Sunday, June 24, 2012

Sunday Question for Everybody

I'm sticking with the obvious question, and tossing it open for everyone: what is the Supreme Court going to do on health care?
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Posted by Jonathan Bernstein at 1:40 PM
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30 comments:

  1. Matt DJune 24, 2012 at 2:16 PM

    I think they will uphold the mandate 6-3. Oral argument was nowhere near as damaging to the government's side as people think. Kennedy and Roberts showed some sympathy for the government's case. Yes, they also showed some sympathy for the other side, but judges play devil's advocate all the time.

    I predicted 6-3 at the beginning, and nothing at the oral arguments made that impossible. Everyone seems to bemoan Scalia's flip-flop, but few people predicted Scalia voting for it even before that.

    So if the worries are based solely on oral argument, that's kind of flimsy. 6-3 to uphold: the liberal bloc, Kennedy, and Roberts, with Roberts writing the opinion.

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    1. RobJune 24, 2012 at 3:31 PM

      Why do you think Roberts and not Kennedy will write the (figurative) 6-3 opinion upholding?

      Delete
    2. Scott MonjeJune 24, 2012 at 6:02 PM

      When the chief justice votes with the majority, he has the right to decide who writes the decision. If he assigns it to himself, then presumably he gets to control the various nuances.

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  2. Ron E.June 24, 2012 at 3:23 PM

    I predict a 5-4 (Kennedy, Roberts, Alito, Thomas, Scalia) decision to throw out the individual mandate as unconstitutional based on the expected absurd logic about inactivity and broccoli but a different 5-4 majority (Kennedy, Ginbsurg, Kagan, Sotomayer, Breyer) to uphold the rest of the law including the tax penalty for people who don't have insurance and the Medicaid expansion. A court that has made such terrible recent decisions as Bush v. Gore and Citizens United is not going to totally pass up the chance to to meddle in regulatory policy. If they were going to uphold the whole law, we would have had that decision by now.

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    1. Scott MonjeJune 24, 2012 at 6:04 PM

      But the tax penalty for people who don't have insurance is what makes it a mandate.

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    2. swainJune 24, 2012 at 8:48 PM

      This would be an amusing outcome. I hope your right. The court would put their foot down and declare that Congress can NOT throw you in jail for not buying health insurance.

      Then they read the statute, realize that outcome is just a somewhat unspectacular tax penalty. And so they strike down the "mandate" but change nothing in the law.

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    3. UnknownJune 24, 2012 at 11:18 PM

      Either Matt D. or Scott E., I think, has it correct. All aspects of the ACA will effectively be upheld, even if the mandate is technically stricken.

      Much was made earlier this week of (1) Scalia's new (text?)book, which contains an intro stating that Wickard was incorrectly decided, and (2) some speech Ginsberg gave, in which, while discussing severability, she stated something about chopping off the head of a broccoli. The commentariat concluded that these two developments bode poorly for the prospects of the ACA.

      I disagree. Re overturning Wickard: I can not imagine Scalia would find four other Justices to join him in that endeavor; it sounds like something he would rather express in a dissenting opinion. Re Ginsberg's comments: they had the tone of someone bemused/satisfied with the outcome, not someone embittered.

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  3. longwalkdownlyndaleJune 24, 2012 at 4:10 PM

    Can I be the one person who says I honestly have no clue? I could see any number of outcomes and totally possible.

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  4. GeorgeConkJune 24, 2012 at 4:37 PM

    There is an election in five months. If the five Republican judges are conservative jurists as they often proclaim they will abide the election results. I predict the mandate stands by 7 - 2 vote, only Scalia and Thomas dissenting.

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  5. beckya57June 24, 2012 at 4:50 PM

    I'm with Ron E. The decision to throw out the mandate (which is politically unpopular) while keeping the rest of law (which has many popular provisions) allows the 5 right-wingers to have their cake and eat it too. In particular it allows Kennedy to pat himself on the back for crafting a "compromise," which will appeal to his (reportedly massive) ego. In reality, of course, throwing out the mandate is likely to wreck much of the law, due to the death spiral problem, which is the GOP's and their corporate paymasters' ultimate goal, and anyone who thinks the 5 right-wingers aren't part of that group hasn't been paying attention (Bush v. Gore and CU are the obvious examples, but there are many others). But by doing it this way (rather than gutting the entire law), they get to claim that they're being reasonable, and to avoid public accountability since the public doesn't understand why the mandate is necessary. It's the perfect solution for them.

