Thursday, June 28, 2012

ACA/SCOTUS Comment Thread

And so, ACA survives for now. I'll be writing about this later today, but figured I might as well leave an open thread for comments for now, if anyone is interested. The decision is here. Have at it -- I'll be back here later.

51 comments:

  1. Striking down part of the Medicaid expansion will ensure that the saga becomes a dragged-out 50 state fight, but that seemed destined from the beginning.

    I'm very surprised, but this isn't an unreasonable decision - although I think the Commerce Clause decision is incorrect, I've been scanning through it and it seems respectfully done.

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  2. My 17 year old son has severe autism. For the first time since he was diagnosed, we will be able to purchase health insurance for him. Real consequences for real people.

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  3. Tybalt: are you thinking (like I am) that the commerce clause bit is wrong because there's a perfectly nice Article I, Section 8 line about taxes, as well as that 16th Amendment thing?

    Seriously, Roberts looks like he's actually read the Constitution!

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  4. The bill was clearly Constitutional, and it's astonishing that a supposed moderate like Justice Kennedy was interested in striking it down in its entirety. Now thanks to Chief Justice Roberts health care policy will be decided where it should be: at the ballot box and in Congress.

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  5. Well, I'll just have to say ... I'll be damned. It turned out I was wrong on every particular, with the mandate and the insurance provisions surviving and the Medicaid expansion, of all things, being partially struck down (I understand as of now that the expansion can go forward but the government must allow states to opt out). Oh well, that keeps me from getting smug!

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  6. I'm fine with this ruling (and it's growing on me), as I really dont have a problem with the mandate, per se. What I was nervous about was
    this ruling being expanded by future Congresses and upheld by future courts, which would have allowed Congress to force people to do all
    sorts of things, at the penalty of whatever Congress says is "necessary and proper" to enforce. Consider the economic beneifts of
    marriage: could congress mandate that all individuals be married in order to receive their Obamacare subsidies? Could Congress force
    people to have children, because future workers are "necessary" to pay taxes in order to support SS and Medicare, thus compelling their birth is "proper"? (I love your blog, but relistened to the oral arguments again yesterday and still believe that you were far too glib and dismissive towards the so-called "broccoli" scenarios. Had the ACA been legal under the commerce clause, Congress could compel many more behaviors than just purchasing insurance. Justice Breyer raised the question of vaccines and innoculations, which would have been the next logical step, and then healthy eating is only a small step from there.)

    It seems to me that by forcing Congress to say "we're going to tax the unmarried" places a MAJOR political constraint on its ability to
    mandate beneficial, but nevertheless statist, policies.

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    1. Congress already taxes the unmarried; married people and people with children get preferential tax treatment, meaning that being unmarried requires you to pay a "Singles" tax, in effect. But, no one gets thrown into jail for being single, just like no one is going to get thrown into jail for failing to have health insurance.

      The reason why all of these arguments over the ACA is that it is a widely accepted fact at this point that congress has the constitutional power to compel or reward behaviors through the use of taxes and credits. No one looks at say, homeowner tax credits, and then worries that congress is going to force people to buy houses.

      You can think that these sorts of penalties and rewards are wrong on their face, but nothing about passing one over another implies that congress will run away with power.

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    2. To Paraphrase justice Scalia, the constitution doesn't prevent every conceivable evil, congress will always have the authority to do some pretty despicable things, but that's what outrage in the political system is for, it's not incumbent on the judiciary to interpret the constitution to prohibit the political malidy

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    3. Writer -

      When you're sliding down a slippery slope, it really is superfluous to grease the runners.

      JzB

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  7. ACA survives for now

    For now???

    For good.

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  8. Hooray! No seriously it does remind me of JB's plumline post a few months back aptly calling guessing what SCOTUS was going to do is a "sucker's game". And it really is! Even if you guessed correctly that it would be upheld, how many picked Roberts siding with the liberals and not Kennedy, or relying on the argument that the mandate was simply a tax? I doubt very many experts from any background picked that argument and this line up. I know that there is a whole bunch of other stuff in there about medicaid and other stuff but it would take a legal scholar or veteran attorney to explain everything else in the decision or what the arguments against it were, and I am certainly not one of those. Anyway I am noticing an interesting split in the reaction, liberal's generally are pointing to all the people who will be able to get access to health care and the millions who won't be thrown off their health plans tomorrow if the court had struck it down, that is they are talking about how this ruling will profoundly and beneficially impact millions upon millions of American's lives. Most conservatives in punditworld and blogland are worried/terrified about broccoli tyranny and/or talking about how this is bad for Obama. Which I think is an interesting comment on the two different realities in our politics these days.

