Patterico's Pontifications

3/28/2012

Post-mandate politics?

Filed under: General — Karl @ 9:49 am

[Posted by Karl]

Yesterday’s questions from Justice Kennedy have the left fearing and the right hoping the Supreme Court will strike down Obamacare’s mandate. People may be getting ahead of themselves. Indeed, people are jumping aheard to discuss the one scenario in which the mandate is struck, but the rest of the law remains. The speculation is intriguing, however premature.

According to the New York Times, house organ of establishment progressivism, Democrats and Republcians have given little thought to the possibility:

White House officials said that they remain confident that the Supreme Court will uphold the law, and that they have done no planning for the possibility of its full or partial demise.

Congressional leaders in both parties also said there had been no significant contingency planning.

The cynic in me finds that hard to believe. However, reading Dalia Lithwick or Michael Kinsley would suggest that liberals simply could not conceive of an unfavorable Court decision on Obamacare. For reasons I may write about later, the idea that Democrats are this much in denial about the possibility seems more plausible to me than it did a year or even a month ago.

The odd couple of Steven Den Beste and Robert Reich think that if only the mandate is truck down, Dems will push for a single-payer system. As Den Beste explains:

Single Payer is what they always wanted. The bill wasn’t originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.

If the mandate is struck down, then Congress will have to act. There won’t be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.

Reich expands:

If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

I think Den Beste and Reich are mistaken here, for a number of reasons. Both recognize Obama embraced the mandate because he could not get single-payer, even with an overwhelmingly Democratic House and 60 Democratic Senators. Yet, after this unpopular law is further discredited by the Supreme Court, there is going to be some surge of momentum for full-on government-run healthcare? Not in a GOP Congress elected in large part on opposition to Obamacare — and there is little reason to believe both chambers will not remain under GOP control after the election. Indeed, Obama will lose the ability to veto changes to Obamacare if he loses reelection, and Congress will have time to see whether that happens.

Even if Obama were to be reelected, there are a number of reasons why a GOP Congress likely would hold the upper hand. First, the reason Democrat super-majorities had difficulty passing Obamacare and rejected single-payer is because insurers, phramaceutical companies, and the healthcare industry generally have a lot of clout. None of the so-called “stakeholders” want single-payer and they donate to politicians across the spectrum. Second, the spectre of insurers going bankrupt — or being nationalized — would not play well for the president who promised you could keep the coverage you have. Third, while the mandate is particularly offensive to conservatives and libertarians as as the embodiment of the idea that the federal government can force you to buy things, it is offensive to the mushy middle primarily as the mechanism by which they are forced to pay. Robert Reich may think these people are excited to shell out payroll taxes to finance Social Security and Medicare; I am less convinced of that. Indeed, while polls tell us most do not want to “cut” these entitlement programs, one lesson of Obamacare ought to be that people know our public finances cannot afford another costly entitlement.

–Karl

99 Responses to “Post-mandate politics?”

  1. Ding!

    Karl (f07e38)

  2. As was brought up in oral arguments, there are alternatives to the mandate with respect to the must-issue and community-pricing regulations. For example, Congress could simply subsidize directly; they do that all the time. Or a first-year fee could be imposed, amortized over time, that would be the same as if surplus monies had been collected in prior years.

    It is clear, though, that the current situation where people become uninsurable if they get sick — even if they have had insurance over the years — is politically hard to defend. ObamaCare solves this the wrong way, as does Single Payer. But there are other ways, some of which the Republicans proposed in 2009.

    Kevin M (bf8ad7)

  3. Our government simply could not fund single payer or run it. They are incapable and even they know it. That wouldn’t usually stop them from diving in anyway, but when their incompetence becameapparent in health care it would destroy the pols who pushed it.

    MayBee (081489)

  4. As for Medicare, I see what care my aged mother gets. If you like being treated by 12 doctors, none of whom seem to talk to each other, then Medicare is just the thing.

    Kevin M (bf8ad7)

  5. White House officials said that they remain confident that the Supreme Court will uphold the law, and that they have done no planning for the possibility of its full or partial demise.

    Congressional leaders in both parties also said there had been no significant contingency planning.

    The cynic in me finds that hard to believe.

    The cynic in me tells me that they deliberately did not make any plans, in the hopes that would deter the Supreme Court from overturning the individual mandate.

    For the same reason, when the law was passed, a severability clause was deliberately not included.

    (But maybe that’s wrong. Perhaps, as per this page: http://heartland.org/policy-documents/guide-severability-and-obamacare

    …actually the idea was to negotiate just what and what not would be severable at the conference committee, and they didn’t put in a temporary clause, but a conference committee never happened because the House passed the Senate bill because the Senate never would have passed it again)

    I had thought earlier that the position of the Obama Admninistration in court is that the whole law has to be struck down, or nothing, but it is actually to strike down only community rating and mandatory coverage and a few other things directly connected with the individual mandate,m but leave the Medicaid explansion and a number of other things newspaper writers thing is too complicated to figure out.

    The court appointed lawyer is for striking down only the individual mandate provision itself, which wsas the ruling of the 11th Circuit.

    The states suing want to overturn the entire law, although they have a separate issue anyway on the forced Medicaid expansion.

    Sammy Finkelman (d22d64)

  6. Comment by MayBee — 3/28/2012 @ 10:08 am

    Our government simply could not fund single payer or run it. They are incapable and even they know it.

