“Succumbing To A Right Wing Project”: Will We Love The Health-Care Law If It Dies?
Any day now, the U.S. Supreme Court may make possible something that has yet to happen: an honest and complete discussion of the Patient Protection and Affordable Care Act (ACA).
And if it throws out all or part of the law now popularly known as “Obamacare,” we will need a fearless conversation about how a conservative majority of the court has become a cog in a larger right-wing project to make progressive political and legislative victories impossible.
I still harbor the perhaps naïve hope that some conservative justices — Anthony Kennedy? John Roberts? — will pull back from judicial activism and allow the voters to decide the fate of the health-care law in this fall’s elections. And here is where the court’s reintroduction of the health-care issue into the political debate could be turned into a blessing by allies of reform, provided they take advantage of the opportunity to do what they have never done adequately up to now. They need, finally, to describe and defend the law and what it does.
The ACA is the victim of a vicious cycle: Obamacare polls badly. Therefore, Democrats avoid Obamacare, preferring to talk about almost anything else, while Republicans and conservatives attack it regularly. This makes Obamacare’s poll ratings even worse, which only reinforces the avoidance on the liberal side.
The media have abetted the problem, but this is partly a response to the impact of the vicious cycle on how the issue has been framed. As a study by the Project for Excellence in Journalism has shown, terms used by opponents of the law, such as “government-run,” were much more common in the coverage than terms such as “pre-existing conditions.”
Maybe now, supporters of the ACA will find their voices and point to the 30 million people the law would help to buy health insurance, how much assistance it gives businesses, how it creates a more rational health insurance market, how it helps those 26 and under stay on their parents’ health plans, how it protects those with pre-existing conditions. “Obamacare” isn’t about President Obama. It’s about beginning to bring an end to the scandal of a very rich nation leaving so many of its citizens without basic health coverage. However the court rules, we need to remember why this whole fight started in the first place.
If the court does strike down the law, those concerned that criticisms of its ruling might undermine the “legitimacy” of the judiciary should put their worries aside. Conservative justices long ago shattered the court’s standing as a nonpartisan, non-ideological actor in our governing system. That’s why recent surveys have found its approval rating on the decline.
As retired Supreme Court Justice John Paul Stevens noted 12 years ago in a powerful dissent, the court’s Bush v. Gore decision threatened “the nation’s confidence in the judge as an impartial guardian of the rule of law.” It’s gotten worse since. The 2010 Citizens United decision stands as another ruling that plainly strengthens conservative monied interests in the electoral arena. Please don’t tell me that these justices are entirely without a political agenda.
But friends of the health-care law need to acknowledge upfront that no matter how effectively they criticize the court, a ruling against it would be a real defeat — for the president, for the cause of expanding insurance coverage, and for progressives generally. Neither Obama nor his congressional allies would have wasted the time and political capital entailed in passing health-care reform if they had known that their efforts would be struck down by the judiciary even before the law came fully into force.
Enacting any sort of health-care reform is, as we have seen repeatedly since Harry Truman called for universal coverage, a gargantuan task. Balancing the many interests involved (and, ironically, the individual health-insurance mandate was a concession to conservative interest groups) is exceedingly difficult. For unelected judges to give the back of their hands to legislators whose job is to solve problems while accounting for competing priorities would be the height of arrogance and a flight from democracy. But all the liberal anger in the world will not make up for the size of the setback.
Were the health-care law to be eviscerated, those who battled so hard on its behalf might draw at least bittersweet comfort from what could be called the Joni Mitchell Rule, named after the folk singer who instructed us that “you don’t know what you’ve got till it’s gone.”
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, June 24, 2012
Memo To Congress: “You’re In The Hot Seat If Obamacare Is Overturned”
In oral arguments before the Supreme Court in March, lawyer Paul Clement made the case that the simplest way to dispense with the 2010 health-care-reform law would be to overturn it entirely: If the Court finds that the individual mandate is unconstitutional, it should strike down the whole thing. “The better answer might be to say, ‘We’ve struck the heart of this act; let’s just give Congress a clean slate,'” said Clement, representing the National Federation of Independent Business and the 26 states that oppose the law.
On its face, Clement’s logic seems simple: If you’re going to monkey with a giant piece of legislation that restructures nearly one-fifth of the U.S. economy, it’s best not to get into the weeds. Just let Congress start from scratch. But this argument misunderstands what would happen if the sprawling law is suddenly moot. Unlike partial revocations, which would give Congress time to fix potential glitches, a complete invalidation would start several policy fires that would require immediate congressional action. And members of Congress have not spent much time planning for this scenario.