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  6. TapirBoy1June 24, 2012 at 4:56 PM

    Also agree with Ron E. SCOTUS will invalidate the individual mandate 5-4, but sever it from the rest of the Act and keep everything else 5-4.

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  7. AnastasiosJune 24, 2012 at 5:19 PM

    I predict a 90% chance the mandate is struck. I give the insurance provisions a 70% chance of being struck. I think the Medicaid expansion has about a 40% chance of being struck. The result will be a lot of Sturm und Drang in the short term, with nothing much happening in the mid term and the whole can of worms getting reopened in the long term. I will go out on a limb and say contra Bernstein that the GOP, reacting to escalating problems, will reopen the issue as the Dems will be thoroughly disgusted by the whole morass. A President Romney might make the attempt with a favorable Congress. If he does not want to negotiate with the Dems (and he won't), then he might make some minor changes using reconciliation. If he wants to do something about pre-existing conditions that will mean subsidies of one kind or another, and that will explode the deficit, but no one may care by that point.

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  8. Robert John BurkeJune 24, 2012 at 5:26 PM

    My main problem with giving an opinion on this question is-- well, I'm not a lawyer or a scholar. The prevailing opinion among lawyers and scholars I have read seems to be that the law is obviously Constitutional, but they're going to throw it out (at least the mandate) anyway. I have no reason to believe that's not true.

    I guess I'll predict a 5-4 vote to reject the mandate, since everything the Court does seems to be along partisan lines these days. What I don't know, and have no way of knowing, is how much of a chance there is that the Court throws a curveball in either direction. Murphy's Law suggests if there is one, it will be them striking the whole law and not Kennedy deciding, in inspiring movie-fashion, to save it. But Murphy wasn't even a good choice for NL MVP in 1982-83; why should I believe his law?

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  9. JazzbumpaJune 24, 2012 at 6:37 PM

    The Republicans have 1) a clear agenda of making Obama fail in every way possible, and 2) a clear majority on this court. Constitutionality and legal nuance are utterly beside the point. Bush v Gore and C U proved that.

    They will strike down the mandate. Little else matters, since without it, the program fails.

    The tortured logic of the majority opinion will be agonizingly painful for anyone with the stomach to read it.

    Alas,
    JzB

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  10. CSHJune 24, 2012 at 6:47 PM

    There's a perception that Republican paymasters hate Obamacare; that perception may originate from Michael Scott-type dittohead middle management losers calling the Rush Limbaugh show and expressing their displeasure. Those dittoheads aren't the paymasters; the paymasters are the big dogs at Dunder Mifflin corporate (or the Carl Icahns that own the company). How do those folks really feel about the ACA?

    I think that's hard to tell. If the paymasters believe that the US govt can hold down hc costs, even if that means denying some perks to the Michael Scott-types, I believe those (actual) paymasters will support the ACA, since it would represent a roadmap toward getting ballooning HC costs off their balance sheets - and if their Michael Scotts get screwed a bit along the way, the paymasters surely won't care.

    However, if those corporate paymasters don't believe government will be able to check the demand for continued world-class care among the braying masses of Michael Scott-types, then the ACA is a road to perdition for corporate titans, as it represents certain tax increases that will dwarf any savings from hc cost relief.

    So how do those paymasters really see government health care? Hard to say. Anastasios, Jeff and I could debate that for days, it seems to me. We may get a hint in the ACA decision tomorrow.

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    1. Gordon DanningJune 24, 2012 at 10:50 PM

      If you believe in the "paymaster" theory of government, then it is impossible for any law to be passed -- certainly not with 60 votes in the Senate -- without their consent, so presumably the "paymasters" are happy with the ACA. After all, surely any paymasters who actually exist have more sway over Senators and Congresspersons than with unelected judges.

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    2. JeffJune 25, 2012 at 2:43 AM

      Wasn't going to weigh in here, but since you mention me specifically, CSH, I'll say that I think the paymasters are basically on board with ACA. There's no reason they should want employees' health care to be their problem, long-term, rather than the government's, and I agree with you that the Michael Scotts of the world are not running this thing. On that basis, I'm with those predicting a 6-3 vote to uphold the whole ACA.