    No fraud protyection. As it is, insurance companies don’t pay too much attention to it. the new law mandates that a high percentage of premiums be paid ouyt in benefits. the idea is to limit advertising maybe and lower the cost of insurance but it also prevents money being spent to deter fraud and overbilling.

    Barack Obama never, or hardly ever, bargained over price for anything in his life. Of course he’s not alone.

    That wouldn’t usually stop them from diving in anyway, but when their incompetence becameapparent in health care it would destroy the pols who pushed it.

    Sammy Finkelman (d22d64)

  7. What I’m hearing about Kennedy and the severability issue is pretty promising.

    Shame on everyone who thought the federal ind mandate was constitutional. We need to keep their feet to the fire when it’s time to appoint justices who must disagree with that. I’m talking about Republicans who will appoint better jurists than Obama… but I want them to be much better than just ‘better than Obama’s’.

    Dustin (330eed)

  8. == For reasons I may write about later, the idea that Democrats are this much in denial about the possibility seems more plausible to me than it did a year or even a month ago==

    No doubt a result of the colossal mistake most Dems make of living their entire lives in a tightly closed media bubble– demonstrated by the left’s refusal to read or even contemplate well written information on right-leaning blogs and magazines or to ever watch Faux News.

    elissa (189bdf)

  9. Justice Kennedy is actually saying that stripping only the ind mandate, but leaving the rest of the law, might be the most extreme outcome.

    Sure sounds good.

    Dustin (330eed)

  10. There is some reason to believe that Congress could find a way to either change the regulations or replace the mandate with something constitutional before the law takes effect. Strip the mandate and then let Ryan and Obama find a way to make the rest of it work.

    I’d also like to see the prohibition on catastrophic coverage struck down, but I guess that’s not in the cards.

    Kevin M (bf8ad7)

  11. Strip the mandate and then let Ryan and Obama find a way to make the rest of it work.

    Obama will refuse to sign anything reasonable.

    Reid will refuse to pass anything reasonable.

    They will call the GOP obstructionists.

    Boehner would react to this like he did to the must more serious debt ceiling issue.

    Dustin (330eed)

  12. Replace unpopular ObamaCare with even more intrusive single payer ObamaCare v2.0?

    Just not feelin’ it.

    daleyrocks (bf33e9)

  13. Justice Kennedy is actually saying that stripping only the ind mandate, but leaving the rest of the law, might be the most extreme outcome.

    Sure sounds good.

    Comment by Dustin

    Based on comments from ScOTUSBLOG – The line of questioning during severability arguments was that due to the difficulty in finding what to sever, it may result in upholding the mandate. unfortunately just reading the tea leaves

    Joe_dallas (2d12c3)

  14. it may result in upholding the mandate. unfortunately just reading the tea leaves

    Comment by Joe_dallas —

    That’s possible too.

    I’m optimistic, though. Why not tell Congress to start over? If it’s really such a huge problem that must be solved, it shouldn’t be so hard to pass the law, politically.

    That’s the trick though. We don’t want this law. So the democrats rammed it through, all screwed up, realizing they will have a hard time doing this again. They’ve paid a severe political cost, as should all who supported the fed ind mandate, and they may end up with nothing to show for it at the end of the day.

    Alternatively, they may have raised the stakes so high that the Court will avoid the waves a full repeal would create.

    Dustin (330eed)

  15. Thank you, Dr. Pepper… er Paper…

    http://youtu.be/xoJhdOMyT_I

    Colonel Haiku (f4cb77)

  16. Jen Rubin has Ezra Klein on the ropes and is showering him with twitter blows…

    Colonel Haiku (f4cb77)

  17. People may be getting ahead of themselves

    They’re also putting up too much emphasis on losing the mandate. Even if the mandate gets struck down, we’re not done here. Republicans should beware the premature celebration before the work is done.

    Book (3c420f)

  18. On another note- and I realize this is an old point- but I still don’t understand why Democrats are focusing on the insurance side of this thing.

    Healthcare is the service. Insurance is a middle-man… a cushion to make payments for healthcare easier. But the service must still be payed for. If Democrats are really so concerned about the costs of healthcare, why are they trying to regulate the middle man?

    Book (3c420f)

  19. I recently heard a great maxim: life is like a box of Taco Bell. You always know what you’re gonna get if you’re honest with yourself.

    The political forces and 52%ers who got us Obamacare haven’t gone away. The appeals to greed and what we’re entitled to despite never actually paying for have not gone away. If this path to dependency goes away, they will come up with another. If this freedom is preserved today, they will attack it tomorrow with another hysterical extreme hypo.

    The real problem is our society in decay.

    Dustin (330eed)

  20. My cousins, Ivy league educated PhDs, are praying this will force single payer.

    JD (318f81)

  21. Listening to a bit of commentary on all of this, it is just on the verge of being a spectator sport. Instead of play-by-play and color commentary, there is analysis of what is said, then speculation as to what that means in regard to how the justice will vote, etc.

    Sorry if this comment was offensive, not meant to be. I am sure there are many serious legal issues to discuss that are way over my head; it’s just that I find the eagerness to speculate a bit interesting.

    MD in Philly (3d3f72)

  22. I’m not sure who you are listening to, MD, but learning law can be like a spectator sport. (My guess is medical schools are a little like that, too.) You aren’t taking pleasure in someone’s pain but the challenge of figuring out how to solve problems can be exciting.

