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But Then They Went Too Far


Profile in courage Shelley Capito:

U.S. Sen. Shelley Moore Capito, R-W.Va., said Friday she wouldn’t support an amendment to the GOP’s health care overhaul pushed by far-right Senate conservatives, pouring cold water on prospects of unifying the party around any legislation.

Following Senate Majority Leader Mitch McConnell’s decision to delay a vote on the Better Care Reconciliation Act of 2017, a rewrite of the House-passed American Health Care Act. Capito came out against the bill as written, citing deep Medicaid cuts, the potential to worsen the growing opioid epidemic and how it could harm rural health care providers.

It’s good news that she won’t support the Cruz Amendment. But it’s still rather remarkable that she wasn’t willing to come out against BCRA before the vote was delayed. You would have to be an insanely horrible person to represent West Virginia and vote for this bill. It would cause the uninsured rate in West Virginia to climb from 6% to 25% by 2022. It would also have devastating effects on the state economy. And yet if McConnell had had 49 votes she probably would have been the 50th. And you can say the same thing about every Republican senator even if the effects aren’t quite as dire in their states.

In related news, public officials refusing the Medicaid expansion are monstrous. And the Supreme Court holding that enabled them — although the Court was not enforcing any specific textual provision, the controlling precedent upheld the use of federal spending power in case where the relationship between the spending and the objective was much less direct, and the standard created by the Court going forward is transparently incoherent and unworkable — was monstrous. Given the devastating consequences of the holding, it could be justified only if the legal reasoning was absolutely compelling — with textual support so clear no reasonable person could disagree. The Medicaid holding wasn’t even close to that standard.

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  • Lot_49

    Didn’t Congress withhold, or threaten to withhold, highway funding from states that wouldn’t raise the drinking age to 21? Why, yes they did: https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_Act
    And the connection between highway construction and beer-drinking is what?

    • NeonTrotsky

      Also, isn’t this the political strategy Republicans are pursuing with regards to “sanctuary cities”? Once again Conservative judicial philosophy is revealed to merely be politics by other means, despite years of railing about “judicial activism”.

      • reattmore

        despite years of railing about “judicial activism”

        It is always, always, always projection with these people. If they call Democrats lizard people, look for their own scales.

        • JamesWimberley

          “I welcome your scales!” – ghost of FDR.

    • Hogan

      It was “highway funding” and “raise the drinking age to 21,” but otherwise yes.

      • Lot_49

        Thanks, fixed now.

    • stepped pyramids

      And that bill resulted in South Dakota v. Dole, which the Court then proceeded to ignore in writing NFIB v. Sebelius.

      • Dr. Ronnie James, DO

        IIRC NFIB v. Sebelius was one of those Calvinball “we’re ignoring precedent jussssst this once” decisions, continuing the esteemed tradition of Bush v. Gore, another “one nighter” ruling.

        • JamesWimberley

          Quickies in the toilet, more like.

    • As I note in my comment, losing highway funding is a far smaller amount of coercion than throwing all a state’s poor people off of health insurance.

      • Scott Lemieux

        Except that if Congress had just repealed Medicaid and replaced it with Obamacaid, a spending program identical to the expansion, this would be constitutional although it would be equally coercive. The holding makes no sense.

        The key difference with Dole is that the decision implicitly assumes that a national speed limit would, if legislated directly, be unconstitutional. As RBG says, once you’ve conceded the federal government can do something directly, preventing it from doing it indirectly in the name of state sovereignty is just idiotic,

        • No it isn’t, because the spending power is a different power.

      • WinningerR

        But there are already a wide variety of conditions the states must meet to get their Medicaid funds. Isn’t this just one more?

        • Scott Lemieux

          Yes, another problem with the holding is that Medicaid had already been changed many times, and you always either had to accept the changes or get a waiver. Whatever the constitutional infirmity with the Medicaid expansion, it certainly isn’t “it’s onerous for poor people to lose their insurance” because that’s been true from day 1, and it can’t be “it’s too onerous to change the conditions” because the conditions had been changed again and again already.

      • The idea that screwing poor people is remotely coercive of Republicans is belied by 1) the expansion resisters who have no problem screwing their poor people and even their hospitals (since the ACA rejiggers how they get compensated for uninsured care) and 2) congresses current attempts at health care law.

