The SCOTUS Healthcare Decision Cometh

[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
138 replies
  1. emptywheel says:

    I think the court already is politicized–the left is not doing that. What they’re doing is waking up to the consequences of playing softball while the right plays hardball on courts for the last couple of decades.

    That said, as you’ve pointed out, the ideological sides here SHOULD be reversed, with Democrats rooting against the mandated purchase of corporate goods and Republicans rooting for it. Which is why I have less worry about this vote than the Montana one.

  2. MadDog says:

    I’ll put a wooden nickel on 6-3 to uphold the mandate. And another wooden nickel on 5-4 to kill it.

    Btw, is there a Daily Double? How about a Trifecta? If I win, will I be on TV?

    On the serious side, the punditry have come to the conclusion that a 2012 election turnout bonanza will be the most excellent runner-up prize for whichever side comes out on the short end of the SCOTUS vote.

    I guess the only true meaning of all this hoopla is that everyone wins! Or loses.

  3. GulfCoastPirate says:

    @emptywheel:
    I think the court already is politicized–the left is not doing that. What they’re doing is waking up to the consequences of playing softball while the right plays hardball on courts for the last couple of decades.

    Bingo.

    How can the rest of the law survive if the mandate is struck down given that it is the mandate that forces everyone to pay something for their own health care? Without the mandate how do you deal with the freeloaders?

  4. Bay State Librul says:

    EJ Dionne is my hero (Scalia should resign)
    How do you explain the Gore v Bush and
    Citizens case, if one says that the court
    is not politicized, Bmaz?

  5. emptywheel says:

    @GulfCoastPirate: There are actually a slew of ways to do that, though no one wants to really talk about it. One way is to require a penalty for those getting in late, another is to impose an actual tax.

    A far, far, far, far bigger risk is if SCOTUS knocks down Medicaid extension but not the mandate.

  6. bmaz says:

    @Bay State Librul: I never said the SC is not politicized. Of course it is, and, no, there is nothing new about that in the least. It has always been thus. The winners of political elections, Presidents, are the ones who get to appoint Justices, and other winners of elections, Senators, get to advise and consent to the same. It is, by its definition, political.

    That is on one level. There are several levels at play though, and in that regard, I agree with Marcy, GCP and you. The effects of politicization of the court are becoming more prevalent, as is, rightfully, the view by the public that such is the case. And the left has, for some time now, been bringing a knife to the gun fight the other side is engaging in. This is a deadly critical game, and this is why I whine incessantly about judicial policy. Obama has already appointed two SC Justices, and in the process has moved the ideological makeup up the court significantly to the right. Even worse, he has abdicated his job and been derelict in his duty to stock and groom the new talent on the inferior federal benches necessary to have a pipeline of great nominees and support for them in the future. Our adversaries have been wildly dedicated and successful in this regard, and the network that has been grown to produce that is also exactly how they mobilized against the ACA. The left better wake up.

    On another level again, is this case itself. And, perhaps I did not articulate it well in the main post (I wanted to keep it short and did not finish my real work yesterday until nearly midnight). There has been a concerted effort to politicize the court as to this case. The whole “the court is illegitimate if it doesn’t rule our way” bit. It is just distasteful asshattery in my book. The mandate, and significant other chunks of the ACA are just shit to start with. A full 70% of the American public – across both parties – hates the mandate. That does not magically equate to “illegitimacy” because some liberal wigs lose a little of their precious powder.

  7. bmaz says:

    Also, want a quick look at how the other side works this stuff and the machine they have oiled?

    Take a look at this

    Whether you agree with him or not, Randy Barnett is a great guy, and a class act. I have been waiting to see a “this is a serious issue, we will accept the decision of the court win, lose or draw” from my colleagues on this side of the fence. Well, other than from me that is.

  8. JThomason says:

    I see what’s going on here. You guys are switching over from blogging to making book. Might as well branch out what with the economies of the thing being what they are.

  9. noble_serf says:

    I think the whole thing stands as is and the dissenting opinions will be a laugh-riot.

  10. GulfCoastPirate says:

    @bmaz: I don’t quite understand your argument. How can the SC be looked upon as legitimate if each and every person involved with it is political in nature – including the justices themselves? It’s not as if the president and politicians are looking for the best minds. They’re playing a game to stock it with the most ideological hacks of their particular variety that they can find. When you criticize Obama it seems to me you’re saying the left should play the same game as the right has been playing. Stop all appointments to lower benches of anyone not of your ideology and do everything in your power to promote your hacks over their hacks. Doesn’t this simply legitimize the right wing game and continue to delegitimize the court?

    Am I misunderstanding what you are saying?

  11. bmaz says:

    @GulfCoastPirate: Because they ARE inherently political in nature. And they often do look for the best minds. Say what you will about John Roberts, he has a great mind and was one of the most qualified nominees in my memory.

    Would you rather lose that fight? Cause that is what we are doing.

  12. GulfCoastPirate says:

    @bmaz: Of course I don’t want to lose. Roberts may well be a great mind but what about guys like Scalia, Thomas and Alito? I suppose I’m asking are you insinuating we should look for our own Scalia, Thomas and Alito clones or should we be looking for our own Roberts? For instance, why the criticism of Obama’s choices? Are they not ideological enough? I have heard they fall more into the Roberts mode than the ST&A mode but maybe I heard wrong.

    Just curious ………….

  13. MadDog says:

    @MadDog: The latest from the liveblog:

    “The bottom line: the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.”

  14. MadDog says:

    Shorter SCOTUS cognitive dissonance : “The individual mandate is Constitutional, and voluntary.”

  15. bmaz says:

    Folks, updates reflecting the ruling, and a link to the full opinion have been added to the top of the post. Here they are so that they are handy to commenters:

    [UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

    The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

    And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

    Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

    As to the Medicaid portion, here is the key opinion language on that:

    Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

    Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

    And here is THE FULL OPINION]

  16. bmaz says:

    @MadDog: I tell you, between that and then saying it is a “tax” but refusing to say it is a tax for the AIJA consideration is really – uh – something.

    Cognitive dissonance indeed.

  17. jo6pac says:

    So welfare health care corp. wins another one who whould have thought this would happen. I’m the left and never wanted this bill to live to begin with. Main Street loses again and I can hardly wait for the spin.

  18. MadDog says:

    @bmaz: And I’m wrong in conflating the individual mandate and the “voluntariness” of states to opt out of the Medicaid expansion, but that’s what it seems like.

    My take is that Roberts gave his blessing to the individual mandate as a tax, and then took away really anything mandatory about the overall ACA by allowing states to opt out of the Medicaid expansion without any penalty.

  19. JTM says:

    bmaz – This is almost OT, but I like the way you say “I was wrong” when you are (even without much practice). This contrasts highly with all the blogs that are never wrong, but do have varying levels of silly excuses.

  20. MadDog says:

    I’m in agreement that the ACA was, and is, a pretty piss-poor policy prescription for what ails America’s health care system.

    That said, it gives me the giggles to think of House Speaker Repug John Boehner as the new Charlie Brown as he attempts to “not spike” a football he doesn’t even have.

