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David Apgar: The Most Cynical Court’s Most Dangerous Decision

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Yves here. I have some quibbles with Apgar’s argument, since he avoids the obvious, but unpalatable-to-Obama solution of a public health care system. That’s why defense and homeland security don’t have free rider problems: they are tax funded. But he does raise the issue that a ruling that strikes down Obamacare could do collateral damage.

By David Apgar, who blogs at www.goalscreen.com, an app that tracks and tests work goals to identify predictive metrics

Supreme Court justices had trouble on Tuesday directly challenging the link between interstate commerce and Obamacare’s requirement for everyone to get some kind of health insurance. Without the requirement, healthy people will keep opting out of the market, health insurers will contain costs by denying coverage for anything with a genetic marker, and small businesses will seek states whose insurers tolerate the medical needs of their staff. How’s that for interstate? It’s no joke and it’s happening now.

Instead, Alito likened the requirement to mandating the purchase of burial insurance. After all, stiffs without burial insurance are the ultimate free riders – the living pay their costs just as people with health insurance pay for treating the uninsured. So the objection he and the court’s majority are formulating is this: the Affordable Care Act (ACA) sets a precedent for the redress of other free-rider market failures like requiring burial insurance, but the legislative power to require things like burial insurance is an unacceptable expansion of the commerce clause.

The objection will topple three pillars of federal economic policy making in preempting the severity of healthcare risks as a precedent-avoiding distinction, free-rider justifications of regulation and future regulatory laws that could be construed as precedents. This seems too extreme even for the defense of liberty until you consider it may change the party controlling the White House. Is it true?

The comparison of Obamacare to burial insurance takes one unique, precedent-avoiding feature of the legislation off the table. Only healthcare costs bankrupt two million Americans per year (Himmelstein et al., 2005). Burial costs are, sad to say, predictable. But the ACA is nevertheless now deemed to empower burial insurance requirements. This poses a problem for those dismayed by the Obama Administration’s lack of support for a single-payer option who may not be surprised to see the regulatory approach of the ACA go up in flames.

If the unique severity of healthcare risks does not distinguish them from ridiculous expansions of the power to regulate commerce then a future Congress may be unable to craft a viable single-payer plan. Any state could undermine it with cynical customer-care requirements that federal regulation accompanying the plan could not reach. Expect Texas to require doctors in a single-payer plan to make house calls for checkups.

Having mooted the extraordinary severity of healthcare risks, the court’s political majority focuses us on free-riding as the principal remaining economic justification for healthcare reform. The free-rider problem is that I won’t buy health insurance if I work for a small business that can’t afford it and I am healthy today. And I will throw myself on the mercy of a local hospital if I get in trouble tomorrow. If your employer can still afford health insurance, perhaps because she still pays taxes – then you end up paying for me.

Perhaps it doesn’t matter much whether free-rider market failures can justify future regulation of interstate commerce. The federal government’s big free-rider programs are defense and homeland security – both happily independent of the interstate commerce clause. Just don’t expect future energy and environmental regulation justified by the free ride we all enjoy from energy research and pollution abatement to fare well under future judicial review.

Alito’s burial insurance simile may go farther, however, and preempt any future regulation construable as a precedent. No one has argued with a straight face that the ACA is unrelated to interstate commerce. For weak connections to interstate commerce, check out the gun-free school zones overturned in United States v. Lopez. The emerging argument is that the ACA sets a precedent for absurd abuses of the legislative power to regulate commerce. That is why adults in downtown DC have been arguing whether it will let Congress force us to eat broccoli.

But this is strange. Laws don’t set precedents. Judicial decisions set precedents. To hold it against a law that it sets a precedent is innovative. It creates a new standard for regulation under the interstate commerce clause. Such laws will have to be self-limiting. If you don’t know what that means, either, it’s going to be very good news for attorneys.
The problem with all of this is that good economic policy has come to depend on careful consideration of the severity of risks like those posed by healthcare costs and market failures like the free-rider problem while leaving the distracting question of precedents to the courts. Apparently, it’s quite hard to make a serious constitutional argument against the ACA. So you’ve got to expect casualties.

None of the conservatives on the court is aiming at these things. They just want to unseat Obama. But they’re reckless. Civil society needs to exert extraordinary pressure on the court between now and June to protect itself.

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86 comments

  1. paul boisvert

    “Defense” does have a free rider problem–the volunteer army. The rest of us can freely avoid paying the real price for our US imperial (and criminal) war policy, unlike those whose economic prospects are so poor that they feel coerced into volunteering to go risk getting killed. The Vietnam war ended largely because the draft mobilized non-free riders and their friends and loved ones into supporting the anti-war movements. A draft today would drastically limit our military options, and no just or moral society would ever not have a draft for its own “defense”–though of course, since WWII, no US military operations have been in the least “defensive”.

    1. Mark Anderson

      You left out that U.S. “defense” policy actively endangers all Americans. How can I be a “free rider” on something that opposed my ethics, my self-interest, and any rational understanding of the U.S.’s enlightened national interest? I’m not getting anything out of it but collateral damage I oppose to the point of disgust and new enemies I have yet to meet. Try again.

      1. Jim Haygood

        ‘That’s why defense and homeland security don’t have free rider problems: they are tax funded.’

        Nope, no free-rider problem here — only massive mission creep and a cost-plus mentality which has driven costs to many times the level of supposed benefits (if any).

        And these waste-ridden, liberty-destroying leviathans are supposed to be a model for health care, simply because they efficiently eliminate ‘free riders’? GAHHHHHHHH!!!!

        Just goes to illustrate the point made by theorists ranging from Chairman Mao to Friedrich von Hayek to Ron Paul: that progressive socialism is enforced at gunpoint. Your Obamacare ID, please, comrade!

        When single-payer comes to pass, I hope our good-government overlords will grant me an exit permit. But if not, I might have to chew my ankle off to escape the leg-hold trap of their dystopian, gov-worshiping nightmare.

    2. Ignim Brites

      WWII military operations against Japan were not defensive. Neither Japan nor Germany posed a threat to the continental US. After Pearl Harbor a peace treaty could have been concluded acknowledging Japanese dominion in the Western Pacific. Hitler’s gratuitous declaration of war against the US could have been ignored. It is easy to imagine Roosevelt commenting with a mocking grin: “Hitler has declare war now let him wage it.” A peace treaty with Hitler that acknowledged German dominion over Europe, preserved British independence and possibly even allowed for the emigration of Jews to Palestine might have been concluded. We could have concluded such a treaty cynically with the hope that Germany and the Soviet Union would exhaust themselves and whoever was left standing would find themselves confronting the Empire of Japan on the northern and western borders of China. Nations engage in these kinds of cynical treaties all the time. Just look at the treaty that launched the whole thing. But Roosevelt and the citizenry were eager for the glory of war and beguiled by the promise of victory.

