All the News That Is Fit to Spin

Well done, NY Times:

The reality? This is round 15, and the score is now 1-14:

So the “big” story is that a district court judge has ruled that health care reform’s individual mandate is unconstitutional, dealing reform a Massively Major Blow. That must mean the “little” story is that in fourteen previous cases, judges have either dismissed cases against the law’s constitutionality or ruled against those cases. From the White House comes this roster of some of the rejected cases:

    Sollars v. Reid -dismissed 4/2/10
    Taitz v. Obama – dismissed 4/14/10
    Archer v. U.S. Senate – dismissed 4/12/10
    Heghmann v. Sebelius – dismissed 5/14/10
    Mackenzie v. Shaheen – dismissed 5/26/10
    Fountain Hills Tea Party Patriots v. Sebelius – dismissed 6/2/10
    Coalition for Parity Inc. v. Sebelius – dismissed on 6/21/10
    U.S. Citizens Association v. OMB – dismissed 8/2/10
    Baldwin v. Sebelius – dismissed 8/27/10
    Burlsworth v. Holder – dismissed 9/8/10
    Schreeve v. Obama – dismissed 11/4/10

And if those cases represent the little story, then the puny story must be that in two previous cases a federal judge has ruled that the individual mandate is perfectly constitutional.

Do they even try to get things right at the NY Times?

100 replies
  1. 1
    geg6 says:

    Not to mention that his legal reasoning leaves much to be desired, even according to some conservatives:

    http://www.washingtonmonthly.c.....027080.php

  2. 2
    shortstop says:

    Michael Shear again.

  3. 3

    Look, if the mandate is removed and the private insurance companies go bankrupt and force us into single payer govn’t run health care I’m fine with that tbh.

  4. 4
    cervantes says:

    Yabbut it doesn’t matter, this case will reach the SC and once it gets there, the constitution, precedent, the law and common sense won’t matter. Y’all know damn well there are 5 votes to declare the PPACA unconstitutional, and probably throw in the unconstitutionality of Medicare even though it isn’t part of the case, no matter what.

  5. 5
    eemom says:

    oh God…..I live in this state…….I HATE that guy……WHY must you plant his disgusting mug on the top of the blog??

    Please, another post……somebody, anybody…..

  6. 6
    LittlePig says:

    @shortstop: Yep. I’m sure Shear gets starbursts whenever Stonewall Cuccinelli appears.

  7. 7
    Third Eye Open says:

    Welcome to the horse-race, complete with all the horse-shit you can stomach, plus some.

    I am updating my Visa today, and I am out of this place. Call me when we invade Mexico.

  8. 8
    Martin says:

    Wait, they’re counting Taitz vs Obama as a victory? That’s like putting Mike Tyson in the ring with Trig Palin and afterword bragging about Tyson’s undefeated record.

    Can we only claim victory for cases that at least have the appearance of merit?

  9. 9
    Agoraphobic Kleptomaniac says:

    I’m orrin hatch and I aprove this headline. Individual mandates (from democrats) are unconstitutional, unlike my individual mandate in 1993 which was responsible.

    edit: comma attack!

  10. 10
    Tim I says:

    Damn, if you don’t vex those intrepid reporters at the Gray Lady.

    Clearly you don’t understand journalism. News is not news unless it hurts the Obama Administration!

    Republicans tell 9/11responders to go f@@k themselves – not newsworthy. Fourteen Federal Judges rule that HCR is constitutional – not news.

    One judge in Virginia rules the opposite – that’s big news! Like the time Obama used the word ‘arugula’ in addressing Iowa farmers. That dominated the media for days because it proved Obama was an elitist.

  11. 11
    Stillwater says:

    Do they even try to get things right at the NY Times?

    Of course they do. The facts might not support their headline, but pesky facts don’t tell the whole story. The deeper truth is that a court finally ruled the right way. Yay!