    Oh and someone let Jennifer Rubin and George Will know that their government mandated ration cards for the monthly quota of organic fair trade arugula grown in a women's rights cooperative outside of Spokane WA they has to buy will be arriving via mail in four to six weeks.

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    1. There's no ration cards, longwalk. They're forced to buy arugula in unlimited amounts. :-)

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    2. Jeff -

      C'mon, man, that was brilliant. Don't mess with it.

      JzB

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  9. Can I just quote Justice Roberts here?

    "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."

    Isn't that what he said he would do during his confirmation hearings?

    Crazy, I know, especially considering some of the other rulings he's participated in.

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  10. Writer,

    Under the commerce clause, I would argue that Congress probably could do some of those things that you so rightly fear. What I don't see is how a Congress could possibly be elected that would enact those things, or how a president could be elected who wouldn't veto a bill that attempted to enact those things. Show me a poll that has 5% support for mandating marriage, mandating birth, or whatever else you are terrified of.

    There are enough real problems in the world to be freaking out about things that would never happen in a million years.

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    1. Our Constitution was intended to limit government power -- the fact that, in some cases, it no longer does, THAT is the problem being illustrated here. Mandated marriage and childrearing are obviously not going to ever happen, but the fact that they are allowable under current interpretations of the Constitution tells us how far we’ve come.

      I also wouldn't underestimate the willingness of our elected officials to vote away our most fundamental freedoms. When Scott Brown was running for Senate in 2010, even some of my fellow libertarians thought I was nuts when I told them that he wanted to grant the military powers to imprison American citizens indefinitely without trial. Well guess what? That especially nutzoid part of the neocon wish list was recently made law by the passage and signing of the NDAA.

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    2. You're horrified, because you're a man.

      My uterus has been overly litigated for quite a while now. Mandated trans-vaginal ultrasounds before a legal medical procedure, anyone?

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  11. I think I was the only one to predict ACA being upheld. . .

    But I'd not have pegged Roberts as the culprit; I thought it would be Kennedy.

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  12. Note by the way that the so-called "Brocolli Tyranny" argument is now controlling precedent on the Commerce Clause.

    see e.g. pg 25 "Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables."

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    1. "broccoli" appears 12 times in the dissent, according to a friend of mine.

      You can't make this up (at least, I don't think she did, and I know I saw it at least 4 times)

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    2. A quick Adobe Reader search confirms your friend.

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    3. Well, technically only 4 "broccoli" appearances actually made their way into the dissent, although 3 more are in Roberts' rejection of the Commerce Clause argument for the mandate. The other references are all in Ginsburg's concurring opinion rejecting Roberts' "constraint on Congress' commerce power." So Broccoli Tyranny beat Broccoli Freedom 7-5.

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    4. That explains why I saw it the four times (I can't believe that I had that accurate a memory...must've been a lucky guess): it only stuck out at me in Scalia's dissent (you can tell the parts written by Scalia from those written by Kennedy...Scalia is referring to 200 year old dictionaries!), and, to be perfectly honest, I didn't do more than skim Ginsburg's opinion VERY lightly, focusing much more on Roberts, Scalia & Thomas.

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  13. This piece from the liberal Urban Institute is making the rounds, talking about the pluses and minuses of the new, four-tier American health care system. The fourth tier, instituted by the ACA, is the heavily-state subsidized exchanges (the other three are Medicare, Medicaid and employer insurance). Penalties are designed to keep employers from dumping their employees on the heavily-subsidized exchanges.

    The CBO models assume said penalties will be effective, and that dumping will be minimal. The penalty to your employer (if 50+ employees) of dumping you is $2,000 - the cost to your employer of sponsoring your health insurance is $12,000/annually. When the consulting firm McKinsey did a survey of thousands of American employers, they found that 30-50% planned to dump all of their employees on the exchanges in 2014, a number far higher and requiring far greater subsidy cost than the CBO forecast.

