Justices don’t understand insurance, health care, economics …

Non-cognitive elites

The depressing news from the U.S. Supreme Court isn’t just that several of the more conservative justices seem willing to upend a century of legal precedent if it would score a win for their party.

The depressing news is that these justices do not seem to understand the Affordable Care Act, the Emergency Medical Treatment and Active Labor Act of 1986, the purpose and function of health insurance, the American health care system, or even the most basic aspects of economics.

I knew they were this partisan. I did not realize they were this ignorant.

Here’s a roundup of the lowlights:

Steve Benen: “There is no ‘Cornhusker kickback’

Scalia doesn’t seem to realize that the so-called “Cornhusker kickback” wasn’t included in the Affordable Care Act; it was taken out before passage. Scalia probably heard something about it on Fox News, assumed it was true, and internalized his party’s talking points. More than two years later, the conservative justice is still parroting a claim that has no basis in fact — indeed, he’s practically boasting about it during Supreme Court oral arguments.

Scalia is bringing to the discussion all the sophistication of a House freshman appearing at a Tea Party rally.

And while this was a glaring example of policy ignorance, the larger issue is that the Scalia and other justices have routinely struggled this week with the basics of health care economics and the details of the law itself.

Charlie Pierce: “Tony Scalia’s Retirement Has Started Early

It is plain now that Scalia simply doesn’t like the Affordable Care Act on its face. It has nothing to do with “originalism,” or the Commerce Clause, or anything else. He doesn’t think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma.

Jared Bernstein quotes from Henry Aaron:

Perhaps the most glaring instance of the failure to appreciate what an externality really is came from Justice Alito who at one point challenged the solicitor general by positing that the cost of all of the care currently used by those who are uninsured is less than would be the cost of the insurance they would be forced to carry. That being the case, Alito asked, how can one say that the uninsured are shifting costs to the insured? This query is painfully detached from an understanding of what an externality really is, how insurance works, or what the impact of insurance would be on service use.

Dahlia Lithwick: “The Supreme Court’s Dark Vision of Freedom

It’s always a bit strange to hear people with government-funded single-payer health plans describe the need for other Americans to be free from health insurance. But after the aggressive battery of questions from the court’s conservatives this morning, it’s clear that we can only be truly free when the young are released from the obligation to subsidize the old and the ailing.

… Freedom also seems to mean freedom from the obligation to treat those who show up at hospitals without health insurance, even if it means letting them bleed out on the curb. When Solicitor General Donald Verrilli tries to explain to Justice Scalia that the health care market is unique because “getting health care service … [is] a result of the social norms to which we’ve obligated ourselves so that people get health care.” Scalia’s response is a curt: “Well, don’t obligate yourself to that.”

John Cassidy: “Obamacare Supreme Court case is a bad joke

Justice Anthony Kennedy, the swing vote on the court, said that the U.S. government had a “very heavy burden of justification” to show that an individual mandate to purchase health-care insurance was constitutional. Really? Only if Kennedy and his Republican-appointed colleagues are willing to throw out economic logic as well as seventy years of legal precedent, which, judging by their harsh questioning of Solicitor General Donald Verrilli, Jr., they may well be.

The economics isn’t very complicated. The health-care industry, which makes up about a sixth of the economy, is rife with inefficiency, waste, and coverage gaps. In seeking to remedy some of these problems, the Obama Administration made a deal with the private-insurance industry — the same deal Mitt Romney made when he was governor of Massachusetts. On the one hand, the federal government barred the insurers from discriminating against the sick and the elderly, thereby raising the industry’s costs. On the other hand, the feds obliged uninsured individuals to purchase coverage, thereby expanding the insurers’ revenues. … It was a straightforward instance of the central government seeking to redress the failures of the private market—something akin to imposing fuel standards on auto manufacturers, providing state pensions, and forcing banks to hold adequate capital reserves.

Charles Fried: “Health care is interstate commerce. Is this a regulation of it? Yes. End of story.

There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts of the world, and I was astonished to hear it coming out of the mouths of the people on that bench.


Mark Thoma: “Why We Need an Individual Mandate for Health Insurance

Just read the whole thing. It’s short. It’s clear. And if you read it now, then in five minutes you will know and understand more about the individual mandate than either Antonin Scalia or Samuel Alito will ever bother to know or understand.