  21. greengiant says:

    Some analysts predict that the insurance companies are being thrown under the drug and medical bus. The argument is that anyone healthy and wealthy enough to buy insurance will choose to pay the “tax”, until such time as they actually have a health need. I suppose they are going to Vegas on emergency care, unless they have shelter of the insurance industry discounts via a catastrophic policy.
    Which I believe raises another point, what happens to high deductible policies? In the Massachusetts plan holders had to pay the tax.
    Got another 18 months to figure this out.
    I can imagine there are no end of part time workers and singles making 25k a year or more who are hereby thrown under the ACA bus to subsidize some corporation(s). I be a lot happier with single payer combined with death panels and an end to the for profit medical industry 2.8 trillion dollar elephant weighing on the US economy.

  22. Kathleen says:

    Justice Roberts votes for the uninsured and for health care insurance companies..chhing! Miracles will never cease. Health insurance companies are celebrating! Those without health care are celebrating! Real pro life folks are celebrating!

  23. Z says:

    Not surprised that the vote went down the way it did. Both Roberts and Alito have been very loyal votes for corporate interests and I thought one might vote in favor of the law and probably Roberts from what he had said during the the proceedings.

    Z

  24. lysias says:

    So the government can at least force you to buy broccoli by imposing a punitive tax on you if you can’t demonstrate that you’ve bought it.

    I wonder if they can force you to eat it by imposing a punitive tax on you if you don’t have a doctor’s certificate attesting that you’ve been eating it.

  25. lysias says:

    Roberts’s approving citation of Drexel Furniture would appear to indicate that the government can’t discourage freeholders who are willing to just pay the tax by raising the tax/penalty high enough to serve as a significant discouragement.

  26. earlofhuntingdon says:

    @emptywheel: Precisely. If this were a tax, it would be more supportable if still deeply flawed legislation. A tax would yield revenues for the federal government that it would be obligated to spend in a particular way, excluding profit for the government. That spending would be subject to a panoply of laws and to oversight by the executive, legislative and judicial branches of government.

    This legislation does not impose a tax. The president and Congress explicitly chose not to impose a tax, with the citizens’ protections such a course would have provided.

    They chose instead to force citizens to do business with the vaunted private sector, here, insurance companies, who are among the most profitable, least federally regulated, for profit companies in America. They chose to impose laughably minimal standards and standards for review of how well those licensed monopolies provide a mediative role – processing payments for what Americans do need – Health Care. They do so now at enormous profit, which makes American health care the most expensive in the world, and out of reach for tens of millions of Americans. This legislation will only dramatically increase them, at a cost of modest improvements in actual health care. A less efficient, fair or balanced method of achieving a public good would be hard to imagine.

    This is not a victory for health care or for American citizens. It is a victory for a government imposed, government protected private monopoly, hidden behind the facade of a public good. It is a victory for the pay-as-you-go politics that empower corporations at the expense of individuals and families whose interests their government is meant to promote, protect and defend.

  27. Bay State Librul says:

    @bmaz:
    I love the mandate.
    Eat your peas or broccoli
    From liberal commentators, it should have been 8-1 in favor
    of the Commerce Clause, and due to nasty politics, it was turned
    upside down

  28. Z says:

    @earlofhuntingdon:

    “This is not a victory for health care or for American citizens. It is a victory for a government imposed, government protected private monopoly. It is a victory for the pay-as-you-go politics that empower corporations at the expense of individuals and families whose interests their government is meant to promote, protect and defend.”

    I couldn’t agree more.

    Z

  29. bmaz says:

    @earlofhuntingdon: Yes, precisely

    But, even better, how in the freaking hell can it be called a tax for constitutionality and not for AIJA application. This is just outright duplicity.

  30. earlofhuntingdon says:

    @GulfCoastPirate: Supreme Court justices are inherently political, at least since Chief Justice Marshall asserted the right to overturn federal legislation based on the Court’s exclusive power to arbitrate what the Constitution and federal laws mean. Likewise, economics is inherently political. At the macro level, it is about government making choices – via laws, policies, regulations, programs – that inherently favor some at the expense of others. That either are or could be apolitical is one of the great myths sustaining America’s unique form of public-private government and “capitalism”.

  31. DWBartoo says:

    Well, bmaz, you “called” the SCOTUS decision essentially “right”.

    As to the rest of what you say … I consider that you have “called” all “that” (and “them”, of all stripes, essentially right as well …).

    Your clear-headed perspective around all of “this” folderol (which silliness and cowardice has the effect of pushing the important human truths and actual existent reality well beyond reasoned consideration), is very much appreciated … especially as we head into what would be a farcical election season were ANY “outcome” likely to result …. NOT to be destructive for the many and tragic, regarding both democracy and the actual Rule of Law …

    Not, of course, to mention the fast-deteriorating condition of the planet’s capacity to support human life.

    Beyond the gyrations of a politically charged SCOTUS, the actual question facing our species comes down to this: What is the most important thing on Earth? Is it LIFE … or is it the sociopath’s pursuit of money?

    Bringing to mind that old Jack Benny Show episode, when he is accosted by an armed robber who says, “Your money or your life!”

    After a long, and uncomfortable period of time, the robber asks, almost in exasperation, “Well, what is it?”

    To which Benny replies, “Don’t rush me I’m thinking … I’m THINKING!!! …”

    What’ll it be, folks? “Their” money …. or all of our lives … and a bunch of other creature’s lives as well …?

    Tough choice, ain’t it?

    Especially when considering the lesser evils.

    DW

  32. BSbafflesbrains says:

    Affordable by our current Government definition. Scary future unless you are in the Corporatocracy.

  33. Adam Colligan says:

    I think a lot of the posters here who see the decision (and the law) as corporate shills are ignoring the ACA’s new MLR requirements on insurance companies. You are writing as if the newly-coerced premium payers are paying into the same wasteful profit margin as existed before, but that’s not necessarily the case under the law.

    See http://www.hhs.gov/news/press/2010pres/11/20101122a.html/ .

    Of course, as with other parts of the law, there are wranglings going on with states and waivers on the MLR requirements. Rapid pullouts could create near-monopolies in states like Maine. And if there’s enough monopoly or collusion, companies could feel an incentive to *waste* money on unnecessary or expensive care in order to get a pass to spend more on their corporate jets.

    But I think the bigger picture here is that the admin spending and profit margins of the insurance companies *are* going to be dragged further and further under HHS’ yoke, albeit starting in a messy and uneven way right now. The companies are getting millions of new clients, but the new demands for uniformity in admin/profit and in coverage extent really do look like a departure from business-as-usual.

    @earlofhuntingdon is right that the ACA “is a victory for a government imposed, government protected private monopoly” [or oligopoly anyway]. But it’s also more and more a government-*controlled* one.

    If anyone’s still reading SCOTUSblog, they’ll note their quote of Forbes that ” ‘Insurers such as Wellpoint and Cigna (down 4% and 5% respectively) are dropping because the law is likely to crimp their profit margins.’ ” Do you really think you know something they don’t about what a windfall this is for them? Of course it beats being obliterated by a single-payer system from their point of view, but it’s not a victory on balance.

