Most civilized nations provide health care
coverage for it's citizens. America is finally moving in a direction
where it's citizens will have access to health care outside of their
employer. The health care law we have is far from perfect, a single
payer plan would have been better. The Supreme Court to my surprise did
the right thing in upholding the law. Therefore today is a historical day! The
health care decision announced this morning by Supreme Court and the Individual Mandate Survives: The individual health insurance mandate is constitutional, the Supreme
Court ruled today, upholding the central provision of President
Barack Obama's signature Affordable Care Act.
The Affordable Care Act, including its individual mandate that virtually
all Americans buy health insurance, is constitutional. There were not
five votes to uphold it on the ground that Congress could use its power
to regulate commerce between the states to require everyone to buy
health insurance. However, five Justices agreed that the penalty that
someone must pay if he refuses to buy insurance is a kind of tax that
Congress can impose using its taxing power. That is all that matters.
Because the mandate survives, the Court did not need to decide what
other parts of the statute were constitutional, except for a provision
that required states to comply with new eligibility requirements for
Medicaid or risk losing their funding. On that question, the Court held
that the provision is constitutional as long as states would only lose
new funds if they didn't comply with the new requirements, rather than
all of their funding.
The president, for his part, used his address to detail the policy
prescriptions within the law -- an implicit recognition that the
administration has done a poor job selling it to date.
"It should be pretty clear that I didn't do this because it's
good politics," Obama said. "I did it because it's good for the
country." Barack Obama also addressed the court's decision to uphold the
most controversial component of the bill, the individual mandate,
arguing that it was essential to making the rest of the reforms work. He
acknowledged that he himself had once opposed the idea, only to come
around. The president added that conservatives, including Romney, had
supported the concept in the past.
The biggest and most obvious remaining hurdle for the ACA is the uncertainty between here and 2014 in particular if
Mitt Romney wins and Republicans wind up with unified control of
Congress, there’s every possibility that he law could still be entirely
repealed meaning none
of the 30 something million Americans expected to gain coverage under the law get
it. But even if that doesn’t happen: what remains is a lot of
trench warfare. The Court supplied the states with even more room to
fight against reform than they already had. Insurance companies and
other interest groups can appeal to regulators in the executive branch
or to Congress to defeat specific provisions they don’t like — and that
hasn’t changed today. Those two things could, together, wind up
undermining the law, especially under a President Romney, even if the
votes aren’t there for full repeal. But again the particular roulette wheel that began spinning when
Republicans took to the courts to invalidate the Affordable Care Act has
come to a stop. And the Richters have won. They can finally uncross
their fingers.
One last point to focus on now we are about to face with the largest middle class tax increase in history of our country, levied just because you breath. This consequence will always form the questions around "is this the most intelligently designed legislation or not". Clearly it does not address the
underlying causes of health care inflation. It does greatly empower the
IRS to collect this tax. The idea that you pay really high premiums
because of the uninsured is BS and Obama, Pelosi and Reid know it but
lack the integrity to be honest about it.
It wasn’t easy for Barack Obama to persuade David Axelrod to take him on
as a client. It took years, actually. But there was a reason Obama
wanted Axelord to be the one to run his campaigns. Axelrod knew how to
get black candidates elected by white voters. In fact, he had a whole
theory about it.
In a 2008 profile of Axelrod in the New Republic, Jason Zengerle
quoted Ken Snyder, a Democratic consultant and Axelrod protege, on his
mentor’s approach. “David felt there almost had to be a
permission structure set up for certain white voters to consider a black
candidate.” The “permission structure” relied heavily on
“third-party authentication,” which is to say, endorsements from
respected figures or institutions that the targeted voters admired.
If you think back to the 2008 campaign, you can see Axelrod slowly
building this permission structure around Obama. Right before Super
Tuesday, Axelrod rolled out the endorsements of Ted and Caroline
Kennedy. Right before the election, he rolled out Colin Powell. The
timing and nature of the endorsements were meant to make an
African-American candidate with an international upbringing and the name
Barack Hussein Obama into someone that Ohio steelworkers could feel
comfortable voting for. If Ted Kennedy and Colin Powell can back this
guy, so can you.
But permission structures aren’t just for elections. Over the past
two years, the Republican Party has slowly been building a permission
structure for the five Republicans on the Supreme Court to feel
comfortable doing something nobody thought they could do: Violate the
existing understanding of the Commerce Clause and, in perhaps the most
significant moment of judicial activism since the New Deal, overturn
either all or part of the Affordable Care Act.
The first step was, perhaps, the hardest: The Republican Party had to
take an official and unanimous stand against the wisdom and
constitutionality of the individual mandate. Typically, it’s not that
difficult for the opposition party to oppose the least popular element
in the majority party’s largest initiative. But the individual mandate
was a policy idea Republicans had thought of in the late-1980s and
supported for two decades. They had, in effect, to convince every
Republican to say that the policy they had been supporting was an
unconstitutional assault on liberty.
But they succeeded. In December 2009 every Senate Republican voted to
call the individual mandate unconstitutional. They did this even though
a number of them had their names on bills that included an individual
mandate. (For more on the political history of the mandate, see this post.)
