“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
“Illusions Of Care”: Romney’s Healthcare Plan That Isn’t
If someone asked you to come up with a good reason that Mitt Romney—the boring one-term governor of a state he left with high debt, poor job-creation and low approval ratings—became a credible national candidate, you might have a hard time doing so. The fact that he is wealthy and could self-finance his way into the top tier of Republican presidential contenders helped, as did the fact that he had won in the bluest of states, Massachusetts.
But the main reason, ironically, is that he was associated with a policy achievement—healthcare reform—that he has completely come to oppose. Back in 2007, Republicans still pretended to care about the crisis of 45 million uninsured Americans and costs that keep spiraling upwards. And so they looked to the one Republican who had tackled that problem at the state level and had done so with a program that harnessed the private sector rather than creating a massive new entitlement program. Conservative organs such as National Review, which would later inveigh against the Affordable Care Act (ACA), cited Romney’s experience with reforming the health insurance system as one of his most valuable credentials.
Throughout this campaign Romney has walked a tiny tightrope on healthcare: he attempts to make amends for passing the state level template for the ACA by issuing over the top denunciations of socialist, unconstitutional “Obamacare.” Meanwhile he has studiously avoided saying anything of substance about how he would address the massive market failure that defined the pre-reform American healthcare system.
On Tuesday in Orlando Romney gave a speech intended to create the false impression that he intends to replace the ACA with something that would provide the same benefits through other means. Here is how the Washington Post summarized the speech: “Romney fleshed out a plan he proposed earlier that would apply free-enterprise principles to the nation’s health-care system rather than operate it like a ‘government-managed utility,’ letting competition drive down prices and increase quality.” The “earlier” they refer to is Romney’s big healthcare speech last May that was meant to make it clear how different he is from Obama on the subject.
That was the main thrust again on Tuesday. Romney repeated the usual right-wing shibboleths: that the ACA has hamstrung the economic recovery by placing “unaffordable” cost burdens and new taxes on families and businesses. He has been at this for a while, using misleading anecdotes, such as his blatant misrepresentation of a passage from Noam Scheiber’s book that he claims shows the White House knew healthcare reform would damage the recovery, when it only shows that it knew more stimulus might have been more valuable to the short-term recovery. Of course, had Obama proposed more stimulus spending instead of healthcare reform in the fall of 2009, Romney and other Republicans would have opposed it.
In fact, the Romney campaign appears to disagree with the Post that Romney offered much more substance than he did last May. When I asked for details of what he is proposing, the campaign said he laid it out last year and the program is available on the campaign website.
The healthcare page on Romney’s site does not, in fact, tell you much about what Romney would do. Instead it mostly offers vague, inoffensive sounding principles such as “Ensure flexibility to help the uninsured, including public-private partnerships, exchanges, and subsidies” and “Offer innovation grants to explore non-litigation alternatives to dispute resolution.”
Some of the principles are more blatantly ideological and potentially quite troubling, such as “Limit federal standards and requirements on both private insurance and Medicaid coverage.” Those federal standards and requirements are in place to protect citizens from rapacious companies and miserly state governments that would deprive recipients of necessary treatments. Any given federal requirement might be too costly or unnecessary. But Romney doesn’t specify which federal requirements he would eliminate so as to avoid inviting scrutiny of what his policy would do to the vulnerable.
The few specifics Romney offers could reduce, rather than expand, medical coverage. Romney would turn Medicaid into a block-grant program. That way, if poverty increases the federal government would not be on the hook for covering more Medicaid recipients. It would be the state’s problem. And what would the states do? Reduce the quality of coverage, or tighten eligibility rules to reduce the number of people covered.
The only other major change to the health insurance delivery system Romney offers is this: “End tax discrimination against the individual purchase of insurance.” That’s a euphemism for creating an expensive new tax deduction. That’s pretty hypocritical coming from someone who promises to cut tax rates and somehow magically make up for the lost revenue by eliminating tax expenditures.