  34. Bay State Librul says:

    @DWBartoo:

    Strongly disagree

    From Charlie Pierce,

    “On a human basis, the decision lifts a great deal of uncertainty from a great many people. (A lot of the comments on the invaluable SCOTUSblog this morning were about the effect of the decision on the real-world circumstances of people’s lives. Could children still remain on their parents’s plan? Would pre-existing conditions still be covered?) That always has been the foulest element of the attack on the Affordable Care Act — the argument advanced by charlatans like Mme’s. Palin and Bachmann that their lies and their imaginary beasties would make the lives of the uninsured worse, and not better. For now, anyway, 30 million Americans can breathe a little easier. And, though it’s not quite his time on the blog, the decision today validates the timeless wisdom of Mr. Dooley:

    “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns.”

  35. JThomason says:

    @Adam Colligan: You can only hope that the message is clear enough to leverage a Democratic voter turn out and that the Democrats elected are able to maintain a firewall against corporate interest in the executive branch. The book is open.

  36. prostratedragon says:

    @Bay State Librul:

    Come to think of it, that apocrypha that ran last week in NYT about the mysterious origins of Scalia’s “broccoli” witticisms foretold this outcome.

    It was of course, everyone’s favorite not-so-bad Republican, GHW Bush, who went on about his disdain for broccoli, his refusal to eat it now that he was President, etc., in a news conference aside that was much celebrated by the courtier press at the time, 1990. You can find a whole MoDowd column on the incident, e.g. The whole thing was an early bonding experience and test for the post-Iran-contra courtier press.

    But in 2012, a former member of that administration can’t seem to recall where the meme came from, although Bill Clinton’s name —note, the mandate is upheld as a tax— somehow manages to be invoked. Thus Scalia is told that he has lost.

  37. earlofhuntingdon says:

    @earlofhuntingdon: That the conservative minority in this decision would have overturned the entire law simply means it is more political, consistent and driven – and destructive – than this melange of centrist justices (barring Ginsburg) with a conservative cherry on top. The conservatives explicitly want government to act solely on behalf of corporations, “persons” in their view, not convenient legal and tax constructs for businesses run by real people. Former Justice Lewis Powell was simply more honest than most in saying that (admittedly, in his pre-court role as counselor for a business trade association).

    The conservative minority is also throwing bread at their cohorts in the Circus crowd. It knew Roberts vote would mean upholding the law and, because he chose to be the deciding vote and to write the opinion, he could frame the decision for his own political purposes.

  38. DWBartoo says:

    @Bay State Librul:

    Ah, Bay State, you and I both know that health insurance is NOT health care … and as more employers reduce or eliminate health insurance as part of their employment package … it will be recalled that there was an opportunity of doing much better, of NOT engaging in secret agreements, in pretending that real national security is about weapons and warfare, NOT about the well-being of the people who comprise the society now under unrelenting assault by money and power “interests”.

    Frankly, BS, Charlie Pierce is too much of a shill for Obama to be “convincing” in any fashion, so far as I am concerned, he has not the perspective to see beyond a political calculus, whatever he might say or wish the rest of us to “believe”.

    So, we shall just have to disagree as amicably as possible, and perhaps, thereby, serve as some small example in the word-wars which are already well upon us.

    Just as civil society is under attack so, too, is basic civility.

    Might there be a connection … or even a consequence, do you imagine?

    DW

  39. earlofhuntingdon says:

    @Adam Colligan: Being “dragged” into an HHS “yoke” is one way of being thrown into one’s own briar patch. As you point out, insurance companies are almost universally local monopolies. They dominate state regulators the way a nationally ranked college football coach dominates his university’s payroll. Not even Katrina’s aftermath could get the federal government to change its hands off – inherently pro-insurance company, policy toward insurance regulation.

    Given the total dollars spent, the relative percentage of national economic activity that health insurance and health care spending reflects, and the real life needs of Americans to have Health Coverage, federal regulation is extraordinarily weak and pro-corporate.

  40. BSbafflesbrains says:

    Bottom line on the ACA is that the 1% had more input and control over final draft than the 99%. While there are provisions and hopeful possibiities as long as the 1% control Congress and the President the 1% will be the main beneficiaries as this law is adapted and retooled in the future just as medicare was in the past.

  41. Adam Colligan says:

    @JThomason: You’re right that the book is open for now, and of course a Romney administration (Tommy Thompson back at HHS if he loses? Just sayin’…) could put a big laissez-faire stamp on the whole thing.

    But thinking over the long term, is this a see-sawing issue likely to change with every administration party change, like the global gag rule? To me it feels more like a ratchet scenario, where Democratic regulation ingrains certain procedure-payment and corporate administration practices to comply with relatively strict MLRs, and those practices remain fairly “sticky” even during Republican administrations. Of course I could be wrong about that, but I feel like the boundless pessimism on display here is a little bit overblown.

  42. bmaz says:

    @Adam Colligan: In principle, that might be right; but, in practice, the devil is in the rule making details. And the health carriers have been working night and day behind the scenes to game the MLR. You will be unpleasantly surprised (or you too may expect it) when you see how that plays out in the real commerce world.

  43. Adam Colligan says:

    @earlofhuntingdon: Yes, federal regulation is generally pretty weak and pro-corporate here. That is why having explicit MLR requirements with explicit regulations on how those ratios must be calculated can mark a departure. Regulation strength gets beaten down when litigation and lobbying mire every detail of oversight on actual practices until there’s almost nothing left.

    This seems like a more promising approach: you mandate an end target (say an 85% MLR) and then the company has to meet it or pay out the rebate, the details being left to the company except what the target is and how it can be calculated. There’s much less to attack, obfuscate, and litigate.

    And I also think there’s room for optimism on the exchanges front, where you see more consistency and regularity in the sales environment and more customers able to comparison-shop centrally. This reduces the barriers to entry. So it actually sounds smart for HHS to smooth the way with a lighter touch on MLRs to prevent pullouts while the exchanges are being set up. Later, the threat of a pullout by a company will ring more hollow when it’s easier for an out-of-state competitor to jump in.

  44. Adam Colligan says:

    @bmaz: What you say is true, but I think it falls into the broad category of “nothing good can work the way we really want unless the regulators are not corrupt and in bed with the industry they’re regulating, and…they always sort of are.”

    That would still be true under single-payer, where all the contractors are still private anyway. It would even be true under NHS-style socialized medicine depending on political parties’ relationships with the unions and trusts they have to negotiate with. I feel like you’re describing a fundamental limitation on government activity (particularly in America right now) rather than an indictment of how this particular law works.

  45. Bay State Librul says:

    @DWBartoo:

    Okay, cast your vote for Romney, he can fix Health Care for you.
    In my view, health care costs are stabilizing.
    This is a long term solution, and it beats doing nothing.
    Like auto insurance, health care needs firm regulation.
    Justice Kennedy bested by Teddy Kennedy.
    Maybe now they will call the act by it’s right name: Affordable Health
    Act or Robertscare?

  46. earlofhuntingdon says:

    @Adam Colligan: There’s room for optimism only when federal regulators and their political patrons, and their state counterparts, start believing that government has a social purpose not bound by enhancing profits for donors and other private corporations.

  47. Adam Colligan says:

    You go to regulatory overhaul with the faceless bureaucrats you have, not the faceless bureaucrats you might want or wish to have at a later time.

  48. ondelette says:

    If this act had been done as a tax instead of as the individual mandate, the net effect would have been the same: everyone pays. If it had been done as single payer, the money would have been disbursed to contractors to fulfill the actual needs.

