In vowing this morning to do what the Supreme Court didn?t?repeal Obamacare?Mitt Romney trotted out all his arguments against the newly constitutionally sanctioned health care law. Among them were these two points: First, that Obamacare would cause 20 million Americans to lose their health insurance, and second, that it would be a job-killer to boot.
Problem is, these two arguments directly contradict each other.
The 20 million Americans who presumably would lose their health insurance would do so because their employers would decide to cease offering it, letting their employees fend for themselves on the health-insurance exchanges. Why would these employers opt to do that? The only conceivable reason is that it would be cheaper for them to do that. And if it was cheaper for them to do that, they?d then have more money to hire more employees, creating rather than killing jobs.
You can argue, with serial implausibility, that Obamacare will cause millions to lose their health insurance or that it?s a job-killer. You can?t argue both.
With today?s ruling, the fate of Obama?s health-care reform will be up to the voters in November?s election. For voters who hate Obama and all he stands for, that?s one more reason to go to the polls?but those voters are probably going to the polls in any event. If Romney decides to ride this issue, it?s not clear he?ll gain any more votes than he already has locked up. He may motivate some Republicans who don?t particularly care for him but will vote out of their hatred of Obama to care for him somewhat more. (Polling shows that a higher percentage of pro-Obama voters support the president because they like him than pro-Romney voters like Romney.) But I doubt that raising his positives among voters who are already determined to vote for him anyway matters.
Republicans will doubtless exploit the court?s upholding the mandate under the Congress?s power to tax rather than under the Constitution?s commerce clause. There?s that t-word again! It?s unlikely that more than a couple percent of the American people, those with incomes adequate enough to decline to buy insurance, will ever be subject to that tax, but you can count on Republicans to depict it as a mass confiscation worthy of Lenin. Obama and the Democrats need to be able to counter this with real numbers?in Massachusetts, the one state that has already adopted a similar law, just 1 percent of taxpayers are subject to the penalty?even as they focus on the benefits most Americans will derive from the law, which was the tack the president took in his statement this morning.
President Obama speech on Supreme Court upholding Affordable Care Act. Watch President Obama’s speech after the Supreme Court’s decision to uphold the Affordable Care Act here: http://aareports.com/2012/06/president-obama-speech-on-supreme-court.html
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CNN, "The Most Trusted Name in News," called the Supreme Court's ruling this morning on its website and in broadcast: with both a bright yellow BREAKING banner and a huge headline, CNN informed its viewers and web-readers that "The Supreme Court has[...]
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John Roberts imagined himself as a consensus-builder after his confirmation to be the 17th chief justice of the Supreme Court, a justice in the mold of John Marshall charged with alleviating divisions on the Court by advocating judicial modesty. Some progressive observers took these claims very seriously. I was inclined to view them as essentially fraudulent.
Well, score one for the optimists.
Today, the Supreme Court upheld the Patient Protection and Affordable Care Act in its entirety. While this outcome was not shocking, the vote lineup could be to many observers given that the final vote was 5-4. Chief Justice John Roberts joined the Court's four liberal members to uphold the PPACA, while frequent swing voter Justice Anthony Kennedy joined a remarkably radical dissent.
The ultimate effects of NFIB v. Sebulius remain uncertain, but at the very least the case compels a re-evaluation of both Roberts and Kennedy. While Chief Justice Roberts deserves substantial praise for not striking down the signature policy of an incumbent administration based on constitutional arguments that crumble upon the slightest inspection, this praise should not be excessive. Roberts's idiosyncratic reasons for upholding the PPACA are less than ideal and may place unnecessary limits on future government power.
Thanks to the Chief Justice, the Supreme Court's holding today is somewhat compromised and ungainly, like the PPACA itself. But also like the PPACA, it's a major improvement over the viable alternative. In the case of health-care reform, this alternative was an appalling status quo; when it comes to today's ruling, it was the de facto repeal of the New Deal constitutional order.
The Court's four Democratic appointees, represented by Ruth Bader Ginsburg's brilliant, powerful concurrence, would have correctly upheld the PPACA as a valid exercise of the federal government's interstate commerce and spending powers. Chief Justice Roberts upheld the PPACA for a different reason?not as a valid exercise of the federal power to regulate interstate commerce but as a valid exercise of the federal taxing power.
"The Affordable Care Act?s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax," concluded Chief Justice Roberts. "Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."