The unity among Senate Republicans reflected a unity among all the
institutions associated with the Republican Party. Fox News and
right-wing talk radio pushed the idea that the mandate was
unconstitutional. Republican attorney generals began pushing the idea
that the individual mandate was unconstitutional. Conservative think
tanks — including the Heritage Foundation, which arguably brought the
mandate to Washington and the Republican Party in 1989 — began releasing
a steady stream of material arguing that the mandate was
unconstitutional. Conservative legal scholars began developing arguments
showing the individual mandate was unconstitutional. Within a matter of
months, the fact that the individual mandate was unconstitutional was
as much a part of Republican Party dogma as “no new taxes.”
All of this forced the controversy over the individual mandate into
the mainstream media, too. After all, if one of America’s two major
political parties thinks the most significant health reform since
Medicare is unconstitutional, well, that’s a story! And, as most
Americans are not constitutional law scholars, it made the individual
mandate look like questionable policy. As Yale law professor Jack Balkin
put it to me in the New Yorker, “If you’re reading articles in the Times describing the case against the mandate, you assume this is a live controversy.”
With the Republican Party on-board, the media interested, and the
public confused, the next step was the legal system. Conservatives filed
26 separate cases against the Affordable Care Act, ensuring that they
would get a hearing in dozens of different district courts. Judge Henry
Hudson, a Republican appointee who was heavily invested in a Republican
consulting firm called Campaign Solutions Inc., was the first to rule
against the law. Judge Roger Vinson, another Republican appointee,
backed him up. In a pattern that would be repeated over and again as the
law proceeded through the court system, Vinson and Hudson’s rulings got
vastly more media attention
than the much larger number of instance where district judges ruled for
the bill or threw the challenges out of court. The result? Polls began
showing a majority of Americans thought the mandate was
unconstitutional.
The effort had setbacks, too. On the appellate level, two of the
brightest stars in the conservative legal firmament ruled in the law’s
favor. Orin Kerr, a law professor at George Washington University and a
former clerk for Justice Anthony Kennedy, told me, ” the two top choices
for Supreme Court picks on the Republican side are probably Brett
Kavanaugh and Jeff Sutton. Sutton voted to uphold the mandate on the
merits and Kavanaugh voted to say it was not justifiable.” Judge Sutton,
by the way, is a former clerk for Justice Antonin Scalia.
But those setbacks were nothing compared to the luck Republicans had
during the oral arguments before the Supreme Court. Paul Clement, the
talented lawyer prosecuting the case against the Affordable Care Act,
gave what most everyone agreed was the performance of his career. Don
Verrilli, the solicitor general of the United States, gave what most
everyone agreed was one of the worst performances of his. He began by
choking on water and seemed to never quite recover his composure. ”He
was passive. He was stumbling. He was nervous,” CNN legal analyst
Jeffrey Toobin told POLITICO. “I was just shocked.”
For all the Republican Party had done to make the mandate’s
constitutionality a live issue, the oral arguments gave their cause a
credibility that strategic positioning couldn’t buy. The two arguments
had met in front of the Supreme Court and the argument against the
mandate’s constitutionality had clearly won. Everything up till that
point could have been written off as conservatives convincing
conservatives of something conservatives already wanted to believe. But
on that day, the argument against the individual mandate met the
argument for the individual mandate, and the argument against the
individual mandate won — even in the eyes of the mandate’s supporters.
After that, confidence that the mandate would survive the Court
collapsed. A poll of former Supreme Court clerks taken before the oral
arguments found only 35 percent thought the Court would overturn the
mandate. After the oral arguments, that rocketed up to 57 percent. A poll of
top constitutional law scholars found that 19 of 21 thought the mandate
was constitutional, but only eight were confident the Supreme Court
would uphold it. InTrade, a political betting market, puts a 67 percent
chance on the mandate being overturned.
The collapse did not come because anyone changed their mind about the
underlying constitutionality of the individual mandate. Polls, both of
experts and the public, have been steady on that score. Rather, what the
conservative movement had done — with a big assist from Verrilli — was
build a permission structure that would permit the Republican-appointees
to the Supreme Court to rule against the individual mandate. They had
taken a legal campaign initially dismissed as a bitter and quixotic
effort based on a radical and discredited reading of the Commerce Clause
and given it sufficient third-party authentication to succeed. If the
Supreme Court rules against the mandate, it will no longer be out on a
ledge. It will be in lockstep with the entire Republican Party, many
polls, a number of judges, the impression the public has gotten from
the media coverage, and the outcome of the oral arguments.
And that’s what’s changed from two years ago. When this campaign
began, it was unthinkable that the Supreme Court would indulge it, even
if some on the Supreme Court were sympathetic to its aims. “There is a
less than one-per-cent chance that the courts will invalidate the
individual mandate,” Kerr said at the time. Today, it’s entirely
thinkable that the Supreme Court will indulge it, and that means that
the members of the Supreme Court, who care deeply about protecting
their institution’s legitimacy, are free to rule in whichever direction
they want. We’ll find out what direction that is on Thursday.