    The net is the same, that those currently not paying into the system not because they cannot but because they are healthy and don’t want to, would have to pay. They are known in public health (and other subjects which require universal coverage, too) as the “Free Rider Problem” and any system that tackles the overall cost has to require them to pay in. In public health, they do derive benefits both from unexpected extreme health events and from the herd effect, so they really are free riders.

    So I’m glad the mandate was decided this way and think people who have resisted it this long with the arguments they’ve resisted it with are immature. This particular solution may not be the best in other regards, but it is a solution from which to start. Public health is hard to enact under any circumstances.

    I’ve never seen such a bunch of bad losers in a democracy than the inhabitants of the so-called left blogosphere. Working hard towards their goals during the legislative process was a good thing. The legislative process failed them so they tried to unseat everybody that hadn’t voted the way they wanted, and urged everybody to stay out of the voting booth. Never mind a tradition of the right, and those who oppress in this multiethnic society using lack of voting as a primary means to deny rights, let’s encourage not voting! When that didn’t work they went to the courts backing the right, a bunch or attorneys general whose primary interest was to do as much damage as possible to the N-word president. Well, now, the courts ruled against the right, as many had originally thought they would when those attorneys general had originally vowed their fight, so now it’s criticize the courts.

    What’s next folks? You sound like fundamentalist Christians ranting against Roe v. Wade. They’ve gone really way past the extreme over the years, how far will you go because Obama didn’t back your sacred public option?

    How about we just see what pans out and then see if the law has places to fix and start fixing them? We at least have a mandate on the books for universal coverage. Once it settles into the social contract, a lot could be changed.

  49. lysias says:

    @ondelette: “. If it had been done as single payer, the money would have been disbursed to contractors to fulfill the actual needs. ”

    But administrative costs would have been limited to the low level they are at for Medicare. And corporate profits would thereby have been limited.

    “We at least have a mandate on the books for universal coverage.”

    And we now have a court-approved precedent for the privatization of Social Security and Medicare.

  50. BSbafflesbrains says:

    @ondelette: This ACA is not a step toward universal healthcare and as long as our political structure serves the big money Corporate interests first it is just an appeasement to political expediency and the profit motive of Corporate America will win out and real benefit to the common man will be of the trickle down variety.

  51. GulfCoastPirate says:

    @earlofhuntingdon: I understand there is politics involved. My question to bmaz was more along the lines of whether or not a qualified person of any political persuasion who still believed in reason and intellect could get through that political process or was the atmosphere so polluted that we were destined to be ruled by hacks. He seemed to think Roberts was such a person and I suppose today proved that.

  52. Z says:

    @ondelette:
    “If this act had been done as a tax instead of as the individual mandate, the net effect would have been the same: everyone pays. If it had been done as single payer, the money would have been disbursed to contractors to fulfill the actual needs.

    The net is the same … ”

    The net is not the same, everyone pays less under single payer becoz the insurance companies would not get a cut.

    “So I’m glad the mandate was decided this way and think people who have resisted it this long with the arguments they’ve resisted it with are immature.”

    Yeah, it’s immature to want a health care system like single payer that has been shown to save lives and money instead of one that will enrich insurance companies and save less lives due to its cost while also setting the precedent that the u.s. government can use its powers to compel us to buy products from private entities by taxing us if we don’t.

    “I’ve never seen such a bunch of bad losers in a democracy than the inhabitants of the so-called left blogosphere. Working hard towards their goals during the legislative process was a good thing. The legislative process failed them so they tried to unseat everybody that hadn’t voted the way they wanted, and urged everybody to stay out of the voting booth.”

    WTF are you talking about here? Who from the left “urged everybody to stay out of the voting booth”?

    “… how far will you go because Obama didn’t back your sacred public option?”

    Obama claimed to back the public option during the election and then deceitfully worked behind the scenes to kill it. You don’t think that is a betrayal to those who voted for him? You don’t think that’s a reflection of his character?

    So much straw, so little substance …

    Z

  53. Adam Colligan says:

    @lysias: “But administrative costs would have been limited to the low level they are at for Medicare. And corporate profits would thereby have been limited.”

    What you just described *is* in the ACA. It’s the MLR. http://www.hhs.gov/news/press/2010pres/11/20101122a.html/

    Practitioner costs are in turn going to be limited by what the now-more-constrained insurance companies are willing and able to pay. Yes, there is a potential conflict in terms of insurance companies wanting to overpay in order to excuse bigger profits and bonuses. That’s why exchange competition is important. And if retail medical providers can band together to squeeze the insurance companies uniformly, then I don’t see that there will be a huge difference in the end outcome versus if it were the government on the other side of the table (as with Medicare). See “Fix, Doc.”

  54. ondelette says:

    @lysias:

    Really? Do you actually know what’s in the bill? I sincerely doubt it. I don’t, but I do know a couple of the things that have touched on situations around me. For one, the outliers have been sectioned off, and are out of the actuarial pool (Funny how that works, isn’t it? That’s what that “corrupt official” Liz Fowler was an expert on, I wonder if that’s why she was there?). They actually are paid for with a special coverage fund, the feds reimburse the states for, there is a special application one can file if one is such a person, that has already gone into effect. That brings down the actuarial costs.

    Then for another thing, some of the plans that were being offered for Individual Health Insurance, like the one I was on because of being unemployed and having to continue my health insurance — all paying and no benefits with all sorts of exceptions and clauses written into them everywhere so that you don’t actually get covered for anything and end up spending all your time on the phone negotiating with doctors and with the insurance claims department and get triaged into no care at clinics and hospitals with crippling effects and all — those are actually banned in the new law.

    There are a lot of other things like that in it, solving a lot of problems piecemeal, that would have to be solved in any public health system.

    But you just yell and scream from the outside, lysias. You are like what emptywheel and some others are like about many problems in other countries a lot — all politics are global. Tip O’Neill through the looking glass. Real solutions start by building a fabric. Not by mandating a bumper sticker. There’s a reason the ACA is 3000 pages long.

  55. greengiant says:

    @ondelette: I suspect a lot of health costs are disappearing into big pockets, corporations, health employees at the top of the food chain, i.e. people with 100 reports pulling down 160k a year plus benefits, etc, and the for profit medical companies as seen 24/7 on TV. The so called free riders are road kill when they go into an ER, they are instantly 20K poorer for things like snake bites etc.
    I would hope anyone who thinks free riders are part of the health care problem in the US would consider that the free riders have a lot more in common with the occupy movement than the 1 per centers.
    Furthermore all this legislation and judiciary is done by deeply captured politicians who are owned lock, stock, barrel, and ACA by corporations and hedge funds.

  56. Adam Colligan says:

    @Z: “The net is not the same, everyone pays less under single payer becoz the insurance companies would not get a cut.”

    Maybe, maybe not. Governmental administration of a system isn’t magically much much cheaper just because there isn’t a profit margin. Just look at administrative costs in the National Flood Insurance Program.

    I think that in health care it will tend to be cheaper because of the specifics of the market, and I generally favor single-payer with a private market on top for extras, but that shouldn’t be a matter of religious devotion Classically, you do run into efficiency problems when you have a whole system administered by an entity that faces no real competition. And of course in a competitive private market you also lose money to profit margins. But right now, we’re facing the worst of both worlds: high profit margins AND monopoly power.