Scott Lemieux: “The Individual Mandate: Not a Slippery Slope

The contention that upholding the ACA would allow the federal government to regulate **everything** hinges on the supposed distinction between regulating economic “activity” and “inactivity”; with the ACA, some conservatives claim, it is **not** having health insurance that’s being regulated — and the commerce clause only authorizes regulating economic activity. Of course this distinction proves essentially meaningless once you realize that not buying health insurance now means paying out of pocket later. Combined with the fact that states generally require hospitals to treat the uninsured in the case of emergency, to say that the uninsured are making a “free choice” is highly misleading. It’s government regulation that makes these choices possible in the first place.

But the distinction is irrelevant anyway. Whether “activity” or “inactivity” is involved, the Court has well-established standards on what the commerce clause authorizes. Generally, the problem being addressed plausibly requires a federal solution, and the proposed regulation — even if it does not itself regulate interstate commerce — is part of a larger regulatory scheme.

As Yale law professor Jack Balkin explains in a recent article, the individual mandate — whether it regulates “activity” or not — clearly meets this existing standard. Widespread problems with access to health care and skyrocketing costs are certainly big enough to plausibly require a federal solution. Furthermore, the individual mandate is an essential component of the ACA’s broad regulatory framework. Americans are generally okay with barring insurance providers from discriminating against people with “pre-existing conditions,” but this creates a “free rider” problem. Without the individual mandate, people could game the system by buying insurance only once they are sick, which of course would affect the whole country, not to mention bring down the entire insurance industry in the process.

The Rude Pundit: “Five Ways Broccoli Is Not Like Health Insurance

1. Broccoli is a nutritious vegetable. Health insurance is a guarantee that medical care will be paid for by the individuals receiving it through their insurance companies and not by you and all of us.

Kevin Drum: “Explaining the Mandate in Language Conservatives Can Understand

“For the 8 percent of people who didn’t have insurance, we said to them, if you can afford insurance, buy it yourself, any one of the plans out there, you can choose any plan. There’s no government plan.

“And if you don’t want to buy insurance, then you have to help pay for the cost of the state picking up your bill, because under federal law if someone doesn’t have insurance, then we have to care for them in the hospitals, give them free care. So we said, no more, no more free riders. We are insisting on personal responsibility. Either get the insurance or help pay for your care. And that was the conclusion that we reached.

“Everyone has a requirement to either buy it or pay the state for the cost of providing them free care. Because the idea of people getting something for free when they could afford to care for themselves is something that we decided in our state was not a good idea.”

Mitt Romney, January 2012

Ed Kilgore: “An Unexpected Attack on Medicaid

The Court wouldn’t strike down the Medicaid expansion unless it were willing to question the constitutionality of Medicaid itself, and it sure wouldn’t do that, right?

That’s not quite so clear after today’s concluding oral arguments.

Jon Green: “The Founding Fathers loved health care mandates

Green points us back to a New England Journal of Medicine article from January, quoting this bit:

[In] 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.

and Green adds:

Not only did mandates pass muster with the Framers in Congress, they were signed into law by George Washington and John Adams. Those who say that the Founding Fathers would object to any governmental regulation of the free market should double-check their history. They won’t like what they find.

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What Are Your Thoughts?leave a comment
  • JessicaR

    But someone might get something they did not expressly deserve bwaaaaaaaaaaaaaaaaaawwwwwwwwwwwwwwwwwwww. By the way, I also belive that is what is also going to be engraved on our national tombstone.

  • Dan Audy

    The US Supreme Court really worries me and the coverage of the ACA arguments by both the left and the right really clarify to me what is wrong with it.  Nobody actually expects the decision to be made based on the merits of the law but rather the whether each side can provide adequate justification of their pre-judged opinion and whether the cost in public perception regarding the legitimacy of the Supreme Court would be adversely harmed by that decision in the wake of Bush v Gore and Citizen’s United.  The Supreme Court has held for decades that there is literally no limits to the power of the government to regulate Interstate Commerce even when there is neither any ‘interstate’ or ‘commerce’ aspect to the behaviour being regulated and while I actually generally disagree on the legitimacy of that legal approach if it reverses course on the ‘Individual Mandate’ it shows exactly how political the court has become and in effect only permits conservatives to make new laws.

