D.C. federal district judge Gladys Kessler issued the latest ruling, reinforcing the partisan trend. Her opinion is a very solid piece of work, and provides a good account of the existing doctrine if you’re interested in such things.
Tag: "health care"
Group A: People who argue that the individual mandate in the ACA is unconstitutional because it must be unconstitutional to force people to “purchase a private product” irrespective of its effect on interstate commerce.
Group B: People who strongly support gutting Social Security and replacing to with a system where people are forced to purchase products from private money managers.
The Overlap Group: People whose opinions about the constitutionality of the ACA should be greeted with some mixture of laughter and contempt.
Estimated Extent of Overlap: >95%
Atrios is optimistic*:
Federal judge strikes down whole law, sez mandate is unconstitutional and cannot be severed from rest of law.
Maybe we’ll return to my crazy idea to pay for it out of taxes.
The problem is, though, that if the entire bill is struck down Humpty Dumpty isn’t going to be reassembled (let alone in a more pleasing form) for the foreseeable future. First, it’s likely to be be quite a while before we have 60th vote in the Senate as liberal as it was in early 2010 to go with a substantial Democratic House majority and a Democratic president. And, second, the new legislative coalition would have to be more liberal, as the most obvious way of buying off the vested interests without direct tax hikes is no longer available. So the Supreme Court striking down the ACA in its entirety would be very bad — as I suspect Duncan would agree, a decade or three more of the status quo in exchange for a slightly more rational bill isn’t a good tradeoff.
If the mandate is eliminated without severance, though, that’s a different story. As long as the pre-existing conditions ban remains in place (and it would be nearly impossible politically to get rid of it), vested interests would be intensely interested in finding a fix for the mandate, so you wouldn’t need a similarly liberal legislative coalition. I’d buy a conservatives-should-be-careful-what-they-wish-for in that case, but not if the whole ACA is struck down.
*UPDATE: Atrios is not, in fact, optimistic.
I have some thoughts inspired by Jon Cohn’s article about constitutional challenges to the ACA. The short version is that I doubt that even a scenario where the Supreme Court strikes down the mandate — which I still regard as relatively unlikely — would have the far-reaching consequences that libertarian heroes hope. The reason for this is that a radically reduced federal government is a position that has no real political constituency, and the Supreme Court rarely intervenes in such circumstances. Although there’s still a widespread belief that the Supreme Court is “countermajoritarian,” it tends to reflect the values of political elites. (To borrow Mark Graber’s line, a generation of constitutional scholars discussed the Warren Court as if Barry Goldwater won a huge landslide in 1964.) If pro-Hammer v. Dagenhart sentiments become more than a fringe phenomenon, the Supreme Court might join in. In a political context where even tea party congressmen aren’t willing to name a single federal program they’d favor cutting, there’s not going to be any “federalism revolution” or return to the laissez-faire constitutionalism of the Gilded Age.
In a way, the instructive anecdote Cohn starts with also illustrates the point:
A few weeks ago, I spoke with Hyder at his office, in order to learn more about why he had brought this case. He said his motive was straightforward. He’s opted not to carry health insurance because he doesn’t think the benefits justify the price, and he doesn’t want the government forcing him to do otherwise. Okay, I asked, but what if he gets sick and needs hospitalization? How will he afford those bills? It was a distinct possibility, he agreed, patting his waist and noting that he was a little overweight. But those potential bills would be problems for him and his hospital, he suggested, not society as a whole.
When I told him that I disagreed—that his decision to forgo health insurance meant other people would be paying his bills, via higher taxes and insurance premiums—he politely and respectfully took issue with my analysis. The discussion went back and forth for a while, but soon it became apparent that our differences went beyond the finer points of health care policy, to our most basic understanding of the rights and obligations of citizenship. “It’s a complete intrusion into my business and into my private life,” he told me. “I think it’s one big step towards a socialist society and I’m purely capitalist. I believe in supply-side economics and freedom.”
The guy talks like a libertarian, but note that the punchline isn’t “if I need emergency care, the hospital should refuse to treat me if I can’t pay cash,” it’s “the hospital should treat me and indirectly stick someone else with the bill if I can’t pay.” Tells you what you need to know.
A bill to repeal the health care law drew the full force of both parties Tuesday as debate on the measure opened in the House, launching a two-year battle over President Barack Obama’s signature domestic achievement.
Ahead of the vote Wednesday, House Republican leaders pressed a new line of attack, accusing Democrats of thwarting the will of the people by not committing to give the bill an up-or-down vote in the Senate.
…UPDATE [SL]: Some useful data to put this highly principled Republican claim in context.
A superficial analysis of the House Republicans’ pledge to vote to repeal health care reform is that it’s nothing more than a symbolic gesture. While many might downplay their modest intellectual prowess, they must possess a rudimentary understanding of the basic institutional structure outlined in the very Constitution that they plan to patronizingly read on the floor of the House on Thursday, right? A slightly more charitable reading of this vote involves internal Republican politics: placate the lunatic fringe that got you elected prior to getting on with the real work of misgoverning.
However, as both the NYT article above and the Chait article in The New Republic cited in an analysis by The Democratic Strategist suggest, this presents an opportunity for the Democrats to take the initiative in framing the debate on favorable terms, for a change. Taken individually, many aspects of health care reform are popular. This can be exploited. Furthermore, the narrative of a party bereft of original ideas which seeks only to obstruct or destroy should be underlined. If properly framed and executed, this is a debate that the Democrats and the White House can and should win.
Will they? I wouldn’t bet on it, but I like to be surprised. If the Democrats do take advantage of this opportunity, it would afford a more colorful interpretation of the Republicans’ pissing in the wind.
I have a piece at the Daily Beast about the ACA decision which suggests some reasons to be skeptical.