First up: Medicare. The Affordable Care Act changed the formulas that Medicare uses to pay providers from top to bottom. It shifted growth rates, boosted some providers’ pay, and baked in financial incentives for doctors and hospitals that achieve quality benchmarks. It also codified many of the Medicare payment adjustments that it passes every year. (After all, when you have one big health bill moving, why not throw in everything?) Since 2010, regulators have acted on those changes, and the Centers for Medicare and Medicaid Services pays out 100 million medical bills each month according to the new pay scale.
If the law is overturned, no one is sure what figures the system would use. Should CMS continue to pay providers at the rates set by the law? Or should it go back to 2009 levels? Both Donald Berwick, who ran CMS under President Obama before he joined the Center for American Progress last year, and Gail Wilensky, who held a similar post during the presidency of George H.W. Bush and is now at Project HOPE, said they don’t know the answer. The House Ways and Means and Senate Finance committees would need to move fast to establish a clear legal authority for CMS to pay providers.
Furthermore, CMS operates using an antique IT system that makes it difficult to enact quick changes. Last year, when Congress looked like it might not pass routine legislation to forestall a big cut to physician pay rates, CMS Deputy Administrator Jonathan Blum told reporters that the system could hold claims for only 10 days before the computers crashed. Congressional staffers say they would probably need to freeze the current rates for weeks or months to give CMS time to switch back to the old pay scale.
Sen. Tom Coburn, R-Okla., a physician and a member of the Senate Finance Committee, which has jurisdiction over Medicare, opposes the law. But, he says, “there’s going to be a lot of chaos.” Although “there are discussions going on all the time,” Coburn says, few decisions have been made. On the House side, a Republican aide says that staffers are making preparations, but members are not concerned about a real emergency if the law is struck down. “I don’t think, overnight, there’s going to be this immediate panic,” the aide said.
The health-care law also reauthorized several long-standing federal programs, including the Indian Health Service, the principal care provider for nearly 2 million American Indians and Alaska natives. And it dedicates billions of dollars to expand community health centers and the health care workforce. If it disappears, the legal authority for those programs or their funding would disappear with it. If Congress doesn’t want these programs to shut their doors and shed workers, it will need to reauthorize them quickly. Many of these programs have enjoyed broad bipartisan support for decades, and it’s unlikely that even Republicans clamoring for repeal of the health care law would want to see them eradicated.
A complete erasure of the health care law could also spell trouble for the Centers for Disease Control and Prevention. The law’s Public Health and Prevention Fund, despite recent reductions, is set to dole out about $10 billion for community health ventures over 10 years. But because of recent appropriations cuts, the agency is using $825 million of that sum to pay for bioterrorism response-planning, lead-poisoning prevention, immunization programs, and many other core functions this year. Without new appropriations, these public-health programs will face instant, dramatic cuts. Sen. Robert Casey, D-Pa., a member of the Health, Education, Labor, and Pensions Committee, says he has not talked to his Democratic colleagues about contingency plans, and he is not optimistic that much would pass in this Congress. “The last time we did this, it took 30 years,” he says.
Since the Court is not especially likely to overturn the entire law, few lawmakers — including party leaders — have planned for it. “You asked whether there have been discussions,” said Senate Minority Whip Jon Kyl, R-Ariz., who is a member of the Finance Committee. “The answer is yes. But there have been no conclusions reached yet.” In this Congress, though, even if both chambers ready blueprints in time, it’s hardly clear that anything could become law.
By: Margo Sanger-Katz and Meghan McCarthy, The Atlantic, June 25, 2012
“Humanity Hanging In The Balance”: Healthcare And Justice Scalia’s Broken Moral Compass
The Supreme Court’s highly anticipated ruling on Obama’s healthcare reforms could come any day now. Whatever the verdict, expect much ado about the hotly debated role of broccoli in healthcare and arcane explanations of the Commerce Clause that is at the center of the legal case against the individual mandate. But buried deep in hearings filled with legalese and judicial sparring was a short exchange that illuminates an American ideal that truly hangs in the balance with this decision—the idea that in a civilized society, we do not sit idly by and watch our neighbors die.
The specific back-and-forth in question occurred on the third day of the hearings between Justice Antonin Scalia and Solicitor General Donald Verilli, the administration official charged with defending the law in court. It went like this:
GENERAL VERRILLI: No. It’s because you’re going—in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow—that—to which we’ve obligated ourselves so that people get health care.
