“Truth Be Told”: How John Roberts Started This Spending Madness
Related to Joe Ricketts and SuperPACs and all this is of course the Supreme Court decision that made it all possible, Citizens United. It’s worth remembering how we got here.
Jeff Toobin’s piece in this week’s New Yorker is a total revelation. The CU decision, it turns out, didn’t just happen. You know–a case goes through the appellate layers, the Supremes decide there’s an interesting question in it, they grant certiorari, and they hear the case. That’s our assumption, and it’s what usually happens.
Well, it’s not what happened here. It’s technically a bit complicated, but what happened is that the Court heard the case a first time, when the petitioner (Citizens United, represented by Ted Olson) was seeking only a very narrow decision saying that McCain-Feingold spending and disclosure limits should not apply to a political ad/movie that was being offered on a pay-per-view basis. They planned on showing an anti-Hillary ad on that basis, so that’s all they were interested in.
That’s what CU wanted. But through the course of the questioning and the opinion-writing, which Toobin explains in lucid detail (see especially page 5 of his article), it became clear to all involved that the conservative faction–led in this case by Anthony Kennedy–could use the case as a wedge to make a much more sweeping decision. And in stepped John Roberts.
To make a long story short, Roberts held back the decision and rescheduled the case for the next year, This enabled the conservative majority to expand dramatically the scope of the majority opinion. And he sped it up, put it on the calendar for September, not the usual first week of October, in order (Toobin suggests) that the decision would be more likely to have an impact on the 2010 elections.
The important thing to remember here: Roberts is the guy who said at his confirmation hearings that he’d go slow and be highly respectful of precedent. But here, he engineered the Court’s calendar and procedure specifically to turn a narrow case that few people would even have paid attention to into a sweeping decision that changes American politics and undoes a century of jurisprudence.
And that is how we got these SuperPACs. Really an amazing and important story.
By: Michael Tomasky, The Daily Beast, May 18, 2012
“Unacceptably Apart From The Rest”: In Healthcare Debate, The Supreme Court Is Risking Its Legitimacy
April first has not rinsed the Supreme Court out of my hair.
Disturbing my peace of mind: the arrogance of Antonin “Nino” Scalia and his four fellow “conservatives” (almost too good a name for what they are if they dismantle President Obama’s healthcare law). Piquing my patience: the journalistic myopia leading up to this moment.
If five unelected men dare to do that, that would be a radical affront to the constitutional authority of the president and the Congress, who both represent the voices of the people. They call the three branches of government a balance of power. Very nice. But in practice, considering the Supreme Court led by Chief Justice John Roberts, all bets are off.
Hearing their voices last week during the case’s oral arguments awakened me—and many of us—from a slumber of apathy about the high court. In general, the justices are a given, a group of nine who rule from a beautiful marble building. We the people can’t do anything about the Republican majority of five—even if we believe Clarence Thomas is a scoundrel who has no place in deciding other people’s fates. They are removed in their black robes, resistant to cameras capturing their proceedings, and altogether mysterious to the public. You can’t even walk up the famous front steps anymore. The cloistered “brethren” like things that way, literally above it all.
Now it’s clear as an April morning: They are unacceptably apart from the rest of us. A nation of 300 million cannot tolerate five men (appointed by George W. Bush, his father, and Ronald Reagan) making a huge medical decision involving life and death for the population. The political class and the press should start letting it be known the court had better not rule against a complex legislative achievement on its second try since Bill Clinton’s presidency. Doctors, nurses, citizen groups, write letters and go stage a demonstration. Let the court hear your voices in their marble manor, just as we’ve heard theirs, insolently comparing health insurance to broccoli—thanks for that, Nino.
In other words, my fellow Americans, don’t just wait for a decision to be handed down from on high. Healthcare reform is surely at stake with this momentous decision, but so is the popular legitimacy of this court.
Far from being fair-minded and deliberative, we are faced with a court characterized by five partisans—and I include Anthony Kennedy, seen as the swing vote. He has enjoyed glowing treatment from the Supreme Court cadre of journalists who have used him as a plot point for years. A Washington institution, he’s not the man in the middle now anymore than he was when he voted for George W. Bush in the Bush v. Gore debacle in 2000, giving new meaning to democracy’s “one man, one vote. ” That wasn’t even 12 years ago, people!