  • P J Evans

    The justices haven’t had to deal with insurance companies since they went on government payrolls – and most of them are millionaires who can afford to buy it if they weren’t already getting it. (Unlike most of the rest of us.)

  • P J Evans

    They don’t have any problem with giving the government all the power it wants – not needs, just wants – in dealing with drugs and national ‘security’. They haven’t done anything to require that the government follow its own laws and regulations, even when people sue based on things that the government actually did to them. Maybe it’s because those activities support the conservative view of the world as being dangerous to them.

  • Anonymous

    The mandate is wrong for one very simple, easy-to-understand reason: it criminalizes those too poor to get it. Don’t give me crap about the practicality of it, because it is wrong. It doesn’t help the poor, it only hurts the poor. If you want health insurgence for all, then pay for it. The mandate takes the poor and feeds it to the very bloated, corrupt, backwards, greedy, unfeeling machine that ground them under for years.

  • Dan Audy

     I’m firmly behind universal healthcare but even so I think the mandate is an improvement over what came before.  Sure it feeds the poor to a bloated, corrupt, backwards, greedy, unfeeling machine but it is a less bloated, corrupt, backwards, greedy, unfeeling machine than they were being fed to before and it is less punitive on the families of those with the audacity to get seriously ill.  I think it is terrible but I don’t think the US could do better at the moment.

  • I was under the impression that the federal government would be paying for all or some of one’s insurance costs, if one fell under certain income levels, so the poor would be subsidized by the rest of the public. This isn’t the case?

  • txredd

    Yes, the government will subsidize the cost of insurance based on income.  In no way is failure to carry insurance criminalized.  If you fail to carry insurance, you have to make a payment to the IRS.

  • Don Gisselbeck

    Let’s remember the fundamental problem the predator class has with universal health care; that it is a key part of a civilized society allowing us untermenschen to live the good life, the life that is above our station.

  • In the impossible fantasy world I’d rather live in than this world,  the court would determine that the individual mandate is indeed unconstitutional, but that the government is nonetheless _required_ to ensure healthcare to all its citizens, and therefore order the government to provide a public option.

    Sadly, Justice Scalia appears to be having his argument written for him by Fox, while Justice Thomas is, I believe this was established pretty thorroughly ahead of time,  on the take.

  • Would it be too much to hope Scalia keels over and dies, like, in the next five minutes so Obama can appoint a better judge?

  • Anonymous

    You know what’s weird is that I haven’t seen a whole lot of people talking about Clarence Thomas’s input.

    Ha! Ha! Just kidding.
    Of course Thomas hasn’t asked any questions, because he’s the shittiest judge of them all!

    (And in my impossible fantasy world, he’d be in a Guatemalan prison for the rest of his life.)

  • The judicial approach from the left seems to be that the restrictions of precedent are an obstacle to be overcome.  From the right, it’s an excuse not to do anything at all.  “Sure, we’d love for everyone to have healthcare in the richest nation on Earth, but you’ve got to understand—our hands are tied …”

    Are these naysaying ne’er-do-wells truly from the same nation that pulled the free world out of the ashes of a world war and put astronauts on the Moon?  I’d love to ask them when it suddenly became impossible for the country they fetishize to fix problems as meager as getting everyone in America appointments to see a doctor without going broke.

  • Anonymous

    If the mandate is overturned, don’t blame the Supreme Court.  Blame Congress.

    Health care is not a unique market such that the only solution to the problem of the uninsured is to implement unprecedented mandate that requires every American resident to purchase a product from a private company.

    Congress could have chosen to implement universal health care.  Congress could have chosen to increase taxes to pay for universal health care.  The Democrats could have passed such a law and all of the evil Republicans would have been powerless to stop them.  Such a law would have been clearly constitutional, and despite the wailings of Republicans and Libertarians about the wisdom (or lack thereof) of passing the law, any lawsuit (which deals with the legality of the law) probably wouldn’t have even reached the Supreme Court.

    For political reasons the Democrats chose not to increase taxes to pay for a universal health care system.  For political reasons the Democrats chose to pass a health care law that depends on an unconstitutional insurance mandate.  If the mandate is correctly ruled unconstitutional, a century of legal precedent will not be overturned.  Rather, Congress will still have the opportunity to implement health care reform that aligns with the Constitution.