    Either a move toward single payer OR a move toward better competition through more uniformity and MLR regulation would actually be a good thing for efficiency. The ACA does the latter and, I think, shouldn’t be dismissed so casually by single-payer advocates.

  57. Phoenix Woman says:

    @noble_serf: Sounds like you win, for the most part.

    The biggest disagreement I’m seeing so far is on whether or not Roberts’ comments on the N&P and Commerce Clauses are horrifically evil precedents that hamstring the legislative branch’s ability to create social-welfare programs (as this blogger says), or (as many of that same guy’s commenters say) mere dicta with no legal force.

  58. Z says:

    @Adam Colligan:

    “Governmental administration of a system isn’t magically much much cheaper just because there isn’t a profit margin.”

    A system for single player is already in place: Medicare.

    Z

  59. ondelette says:

    @Z:

    I didn’t say it was immature to want single payer. I said it was immature to believe that healthy young non-payers of health insurance would be able to continue that status in any universal coverage proposal whatsoever. I’m an advocate of single-payer and have been for a very long time. But I’m also an advocate of universal coverage, and will take it as a step towards the other, because I wasn’t born yesterday and don’t believe in holding out forever for my solution over any other while the patients die.

    They do, in fact, die when they have no or too little access to health care. Have you ever treated an infected wound that didn’t need to be that way on a homeless person because of no access? Think that person needs to wait until you’re damned good and ready to give your stamp of approval to the health care system because it meets your high standards of what it should be run like, or should we first get everybody into the system and then start arguing about how to make the system right?

    Maybe he can just go to the emergency room and take a number with the other thousand people there that are in your de facto first choice system? Because you are advocating doing nothing until you have the political power to get single payer, which you currently don’t have squat to enact. So how about we have something while we wait instead of nothing while we wait, eh, zippy? Why do these people need to die for your cause?

    As for what I’m talking about with respect to strategies of the blogosphere, if you don’t know, you haven’t been paying attention.

  60. BSbafflesbrains says:

    @Phoenix Woman: Why would there be a question about who the SC will favor. Nothing has changed. SC is for the 1% politically and idealogically I have little hope that as this new “landmark” legislation is unrolled that the greatest good will enure to the greatest amount of people.

  61. Z says:

    @ondelette:

    The advantage of constructing strawmen to argue with are that you can keep evolving your construction as you go along …

    Did I say that anything less than single payer was utterly unacceptable?

    As an aside, I’m curious if you were as critical of Obama when he decided from the very beginning that this law would not go into effect until 2014 therefore allowing many more people to suffer and die just so that it could stay below some cost number that he pulled out of his ass as you are of this strawman that you now refer to as Z?

    “As for what I’m talking about with respect to strategies of the blogosphere, if you don’t know, you haven’t been paying attention.”

    Some examples? Who are these magical strawmen that compromise what you refer to as the “so-called left blogosphere”?

    Z

  62. bmaz says:

    @ondelette: Let me just say, get lost with your insults. You are a serious scold troll. You need to stop that, it is growing really, really old.

    It is not that you do not often provide worthy material to the discussion here, it is that you are such a pain in the ass as to be extremely close, if not already there, to not being worth the trouble.

  63. Phoenix Woman says:

    @Z: “Who from the left “urged everybody to stay out of the voting booth”?”

    Go check out the diaries left at places like MyFDL. Diaries like this one. “Don’t vote” diaries make up a sizable chunk of the diaries there.

  64. ondelette says:

    @greengiant:

    Oh, come now. You can’t characterize the free riders in any system that way, and you are making a fundamental actuarial mistake. The necessity in any system to control costs is to make sure that people pay in all the time, not just when they are very sick. That’s been proven with hundreds of years of actuarial and statistical data, in fact, much of statistics as a science was invented around trying to solve such problems. To blithely make a remark that the free riders in the system have a lot in common with the Occupy Movement and the problems in the system are allied with the One Percent is just anti-factual. In order to get any public health system to the levels of payment where it is sustainable, you have two problems to solve:

    The free rider problem and the outlier problem.

    The first is that people if left to their own selfish free will, will only pay in when they are very sick or anticipate being very sick, and that, actuarially, is automatically not sustainable as a system of insurance — Medicare is also such a system, it’s just, as people all note, single payer. The solution is that all people must pay in always, which is known as eliminating the free riders. You pay in when you are healthy or when you are sick, but you use the system when you are sick, and that makes the system affordable to all — except for the burden of the outliers.

    The outlier problem is what to do about a set of extreme catastrophes to the system that would drive the costs up beyond what is reasonable but are very few in number, and are therefore known as outliers (because they are statistical outliers). In another discipline, they have been famously recently called “black swans”. They could either catastrophically bankrupt the system or they could cause the actuarial tables to be set so high that the affordability would not be realized, even though most of the time things really should be quite affordable.

    The ACA solves these by using a separate fund mandated by the government that takes them out of the pool, by having people who end up in this situation apply for reimbursment and further coverage from a government plan set up specially for the outliers. I’m not sure how it is funded in detail, I just know that it is a fund that is implemented through the states. People who endure an extreme health care cost apply for the funding and helps with coverage — they don’t have to be Medicaid eligible outright.

    Even if Congress had done single payer, it would have had to do these two tasks somehow, and these two groups would have existed. They always exist on this kind of universal coverage problem. Anybody who thinks that either is a political contrivance is just uninformed.

  65. Phoenix Woman says:

    @Z: ondelette’s probably talking about the diarists that have come to dominate MyFDL over the past year, many of them from the New Progressive Alliance; many of these people were kicked off of OpEdNews a few years ago when they apparently tried to take over that site, and they’ve showed signs of trying to do the same thing to MyFDL. (Though to be fair, three of the most vocal of that crowd got zapped almost immediately when they willfully violated new commenting rules that were implemented a couple of weeks ago.)

  66. Z says:

    @Phoenix Woman:

    So a bunch of diaries on myfdl now compromise the “so-called lefty blogosphere”?

    Yeah, you can always find someone somewhere on the internet that is advocating something, I just don’t see it being prevalent enough to label it a position of the “so-called lefty blogosphere”, do you?

    Z

  67. Z says:

    @Z:
    Phoenix Woman,

    The “so-called lefty blogosphere” is not your term though, it’s ondelette’s so that’s not a relevant question to pose to you.

    Z

  68. DWBartoo says:

    @Bay State Librul:

    Ah, Bay State, you presume that I would vote for Romney?

    Have you no more imagination than that?

    Let us consider other alternatives than the legacy parties, shall we? Such considerations may not “win” … yet they will expand the dialogue and suggest that there are other possibilities than a cunning, calculated, and contrived neo-feudalism.

    And, as admonitions are being bandied about, consider, after you, BS, and many other “incremental”-minded “believers” re-elect Barack Obama, that he will brazenly continue to claim the power to kill anyone, anytime, and anywhere, without due process, and he will also continue, with all his might, to shield the Too-Big-To-Fail Bankers and Wall Street “geniuses” from consequence, even as these … clowns … (Who, like Obama, consider themselves to be the “smartest” folks alive, the “adults in the room”), have “off-shored” jobs, rigged municipal bidding, defrauded millions, all of these acts gutting our political economy … and so on and so forth … THAT will, BS, be on your head.