It is hard to ignore that by upholding the PPACA on this basis, Chief Justice Roberts has handed a political weapon to the Republicans, who can portray the PPACA as a major tax increase. Another potentially disturbing element of Chief Justice Roberts's opinion is the limitations he places on the federal spending power. Roberts?joined on this point by Justices Kagan and Breyer?held that the limitations placed on the states by the federal government's expansion of Medicaid went too far. The federal government could place conditions on the new Medicaid grants, Roberts argued, but could not threaten existing Medicaid funding without being unconstitutionally coercive. This part of Roberts's opinion is unfortunate, making it more likely that a few red states will reject the Medicaid expansion for no compelling reason. Still, because Roberts's opinion permits the federal government to place conditions on the new Medicaid funds created by the PPACA (if not the existing ones), the fundamental federal spending power remains in place, and it's not clear that the distinction will have any serious impact going forward. The same cannot be said of the dissent, which proposes a radical revision of federal powers.
Lest there be any doubt about how seriously the four Republican dissenters take their proposed constitutional revolution, they departed from the usual practice of joining an opinion written by one justice and co-signed the opinion jointly. This kind of joint opinion is generally reserved for a handful of historically monumental cases in which the Court wants to make a statement about its authority (such as the school desegregation case Cooper v. Aaron and the decision to uphold Roe v. Wade in Planned Parenthood v. Casey.) This was no ordinary dissent, and the fact that it was fully joined by Justice Kennedy is a major statement.
Kennedy and his three fellow dissenters were not advocating a minimalist opinion, such as striking down the mandate but leaving the rest of the bill intact. Instead, they concluded that they "would find the [PPACA] invalid in its entirety." Not only the individual mandate but the many other important aspects of the bill would have been ruled unconstitutional. The fact that the justices found that the mandate could not be severed from the rest of the act underscores the radicalism of their agenda. It is well settled that Congress has the power to pass laws that are "necessary and proper" to the exercise of its enumerated powers. This creates obvious problems for the dissenters, who simultaneously argue that the individual mandate is not sufficiently related to interstate commerce and that it is so integral to the rest of the bill that it must be struck down as a whole. This only makes sense if one assumes that?contrary to their protests elsewhere?the dissenters think that any major health-care reform exceeds federal power.
While Chief Justice Roberts's arguments about the commerce clause were limited to the narrow facts of the mandate and would not have any clear effect on future cases, the vision of the dissenters reflects a far more limited vision of federal power. Even more radical is Kennedy and the other dissenters' view that the Medicaid expansion in general (and not just the denial of existing Medicare funds) exceeds the federal spending power. The conditions placed on the grant of Medicaid money, the dissenters argue, are unconstitutionally coercive: "The offer of the Medicaid Expansion was one that Congress understood no State could refuse." The problem is that this would leave the existing constitutional order a complete shambles, as the same could be said of any other exercise of the federal spending power?including Medicare and federal education spending?which involve deals that it is impractical for states to turn down. Even more than the arbitrary restrictions on the power to regulate interstate commerce, this would represent a serious threat to the Great Society programs most Americans cherish.
What this decision makes particularly clear is the stark choice facing Americans in November. In a sense, it is futile to speculate how Roberts's hair-splitting will play out, because with four members of the Court over the age of 70, this will be determined by a different bench. Thanks to Chief Justice Roberts, the constitutional order represented by the New Deal and Great Society remains intact?but there are now four justices on record as rejecting it. If Mitt Romney is charged with replacing Ruth Bader Ginsburg, the federal powers that have been taken for granted since 1938 will almost certainly perish. The constitutional revolution being proposed by Justices Kennedy, Scalia, Alito, and Thomas did not succeed today?but it is frighteningly close, and should it be realized, the effects on America's most vulnerable citizens would be catastrophic.
I'm still winding my way through the 193-page opinions by the Supreme Court, but as I read, one theme emerges: Chief Justice Roberts wanted to uphold the law while preserving all of the conservative 'states-rights' themes we've heard over the past three years.
Roberts wrote that the mandate is not subject to the Anti-Injunction Act that would bar the court from ruling on the mandate as a tax not yet in effect. Turning to the next issue, he wrote that the mandate would be unconstitutional under the Commerce Clause, but would still stand as a tax, and therefore the ACA is constitutional.
This explains why the "broccoli" argument survived. Here's the key quote:
The Government argues that the individual mandate can be sustained as a sort of exception to this rule because health insurance is a unique product. According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, "[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is ameans of financing health-care consumption and covering universal risks." But cars and broccoli are no more purchased for their "own sake" than health insurance. They are purchased to cover the need for transportation and food.
The unspoken sentence: health insurance is purchased to cover the need to pay for health care. Still, the court did manage to come to the right place in the road by characterizing the mandate as a tax which would fall under the Congress' Constitutional powers, agreeing that levying taxes to influence conduct are nothing new.
The Medicaid ruling is more troubling. Chief Justice Roberts writes:
The Medicaid expansion, however, accomplishes a shift in kind, not merely degree...Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health coverage."
