As expected, Vinson struck down the mandate, and also argued that it couldn’t be severed. My initial thoughts are up on TAPPED. The short version is that it probably doesn’t mean much but having a judge argue that the entire ACA is unconstitutional is worthy of notice.
Tag: "health care"
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.
Friday will be the girl’s first birthday, and in honor of one year as a parent I thought that I would toss together a few things I wrote on the topic (some from way back) and try to make a series of it. The first installment has to do with health care; the wife’s pregnancy was the first time that I had to deal at length with America’s health care bureaucracy. We also had to deal with the fact that my wife changed jobs shortly before the birth of the girl’s, meaning that we needed to shift between health care providers. This post is more about health care than fatherhood per se, but the experience of having kids brought me to a series of revelations about our health care system.
So, last June I was a more or less happy human being with health care supplied by the University of Kentucky. We knew that my wife would soon leave her job, and we knew that pregnancy often involves a variety of health complications, so I decided to change from the cheap-but-adequate plan to the expensive-but-a-good-idea-if-you-might-get-sick plan. I discovered in the process of making this change that, because of a computer error, I’d actually been uninsured for about a year. Fortunately, I failed to get sick. In any case, I filled out the form and added Davida to the plan. When the little dependents arrived, I added them to the plan. Shortly after the LIFE CHANGING EVENT, we moved to Baltimore for the wife’s new job. The insurance plan offered by the University of Maryland was marginally better than the long distance plan offered by UK, so we switched the wife and kids to UM, while I stayed at UK. This required numerous additional forms. In January, we moved back to Ohio, and switched back to the UK plan, incurring reams of additional paperwork. Finally, in May we arrived at the “Open Enrollment” period at UK, in which I was able to change from the super-expensive plan back to the reasonably-priced plan.
Now, all of this sounds reasonably easy and straightforward; however, anyone who’s ever actually dealt with the multiple bureaucracies that make up the US health care system understand that the story could never be so simple. Every change involved negotiation with at least two, and often three, bureaucracies. The first interactions with UK were difficult, but went very well once someone at UK HR took an interest in our case and effectively became an advocate. This person (who deserves nothing but our eternal thanks) really went the extra-mile, giving out her office phone number so that we could have pharmacists call her in order to find out how much our prescriptions should cost. Had we not been so fortunate in finding someone interested in helping us out, we might have been in real trouble.
We had lots of other interactions with these bureaucracies, and not all of them went as smoothly as the UK…
Trying to get ahold of your insurance company means negotiating a bewildering maze of phone trees and webpages. I use Humana, but I don’t have any reason to believe that any other insurers are any different. The key point to remember is that your insurance company DOES NOT want to talk to you. Maintaining a call center is expensive, and the company will undertake whatever means it can in order to force you onto an automated system or, barring that, attrite you into submission. Moreover, the question you have, if answered properly, might cost the company money. This is bad, and the insurance company is going to do its darndest to make it difficult for you to get the information you need. On a couple of occasions I was forced to repeatedly enter my policy ID# in order to move on to the next phone tree, all with the carrot of a “patient care representative” dangling in front of me. At one step, the system insisted that I verbalize my ID#, birth date, and zip code. No matter how clearly I said any of these, I was then forced to punch them into my phone keypad. I was told at one point to represent any letters in my ID# with the star key. I was then dragged through the agonizingly slow process through which the automated system tried to figure out exactly what letter a star represented (“Press 1 for G. Press 2 for H. Press 3 for I”). At another stage in the phone tree, the automated voice refused to accept any number I pressed before it was done speaking. If I made the error of pressing a number before the sentence was finished (and the robot, for some reason, favored long, pregnant pauses), then the system would stop for about 15 seconds before telling me that it didn’t understand what I was trying to say. It would then repeat its entire spiel. When you finally reach “waiting for the next patient care representative” stage, you are invariably treated to ridiculously terribly music punctuated by a voice patiently explaining how useful the website or the automated system would be, with the implication that you’re a moronic ingrate for needing an actual operator. On one occasion, I made it through the phone tree only to be told that the call center was closed.
Perhaps my favorite roadblock was on the (otherwise useless) Humana website. Shortly after creating your account, the website insists that you read a series of statements about the confidentiality of your health care, and that you click “I agree” at the bottom of each statement. If you don’t scroll down and read the entire statement, it refuses to let you move on. Ingeniously, one of the statements didn’t show any scroll bars on the page. It simply didn’t allow you to move forward. Clicking on “I agree” only makes you more angry, with the eventual (I assume) purpose that you will hit your keyboard so hard that your computer will break, thus saving the insurance company any additional difficulty.