    DRJ (a83b8b)

  23. It’s because this is crucial, MD.

    Lives are on the line in many, many more ways that one.

    luagha (5cbe06)

  24. Plus, legal analysis is very much a give and take — that’s probably why so many lawyers like to talk on blogs. My impression from being at teaching hospitals is that’s how doctors learn, too.

    DRJ (a83b8b)

  25. MD, part of the problem can be who it is that you listen to. Most MSM “legal” commentators are lousy. Toobin is a f***ing moron.

    SPQR (26be8b)

  26. This is my favorite pro-Obamacare argument.

    Nancy Pelosi is telling people they can quit their job now. She’s saying how those who work just to pay for their personal needs are “job-locked”. Like this is bad. For people to seek work that others are actually willing to pay for, in order for everyone to take care of themselves, is some kind of awful trap, and the way out is socialism.

    The appeal of this argument will not go away.

    Dustin (330eed)

  27. After reading about today’s argument, I agree that they are likely going to strike it all down (or maybe leave it all be … hope not).

    The problem for the Republicans will then be how to repackage the two very popular reforms: guaranteed-issue and community-pricing, which have substantial constituencies.

    It is not acceptable that, even after paying each and every year for health insurance, the year after you get seriously sick no one will insure you, and even if they will the price is impossible. The current system drives insurers to cherry-picking their customers, and the industry pricing model is pretty much stacked against self-pay customers. There needs to be a way to get a portable lifetime insurance pre-paid medical policy that can be carted from employer to individual and back, the annual fee increasing only as a large group policy would.

    And it has to be done without a mandate. The best model is probably via an initiation fee that is based on signup age. Amortizable if need be.

    Secure health insurance is especially important in hard times, as many people are finding themselves unemployed who never thought it would happen. They are getting to see the true costs of individual (and even COBRA) policies first hand and it is a bit shocking.

    The credit for getting rid of the mandate will go to the Republicans, but so too will be the blame for getting rid of guaranteed issue. Like most things, there are points here on both sides.

    Kevin M (bf8ad7)

  28. If Democrats are really so concerned about the costs of healthcare, why are they trying to regulate the middle man?

    Because it’s easier.

    Kevin M (bf8ad7)

  29. Kevin M,

    I hope Romney has some suggested solutions ready to announce once the ObamaCare decision is made, or even sooner since it’s in the news. He’s the probable Republican nominee and arguably the GOP candidate with the longest history on health care issues. If he doesn’t have some constructive solutions to propose, I’m afraid it will be like a repeat of McCain’s decision to suspend his campaign after the financial meltdown … only to follow it with nothing. It made McCain look weak, clueless and helpless. Romney can’t afford to look that way on health care.

    DRJ (a83b8b)

  30. “It is not acceptable that, even after paying each and every year for health insurance, the year after you get seriously sick no one will insure you, and even if they will the price is impossible. The current system drives insurers to cherry-picking their customers, and the industry pricing model is pretty much stacked against self-pay customers.”

    Kevin M – The above is from the customer perspective. Consider it from the insurer perspective and also consider that not every customer stays with the same insurer over the long haul. You are suggesting insurers issue guaranteed renewable policies at guaranteed loss making rates. Is there inherent fairness to that “arms length” transaction?

    Occasionally insurers have issued multi-year policies in the group insurance market, but it has not been the norm. I’m not aware of multi-year home or auto policies, but they might be out there. Some insurers promise to give customers a renewal quote.

    I continue to be mystified why people believe health insurance should be a one-sided contractual obligation always tilted in favor of the consumer.

    daleyrocks (bf33e9)

  31. “I hope Romney has some suggested solutions ready to announce once the ObamaCare decision is made, or even sooner since it’s in the news.”

    DRJ – Correct me if I’m wrong, but Massachusetts implemented its guaranteed issue rules in 1996, well before Romney, which help explain why premium rates in the state were so high relative to the rest of the country before Romneycare, but also help explain why only 8% of the state was uninsured in 2006.

    daleyrocks (bf33e9)

  32. Daley–

    I don’t think it should be one-sided — why would I? — but the current system is wildly one-sided in favor of the insurers. And the insurers have so few votes.

    There should be portability and long-term stable insurance. And that this is in the interests of both the insurer and the insured. And that this is inevitable since, again, the current situation is unsustainable.

    The insurance companies seemed to find a way to live with this with a mandate on purchase. Are you saying there is no other regime that would work for them?

    Kevin M (bf8ad7)

  33. My oldest is just a college sophomore so he remains on our policy irregardless of Obamacare. What I would be happy to see is a catastrophic policy that we could purchase for him, maybe a $10,000 deductible and really low cost other than the deductible. COBRA would be hundreds of dollars a month to cover him and we simply can’t afford that and the cost of sending him to college but we could definitely cover the deductible if he really needed health care for a severe illness or accident. Why not high deductible coverage? Our family policy is considered high deductible although it is only $3000 per person or $6000 for our family…

    TexasMom2012 (cee89f)

  34. Substantive Due Process vs. Commerce Clause arguments are very hard to make, by either the attorneys or the Court. The precedents are all in favor of Commerce Clause and the precedent for modern substantive Due Process is a hysterical rant by Douglas in Griswold v. Connecticutt. The Court does not favor it because it gives it, the Court, too much power to override the legislative process. Although I liked the holding in Lawrence v. Texas, I could see how difficult it was for the majority to render an opinion with much precedential value.

    nk (dec503)

  35. Daley (more),

    I have had insurance, one way or another, for the last 30 years. Never really been sick, but I’ve used it for various treatable conditions (e.g. high cholesterol). But it is just not acceptable that, should I have some sudden turn as I age, my current company will decline to renew and other companies will refuse to issue. The difference between paying for medical care with modern PPOs and such, and paying the artificial high posted prices for care is extreme; especially at a time when you really need it.