    Remember that, please.

    The rest of us may well not be able to forget …

    There, we have traded insulting pleasantries …

    ;~DW

  69. JThomason says:

    I am not understanding this term “free riders.” Are we talking surplus value “free-riders”, or poverty level “free riders” or are you just talking about anarchists free holders who just wonder whose freaking system you are talking about?

    Also are “free riders” and “easy riders” the same?

  70. greengiant says:

    @ondelette:
    Why would anyone want to over pay for medical care, over pay for private insurance, over pay for the U.S. medical industrial complex?
    Why would anyone want to be mandated to do so under the ACA, if not for the givebacks that affect others but not themselves?
    And you call anyone questioning that a burden on the system?

    I am thinking the ACA will be increasing payments across the board by the those forced into buying into this insurance program.

    Today a so called “healthy” 20xer gets to pay 200 to 300 a month for 70 percent payoff. Most of those 20xers choose not to buy that insurance.

    The ACA is an accelerator to the ongoing train wreck that is the 9 percent annual increase in medical spending in a U.S. economy that is in decline.

    Are your “outliers” Plan B referred to below or some fine print subsidy of the insurance companies and corporate health plans?
    http://www.csmonitor.com/USA/Politics/2010/0324/Health-care-reform-bill-101-rules-for-preexisting-conditions.

    In either case your personal outlier is small compared to the increased costs coming soon to everyone.

  71. emptywheel says:

    @Adam Colligan: If you think that then you’re probably unaware that I’ve been writing about MLR for years. It is a good part of this legislation and one of the only things (with the Medicare changes) that will really keep costs in check. That said, I share none of your optimism that HHS will or even will want to really regulate the industry. Perhaps under Obama they will, but talk to me the next time a Bush is in the White House.

    But all that aside, what we’ve done it give private corporations government assisted near-monopolies, with the assumption that it’s okay to take 2% of Americans’ take home (the 25% allowed under MLR times the 8% people are expected to pay) for profit without any guarantees they’ll be able to afford care. That’s a problem.

  72. emptywheel says:

    @Bay State Librul: Not 30 million anymore–at least not until the states decide they’ll expand Medicaid, which they’re not required to do. And if they don’t no one knows what will happen to those people, who represent the biggest chunk of people with new access to coverage.

  73. bmaz says:

    @emptywheel: Not sure of total people numbers in play, but my recollection is that 23-25 states are in no-participation mode either belligerently or some factor of it currently. That could be a LOT of individuals hanging when it sorts out. And many of those states, while maybe not the coastal most populated states, will be the states with highest poverty levels to start with.

  74. Bay State Librul says:

    @emptywheel:

    Woudn’t they be fools not to expand Medicaid with the Fed reimbursement?
    In Mass, we make out like bandits.
    Not sure about the other states are doing, but they need to get on the
    bandwagon, no?

  75. emptywheel says:

    @Adam Colligan: Again, calling these “relatively strict” defies what every expert says, which is that they’ll easily be gamed.

    Like I said, I think MLR is by far one of the best parts of this legislation. I just think it’s nowhere near enough to warrant a mandate that people pay without stronger guarantees people will actually be able to use their insurance.

  76. emptywheel says:

    @Adam Colligan: But the question is where the leverage is. Under this scheme, the leverage is with the oligopolies who have a captive market, not the government.

  77. Phoenix Woman says:

    @Z: You have to spend a lot of time there to get the full glorious effect. Many of the commenters on this blog also spend time there.

    It is easy to think, if you spend a lot of time in the company of a particular group or subgroup, that their views are more common or powerful than they really are. I remember seeing the disappointment over at Daily Kos during 2007 and 2008 when John Edwards was getting crushed in the primaries; DK at the time was full of Edwards parisans, of which I was one.

  78. emptywheel says:

    @ondelette: ondelette,

    I’ve actually grown to be amused by your fact-free trolling directed at me. You’ve so discredited yourself with the consistency with which you insinuate things I didn’t say to make ad hom attacks that you’ve become funny. A cute little amusing troll.

    But if you’re going to do it to other commenters–to my guests, rather than to me–it becomes intolerable and will be the final straw to be banned.

  79. emptywheel says:

    @Adam Colligan: The ACA does nothing to create competition and it doesn’t exist now. That’s a big part of its failure, and the reason it won’t do much (MLR and Medicare fixes aside) to fix the really urgent problem of healthcare sucking our economy dry.

  80. emptywheel says:

    @Bay State Librul: There will be a lot of pressure for red state governors to join, because it is almost free money. But given the way this has become a rallying cry, and given the way the right racializes Medicaid, I think a lot will come down to whether or not they sustain this anger.

    Another reason it’d have been smart for ACA to go fully into effect earlier.

  81. Bay State Librul says:

    @DWBartoo:

    You come to praise Obama, not to bury him?
    On the domestic scene, Obama has been a bright light.
    Under Bush, they were 100% foreign affairs, 0% domestic.
    Reversal was necessary.
    I do cut Obama a lot of slack.
    The Bankers had Obama by the balls with the meltdown.
    We’ve at least got Dodd-Frank, and hopefully more to come in the
    next term?

  82. Phoenix Woman says:

    By the way, from the opinion, here’s Justice Ginsburg on Chief Justice Roberts’ take on the Commerce Clause (footnote 12, p. 102, bolding mine) —

    Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend“for the . . . general Welfare of the United States.” Art. I, §8, cl. 1; ante, at 43–44. I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.12

    12 THE CHIEF JUSTICE states that he must evaluate the constitutionality of the minimum coverage provision under the Commerce Clause because the provision “reads more naturally as a command to buy insurance than as a tax.” Ante, at 44. THE CHIEF JUSTICE ultimately concludes, however, that interpreting the provision as a tax is a “fairly possible” construction. Ante, at 32 (internal quotation marks omitted).That being so, I see no reason to undertake a Commerce Clause analysis that is not outcome determinative.

    What say you all? Seems like Ruth Bader Ginsburg thinks that Roberts was merely spewing hot air with his little excursions on the Commerce Clause.

  83. ondelette says:

    @Phoenix Woman: No, I’m probably talking about the concerted efforts of people like Jane Hamsher and Glenn Greenwald and others to discourage voting for up ticket candidates, to force candidates out who didn’t hold out for the public option, and so forth, but never you mind. We can all pretend it didn’t happen. There are tons of people on the progressive and left blogosphere who have been cheering for a court victory bringing an end to the ACA in its entirety or, failing that, to the individual mandate. Regardless of the method of funding, any universal coverage health care bill, single payer included, would have mandated that all free riders paid, and that would have meant an equivalent to the individual mandate, perhaps more palatably as a tax. My explanation above suffices.

    I meant what I said. Carrying any battle in a democracy farther than when it’s time to pick up the pieces and move on and see what can be the next steps is very much like what the fundamentalists have done with Roe v. Wade. And should be called as such. It’s civil war stuff. I spend too much of my time worrying about sectarian violence to think much of people who think those are great values to espouse.

  84. Bay State Librul says:

    @emptywheel:

    True.
    I guess I have no empathy for the red states.
    They seem so fucking reactionary, we need progressive thoughts.
    I’m surprised by Wisconsin…
    Too bad Madtown didn’t have a greater population.

