Tuesday, June 26, 2012

Was Any Health Care Reform Doomed?

Paul Waldman makes the case that Democrats shouldn't second-guess themselves about the ACA if it's knocked down by the courts. His argument? It didn't matter what was in universal health insurance; whatever was in it, Republicans would have found a Constitutional case against it, no matter how flimsy, and it plays out the same.

I agree in part, and disagree in part (with SCOTUS on our minds, we all have to write like that this week).

I agree that the Broccoli Liberty argument is entirely bunk, and therefore I agree that it's likely there would have been some sort of Constitutional case against any possible universal health care law passed by the Democrats. And I agree with most of Ezra Klein's history of how this particular Constitutional case moved from joke to, well, joke that might get five votes from the Supremes. I certainly think it's incredibly naive for single-payer advocates to believe that "Medicare for all" wouldn't elicit a Constitutional challenge (and, by the way, incredibly naive to believe that the logical next step if ACA is voted down would be passing single-payer, and naive to believe that Medicare for all would be a one-page bill).

However: none of that means that the eventual result would have turned out exactly the same. To begin with, of course, we don't know what the Court is going to say on Thursday (I think Klein is absolutely right when he says speculation about what they'll do is pretty much worthless).

The truth is that (as the decision in the Arizona case should remind us) the current Court is certainly not simply the legal equivalent of the Sean Hannity, no matter how many crazed partisan rants Scalia might indulge himself in. We might get there in the future (or not), and we might get some decisions that sure look very partisan, but that's not where we are now. It's simply not true that there are five solid votes (or even four solid votes) for whatever wacky, ad-hoc legal theories GOP spinmeisters come up with.

Yes, four of those Justices are strongly conservative by all measures, but there is a real difference between supporting a long-standing judicial program and simply doing whatever the short-term partisan preferences of the Republican Party might be, even though those things will naturally (and quite legitimately) overlap much of the time. I do believe that Bush v. Gore was decided on ad-hoc partisan grounds...but that's 12 years ago already, and I don't think that anything since then shows that the Court's conservatives are merely partisan hacks.

So: maybe, on this issue even if not on others, there are five solid votes against anything that Obama and the Democrats would have done. Perhaps not. We'll find out more on Thursday. And, yes, then Democrats should learn from it -- because unless they want to give up passing any laws at all until they have a better mix on the Court, it certainly does make sense for them to second-guess themselves and learn how to live with the Supremes they have.


  1. Didn't you agree with Jamelle Bouie that if the Court struck down this bill, they would just do the same to single payer: https://twitter.com/jbplainblog/status/185066832426835968

    Because here it sounds like you're not convinced of that.

    1. RT doesn't mean I necessarily agree! I think what Bouie (and Waldman) said was a point worth considering.

  2. I think you're getting ahead of yourself here:

    It's simply not true that there are five solid votes (or even four solid votes) for whatever wacky, ad-hoc legal theories GOP spinmeisters come up with.

    That may or may not be true now... but, as you appear to admit, it might be unequivocally true on Thursday!

    And as to this....

    unless they want to give up passing any laws at all until they have a better mix on the Court, it certainly does make sense for them to second-guess themselves and learn how to live with the Supremes they have.

    What constructive lesson could Democrats possibly learn from an episode like this? Presuming the inevitable happens on Thursday and ACA (or at least the mandate) is struck down, here is the message that will have been sent: "We Republicans have a majority on the Supreme Court and we can and will use it to veto any legislation you Democrats support; moreover, we have lifetime tenure, we're relatively young, and we don't believe our decisions need to be based on existing legal precedent."

    There is literally nothing, short of amending the Constitution, that Democrats can do to "learn how to live with" this new paradigm. It would be like "learning to live with" an abusive spouse or a terrible disease. At some point, political death becomes preferable to a life rendered utterly impotent.