    Further, the political case for reforming Medicare evaporates completely without group-style pricing and availability.

    Kevin M (bf8ad7)

  36. daleyrocks,

    You may be correct but my point isn’t about RomneyCare or what happened in Massachusetts. It’s about Republicans — although I focused on Romney since it seems he will be the nominee — having a plan for health care that includes more than repealing ObamaCare. It’s no longer enough to talk about ending ObamaCare. Republicans need to have solutions in the event ObamaCare is struck down.

    DRJ (a83b8b)

  37. “Republicans need to have solutions in the event ObamaCare is struck down.”

    DRJ – I agree completely.

    daleyrocks (bf33e9)

  38. “I don’t think it should be one-sided — why would I? — but the current system is wildly one-sided in favor of the insurers.”

    Kevin M – How are one year mutually non-renewable contracts one sided?

    daleyrocks (bf33e9)

  39. “The insurance companies seemed to find a way to live with this with a mandate on purchase. Are you saying there is no other regime that would work for them?”

    Kevin M – I am not saying there is no other regime that would work for them , but I hope you understand how they got comfortable with community rating and/or guaranteed issue was to mandate the inclusion of healthy customers not previously in the risk pool to offset the adverse selection bias of higher risk people participating.

    daleyrocks (bf33e9)

  40. “But it is just not acceptable that, should I have some sudden turn as I age, my current company will decline to renew and other companies will refuse to issue. The difference between paying for medical care with modern PPOs and such, and paying the artificial high posted prices for care is extreme; especially at a time when you really need it.”

    Kevin M – I have trouble swallowing the differences between full prices charged by doctors and other providers and discounted prices negotiated insurers. Some doctors and providers in some areas pursue balance billing, some don’t. Legally, I don’t know what can be done about negotiated volume discounts.

    On the aging point, the same phenomenon occurs in life insurance. It gets more expensive the older you are and the more health conditions you have. Why shouldn’t it? You have become a riskier customer for the insurers, no two ways about it. It’s common sense, nothing mysterious. Participating in a group plan masks the effect.

    daleyrocks (bf33e9)

  41. James Pethokoukis is thinking about this, too, daleyrocks.

    DRJ (a83b8b)

  42. For a start, I would like to see tort reform. No claims for medical malpractice based on negligence but, instead, on wanton and wilful, with a limitation to actual damages. This would lower medical costs considerably because it would, eventually, reduce overtreatment. (Why would a 56-year old, heterosexual monogamous for twenty years, non-drug using, need four tests for HIV and Hepatitis C in a period of five months? Happened to me.) I say “eventually” because the medical system has invested heavily in overtreatment and it will take time to amortize its investment.

    nk (dec503)

  43. I’d like to see those changes, too, nk. I’d also like the Democrats to propose something reasonable to replace the ObamaCare mess, but that won’t happen so it will have to be the Republicans.

    DRJ (a83b8b)

  44. “We have to kill the bill so you can find out what is like without it”

    [note: fished from spam filter. –Stashiu]

    Neo (d1c681)

  45. I agree on tort reform, but that’s just changing some costs, it doesn’t later the dynamics.

    The entire current model, based on one-year term contracts is completely broken. The one-sidedness, DRJ, comes from the fact that the insurance company doesn’t need to renew every person every year, but each person absolutely does, and particularly does at the exact time the insurance company would rather not.

    In all of this we hear about the deadbeats that wait until they are sick before signing up in a must-issue regime. But the current system treats the absolutely responsible insured-since-birth policyholder as disposable should he start to run up serious costs. Of the two situations, I’d rather see the former happen than the latter, but I’d prefer that neither did.

    There were some REpublican proposals to deal with just these issues which were ignored by the Pelosiites in 2009. Might be time to dredge them back up.

    Kevin M (bf8ad7)

  46. oops, not DRJ, but daleyrocks. Sorry.

    Kevin M (bf8ad7)

  47. Thank you kind folks for your responses. I do realize this is very important and there is much legitimate discussion to be made. I guess it is the abundance of people eager to say something about it that for a moment made it feel like speculation over how the brackets are going to turn out in the NCAA basketball tourny.

    I actually did tell my 11 yo daughter, who cares to listen to political talk on the radio about as much as most 11 yo girls, that this might decide what the future looks like.

    MD in Philly (3d3f72)

  48. Thing about pre-existing conditions is, if you’re already insured, they’re not pre-existing.
    Exceptions are if you lie about them when you apply, or if you tell the truth. If you lie, bad on you. If you tell the truth, they either take you or they don’t. If they take you, the pre-ex is either covered or it is not. If it is covered, it may be after a set period.
    Few states let an insurer drop you because you got sick. Much of this whining is utter BS.
    Fed law requires each state to have an insurer who will take everybody. Gets expensive, of course. Pays to be insured and stay insured. If you lose your job and your coverage, you can stay on COBRA, where you find out just how much your employer has been paying for your health insurance.
    If you don’t get another job, you can get individual coverage, see above about pre-existing.