  12. 12
    Zifnab says:

    The reality? This is round 15, and the score is now 1-14:

    They only needed one point to advanced to the next round. Now you’ve got disagreement at the federal level, so appellate courts will address the issue. If you can find one appellate court to disagree, you move the ball again.

    Eventually, you’ll get to the SCOTUS. And that’s where the deck is stacked for the GOP to win.

    @mikefromArlington:

    Look, if the mandate is removed and the private insurance companies go bankrupt and force us into single payer govn’t run health care I’m fine with that tbh.

    Private insurance won’t go bankrupt. They’ll get bailed out. Single payer won’t be forced on us, because there is no Congressional majority to pass it.

    Funding for health care will be gutted. The health care industry in the US will crumble, driving up costs even further. And we’ll all just have to adjust our standards of living to accommodate our new fiscal reality because pappa needs his tax cuts.

  13. 13
    harokin says:

    I always feel sorry for the people who have to come up with some headline for some crappy profile piece. It’s the Times, so they can’t go with the obvious “Coochie Who?” — they have to make a somewhat informative, somewhat enticing headline. And blew it, because they weren’t aware of the other cases and were trying to make this more dramatic.

  14. 14
    Jewish Steel says:

    @mikefromArlington:

    Right. Why does the right want to gut the one thing that will provide a windfall for ins companies and prop up our lousy system?

    Martin? I know know you’re around here somewhere.

    ETA: Oh, there you are upthread.

  15. 15
    david mizner says:

    The NY Times headline is accurate. You might not like it, but it’s accurate.

  16. 16
    Lolis says:

    Yeah, our media sucks.

  17. 17
    david mizner says:

    @david mizner:

    Accurate as well as fair, I should say.

    Many of us knew that a mandate w/o a PO would create political, moral, and possibly constitutional problems.

    Personally, I think the mandate is probably legal, but subjecting the law to a conservative court system? Not smart.

  18. 18
    Davis X. Machina says:

    @Jewish Steel:

    Why does the right want to gut the one thing that will provide a windfall for ins companies and prop up our lousy system?

    They’ve gone full Lord-of-the-Flies mode and would rather defeat the other band than all get rescued together, near as I can figure.

  19. 19
    Danny says:

    My favorite part of this will be when Rush Limbaugh points out that even the “liberal” New York Times agrees with him. Awesome times.

  20. 20
    jsfox says:

    @david mizner:

    Accuarte? Well more accurate would be 2 to 1 in favor of mandates just in cases bought by the states. Next since Hudson seems to have both a conflict of interest issue and with his understanding of The Constitution this ruling is ripe to be overturned in the 4th Circuit. So a massive blow? I’m not seeing it

  21. 21
    d.s. says:

    If the Supreme Court rules against HCR, they’ll rule that the insurance regulations and subsidies are unconstitutional, and keep the mandate in place.

    This is just political theater for the rubes. No conservative court is going to keep all the benefits of health care reform in place but remove the mandate.

  22. 22
    freelancer says:

    John,

    Can you post something happy? Silly even? or Cool? Like this. This is pretty cool, too, if it turns out to be for real.

    It’s not even 2pm here in CST, and I feel like opening a vein here at my desk at work. Seriously, bring us up a little bit.

    Thanks,
    Your entire readership.

  23. 23
    Kryptik says:

    @Stillwater:

    Bingo. It’s only news because finally, a judge ruled ‘correctly’, that means our Galtian paradise is just a Supreme Court ruling away! Celebrations!!

    @david mizner:

    It’s not whether or not the mandate is worth it, it’s the fact that the headline is characterizing this as somehow the very first fight on the damn thing, and that the ‘good guys’ won, when it’s not. It’s not even the first federal court ruling on it.

  24. 24
    Martin says:

    OT for CA residents:

    Brown is having another budget summit right now focused solely on education. The legislature is almost completely boxed in on what they can do thanks to a number of voter initiatives, but the sound is that the worlds 8th largest economy should be able to find a way to generate enough revenue to fund education at a higher level than Alabama does.