    1. But the SCOTUS doesn't challenge all Dem. legislation; far from it! I agree with the points that the broccoli argument is particularly bad, that the entirety of the bill is within the bounds of precedent, that the mandate has an important role to play in the bill, etc. But isn't it the case that the individual mandate is the TYPE of thing that in some circumstances (not present in the current case) is something it's reasonable (at least not pure hackery) to think is unconstitutional? And isn't the commerce clause pretty ambiguous on its face? (Again, I think health insurance markets, provided there is mandatory emergency care, easily qualifies given past precedent, so far as I understand it). If I were particularly federalist or libertarian-leaning, the mandate sticks out like a sore thumb. And dems and libs should face the fact that it is somewhat unique - attempted analogues are less than compelling. I think Prof. Bernstein is right that simply we do not have evidence that the justices are complete hacks (maybe someday, but not yet!), and that even if they strike the mandate or more of the bill down this will in part most likely be due to partisan bias, it is not the case that all Dem. legislation will be as susceptible. I think it is fair to say that the individual mandate is fairly unique. (I also agree with the point that other fixes (call it a tax, single payer, etc.) would be challenged, but we don't know how the court would rule on those issues, and the details make a big difference).

    2. isn't it the case that the individual mandate is the TYPE of thing that in some circumstances...is something it's reasonable...to think is unconstitutional?

      Nope! Well, not if a century's worth of Commerce Clause jurisprudence means anything. Besides, as you acknowledge, the authors of the law could have called it a "tax" or a "penalty" or "Medicare for all", and it still would have been challenged. So there's nothing unique about the individual mandate in that regard.

      But the SCOTUS doesn't challenge all Dem. legislation; far from it!

      This is a non-sequitur. The court addresses only issues brought before it in live controversies. Just because it hasn't invalidated, say, the Lily Ledbetter law, doesn't mean it wouldn't do so if given the opportunity.

      In any event, the court's right wing is surely aware of an adage familiar to any parent: Choose your battles. As you and Jonathan concede, in the past 12 years, the court has ruled (or in all likelihood will rule) in explicitly partisan fashion on at least two cases. Those two cases just happen to be, policy-wise, the most momentous and important cases of the last two decades.

      That not all legislation favored by Democrats may get struck down under this new paradigm is little solace.

    3. Steve makes a valid point -- liberals (and I count myself as one) need to honestly acknowledge that the individual mandate is, indeed, and expansion of federal power beyond what has previously been approved by the Court. Thus, "Congress’’ attorneys in the Congressional Research Service (““CRS””)
      and Congressional Budget Office (““CBO””) advised long before the Act was passed
      into law, the notion of Congress having the power under the Commerce Clause to
      directly impose an individual mandate to purchase health care insurance is “'novel”'
      and “'unprecedented.”'" (see pg 38 here: http://www.realclearpolitics.com/docs/2011/Vinson_HCRuling_0131.pdf).

      Moreover, if Wikipedia is to be believed, Scalia, Thomas, Alito and Roberts are all members of the Federalist Society -- heck, Scalia has been a member for 30 years. The Federalist Society has long been skeptical of the expanding scope of federal power, so if a member votes "no" on an expansion of federal power, how can that vote be assumed to be "partisan"?

      Finally, if the Court modifies 100 years of precedent (more like 80) on the Commerce Clause -- well, so what? The Warren Court modified or abandoned old precedent. So has the current court, when saying that the death penalty for mentally retarded and for juveniles is unconstitutional. Moreover, the Commerce Clause cases that constitute the precedents related to laws passed by Congress at the height of a national emergency. Courts often acquiesce in the expansion of federal power during such times, only to regret it later. Reversing decisions made in those circumstances is not necessarily partisan nor illegitimate,

    4. Thom Hartmann, who knows his Revolutionary and Founding History more closely than I these days (though I got an 800 in the SATs for American History in 1968) has been repeatedly presenting material on a program instituted in the early 1790's by President Washington, for requiring all American merchant seamen to contribute for a fund for the medical care of American seamen, and it was expanded in the Adams administration to include hospital care for American seamen.

      As far as I understand, the program was explicitly structured as a mandate to buy something, insurance or a fund partnership or however it was established. So the idea that mandates are unheard of in American history is not correct.