    Yes, I know.  I doubt many of you will want to listen to me.  You go ahead and blame the five conservatives on the Supreme Court.  Even blame the dastardly aunursa.  But know that your wrath is misdirected.

    Maybe you’ll listen to a former constitutional law professor:

    Both of us want to provide health care to all Americans. There’s a slight difference, and her plan is a good one. But, she mandates that everybody buy health care. She’d have the government force every individual to buy insurance and I don’t have such a mandate because I don’t think the problem is that people don’t want health insurance, it’s that they can’t afford it. So, I focus more on lowering costs. This is a modest difference. But, it’s one that she’s tried to elevate, arguing that because I don’t force people to buy health care that I’m not insuring everybody. Well, if things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.

    Or maybe you’ll listen to a former Secretary of Labor:

    So if the individual mandate to buy private health insurance gets struck down by the Supreme Court or killed off by Congress, I’d recommend President Obama immediately propose what he should have proposed in the beginning — universal health care based on Medicare for all, financed by payroll taxes.

  • Anonymous

    Oh and in case anyone’s wondering, conservatives bloggers and legal analysts are hopefully optimistic, but most definitely not celebrating (yet).  Because we all know that despite the oral argument circus, the Court could surprise everyone and uphold the mandate.  It all depends on the result of Justice Kennedy’s coin flip.

  • Baeraad

    Uhm… you appear to be under the impression that most people here hero-worships the Democratic Party. This is not an impression I have ever gotten. Here is the impression I have gotten:

    1) The Republicans are evil scum.

    2) The Democrats are supposed to oppose the Republicans. However, the Democrats are wussbags who fold over the moment the Republicans glare at them.

    So, yes, this could all have been avoided if the Democrats had acted with resolute liberalism instead of trying to appease the conservatives with the exact clause that the conservatives are now gleefully using against them. True. What’s your point?

    None of this, of course, changes the fact that Republicans are evil scum. And given the choice between blaming the bad guys for being bad, and blaming the good guys for being too ineffectual in fighting the bad guys, it’s not so strange that people choose the former.

  • They sure don’t have a problem giving government a pass when it shares private medical info with another Federal department. “Sucks to be you,” Alito said in his majority opinion, but you’re not entitled to damages just because SSA told FAA you were HIV positive when FAA was trying to determine if you were healthy enough to keep your pilot’s license. It then publicized your HIV status in a press release, thereby telling your friends and family you had the virus, which you’d been keeping private.

  • I kind of wish that they would have me arrested for lack of insurance.  I would love to have it, but my income is exactly zero, and what money I do have I need in order to put food on my table.  Those times when my income goes up are sporadic, lasting one year at most, often only a few months or just one, and prone to end without warning.  Continuous payment is not something that I can reasonably afford.  What medical expenses I cannot avoid I have to pay out of pocket.  I had a five-hundred dollar dentist bill a couple weeks ago as a matter of fact, because I did not have the insurance to cover more frequent preventative care. 

    A low-cost government option would have been even better.  I do not care how long I have to queue to see a physician, better that than be unable to afford to see one at all. 

  • Anonymous

    Are you just being disingenuous on purpose?  “Congress could have chosen to implement universal health care”.  Really?  And how would they have accomplished this with conservatives (including conservative Democrats) who now believe that universal health care is a moral evil on par with Stalinism?

    Would you have supported universal health care?  How about the increase in tax to pay for it?

    I know it is now fashionable in conservative circles to pretend that the health insurance mandate was something that was first dreamed up by hippies at Woodstock, but the truth is the idea originated at conservative think tanks like the Heritage Foundation as the only way that the US could deal with its health care problems while avoiding the dreaded socialism.  Whatever one might think of the Heritage foundation and its works, it’s clear they do not see themselves as radicals who want to push the envelope on constitutional matters.  The health insurance mandate was tossed around in conservative circles for years and no one said a peep about its possible unconstitutionality.  Then the mandate is appropriated by a Democratic president and suddenly the unconstitutionality of the mandate is glaringly obvious.

    Universal health care based on Medicare for all?  Do conservatives support that now?  Last time I checked, conservatives believe the Medicare we have now should be abolished and replaced with vouchers.

