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.