As I understand it, the new liberal position on the Supreme Court and health care is going to be: the Roberts Court is unscrupulous, unprincipled, and nakedly partisan, and are going after the ACA for purely partisan reasons. So if only we passed single-payer, everything would be fine.
No, it doesn't make sense to me, either.
Well, the idea is that single payer is perfectly constitutional. You take taxes and spend it. If that's unconstitutional, everything is.
ReplyDeleteOf course, you must wonder where the votes for single payer would come from, since the ACA barely passed with large Dem majorities. But I can understand their logic.
What I do not understand is why people are so pessimistic when most legal scholars predicted an upholding. They claim legal scholars did not predict Citizens United, even though they easily did.
I understand that to be the case as well, Matt. Single payer would exist under the taxing power, which is unquestionably constitutional (you take a tax and you give a service). Indeed, many of the commentators about the SC hearings have made the point that the challenger's position has the (ironic) effect of ruling out commerce-clause enabled coercion of activity as a solution to national problems, but implicitly (and in some cases explicitly) acknowledges the constitutional standing of straight-forward "tax and redistribute" government programs. David Frum spoke to that today, I believe.
DeleteThere is another issue the liberal position is getting at, as well. In this I defer to Ezra Klein, who briefly discussed it over in his WonkBlog some time ago. As single payer exists under the taxing power it is a budget issue. Therefore major steps toward single payer (primarily dramatic expansion of the eligibility for Medicare and possibly Medicaid) can be accomplished through the use of reconciliation. This not only obviates the danger of the SC, but also circumvents the filibuster.
Finally there is the policy issue, about which I am really at sea. What is happening is many liberals (and policy experts who are not liberals) are saying that absent a mandate, the most popular provisions of ACA (the end of underwriting and guaranteed issue) cannot be sustained. Some policy experts have put forth various other mechanisms (enrollment schemes, refundable tax credits, and other things) that they claim would, if instituted correctly, have the same effect, but many (perhaps most?) healthcare experts are very skeptical about the viability of those systems, which are Rube-Goldbergesque to the point of making the existing ACA (let's face it, no model of clarity) positively transparent. Instead they argue that, if the public is really serious about wanting those provisions, the only constitutional and practically viable option would be some sort of single-payer scheme.
Personally, I think we are just going to have to wait for a shift in public opinion. Although I support ACA, I must admit that the vast majority of the public does not -- and some 65% to 75% of the public despises the mandate. That is, I think, a mistake, but it is not my place to be a Sacred Lawgiver and tell the public what to think and what to support. Eventually, and very sadly, the current system will prove unsustainable (I think there is really almost no argument about that point among health care experts) and, should the mandate fall (which I think it will, unfortunately) the body politic will find that it has no choice other than single payer, the other options being either unworkable or ruled out by law. But, sad as it is to say, there is going to be a lot of suffering and sadness between now and that moment.
the body politic will find that it has no choice other than single payer
DeleteWell, single-payer won't be the only option. There's always endless suffering and sadness!
Seriously though, if you thought back in March of 2010 that the public would eventually come to like the law, there's really no reason to retract that prediction now. Hardly any provisions of the law have come into effect yet, which explains why voters' impressions of ACA are virtually the same now as they were then. And the Democrats' public defense of the law (such as it is) has been too little, too late.
Bottom line: it may take many years of Americans living and working under the ACA before people can generate truly informed opinions as to whether they approve of the law.
It's simple, and may be wrong, or anyway premature, but I don't see why it doesn't "make sense." Indeed, it's the degree to which the theory simply "makes sense" that it may seem suspicious. Otherwise, to say that the SC is "nakedly partisan" doesn't imply that the SC is politically suicidal, and would sacrifice the last shred of its credibility in a future attack on a passed single-payer system. Why shouldn't supporters of ACA or of a more classically liberal health care solution not want to put a possibly political court on notice that proof of its politicization will not be politically (and institutionally) costless?
ReplyDeleteSome observers have brought up Bush v Gore in this context, but in one key respect SC nullification of ACA would be the opposite. Bush v Gore was rationalized as a move against chaos. Nullification of ACA would threaten chaos - a fundamental confrontation with the notion of "constitutional principle" alongside the suspicion that it's a fiction whose main purpose may be protection of privilege.
I'm in the club, but they didn't tell me. Single payer is a good thing for a future Dem supermajority to take up, but I probably won't live to see it. Now, if you just took out the individual mandate and replaced it with a public option, I'd go for it.
ReplyDeleteI get your point - if Roberts et al. are acting politically, why would single-payer be any more likely to survive than ACA? - but the "new liberal position" you identify actually seems legally sound to me. There is no mandate problem in a single-payer scheme. And, it would be exceedingly difficult for the SC to overturn a single-payer system without also abolishing Medicare - so it's unlikely to happen. (as unlikely, I suppose, as the Dems ever having enough votes in Congress to pass single-payer in the first place....)
ReplyDeleteA more reasonable position for disgruntled liberals to take in the event ACA is struck down (and let's not put the cart before the horse - check out SCOTUSblog for a summary of today's more mandate-friendly proceedings) is that the law would have passed Constitutional muster if only it included a public option! Forcing people to purchase government-sponsored insurance is legally indistinguishable from funding the insurance through general tax revenue. On the other hand, forcing people to buy private insurance raises commerce clause issues that aren't there in the context of a traditional tax-and-spend scheme.
But Kennedy said during oral arguments that if the program was single payer none of the constitutional arguments would apply. So why would the courts be an obstacle to single-payer? Sure the justices love to play Calvinball sometimes but I don't know what rationale they could come up with, unless they want to chuck out the whole New Deal.