    3. Nothing Works Perfect

      Great insight pointing out that Vietnam War draftees were free riders.

      If we would just send doctors to jail and let everyone visit them, all our free rider problems would be gone!

      Actually, the burial free rider problem is worse than the Supremes realize, I think. Individuals have a lot of negotiating power after they are dead. First the stink, then the plague, next thing you know you get cremated for free! Better to get money out of ‘em while they’re still alive.

      But I have confidence the Supremes will come up with something that makes sense.

      Meanwhile, I’m still catching up on the corporations are people thing and like does that set any precidents? Will our Caymen Shell People be forced to buy insurance, presumably from another person?

      1. Procopius

        Well, yeah, I think we do have a burial free rider problem. Isn’t that why municipalities have Potters’ Fields? They used to be called Paupers Graves, if I recall rightly. If people die and don’t have any remaining money (that anyone can find) and no relatives to pay for burying them, there are city employees responsible for burying the remains. The only reason for burial insurance is because many people want something more than just being dumped in a hole in the ground, Also, most people have a certain amount of pride. People feel ashamed to accept welfare, and they feel ashamed to leave the cost of burying them to others, but a lot of people have done it since the beginning of civilization.

        1. Rcoutme

          Or…you know…they could leave their bodies to medical universities. Our society could use more of those.

  2. Middle Seaman

    It amazes to no end how people will go to analyze the Supreme Court hearing of the objection to health care reform (or its pretense to be one).

    ON display was a circus performs with the unfunny clowns of the right. The arguments made by Scalia and Alito are totally devoid of substance, logic and legal significance. Kennedy seem slow, Thomas is dead and Scalia has his vote. Roberts was the only one who acted as if he still evaluates the case; he made up his mind long ago.

    This Supreme Court will find Medicare unconstitutional if asked. Disband the EPA and might even return slavery using refined arguments.

    Obama may be slow and corrupt like Kennedy, but he didn’t nominate the terrorists on the right.

  3. Hugh

    Apgar makes a lot of errors that have been around since the beginning of the healthcare debate.

    First, it is not primarily healthy people who will opt out. The mandate will affect the 50 million Americans currently without insurance. That is those who are not poor enough (Medicaid) or old enough (Medicare) or lucky enough (employer provided insurance). And it will force them to buy crap insurance that at once they can ill afford and which will be too expensive to actually use.

    Second, any decision the Court is likely to make will have little effect on any future single payer system because we already have the Constitutionally solid single payer Medicare model with us.

    Third, the problem with the mandate is not that it will force all Americans to buy insurance (think public programs like Medicare, Medicaid, and Tristar) but that it will force one class of Americans to buy insurance from private companies. The first problem here is that this class will be forced to buy crap insurance that will be too expensive to actually use. That is they must pay for something for which they will receive no benefit. While this is extremely unfair, I don’t know that it is unconstitutional. The real problem is that while the government has public programs for other classes which are paid for by taxes, the mandate requires one class, the uninsured, to purchase insurance from private entities. Such a purchase is not a tax. It does not go to or through the government. It is not money the government dispenses. It goes to the insurance companies. Nor can you say the Commerce Clause touches it because this is not commerce that exists. It is commerce which the healthcare act would bring into existence or more accurately force into existence. So basically this is not the Commerce Clause regulating commerce but the Commerce Clause being invoked to create commerce that the Commerce Clause would then regulate.

    Finally, I would note that while the Commerce Clause is not popular with conservative Courts, the anti-Commerce Clause rulings reached their zenith under the Rehnquist Court when Sandra Day O’Connor was the swing vote and that the Court had already begun to pull back on them before she left.

    1. LucyLulu

      Many of the uninsured will end up with financial hardship exemptions. (Medicaid is only available for poor seniors, children and disabled.) Those that don’t will likely opt to pay the tax or penalty, whichever it is. It starts at $95/year in 2014 and increases to $695 in 2016 as a minimum cost, but the maximum cost is less than 2.5% of income. An individual who makes $50,000 would pay $1000 in 2016. That’s a whole lot cheaper than any insurance policy that can be bought and emergency treatment and stabilization will be provided as it is now, if needed.

      In addition, Obama has said that he won’t be prosecuting or taking out liens to collect the tax. It will either come out of a tax refund or they will send letters or make phone calls to collect. Given that 30% of folks already are not paying the taxes they owe and the IRS is doing little to collect, it’s doubtful there will be any appreciable efforts to collect these minor amounts, outside of the low-hanging fruit available from tax refunds. People will change their withholding to ensure they aren’t owed refunds. Those who qualify for the Earned Income Credit would likely be exempt from the mandate.

      Other than the changes that have already been put into place affecting coverage of pre-existing conditions, lifetime limits, and children under 26, Obamacare will do little to nothing to fix the problems in health care. Instead of looking to models that have already been successfully instituted in other countries, here in the US we insist on trying to improve on our own severely broken version.

    2. KenWalton

      Can you build an “equal protection” argument on the fact that all classes are taxed to fund Medicare, but only one class is allowed to use it? Can you use that argument to expand it to Medicare For All?

      1. Hugh

        No, MMTers will tell you that taxes are needed only to force people to pay taxes using the currency and thereby establish its value. But as I once wrote years ago, the broader purpose of taxation is social engineering, that is, along with government spending, it is how we as a society redistribute wealth throughout the society. So its effects are always unequal. The massive wealth inequalities we see now arise from both taxation and spending being hijacked by our elites.

        It won’t happen in this kleptocracy but maybe someday we will recognize that healthcare is a right and deploy society’s resources accordingly.

    3. Lambert Strether

      Apgar must have insurance. Faced with a choice between (#1) being denied care, and (#2) being denied care after having paid thousands of dollars because the junk insurance ObamaCare forces people to buy won’t cover what they need, why would any rational actor do anything other than pick Door #1? Who wants to be forced to buy a defective product?

      The ACA is a bailout of the health insurance companies, pure and simple, through the mandate (and people might want to think what product they’ll be forced to purchase next if this goes through).

      The real issue is that the health care system is organized so that insurance companies profit, because insurance companies maximize their rents by denying people care. (And that’s before we get to the issue that health care isn’t amenable to neoliberal market-based solutions anyhow, because it’s a “lemon market” where asymmetries between buyers and sellers are massive.)

      Take the insurance companies out of the equation, and you save the $350 billion a year they skim off, while adding no value to any transaction in which they engage, and improve health care outcomes into the bargain.

      ObamaCare, by contrast, puts the health insurance companies at the heart of the system. The ACA approach is a classic neo-liberal solution (and even a “nudge” solution, with the IRS doing the nudging). It was originally conceived at the Heritage foundation, by one Mark Pauly, explicitly to head off single payer. It was first implemented in Massachusetts by none other than Mitt Romney. And it was crafted as Federal Legislation by one Liz Fowler, a Wellpoint VP on secondment to Senator Max Baucus’s office. That should tell you what this fight is really about: A continuing stream of rents. That should also tell you that both legacy parties, in servicing the rentiers, are broad agreement on one of the major public policy issues of our time (quelle surprise).