        There’s no way a policy alternative is coerced if the stick is a desired endpoint of those who would otherwise resist.

        Indeed, there are supporters of the BHCA that claim that ripping insurance away from millions is perfectly ok, well within the range of acceptable to desirable policy outcomes.

        Now we can grant that killing exist Medicaid is a hard political sell. But so? Republicans are totally willing to do that, they just can’t convince everyone else to go along. That’s not coercian, that’s just losing.

        I note Dilan has toned down his risible attacks on Scott’s professional status. But obviously a retraction and apology would be appropriate.

        And perhaps Dilan should consider following his own repeated advice of deferring to an expert.

      • jlk7e

        What’s the basis of the idea that the “amount of coercion” is a legally relevant question?

    • Joe Paulson

      From the opinion (South Dakota v. Dole):

      A Presidential commission appointed to study alcohol-related accidents and fatalities on the Nation’s highways concluded that the lack of uniformity in the States’ drinking ages
      created “an incentive to drink and drive” because “young persons commut[e] to border States where the drinking age is lower.”

      The ability to pressure states was said to have certain limits. One can read Scott or Ruth Bader Ginsburg’s dissent (on this question) to explain why the limits don’t apply and/or the test provided by Roberts is not very workable.

      • Thlayli

        … “an incentive to drink and drive” because “young persons commut[e] to border States where the drinking age is lower.”

        IIRC, at one point Louisiana said “screw your highway money” and went back to 18. As a result, I-10 westbound between New Orleans and Houston became a demolition derby.

        • reattmore

          At one point, a big legal issue in Michigan was whether kids coming back from Canada with alcohol in their body could be charged as minors in possession of alcohol. Legal 18 year old drinking is just a tunnel away in Detroit . . .

  • catbirdman

    Pretty sure this is a police composite and not an actual photo of the Senator. In any case, I find it mesmerizing — must… look… away…

    • dmsilev

      Senator Capito (R-Uncanny Valley)

      • Hogan

        It seems like that place has a lot more than two senators.

    • bender

      The necklace she is wearing appears to be made of hematite. The other possibility would be a particular kind of pearl which is popular in good costume jewelry, but the beads seem to be too uniform to be pearls. I have a hematite necklace but I have never seen a woman of the Senatorial class wearing hematite jewelry in a portrait photo (it’s inexpensive). I’m not drawing any conclusion from that; it’s just slightly unusual.

      • the actual Bajmahal

        She’s the Senator from West Virginia and the are several hematite mines in West Virginia. It’s probably a state boosterism thing.

        • Davis X. Machina

          Like Maine tourmaline, which Sen. Snowe used to sport from time to time…

      • N__B

        Could be gray kryptonite.

        Just sayin’…

      • Karen

        I would have guess Biwa River pearls, myself, but hematite beads are also possible.

    • Hogan

      If you gaze long into the senator, the senator also gazes into you.

      • N__B

        The eyes sure as shit follow you around the room.

      • Marlowe

        “This cheerleading trophy. It’s like its eyes follow you wherever you go. I like it.”

        Oz, Buffy the Vampire Slayer (No one but the viewer is aware that a witch is entrapped in the trophy.)

        • firefall

          well, noone but the viewer, and the witch

  • postmodulator

    More significantly, I don’t recall her being even mentioned as a possible No vote before. It’s not as though she fears a purple electorate.

    • FlipYrWhig

      Nah, she’s been on the call lists since the beginning — Medicaid expansion state.

      • postmodulator

        I do remember seeing her on call lists, now you mention it, but not necessarily with any particular optimism. People were saying Collins, Murkowski, Heller, maybe Portman.

        • Drew

          I’ve been saying since January that Collins, Murkowski and Capito would be insane to support this, and I’m not the only one. I’m not surprised that Capito has demonstrated self-preservation instinct. And the people I know in WV have been pushing her office hard. Once the people you mentioned fell, it was only a matter of time.

  • rudolf schnaubelt

    The ACA buttressing of rural hospitals is an under the radar benefit to red states. Some of these Senators want the bill to fail because they know their state relies on the hospital support. If the Senator can make right wing noises so they never commit to BCRA it paints them as acceptable wing nuts while sub rosa effectively saving ACA.