  • Anonymous

    “Would it be too much to hope Scalia keels over and dies, like, in the next five minutes so Obama can appoint a better judge?”

    Yes; because, as a U.S. Supreme Court Justice and government worker (Ooooooooh, the irony!), he’s entitled to some of the best medical care that money — *TAXPAYER* money! — can buy. I predict that he’ll live a long, fulfilling (for the Conservative value of “fulfilling” — i.e. reversing the New Deal, helping the rich get richer, comforting the comfortable and afflicting the afflicted, etc.) life. In fact, the way things are going, he may even have the dubious pleasure of outliving his Country.

  • Tonio

    Some commentators theorize that a Court decision against the mandate will bring us closer to having a single-payer system. I’m not so optimistic.

    I’m not surprised that opponents of ACA would dismiss an idea that originated with the Heritage Foundation. They couldn’t give a rat’s ass about think tanks. even conservative ones, because they equate such things with intellectual snobbery. This isn’t about political philosophy but about Obama and white privilege. Listen to the rhetoric that wrongly treats ACA as simply another welfare program, as if poor people were going to get free health care on the taxpayers’ dime. Listen to the Southern Strategy euphemisms like “freeloaders” and “welfare class.” Much of the opposition to the contraception coverage was framed the same way.

    It would be easy to say that Scalia knows better given his law education. But having such a degree doesn’t make one immune to fears over privilege. This is the same man who misinterprets government neutrality among various religions as hostility to all religion. If someone like Santorum ever becomes president, he and Scalia may become co-conspirators in undermining the separation of church and state.

  • Nathaniel

    If the health care law gets over turned and tens of thousands of people die due to lack of coverage, it’ll be because of politicians elected by people such as yourself and those who are afraid of you. You are the reason we can’t have single payer. Because of you we can’t have nice things.

    TLDR; Fuck off gas bag.

  • Tonio

    From the Mark Thoma piece: “since we do not want people financially ruined or unable to get care when they are struck with a costly health problem…” Six months ago, I might have said that even Tea Partyers supported the basic premise and simply objected to compulsory taxes to pay for it. But after the cheering and booing at the GOP debates, even that theory is far too charitable for them. Maybe it’s more than just possessiveness about privilege or material things, it may be a watered-down version of the survivalist mentality. A core belief that life is a competition and that the danger of being absolutely powerless lurks around every corner.

    But what undermines my theory is that the Tea Partyers don’t act fearful. Their anger is palpable, as if they see themselves as truant officers dealing with juvenile delinquents. It’s the complete opposite of timidity.

  • Anonymous

    The justices haven’t had to deal with insurance companies since they went on government payrolls…

    Yeah, the situation would be funny if it weren’t so threatening to those of us who can’t afford insurance independently and can’t find a job right now to get insurance through an employer.

    Is it just me or has there been a concerted effort in the past year or so to take away human dignity from individuals in multiple areas? 

  • Anonymous

    Please just stop. Nobody really believes that you’re as dense and unreachable as you act like you are. And we’re tired of calling you out on it. You come here, provide your barely factual challenges, don’t honestly listen to anything said in reply, and then act like you came out the winner.

    Go find a blog of like-minded people. You’re not changing anyone’s mind here. 

  • Tonio

    Yet another rant accusing Democrats of hypocrisy. As someone who doesn’t belong to a political party and doesn’t consider himself either a liberal or conservative, I urge you to drop this nonsense. The mandate was originally a conservative idea and it’s obvious that Democrats offered it as an attempt at compromise, since Republicans were opposed a single-payer plan. If they had come out pushing single-payer from the outset, the cries of “Socialism!” would have been far louder than anything we have heard to date, and reform would have been doomed for at least another generation.

  • I was uninsured when I threw out my back. My life is, at the moment, destroyed because of this and because I live in the United States, rather than a sane country.

