“Blame The Supreme Court”: Acting As An Arm Of The Republican Party
Liberals will be tempted to point the finger at themselves if the Affordable Care Act is overturned. They shouldn’t.
It’s a virtual certainty that, if the Supreme Court overturns the individual mandate or the Affordable Care Act wholesale, liberals will find a way to blame each other—or the administration—for its failure to anticipate the constitutional challenge. Yesterday, both The Washington Post and The New York Times ran stories in which critics and observers laid blame on the administration for its tactical strategy, and the bill’s authors for using the mandate to achieve near-universal health-care coverage. Here’s the Times:
With the benefit of hindsight, some advocates said they would have been better off framing the law more explicitly as a tax, although doing so would have been politically explosive. Short of that, some said, strategy alternatives like slowing down the case still might not have made a difference.
This strikes me as misguided. Underlying the assumption that the Court will strike down the individual mandate—or the Affordable Care Act as a whole—is the idea that the current Supreme Court is partisan in a way that’s never been true before. It’s one thing to stack the Court with Justices who are ideologically favorable; it’s something else entirely to stack the Court with fellow partisans, who are primarily loyal to the Republican Party and not any discernible legal principle.
Whether this has happened is an open question, but if it has—as James Fallows argued yesterday—then it’s silly to think that liberals could have avoided disaster by framing the law as a tax, or changing the structure of the mandate. Remember, when the law was being crafted in 2009, or when it was signed in 2010, the spurious distinction between “activity” and “inactivity” hadn’t been devised yet, and no one was concerned the the mandate would violate the Constitution. But eventually, movement conservatives developed a legal principle that would allow them to argue the case.
Likewise, if the mandate were framed as a tax—or even if the Affordable Care Act were shaped as “Medicare-for-all”—movement conservatives would have devised a legal doctrine that challenged its constitutionality.
Because of this, if the Court strikes down the Affordable Care Act, liberals should refrain from turning their guns on each other. Instead, they should take aim at the Supreme Court. A Court that acts as another arm of the Republican Party is one that doesn’t deserve the standing it claims or the respect it demands. Partisan institutions should be treated as such, and liberals should do as much as possible to challenge the legitimacy of the Court.
By: Jamelle Bouie, The American Prospect, June 25, 2012
“About As Screwed As You Can Get”: The Uninsured Continue To Annoy Us With Their Pain
There are a lot of reasons why the United States is the only advanced democracy that does not guarantee basic medical services to all its citizens. One reason is that the convoluted construction of the U.S. health-care system has made it hard to fix the dysfunctional elements without threatening to change existing arrangements for people who profit from the status quo, or at least fear change. (That’s why both Presidents Obama and Clinton have tried so hard to convince Americans with health insurance they could keep what they have.)
Another reason is that people without health insurance are politically weak. They lack political organization, and many, reports Alec MacGillis, lack even the awareness that there was this big health-care law that gives them help:
As Robin Layman, a mother of two who has major health troubles but no insurance, arrived at a free clinic here, she had a big personal stake in the Supreme Court’s imminent decision on the new national health care law.
Not that she realized that. “What new law?” she said. “I’ve not heard anything about that.”
The circumstances of MacGillis’s story itself tell you something else about the weakness of the uninsured: Their cause is slightly disreputable. MacGillis straightforwardly and without advocacy examines up-close the conditions of the uninsured and their level of awareness, or lack thereof, of the Affordable Care Act. MacGillis reported the story for Kaiser Health News, and offered it to the Washington Post, which planned to run it on its front page but decided against it.
It is certainly true that a story examining the plight of the uninsured, and one that notes that they would stand to gain from a law subsidizing their health insurance, would tend to make readers think more favorably of such a law. But that is not the sort of objection a newspaper normally considers fatal. It all depends on whose plight we’re talking about. The complaints of business leaders who want more favorable regulatory and fiscal policies have received blanket coverage. Even when such complaints have a strong partisan tilt, beliefs like “we need less regulation” or “we must focus on reducing the deficit” carry a presumption of public-spiritedness.
The uninsured are in such bad political shape that even describing their physical suffering in a political context is considered dangerously partisan. That’s about as screwed as you can get.