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    3. CSHJune 25, 2012 at 6:29 AM

      I think that's about right, Jeff. If the entire ACA gets struck down this week, its a bit hard to see how the proverbial toothpaste can be put back in the tube; we likely go back for a while to token, marginal debates such as tort reform.

      While the transition to universal insurance will be somewhat painful, because the cost management won't be as advertised, the corporate titan shares that pain (from higher taxes) with little people like us. The plus from getting Michael Scott's hc out of benefits entirely accrues to the company; thus any tax hurt will likely be smaller than the help from getting those costs out of employee benefits.

      Finally, the parts of the ACA that are most obviously costly (no lifetime cap, no pre-existing condition restrictions) are - if I understand correctly - typically features of big corporate health insurance policies. So that negative isn't a particular hurt to the paymaster.

      Yeah - probably a 6-3 uphold. But this is pretty obviously speculation from the cheap seats.

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    4. JeffJune 25, 2012 at 12:11 PM

      On further thought, I would think there's a study somewhere of just what it costs employers to manage employee health benefits. My former employer had an entire building dedicated to its benefits management department, plus scattered offices elsewhere. How much of that is actually paid for with tax breaks? Any of it? Anyway, it's a headache I'd happily be rid of if I were a paymaster. Imagine the new birth of freedom it would give me if I could tell employees unhappy with their health insurance to write to their congressmen.

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  11. Davis X. MachinaJune 24, 2012 at 7:43 PM

    5-4, and the whole thing is stricken.

    Honey Badger writes the majority opinion.

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  12. DavidTJune 24, 2012 at 8:26 PM

    CSH: "We may get a hint in the ACA decision tomorrow."

    Who says it's going to be tomorrow?

    http://www.nytimes.com/2012/06/22/us/politics/new-timing-hinted-on-supreme-court-health-care-ruling.html?_r=1&emc=rss&partner=rss&WT.mc_id=ST-D-E-AD-OB-TXT-S_DS-ROS-0612-NA&WT.mc_ev=click&StyleDigiSub

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  13. AnonymousJune 24, 2012 at 9:13 PM

    Strike down the entire law 5-4 and leave the door open for calling constitutionality of entire safety net and government involvement in any and all sectors of society and economy into question. Big Money far-right has been planning this for years.

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  14. AnonymousJune 24, 2012 at 9:40 PM

    I'm going 6-3 upheld with Roberts and Kennedy siding with the 4 liberals.

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  15. Gordon DanningJune 24, 2012 at 10:57 PM

    Whatever happens will be overblown. The individual mandate is a fine thing, but this ain't Brown v. Bd of Ed, or Miranda, or Mapp v. Ohio, or Lawrence v. Texas, or even Texas v. Johnson.

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  16. CurtisJune 24, 2012 at 11:44 PM

    After reading 20 some replies, I think the first matches my guess the best. I think the second most likely outcome is something that removes the mandate but keeps the penalty in place.

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  17. PFJune 25, 2012 at 11:44 AM

    What is the rationale for waiting until the very last day of the term, or even extending that last date to a later date, for issuing the ACA opinion? Why would they issue on one day as opposed to another? It seems trivial, but for that very reason, it seems perplexing why it not simply issued along with most other decisions for the term.

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  18. AnastasiosJune 25, 2012 at 12:50 PM

    Oh, I don't know that we can trace the probable, or even possible, rulings so easily to paymasters. Things are rarely that simple in such complicated and highly charged situations. That is part of what makes our current political problems so difficult. If it really was just a matter of finding the Republican paymasters or the Democratic interest group bosses and finding out what they will and won't go for then politics and policy making would become relatively simple, if disheartening. But those groups don't really exist -- or rather, they do exist but are not unified and don't have the kind of dictatorial power that is often imputed to them. What we really have here is massive herd behavior, with large groups migrating rapidly toward the position that is advantageous for them, or which seems the most advantageous.

    That seems is important. One aspect of the conspiratorial theory of poltiics that doesn't hold true (there are actually many such aspects that don't hold water, but let's focus on this one) is the idea that the hidden masters are really, really smart and understand their own interests. That is, of course corporate lords should understand that it is better for them to offload the health-care headaches to the government. The problem is that often those hidden masters, in that they exist in any real way are, well, stupid as bricks. They aren't the cool, rational masterminds that calculate all angles and use the irrational passions of the mob for their benefit. They are just as passionate and irrational as Joe the Plumber, and a good deal less handy in a pinch. These are the people that Greenspan, no intellectual slouch himself, supposedly, was counting on to know their own interests and manage the nation's financial system in a prudent and successful manner. These are the sons and daughters of the people who sat safely in elegant suites in Detroit circa 1971, secure in the knowledge that they understood the American market and the Japanese, of all people, were only kidding themselves.