  85. ondelette says:

    @emptywheel: As you wish. My “trolling” isn’t fact free, and I’m impressed that you lack the factual basis to recognize that, I suppose it’s easy to be amused if ignorance is bliss.

    By the way, did you understand my comment to you on your rather loose interpretation of the original on the prison in Puntland? When the Puntland Security arrests someone, they aren’t imprisoned by the CIA number 1. Number 2, if the CIA hands someone over to them, they are no longer in CIA custody, so the proper query is whether or not there has been a legal refoulement and on what grounds the CIA apprehended them in the first place and how long the CIA had them before they got there, not when they got there. But don’t let that stop you. You make shit up when it comes to Somalia all the time.

  86. ondelette says:

    @ondelette:

    And as for being banned, Marcy, you apparently don’t seem to realize that I am not speaking fact free. I am speaking factually. I am just not citing. If you are unable to understand what I say, then by all means, request an explanation. If you think I’m making an untoward allegation, by all means ask me to defend it. If you think I should be banned for using language, tell me what language you do not think should be used.

    But if you are going to ban me for disagreeing with yours or your fans political opinions, or the factuality of their arguments, especially when some of them are uninformed or misinformed, or even merely because you don’t agree with me, then you are not enforcing polity, my dear, you are practicing cowardice. Speaking truth to power is never so apparent as when power exists in the form of censorship, and you, Marcy Wheeler, are the censor here.

  87. bmaz says:

    @bmaz: Also, obviously that number will change with elections of govs, legislatures and or AG’s in the various states. Still, disconcerting that half or more of the states presumptively would be willing to opt out.

  88. DWBartoo says:

    @Bay State Librul:

    Clearly, my dear BS, we have occupied a very different country, these past several years … for you say, “On the domestic scene, Obama has been a bright light.”

    Many might beg to differ … however, the obscenely wealthy are very happy as their every wish becomes Obama’s heartfelt desire, and they are also absolved from begging, they have attorneys to do that for them, as well as wheedle, whine, and “deal” …

    You say, “The Bankers had Obama by the balls.” Apparently, so has the “other” legacy party, as well as Big Pharma, the insurance “industry”, “energy interests” and just about anyone with money, even if the Koch brothers would have you (and millions of others) believe otherwise.

    Either Obama’s balls are very, very sore and squished … or he stands, somehow, to gain from this pain you have fatuously inflicted upon him, BS.

    Dodd-Frank is yet, very much, a “work” (“Gawd’s”, most likely) in “progress”; the Banker’s “interests” are not yet done with it … and, when they are, it will so very cumbersome as to be meaningless and unenforceable, which is its intent (at least so far as the brightest and best are concerned).

    I guess we just see things a wee tad bit differently, BS.

    (Even if a certain “town”, in the Bay State, is, and shall always be among my favorite places …)

    DW

  89. JohnT says:

    FWIW, from a couple months ago

    WASHINGTON, DC — According to one Republican attorney general in the lawsuit against the health care individual mandate, the problem with Obamacare is that it’s not a government takeover of health care.

    […]

    KEYES: You don’t think the subsidies for low-income people are going to be helpful?

    CALDWELL: No, no. The worst thing you can do is give it to an insurance company. I want to make my point. All insurance companies are controlled in their particular state. If you have a hurricane come up the east coast, the first one that’s going to leave you when they gotta pay too many claims is an insurance company. Insurance companies are the absolute worst people to handle this kind of business. I trust the government more than insurance companies. If the government wants to put forth a policy where they will pay for everything and you won’t have to go through an insurance policy, that’d be a whole lot better.

    Sounds like Single Payer to me

    Video at the link

    http://thinkprogress.org/health/2012/03/30/454261/buddy-caldwell-private-insurance/?mobile=nc

  90. bmaz says:

    @ondelette: Let’s be clear on a couple of things Ondelette. First, that is not “censorship”, it is common courtesy and respect for the friends and commenters that make this blog what it is and always has been. Do not petulantly equate common decency with “censorship”. Secondly, when and if that day should come (I still hope it does not have to be so), I can assure you Marcy will not stand alone.

  91. emptywheel says:

    @ondelette: I am going to put you on automod for repeatedly, here and elsewhere, making claims about what is said in a post or comment that are not based in fact, and then using that as a basis to attack someone. You are utterly consistent on this point–in fact it is ALMOST the only time you comment, to play that plot. I find it amusing and cute, at this point, when directed at me. BUt I won’t have you doing it to my guests.

    Sorry after so many warnings you weren’t able to participate in constructive fashion, quite honestly.

  92. GulfCoastPirate says:

    @bmaz: From what I’ve read those states also tend to be the reddest states that need the help the most.

  93. JohnT says:

    @GulfCoastPirate:

    There was a study a few years ago that found that the counties in California that receive the most in state and federal aid, were … the most solidly red counties

    I might have the link somewhere

  94. ondelette says:

    @ondelette: Before I go, though, I will do you the respect of thanking you for not compromising my identity. I do owe you that. Thank you. It is very important to what I do and I am grateful.

  95. bmaz says:

    @ondelette: There was never, and never will be, a chance in hell of that. That is not, and never has been, how we do things. The only issue is nominal courtesy and respect, for the hosts, yes, but we can take care of ourselves, that is just annoying, not more.

    The more important principle is respect and courtesy for commenters and members of our community. It is mostly a core group and we care about them as friends. There is a golden Rule involved. Every now and then, I cross that golden line. I have no issue in making amends. You, on the other hand, are churlish and unrepentant. That ain’t gonna cut it.

  96. liberalrob says:

    Ondelette seems to imply that single-payer is not the same as universal coverage. My assumption has always been that single-payer implies universal coverage. If that’s incorrect, then I have to say that to my mind they need to be taken as one, and I would only support a proposal that did so.

    I was one of those who was hoping the individual mandate would be struck down. Ondelette’s theory of incremental change is a quaint idea that cannot succeed in the current corrupted political environment. As we have seen demonstrated forcefully by the ACA, any attempts at incremental, consensual change now result not in gradual progress towards progressive goals; but instead offer only the illusion of “reform” while creating new and inventive ways for corporate interests to siphon off profits for themselves. It is indeed “civil war stuff,” as that is exactly what we are engaged in. In my opinion, continually compromising on core values in the name of civility or collegiality has gained us exactly nothing; where is the compromise on the other side?

    So the individual mandate has survived, being viewed as a “tax” for legal purposes. That means we’re still saddled with a health care “reform” that on balance does little to actually reform the system. As a matter of law, maybe it was the right decision. As a matter of policy, it stinks as bad as ever. And now, with the imprimatur of the SC ruling that it is constitutional, any attempts to reform the reform will be even more difficult to enact. The headlines should read, “SC: Congress can pass ill-considered legislation; stupidity not unconstitutional.”

  97. Strangely Enough says:

    @liberalrob: “Congress can pass ill-considered legislation; stupidity not unconstitutional.”

    Way too “dog bites man” for a headline.