    To recap: spend $2 grand to save $12. Will vanishingly few employers do so, or upwards of 50%?

    Interesting times ahead.

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    1. Oops - trying to be too clever - obviously, spend $2 grand to save $12 grand.

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    2. Wouldn't that save $10,000?

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    3. @CSH: I'm actually very much with Roberts on this one. I'm less convinced that perpetuating the insurance system for health care is a good idea than I am convinced that the ACA was perfectly constitutional. I consider today a victory for some actual legal integrity in the Court (in Roberts). Of course, reading the 4 who thought it was perfectly fine under the commerce clause, and the 4 who think that we need to go back to smashing rocks together to make fire, I grow worried that today was a 1-8 loss for being a nation of laws. The right side won, but only one of the 5 did so for the right reason (and the dissent pointedly shrugs off the "it's a tax" thing because it simply KILLS their argument.)

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    4. In many environments, where employers still have to compete for employees, your worries are most likely groundless. Employers will continue to cover some or all of the cost of employee health insurance, whether that means continuing with the group plans they already have, or, finding more affordable options in the new exchanges. (In fact, some small employers who currently can't qualify for group rates, may be able to, finally, be able offer their employees coverage, through the exchanges, that they couldn't afford before.) In those areas of employment where benefits aren't seen as a necessary competitive element in attracting employees, workers are most likely NOT receiving health care coverage from their employers, or, are receiving coverage that is entirely inadequate. For them, the exchanges will provide a new opportunity to purchase affordable coverage.

      I am a small business owner in a state with only one individual insurance provider -- that hasn't been accepting new individual customers for several years -- and, until very recently, as a response to new and upcoming reforms, no group options for businesses as small as ours. We immediately signed our employees up for this new, state-sponsored plan (we pay the premiums in full). Prior to this the only other option was a state program with income limits that made it useless for our employees. The new plan isn't perfect -- we are hoping that when the exchanges are up and running there will be more than one affordable option for us and our employees.

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    5. Thanks for the comments guys (Guise), I realize my own comment is a bit inappropriate in seeming like sour grapes on this triumphant day. Maybe I don't pay enough attention, or maybe the weasly Republicans don't illustrate the $2,000 absurdity until the Supremes back them in a corner, but I am in shock at that provision.

      Yes, WiseGuise, that's a $10,000 savings, which your employer, every employer, should bank. The $2,000 penalty is absurd, its a token, another indication of the epic quisling deference of the professional left toward big corporate interests. How in the world can you penalize an entity for a behavior you wish to prevent, when the very penalty is profitable? Oh, lobbyists, I remember.

      Even as a somewhat conservativish fellow, I would in fact greatly prefer socialized medicine to the internal self-destructiveness of the ACA, which in attempting to please everyone will end up pleasing no one. Indeed, forget socialized medicine, I'd take Marxist medicine over the ACA.

      At least the Marxists are willing to tax corporations enough to prevent behaviors that will undermine critical legislation.

      Or did they sell their souls too?

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    6. CSH, you seem to be having a rough day.

      I used to favor a simple, single-payer plan, but then it struck me that George Bush could get reelected and ruin it for everyone, either on purpose or by accident. Maybe this one will have more flexibility.

      Anonymous @ 11:36
      Could I ask what state that is? They have one insurance provider and it decided not to take new customers?

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    7. CSH,

      I quite agree with your point about the ridiculous nature of the dumping penalty. Having said that, I'm not sure that my agreement is one you want, as I just got thoroughly spanked by Jon Roberts (and he isn't even my type).

      On the other hand, lets try not to rush off the deep end, here. The ACA institutes a process, one that is at the very beginning of its evolution. It's a necessary process, one that cannot be put off indefinitely. But you are right, it won't be easy. But Social Security hasn't been easy, nor has Medicare, nor has the modern security state. For all of their problems, few people want to dump any of them entirely, and few think they are more hurtful than good (okay, I'll give the left wing and the libertarians an exception on the security state).