  • DRN0001

    Cmon Scott. CJRoberts was just modestly calling balls and strikes, and deferring to the elected legislators. No arrogant judicial activism to see here.

    • efgoldman

      CJRoberts was just modestly calling balls and strikes

      it could be justified only if the legal reasoning was absolutely compelling — with textual support so clear no reasonable person could disagree.

      Ever since Bush vs Gore in 2000, balls and strikes, and compelling legal reasoning, are what the RWNJ justices say they are.

      • “‘Balls’, said the Chief Justice. ‘If I called two'” [at this point the needle reaches a crack in the Redd Foxx party record and the rest is lost to history]

        • efgoldman

          the needle reaches a crack in the Redd Foxx party record

          What is this strange language you speak?

          • N__B

            Crack is whack.

      • Breadbaker

        Much like in Shelby County, the idea that Congress could, on a record the size of Montana, make a different policy judgment doesn’t stop the justices nominated by Republican presidents from substituting their own personal judgments without regard for either precedent or the words of the Constitution.

    • PotemkinMetropolitanRegion

      I wonder if Roberts knew that his decision would kill tens of thousands. He certainly knew some states would reject the expansion. Maybe he believes that having health insurance doesn’t actually improve health outcomes (what a rouge-ish and delightfully contrarian point of view!)

      • Steve LaBonne

        Of course he knew. He just didn’t give a fuck, because they’re not the kind of people that he gives a fuck about. I don’t think for a moment that the shills who spout those ridiculous claims actually believe them.

      • mausium

        He decides because of ideology, not empathy.

  • N__B

    It would cause the uninsured rate in West Virginia to climb from 6% to 25% by 2022.

    Regardless of whether that 19 percent voted for her, she doesn’t like them. So, no problem.

  • twbb

    Wow, it’s almost like most GOP politicians are self-interested and want their political careers to survive. Who would have thunk it.

  • the actual Bajmahal

    McConnell handed Cruz the vote whipping job on this bill. It has been pointed out many times, even by other senate republicans, that Ted Cruz is the most despised man in the senate. McConnell knows this turd won’t fly. He’s set up the hated Cruz to fail (and take the blame), so that this whole debacle won’t be a total loss.
    I never knew that turtles could be so brilliantly underhanded.

    • Hogan

      My friends tell me
      That I’ve been such a fool
      And I have to stand down and take it babe
      All for lovin’ you
      I drown myself in sorrow
      As I look at what you’ve done
      Nothin’ seems to change
      Bad times stay the same
      And I can’t run

      Sometimes I feel
      Sometimes I feel
      Like I’ve been tied
      To the whipping job
      Tied to the whipping job
      Tied to the whipping job
      Good lord I feel like I’m dyin’

      • reattmore
      • joel_hanes

        Now I’ll have that song stuck in my head for days.
        And that’s a good thing.

        • reattmore

          It’s been stuck in my head since early ’71 . . .

      • LosGatosCA

        I like the live version better

        • Hogan

          The one where Republicans actually get whipped? Yeah, me too.

    • twbb

      Nice to see McConnell’s backstabbery aimed at someone who deserves it for once.

      • Drew

        It’s like watching Trump pick on Christie.

        • twbb

          And Jeb, and Marco, and Ted.

    • Drew

      That is one Mcconnell tactic that even Democrats can get behind. Toss the flaming bag of shit to Ted Cruz and let him stomp it out.

      Also, aside from being hated, I highly doubt anyone is intimidated by Cruz. If he clumsily tries to twist any Republican arms they’ll all just tell him to go fuck himself.

  • cpinva

    “You would have to be an insanely horrible person to represent West Virginia and vote for this bill.”

    it would appear that being an insanely horrible person is one of the basic requirements necessary, to be a registered Republican. The absolute worst of them end up running for office.

    • Steve LaBonne

      There are just two Republican principles. Deluded followers: white lives matter. Politicians: rich lives matter.

      • the actual Bajmahal

        So… plenty of overlap.