    Aunursa, because of you and people like you, I am in excruciating physical pain every day of my life.Because of this pain, I am unable to work in order to get the health insurance that would get me the surgery that would stop the pain.Because of you and people like you, I am unable to get Medicaid because, in my state, I have to be declared officially disabled to get Medicaid. The disability people have said that while it’s true I cannot have any job like a job I have had before, it is theoretically possible that I could perhaps have some kind of job, like writing on the internet for an hour a week. Which only an insane system would claim was a job that could realistically provide for anyone. No lawyer in the state will take my case because it is not winnable because I am only 35, and the state will do anything to keep from paying disability to someone as young as I am, fearing they’d have to pay for 50 years. I don’t give a damn about disability, I’m lucky enough to have family that can keep a roof over my head, but I need Medicaid for this $30,000+ operation. But I can’t have Medicaid without disability because our country is broken. I had the bad luck to be born with a genetically weak back — my aunt threw out her back at the same age I did, my mother has back pain all the time, and my grandfather had back problems his whole life. I didn’t do enough flexibility exercises. I didn’t always bend my knees when I bent to pick stuff up. I was in college full time, and uninsured. My family is not rich.

    For these grievous sins, I am tortured every day. I never know when the pain will be like it is today, like someone is slowly twisting and untwisting my spine, which they have filled with glass shards, and I start to wonder if it’s even worth going on living. 

    And if medicine had no way out of this, and if we lived in a society which treated disabled people like people, I would work very, very hard to find silver linings. To be philosophical. But if I lived in one of the many, many countries which recognized that health care is a basic human right, I would not be in this situation. And people in my country, people with whom you side, aunursa, tell me that it was my own fault that I did not have health insurance and so I should just get used to being in horrible pain for the rest of my life.

    If I lived in one of those countries with universal health care, I could be a productive member of society. Even in the countries which would bar me from employment and other basic rights because I am a woman, I could cook and clean and bathe every day

    The mandate which you are hoping will be overturned would get me on Medicaid in 2014. Two years more — an end in sight. My one real hope for life as a free, productive woman who is not in excruciating pain all the time is that mandate. And you and your buddies want it gone.

    Republicans don’t want me to be a productive member of society. I can’t leave my house, work, or even do housework. I can’t pay taxes. I am a drain on my parents’ income, a drain on their retirement funds and on any expendable income they might have otherwise chosen to use to buy stuff and stimulate the economy. My situation doesn’t only hurt me; it hurts the economy and the country. 

    Republicans are working to keep me in pain and not working. Aunursa, you and your buddies are hurting me. And you expect to be treated with anything but contempt? I’m not Jesus — I don’t forgive people while they’re torturing me. 

  • Anonymous

     As Charlie Pierce says… it all depends on where the roulette wheel in Anthony Kennedy’s mind stops.
    But how unprecedented is the individual mandate? It’s essentially the Republican alternative to Hillarycare from the 90’s… means tested fairly well by the Governor of Massachusetts… who was that guy?

  • Anonymous

    The way Democrats had to fight and pull teeth with Republicans on a health care plan that was mostly their idea to begin with, do you really believe that a single payer system would have had a snowball’s chance in hell?  

    Hypothetical Republican Congressperson:  A plan of universal health care that largely benefits the poor and middle class that is paid for by a tax increase?  Sure!  I know it defies everything I’ve ever said about how private industry is always the solution to all problems, but I’m just feeling generous today!
    Get real aunursa.  This mandate was the best chance this country had to finally make some positive changes in the woeful healthcare situation in this country, and the right wing is using their Supreme Court sock puppets to liken it to forced broccoli feedings.  Your political philosophy is sad and contemptible, and the lack of empathy you show for the people suffering in this nation speaks volumes.  I hope you are happy that your political party has staked the decks so thoroughly that this nation is unlikely to ever again improve upon the standard of living of its average citizens.  What a wonderful world you’ve helped to make.

  • Charles Matthew Smit

    I was a canvasser and community organizer working to pass the Affordable Care Act — so while I strongly support the law in general,  the individual mandate is a terrible idea.  It’s not about policy or the larger ramifications or whatever.

    It’s simply that I cannot, at the wage I make, afford insurance.  Not at all.  Not any insurance.  Not even MinnesotaCare, one of the best and least expensive insurance-for-poor-people deals out there, from what I’ve seen. 

    And I’m not that poor.  Never missed a month’s rent, haven’t spent one day hungry and unable to eat in the last decade.  I’m poor, but most poor people in the U.S. are  worse off than me.  So I’m going to guess they can’t pay either.  And like so many other things, the individual mandate is going to make us pay for our inability to pay.  As always, the more money you have, the less things cost.