  98. Z says:

    @ondelette:

    Just trying to find some consistency to what you are saying here …

    You:
    “No, I’m probably talking about the concerted efforts of people like Jane Hamsher and Glenn Greenwald and others to discourage voting for up ticket candidates, to force candidates out who didn’t hold out for the public option, and so forth …”

    Do you think that this equates to what you said earlier: “urg(ing) everybody to stay out of the voting booth”? Did Hamsher and Greenwald “urge everybody to stay out of the voting booth”? Or did they merely advocate voting for politicians from outside the cozy confines of the corporate democratic servile party that you support?

    More of you:
    “What’s next folks? You sound like fundamentalist Christians ranting against Roe v. Wade. They’ve gone really way past the extreme over the years, how far will you go because Obama didn’t back your sacred public option?”

    “Carrying any battle in a democracy farther than when it’s time to pick up the pieces and move on and see what can be the next steps is very much like what the fundamentalists have done with Roe v. Wade. And should be called as such. It’s civil war stuff. I spend too much of my time worrying about sectarian violence to think much of people who think those are great values to espouse.”

    What do you consider to be “extreme” that left-leaning opponents of the ACA bill to have done? Is it merely suggesting primarying politicians that lied to them about their support of a public option? Is that extreme? Is there anything more extreme that they have done? Do you really foresee the people on the left that are disappointed in the exclusion of the public option going to the violent lengths that some folks on the right have in regards to Roe vs. Wade?

    It seems to me that you are attempting to portray folks on the left that don’t support the democratic party and Obama … who lied about supporting the public option … as extremists and are venturing very far from the truth to support your contention by constructing strawmen. And then when you are asked to produce real life examples that resemble your strawmen … and strawwomen … you either completely ignore the request or modify your strawmen to find a match.

    By the way, I’d imagine that you didn’t … and wouldn’t … come down as hard on the MoveOn herd’s leadership that proposed primarying all democrats that wouldn’t vote in favor of a health care bill without a public option … a stance that they days before had espoused before they changed their tune … than what you do now with your hyperventilations about those that want to primary politicians who they helped elect based upon what the politicians said they were going to do but who then betrayed those promises and their constituents.

    Do you think that politicians betraying their promises and constituents are grounds to primary them? Are we supposed to just accept being lied to and betrayed and just get over it as long as they are democrats? Do you feel that same way in regards to republicans as well … that people ought to vote for them no matter how dishonest they are … OR do you hold them to a different standard being that aren’t from your precious party?

    Z

  99. Z says:

    @liberalrob:
    “Ondelette’s theory of incremental change is a quaint idea that cannot succeed in the current corrupted political environment.”

    And the bill has only gotten worse over time. Teddie Kennedy’s CLASS Act has been nixed, funds have been taken away from preventive programs, and the administration has punted on defining essential benefits in the bill … as most had expected them to do when the bill was passed … and has instead left that up to the state governments.

    Z

  100. Z says:

    @ondelette

    “There are tons of people on the progressive and left blogosphere who have been cheering for a court victory bringing an end to the ACA in its entirety or, failing that, to the individual mandate. Regardless of the method of funding, any universal coverage health care bill, single payer included, would have mandated that all free riders paid, and that would have meant an equivalent to the individual mandate, perhaps more palatably as a tax.”

    You completely distort the issue here … again … by creating the lefty-leaning strawman that is so incensed by the individual mandate itself … completely isolated from the very relevant issue as to where the money goes … that they wanted the bill overturned. It’s not the individual mandate all by its lonesome that has pissed off the vast majority of the people on the left that wanted the bill to be overturned, it’s the fact that the money goes to the private for-profit insurance companies. I’d imagine that almost all of these lefty-leaning folks that are pissed about the mandate that punishes us if we don’t turn our money over to a poorly regulated industry that wrote most of the bill (thank you so much Liz Fowler for your service to the health insurance industry, AGAIN) also support universal healthcare in some sort of Medicare-for-all arrangement.

    The strawmen you construct have got their lefts and their rights all mixed up but I guess that’s what it takes for you to argue your position.

    Z

  101. phred says:

    Holy cow, 124 comments — nothing like a SCOTUS Trash Talk thread bmaz ; ) Sorry I’m so tardy.

    I think DDay or someone had a post up the other day noting that the Chamber of Commerce wins 100% of the time in the Roberts court. Clearly, today their success remains undiminished.

  102. Z says:

    Ondelette’s lefty strawman as far as I can discern:

    A person that supports the government administering universal healthcare coverage but is somehow so incensed that the “free-riders” have to pay into ACA that they want the entire ACA bill overturned just so that the “free-riders” don’t have to pay into it in anyway … though they would have to under what these lefty extremists favor: Medicare-for-all. Oh yeah, and these lefty extremists that are against the individual mandate … which incidentally the majority of the population also is against … are so pissed off about it that they are advocating not voting in November and are now so enraged that God knows what will happen next … maybe violence as EXTREME as what the opponents of the Roe vs. Wade decision have resorted to.

    Yeah Ondelette I wouldn’t “spend too much of (your) time worrying about sectarian violence” from these people because I don’t think that they actually exist … I don’t think that it’s even possible for them to exist since there are so many contradictions in what you purport they believe in.

    Z

  103. Z says:

    @phred:

    I think the Chamber of Commerce actually claims to be against ACA … not that I believe that’s really true. They have to be tickled pink inside at the expansion of the corporate-government state and the precedent that this decision now sets for the future.

    Z

  104. Gitcheegumee says:

    It has been instructive and illuminating to read the depth and breadth of the varying opinions and input ,here at EW.

    I,as well as some- was quite taken aback at Roberts’ “about face”; and then, unexpectedly, I recalled a somewhat long ago incident involving Roberts and an up close and personal health encounter of his OWN…anyone else recall this?

    Facing one’s own immortality at a fairly young age can be quite the attitude adjuster, don’t ya know..

    Why John Bryson and John Roberts should talk about their …
    Although details were not disclosed, the White House confirmed that he had a seizure. On July 30, 2007, Chief Justice John Roberts collapsed on a boat dock at his Maine …
    mediamatters.org/rd?to=http%3A%2F%2Fwww.washingtonpost… – Cached

  105. P J Evans says:

    I’ve heard that one theory is that the decision was going to overturn ACA, something happened after that decision was made to get Roberts to change his mind, and that’s why Scalia went off the edge the other day.

    I don’t know how believable it is, but it makes some kind of sense.

  106. phred says:

    @Petrocelli: ROTFLMAO… Oh my (giggle, snort) I have no idea what Rodgers politics are, but he would have gotten every damn vote in the state — excepting of course those infiltrating heathen from Bear/Viking territory ; )

  107. phred says:

    @Z: That’s the thing, I don’t believe it either. I also am certain that Roberts twisted himself into a pretzel in order to make sure that individuals are required to tithe to corporations or be fined for their insolence.

  108. JohnT says:

    @phred: He’s already the #1 NFL player. … Hey, I got a deal for ya, since we don’t have teh awesome Tarvaris Jackson anymore, how ’bout Sage Rosenfels and a bucket a cheese curd for Rodgers?

    I’ll even throw in a case of Old Milwaukee

  109. pdaly says:

    @phred:

    I also got the impression Roberts felt this was his Marshall (‘Marbury v. Madison’) Moment. And by blurting the word “taxes’, a word the politicians were loathe to utter in writing this bill (now law), Roberts also got to blow the dog whistle to rally the Republican troops to the polls in a presidential election season.

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