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
“Assiduously Colorblind” Conservatives: The Worst Racial Demagogues Of The Decade
In Stephen Colbert’s ongoing spoof of conservative punditry, he often insists that he cannot see color. As if to prove that he’s a spot on satirist, Rush Limbaugh has titled a Monday web item about the Trayvon Martin case, “The Left’s Obsession with Race,” wherein he explains to his audience:
This is one of those things I can’t relate to. I don’t look at people and see a race or a sexual orientation or whatever… I don’t see black-versus-white or anything. The left is the ones who do this.
A lot of conservatives honestly believe this — that the left is obsessed with race, while the right is assiduously colorblind, and wouldn’t think about the subject, let alone discuss it in public, if its adherents were in charge. It’s time that someone explain to them why the rest of America isn’t buying it.
The right’s race problem is a lot bigger than its most popular talk radio host, but he’s a good place to begin. Remember when he briefly got a gig as an NFL commentator? If you watch Monday Night Football or Sports Center, you don’t see much critical race theory creeping into the analysis. But bring in Rush Limbaugh and suddenly a conversation about Donovan McNabb’s performance turned into what, if it were submitted as a term paper in a black studies class, might be titled, “How Racial Expectations Affect The Post-Civil Rights-Era Treatment of Black Quarterbacks In Mass Media.” Whatever you think about Limbaugh’s comments, he is the one who deliberately and needlessly brought McNabb’s race into the conversation. He’s also the man who won the 2009 award for accusing more people than anyone else of racism. And the man who responded to an obscure news item about a white kid getting beat up by a black kid on a school bus by saying that sort of black-on-white violence is perfectly kosher in Barack Obama’s America. And who can forget his mocking mimicry of the way that Chinese people speak? If a black talk show host treated whites like Limbaugh treats minorities, conservatives would go ballistic.
But as I said, it isn’t just about talk radio. It’s also about politicians like Newt Gingrich. In his latest foray into racial commentary, he took President Obama to task for his comments about the Trayvon Martin case.
Here’s what Obama said:
I’ve got to be careful about my statements to make sure we’re not impairing any investigation… But obviously this is a tragedy. I can only imagine what these parents are going through. And when I think about this boy, I think about my own kids. I think that every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this, and that everybody pulls together, federal, state and local to figure out exactly how this tragedy happened…
My main message is to the parents of Trayvon Martin. If I had a son, he would look like Trayvon. I think they are right to expect that all of us as Americans are going to take this with the seriousness it deserves.
To me, that’s as pitch perfect as an off-the-cuff statement gets.
Here’s how Gingrich reacted to it:
What the president said in a sense is disgraceful. It is not a question of who that young man looked like. Any young American of any ethnic background should be safe. Period. And trying to turn it into a racial issue is fundamentally wrong. I find it appalling.
See what he did there? In the course of criticizing Obama for engaging in supposed racial demagoguery, Gingrich implies that the president cares less when white kids are shot by strangers, despite the fact that reading his statement that way is the sort of mistake only an overly literal idiot (or poorly programmed computer) would actually make. Gingrich is no idiot. And he is far too undisciplined to be a computer. Given his insistence that invoking identity is needlessly divisive, he’s certainly a hypocrite. This is a guy who says the best way to understand Obama is through the prism of his alleged Kenyan anti-colonialism; a guy who says that American Muslims shouldn’t be able to build mosques in Manhattan until Saudi Arabia permits churches on its territory; someone who thinks the widespread conservative belief that Obama is a Muslim is both something Obama ought to be embarrassed about (apparently he thinks there’s something wrong with being a Muslim) and that the rumor is Obama’s fault!
It would be one thing if Limbaugh and Gingrich were jeered by fellow conservatives for their long-running forays into racial demagoguery. Instead the prevailing attitude is something like “turnabout is fair play.” Ask a conservative why they don’t call these guys out. The answer is often, “but Al Sharpton is worse.” Even if that were true, the fact that somewhere a liberal is behaving badly hardly justifies the behavior of their conservative analogues; but the uncomfortable truth conservatives refuse to face is that Sharpton’s low point happened two decades ago. Look at the past decade. Limbaugh and Gingrich are the bigger racial demagogues today.
Writing at Forbes, Josh Barro explains what’s wrong with the insistence of some conservatives that Obama’s comments in the Martin case were objectionable:
The claim running through these objections is that black Americans cannot have any special concerns in need of airing. Many of the issues raised in the Trayvon Martin case–was Trayvon Martin singled out for suspicion because he was black? Did race influence the Sanford police’s handling of the case? What is the burden of profiling on young black men?–are therefore off limits.
Barro goes on to say something the right must confront if its ever going to change its reputation on racial matters:
Conservatives, almost universally, feel like they get a bad rap on race. They catch heat when they point out improvements over the last several decades in race relations and in the material well being of minorities in America, even though those phenomena are real. They catch heat when they contend that government programs intended to help the poor have led to problems with dependency in minority communities, even though those critiques are sometimes correct. They catch heat when they criticize Affirmative Action, even when in some cases (as at the University of California) Affirmative Action was clearly dis-serving minority communities.
