“Mitt Romney Will Be Relieved”: Republicans Will Soon Stop Talking About Health Care
The Supreme Court’s decision on the Affordable Care Act (ACA), particularly Justice John Roberts siding with the liberals, took most everyone by surprise this morning. But if you tune in to Fox News or surf around the conservative blogs, they seem to be taking it somewhat philosophically. They’re not happy, but there’s little rending of garments and gnashing of teeth. Mostly they’re saying, well, we’ll just have to win this in November (see here for a representative sample). There’s also a good deal of discussion of the fact that the Court declared that the requirement to carry health insurance is permissible under the government’s taxing power. After all, if there’s one thing Republicans know how to do, it’s complain about taxes. Mitch McConnell quickly took to the floor of the Senate to condemn the decision, and no doubt Mitt Romney will soon say something so vague that no one can determine what he actually thinks.
But here’s my guess: Republicans are going to drop health care very quickly. They took their shot with the only avenue they had to kill the ACA, and they came up short. The legal battle is over, and they know that once they start talking about repealing the whole thing, it makes it easier to talk about the benefits of the ACA that will be repealed, particularly since they have given up on even bothering to come up with a “replace” part of “repeal and replace.” Oh, they’ll still condemn the ACA when they’re on Fox, or when they’re talking to partisan audiences—just enough to reassure base conservatives that they’re still angry. But in short order, they’re going to move on to other topics now that the legal question has been settled.
That suits Mitt Romney just fine. You may remember that when the primary campaign started, many people said it would be impossible for him to become the Republican nominee, given that he had passed a health-care plan so closely resembling the ACA in Massachusetts, complete with an individual mandate. He managed to wriggle and writhe away from questions about it for the last two years. Those questions are no more comfortable than they ever were. As the leader of the GOP, he’ll set the agenda for the party. And there are few things he’d rather talk about less. We’ll pore over this decision for the next week, then the news media will move on, and Romney will breathe a sigh of relief.
By: Paul Waldman, Contributing Editor, The American Prospect, June 28, 2012
“Keeping The Faith”: Why The Supreme Court Will Uphold The Constitutionality Of Obamacare
Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won’t get near the first two right now, but I’ll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court’s notorious decision in Bush v. Gore.
The Supreme Court can’t afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can’t threaten to withhold funding from the other branches) or the sword (it can’t threaten police or military action). It has only the public’s trust in the Court’s own integrity and the logic of its decisions — both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public’s trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn’t matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge’s logic was lucid and impeccable — so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care — given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I’ve stuck my neck out. We’ll find out tomorrow how far.
By: Robert Reich, Robert Reich Blog, June 27, 2012
“Bush v Gore”: The Only Precedent That Seems To Matter To “Judicial Counter Revolutionaries”
Nobody would much describe Monthly alumnus and long-time Atlantic writer James Fallows as a firebrand. But he does have a sense of historical perspective. Over the weekend, mulling a probable Supreme Court action to invalidate some or all of the Affordable Care Act, Fallows put together a stunningly brief summary of how we came to this point:
Pick a country and describe a sequence in which:
* First, the presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.
* Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
* Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
* Meanwhile their party’s representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation — and appointments, especially to the courts.
* And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.
How would you describe a democracy where power was being shifted that way?
Fallows answers his own question by using a term—“long-term coup”—that he later downgrades to “radical change.” That’s appropriate, since “coup” implies tanks in the street rather than black-robed ideological cheerleaders. But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, June 25, 2012
“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
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