In the scene-setters for the case, I read too many articles in The New York Times and Slate—and heard one too many NPR stories—asserting Kennedy would be a “reasonable” or “moderate” key player in upholding the healthcare reform mandate for his legacy. In fact, one law correspondent said, “everybody” in the legal journalism community thought upholding “Obamacare” was a done deal—until the actual arguments started.
In covering a rarefied realm, journalists jointly create a narrative for a cast of characters—and perhaps get too close to their sources, as those sources aren’t going anywhere for a long time. In Congress across First Street, fresh faces and new blood are circulating every two years. The press galleries there resemble public school, while the press room in the court feels like a posh private school.
As the poet said, April is the cruelest month—at least until June crashes in.
By: Jamie Stiehm, U. S. News and World Report, April 2, 2012
An “Inevitable Overhaul”: A Stronger Prescription For What Ails Health Care
In arguments before the Supreme Court this week, the Obama administration might have done just enough to keep the Affordable Care Act from being ruled unconstitutional. Those who believe in limited government had better hope so, at least.
If Obamacare is struck down, the short-term implications are uncertain. Conservatives may be buoyed by an election-year victory; progressives may be energized by a ruling that looks more political than substantive. The long-term consequences, however, are obvious: Sooner or later, a much more far-reaching overhaul of the health-care system will be inevitable.
To say the least, the three days of oral argument before the high court did not unfold the way many experts had expected. Confident predictions that the administration would prevail by a lopsided margin became inoperative as soon as the justices began pummeling Solicitor General Donald Verrilli with pointed questions.
At one point Wednesday, as the barrage was winding down, Chief Justice John Roberts told Verrilli he could have an extra 15 minutes to argue a point. Verrilli replied, “Lucky me.”
In the end, however, Verrilli gave the skeptical justices what they were looking for: a limiting principle that allows them, should they choose, to defer to Congress and uphold the law.
At the heart of the legislation is the requirement that individuals purchase health insurance or pay a fine. It became clear by their questioning that the court’s five conservatives — including Justice Anthony Kennedy, the swing vote who sometimes crosses the ideological divide and votes with the liberals — see this mandate as a significant expansion of the federal government’s reach and authority.
Verrilli argued that the mandate is permissible under the clause of the Constitution giving the government the power to regulate interstate commerce. Justices demanded a limiting principle: Where does this authority end? If the government can compel a citizen to buy health insurance, why can’t it compel the purchase of other things?
Justice Antonin Scalia raised the specter of an all-powerful government that could even “make people buy broccoli” if it wished. Scalia’s mind seemed to be made up, but Kennedy seemed to be genuinely looking for a principle that permitted a health insurance mandate but not a broccoli mandate.
And Verrilli gave him one. The market for health insurance is inseparable from the market for health care, he argued, and every citizen is a consumer of health care. Those who choose not to buy health insurance require health care anyway — often expensive care at hospital emergency rooms — and these costs are borne by the rest of us in the form of higher premiums.
I think Verrilli made his case. The court is supposed to begin with the assumption that laws passed by Congress are constitutional. Justices don’t have to like the Affordable Care Act in order to decide that it should remain in effect. If some members of the court think they could do better, maybe they should quit and run for legislative office.
But it’s going to be a close call. What if they strike down the law?
The immediate impact will be the human toll. More than 30 million uninsured Americans who would have obtained coverage under Obamacare will be bereft. Other provisions of the law, such as forbidding insurance companies to deny coverage based on preexisting conditions and allowing young adults to remain on their parents’ policies, presumably would also be invalidated; if not, they would have to be modified to keep insurance rates from climbing sharply. The United States would remain the only wealthy industrialized country where getting sick can mean going bankrupt.
Eventually, however, our health-care system will be restructured. It has to be. The current fee-for-service paradigm, with doctors and hospitals being paid through for-profit insurance companies, is needlessly inefficient and ruinously expensive.
When people talk about out-of-control government spending, they’re really talking about rising medical costs that far outpace any conceivable rate of economic growth. The conservative solution — shift those costs to the consumer — is no solution at all.
Our only choice is to try to hold the costs down. President Obama tried to make a start with a modest approach that works through the current system. If this doesn’t pass constitutional muster, the obvious alternative is to emulate other industrialized nations that deliver equal or better health-care outcomes for half the cost.