    So however tone-deaf and idiotic the Supreme Court is (and I’m going to go with VERY), I will still be pleased if they repeal the mandate. I need insurance coverage– not another fine because I can’t afford insurance.

  • Anonymous

    I sympathize with Roberts and Kennedy here. Accepting the individual mandate at face value is essentially giving up on limits to the Commerce Clause at all, doing an end run around the Constitution to give the federal government broad powers over anything that costs anyone money. This is why there are all these questions about a unique market, etc. – it’s an attempt to find the mandate constitutional on as narrow grounds as possible, so they can uphold the near-contradictory commerce clause precedents of the last few years.

    Now, I’m not saying anything about whether the ACA is desirable because the Roberts Court never thinks about that anyway. (See: Citizens United.) Similarly, universal health care would be perfectly constitutional and a much better idea, but we’re not getting that any time soon. I do blame Congress for not including a severability clause in the ACA. They knew this was coming and specifically decided to gamble all of health care reform on this one case.

  • Anonymous

    There are some times where the compromise is more insulting and outrageous than leaving the problem alone. Do the words “three-fifths of a person” ring a bell?

  • Anonymous

     I’ve heard murmurings of such, nothing very big, and it would be good if they offer that kind of an olive branch, but it is still a poor substitute for just paying for it outright.

  • Anonymous

     Yeah, you get a penalty. That’s punishment. That’s punishment for being too poor.

  • Tricksterson

    It doesn’t really matter what Scalia or Alito says.  They, Thomas and probably Roberts made up their minds long before the case ever came to court as, to be fair, have Greenberg, Breyer and probably Kagan and Sotamayor.  The only one we should be paying attention to is Kennedy.  Also, keep in mind, or at least this is the way it’s seemed to me that the judges often like to play devil’s advocate, especially Kennedy, and often ask questions that would seem to put them on the opposite side from how they eventually vote.

  • Anonymous

     I don’t get the arguing over precedent. It’s SCOTUS: it’s their job to set precedent.

  • Anonymous

     I think it would if Democrats turn around and rewin majority control of the House and Senate. Oh, and grow spines. Yeah, it’s not happening.

  • Anonymous

    Why increase taxes? They could pay for it by gutting that financial black hole called the military.

  • ChrisH

    I think this falls into Fred’s “Ideology Makes You Stupid” theory, Scalia especially.  How else does one explain a magna cum laude from Harvard referencing Jack Bauer in one of his decisions?

  • Anonymous

    Okay, two things.

    Thing one:

    To people complaining about the mandate because they can’t afford it:  If you makes less than $80,000 a year (and most of the people here probably do) you are (or… you were going to) get subsidized premiums.  If you make less than $30,000 a year – welcome to Medicaid!  If you make less than $90,000 a year, can’t find insurance for less than 8% of your AGI you’re not subject to the mandate.  If you make less than $90,000 a year and CAN (say you find it at 6%) the penalty is a maximum of 2.5% of AGI (right now – I’m not sure what it eventually goes up to) (I bet you can do the math.)

    Basically, the only people who are going to find that they have a significant increase in costs are people making more than $90,000 a year who are not carrying insurance.

    That helps pays for the care you’re guaranteed to receive at the hospital.  In terms of government solutions, it’s really not that bad.

    Thing two:

    I don’t understand why we’re not arguing about insurance as a type of liquidity hedge.  Frankly, medical expenses are the only expense you’re likely to encounter that are almost guaranteed to be beyond your available liquidity.  We required banks to have a certain amount of liquidity so that they can pay a bunch of deposits in the event of a catastrophe.  Why can’t we do the same for people.  Since the federal government checking your bank account every day to make sure you have $2 million dollars or so in there is ludicrous, impossible, and intrusive – the least intrusive way to require a certain amount of liquidity for catastrophes is to require that you carry health insurance.  The government can’t make you buy a cell phone or broccoli or anything else, because it’s not going to be financial disaster for other people if you can’t afford your broccoli or cell phones a couple of times.

  • Anonymous

    Whether or not you like or are disappointed with the Democrats and whether or not you think the Republicans are evil scum are not my concern.

    What’s your point?

    You got my point.  In fact you agree with my point.

    “this could all have been avoided if the Democrats had acted with resolute liberalism”

  • Anonymous

    And how would they have accomplished this with conservatives (including conservative Democrats) who now believe that universal health care is a moral evil on par with Stalinism?