    5. Isn't this approximately how right-to-lifers have been feeling since Roe v. Wade? And haven't progressives basically told them, "Tough. You lost"?

      Yes, it feels terrible. It's enraging. But having supported--lionized!--the court's imposing its ideological beliefs in place of duly constituted laws passed by democratically elected legislatures, I don't feel like liberals are now in a strong position to argue that it's obviously wrong and abusive for the court to strike down legislation it thinks is an abusive use of government power.

  3. I'm with Andrew on this one. If it becomes clear that Roberts and Alito are willing to grossly distort precedent in service to conservative ideology (and incidentally, that everything they said about the importance of stare decisis in their confirmation hearings were lies), Democrats will be left with the choice of a) giving up entirely on any legislative agenda, b) undermining the court, or c) try to re-shape the judiciary.

    And I think there is a very good example of the Court engaging in naked partisanship after Bush vs. Gore.... in the form of the Citizens United decision.

  4. The truth is; in the 1970s, when we embraced the notion of "managed care" and for-profit "market discipline" in health care, we kicked the long-standing, traditional, moral notion of health care as a social good and social responsiblity -- that's major cost was met by a combination of charitable, community (publicly supported hospitals, etc.), and non-profit (insurers) sources -- to the curb and replaced it with the notion of health care as a market in which huge profit could rightly be extracted from the most desperate, universal human circumstances.

    The first notion of health care still animates those who seek some way of achieving "universality." The second animates the opponents of universality.

    There is no compromise possible between these two opposing views because they share no common, moral or practical, ground.

    1. There is no compromise possible when people have no imagination.

      In the end, we all get sick. Even the rich have people they care about who don't have a lot of money.

  5. These are good points but I would like to say that I do think this court looks increasingly different even from its conservative predecessor, the Rehnquist court. At least Rehnquist had a judicial philosophy, there were a few notable exceptions, like Bush v Gore where a conservative majority pretty much just acted like what Jon Chait called a "super legislature" to impose policy outcomes and political choices they favored. Overall though they did focus on an over arching legal theory, that the Federal Government had taken too much power from the states and they wanted to give power back to states, this was the theory behind throwing out the violence against women act in the 90s. The Robert's court seems wholly legislative in their outlook, philosophically they oscillate wildly between legal theories. For example, the Roberts court believes that five unelected justices should act as a branch of the Federal Government and be able to decide, among other things: how a city in Connecticut should promote firefighters, how Washington DC should regulate hand guns and how Montana should run its state legislature elections. While at the same time fighting for "limited government" when it would prefer those policy outcomes. If anyone can explain to me like I'm an 8th grader why the government requiring you to buy health insurance or pay a fee is tyranny but its totally fine for the President to order the killing of an American citizen with no other justification than the President decided, in secret mind you, that person was dangerous and how this is consistent with any Constitutional theory you deserve a prize.

    1. 1. "For example, the Roberts court believes that five unelected justices should act as a branch of the Federal Government and be able to decide, among other things: how a city in Connecticut should promote firefighters, how Washington DC should regulate hand guns and how Montana should run its state legislature elections." -- Isnt that exactly what conservatives said about the Warren Court?

      2. Re the 8th grader: The people who wrote the Constitution were very worried that a strong federal government would impinge upon individual liberty, and that state governments would be less likely to do so, because they tend to be more responsive to voters. Therefore, the federal government is not permitted to do certain things, even if those things would make the world a better place. However, state governments are permitted to do many of those things, such as the individual mandate. As for the President killing a US citizen in a drone strike, well that is not a federalism issue, so it is a bit of a non sequitur, but: The Supreme Court has never said that it is OK for the government to do that; however, courts have generally been very reluctant to interfere in the President's conduct of military affairs. By the way, that is meant to be an explanation, not a justification

    2. The principle of "limited government" is not reserved to the federal level only.

      1. As far as New Haven goes, a plain-text reading of Title VII of the Civil Rights Act of 1964 clearly shows that the city violated the civil rights of 20 firefighters who passed a promotion test, based solely on race. Supporters of "plain-text" interpretation of the law (as conservative justices tend to be) would have no other possible conclusion.