ReplyDeleteGetting the congressional votes and public opinion behind single-payer, at least in the short term, that's another story.
I'm going to continue to disagree with all of you. Everything I'm hearing here -- "I don't know what rationale they could come up with, unless they want to chuck out the whole New Deal" -- is exactly what people were saying about ACA until, oh, about yesterday. Except that they can, and perhaps will, come up with such a rationale.
ReplyDeleteLook, either you believe that the whole "inactivity" thing is pure hokum, or you don't. If you think it's legit, then you don't think that the Court is unprincipled and partisan (and that throwing out the mandate/ACA without touching the rest of government) is correct), and thus what I said in the post doesn't apply to you. But if you think it's hokum, then it really doesn't require a whole lot of imagination to come up with some other hokum that could make a single-payer system unconstitutional while leaving the New Deal and Great Society alone.
Chuckle. Well, to quote a great political commentator named Jonathan Bernstein, we should all probably just calm down, anyway, and see what happens. For one thing, as Andrew points out, SCOTUSBLOG seems to think that things may be looking up for the mandate, as the Justices spent this morning tacitly, and sometimes explicitly, expressing dismay at the possible results of striking down the mandate (Toobin thinks it's definitely gone, and I am very pessimistic, but both of us are somewhat excitable and prone to mood swings).
DeleteThen again, if the mandate falls, the Democrats have to either 1) abandon coming to grips with health care, or 2) come up with another approach. Given Anthony Kennedy's comments, single-payer would seem to be the most promising. Of course, the best and most effective approach to this problem would be to concentrate on re-electing President Obama and then getting another Democrat (Clinton or Cuomo or whomever) into office in 2016. By 2020 (and probably before then) the Democrats will have been able to alter the make-up of the court to the point that these concerns will no longer be applicable, and they can go from there.
But, if it's all merely political hokum, it could still "make sense" to believe that rejection of the next law would be politically untenable for this or some future court - would be the bridge too far for making up "principles" from scratch and applying them arbitrarily.
Delete(Still leaving aside the extent to which your description of "the new liberal position" reduces, apparently intentionally, to caricature.)
Your logic doesn't hold, though. A person could think the mandate logic is hokum AND think that the Court is partisan and unprincipled. For example, me. I've never liked Wickard v Fillburn, and the mandate is the extension of that to another level. However, I also think that the modern Court is mostly composed of partisan/ideological hacks, who make up arguments to suit their policy wishes in many cases. However, I don't think they're legally illiterate. So, it makes perfect sense to me that they could reject ACA for unexpressed ideological reasons but use a valid legal argument as their expressed reason.
DeleteThink about federalism and states rights. Modern-day conservatives LOVE states rights....except for when it comes to gay marriage, where it's fascist. Liberals love states rights under the Bush Admin (when the EPA struck down tougher CA regulations), but then hate states rights for abortion decisions or a number of other matters.
Legal arguments are often crafted to suit ideological desires. Liberals didn't want the individual mandate; they had to accept it as part of the best option thought to be available, and now are defending it as constitutional. Conservatives thought the individual mandate was a perfectly good idea when it was THEIR idea, but after a Kenyan Muslim Socialist ran with their idea, it's an intrusion on liberty.
But if you think it's hokum, then it really doesn't require a whole lot of imagination to come up with some other hokum that could make a single-payer system unconstitutional while leaving the New Deal and Great Society alone.
DeleteI guess I lack imagination, then..... not like those crazy kids over in the Federalist Society! You're no doubt right that some of them are working up this very hokum even as we speak.
And yet I cannot imagine it. Single-payer would essentially be Medicare for all. It might even be called "Medicare for All." So what's the legal trickery that rules it out of the Constitution while keeping in Medicare? A newly discovered intent on the Framers' part that the sum of the minimum age for senators plus the minimum age for presidents equals the minimum age at which the taxing power can be used to cover citizens' health care? Somebody help me out here. What's the next "activity / inactivity" canard?
What the Federalist Society and its ilk actually want is a new legal regime that IS prepared to toss out the New Deal and restore the so-called pre-1935 "Constitution in Exile." Short of the Democratic Party disappearing, they're not going to get that. So it could be that they really are just in the process of checkmating themselves. Ideologues do this sometimes. Overturning the mandate might be the right-wing judicial equivalent of invading Russia: the seemingly logical next move in the grand strategy, but one that actually ensures your defeat.
The court is partisan no matter what. I'm not sure it's possible not to be partisan in some manner. So adopting that argument is just a partisan argument in and of itself. Just make an argument based on the merits, which is that the constitution plainly says congress can regulate interstate commerce and health insurance is plainly interstate commerce. Once you stipulate that you're just arguing about differences of degree, which isn't the line between liberty and tyranny that some want to make it out to be.
ReplyDeleteIt seems to have become common for liberals to think of conservatives as corporate puppets who don't really mean what they say. But the greater threat for liberals in this case isn't that conservatives are disingenuous, but that they really are seeking new precedent that could be used to unwind other federal regulations and welfare programs. The legal masterminds behind the Constitutional challenge to the ACA would like to do just that.
ReplyDeleteYes, but that too isn't who I'm speaking to with this post. It's rational to believe that the Court is out to return the Constitution to what it was in 1920. But if you believe that, you're not going to believe that Medicare (or a hypothetical single-payer) survives, either. That's a liberal position that makes sense to me -- although whether it's right or wrong I wouldn't want to guess.
DeleteI suspect the constitutional defects in Obamacare could most efficiently be cured by a short piece of legislation adding two justices to the Supreme Court.
ReplyDelete