      My personal hope is that the Court strikes the mandate and the ACA down, so that solutions that can be proven to work, like single payer, can be placed on the table. (I don’t care why they do it; the charge of “cynicism” works in Junior High, but not much higher. I mean, shocker! Politicians calculate! IMNSHO, although this is a side issue, any Supreme Court decisions since the first justice ascended (if that’s the word I want) to the bench after Bush v. Gore is fruit of Scalia’s poisonous tree, and illegitimate.)

      Otherwise, we’re going to be stuck with a system that’s both very expensive and lethal for another generation. Any collateral damage can surely be dealt with through regulations or executive order (given the powers Obama has seized in that area. Taking hostages from among very few people ObamaCare has actually helped to support Obama’s re-election campaign is one of the more disingenuous career “progressive” tactics, disingenuous even for them).

      There’s only one chart you need to see what’s at stake:

      Here is is: http://www.correntewire.com/murder_spreadsheet.

      1. Aquifer

        “It was originally conceived …… explicitly to head off single payer.”

        Bingo! Thank you! I have been arguing that for some time, good to see it put in print by someone else, as well …

      2. Rcoutme

        Here is another voice actually hoping it gets struck down for a reason other than what the SC would likely cite. Single payer may not be rising in costs (percentage wise) any slower than our system, but they sure as hell start from a lower base level–in every country that counts!

    4. David Apgar

      Hugh and Lambert make three fragile assumptions. First, that a single-payer system can be enacted in the US. Those who have read every paper showing the superior performance of these systems in a wide variety of countries for 18 years have also watched single-payer proposals fail under a wide variety of political constellations in the US. At some point you can hold your breath no longer.

      Second, given the lack of progress on single-payer plans, that someone needs to protect the poor from the ravages of Obamacare. This article is not a defense of the single mandate over better policy solutions but rather a warning that the arguments being marshalled against it will have massive side effects. It is nevertheless preposterous to argue that those unable to afford insurance now will be worse off under the ACA.

      And third, that the court will restrain itself in how it uses a decision overturning the ACA as a precedent in the future. All indications are to the contrary — expect instead decisions against future energy and environmental regulations that would never have raised constitutional questions in the past deeming more remote from interstate commerce than the imperfections in the market for health insurance found this week to be out of reach of the commerce clause.

      1. Hugh

        Following David Apgar’s logic, we should pack it in. Kleptocracy has won. Single payer will never happen. Of course a similar argument could have been made about slavery or women’s suffrage. There was no point in challenging them, until they were and done away with. And as I said in my initial comment we already have the model for American single payer in Medicare.

        Given Obama’s propensity to delay and/or weaken EPA rules, his promotion of drilling, and his conduct during the BP Macondo oil blowout disaster, I would say that the Democrats are a much bigger threat to the environment than SCOTUS. This isn’t to say that SCOTUS is friendly to the environment. But most of its attacks have been on the Clean Water Act via what constitutes navigable waters. And the anti-environmentalists actually lost in the 2007 case Massachusetts v. EPA which required the EPA to write rules regulating greenhouse gases. Again the delays on this since then have not been due to SCOTUS but mostly a corporatist Democratic President.

        If anyone is interested, the three big cases involving the Commerce Clause were US v. Lopez (1995) involving a federal law against carrying a firearm near a school, and US v. Morrison (2000) concerning parts of the federal Violence against Women Act. The federal government lost on both of these largely because Congress had been sloppy and/or negligent in making a realistic link to interstate commerce. However, the federal government prevailed in its commerce clause claims in Gonzales v. Raich (2005). Interestingly, this involved the use of medical marijuana grown in and destined to be consumed in California. The Court recognized that marijuana was an interstate market so the feds could regulate it even if one part of it was confined to a single state.

        These cases illustrate a couple of things. Lopez did not present an insuperable barrier to the Commerce Clause. The law was simply rewritten to better delineate its commerce aspects. And while Raich was a technical victory for Commerce Clause proponents, it had little effect on curbing the growth of the medical marijuana industry in California. And I leave it to you decide what you think about its use in this area, not that it can be used but that it was used here.

      2. Mark P.

        [1] They may currently seem fragile assumptions in the US context. But somewhere between 2018 and 2035 this lousy system is going to break from its own escalatory predations.

        With Obamacare, that break can be postponed for, maybe, another couple of decades.

        Without Obamacare — and, as Lambert rightly lays it out, the Obama plan was built around getting buy-in from and continued rent-extraction for the medical-industrial complex as it’s currently constituted — the break comes around 2020.

        So, sure, it’s going to be a rough, scary transition. But the sooner this system is broken, the better. Obamacare only extends the problem, is no solution.

        [2] There’s a concentration by folks here solely on the pernicious role that the health insurance industry plays.

        Sure, the health insurance industry is predatory. But individual health insurance companies can struggle to break even and their rent extractions pale beside those of Big Pharma.

        Big Pharma is the real monster in the room, based on the figures.

        1. Aquifer

          “But individual health insurance companies can struggle to break even ..”

          Yup, that’s what their CEOs tell their shareholders as they pocket their obscene salaries …

        2. Rcoutme

          Big Pharma is the problem? Have you considered what the cost of all the bypass surgeries would be if we did not have the BP medicines and blood thinners we have today? How about the counseling costs for the people who need anti-depressants? Would you care to cite the cost of treating (most likely institutionalizing) people with Bipolar if we did not have effective pharmaceutical treatments? How about the cost of Personal Care Assistance for people suffering from arthritis?

          I beg to differ with you on the ‘real’ reason for the increase in health-care costs.

    5. Aquifer

      “any decision the Court is likely to make will have little effect on any future single payer system because we already have the Constitutionally solid single payer Medicare model with us.”

      Don’t be too sure about that …

  4. darms

    The US defense folks have not defened me against any threats that I thought threatend me since 1946, and I was yet to be be born at that time. This ‘all-volunteer military’ is what created our current empire. So glad I have no kids…

  5. Conscience of a Conservative

    I have to disagree with the notion that Conservatives on the Supreme Court just want to take down Obama. I doubt its true, and the discourse about Broccoli and burial insurance shows how much these guys take the law seriously and debate it. They could be discussing Talmudic law and they would be equally serious. If there’s one justice I might be skeptical of it’s Kagan owing to her recent placement on the bench and attachment to past issues she’s worked on behalf. Reading a Washington Post piece about this, I was struck by comments made by Democrats in the Senate including Reid who said if struck down they would take to painting the Supreme Court as partisan. As a country we no longer have faith in the executive and legislative branches, I can’t see how we benefit if we allow politicians to tar the third and last branch.