    Richard Aubrey (a75643)

  49. No, as for your last sentence, what polls really tell us is how successful various propaganda campaigns have been. Americans don’t know squat. But they’ve been issued opinions.
    And I really, really hope the Koch Bros./Tea Party thing wins out. Really do.
    Then we will be able to see the Republicans’ alternative, you know, what they plan to implement to replace Obamacare. Oh, nothing. Hmmmm.
    That means, of course, more death panels……which are housed in insurance companies and engage in recission, a nice legal contract term for coming up with ways to deny coverage to people who have paid their premiums but suddenly come down with expensive diseases.
    Go ahead, explain that one away with some sweet sophistry.
    It is, quite simply, the marketplace at work.
    Long live the free market. Huh?

    Larry Reilly (350101)

  50. If you tell the truth, they either take you or they don’t.

    And if they don’t?

    Kevin M (bf8ad7)

  51. Larry, maybe there should be a wager between which is more empty and feckless, a Republican alternative to ObamaCare or a Democratic version of an actual budget. The latter, I believe, is actually a recognized routine responsibility that is to occur every year.

    last comment.

    MD in Philly (3d3f72)

  52. Mawy Weilly is really butthurt, and said JournoLister trotted out all of it’s conspiracy theory fringe leftist talking points.

    JD (318f81)

  53. “The one-sidedness, DRJ, comes from the fact that the insurance company doesn’t need to renew every person every year, but each person absolutely does, and particularly does at the exact time the insurance company would rather not.”

    Kevin M – What you are proposing is the ability to force an insurance company to enter into a contract with you on terms on which they don’t want to agree. Would you grant the insurance company the reciprocal privilege of forcing you to enter into a contract with them (rather than moving to another insurance carrier or something) on terms you don’t like? If not, what you are proposing is indeed a one sided arrangement.

    You are strictly focused on the issue from the customer perspective, which is fine, but try looking at it from the insurer angle if you can.

    daleyrocks (bf33e9)

  54. “Americans don’t know squat. But they’ve been issued opinions.”

    Larry – You provide a perfect example of this phenomenon every time you stop by. Thanks for being you!

    daleyrocks (bf33e9)

  55. My COBRA expires in three years. I won’t be eligible for Medicare for another six. I won’t snivel about it. I live in Cook County and Cook County Hospital has the same doctors as Rush-Presbyterian-St. Luke’s, University of Illinois at Chicago, and Hines VA.

    nk (dec503)

  56. *Stroeger Hospital*

    nk (dec503)

  57. Then we will be able to see the Republicans’ alternative, you know, what they plan to implement to replace Obamacare. Oh, nothing.

    Oh, how I sorely this was the truth.

    Dustin (330eed)

  58. Larry has no memory: the republican alternative was part D. I can’t speak for the rest of the tea party, but I do believe the majority of us want some sort of tort reform, the ability to buy across state lines, but not another “republican alterna… Wait, Larry, do you actually think we have a free market system?

    The ignorance… Read a freakin economics book.

    Ghost (6f9de7)

  59. Larry. You go to the federally required insurer of last resort. They have to take you. I live in Michigan and Blue Cross was already doing that, with a six-month exclusion for pre-ex, waived if you went with them within sixty-three days of leaving another plan.
    Been in the business better going on years. Never had a client’s claim denied for reasons of pre-ex. If they take you, including the pre-ex if you disclosed it, they’ve got you, or you’ve got them, depending on how you look at it.
    Keep in mind that every sob story, every tearjerking poster child for dem health reform has been a fraud. Every. Single. One.

    Richard Aubrey (a75643)

  60. oops. Should be, “been in the business going on forty years.”

    Richard Aubrey (a75643)

  61. Serious blog-pimping here but I have four posts of analysis and lots of excerpts from the arguments. They are:

    If You Want to Listen to the Obamacare Arguments—Or Read the Transcrtipts…

    Of Federalism, Lochner and Broccoli: A Recap of the Second Day in the Obamacare Arguments.

    Severability, the Plain Text of the Eighth Amendment and the Meaning of Judicial Restraint: The First Session in the Obamacare Argument Today.

    and

    An Indecent Federal Proposal: The Second Session in the Obamacare Argument Today.

    the last three are meatier than the first one.

    And at the site in general, alot on the Trayvon Martin killing. Btw the latest, which i haven’t reported is that Spike Lee, when he tweeting Zimmerman’s address, tweeted the wrong address. Gosh it is screw ups like that which give a lynch mob a bad name.

    Aaron Worthing (73a7ea)

  62. And now for something completely different, two liberals discuss why the mandate is unconstitutional:

    http://www.blogtalkradio.com/johnwsmart/2012/03/29/the-john-smart-show

    As a bonus, you get to hear us get all “tenther” on how federal hate crime laws violate the separation of powers.

    BTW, obama chose the mandate because that’s what the insurance lobby (who came to the WH to write the damn law) wanted. And that’s why the Feds now are arguing that, if the SC must kill the mandate, then please take those burdensome insurance industry reforms with it!

    tamerlane (ff0ccf)

  63. AW, it has gotten so bad in FL with that wrong address; that the 70’ish couple who live there have had to move into a hotel, and have engaged the services of a top-flight law firm.

    I wonder if Spike has protected his income stream as well as OJ did?

    AD-RtR/OS! (f02a7e)

  64. “The odd couple of Steven Den Beste and Robert Reich think that if only the mandate is truck down, Dems will push for a single-payer system.”

    Story-boarding the permutations of SOTUS’s options, Ogabe’s play and Congress’s intent is probably far more than at least Den Beste intended and than could be achieved in a few thousand words.