      I agree that single payer would have been better. But it wasn't in the cards. I agree that it was in the nature of a compromise that pleased absolutely no one -- the public dislikes ACA. But as this week's polls show, the public dislikes the status quo ante just as badly and just as passionately. I agree that the Democrats are a bunch of spineless oozes and the Republicans are a bunch of rage-crazed huckleberries. But they (the Democrats at least, and the Republicans too to pair Mitt with his bastard child) actually managed to get something done -- which is more than their ancestors of revered memory were able to accomplish. Maybe the accomplishment is dangerous, and maybe it will be the progenitor of a million quarrels. But in whatever world there is to come, Nancy Pelosi will be able to face Sam Rayburn and Tom Foley and Ted Kennedy and even Lyndon Johnson and say, "Complain all you want gentlemen, but at the end of the day even God himself can't take this from me -- I did and you didn't."

      What she did was create a beginning. Maybe it is a difficult one, but we couldn't stay where we were.

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    8. Scott, again I feel bad because this rant is ill-timed, though I blame it on my being a passive second-hand consumer of information, and the lords of the Republican spinzone waiting until now to share it. But yeah, the non-penalty for dumping is a scary thing.

      Cause - according to McKinsey - (which, okay, that firm did wrap itself in shame by indulging Enron, but they're famous enough that if they poll 3,000 employers the responses are probably reliable), folks will get dumped at far greater rates than the CBO ever forecasted. And you don't need McKinsey. You just need your lyin' eyes.

      Dumped, further, on state budget rolls. Those budgets are already badly overstretched, firing police and teachers left, right and center, with a federal government that is showing an historic unwillingness to come to their aid.

      Its funny, but when Anastasios, Jeff and I argue about the relative quality of care in an ACA-world, the "worst-case scenario" is that all Americans will normalize at an NHS/OHIP type level, not terrible, better than what the uninsured have but perhaps worse than the Cadillac corporate plans many Americans enjoy.

      If McKinsey's dumping forecast comes to pass, we could all easily be looking at the NHS in five or so years as the promised land of health care extravagance.

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    9. Anastasios, I didn't see your comment, I agree with the broad strokes of your assessment and also congratulate Obama and the Dems on a tremendous victory today. To your point about a journey:

      The McKinsey survey found that 30-50% (or more, those were the ones that admitted it) of large employers were going to dump as soon as the exchanges came on line, beginning of 2014. 18 months from now. So I agree with all your comments about a journey and the historic nature, etc, but 18 months is an incredibly short time to fix an incredibly glaring problem. How does it get addressed in such a short time?

      One other thing: once you've been dumped, your BigCo will never ever take your hc back. For the same reason big companies never rehire employees, once your hc has been dumped on the exchange, and those profits taken to the bottom line, Congress/the WH would have to massively twist those companies' arms to cough up those profits. The beltway players are barely willing to lay a hand on those companies in any circumstances at all!

      Sorry, again, for the ill-timing of these rants. Scott and Anastasios are right - I am full-on freaked out about this.

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    10. ......the epic quisling deference of the professional left toward big corporate interests.

      CSH, it's not the left that's the epic quislings that bow to the big corporate interests. For that we have Democrats.

      Thanks for the link to the Urban Institute report -- I find the "four tranche" analysis very helpful. As to the problem it's pointing to, I don't know the ultimate solution, but I guess I'm basically with Anastasios in seeing this as a beginning. There's no area of policy where we know how everything's going to shake out and how all existing or future problems will ultimately be solved. These will all be subjects of future political debate. The important thing about ACA, to me, is that it reframes those debates so they're about how to make a system of universal coverage work, not whether one should even exist. An America arguing about how to solve ACA's problems is a better America than the one where people wait all night for a free clinic in a parking lot.

      Also, PS and FWIW, I was wrong about the 6-3. Misjudged Kennedy. I did think that Roberts would be moved by the institutional imperatives of SCOTUS to vote to uphold, although I thought he'd do this only as a backup to Kennedy, not on his own.

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    11. @CSH, As a modest consumer of healthcare, I'm not sure why you are so frightened about companies dumping their employees onto exchanges. It won't be like dumping them into the current open market which is incredibly expensive. People will be able to shop for policies that fit their budgets. If your employer was paying $12K a year, maybe they'll give part of that to you so you can shop for a plan. At least it gets you to look at prices, which is a good exercise in learning what health care or health insurance can actually cost.

      Frankly, the whole "it's covered" part of employer health insurance leads to overconsumption. We should have some way to get people to have more skin in the game.

      Link to Romneycare critique and MASS exchange website.