JUSTICE SCALIA: Well, don’t obligate yourself to that. Why—you know?
GENERAL VERRILLI: Well, I can’t imagine that that—that the Commerce Clause would —would forbid Congress from taking into account this deeply embedded social norm.
JUSTICE SCALIA: You—you could do it.
If you are not a frequent watcher of the Court and therefore not fluent in the cadences of judicial banter, this short, seemingly banal interchange in an exhaustive debate may not have even registered. The “deeply embedded social norm” that Verilli refers to—in fact seems confused that he has to explain to Justice Scalia—is the norm that dictates that people will step in to aid others who are ailing or in danger of death.
Scalia’s statement that “you could do it [defy these norms]” eerily evoked the appalling moment at the September 2011 Republican presidential debate when the audience wildly applauded Wolf Blitzer’s stunned probing of whether candidate Ron Paul would allow a 30-year-old uninsured man in a healthcare emergency to die. “Yes!” shouted unashamed audience members, turning a presidential debate into something reminiscent of the Roman Colosseum. When Justice Scalia argued against the social norms that Verilli was presuming sacrosanct, he was essentially saying, “Let him die!”
While we’ve grown to expect this kind of mob mentality from a radical right wing whipped up in a Tea Party frenzy, this bizarre display of indifference from a Supreme Court Justice breaks new ground in an evolving culture that seems to prize resistance to any and all government over the compassion that is the essence of civilized society. The right screams often and loudly that President Obama has declared war on the Judeo-Christian underpinnings they hold as American as apple pie. But in fact, it is Justice Scalia, from his exalted perch, who appears intent on vacating the Golden Rule and undermining the parable of the Good Samaritan, both core to Christian theology.
Dahlia Lithwick hit the proverbial nail on the head in her description of Justice Scalia when she wrote in Slate in 2003:
Scalia doesn’t come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement.
Scalia, ever the showman, joked during the March hearings that having to read the entire healthcare law in order to rule on it would amount to cruel and unusual punishment, prohibited by the Constitution. At the same time, he displayed an egregious ignorance regarding which provisions in the bill actually passed. And on the final morning of arguments, Scalia laid his cards on the table when he argued that stripping out the individual mandate would cause the whole law to topple.
The mandate, more descriptively titled the “free-rider clause,” fines uninsured individuals who expect taxpayer-supported emergency services to cover calamities that befall them. It is also the component of the reform that allows insurance companies to affordably cover those with pre-existing conditions. Cutting the mandate, Scalia mused, cuts the heart out of the entire reform and would almost certainly kick the whole matter back to a gridlocked Congress, while millions of lives hang in the balance.
A recent Pew poll shows that approximately 83 percent of Americans are affiliated with an organized faith, be it a form of Christianity, Judaism, Muslim, Hinduism or Buddhism. A whopping 78.4 percent of us fall somewhere in the Christian camp. Yet, it is core Christian values that are currently on trial at the Supreme Court.
Perhaps this emotional dissonance is what drives a new poll from the New York Times that shows that only 44 percent of Americans approve of the job the Supreme Court is doing. Once a venerated institution that seemed immune to the partisan squabbles of the other branches of government, the Court has consistently displayed its corporate and right-wing allegiances in decisions that span from 2000’s Bush v Gore when it picked our president and irrevocably altered the course of history (Scalia later told Americans to “get over it!” when asked about the decision) to the 2009 Citizens United decision, the impact of which is being felt acutely this election season. Now, 75 percent of Americans say that the Justices’ political preferences motivate their decision making on the bench.
When healthcare reform passed in 2010, the United States ranked dead last among similar countries in a study comparing cost and quality of healthcare. America consistently spends twice as much for lesser care than its industrialized allies. While the Affordable Care Act left some of the best solutions on the table, it offers real hope to the one in four American adults that go without healthcare each year due to job transitions or other circumstances. So many of our neighbors live in terror that a single unexpected calamity will drive their family into bankruptcy spurred by emergency medical bills. Now, when the verdict comes in, those fellow Americans can add a new fear to their list: that a Conservative Catholic Supreme Court Justice will lead the charge to let them die.
By: Ilyse Hogue, The Nation, June 18, 2012
“Not A Chance”: Does The Supreme Court Care A Whit About The Public’s Opinion Of The Obamacare Ruling?