  • No matter how many times Scott rails against it, the Medicaid expansion ruling which got 2 liberal votes was perfectly reasonable. Obamacare said to the states “adopt this new law or all your poor people are thrown off of health insurance”. That’s far more onerous than the highway funding in the Dole case. Indeed, if you believe Scott, it would have killed thousands of people had a state tried to decline funding.

    And it’s the fault of the drafters of Obamacare. All they had to do is route the funding through the federal government. They decided to try to coerce state cooperation instead.

    • Joe Paulson

      No matter how many times Dilan rails [argues] against Scott’s position, I continue to find Ruth Bader Ginsburg and Sonia Sotomayor’s overall position appropriate & think Scott’s argument [based in part on his expertise in political science (including constitutional interpretation) as is his position on the matter as a whole] that Breyer/Kagan at least in part strategically voted reasonable as well. Either way, I sometimes find B/K wrong about things.

      Finally, I don’t really think the drafters were at fault in using a technique even some people who thought the court challenge as a whole was reasonable thought was likely to be upheld (while thinking the Commerce Clause argument much more likely to win). It therefore made sense to expand an existing rule, a logical approach. ETA: I would add that I also trust the crafters of PPACA [sic] in knowing what was most likely to pass as compared to alternatives.

      The fact it was more onerous than the highway funding case is noted though that by itself doesn’t really decide the question, of course.

      • Scott Lemieux

        Yes, all that Breyer and Kagan’s votes show is that they ranked making the expansion optional > striking it down entirely. You can’t infer anything else.

        As for the rest of Dilan’s largely nonresponsive bare assertions, they’re as unpersuasive as ever, which is why viturtually every liberal constitutional scholar to have considered the question disagrees with him.

        • Joe Paulson

          Mod Squad.

        • econoclast

          But Dilan is a real lawyer, and you are just a neoliberal shill who loves insurance companies so much that you hope some day the law changes so you can marry one.

          • Thom

            Also a real lawyer here, though one who had the sense to leave the profession. I find Dilan’s reasoning a good example of what is wrong with legal reasoning in general.

            • reattmore

              I find Dilan’s reasoning a good example of what is wrong with legal reasoning in general.

              “Reasoning”? Is that what he’s doing?

    • Steve LaBonne

      No matter how many times I read Dilan’s comments, I continue to think he’s an idiot.

      • jim, some guy in iowa

        weirdly enough, reading the responses to his comments- without reading his comments themselves- is actually pretty educational

    • Dr. Ronnie James, DO

      “Medicaid is an entitlement for every person that qualifies. If you do not treat it as such, you don’t get to participate in it” is a perfectly reasonable position for the Federal govt to take.

      Considering that Medicaid pre-ACA had huge gaps that failed to cover large categories of poor people (single males most especially) your framing of refusing the expansion as meaning “all your poor people are thrown off of health insurance” is remarkably disingenuous.

      • Scott Lemieux

        And the thing is, this is still in effect! You have to agree to the conditions to get Medicaid money, and you have to agree to the conditions to get Robertscaid money. He just arbitrarily created two all-or-nothing conditional programs. It’s senseless.

    • Murc

      Obamacare said to the states “adopt this new law or all your poor people are thrown off of health insurance”.

      My response to that is “so fucking what?”

      The Federal government absolutely has the power to do that, as the Supreme Court itself affirmed in NFIB vs. Sebelius. That’s part of what makes the ruling in the case so batshit schizophrenic.

      • Scott Lemieux

        I should do a separate post on this, but you should read RBG’s opinion if you haven’t already — it’s superb on this point (and many others.)

        • stepped pyramids

          I can’t look it up anymore, but didn’t Dilan of years past argue that the Democrats should have just passed Medicaid expansion (for some obscure practical reason)?

          • Hogan

            I think it was lowering the Medicare age to 55 (and nothing else), on the theory that expanding public insurance is the only possible path to single payer (and Medicaid doesn’t count as public insurance because shut up).

        • Murc

          I have done!

          Honestly, it all boils to the fact that if the federal government can present a take-it-or-leave-it deal to the states, and if the federal government can revoke that deal at any time and present a new take-it-or-leave-it deal to the states, then OF COURSE the federal government can alter an existing take-it-or-leave-it deal.