      2. The First Amendment has been held to apply to states, incorporated under the 14th Amendment, since 1925. Therefore, Montana's regulation prohibiting the freedom of political speech of groups of people was, again, clearly unconstitutional under a plain-text reading of the Bill of Rights. In order to conclude otherwise, one has to argue that groups of people are not entitled to the same constitutional protections that individual persons are, and that both ludicrous, and frightening.

      Both of these examples are consistent with a conservative judicial approach.

      As for drone attacks killing a U.S. citizen on foreign soil, I do not believe the Court has ever ruled on that, and I suspect a conservative court would be hard-pressed to choose between broad latitude in the conduct of a war, and the due process rights of American citizens, though I do not think they would support the former without reservation.

  6. I think Jon's point is well taken. For all the hand wringing and defeatist articles written on this Court, we still don't know how they're going to rule. There really isn't much evidence that the Court has gone totally off the rails aside from Bush v Gore (a vastly different court) and Citizens United (which although it fell on partisan lines is still one decision). Personally I think the ACA will be upheld and worst case scenario the mandate will be overturned. The 1070 ruling yesterday, while not a commerce clause issue, certainly shows the court will not flagrantly disregard the Constitution for partisan reasons.

    Ultimately though Jon's point is that if Democrats don't like the Court, they need to win elections. Win the presidency and control of the senate and we get our way on court appointments and then we have less to worry about.

    1. The 1070 ruling yesterday, while not a commerce clause issue, certainly shows the court will not flagrantly disregard the Constitution for partisan reasons.

      It shows no such thing. That was one case, with complicated procedural issues that are unlikely to recur in future cases.

      And I'm all for being optimistic, but this idea that we have no idea how the Court is going to rule on ACA is hogwash. Four conservative justices gave a clear indication at OA of how they were going to rule; and Thomas is a given. I'm not saying it's impossible that they uphold the law, but the writing is on the wall - and it's in indelible ink.

      Ultimately though Jon's point is that if Democrats don't like the Court, they need to win elections.

      That's manifestly not his point. His point is that Democrats need to "learn how to live with the Supremes they have," i.e., with the Court as it is currently composed. As I said, I think that's impossible. I agree that the only way out is to win more elections - but even then, it will be decades before the Court's right wing reaches retirement/mortality age.

    2. This comment has been removed by the author.

    3. I don't think it's at all true that Roberts and Kennedy gave a "clear indication" of how they were going to rule at oral argument. What they said pointed in that direction, but they both left it open enough that they could rule the other way.

  7. Regarding partisanship, it may be worth remembering that the court decided pretty consistantly against the Bush administration on detainees, habeas corpus, military tribunals, and the like.

  8. JB: You say that "four of those Justices are strongly conservative by all measures[.]"

    I REALLY wish that commentators such as yourself would employ more nuanced vocabulary when discussing judicial philosophy. Supposedly, a study of Justice Rehnquist's decisions showed that predicting his vote was easy -- In a case of business versus the individual, the business wins; in a cause of the government versus the individual, the government wins; and in a case of a state versus the federal government, the state wins. THAT is conservative. I don't think that the jurisprudence of any of the current justices can be described that way.

    Indeed, a decision against the mandate might well be attributed more to justices' libertarian leanings than to their conservative leanings. Or, alternatively, it might be an honest assessment of the "original intent" of the framers of the Commerce Clause -- an approach that usually leads to "conservative" outcomes (eg: death penalty, gay rights) but can also lead to libertarian outcomes (in free speech, 4th Amendment, and Confrontation Clause cases, among others).

  9. Suppose the five conservatives on SCOTUS strike the entire law on Thursday. It might not be noticed amid the cries for revolution, but perhaps the conservative justices' legal rationale would be that something like the mandate (or universal coverage generally) is appropriate at a state level, given the state's closeness/responsiveness to its citizenry, but less so for the Federal Government.