    1. jake chase

      Perhaps you have failed to notice the kind of people now being appointed to the Supreme Court? Taking these guys seriously is impossible for anyone who knows anything about law, including those who have done nothing more than watch Law & Order regularly as well as those of us who went to Harvard forty five years ago when law meant something (even if few of us understood exactly what it did mean.)

    2. Dan B

      Good point about legitimacy. Also, Justin Riamondo at Antiwar.com has speculated that the Repubs. may in fact want Obama to win -no real opposition to 1%-er Romney from the Repub. party- because they realize how awful things are and they have no real solutions to offer. Plus, Obama is a good president for their 1% interests.

  6. Chromes

    All defenders of the mandate (BTW I do not oppose single payer) have no constitutional understanding or coherent argument and seem not have read the great majority of case law and history that sees the commerce clause as a limited power. Their argument- along with Apgar’s – seems to be – health care affects commerce and the health care act will not work without the mandate, as if the mere fact that health care affects commerce ends all commerce clause analysis. Whether the health care act works without the mandate is irrelevant to any legal analysis- ( in my opinion it will neither work without the mandate or with it, as costs will skyrocket and the amount of actual care will diminish)The commerce power cannot be exercised in unlimited fashion.
    The questions the justices ( and I am not defending most of their decisions- from Citizens United on, this has been an abysmal court, However, most justices, even conservative ones, are capable of elementary commerce clause analysis) are asking are legitimate and boil down to this:
    If the commerce power allows the congress to FORCE the American public to purchase a product from a private insurer, what limits are there on it? i.e. What can’t the Congress force the american public to do under the guise of the commerce power?
    If this question cannot be reasonably answered, ( and I think it cannot), then to uphold the mandate would be to state ( in direct opposition to all known writings of the founders and most commerce clause cases – all of which state that if a less intrusive way can be found to implement the same purpose, that is what must be done) that there are no meaningful limits on Congressional power over the private citizen.
    Those defenders of Obama who think this is a wonderful idea ought to think about how, say president Nixon’s great grandson might interpret this when he is elected in 2040. A lot more is at stake here than Obama’s reelection and it behooves us to analyze and not react in knee jerk fashion.
    I suspect that the fix is in and the questions are mostly for show- this court has shown no hesitation in upholding the general trend of the past 40 or 50 years of continuing to limit and abrogate freedom.
    One thing this does is abrogate the freedom of those Americans who have reached an age -61 say, or 62- where they can “retire”and get used to subsistence living if they think they can get away with no healthcare for a few years. The enormous cost to such individuals of purchasing private insurance at their age on the private market would foreclose this plan for a great many individuals.
    The state can require that if you drive a car, you should get auto insurance but they cannot require you to purchase/use/drive a car. The same principle should apply here.
    To me, single payer and public option are the only ways out ( along with a lot of reform over redundant testing and extraordinary measures at the end of life). The “Affordable” health Care act is awful and it is disturbing to see people who apparently know nothing about all the dire consequences ahead put their brains on hold and react in a limited and strictly partisan fashion.

    1. Sleeper

      ” I suspect that the fix is in and the questions are mostly for show- this court has shown no hesitation in upholding the general trend of the past 40 or 50 years of continuing to limit and abrogate freedom.”

      Exactly – this is why Mr Thomas sits on the bench and asks no questions – his vote is already spoken for. It is routine for judges to sell their judgement for their appointment.

      The arguments, the law clerking, the process is for show – the fix is in.

    2. David Apgar

      “If the commerce power allows the congress to FORCE the American public to purchase a product from a private insurer, what limits are there on it?”

      This is no neutral statement of a constitutional problem — it is tendentious because it pretends one can adequately characterize the individual mandate as a requirement to purchase any product from a private insurer. Indeed, you might pose this question about a law requiring people to buy burial insurance, which is exactly the reduction of the actual question that Alito has foisted on us.

      But health insurance is not just any product and there are obvious features of it that make any mandate requiring it unique. That is why it is relevant only healthcare costs can and do bankrupt two million Americans in a year.

      “The state can require that if you drive a car, you should get auto insurance but they cannot require you to purchase/use/drive a car. The same principle should apply here.”

      So would you agree that only those who have health insurance should be allowed to set foot in a hospital?

      Finally, while this is just a judgment call, I think the writer is too optimistic that the Court won’t use precisely this precedent to strike down future energy and environmental regulation as an inadmissible exension of federal legislative power to regulate commerce, and one, the conservative majority might argue, that should have been stopped before.

      1. Steve

        Is it possible for you to consider the meaning of single payer? Why should any of us pay for an F22? Is that fair?
        None of us is responsible for insurance company profits, none of us should be responsible for Defense Contractors either, but we pay for BOTH their health care and their profits.

      2. Conscience of a Conservative

        The Commerce clause has been used to justify just about anything to the detriment of society. For example we’ve seen the commerce clause be used to prevent states from regulating banking only to see the Federal Gov’t give carte blance to the banks.

        1. Dan Duncan

          “These Supreme Court proceedings cloud the importance of health not as a commodity but as elemental to human civilization.” – Ravi Katari

        2. Justicia

          ConCon,

          I disagree with much of your reasoning but I take your point about the limits of the Commerce Clause. And I think it’s good that the Supremes are taking this issue on. (Anything that makes us think about the powers our government should and shouldn’t have is a good thing.)

          Whether or not the ‘individual mandate’ was an appropriate exercise of Congressional power to regulate interstate Commerece is debatable. And, your focus on the perceived coercion in the mandate has validity. However, I part company with you on more fundamental points about Constitutional powers of our federal government.

          The fact is that Congress does have the power to create financial incentives and disincentives that drive our behavior through tax policy. As I explain in my earlier comment (below), Congress could have achieved the stated purposes of the mandate by imposing a health care tax on everyone and then rebating the money to anyone who had insurance coverage, making it a wash for all but the uninsured. The unrefunded health care tax monies could pay for emergency and other care costs for the uninsured through any number of options (single payer, private insurer, et al), thereby eliminating the free riders.

          The fact that Congress chose not to use the power to tax to create the health insurance program is a consequence of the ideological aversion to taxes in any form for any purpose.

      3. Conscience of a Conservative

        But health insurance is not just any product and there are obvious features of it that make any mandate requiring it unique. That is why it is relevant only healthcare costs can and do bankrupt two million Americans in a year.

        This was referred to by one of the justices as “a difference without a distinction”

  7. Marty Heyman

    Regulating Commerce is one thing. Regulating Citizen Buying is another. The argument is that PPACA does the latter (for the benefit, primarily, of the Insurers) and that’s not a power granted the Federal Government in the Constitution. Yes, it puts Seat-belt and Auto-Insurance Laws at risk (among many others). This is the question of Government acting *in loco parentis* over the citizenry which drives some Freedom-loving folks bonkers. I became a card-carrying adult 48 years ago and resent being told to do what’s good for me at under threat of judicial spanking.