    So, in that the paymasters actually exist, they are as a group as ideologically blinded and mule-stubborn idiotic as any other person screaming about death panels. You can't make a chaotic, foolish, self-destructive world make sense by appealing to some orderly, self-interested reality behind the facade. The facade is shallow, senseless, and mean because the world is, very often, shallow, senseless, and mean.

    So I suspect SCOTUS will overturn the ACA and the "paymasters" will cheer. It will be against their own interest, sure. But that is because they are fundamentally stupid -- or to put it more kindly because their intelligence does not make them wise, and their facility with money does not help them one iota when it comes to finding their rational interest in the intense emotional arenas of modern politics.

    Oh, and stupidity is, of course, not only a conservative trait. Much as I approve of the ACA, I always thought that Obama and his bunch were, to put it mildly, intellectually challenged to attempt such a major piece of social legislation without first gaining control of SCOTUS. I know, I know, this was a conservative initiative, they thought that they would get GOP support, blah, blah, blah. I hope the rock they were hiding under from 1975 to 2008 had indoor toilets, since it obviously wasn't wired for cable.

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    1. CSHJune 25, 2012 at 1:23 PM

      I came back here to follow up on Jeff's comments with a few more of my own, and in the process say I've changed my vote to a 5-4 strikedown of the law, but I'm gonna put my post down here, since, while I don't fully agree with everything you said, Anastasios, your post was one of the all-time most enjoyable reads I've encountered on a blog.

      First, to the extent that the paymasters really do have functioning synapses, I think Jeff's argument makes a lot of sense, at least as far as the priorities of a GE or GM paymaster are concerned. Two issues though, which occurred to me (as always) nearly too late -

      First - the interest of the GE or GM paymaster, while exactly as Jeff described it, is arguably 180 degrees opposite that of a Humana or Aetna paymaster. So there's that typical American 'subsidy problem', or intense opposition from a small cadre of opponents overwhelming widespread mild approval of a measure. The second issue is more daunting:

      Even the C-level exec at the conglomerate, shaking his head at the excess of bureaucracy to handle benefits, isn't really the paymaster (though closer than Michael Scott). The real paymaster is the Soros or Icahn-type. Those folks are a real problem for the ACA being upheld, it seems to me.

      Because the Soros or Icahn-types that are worth their salt (more on Anastasios' dumb as a brick characterization in a moment) must have long ago recognized the problem of ballooning health care cost, the lack of American political will to address it, and thus put on natural hedges in their portfolios by taking long positions in companies like Humana, Aetna, et al. Those hedges are probably highly profitable for the Soros-type: you put a lot of your non-HC C-level executive's compensation at risk contingent on her ability to offset runaway health care costs (thus holding your non-HC P&L intact) and then reap the profits from runaway health care costs in your health care holdings. Probably a highly profitable business model. ACA and its descendents threaten the whole darn thing.

      Finally to Anastasios: certainly the vast majority of movers and shakers are pretty shaky; 90% of life is showing up after all. However, there's a cold hard natural selection factor at the level of the Soros/Icahn type - the people who have something going on upstairs should tend to rise to positions of success and undue influence. It says here that those folks have hedged away their health care risk. And thus they don't need no ACA.

      It doesn't look good.

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    2. JeffJune 25, 2012 at 11:47 PM

      Interesting thread as usual. I'm still saying 6-3, and if I'm right I'll explain why, but if I'm wrong it won't matter and we'll know shortly, right?

      (The Obamaites' rock wasn't wired for cable! Great line. All too true. Still, in their defense, it was either do health reform in 2009-10 or wait another fifteen years. For a party that takes the problems of the uninsured seriously, that really wasn't an option.)

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  19. Rebecca Z.June 25, 2012 at 1:40 PM

    I think they're going to uphold the law.

    All of it.

    Why? Because the mandate was a conservative notion; and because there's too much money flowing from insurance companies into politics.

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