    Many states are currently somewhere on the journey to their own iteration of Romneycare; suppose Thursday's SCOTUS decision rapidly pushes states further in that direction, aided also by regional inter-state competition. Eventually, perhaps quickly, the US might evolve to a healthcare delivery system of 51 state-level Romneycares, including of course significant regional differences (though similar regional discrepancies in education seem to bother few liberals).

    This strikes me as entirely plausible, and even as a potentially rapid outcome of a negative judgment on Thursday - and further strikes me odd for the following reason:

    In the several decades in which progressives have pined for universal coverage, many have looked north of the border to the Canadian model as a desirable alternative to the American system. The devil's in the details of course, but broad strokes - the 51 state-level Romneycares, with a bit of federal money smoothing things, would arguably look a lot like what they have up in Canada (10 provincial-level Romneycares).

    1. To have a Romneycare, don't you need a Massachusetts? That is, a state big enough to have a sizable risk pool (not Wyoming), rich enough to fund health care for the poor (not Mississippi), and where universal healthcare is taken seriously as a goal (not Alabama). So you could end up with a bunch of big-rich-liberal-state Romneycares, but I don't see how we're going to help black folks in poor conservative states down South.

    2. Returning to Canada, their model was born in a province, Saskatchewan, that is a lot like Wyoming: sparsely populated, mostly poor - though admittedly having universal hc as a goal. I'm no expert, but I suspect that the demographic challenges of Saskatchewan mean that their death panels put in place more onerous queues than the more prosperous and populous Alberta next door (net of some smoothing from transfer payments from Ottawa.) This is, at a certain level, problematic - but not a reason to throw out the Canadian model (if perhaps a reason for many folks to move to Calgary).

      Beyond my political philosophy paygrade, but is universal hc really a "goal" in any state, or rather an artifact of other factors? If Tennessee has a reasonably decent Romneycare, considering their relative regional prosperity, won't the politicians in Montgomery begin to embrace that goal if only to get the folks in Huntsville off their back, considering all the negative externalities a functioning Romneycare in Tennessee imposes on Huntsville?

      Of course, Alabama's Romneycare will be by degrees worse than Massachusetts', much like Alabama's education system is worse than Massachusetts'. Personal side note: my family lives in a poor Southern conservative state; our first child is going to kindergarten in the fall and we're sucking up the cost to send her to private school, mainly after we found out that our local public school - though not terrible by our state's standards - actually has money withheld, rather than disbursed, due to its NCLB deficiencies. I'm sure most liberals wouldn't support that; I also suspect most don't realize that happens. Not sure how 51 variable Romneycares would be much of a departure from what goes on in the education front.

    3. Sigh, I just do not know, CSH. The kind of thing you are talking about is a best practices model, which works fine in relatively non-controversial areas like mandatory liability insurance for cars. In more controversial areas, not so much. There you get regional cultures and political systems digging in their heels, resulting in festering division lines. Think voting rights before the 60s, or slavery itself. Think in the modern world gay rights or unionization or immigration policy. When those kinds of deep cultural and social systems get activated, it is very hard for economics, in and of itself, to result in change. It was clearly understood by economists and businessmen that Jim Crow was devastating the South, but it persisted for decades. If state health mandates started mapping, as they would, with a raft of other things
      Ike gay rights, then it becomes a Blue State/Red State thing, and that leads to Balkanization and increased division -- and ultimately greater problems for the country as a whole.

      In another area of concern, I strongly suspect that many of the "best practices" that have spread from state to state have done so as a result of federal pressure both subtle and gross. If ACA is completely struck down, the federal government's ability to exert such pressure may be greatly lessened. This was what was at issue in the argument over the Medicaid expansion, with opponents making essentially a states rights argument that Kennedy, especially, seemed to sympathize with. If an expansion of Medicaid is unacceptable in the eyes or Red State conservatives (who were the ones making the main argument) how would they react to federal pressure to intitute Romneycare?

      I understand what you are saying about Canada. But that is a very different polity that was acting at a very different time. For US states in the early 21st century? I am skeptical.