  25. 25
    jwb says:

    @cervantes: The conservative activist judges on SCOTUS may well prove to be the bane of the conservative movement by giving them what they say they want (but really don’t).

  26. 26
    singfoom says:

    To be fair to the NYTimes, in a very narrow sense the title is correct. He won the first round of his court challenge to the law. The other rounds are all independent, like a game tournament.

    In the larger national perspective, the title doesn’t make any sense when you look at the 14-1 record of suits against the law.
    So, John, you’re both right and wrong but it doesn’t really matter as others have pointed out….. It’ll get kicked up to SCOTUS who will rule in whatever way the wingers want, despite any previous precedent because the Roberts court has no respect for precedent at all.

  27. 27
    Jewish Steel says:

    @Davis X. Machina:

    Sure. But you can understand their distaste for policy that originated from a bunch of radicals. Dole, Hatch, Grassley. A coven of Trots.

  28. 28
    The Ithacan says:

    I read the NYT faithfully, virtually every day starting in early September 1977. When they hired Bill (wrong about everything) Kristol in 2007, I stopped buying the Monday Times.

    I discovered I could live with out the NYT one day a week.

    Not long after that I gave up on the Sunday Times.

    Within a year I stopped buying it entirely.

    I am now much better informed about politics.

    When I think of all the years I took BoBo seriously it makes me throw up in my mouth a little.

  29. 29
    d.s. says:

    @jsfox: Indeed.

    Was the expectation that conservatives would find zero judges across the country willing to rule parts of HCR unconstitutional?

    Getting one judge somewhere to say something isn’t the same as winning a case in the Supreme Court.

    Even if the Supreme Court upheld this ruling, it wouldn’t actually be a terrible result for reformers. All the “good parts” of reform would be upheld. The only thing eliminated would be the mandate, which Obama campaigned against.

    Now, eliminating the mandate will make health care reform more expensive, and will reduce the number of people with coverage, but it won’t “destroy private insurance” or destroy health care reform. It would just reduce the cost effectiveness.

    Six states currently have a ban on preexisting condition exclusions with no mandate. Private insurance hasn’t gone bankrupt in those states. It’s just about 30% more expensive than other comparable states, because they have to deal with a “free rider” problem.

  30. 30
    jwb says:

    @Zifnab: The whole employer-sponsored benefits system is set to collapse and if that happens it will bring down the insurance industry and health care industry with it.

  31. 31
    West of the Cascades says:

    I generally agree with the stupidity of the Times’s article here, but would point out that all it takes to overturn a statute is one case, no matter how many other judges have upheld it. Once there’s one crazy judge in Virginia (who will probably be affirmed by the crazy 4th Circuit), there will inevitably a circuit split as the other district courts that have found the act constitutional are (I hope) affirmed in those circuits.

    And then it’s up to the US Supreme Court which has 4 crazy judges and one judge who is barely sane but usually only if you mention privacy for gay people. There are lawyers all across America today frantically researching everything that Anthony Kennedy has ever written, said, thought, or consumed regarding health care.

    So although it’s 1-14 for now, the 1 really is a big deal.

    Although I generally like being a lawyer, this system sometimes seems preposterous.

  32. 32
    david mizner says:

    @jsfox:

    Why would a little profile about the man who brought the first successful challenge to the bill refer to all the other unsuccessful cases?

    There are others articles in the Times that take on the broad issue, including the “legal memo” that starts this way:

    “By contradicting two prior opinions, Monday’s court ruling in Virginia against the Obama health care law highlighted both the novelty of the constitutional issues and the difficulty of forging consensus among judges who bring differences in experience, philosophy and partisan background to the bench.”

    Although, truth be be told, the headline might not any more pleasing to you. It’s hard to tell the whole story in a headline.

    There’s real media bias everyday on every page. This is just silliness.