    1. Justicia

      Then let’s remove every traffic light from every intersection in America. Freedom loving adults don’t need no traffic cops or stops. Just step on the gas and go!

    2. Rcoutme

      I hate to give you your spanking, but your state mandates auto insurance, not the Federal Government. AFAIK there is no Federal mandate to have auto insurance. There is a requirement that you compensate the person you injure (physically or financially), but then, that WOULD come under the interstate commerce clause (if you were in an accident in a state you do not reside in).

  8. Ep3

    Yves I disagree with the last statement, that the goal of the court is to unseat Obama. That’s too short-sighted. The court even says they are concerned about future precedents this will set. As the author says, the courts set precedent, not laws. But I read the justices saying that ‘if we allow the individual mandate, then when in the future congress passes laws that require burial insurance, we won’t have nothing to do with it’. In other words, once we set precedent, then the court will move from judicial review to judicial restraint. The court will take a hands off approach to anything similar in the future. Thus allowing their benefactors to run campaigns advocating a court that uses judicial restraint. With the idea that future republican congresses will pass all sorts of individual mandates.

    1. Yves Smith Post author

      I said I didn’t agree with the post, but nevertheless put it up because I thought it would serve as a foil for discussion. My views are very much like Hugh’s above. The idea that the ACA will help the uninsured all that much is highly exaggerated. They will be offered expensive plans that don’t cover all that much (ie, even if they look cheap, they won’t be relative to what is covered).

      As I have said before, what people need most is catastrophic coverage: care if you get hit by a bus or develop a very costly ailment. That is what the insurance companies have gotten VERY good at denying. In particular, Obamacare preserves the “fraud” out. Fraud (per court decision) for health insurance includes not telling your insurer about a preexisting condition, no matter how trivial.

      I am trying to find the article I saw, but in Congressional testimony in the last 2-3 years, a health insurance industry exec was asked about the practice. He said, “Oh, that’s only x cases in a year” for large claims. The author of the post tracked it back against the number of claims of that type, and it amounted to half of them! So there is effectively a “preexisting condition’ exlcusion, but it’s not for stuff like being HIV positive, which someone is sure to tell their insurer about. It’s for not telling them you had, say, acne as a kid, or an ulcer 10 years ago that was treated successfully. Have something serious go wrong, they’ll dig through your records, find something like that you failed to mention, and bye bye coverage when you need it most.

      1. Ignim Brites

        Your point about catastrophic insurance is spot on and much less controversial regardless of form it takes.

        1. Yves Smith Post author

          Yes, that’s it. Thanks for tracking it down and providing links. That may help in locating the post that discussed how prevalent it is now, which is very.

      2. Aquifer

        “what people need most is catastrophic coverage: care if you get hit by a bus or develop a very costly ailment.”

        Define “catastrophic” or “very costly”. Isn’t that relative? If you insert qualifiers like that into healthcare insurance proposals, you’ll wind up with a “product” that covers a heck of a lot less than it does now, as pitiful as that is. Much “routine” medical care isn’t “very costly” – unless you don’t have the money to pay for it … Actually, perversely, such coverage could well act to prevent folks from seeking care until their problems get to the “catastrophic” or “very costly” stage that would qualify them …

        The only qualifier, IMO, that should be applied to coverage is “medically necessary”…

  9. Steve

    “They just want to unseat Obama.” Nothing wrong with that, let’s unseat a total failure.

    “That’s why defense and homeland security don’t have free rider problems: they are tax funded. ”

    But then you stop there, This is the elephant in the room, the amount blasted in the the name of defense and security would easily pay for a superior health care model enjoyed by millions of folks in other countries. No fruther anaylsis required apparently. Yet, the straw man argument of having other people pay always emerges when we discuss what individuals should be guranteed in a vibrant healthy society.
    The high court routinely issues judicial decisions that don’t set precedents and simply confound issues even further. This is a poorly written piece that conveniently ignores the real issues.

  10. Dave of Maryland

    I read stuff like this, I can make nothing of it. It’s bad medicine they’re selling, and it will still be bad even if it were free.

    1. Dan Dean

      In Canada, everyone can get treated for sleep apnea, better access then a majority can obtain in the US.
      In our fair state of MD, the costs can be nearly 5K, to get treated. If you don’t have a good job, and big Inc insurance, it’s going to come out of pocket, or will be delayed or denied for a large amount of time – which eliminates a big number of people from getting treatment for this condition alone. We really have a pathetic system in the USA.

  11. Pre Shower

    The neo-liberal jackboots are relentless; Sam Parry writes that the court will destroy the Constitution if the mandate (agenda) is struck down. By the way – what credibility does Palin give to your essays?

  12. Justicia

    How is the ‘individual mandate’ any different from a tax that isn’t refunded to those w/out health coverage?

    Had the Congress not been so ideologically averse to the word, they could have simply imposed a health care tax on everyone and rebated the tax to anyone who was insured during the tax period. What pray tell, would be the Constitutional flaw in that?

    1. Yves Smith Post author

      That’s the real issue. If this had been done as a tax, we’d have no Constitutional problem. But that means we’d have government competing with (eliminating over time) private insurers or limiting them to supplemental policies, and able to put its boot on the neck of Big Pharma (which already gets tons of subsides thanks to the NIH). Can’t have that, now can we?

  13. Yancey Ward

    Sorry, Apgar is an idiot. There really isn’t a kind way to put that. I don’t know what it is, but this is a clear example where one side displays an utter inability to understand the thinking of their opponents. Apgar is so completely sure of his position, he actually believes the members of the court (conservative ones, at least) “had trouble on Tuesday directly challenging the link between interstate commerce and Obamacare’s requirement for everyone to get some kind of health insurance”. They understood the argument completely, they just realized it wasn’t a limiting principle which was exactly the connection Verilli and the liberal justices had trouble understanding and making cogent arguments against.

    Here is the argument Apgar is making- the other parts of PPACA make the mandate necessary since without it, the insurance industry self-destructs in an adverse selection death spiral. While completely true, this means that Congress can justify exactly any analogous mandated purchase by interfering in the market enough to make the mandate justified through the Commerce Clause. In other words, what has made health care “unique” is all the other interventions of the federal government into the market for health insurance, including the other provisions of PPACA. Kennedy pointed this out explicitly when he observed that the government was creating commerce to regulate. And even more damning to Apgar’s argument is the third day of debate when the court was considering whether or not the mandate was severable alone. All the justices clearly understood that the mandate was only necessary due to the other provisions of PPACA, and not truly unique from any other insurance market outside those provisions enacted by Congress.