He goes on to say that nothing stops Congress from offering a carrot in the form of better Medicaid subsidies to states, but Congress may not use those funds as a stick to withhold all Medicaid funds. This ruling is troubling because at least 26 Republican governors have resolved not to implement the Affordable Care Act, and will turn away the expanded Federal grants. That leaves it to Congress to figure out how exactly to handle access for people who will not qualify under Medicaid in states that turn away the expansion.
That is indeed troubling, and something that should motivate a push toward Medicare expansion. The problem for states is more troubling, however, because they are still required to implement the Medicaid expansion to comply with the law. It's unclear what sanctions they will suffer if they don't. Virginia Governor Bob McDonnell admitted earlier on MSNBC that he would follow the law, assuming it still existed in 2013. That tells me that they expect to expand Medicaid coverage, and it would logically follow that they would also accept the federal dollars to do so.
I am not sure exactly how this will play out, but it is definitely not a good outcome for poor people. Further, it may have set a limiting principle for how Congress may interact with the states. Via SCOTUSblog:
While the Court?s upholding the mandate is deservedly taking front stage in the media coverage, the Court?s decision to strike down a part of the Medicaid expansion may ultimately have broader jurisdprudential consequence. That, at least, will be a subject of debate among lawyers and academics in the days and weeks to come. This is the first time (as far as I know) that the Court has actually found a Spending Clause condition unconstitutionally coercive. Whether it establishes principles that make many other programs vulnerable is a question that will require further analysis and debate.
I'll just let the dissent's conclusion speak for itself, authored by Justice Kennedy:
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections -- notably, the restraints imposed by federalism and separation of powers -- are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today's decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
I want everyone to remember those words when there is a challenge to Roe v. Wade or the birth control coverage provisions in the courts. Liberty and fragmented powers, it appears, would be a value to this conservative court until it applies to women.
Justice Ginsburg, who is forever my heroine, stuck the knife into Mitt Romney's side, as Mother Jones notes:
By requiring most residents to obtain insurance, see Mass. Gen. Laws, ch. 111M, §2 (West 2011), the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed. See Brief for Commonwealth of Massachusetts as Amicus Curiae in No. 11?398, p. 3 (noting that the Commonwealth?s reforms reduced the number of uninsured residents to less than 2%, the lowest rate in the Nation, and cut the amount of uncompensated care by a third); 42 U. S. C. §18091(2)(D) (2006 ed., Supp. IV) (noting the success of Massachusetts? reforms). In coupling the minimum coverage provision with guaranteed issue and community-rating prescriptions, Congress followed Massachusetts' lead.
Mitt Romney looked like an idiot standing up and shouting out to repeal this, especially when he crafted the solution to his own state's problems. His puffery about "acting to repeal Obamacare" is just another one of his lies that he'll tell to assuage his angry base.
The bottom line here is that Chief Justice Roberts walked through a circuitous and sometimes twisted route to arrive at a mostly-right conclusion. The Medicaid expansion was the tradeoff for upholding the rest of the law, and it was a crummy trade, but states will have to decide whether they're comfortable with the higher insurance rates on everyone in the state, higher premiums for those insured, and higher costs imposed on providers in their state or whether they will accept the Medicaid funds.
My bet is that these conservative governors will opt out with lots of noise and fury, and then turn around and opt in quietly, when the spotlight is off. Still, it's troubling that Medicaid was the sacrificial lamb, and it certainly gives incentive for progressives to continue to fight for universal single-payer health care.
Overall, the guiding principle that Roberts upheld was this: Health care is a right. Our job now is to keep hammering that principle home, shaming anyone who would make the political decision to withhold that right from poor people rather than take funds from the federal government.
Like everyone else, we're still sifting through the opinions. There's a lot here to digest, and I should caution while the top-line decision to uphold the mandate is still the big news of the day, how substantial that victory was for proponents of the[...]
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As I've mentioned a few times, our Senior Capitol Hill Reporter Brian Beutler was one of the few people to accurately predict today's result. More importantly, he's been the best reporter on this story going back to 2009. And today at 4 p.m. he's going[...]
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This morning, the Times John Harwood tweeted that "Strategists for Teams Obama/Romney agree: Court ruling is best POLITICAL outcome for Mitt." He's one of the best reporters out there. So I have no doubt that is what they think. Moreover, the ordinary[...]
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A short while ago we saw CNN run a breaking headline chyron about some new news they'd dug up. It turns out John Roberts gave a clue to his ruling during the hearings themselves. Right, what our Brian Beutler presciently reported at the time. We join[...]
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The complete midday statements from Mitt Romney and President Obama in response to today's Court decision. More TPMTV videos.[...]
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