Why do conservatives catch such heat? It’s probably because there is still so much racism on the Right to go alongside valid arguments on issues relating to race and ethnicity. Conservatives so often get unfairly pounded on race because, so often, conservatives get fairly pounded on race. And this is the Right’s own fault, because conservatives are not serious about draining the swamp… There has been a clear strategic calculation here among Republican elites. Better to leverage or at least accept the racism of much of the Republican base than try to clean it up.
His post, complete with examples and lots more analysis, is worth reading in full. And the conclusion is spot on:
My challenge to conservatives who feel they get a bum rap on race is this. Stand up for yourself and your colleagues when you feel that a criticism is unfair. At the same time, criticize other conservatives who say racist things, cynically tolerate racism in the Republican base, or deny the mere existence of racial issues in America today. The conservative movement desperately needs self-policing on racial issues, if it ever hopes to have credibility on them.
Quite right. It is in fact the case that conservatives are sometimes attacked unfairly on racial matters, and that some conservatives are attacked because they’re obvious racial demagogues. The best “strategy” for grappling with this situation is to just call ’em how you see ’em.
By: Conor Friedersdorf, The Atlantic, March 27, 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
“Non-Citizen For Life”: The Republican “American Apartheid Dream Scheme”
The Senate GOP seems to be banking on the assumption that Latino voters are stupid, don’t read the fine print — or are not paying any attention at all.
Panicking from a series of polls that show their years of bashing Latinos haven’t been endearing them to Latino voters, prominent Republicans are scrambling for a solution. They seem to have found one, at least for now, in a new attempt by Florida Sen. Marco Rubio to rewrite the DREAM Act, the widely popular bill that the Senate GOP derailed in late 2010.
Rubio has come up with a “non-citizen-for-life” concept as he rejiggers the DREAM Act to make it pretty much dream-free. It’s a tough trick: How do you create the illusion of a law that looks like it’s giving something to Latinos, but which the Tea Party knows means nothing?
The authentic DREAM Act offers a path to citizenship for children who were brought to the country without documentation, who graduate from high school and go on to college or the military, allowing them to create a stable life and give back to the country that they call home. Rubio’s dream-free proposal gives these young people a nebulous legalized status, so that rather than become American citizens, they will have permanent second-class status — allowed to live, work and pay taxes in the only country they have ever known, but never permitted the ability to vote or exercise any of the rights of full citizenship.
The real cruelty of this Republican proposal is that it seeks to take advantage of the desperation of some DREAM Act-eligible youth to avoid deportation. The Republican proposal offers them that in the short term, but at the price of second-class status for the rest of their lives. They deserve better. Of course, it doesn’t have to be this way: Not long ago, before the Tea Party drove the GOP’s agenda, the authentic DREAM Act enjoyed the support of many Republicans in the Senate. The GOP has paid the price for abandoning the authentic DREAM Act and promoting numerous anti-immigrant policies. Senate Republicans are living in a fantasy land if they believe they can win back Latino voters by inventing a new second-class status for these young people.
They should take a lesson from history. I went to South Africa over 30 years ago, where the government created many different levels of citizenship as a means to keep an unjust system going in a modern world. In addition to “Whites,” different categories of “Blacks,” “Coloureds,” and “Asians” for South Asians, South Africa had to create the category of “Honorary Whites” to accommodate the Japanese and Chinese. We should learn from the lessons of apartheid and the dangers of creating different levels of citizenship for different people.
That system, thankfully, has fallen, and it has been rightfully judged an historical disgrace, but if today’s Republican Party has considered history at all, they’re not learning the right lessons. Instead of pushing towards more equality for all people, they’ve perfected a method of legalizing discrimination by inventing new classes of citizenship for those on whom they don’t want to bestow full rights, creating a unique and disturbing American apartheid.
Add these new immigrant ersatz citizens to a growing list. Republicans want gay people to have a form of citizenship that doesn’t include marriage rights — and if they had their way gay Americans wouldn’t be allowed to serve their country in in the military either. Muslims can be citizens, but must fight legal and PR battles just to exercise their First Amendment right to the freedom of religion. People who have served their time in jail for felonies are citizens — but in many states, they aren’t allowed to participate in our democracy by voting. And Republican-controlled state legislatures pass laws that make it harder for young people, the elderly, and low-income people to vote – again, all citizens, legislated out of one of their fundamental constitutional rights.
For a party that claims to be interested in limiting government, today’s GOP is surprisingly eager to create new levels of bureaucracy for the sole purpose of depriving some Americans of their rights. Whatever happened to simple? How about an America with equal rights and equal justice for all and a fair path to citizenship for hard-working people who play by the rules?
With the new dream-free DREAM Act, Republicans are trying to create one of their patented new levels of citizenship while pulling a fast one on Latinos and others who care about the fate of immigrants. The problem is, American voters are smarter than they give us credit for — and we know when they’re trying to fool us.
By: Michael B. Keegan, The Huffington Post, March 29, 2012
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