    Democrats controlled 60 votes in the Senate and more than 250 seats in the House.  If the liberal Democrats had convinced their moderate allies to support a universal system funded by a tax increase, then they would have passed a law that aligns with the Constitution.

    Would you have supported universal health care?  How about the increase in tax to pay for it?

    To be honest, no.  I support different methods of health care reform.  Conservatives support different solutions.

    But my support or opposition would be irrelevant.  I didn’t control the Legislative or Executive branches that enact laws; the Democrats did.  This wouldn’t be an issue if congressional Democrats had chosen a constitutionally valid method.

  • Anonymous

    Because of you we can’t have nice things.

    I like that.  I think I’ll take it as my new signature quote.

  • Brandi

    annursa: Dead-set on proving that in his family the good die young.

    (Hey, there’s already a chunk of commenters here who think I’m shit. Might as well be hanged for a sheep as a lamb.)

  • Anonymous

    I do participate at blogs of like-minded people. 

    I also participate at blogs of un-like-minded people.

    All of you were shocked at the train-wreck* because you live in your echo chamber and rarely venture outside.  You don’t want to acknowledge contrary intellectual opinions.  If you did venture outside and browsed conservative legal blogs, you would have recognized that arguments presented this week against the mandate were introduced, developed, criticized, and refined over the past 2 1/2 years at blogs such as The Volokh Conspiracy.  In fact, it certainly would have been beneficial for the administration’s legal team to have read such blogs.  They wouldn’t have been blindsided by the questions they encountered this week, and their responses wouldn’t have been so incoherent.

    By the way, I rarely if ever claim to * win * an argument here.  If that were my primary purpose, then I wouldn’t participate in a blog where the deck is so stacked against me.  All you can say is that I’m not changing your mind here.  As long as our host reviews the Left Behind series allows me to participate, I will return.

    * According to CNN’s legal analyst Jeffrey Toobin.  Toobin originally predicated that the mandate’s constitutionality was a slam-dunk.  After the Tuesday session, he called the legal arguments “a train wreck for the Obama Administration.  He added, “This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.”

  • Anonymous

    I am sincerely sorry to learn that you are in such pain.

    I wish that Congress had chosen wiser and constitutionally-valid methods to improve the health care system for your benefit.

  • Anonymous

    But how unprecedented is the individual mandate? It’s essentially the Republican alternative to Hillarycare from the 90’s… means tested fairly well by the Governor of Massachusetts… who was that guy?

    Correct.  If the law is overturned, then Romney comes out the big winner.  He can point to Massachusetts and say that he enacted health care reform on a constitutionally-valid state-wide basis. And overturning the law would effectively neutralize his greatest weakness among conservative voters.

    Aside from the Tenth Amendment limitation, one difference between a statewide mandate and a national mandate is that it’s much easier for Bay State residents who oppose a mandate to relocate to a non-mandate state than it is for Americans who oppose a mandate to move to a different country.

  • LL

    Yeah, hearing/reading some of the comments from the allegedly brilliant members of the U.S. Supreme Court is like hearing/reading the brilliant commentary on most website comment threads. Not exactly awe-inspiring. 

    The comparison of healthcare to broccoli … (shakes head). 

  • Anonymous

    No, I don’t believe that single payer system would pass this Congress.  But I don’t believe that it would be a wise law.

    Instead of forcing through a partisan measure that affects 1/6 of the national economy, Democrats will have to work with Republicans to effect bipartisan health care reform that a majority of Americans can support.  Democrats and Republicans working together to improve the health care system — I believe that can happen and will happen.

  • At every step the Republicans seem determined to simply throw roadblock after roadblock in the way of health care reform.

    You know all that whining about welfare Republicans do about those zomg single mothers?

    And how omg they won’t get joooooooooobs?

    News flash: It’s been worked out that if single-payer health insurance were in place, the welfare rolls would drop at least by 25%.

    That’s right, that socialist idea, single-payer, would cut welfare costs!

    Guess what got shot down by the Republicans so well the Dems took it off the table before they even got started.

    Could it be

    single-payer health insurance?


    In short, I do not believe any Republican is sincere about meaningful health care reform no matter how much he or she mouths the old bromides about bipartisan anything.