I’m talking about a single-payer health-care system. If the Supreme Court strikes down Obamacare, a single-payer system will go from being politically impossible to being, in the long run, fiscally inevitable.
By: Eugene Robinson, Opinion Writer, The Washington Post, March 29, 20122
“Openly And Repeatedly Mocked”: What The Supreme Court Thinks Of Congress
The Supreme Court spent the first part of the morning debating the “severability” question, and as Lyle Denniston reported, we learned a bit from the proceedings — most notably what the justices think of Congress.
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.
A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
Of particular interest was the justices’ opinions of Congress — it turns out, American voters aren’t the only ones who hold lawmakers in low regard — which was characterized as an institution incapable of creating a new health care law. Denniston added, “Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or the hypothetical Congress.”
I’d also note that Kagan complained at one point about “the complex parliamentary shenanigans that go on across the street.”
How dysfunctional is Congress? The legislative branch is now being openly and repeatedly mocked by Supreme Court justices during oral arguments — eliciting laughter from those in attendance.
Congress, they were laughing at you, not with you.
By: Steve Benen, The Maddow Blog, March 28, 2012
Justice Kennedy’s “Nuanced View”: A Bad Beginning And A Better Ending
The Constitution’s words enabling Congress to “regulate commerce…among the several states” gives the United States broad authority over economic matters — although non-economic regulation is far more suspect. Early in today’s argument, however, several of the justices appeared poised to impose an entirely novel limit on Congress’ authority — suggesting that laws which require, in Justice Kennedy’s words, an “affirmative duty to act to go into commerce” is somehow constitutionally suspect. So there were no shortages of pointed questions about the Affordable Care Act’s requirement that everyone either carry health insurance or pay slightly more income taxes.
There are two reasons why this requirement is necessary. The first is that, because the law prohibits insurers from denying coverage to patients with preexisting conditions, it must also ensure that healthy people enter the insurance market before they become sick. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers. The second reason relates to a problem with our health system that long predates the Affordable Care Act. Because emergency rooms must provide at least some degree of care free of charge to people who cannot afford it, these costs wind up being transferred to persons with insurance — driving up annual premiums as much as $1,100 on the average patient.
Initially, the Court’s conservatives appeared highly credulous of the plaintiffs’ false claim that upholding the health reform would necessarily enable the federal government to do absolutely anything. Solicitor General Don Verrilli addressed this question by explaining that the health care market is unique in that it is the only market that everyone inevitably participates in — we all get sick at some point — and that, because of health care’s sudden and unexpected costs, people typically pay their health bills through insurance. Thus, he explained, because everyone is already caught up in the health care market, the Affordable Care Act does not impose any kind of “duty…to go into commerce” — it merely tells people who are already in the health care market to make sure they pay for their health costs through insurance.
While Verrilli was still at the podium, the Court’s conservatives did not seem to buy this claim. A ray of hope emerged at the end of the oral argument, however, when Justice Kennedy expressed a somewhat nuanced view:
[T]he government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.
There’s a lot going on in this statement. On the one hand, Kennedy is clearly skeptical that, if the Court says this market is unique, the government won’t simply argue that the next market is also unique in the next case. On the other hand, Kennedy also appears sympathetic to the second reason why the mandate is essential — that the problem of uninsurance leads to billions in health care costs being transferred to other health care consumers. A young person who forgoes health insurance is “uniquely proximately very close” to affecting the health care costs of others, and that may be enough to get Kennedy’s vote to uphold the law.
The big loser in all of this debate, however, is the Constitution itself. The Constitution says nothing about unique markets. Or about the need to impose artificial Congress authority to regulate the nation’s economy. It simply says that Congress can “regulate commerce.” The idea that a law which regulates 1/6 of the nation’s economy is not regulating commerce is, frankly, absurd. Nor was there ever any risk that a decision upholding health reform would lead to all things being permissible. There are many things that are not commercial — federal murder laws, assault laws, child neglect laws or sexual morality laws, for example. A law regulating our entire national health care market, however, is clearly and obviously constitutional.
Justice Kennedy may inevitably vote to uphold the law — he may even bring Chief Justice Roberts along with him — but, whatever the Court does this term, it appears increasingly likely that we live under the constitution of Anthony Kennedy, and that we no longer live under the Constitution of the United States.
By: Ian Millhiser, Think Progress, March 27, 2012
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