?

  42. orionATL says:

    “legitimacy” is an argument for political philosophers amd political weaklings. it don’t have any clout a’tall.

    the american people, in toto, know or care so little about their federal gov’t and what it does, that i doubt the question of would even arise among any large number of us, even in a practical form, i.e., in ways questioning the courts behavior without any explicit “legitimacy” tag.

    furthermore, public opinion polls are vastly over-valued and over-talked-about. they reflect principally that if you ask an adult for an opinion, you’ll likely get one – it won’t, however, likely be even a modestly well-informed opinion.

    i personally am against the mandate because it seems it could be very harmful financially to individual citizens.

    i see it as just one more example of the federal gov’t, the congress especially, capitalizing on a politically profitable, big-donor-assisting folly of the moment which in time turns out to cause great harm to some individuals – similar to mandatory sentencing rules and drug sentences.

  43. Bay State Librul says:

    @emptywheel:

    According to In-trade,

    The US Supreme Court to rule individual mandate unconstitutional before midnight ET 31 Dec 2012

    63.2% CHANCE that it will be overturned and ruled unconsitutional.

    Politically, I would have Obama run on making the Repubicans pay a
    price. But, I don’t think it will work, and if it does work and
    Obama is reelected, a new law WILL NOT PASS.

    What have we gained?

    To me, it’s all or nothing.

  44. bmaz says:

    @Bay State Librul: What you want politically is also not a legal argument. In fact I cannot tell you how many people I have encountered who, when asked to defend specific legal aspects, just start spewing good things that might result from the ACA. But that is simply not a valid criteria.

  45. emptywheel says:

    @Bay State Librul: Thus far what we might gain is 50% of those not covered being covered, with the rest not being able to afford it still. And of those who can afford insurance, just 84% (give or take) will be able to afford to use their insurance.

    So it’s something like 42% we’re really arguing about, not “all.”

  46. lefty665 says:

    @Bay State Librul:

    Glad you feel that way, but where’s the documentation that costs are going to decline to sustainable levels? If you’ve got real numbers, please share, I’d like to see them.

    Projections building off long steep historical trends that conveniently start to flatten when they get far enough off into the future often seem to have more to do with a sales pitch than with probability or reality.

    There is no competitive bidding on meds. Providers are insulated from cost controls (that’s why Obama gave Liebermann the hatchet to kill Medicare for all). Private insurers will be raking off the tops of another 30+mm lives. Where are structural cost changes going to come from? Why? When? How?

    Are we going to get it all out of women’s health? No more birth control? No more abortions? Let ’em die in childbirth? Maybe generic Viagra will “bend” the curve. But that’s a hard line to swallow too.

  47. bmaz says:

    @lefty665: No, the affordability numbers, at least to where forced policy holders could afford to actually use the insurance they were coerced to purchase, never added up. And the controls were never there.

  48. spanishinquisition says:

    @Bay State Librul: Obama should pay for his unconstitutional law – it’s not like he didn’t get plenty of warning beforehand both politically and legally the dangers for how he constructed ACA. Politically it’s been one of any number of things including having a too small stimulus, etc. Obama the touted “Constitutional Law Scholar” should pay a particularly steep price and his most recent demagoguery attacking SCOTUS itself for being “unelected” should entitle Obama to significant bad karma.

  49. masaccio says:

    @bmaz: That’s what I think too. Insurance companies will be able to bid for contracts to manage the program, which is commodity priced, but it should be profitable. The supplemental insurance, something like medigap insurance, will be comparatively easy to price on an actuarial basis.

    I don’t think progressives have the ability to hammer the court. I don’t think we have anything to add to the damage they do every time they announce another of their 5-4 decisions where the dissents show what hacks the Federalist Society poltroons are. The conservatives are political animals, and no one paying attention can miss it.

  50. bmaz says:

    @masaccio: Liberals have spent decades decrying conservative demonization of the Supreme Court; it is insane to suddenly adopt and ratify the tactic to protect and chase a fucked up bullshit lazy compromise manifestation of policy that is the ACA Mandate.

  51. Bay State Librul says:

    @emptywheel:

    I see your point.
    Massachusetts is at 95% and climbing.
    My argument is the ‘greatest good for greatest number”
    What legal experts forget is that it is “Life, Liberty, and the
    Pursuit of Happiness”
    If you are sick, life suffers, and your happiness dimmed.
    I’ll put fucking liberty in third place.
    The conservative Justices are DICKHEADS.

  52. perris says:

    @Bay State Librul:

    voting for romney is probably the best thing a progressive might do, the democrats to not fight corporate agenda when it comes from a republican elected as a democrat, they DO fight corporate agenda when the republican is elected as a republican

    there is no way a republican elected as a republican could have ushered the corporate swill obama managed to pass

    I am not supporting obama this election and believe me, I am one progressive

  53. Bay State Librul says:

    @lefty665:

    I can only speak to Massachusetts.
    It seems to me that there are “cooperative” efforts within the
    health care insurance community to bring costs down.
    Without doing extensive research, I can’t document the results.

  54. Bay State Librul says:

    @bmaz:

    I’m not looking at legal criteria/arguments, I’m looking at real
    people who are sick and the Act is the best we have.

  55. perris says:

    @bmaz:

    I had an epiphany last night and this is it;

    forcing people to buy from a private corporations who enjoy near monopoly is the same thing as forcing the founders to buy tea from the east india import company

    they held a revolt at the thought the king would even remove taxes on the company, imagine their reaction if the king said, “no, you WILL buy from that company no matter what you say”

    the founders wanted to provide their own tea not some corporation’s tea, the king didn’t like that and a new nation was born

  56. Bay State Librul says:

    @perris:

    I see your logic.
    I had no problems with Romney when he was Governor.
    He is a good man who compromised and managed from the Center.
    However, his fucking lies give me pause.
    Also, we do not want a Republican in office who can replace a
    Supreme Court Justice.
    In my view, it is too risky to give Romney the nod.
    I would in a one big heartbeat, vote for Hilary Clinton.
    She is terrific.