As we edge closer to this month’s Supreme Court decision on the future of the Affordable Care Act—or lack of any such future—many liberal pundits are pinning their hopes for a happy ending on Chief Justice John Roberts voting to uphold the law in response to the court’s poor showing in recent polls on the issue of the court’s political objectivity.
Nonsense.
Of the many concerns that fall to a Chief Justice—whose name will forever attach to the decisions of the court over which he or she presides—public polls would have to be at the very lowest rung on the list.
A recent New York Times/CBS News poll reveals that public support for SCOTUS is at just 44 percent, with 76 percent believing that the justices, at least some of the time, base their rulings on their personal and political views.
This rather dismal opinion of our one government institution— that is supposed to be high above petty political concerns—prompted former Clinton Labor Secretary, Robert Reich, to write in the Christian Science Monitor –
The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he’ll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.
My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia – a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.
While I would love to believe that Reich has this right, I’m afraid the Secretary is engaging in some very wishful thinking. It’s just not going to happen that way.
This is not to say that the Chief Justice may not, ultimately, find the law to be constitutional.
I have previously suggested that writing off Robert’s vote in support would be a mistake— in no small measure because of his high regard for the opinions of Judge Silberman who did, as Reich reports, vote to uphold Obamacare in the DC Court of Appeals and did so in a highly compelling opinion that cannot be ignored.
Silberman is a major legal influence on conservative judges throughout the nation and, in my opinion, the most likely next appointee to the Supreme Court should a Republican president make the choice.
At the very least, it is reasonable to expect that Justice Roberts might be far more open to considering the less comfortable approach to the law than he might otherwise have been had Judge Silberman seen things differently. In the end, Judge Silberman’s well thought out opinion may turn out to be the difference between Obamacare surviving or not.
But will the Chief Justice ‘tilt’ his vote in a scheme designed to protect the status of the court in the public’s perception?
Not a chance.
If Roberts concludes that the law should be upheld, he may go after Justice Kennedy’s vote, as Secretary Reich suggests, but he would do so with the understanding that on issues as important as the healthcare decision, a 5-4 vote would leave the issue settled—but in a highly unsettling way. When it comes to critical rulings, any Chief Justice greatly prefers that the decision not be carried by a tie-breaker vote as it forever remains more suspect than a 6-3 determination.
We should also keep in mind that The Roberts Court is far from the first controversial Supreme Court in our history. Nor is the current crop of justices the first to experience a bumpy road when it comes to public opinion. We need only recall the huge public outcries engendered by the Warren Court—a version of the Supreme Court which upended the legal status quo in this country in ways never previously seen, enraging many Americans in the process.
Chief Justice Roberts may vote to uphold the Affordable Care Act—including the controversial mandate provisions. I certainly hope that this is the case. And should things go this way, there is no doubt that Roberts’ opinion will go a long way to encourage confidence in our Chief Justice who, by voting to uphold, would reveal himself as a man committed to correctly interpreting the law—even when it may be in opposition to what we suspect might be the dictates of his personal belief.
But if the Chief Justice does this, it will not be the result of some PR effort to raise the level of esteem for the Court among the American public—it will be because he will have correctly understood that, like the law or not, the Affordable Care Act passes Constitutional muster.
By: Rick Ungar, Forbes, June 17, 2012
“Complete Nihilists”: The Audacity Of GOP Dopes On Health Care
In three weeks or so, the Supreme Court will rule on health care. Republicans have been discussing what they might do in the event that poor, beleaguered John Roberts manages to withstand that vicious assault of the liberals and to lead a majority that strikes down the individual mandate. This one is a classic, folks. After spending three years lying their eyes out about the bill and tearing this country apart over it, it now turns out that they may well want to keep several of its provisions. And of course they want to keep the easy and fun stuff and get rid of all that bad-bad-bad stuff, but what they don’t understand—or more likely do understand but refuse to acknowledge—is that the good doesn’t work without the “bad.” It’s breathtaking and ignorant—whether breathtakingly ignorant or ignorantly breathtaking I’m not quite sure. Call it the audacity of dopes.
Two weeks ago, John Boehner was insisting that “Obamacare” must be repealed lock, stock, and barrel. Some other Republicans wanted the slightly less radical approach of keeping some aspects of the law. A few days ago, some in the House warmed to this idea. Now, TPM is reporting that Senate Republicans are hopping on the piecemeal train.