    4. As a proud citizen of poor, conservative Red-State America, it does seem to me, Anastasios, that these engrained cultural identities are often little more than shibboleths. If indeed America ends up with 51 Romneycares, just consider the guy who's the brand source of that phenomenon: he's about 15 minutes away from being the standard-bearer of right-wing ideology; 15 months ago that would have seemed nigh impossible. My neighbors express conviction very loudly; I'm not sure they feel it that deeply.

      And even if those old-school reactionary conservatives are a roadblock, I'll still put some faith in the coming demographic changes you've noted; how those shifts will possibly overwhelm the old guard in states like Georgia, bringing Georgia its own Romneycare where not long ago that seemed impossible.

      Still, though, I take your point about Canada, as we've discussed: Saskatchewan had (and has) probably an inferior health care delivery vs. some of its neighbors, but the change to provincial health care was a positive for most citizens then and is probably still perceived as such today. Its quite plausible that Mississippi wouldn't be so sanguine about their Romneycare.

      In any event, its not at all clear that a full strikedown tomorrow will be the end of socialized medicine in the US - or even obviously the worst outcome for progressive objectives.

    5. CSH,

      Much will depend, as we have said, on whether the strike down in question is indeed full, and if it is full then what is the wording of the decision. If, for instance, it was something to the effect of "no seperability clause," then that is one thing. If it is, in the case of the Medicaid expansions, "too much federal intrusion on state sovereignty," then that is quite another.

      Let us take the case of Mississippi or Lousiana or Kentucky (where I spent the first twenty-two years of my life). There something like Romneycare will be perceived as, frankly, taking from the rich and giving to the poor, which is to say taking from white and giving to the other. I can't speak for Alabama, but unless the folks in KY have changed a whole heck of a lot while I wasn't looking -- ain't going to happen unless the State Legislature is forced to it by a combined pressure of economics and federal mandate (either explicit or, more likely, implicit in the way federal money is distributed and federal regulations worded). Should the decision cripple the ability to the federal government to force reluctant Red State legislatures to such decisions, I just don't see it happening short of a collapse in the insurance market and spiking costs that leave the state with no choice. We may well be heading in such a direction, but I really wouldn't want to see it.

      I agree that cultural differences are largely shibboleths ... until they aren't.

    6. Kentucky! I knew there was something I really liked about you Anastasios...

      Perhaps I extrapolate too much from the springing up of Romney signs in a neighborhood of until-recently Romney-haters, a transformation that apparently doesn't require a Howard Beale-esque conversion moment. It does strike me that expediency trumps passion with Southern Republicans, protests to the contrary notwithstanding. In the Tennessee Romneycare example, the folks in the Alabama capital of Montgomery may not directly experience the pressure from Huntsville, but they'll be moved by it nonetheless, and like a President Romney, Alabama's Romneycare will come to seem like something they wanted all along.

      Or, maybe not.

    7. Oh, I have no doubt that they are all behind Romney quite vociferously. I have a very dear friend from Maine. He tells me how growing up in the 1950s he and all of New England despised the New York Yankees with a passion bordering on actual hatred. The entire region tended to root for the Red Sox, but even more to root for anybody, anybody, against the Yankees. But, being the Yankees they won the AL pennant with depressing regularity. And then, for ten days in October, all of New England would put on pinstriped caps, stick black and white banners in the yard, and scream themselves hoarse for the Yankees. But that did not mean they liked the Yankees. It did not mean they approved of the Yankees. It did not mean that they wanted the Yankees to be the ones representing them. It just meant they were bowing to reality and awaiting the moment when the knives could come out again. I suspect that is what is going on here. Mitt, the New York Yankees of the GOP, has grabbed the pennant. And so the Romney signs are out in the yard and the Romney buttons displayed. But the hatred and disapproval is as strong as ever, and the knife is not very far back in the drawer.

    8. Oh Anastasios it has been a long time since you've been home. Reset your vignette here in the Bluegrass State, and the local yokels, though in on the scheme at the outset, would emerge from their homes by about Day 3, see the Yankee flag outside and say "How about that? I'm a Yankee fan! Who knew?"