    Today’s Scalia and Kennedy brainstorming alone would be daunting.

    1. Congress probably removed the severability clause to put the hurt on SOTUS. The mandate has to go but tossing the chimera back to Congress is a catch-22. They would surely do something but would certainly make a bigger mess especially if Ogabe is involved.

    2. Den Beste was talking the Admin’s play, i.e., why did they move this up? Could they be so stupid as to think Obamacare would pass muster? Hardly, they are running against Congress and would love to add SOTUS to the card.

    3. The mandate is unconstitutional, Federal coercion of the States to do its unconstitutional bidding is as well. Just how does SOTUS rule on the Article 10 point of infraction? BTHOOM.

    4. Severability fails, Anti-Injunction doesn’t pertain.

    SOTUS’s easiest play is to toss the whole and not address the expansion of Medicare breach kicking it down the road.

    I suspect Robert’s is made of sterner stuff and may actually take Medicare on knowing his court could hardly improve with age.

    gary gulrud (d88477)

  65. “BTW, obama chose the mandate because that’s what the insurance lobby (who came to the WH to write the damn law) wanted.”

    Right, insurance companies were just dying to be regulated by the feds on top of their existing state regulation. I keep hearing this narrative from people who forget Obama’s constant dishonest demonization of the insurance companies. Saying they were only on board if the plan included an individual mandate to go along with the guaranteed issue and community rating provisions does not mean the insurance lobby was a big supporter of the bill. AARP was the big sellout of its members.

    daleyrocks (bf33e9)

  66. Obamabot: Let’s try to pass a Single-Payer system!

    Democrat: We can’t unless we want to get thrown out.

    Obamabot: So let’s try to pass a Single-payer system in disguise! *I’m a genius!*

    Democrat: We did. The people saw through the disguise. *where were you this past election?*

    Obamabot: Let’s try to pass a Single-payer system! The people will love it! I’m a geniu…

    Democrat: Unplug that…

    Secret Service Agent: This?

    *Unplugs the teleprompter*

    Obamabot: …

    Me: So what are you going to do when you become President, Mr. Romney?

    Democrat: That’s obvious: Pass a Single-Payer system.

    Rykehaven (35fbab)

  67. Comment by Larry Reilly — 3/28/2012 @ 6:50 pm
    Americans don’t know squat.
    — Well, you should know.

    And I really, really hope the Koch Bros./Tea Party thing wins out. Really do.
    — Those wacky Koch Bros. They have so much money they were able to grease ALL of our palms!

    Then we will be able to see the Republicans’ alternative, you know, what they plan to implement to replace Obamacare. Oh, nothing. Hmmmm.
    — Puh-leaze

    Icy (0ad44c)

  68. Comment by Larry Reilly — 3/28/2012 @ 6:50 pm
    Americans don’t know squat.
    — Well, you should know.

    And I really, really hope the Koch Bros./Tea Party thing wins out. Really do.
    — Those wacky Koch Bros. They have so much money they were able to grease ALL of our palms!

    Then we will be able to see the Republicans’ alternative, you know, what they plan to implement to replace Obamacare. Oh, nothing. Hmmmm.
    — If you don’t mind, we prefer to call it by it’s proper name: Seinfeldcare.

    That means, of course, more death panels……
    — Oh, did I mention that we don’t actually plan to replace it with nothing?

    Go ahead, explain that one away with some sweet sophistry.
    — Not quite sure how to go about doing that. Teach me?

    Icy (0ad44c)

  69. Sorry for the one-and-a-half posting. I blame my Koch Bros iPhone.

    Icy (0ad44c)

  70. I don’t suppose it helps Ogabe that the five ‘conservative’ tilting Judges are Catholic.

    gary gulrud (d88477)

  71. Enterprise is days away from Arabian sea. Makes like 4 carrier groups in the area.

    Iran oil flow slops to a halt.

    Israel buys airfield on Iraninan border:

    http://www.jpost.com/IranianThreat/News/Article.aspx?ID=263894&R=R1&utm_source=twitterfeed&utm_medium=twitter

    CiC puts off unilateral nuclear disarmament and surrender until after the election.

    Israel cancels religious holidays and leaves for armed forces.

    Yu No Hu Dis Heps.

    gary gulrud (d88477)

  72. Chuckeheaded Manchurian now bequeathed world-wide stock swoon, Spanish general strike-no one’s got a job anyway, Portugal’s lenders are down-graded, Japan in death spiral, inventories at highest level of the depression, home values back to the 9/11 past,…

    Oh, yeah, Debt Ceiling fight begins ahead of September breach.

    Born under a bad sign.

    gary gulrud (d88477)

  73. Rubio went weak in the knees following O’Lenin’s entreaty in Moscova:

    “We have to win this election in November. We have to!”

    Young man, that Red Ryder would certainly put your eye out.

    gary gulrud (1de2db)

  74. gulrud to rescue
    he’ll do whatever it takes
    to ensure defeat

    Colonel Haiku (59d8ef)

  75. I don’t know Gary, that Perry fellow has more broken
    plates, then a Greek restaurant,(sorry NK), the fact that the Siloviki’s straight man, did go after Romney, was a credit in his favor.

    narciso (83bb81)

  76. “Right, insurance companies were just dying to be regulated by the feds on top of their existing state regulation.”

    It was a quid pro quo in return for getting millions of healthy, new customers they’d otherwise never get. It made good business sense. Not to mention much better for their continued existence than the alternative, single-payer. But with no mandate to force these ‘golden geese’ to buy, then the deal’s off.