    1. Conscience of a Conservative

      The argument before the Supreme Court for mandatory insurance seems basically amounts to an “ends justifies the means” plea

      1. alex

        And that’s unusual? Since the 1st Amendment prevents the government from making any law limiting freedom of speech, how can we still have laws on slander and libel? How can the government prosecute publication of classified information?

        In the real world rulings are not based strictly on legal theory, but take practical considerations into account. Rulings are often explicit about this when they talk about the need to balance conflicting requirements. Hence it would be reasonable to require people to purchase health insurance but not to require them to buy broccoli, as the former serves a real public purpose and the latter does not.

        Any time justices pretend rulings are based solely on theoretical points, and throw common sense out the window by introducing reductio ad absurdum questions like mandatory broccoli purchases, they’re being disingenuous at best, and more likely trying to cover their political/ideological intentions in a sophmoric display of theoretical legal debate. The law applies to the real world. If you like reasoning based on pure theory, become a mathematician.

        1. Aquifer

          I agree – I read enough SC decisions in Con Law 20 years ago to figure that out – with some exceptions, once you knew the ideological framework of the Justice, you could pretty much figure out where they would come down and their “opinions” were not infrequently so convoluted you had to snort … In the dissents it is not unusual to see the not so veiled contempt for the “decision” – you could almost hear the snort coming from the dissenter …

          But one is not allowed in the hallowed halls of academe to snort at the SC …

    2. David Apgar

      Kennedy’s argument is highly probelmatic. Roughly it’s that the commerce clause doesn’t allow regulation of commerce like the individual mandate if other reforms make that commerce necessary. So let’s be concrete here. Only the ACA provisions on preexisting conditions make the individual mandate urgent and those provisions are, in the judgment of Congress, reasonable public policy measures. (That’s not to say any of this is better than single-payer, it’s just what seemed possible at the time.)

      Taken seriously, Kennedy’s argument could strike down (as an unacceptable precedent-setting expansion of commerce-clause powers) a future environmental law’s provision requiring power plants to purchase services measuring a certain kind of emission, if other provisions of the law requiring abatement down to a certain level of emissions made the first provision practically necessary.

  14. Chromex

    To Apgar: I do not want the act to stand so I am not “optimistic” when i say that it probably will.
    Second, I disagree strongly with your equation of health CARE with health INSURANCE. Health insurance is a misnomer as many have pointed out. It is a private, for-profit activity. Although you say that it is “unique”, one can say that about most private, for-profit activities.
    As for stating that one is not forced, this is pettifoggery. The power to tax is the power to destroy, as a wiser court once said, and the penalties are clearly an “interroram” stick to give the insurance companies what they want-enough clients to ensure their profit for the dropping of “preexisting conditions” . Courts “collapse’ such transactions ALL the time, particularly in the case of legislative assertions of commerce clause jurisdiction, and it is not surprising that the court clerks ( who prep these guys for argument) have seen fit to do so. I happen to agree that the essence of the transaction, as opposed to the propaganda of those trying to sell this bill of goods, is exactly as they say.
    Second, choosing, for whatever reason , to decline health insurance does not raise any straw men such as you suggest.
    One who does not own a car is free to be a passenger or use alternative means of transportation. It does not follow that one who does not have health insurance is barred from visiting a hospital.They can, among other things,, use alternative means of paying for it. My father, who went without it for many years, was always quite bemused by the fact that no one could tell him what a procedure he inquired about cost.( because everyone just charged it to the insurers- and knowing cost would go a long way toward reform) He bargained with the medical professionals and was treated as needed until he became eligible for medicare. He figures that he paid less than he otherwise would have in premiums.Like the coice to travel in other ways than by a car that one owns, this is a free choice that is not insignificant and to forego it is a diminshment, I think.
    Reforming health care is a difficult task and one of the great problems of our age. I admire the Clinton and Obama administrations for tackling it, but the execution in both cases left a lot to be desired.
    We need health care reform badly in this country, and we need a type that would not suit the compromisers of the Obama administration or the right-wing ideologues on this court- but this is not it.

  15. Conscience of a Conservative

    Since the issue of Kennedy’s remarks are coming up I thought a link to the audio of his argument was justified..

  16. Abelenkpe

    “Yves here. I have some quibbles with Apgar’s argument, since he avoids the obvious, but unpalatable-to-Obama solution of a public health care system”

    This is the kind of nonsense that makes me question your sanity. It was congress and specifically Nelson that would not even allow a discussion of single payer. Or a public option.

    1. b.

      If Obama was not a bought-and-paid-for corrupt liar, he would have had every reason and opportunity to push for Medicare for all, Medicare E, or whatever label you want to put on it, or a tax-payer/FICA funded “Medicare catastrophic”, counting catastrophic illness as a temporary disability. He had the megaphone, there are enough dead and ruined every year to make the case. It is nice that there are plenty of scapegoats for Big O to hide behind, but he was the man on the spot, and he started the discussion with less-than-Romney-care and sold it to Pharma et.al. with an indulgence in exchange for 100-odd million in “support”, and to the insurance companies by offering them a preventative mandated bailout.

      US health care has a 30+ percent cost efficiency gap compared with actually industrialized nations. To reform it, that money has to be taken out of the pockets of the middle men. It is as simple as that. Granted, Medicare E has its own problems, and nothing will bend a for-profit cost curve without moving to non-profit, but Obama holding up “software improvements” and “efficiency” to avoid ending the rackets was a scam from the start.

      This is like the Democrats on Iraq – standing up loudly but with principles for what is right in 2002 and 2003 might loose you an election cycle or two you’d have lost anyway, but between 2004 and 2006 a lot of people got wise despite your best efforts to obfuscate and hide your collusion. Obama on health care in 2009 could have laid the foundations for single payer in 2013. Instead, he scorched the territory and polluted the discourse for another decade. If this great nation should finally do the sensible thing at any time prior to the Hindsight Year (2020), it will be despite Obama’s and the Democrats’ best efforts, not because of it.

    2. Lambert Strether

      Obama never supported single payer as a candidate or as President.

      1. In fact, he intended to betray the supporters of the progressive “bait and switch” watered down “public option” from the beginning.

      2. Obama mocked “the little single payer advocates”. (Hey, we can take it. The mockery goes to intent.)

      3. The White House censored single payer questions from a health reform town hall transcript.

      There is no evidence whatever that Obama supported single payer, and there is a great deal of evidence against it. For example, he didn’t even support universal coverage in the primary.

      1. Mark P.

        ‘Obama never supported single payer as a candidate or as President.’

        I talked to Austan Goolsbee a couple of months before the election and repeatedly brought up the reasons and evidence supporting a single-payer system.

        Goolsbee was very clear that the Obama camp’s position was that in the US “you can’t get there from here” — much as Apgar has assumed here — and that Obama would at best not support any public option-type initiatives and at worst (it was implied) would oppose them.

        1. Brooklin Bridge

          and that Obama would at best not support any public option-type initiatives and at worst (it was implied) would oppose them.