          I find the weird meandering into “coercion” and what an “acceptable level of coercion” is to be baffling. That’s… not a part of constitutional law, right? I mean, I am of course merely a layman, but it seems to me that the federal government can offer as much or as little coercion as it wants to the states as conditions of partaking in federal programs, so long as it treats all fifty states equally. It may or may not be RIGHT to do this, but doing it doesn’t seem unconstitutional per se.

          • stepped pyramids

            “Coercion” is one of the five points named in South Dakota v. Dole, which set the current framework for considering policy mandates connected to funding.

            • Scott Lemieux

              I don’t necessarily object to the magnitude of coercion into account, if the federal government is trying to do something it wouldn’t have the authority to do otherwise, or trying to achieve a goal only very indirectly related to the general purpose of a statutory framework. But if neither of those conditions applies, the level of coercion should be irrelevant for exactly the reasons Murc identifies — there’s no way of making sense of it unless you think states have a permanent entitlement to federal funding, which is nuts.

    • Aaron Morrow

      Unless Medicaid as it existed pre-ACA was unconstitutional, this argument is obviously onerous.

      Trading Bijan Parsia for this simpleton makes me feel dumber for reading this. It’s not trolling or spam, just illogical.

      • Murc

        Unless Medicaid as it existed pre-ACA was unconstitutional, this argument is obviously onerous.

        A surprising number of people seem to feel that the government changing the terms by which states may participate in federal programs to be the equivalent of Darth Vader saying “I am altering the deal. Pray I do not alter it any further.”

      • jackrabbitslim

        Wait, where did Bijan Parsia go? I just dipped my toe back into the waters of LGM (after a long, self-imposed banishment from lurking for election-related mental health reasons) but Bijan has long been one of my favorite commenters. (On that note, super glad to see derelict, wjts, Aimai, murc, Hogan, N_B, (((Cassandra Leo))) and many others still here.)

        • IIRC, he got fed up with Dilan’s treatment of him and elected not to post nearly as often. I don’t remember all the specifics. He still shows up from time to time but usually when the frontpagers post about British politics.

          Thanks, also, too. Though, come Thursday, I probably won’t be around as much for awhile due to my schedule getting substantially fuller.

          • jackrabbitslim

            Well, I don’t blame him. Thanks and good luck with your endeavors. Sorry if I’m effusive, I’m day-drinking Pinot grigio with my beloved.

            • Linnaeus

              Day drinking, or any drinking really, rarely needs to be justified. Especially these days.

          • CassandraLeo’s comment is accurate. Though as you can see below I’ve dipped back in more directly with the new comment system.

            Thanks for the kind words!

  • Marlowe

    And yet if McConnell had had 49 votes she probably would have been the 50th.

    This is key, I think. If Yertle the Turltle ever gets to within a vote or two of 50, the pressure on the last holdouts to vote yes will be almost impossible for them to withstand. I often liken it to the (surely fictional) manner in which Ben Franklin maneuvers Judge Wilson into delivering Pennsylvania to the pro-independence cause in the play/film 1776. When the outcome of the independence resolution hinged on his single vote, Wilson, who had been the ill-treated minion of anti-independence leader John Dickinson, did not want to be known as the man who blocked American independence. Similarly, the last Rethuglican holdout will not want to be known as the man or woman who blocked Obamacare repeal. We have to hope that Yertle remains at least a half dozen or so votes short, roughly equally divided between the extreme far right crazies (Cruz, Paul, Lee, Johnson) and the merely far right, the media’s faux “moderates,” (Collins, Capito, Heller, Murkowski, Portman, etc.).

    • DonBoy2

      Honestly, I never found that reasoning convincing in 1776. It assumes that, in the future, if America is not independent, people will be talking a lot about the person who prevented that not-thing from happening. But if independence hadn’t happened, history might well end up thanking the person who prevented what would, in that case, be a step into the great historical unknown.

      In the current case, of course, none of the GOP care a damn about any history that doesn’t include them as heroes, or, alternatively, don’t care about anything.

  • Todd

    Capito provides a sort of centrist vote once or twice a Congress whether she wants to or not. Seems random. Probably is. She became a Senator today, etc…

    Lifelong political hack resolves to stay political hack for life. Film at 11.