None of this is accidental. The point is to irritate and confuse the customer so much that he or she eventually hangs up. It works, too. We would all like to think that we have the wherewithal to fight through the system, but often we don’t. We run short of phone minutes, or we get another call, or we have to do any one of the myriad things that amount to normal, everyday life, and we end up hanging up. This is what the insurance company calls “a win.”
So, all of that was pretty frustrating. Living through the experience made the health care debate (“People in Europe have to wait! In the emergency room! For service!”) some combination of surreal and absurd. Of course, nothing about the health care bill that we actually passed does anything to solve any of this. I can say, however, that if I ever had the choice, I would absolutely leap at the prospect of a public option program; the state bureaucracies were invariably easier to deal with than the private ones. I suppose if there was real competition with a public option the private programs might get better, but I can’t say for sure.
I should also note that I appreciate how fortunate we were to actually have jobs, and for those jobs to have decent enough health care programs. I cannot imagine having done all of this without the level of security that even…. complicate coverage provides. We got the drugs we needed, were able to take the girls to the doctor when we needed to, had Elisha’s helmet (mostly) paid for, and so forth. Taking the girls to the doctor was never a difficult choice for us, as it is for some. When we were concerned about Miriam’s weezing and barfing, we were able to take her to the emergency room without worrying too much about paying for it. All of that was (and is) nice, but it doesn’t require the infuriatingly complicated system that we currently have. I don’t think that we properly factor the complication, aggravation, and genuine irritation of that program into the costs of the system that we currently have, in part because it’s so hard for Americans to properly imagine a different system.
1. Poetic justice. Shorter: states that had tight-fisted approaches to health care in general and medicaid in particular are worried about the burden imposed by the health care reform law. Longer: “But even with more federal help, the challenge for states like Alabama, Arkansas and Texas that now offer only limited Medicaid coverage will be substantial.” Opinion: Cry me a fucking river. Texas, for example, restricts Medicaid to working parents who earn 20% of the federal poverty level. With the new law allowing medicaid access to families of four at 133% of the poverty level, or slightly over a comfortable $29,000 per year, who in hell was Texas covering in the first place? I’m not going to draw the obvious connections between this generally enlightened trio. The state I spend the majority of my US time in, Oregon, has relatively solid coverage, so they’re not going to get hurt too bad.
2. Obligatory British election. The Tory lead is holding relatively steady at about 4 points. As I’m not in the office, I don’t have my vote share -> seats matrix handy, but this smells strongly of a Labour plurality in seats. If the difference in seats between the Tories and Labour is close enough, Nick Clegg will be there, ready and willing to officiate. I’d like to see a formal Lib-Dem / Labour coalition in the event of a hung parliament, but I’m not counting on it. I suspect we’ll have a minority government, from either party, that will hobble on for a year at most.
Don’t get too excited by this new MORI poll of the marginals. While the Reuters headline needlessly downplays the Conservative’s chances as a result of this poll (the swing to the Tories in these seats according to this poll still outperforms their swing nationally) the poll covered constituencies won by 10% to 18% in 2005. This represents a liberal interpretation of “marginal”.
The annual budget doesn’t seem to have caused much of a stir, save for how it’s going to hammer Universities with cuts of up to 14% in the UK (but we knew this already) leading to a large number of compulsory redundancies amongst academic staff. Fortunately, our top leaders, the Vice Chancellors, see their pay increase 10% to 20% in the last year alone, with many earning more than the Prime Minister (who I am to understand has a less demanding job). Full disclosure: the VC of my institution earns more than Gordon Brown, but we’re enterprising, so we can get away with it.
None of us should worry, really. This being the Labour government, we have been offered 20,000 additional university places for students for the next academic year in the same budget that slashed university funding by £900 million through 2013. I don’t know how they do it. It’s magic.
The other aspect of the budget that has pissed people off is the 10 pence tax rise on (hard) cider of all things. Cider’s sort of popular down here in the Southwest, and Devon, Somerset, and Dorset (real) ciders can be some of the best in the world. It’s a good thing my partner scheduled her visit to Plymouth for last week, where she consumed a fair amount of the local cider, saving ten pence a pop.
3. I have been unplanned in my absence from blogging duties for the past couple of weeks. Work has dominated, with the end of term, admin duties, several manuscript reviews to write (when it rains it pours), and the two papers I’m presenting in San Francisco at the WPSA (this upcoming Thursday no less) and Chicago towards the end of April at the MPSA dominating my time. Also, add in weekends playing single dad to my daughter, and the visit of the aforementioned occasional cider drinking love of my life for a week from Oregon, I’ve had precious little time for much else. I’m off to the US for a month on Tuesday, so I’ll have more time. Hint: if you’re an editor of a political science journal just itching to send off a manuscript for my perusal, and are not one of the three who have sent me manuscripts in the last month, now is the time to do it.