          Thank goodness he was kind enough to campaign on being FOR the public option and against mandates (except for children). Otherwise, some people would have been confused about what he stood for.

    3. Yves Smith Post author

      You seem not to have figured out even after over three years of betrayals that Obama makes “progressive” gestures and governs center-right. He had dinner at George Will’s house with a bunch of conservatives within two weeks of being inaugurated and assured them that once the economy was stabilized his big goal was to “reform” as in cut Social Security and Medicare. They were delighted.

    4. Brooklin Bridge

      Obama himself got rid of the public option in secret meetings with the insurance companies, and here is compelling proof. No need for that poor badgered-in-11-dimensions president to have his arm bent when it was his idea to jettison any financial constraints on those oh-so-helpful insurance companies in the first place.

  17. jsmith

    So, if the USSC rules against the mandate saying that in effect the government can’t force people to buy a product/service from a private provider, this basically destroys any way for them to privatize Social Security, correct?

    I mean, I know the fat fascists who inhabit the SC aren’t above contradicting their earlier precedents but if I can’t be forced to buy private medical insurance then I sure as hell shouldn’t be forced to have my SS money put into the market to pad the lines of GS, JPM, etc etc.

    I for one say go for it and repeal the mandate as the mandate was a terrible effing idea in the first place when compared to the only sane, sensible and humnanistic solution – a single-payer system.

    1. Lambert Strether

      Yep. The few who are harmed by putting the bloated monstrosity that is the ACA out of its misery can and should be assisted either by legislation or by executive orders and regulation. (Considering the powers that Obama has grabbed for executive orders in other spheres, this should be a no-brainer.)

    2. Yves Smith Post author

      Hah, I like that unintended consequence! Keep your eye on it when the decision is finally rendered.

    3. Aquifer

      There’s a simple solution for that – you won’t be “forced” to give “your” SS payments to Wall Street, you will simply be allowed to “opt out” of SS. When enough folks do, the system will collapse, just as it is being undermined now with those “stimulating” payroll tax cuts. The reason it has worked thus far is because everyone is in and paying the amount required to sustain the system (the same rationale as for the mandate), when that is no longer true, bye-bye SS and Medicare …

      And in any case you wouldn’t be “forced” to buy a product, you could just opt out, keep “your” money and and spend it however you see fit – the end result being the same …

      These folks (including Obama) who want to undermine the social safety net may be clowns, but they ain’t no dummies …..

  18. LeeAnne

    The Supreme Court is corporatist. Obama is corporatist. The court is all theater and silly arguments. Obama Care will get a pass in full with all its thousands of pages of unimaginable and unpredictable obscenities.

    About one of the arguments; getting buried is a one off and a matter of indifference to the dead. Health care is for the living and breathing; necessary and unpredictable in its details.

    Obama Care hands over 30,000,000 customers to the profit making extortionist corrupt foul smelling private insurance system backed up by an equally foul IRS penal system.

    That’s cynical, but that’s the way things have been going. If I’m wrong I will be delighted -as in thrilled -win-win.

      1. Brooklin Bridge

        What a benefit — a veritable hoot — for them to wait until June for the decision we all know perfectly well. In the meantime, they can watch as “progressives” carry their water for them, frantically insisting that we can not continue our very existence as a species without this merde sandwich of a right wing mandate brillant, obviously constitutional (unless Bush were proposing it) cornerstone of health-care; fascism based junk-insurance.

        Act I: The individual mandate to buy ruinous junk-insurance for health snare.
        Act II: The other individual mandate to buy social security insurance for retirement mirage.
        Act III: The other other individual mandate to by insurance for Medicare for geaser teasers.
        Act IV: Chapter eleven for any and all insurance companies that sold any of the above.

    1. Doug Terpstra

      Amen, LeeAnne and Lambert! I too would be delighted if conventional wisdom holds, but the Supine Court is almost certain to uphold Obama’s insurance racket mandate, despite all the noise and prognostication of court-watchers like Jeffrey Toobin. Scalia’s argument about forcing people to buy broccoli was just part of the drama, like the Bush-Gore or Citizens United “debates”.

      The mandate is essential to precluding single payer, and to sustaining the very foundations of the plantation ecomonmy to which the Supines have pledged their undying allegiance, until their corpses are pried out of the black robes. I’ll be completely floored—and jubilant—if these pathetic court jesters were to actually strike down Obama’s signature neoliberal achievement.

  19. beowulf

    “If the unique severity of healthcare risks does not distinguish them from ridiculous expansions of the power to regulate commerce then a future Congress may be unable to craft a viable single-payer plan. Any state could undermine it with cynical customer-care requirements that federal regulation accompanying the plan could not reach. Expect Texas to require doctors in a single-payer plan to make house calls for checkups.”

    This is just so wrong as to be almost trollish. The Social Security Act (of which Medicare is Title 18) is predicated on the Tax Power, the Commerce Clause has nothing to do with it. If a state tried to interfere in the operation of a federally run single payer plan (actually we already have a few– Medicare, Tricare and CHAMPVA), the Feds could treat them like state banking regulations and blast them in court as a violation of the Supremacy Clause.

  20. Paul Tioxon

    All this bullshit is irrelevant. When the time comes to shove the single payer syst4em down the throats of its most violent opponents, when there is enough power in the hands of those that want it and force it through, it will happen. Incrementalism as practiced by Obama is same as all other incrementalism, the most politiccal condition allow for, nothing else. The conservatives don’t want any incremental change, no nibbling around the edges of reform, no obvious alternatives, as if progressive Dems are actually shopping at the mother fucking mall. All we get is the little the Health Care Act allows for. And now, even that little bit is too god danm much for the conservative minds and faithless ideologists. This act as it stands, is not THE solution, it IS the only solution that is allowable by the politics of the day. But there is always another day, another time. Single payer will come, as Medicare gets extended to all. Revolutionary change that is the only solution with universal health care run by the government is not politcally feasible, FOR NOW. But what is current progress, no matter how meager is better than the nothing offered by the right. The right wing Supreme Court will be the measure of how desparate the efforts are to contain change and demoralize the populace that there is anything to hope for other than the bullshit intellectual crap reported from the the High CouRt and repeated here and elesewhere.

    1. Us and Them

      Yes let’s be reasonable.. or something!

      ” Obama has performed this function for America’s looters over and over again. They did it for Wall Street, the banks, the rich tax evaders, the insurance companies, the oil companies, the gas companies, the coal
      companies, the CIA, the DoD, and numerous torturers and their legal/policy
      enablers and associated war criminals in the previous administration.”

    2. Conscience of a Conservative

      No this is a fundamental debate. About the role of gov’t. Unlike Europe, there’s a big chunk of America that does not want a strong central government. It’s been part of our fabric since the founding fathers. Those on the left and those on the right would be wise to pay attention and look at the growing numbers that identify themselves in whole or in part oas Libertarians.