    3/4 of Americans wanted a public option, 2/3 wanted universal, single-payer. obama was riding a wave in 2009, had that “super-majority”. A savvy party leader — one not in the bag for the insurance lobby — could have gotten whatever they wanted passed. The public option never made it out of the WH. ACA is exactly the law obama wanted from the start, and the best option for an insurance industry facing extinction.

    tamerlane (59c3ab)

  77. 3/4 of Americans wanted a public option, 2/3 wanted universal, single-payer. obama was riding a wave in 2009, had that “super-majority”. A savvy party leader — one not in the bag for the insurance lobby — could have gotten whatever they wanted passed. The public option never made it out of the WH. ACA is exactly the law obama wanted from the start, and the best option for an insurance industry facing extinction.

    BS. Remember folks, this one was advocating tearing down the system so single payer would arise in another thread. It is offering up the same disingenuous nonsense that the Barcky sycophants did while the Dems were creating this travesty.

    JD (318f81)

  78. That was the whole point, that Obama was explaining in 2007, at the time he opposed the mandate, Schackowsky and Hackerr, have made similar arguments
    through 2009.

    narciso (83bb81)

  79. “It was a quid pro quo in return for getting millions of healthy, new customers they’d otherwise never get. It made good business sense.”

    tamerlane – It made good business sense according to liberals who don’t understand business. The idea that insurance companies in the health insurance line, a not particularly lucrative segment of the market, were already being dishonestly being demonized for being too profitable, were eager to submit to a new regulatory regime of people who knew nothing about insurance but were eager to constrain their unconscionable profits just because it would provide a new stream of customers is as weapons grade stupid as those top level public opinion polls you cite. Seriously, pull my other finger.

    daleyrocks (bf33e9)

  80. 74. Santorum still my bet in WI:

    http://abcnews.go.com/blogs/politics/2012/03/rick-santorum-tries-to-bowl-over-wisconsin/

    Bowling would have been a wise move in OH too. What did Obie get a 19 or some ridiculous preschool score?

    gary gulrud (1de2db)

  81. tamerlane – Insurance companies were brow beaten, demonized and bludgeoned into going along with ObamaCare. Just like banks and Wall Street firms were demonized into going along with government intrusions into their business which the Obama Administration believed TARP allowed them to make. Obama advisors knew the ACA would not work without the individual mandate and so did the insurance companies. The examples are out there for people to see of states experimenting with guaranteed issue and community rating – New York, Tennessee, Maine, Massachusetts. Premiums rates skyrocketed and in many cases consumer choices became more limited because carriers exited.

    This push from insurance companies is a figment of your fevered imagination.

    daleyrocks (bf33e9)

  82. daleyrocks,

    I come here because I find Aaron’s analysis of constitutional law informative and thought-provoking. Aaron is an occasional guest on the John Smart show, where I am a regular. I hope to find common cause among conservatives, libertarians, and true liberals (as opposed to progs) to combat the dangerous & accelerating undermining of our Constitution and civil liberties.

    My personal policy is not to pick ideological fights at blogs where my political views are decidedly in the minority (though I entertain all viewpoints at my own blog.) So I’ll have to resist the urge to respond to your points in detail.

    I will add just one observation: obama is a demagogue, & what he says and who he demonizes in public is pretty much never what he does or who he panders to behind closed doors.

    tamerlane (7d9e53)

  83. “this one was advocating tearing down the system so single payer would arise in another thread”

    JD,

    Not sure if I’m “this one” or what “other thread” you refer to. But, as a liberal, I do advocate single-payer. Y’all are naturally opposed, and that’s a battle of ideas that should be fought in public and in Congress.

    Where I hope we can agree is, a means like the mandate is never justified by the ends. I break from others on the Left, who are willing to make a Faustian bargain, getting a mediocre (from a liberal’s perspective) health care reform in exchange for granting the federal government plenary police power over every citizen from the moment of their birth.

    tamerlane (7d9e53)

  84. You ARE “this one”. You are!

    “Teh Won” was already taken.

    Icy (0ad44c)

  85. Santorum still my bet in WI

    — Romney leading in the polls there by an average of 10.5 points.

    Icy (0ad44c)

  86. Israel buys airfield on Iraninan border

    — Regurgitate completely unsubstantiated rumors much, gulrud?

    Icy (0ad44c)

  87. “So I’ll have to resist the urge to respond to your points in detail.”

    tamerlane – It doesn’t matter to me why you are here or what urges you feel you need to resist. Advancing narratives that don’t pass the pink face test are going to resisted on this blog.

    daleyrocks (bf33e9)

  88. 86. Like 11th circuit dogma on ‘severability’. The presence or absence of a clause indicates legislative intent. The idea that the Court is duty bound to fix legislation, particularly a 2700 page framework for Bureaucratic definition of healthcare regulation is moonbarking lunatic fabulism.

    Congress would have to quintuple their operating budget for the purpose.

    gary gulrud (d88477)

  89. 85. The link to the Jerusalem Post amounts to unsubstatiated rumor?

    84. “leading by an average of 10.5″, yes two polls. Rasmussedup, whose ‘Willard over Wicky’ swing, post election, in prior contests averages 10.5 points to Wicky’s good.

    The second poll is by Marquette U Law School a major player in Milwaukee County polling anyway, yet I find their 8 pt. margin is more serious than Rasbatsh*tson.