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  14. Big winner: Justice Roberts and the court:

    Little winner: Mitt. Just fired up the base.

    Big loser: Broccoli. Scalia.

    Little loser: obama: the base isn't going to be so excited as if the 12 election was about health care.

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    1. Biggest loser: anyone who tries to spin today's developments as anything but an unvarnished, glorious victory for President Obama.

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    2. Except that Romney is still talking about repealing it's being despite being constitutional. That's something to get excited about.

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    3. Obama now looks like a winner, very important in this death-of-a-salesmanesque country.

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    4. Biggest winner: The millions of people who will now have access to care. It's not just about politics.

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  15. Whew! In the real world, a lot of people just dodged a health care bullet.

    Politically, I'm not sure it will count that much, either way. Can the GOP base really be pumped up more than it already is? Is anyone who *wasn't* foaming at the mouth about Obama going to suddenly start foaming now?

    It might marginally help Obama that he can now say he actually accomplished Something Big, rather than merely trying to do so. But the suckiness level of the economy will still likely be the main factor this fall.

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    1. I understand that the fully committed won't change their minds. Yet there must be a host of semi-detached voters out there who have heard serious people repeatedly and casually dismiss ACA as an unconstitutional boondoggle. This outcome must be startling to them, and maybe it will get them thinking.

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    2. After a lifetime mostly of self-employment -and may I say, partly in reply to CSH above, selling words and feathers, two very dicey, unpredictable marketplaces filled with persons having very different assessments of the value of any particular product on any day -- I now get to be a service worker in a large metropolitan grocery store. We have a very small lunchroom filled with folks of all ages, races and dispositions. There's a lot more semi-detached voters who know that they and their extended families are dealing with all sorts of expensive and scary medical problems, and that the American medical system needs all the help it can get from any source.

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  17. Shouldn't the Democrats embrace the idea that the Mandate was struck down because it is not a mandate but rather a tax?

    Here are the Democratic Talking Points:

    - The Supreme Court ruled the Mandate is actually a Free-Rider Tax. A tax that no responsible people (people who have insurance) will pay. Only free-riders who expect the public will pick up the tab after they get sick will pay.

    - It is not a tax increase. It is a tax on the irresponsible, and if the tax is not big enough we will raise it. If free-riders continue to game the system we will raise the tax.

    - No one has to buy health insurance. There is no Mandate. But the days of passing on the tab are over.

    The Mandate is unpopular. The Court says we do not have a Mandate. Taxes are unpopular, but is a tax only on scofflaws unpopular? Embrace the Court! Embrace their correction!

    The beauty of this is that it reflects the personal responsibility rhetoric Mitt Romney used in MA to sell his plan. The Democrats can use those quotes to tie Obamacare more closely to Romney. Let Romney tell us free-riders should be able to game the system.

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    1. They can call it a free-rider tax or free-rider penalty, but they better start soon. The GOP spin machine is already calling it a huge tax on the middle class.

      BTW, it's great that this will be an issue in the election. It was big in 2008, it should be as big in 2012 now.

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    2. +1
      I hope this counter-offensive by Democratic leaders comes to fruition. They can also pair it with a desire to refocus on jobs on the economy, i.e. "it's bizarre that Mr. Romney has worked himself into a lather continuing to defend the efforts of some to free ride and game the system. He used to support personal responsibility before he was in hock to the Republican Party fully. And now he'd prefer to declare allegiance to Republican extremists than embrace a common sense health-care solution and focus on reviving the economy."

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    3. +2. But I see no sign the Dems are thinking this way. Are we bad at politics or are they dense?

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  18. Who am I and who cares, etc, etc, but I will note that earlier in the week in a comment, I asked Jonathan and anyone else if they'd heard any good analysis of what the fate of the Medicaid expansion challenge would be. No one responded. And I suppose that makes sense because it seems that *everyone*, from legal experts to conventional-wisdom-spouting TV commentators, was overlooking this aspect of the ACA challenge. And yet it turned out to be one of the key holdings, narrowly-drawn yes, but by a wide margin, 7-2!

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    1. PF, I suppose the difference is that the Medicaid extension is not what the right had gone into hysterics about, and it was not something that looked like it might get the whole ACA struck down. In retrospect, that might have been a careless assumption, but I guess it's why there was so much less handicapping of the Medicaid challenge.

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