Currently employer-provided health insurance is not taxed as income. Consequently, we overspend on health insurance by favoring that compensation over money employers pay to workers and the workers spend on anything else. This is actually not a very good policy for anyone. Employers are stuck with escalating healthcare costs, employees see their wage increases get diverted to healthcare, and the individual insurance market offers inferior, expensive coverage that unfairly disadvantages the self-employed and thus discourages risk taking.
These are all good reasons to get rid of our current system and switch to a universal, single-payer approach, such as making everyone eligible for Medicare. The alternative way to eliminate the current market distortion would be to end the tax deductibility of employer-based health insurance. That’s the program John McCain ran on in 2008. Back then, conservatives made sensible arguments in favor of doing so. For example, the Family Research Council complained in 2007 that employer-sponsored health insurance enjoys the single largest subsidy in our tax code.
But Mitt Romney is not John McCain. He is a coward, who lacks an iota of McCain’s political bravery. Consequently, Romney fears the backlash that would ensue if he took the principled position in favor of removing this inefficiency. So instead he proposes to equalize the treatment by making it also tax-deductible for individuals to buy their own insurance. That’s good for them, but it does nothing for the market. (The advantage to the market of McCain’s proposal was that it would move millions of health working-age Americans into the individual insurance market, much as the individual mandate would.) The ACA creates a flat tax credit for buying insurance. Romney would repeal that and offer a tax credit based on how much you spend on health insurance, so it would disproportionately benefit richer people who can afford more expensive tax plans.
In a similar act of falsely telling voters they can have their cake and eat it too, Romney promises to keep the most popular provision of the ACA, the rule preventing insurers from excluding prior conditions, without explaining how he would prevent the insurance market from a death spiral of cost increases. (The current mechanism for preventing that, the individual mandate, is the core of what Romney promises to repeal if the Supreme Court doesn’t do so first.)
As a freelancer who pays for his own insurance, I stand to benefit. But as American citizens, we all stand to lose.
By: Ben Adler, The Nation, June 12, 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
“Broccoli And Bad Faith”: Health Insurance Is Nothing Like Broccoli
Nobody knows what the Supreme Court will decide with regard to the Affordable Care Act. But, after this week’s hearings, it seems quite possible that the court will strike down the “mandate” — the requirement that individuals purchase health insurance— and maybe the whole law. Removing the mandate would make the law much less workable, while striking down the whole thing would mean denying health coverage to 30 million or more Americans.
Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.
Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.
Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.
There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.
Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional? It’s hard to see why — and it’s not just those of us without legal training who find the distinction strange. Here’s what Charles Fried — who was Ronald Reagan’s solicitor general — said in a recent interview with The Washington Post: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them.”
Indeed, conservatives used to like the idea of required purchases as an alternative to taxes, which is why the idea for the mandate originally came not from liberals but from the ultra-conservative Heritage Foundation. (By the way, another pet conservative project — private accounts to replace Social Security — relies on, yes, mandatory contributions from individuals.)
So has there been a real change in legal thinking here? Mr. Fried thinks that it’s just politics — and other discussions in the hearings strongly support that perception.
I was struck, in particular, by the argument over whether requiring that state governments participate in an expansion of Medicaid — an expansion, by the way, for which they would foot only a small fraction of the bill — constituted unacceptable “coercion.” One would have thought that this claim was self-evidently absurd. After all, states are free to opt out of Medicaid if they choose; Medicaid’s “coercive” power comes only from the fact that the federal government provides aid to states that are willing to follow the program’s guidelines. If you offer to give me a lot of money, but only if I perform certain tasks, is that servitude?
Yet several of the conservative justices seemed to defend the proposition that a federally funded expansion of a program in which states choose to participate because they receive federal aid represents an abuse of power, merely because states have become dependent on that aid. Justice Sonia Sotomayor seemed boggled by this claim: “We’re going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.” And she was right: It’s a claim that makes no sense — not unless your goal is to kill health reform using any argument at hand.
As I said, we don’t know how this will go. But it’s hard not to feel a sense of foreboding — and to worry that the nation’s already badly damaged faith in the Supreme Court’s ability to stand above politics is about to take another severe hit.
By: Paul Krugman, Op-Ed Columnist, The New York Times, March 29, 2012
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