  • Harry Rumbold

    I think the Senator deserves a brief round of applause.

    • Downpup E

      On the one hand, I agree

      Ooh! What does that clap sound like?

      • DocAmazing


      • N__B

        The Rockford Files demonstrated once that a punch to the jaw is the sound of one hand clapping.

  • Spiny

    Let me have a moment to register my simmering rage at Cory Fucking Gardner, who has appeared on exactly zero lists of “swing” votes.

    Despite representing a purple-to-blue state with significant rural populations that will suffer, despite having multiple ADAPT sit-ins in his Denver offices, despite his multiple professed concerns about Coloradans on Medicaid, not no one believes that fucking weasel is persuadable. He isn’t even among the minor-league weasels who came out with “concerns” about the bill after it was initially delayed, he just bitched about people unfairly judging the bill before reading it. West Virginia’s senator is wavering, for Christ’s sake, but Gardner is still AWOL. He’s held no town halls and is fighting for nothing for his state. Zero. All he wants is to not burn any of his bridges to leadership in the GOP.

    Colorado would not suffer as much as West Virginia if Trumpcare passes, but this jackass really seems to have decided there is no point in even pretending to represent the majority of his constituents. Fuck him forever.

  • DrDick

    “Insanely horrible person” pretty much defines the modern Republican.

  • James B. Shearer

    “… Given the devastating consequences of the holding, …”

    You are assuming that if the law had been upheld then the holdout states would have gone along with the expansion. Why do you believe this?

    • Scott Lemieux

      I think very few if any states would have turned down literally all federal Medicaid funds, yes. It’s much harder to take away something people have then to stop something from happening — this is welfare stateism 101 (cf. the BCRA.)

      • James B. Shearer

        If I recall correctly the federal government would have had the option of terminating the existing program for holdout states but would not have been required to do so. So a holdout state would be betting that the Obama administration would not actually shoot the hostages or would get the blame if they did.

        • This.

          Even if there wasn’t such a straightforward move, it’s not hard to imagine a holdout state playing chicken for keeps. The national party would have rallied around…it let’s them paint the Dems as being willing to throw the “worthy” poor off their health insurance.

          Plus, Dems aren’t monsters.

  • nemdam

    Just wanna say you’ve done a great job highlighting both how terrible the Supreme Court decision about Medicaid expansion was and more importantly, the horrible effect inflicted by states that choose not to accept. It’s a huge underreported fact of Obamacare. Sometimes you already know these things, but it’s good to be reminded.

  • LosGatosCA

    John Roberts is certainly a more horribly insane, actually evil, person than any senator who helped write or will vote for the BCRA.

  • Joanne

    At some point maybe 10 to 20 years down the road, Democratic majorities are going to need to be willing to take the gloves off with a reactionary right wing SCOTUS. I am thinking mandatory retirement ages or legislation expanding the number of justices.

    • BubbaDave

      4 years down the road. 2021 expanding the Court to reverse the theft of Garland’s seat needs to be the top priority of President Gillibrand.

      • JamesWimberley

        Kamala Cortez Gillibrown? Booker doesn’t fit in, and that is appropriate.

  • JamesWimberley

    If this really is the high-water mark of Obamacare repeal, it’s far too close for comfort to the Battle of Moscow in 1941, when the Wehrmacht (eerily represented by the 638th Infantry Regiment of French fascist volunteers) reached “the town of Khimki—some 18 km (11 mi) away from the Kremlin in central Moscow”. Red Army troops took the tram to the front.

  • zoomar2

    Manchin is still a “No” too, right?

    • efgoldman

      Manchin is still a “No” too, right?

      Not a single Democrat has even made noises about doing anything else, including Manchin. Heitkamp and McKaskill.
      No, if the RWNJ flying monkeys are going to pass this steaming pile of pigshit, they’ll do it on their own.

      • zoomar2

        Sorry, I was 95% unserious, but I think the snark font feature is no longer available.

        • Is the snark font different from the sarcasm font?

          • N__B

            No one has ever hunted the sarcasm font.

            • Hogan

              For the font was a Boojum, you see.

          • zoomar2

            How’d you do that!

            • Howard_Bannister

              < code >
              like so
              < / code >

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