      1. Sally

        That’s dishonest – we nearly have free for all libertarianism at the current time. There is little separation between Gov and industry, lobbyists wrote this legislation.

    3. Dick Noxon

      The conservatives don’t seem to have any problem with ‘revolutionary’ changes that this adminstration has thrown down. It’s as if those conservatives you so malign are happy as clams when it comes to destroying civil liberties. It’s the conservatives who won’t have a problem with another 4 years of great work either.

  21. mac

    Oh come on folks, There are no end of stories that can be cooked up. The real one is there are many folks who have no use for Obama and as such no use for Obamacare.
    Perhaps an insurance solution that is fair and workable can be found, maybe even single payer, but never with “obama” attached to it.
    That is the bottom line that we fail to recognize!

    1. Brooklin Bridge

      That poor dear martyr… When I think of his saintly elimination of Habeas Corpus or of his divine assertion that the President has the authority to kill anyone at any time without judicial review and then think about the f**king retards who have done nothing but wail and complain against him, and now the conservatives who would ostensibly refuse this ultimate gift of unbridled profligacy to the plutocracy, it brings tears of shame to my eyes to be an American.

  22. Joe Firestone (LetsGetitDone)

    Hi David, thanks for the warning, but I’ve felt for a very long time that the ACA bill is worse than no bill at all as I’ve stated here: http://www.correntewire.com/kill_bill_nine_reasons#more and in many other posts on the at FDL and Correntewire. If the Court invalidates the bill, I’ll take my chances on the political reaction, which I think will re-invigorate the Medicare for All movement and lead to its very close association with OWS. Perhaps the middle-class folks who became more comfortable with the health insurance situation when they could keep their sons and daughters on their family policies for a few more years will see the urgency of another legislative solution that will solve not only their problems, but one that moves the private insurance companies out of the health care game entirely. God knows a new debate on the subject may finally get the point through to people, that a Medicare for All Bill would net save $800 B per year in private sector medical spending and perhaps even more if new legislation were not paid for but involved deficit spending.

    I’m not too worried about the Court’s precedents right now in any case. It is a 5-4 Court, and if Obama is elected again, I think the chances are pretty good that the Court will swing to the other side. I also think that he can turn a Court defeat into an advantage by running against a partisan Court and Republican obstructionism. O can say that he tried mightily to compromise with the Rs even passing a Republican HCR bill in hopes that they would come to accept it; but after seeing the reaction from the tea party Republicans, the establishment wing of the Party and the radical activist Court wing of the Party, he now knows that there is no compromising with them and that his next move on health care will be to pass Medicare for All. He can then call for a return of D majorities in both Houses to facilitate this, and also the end of fiscal deadlocks and the passage of more aggressive jobs bills.

    Of course, I’m skeptical that O would make good on any of such campaign promises. He’ll probably play his usual games of bailing out the oligarchy for another four years so he can make as much as Bill has after he’s left the presidency. But, he will stop the rightward move of the Court, at least, and he may have sense enough, observing the growing chaos in Europe, to drag his feet on implementing the austerity programs of the Petersonians and others who want to solidify the oligarchy and evolve it into an aristocracy.

    Finally, I am in full agreement with the comments of Yves, Hugh, and Lambert above. As for your critique of their “fragile assumptions,” which President over the past 35 years years has seriously attempted to pass a Medicare for All Bill or even to extend Medicare to those over 45, and initiate an incremental approach to reaching full Medicare coverage. No Republican President has, and no D President either. Meanwhile, surveys over many years have shown that 2/3 of the public support Medicare for All. I think that’s certainly a basis for passage if a president wanted to pass it, rather than to make arguments about the impossibility of passing it.

    On your second point, while the poor certainly need to be protected, it seems to me that could have been done a lot better by simply passing a more limited bill expanding Medicaid coverage fully funded by the Federal Government. That could have been passed through reconciliation. The Ds had the votes to do that in 2009. It’s their fault it wasn’t done. They failed the poor, as they’ve done consistently since the mid-1970s.

    I understand that your purpose in this post was to warn about the possible far-reaching damage of an SC decision on the mandate. But possibility is one thing and likelihood is another. As I’ve said above, I don’t think it’s likely that the Court will be dominated by the right much longer, provided O wages a proper campaign against its activism and clearly rightist political bias. On arguing that everyone is better off without the ACA, you’ve seen some arguments for that position above. The link I provided above also provides other arguments. Labeling that position preposterous doesn’t make it so. You have to answer the arguments that the ACA does more harm than good, and should never have been passed.

    Finally, I don’t think you’re right in imputing the assumption that the court will show restraint in overturning the ACA to Lambert and Hugh. I don’t think either one assumes this. They’re more likely to think that the Court will be as extreme as they dare to be in strengthening the oligarchy In fact, I make this assumption myself, and think that if they are restrained in any way, it will be due to the disposition of Kennedy to be center-right, along with the caution of Roberts who may not want to see an all-out war with the Executive branch. I don’t think Alito, Scalia, and Thomas give a shit.

    1. Aquifer

      I think you assumption that an Obama re-election will stop or slow the Court’s right wing tilt is misplaced – which of those conservative clowns do you expect will pass away or retire in the next 4 years? This is another of those “we have to elect a Dem! Think of the SC!” arguments advanced when all else fails.

      As for Roberts – if memory serves, he was a bit incensed when Obama called out the Court for the Citizen’s United decision – methinks the war was declared then ….

      The Alito, Roberts appointments were “advised and consent(ed)” to by supine Dems in the Senate – and even Thomas – remember Anita Hill?

      1. Joe Firestone (LetsGetitDone)

        C’mon. Let’s be sensible. There’s no way O will appoint anyone as conservative as the modern 4 horseman, or even Kennedy. I’m not sure any of the five will leave or die, of course, and the most likely vacancy is Ginsberg. But if a Republican is president we’ll get someone at least as conservative as Alito, and that won’t happen with O.

        Also, I’m not advocating voting for O. I don’t like him at all, and if Jill Stein has even a voting chance to win, I’d much rather vote for her. But if she goes into October with 3%, in the polls, then forget it, my priority will be to limit the damage done until 2016 makes it possible for us to do better, if we do something about the money in politics between now and then.

        Finally, who cares about the war and who started it. I certainly don’t. I just want to get the conservatives neutralized on the Court since they are about plutocracy. If I were president I’d try to pack the Court again and also try to impeach both Thomas and Fat Tony for political activities blatantly conflicting with Court standards. Evidently the Court is incapable of policing itself in this respect, so Congress and the Executive ought to do it.

        Btw, Thomas and his wife are a total disgrace!

  23. Nathanael

    Just impeach the criminal judges who voted to steal a Presidential election; there are still three on the court. Problem solved.

    Oh, right, we have a problem with a corrupt Congress too…

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