I’m particularly interested in the assertion that the professional quality — as measured by the craft values of the legal profession — of the arguments in SCOTUS opinions has or at least in certain circumstances can have a serious effect on the Court’s perceived legitimacy. It’s a commonplace of criticisms of particularly controversial Supreme Court decisions to assume this is the case. Indeed justices make the claim themselves routinely, as for example in the concluding passage of Justice Stevens’ dissent in Bush v. Gore:
It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
Is there any evidence of such an effect, either in regard to Bush v. Gore or other SCOTUS decisions?
As others have noted, Henry Hudson’s opinion holding that the mandate provision of the ACA was unconstitutional contained the bizarre argument that “[i]f a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.” This not only contradicts nearly 200 years of precedent but is illogical on its face — if the necessary and proper clause merely gives Congress the power to do things it is authorized to do in other provisions, what is its purpose? Jason Mazzone argues that this argument becomes more coherent if you consider Scalia’s arguments about the importance of the necessary and proper clause in his Raich concurrence, which “uses the word ["activity"] 42 times.” While this makes sense of Hudson’s argument strategically, I still don’t think it makes any sense as an interpretation of the necessary and proper clause. If a regulation is necessary to a broader regulatory scheme, what difference does it make whether it is “activity” or “inactivity” that is being regulated?
Perhaps more importantly, it’s hard to see how the “activity/inactivity” distinction makes sense even when looking at the commerce clause alone. This Mark Tushnet post is brilliant:
Congress, according to Judge Hudson, has the power to regulate economic activity but not economic inactivity, that is, a failure to participate in some market such as the insurance market. This distinction seems to me unsound in principle but, more important, inconsistent with the governing precedents. The primary one is Wickard v. Filburn, which is usually described as holding that Congress has the power to regulate economic activities that, taken in themselves, have no substantial effect on interstate commerce but when aggregated do have such an impact. The economic activity in Wickard was the consumption on a person’s own farm of wheat grown on that farm.
What the farmer did, though, could just as easily — indeed, probably more easily — be described as a failure to purchase wheat in the general market. (Justice Jackson’s opinion made the point in this way: “The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs” (emphasis added). Those who do not purchase health-care insurance “forestall resort to the market” by paying the full out-of-pocket costs of their medical care when they incur those costs (or at least assert that they are willing to do so) or by relying on charity to cover the costs (although I would think that in principle the person should forgo that portion of the charity care attributable to the public decision to grant tax-exempt status to charitable health care — or at least that Congress could require that the person do so).
To expand on the last point a bit, the “activity/inactivity” distinction is particularly meaningless when considered in the context of actually existing health care policy. Perhaps if we lived in a libertarian dystopia in which people without insurance were denied access to emergency rooms, the distinction would be meaningful. But given the safety net that actually exists, refusing to buy insurance is economic activity in all most the most formal sense. It just defers economic activity to a later time and places the burden on the taxpayers, and at the same time affects the “activity” of the insurance market immediately. Either way, if the mandate is integral to a broader regulatory scheme — and it obviously is — I think it is quite clearly constitutional under existing precedents.
The post below reminds me that I had been meaning to blog about these Dana Milbank speculations about how Clinton might have been better. He bases this around some discussions with Clinton campaign operatives — let’s call them “Park Menn.” Exactly how would she have been better? Rather than going the route of dead-enders who assert that this life-long DLC centrist would have been the new Eugene Debs had she prevailed in the primaries, Mr. Menn argues that Clinton would have been better…by being much worse:
Clinton campaign advisers I spoke with say she almost certainly would have pulled the plug on comprehensive health-care reform rather than allow it to monopolize the agenda for 15 months. She would have settled for a few popular items such as children’s coverage and a ban on exclusions for pre-existing conditions. That would have left millions uninsured, but it also would have left Democrats in a stronger political position and given them more strength to focus on job creation and other matters, such as immigration and energy.
So we’re supposed to believe that Clinton would be better because she would have abandoned the only chance to significantly reform health care for decades, and in the kindest construction would have urged passing a slightly more protective band-aid in the form of a 90-day foreclosure moratorium. (Not necessarily a bad idea, but…then what? How many of the people who were foreclosed after day 91 would have been enthusiastic Clinton supporters?) And all of this based around the highly implausible idea that trying and failing to pass health care reform would be political gold for the Dems? Sure.
But while the sheer awfulness of Clinton’s top non-brain trust underscores that it is extremely unlikely that she would have been a more progressive president than Obama, I also don’t believe Mr. Menn when he claims that she would have been much worse. Giving away the show, although Milbank doesn’t notice it, is the assertion that Clinton would have settled for “a ban on exclusions for pre-existing conditions.” The obvious problem, as Clinton correctly said throughout the campaign, is that you can’t pass such a policy without a more comprehensive plan including an individual mandate, because it would completely blow up the insurance industry. Which is why Obama inevitably adopted Clinton’s position, and one reason why the ACA isn’t going to be repealed. So while I can’t prove that Clinton wouldn’t have foolishly abandoned health care reform, the word of her advisers on the subject couldn’t be less credible.
Conservatives have made a concerted effort to portray public opposition to health care reform as an ideological rejection of liberalism and government. The truth is that people who don’t have government health insurance support the Affordable Care Act. The only opposition comes from people who already benefit from single-payer health care. They’re not opposed to government health care — they’re worried that providing health insurance to others will come at their expense.
To make an additional side point, It’s not just that the Palin’s “death panels” line was making up something that doesn’t exist. As sophisticated conservative philosopher Ray Stevens inadvertently pointed put, the underlying premise of Republican discourse about the ABA was that the government should keep its grubby paws of people’s taxpayer-funded single-payer healthcare.