By: Jonathan Chait, Daily Intel, 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
“Right Wing Social Engineering”: What Romney’s Medicare Plan Actually Does
DC journos have spent much of the 2012 election trying to answer the question of how exactly a President Romney would govern. On one side, there are the skeptics who never bought into Romney’s rhetoric during the Republican nomination. They argue Romney is, at heart, still a moderate northeastern governor, a businessman unsuited for the extremism that has come to dominate his party. Others are equally convinced that Romney must be taken at face value. Sure he might have positioned himself in the middle while he governed a state dominated by Democrats, but he has spent the past five years running for president full-time, aligning himself with every right-wing whim over the course of his two campaigns. He’s the Republican who sought the endorsement of Ted Nugent, discarded a gay spokesman, and calls corporations people. Lest we forget, it was Romney who was poised to run as the right-wing challenger to John McCain and Rudy Giuliani in 2008 before Mike Huckabee swooped in to steal the evangelical vote.
The best measure to get at the real Romney is to read his actual proposals and ignore the standard posturing at campaign stops or TV interviews. These are the documents directed primarily at the obsessive political class, barely noticed by your average voter, thus freeing Romney to be closer to his true self. They’re probably the most important piece of evidence for any politician before an election. As Jonathan Bernstein has convincingly argued, presidential pledges should be taken at face value, as newly elected presidents are almost always constrained by the commitments they made during the campaign.
When weighed by this measure, Romney is undoubtably aligned with the far right-wing vision of his policy, particularly on budgetary and fiscal matters. He’s advocated not only for the extension of the Bush tax cuts, but has suggested even further reductions in the U.S. tax rate that would heavily benefit the wealthy. He’s endorsed the Paul Ryan budget wholesale, an Ayn Randian vision of the limited government that even Newt Gingrich termed “right wing social engineering” when it was initially introduced.
One of the key elements of the Ryan/Romney overlapping vision is how the government should handle the exploding costs of Medicare. The New York Times delved into Romney’s proposals in contrast with Obama’s in an article Tuesday. The piece unfortunately falls into the pitfalls of equivocating newspaper journalism, weighing both plans largely by the attacks poised by the opponent rather than independent descriptions of what each candidate is suggesting. Romney’s plan is introduced as “ending Medicare as we know it” in Obama’s words, while the article introduces the Affordable Care Act as such:
The president’s 2010 health care law, Mr. Romney says, “could lead to the rationing or denial of care for seniors,” as it will squeeze nearly a half-trillion dollars from the growth of Medicare over 10 years while putting the program’s future “in the hands of 15 unelected bureaucrats.”
Either side of the political divide can agree that Medicare is on a perilous path. Health care expenditures as a whole are eating up an increasingly large share of the country’s GDP, and the number of Medicare enrollees is set to jump as the Baby Boomers start to retire. The government has projected that by 2024 the Medicare fund will no longer be able to match the full cost of expected benefits.
This concern is one of the primary reasons Obama pushed health care reform early in his administration. Alongside the measures that make it easier for low and middle income Americans to purchase health insurance, the Affordable Care Act takes a first stab at tackling the looming problem. The bill included a variety of measures to incentivize cheaper, more effective health care to bring down costs throughout the health care market, along with a medical advisory board that will suggest best practices to keep the tab lower on Medicare.
Meanwhile, Romney and Ryan’s strategy is to largely ignore the general growing cost of health care, instead focusing on Medicare itself. They would turn Medicare into a premium support plan—essentially a voucher program that would shift the burden of health spending off the government ledger by forcing future retirees to spend far more of their own funds on health services. These vouchers would initially meet the value of buying insurance on the private market, but they would soon fall behind the actual cost for consumers if the general price of health care continues to rise unabated.
Romney has not yet released a proposal with all of the details, but it is safe to assume that his premium support plan would largely follow the model set forth by Ryan. Under that plan—which has already passed the Republican controlled House before it was blocked by Democrats in the Senate—all Medicare enrollees who enter the program beginning in 2023 would have to enter the voucher program, and, as the Center for Budget and Policy Priorities has highlighted, by 2050 Medicare expenditures would be 35 to 42 percent lower for each participant, primarily by shifting the cost burden onto enrollees rather than lowering the overall cost of the care they consume.
Yes, Medicare expenditures would be lowered—but on enrollees’ dime.
By: Patrick Caldwell, The American Prospect, May 15, 2012
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