    Robosurveys: tell us lil’ buddy, how we correct our sample’s model of the population for hangups?

    gary gulrud (d88477)

  90. 85. Cont.

    http://www.foreignpolicy.com/articles/2012/03/28/israel_s_secret_staging_ground

    Bolton thinks the info was leaked to Israel’s detriminent by our government:

    http://www.foxnews.com/politics/2012/03/29/bolton-accuses-administration-leaking-story-on-israeli-planning-along-iran/

    “Unsubstantiated rumor”.

    gary gulrud (d88477)

  91. PanARMENIAN.Net – Azerbaijan on Thursday, March 29 denied allegations made by a U.S. magazine that it had granted Israel access to its air bases which could assist in potential strikes against its neighbour Iran, AFP reported.
    Citing anonymous senior U.S. diplomats and military intelligence officers, the article published in Foreign Policy magazine on Wednesday suggested that cooperation between Azerbaijan and Israel was “heightening the risks of an Israeli strike on Iran”.
    The article suggested that access to Azerbaijani airfields near the Iranian border could give Israeli fighter planes logistical advantages in carrying out sorties against nuclear facilities in Iran, which the Jewish state suspects of developing atomic weapons.
    But the Azerbaijani defence ministry said the claims were untrue. “This information is absurd and groundless,” defence ministry spokesman Teymur Abdullayev told AFP.
    A senior official at Azerbaijan’s presidential administration said such speculation was “aimed at damaging relations between Azerbaijan and Iran”.
    “We have stated on numerous occasions and we reiterate that there will be no actions against Iran… from the territory of Azerbaijan,” presidential official Ali Hasanov told journalists in Baku.

    — Note how those claiming that it’s a done deal are all anonymous, while those denying it are all named. Just sayin’.

    Icy (ef96c5)

  92. Amid the latest band of endorsers(Ryan tipped to fall in line this AM) early endorser moving on:

    http://www.huffingtonpost.com/2012/03/29/chris-christie-2016_n_1389797.html

    Well, ‘we gave it the ol’ college try’.

    gary gulrud (d88477)

  93. It seems the kind of move a Pillar, a Scheuer, would spread, the fact that Perry got it, friend
    of Hezbollah, sort of confirms it.

    narciso (6db04f)

  94. In #7 Dustin’s post he says: “Shame on everyone who thought the federal ind mandate was constitutional. We need to keep their feet to the fire when it’s time to appoint justices who must disagree with that. I’m talking about Republicans who will appoint better jurists than Obama… but I want them to be much better than just ‘better than Obama’s’“.

    I disagree with Dustin. A case can be made that the individual mandate is constitutional based on the general welfare clause in article 1 section 8 which states: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

    Healthcare and the mandating of it is in my view essential and necessary for the common welfare of our nation. Those that choose not to carry health insurance are likely to become beneficiaries of those of us that do purchase health insurance at some point in their future. This to me is totally unacceptable unless we choose to allow these people to die when they can’t afford to pay for their healthcare. As a fellow human being I wouldn’t and couldn’t allow this to happen.

    So tell me what our alternative are. Is it to continue letting the “free market” solve our problems…I don’t think so as their profit motivation leaves us exactly where we are today.

    Dominic DiFrancesco (486a44)

  95. Healthcare and the mandating of it is in my view essential and necessary for the common welfare of our nation

    No it isn’t.

    The government forcing people to buy products they don’t want is not constitutional. If you stretch the Federal government’s power to the point where it can come up with this amazing power, then we do not have a constitutional government at all. We just have an unlimited government based on your feelings of fairness.

    This to me is totally unacceptable unless we choose to allow these people to die

    The problem with socialism is that you eventually run out of other people’s money. That’s what’s happening with the entitlements both parties are likely to preserve until financial collapse.

    Then what? Then all these things you’re saying are unacceptable will happen anyway.

    Because you can’t build utopia. That is not what the constitution is about.

    Tend to your own life.

    Dustin (330eed)

  96. Is it to continue letting the “free market” solve our problems…

    Sheer comedy. DiFrancesco thinks that there was a “free market” in something (baffled if he thinks it was health care or health insurance, since he can’t keep straight what the hell he’s talking about …).

    Pure comedy.

    SPQR (26be8b)

  97. Maybe some problems won’t be solved.

    Maybe as health care develops more awesome therapies that, those treatments have to be rationed via prices that go to develop more treatments.

    And yes, profits. And rich people. I like that developing medicine can be lucrative. The alternative is what?

    And there is no solution. You can either omit the most advanced medicines or they exist in a system that requires a lot of money.

    Maybe the world isn’t meant to be perfect, and pointing to this imperfection is not a good justification for more government and less freedom.

    They say health care is too expensive. 1950s health care isn’t. The best food, the best house, the best clothes, I don’t think anyone’s entitled to that.

    I’d rather not let another bloated entitlement system run by bureaucrats choose what’s right for me. It sure won’t be the best healthcare, anyway.

    Dustin (330eed)

  98. DiFrancesco still searching for that “nanny-state clause”.

    Icy (ab2a58)

  99. 95. Ace quotes Carvin’s pitch to Kennedy:

    Mr. Carvin responded that the law actually frustrated individual responsibility. “They’re compelling us to enter into the marketplace,” he said, but “they’re prohibiting us from buying the only economically sensible product that we would want, catastrophic insurance.”

    Here we have perversity and coercion enshrined. Is it ‘Constitutional’ to have a ‘bad actor’ government without recourse?

    gary gulrud (d88477)


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