      We aren't really clevuh like those Mainuhs.

    9. Total side-note, but having lived half MY life in New England, I'm shocked there was once a time when league identity was so strong that we rooted for the Yankees in the World Series. These days, I think we're much more likely to root for the National League team than for the pinstripes...

      Sorry to intrude on your comparison, which I agree is pretty apt.

  10. I'm also a bit confused at the insistence that health insurance is different than broccoli because while an effective insurance market relies on universal participation, except for a few miffed broccoli growers, it doesn't matter if most of us refuse the vegetable.

    You know what's like broccoli, at least in the sense of share of adults participating? The life insurance market. Most of us eschew life insurance like most of us eschew broccoli. No mandate in either case. Why no mandate in life insurance, but a mandate for auto, home...or Romneycare? Life insurance would likely be less expensive if we all participated, since there must be some selection bias toward those who ultimately use it, no?

    There is not, to my knowledge, much state-level actuarial difference driving life insurance cost, at least none fixable by a mandate. The same is certainly not true in the case of your vehicle, your home, or your Romneycare. As such, it seems obvious that states impose mandates for the pragmatic reason that its usually easy for citizens to uproot and move to the state next door if they don't. Mandates are thus a pragmatic, but by no means essential, feature of an insurance program - life insurance a familiar illustration of that.

    In fact, the pragmatic motive (inter-state competition) driving mandates in state level insurance markets does not apply in the case of the ACA's mandate. So when supporters base their conclusion of the obvious constitutionality of the ACA's mandate on the existence of state-level mandates, I'm afraid I don't follow the argument.

    1. Do supporters of ACA really base their their conclusion of the obvious constitutionality of the ACA's mandate on the existence of state-level mandates? I wouldn't think so, since the entire Commerce Clause argument is that the mandate is beyond the scope of the FEDERAL government's powers. What states can or cannot do is irrelevant to that argument.

    2. I think I tripped on my words a little. In the most famous defense of the mandate, Judge Moon noted that forgoing health insurance was not 'inactivity' to the extent that folks who forgo attempt to pay later. However, to the extent that any other human depends on my productivity, Moon's argument easily applies to the life insurance market, for which there are no mandates.

      You're certainly correct wrt the Commerce Clause; though that clause is both a) short and b) vague. Supporters thus look to empirical examples; in every insurance market a mandate is a "nice-to-have", but mandates only empirically exist where something like auto insurance would otherwise be prohibitively expensive in Alabama and folks in the Huntsville metro would then flee to Tennessee.

      Since such state-level considerations are not at play, the Constitutionality of the ACA mandate is a decidedly moot point, not the obvious legal slam dunk that supporters claim. Moon's the most famous legal champion for the mandate; yet his interpretation begs the obvious question of why life insurance markets nevertheless lack a mandate.

  11. I think that the decisions in Bell Atlantic v. Twombly (and also Ashcroft v. Iqbal), and, most recently, Knox v. SEIU, L. 1000 last week raise a dimension not accounted for in the main post's analysis: in each of these cases, the Court by a 5-4 majority, overturned long-standing, well established precedent that was not challenged in the case. In Knox, for example, the Court created a constitutional argument for the petitioners that was not briefed, raised at oral argument even, and made a substantive ruling that the parties had neither requested or had an opportunity to address. Same with Twombly--Rule 12 of the FRCP which had been understood in a consistent manner since its enactment, and the understanding of which had been reaffirmed again and again by the Congress's not amending the rule as it amended other rules, was suddenly reinterpreted by the Court. Not because anyone argued the prior decisions were wrong; just because the Court liked the new reading better. Now this, with all respect, is pretty significantly "political."

    Interestingly, the same nearly happened in Citizens United, until the minority protested, which merely resulted in an instruction to the parties to brief the issue the majority wanted to reach. See Jeffrey Toobin, "How John Roberts Orchestrated Citizens United," at http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin?currentPage=all

  12. I think this is 75% wrong and it pretty much encapsulates the reason I find reading your blog extremely frustrating.


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