  57. perris says:

    @bmaz:

    bmaz, quick question you might have the answer for to which I have no resrouces;

    the auto insurance bill has an exclusion here in new york, possibly around the country, that a person really does not have to have corporate insurance if they can insure themselves

    if I wanted to post a bond that held minimum insurance requirements, that would suffice in new york as valid insurance

    I am wondering if that exclusion was written into law specifically because they thought it might not win a constitutional challenge without it

    what say you?

  58. bmaz says:

    @Bay State Librul: Yes, the members of the Supreme Court should absolutely abdicate their jobs because they were handed a cravenly constructed, horribly compromised, law by a President and Congress working the will of corporate interests. Or, you know, not.

  59. perris says:

    @perris:

    the point I am making, the auto insurance argument might carry even less weight since I believe the law is you have to have insurance, you can provide your own you do not have to buy insurance from a private source

  60. Bay State Librul says:

    @bmaz:

    Sheesh. You sound like Joe Scarborough.
    Look at Bush v Gore and Citizens United.
    What I’m saying is the Supremos bring all their prejudices to the table.
    I’m not saying abdicate their jobs…. I’m saying look at the big picture
    By your analysis, it should be a 9-0 since as you say “it is poorly
    constructed, horribly compromised and bought by corporate America.
    That is how you view it, I have a different take.

  61. bmaz says:

    @Bay State Librul: No, those statements on my part are my views on the ACA in general. They have NOTHING whatsoever to do with how the Supreme Court Justices should vote on the underlying issue of constitutionality. And, contrary to your belief, neither do your views on the relative worth and background of the ACA. Desirability of a law is irrelevant to root constitutionality. And, by the way, Marcy is right, the individual mandate is wildly unpopular with the American public. That too is irrelevant to the SCOTUS determination; despite being wildly unpopular and unwanted, should the court find it constitutional, it should be upheld.

  62. SpanishInquisition says:

    @Bay State Librul: Their jobs are to look at the law and make a legal determination. You are calling on SCOTUS to not do their jobs.

    How about if there is a law that calls for summary executions for every tenth person arrested and the crime rate falls dramatically because everyone fears if they get arrested they’ll be summarily shot – would you want the Supreme Court to bless those summary executions since that is doing the greatest good for the great people by reducing the nationwide crime rate? If you’re going to argue Constitution-By-Utilitarianism, there are obvious consequences…which perhaps you’d like summary killings.

    http://www.ucl.ac.uk/Bentham-Project/who/autoicon/Virtual_Auto_Icon

  63. zot23 says:

    @PeasantParty:

    No, no one is forced to own a car or a house. Those things are optional, no matter how badly we want them we don’t need them to live or pursue happiness. It’s pretty hard to somehow live a magical life completely free of sickness (by “choosing” to do so.) If you are living and an American, at some time you will need to use the American medical system for something, especially if the only other option is death.

  64. Bay State Librul says:

    @bmaz:

    Do you play poker?
    I’m all in on this one.
    It looks to me that you are playing this issue very close to the vest

  65. Doug Kahn says:

    I don’t know the legal or political consequences of any of the possible Supreme Court decisions on the mandate. I’m still stuck on the Obama decision.

    I think it’s immoral to calculate such consequences. The mandate is wrong if it forces powerless people to buy from the company store. I say it does.

  66. liberalrob says:

    @bmaz: I think BSL’s general point is that the Supremes have already abandoned their duty to “construe according to the law” as A Man For All Seasons put it (a great, classic movie). The ACA is inextricably wrapped up in politics, and the Supremes are political people not robots. It’s pretty to think that once elected to the Court they put aside their personal preferences and ideologies and coldly analyze the Constitutionality of laws put before them; but it’s naive to contend that even the most dispassionate person can do that in every instance. The Constitution is a political document, and the Supremes interpret its meaning according to their own lights. If they decide that the individual mandate violates the 10th Amendment and/or is not covered by the Commerce Clause, that’s how they’ll rule. If we had a different Court we’d possibly get a different interpretation; and that is something that is impossible if the Justices always construed strictly according to the law. That’s why the question of legitimacy cannot simply be waved away.

    It’s not just the SC that’s experiencing a legitimacy crisis; our entire form of government is being called into question.

  67. SpanishInquisition says:

    “If they decide that the individual mandate violates the 10th Amendment and/or is not covered by the Commerce Clause, that’s how they’ll rule. If we had a different Court we’d possibly get a different interpretation; and that is something that is impossible if the Justices always construed strictly according to the law. That’s why the question of legitimacy cannot simply be waved away.”

    I hardly see how any of that calls into question the legitimacy of the judicial branch. You can have judges/legal experts legitimately disagree on legal points, but because they aren’t all shouting in unison on a legal interpretation, it hardly means that they’re illegitimate or are behaving in an untward manner. Any number of professions can have professional disagreements – which happens in most any profession – but it hardly means those professions have undermined themselves because their members aren’t all shouting in unison.

  68. lefty665 says:

    @Bay State Librul: and bmaz @67

    The numbers I saw in ’09 were that around 15% of folks in Mass could not afford to use insurance once they bought it. The issue was not having money for deductibles and copays after paying for the policy.

    What a bite, forced to buy health insurance you can’t afford to use at the cost of using scarce funds for actual health care. That ain’t “affordable health care” anywhere.

    ACA is not health care legislation, it is health insurance legislation. The two are not the same.

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