The idea is to preserve the language that requires insurers to cover people with preexisting conditions, because everyone likes that; to continue to permit young people up to age 26 to stay on their parents’ insurance, because that’s helpful, especially in a rocky economy; and to press forward with eliminating the Medicare prescription drug “donut hole,” whereby seniors have to pay 100 percent of medication costs within a certain price range.
The last two are fine. But that first one is the gobsmacker. You cannot just make insurance companies cover really sick people. Sick people are expensive people, and insurers’ costs will shoot to the heavens, and those costs of course will be passed along to everyone else. Is there a solution to this problem? Yes. The solution is to get more people in the insurance pool—especially more healthy people, who don’t cost a lot to cover. Then, insurers have more money to use paying for the care of the sick people. But since you can’t just wish for more healthy people to buy insurance, you have to figure out some way to get them to do so. And hence … the individual mandate. It broadens the pool and brings premiums down. It’s how you manage to pay for all those people who need radiation and chemo and dialysis.
There are alternatives to the mandate, which I needn’t go into now because the mandate is what we have. Without the mandate, you have millions of sick people being added to insurance rolls but no healthy ones. What happens? You develop “high-risk pools,” in the argot, and Harold Pollack, a leading health-care expert from the University of Chicago (who advised the Obama campaign) says that high-risk pools don’t work: “Except as a temporary stopgap measure, the track records of high-risk pools is quite poor. Experience in state programs indicates that high subsidies are required to keep premiums affordable for this (by definition) high-cost group. Many states have ended up capping the program, charging high premiums, or both.”
As it happens, the ACA has started temporary high-risk pools, designed to try to help some people before the law fully takes effect. Pollack studied them and wrote up the results in the Journal of General Internal Medicine last year. He found that the program’s funding didn’t come close to matching the need. In other words, lots of money is required to serve these people properly—money that would come from premiums imposed by the individual mandate.
The Republicans’ “answer” to this is their answer to everything like this, tax-free saving accounts. But health-savings accounts, if they work at all, which is a serious question, work only for healthy people who break a leg tossing the Frisbee. Nobody can sock away $25,000 for an operation or $100,000 for end-of-life care; the very idea is crazy. The GOP would also subsidize care for high-risk people. But Pollack notes that these subsidies would have to be billions of dollars a year. Republicans aren’t throwing that kind of money around at anything. Except at ships the Navy doesn’t want and tax cuts really rich people don’t need.
It’s just a shockingly unserious approach to a very serious problem of roughly 4 million uninsured Americans who have cancer, diabetes, emphysema, and the like. Republicans don’t give a happy crap about any of these people. They have no interest whatsoever in trying to solve a public problem. See, this is the Democrats’ burden, and when you come down it, the true difference between the parties these days. Democrats are actually concerned with trying to address a public-policy problem in a responsible way. You can disagree with their way, but they’re at least trying to do something positive in the country—help those 4 million as best they can. This involves difficulty and choices because nothing meaningful in life doesn’t. It also requires the people to stop being selfish apes for five minutes and look at the larger picture.
The Republicans, on the other hand, are complete nihilists. They don’t care about solving any policy problems. They care about two things. They care about politics—advantage, winning, humiliating Obama. And they care about ideology, their drunken and medieval belief that the market can fix everything. But wait; it’s not even really a belief. They’re dumb, but they are not that dumb. They don’t fully believe it. Like Romney accidentally acknowledging to Mark Halperin that huge budget cuts cause recessions. It’s just the garbage they say because it sounds good. No pain! Nothing is complicated! Be selfish!
There is some question as to whether the Republicans will unite behind the three planks I mentioned. Because only the “moderates,” the sell-outs, really want to do it. “Real” Republicans, the Tea Party people, want to kill every aspect of the bill, strike its name from the very records of history. So we’ll see what they do. And of course it all depends on the Supremes tossing the mandate out, which they might not do.
But if this chain of events unfolds, you can bet on Paul Ryan and others going out there to talk about their “reform” of the high-risk pool problem with all the pious sincerity they can muster. And if, God forbid, the Republicans win the presidency in November? Then they’d enact some patchwork thing with about 1/20th of the money actually required, and millions would remain uninsured. But most Americans would never be the wiser because 4 million people just isn’t that many to begin with. That’s how the GOP will hope to get away with it. Here’s hoping little Johnny Roberts is as delicate a flower as conservatives fear he is.
By: Michael Tomasky, The Daily Beast, May 31, 2012
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