  33. 33
    Glen Tomkins says:

    News

    Man bites dog is news, dog bites man is not news.

    Not to defend the NYT, whose dog-nature is indeed no longer news, but I think you have to admit that the fact that anyone who managed to get on the federal bench, even after a generation of Federalist Society court packing, would rule that the mandate doesn’t fit within the Commerce Clause, is big time news.

    Sure, the headline should have been more along the lines of “Rabies Hits Federal Bench”, or “Federal Judge Bites”, or “VA AG Transmits Rabies to Federal Judge”, rather than anything adulatory. But 13 judges rulnig the other, non-rabid, way, just isn’t news in the same way that this judge ruling this way is news.

    Again, the story here is not that Cuccinelli is some sort of genius. The stroy is that Hudson may be acting as a stalking horse for what his Fed Society buds on the Supreme Court are planning to do, or perhaps the SC is not going anywhere with this, and Hudson is just providing ideological cover for the rabid House Republicans in their attempt to de-fund the ACA (“Some judges think the ACA is unconstitutional”).

    But this literally is the story of the century if this means that the R majority on the SC is going to uphold Hudson’s view of the matter. I say that because the mandate is so much milder an assertion of Commerce Clause authority than, say, Medicare or SocSec, that you would wonder why they would toss the mandate without also tossing Medicare and SocSec. That may be the plan. Hold on to your hats.

  34. 34
    burnspbesq says:

    John Cole:

    “Do they even try to get things right at the NY Times?”

    This seems to be the day when my mantra is “you know better than that.”

  35. 35
    David Hunt says:

    Do they even try to get things right at the NY Times?

    It’s a variant of how all problems in the U.S. sprang fully formed into existence at 12:01 PM on January 20, 2009. They start keep score when they get something like a win. Everything before that is practice swings.

  36. 36
    cleek says:

    given the lack of a separability clause, how does one kill the mandate without kill the whole thing ?

  37. 37
    Stillwater says:

    @The Ithacan: Does it taste like an Applebee’s salad bar?

  38. 38
    burnspbesq says:

    @david mizner:

    Does the term “materially misleading” ring any bells?

  39. 39
    Davis X. Machina says:

    @cleek: This justice seems to have written one in on his own where it was missing before, in an exercise of legislating-from-the-bench that only a liberal could love…but only a conservative could do.

  40. 40
    cat48 says:

    Ok, the story has disappeared at the NYT site. There are 6 different links & none now go to this story. His picture is used, but in a different way. They must have received a Hell of a pushback. They went with the Bush Judge above the fold on Today’s NYT. The Villagers are clearly thrilled with this decision. I finally turned off News. This Confederate dude & his egregious policies are just too much today. I expect to wake up one morning & see Va has rolled back Jim Crow Laws & the Villagers celebrating it. “Strong Leadership”

  41. 41
    Alex says:

    John, you’re being a bit inaccurate. My understanding is that the ACA has been explicitly held constitutional in only two other district court cases, one in Virginia and one in Michigan — both, naturally, by Clinton-appointed judges. These other dismissals are, like denials of writs of cert. on the Supreme Court level, not necessarily judgments on the merits of the case. Dismissals can be based on a variety of factors unrelated to the merits, including, e.g. standing. My estimation would be that this article was precipitated by the fact that Cuccinelli undertook a political risk by not signing onto a similar constitutional challenge being made in the Florida courts. The latter suit was joined by several other state AGs, and many of them criticized Cuccinelli as a grandstanding opportunist for filing his own suit.

  42. 42
    Glen Tomkins says:

    @cleek:

    Separability clauses only serve to make legislative intent explicit. They aren’t necessary in order for the courts to find only one provision of a law unenforceable without distrurbing the other provisions. The lack of one does not endanger any other provision of the ACA except insofar as such provisions and the mandate might be logically inseparable.

  43. 43
    jwb says:

    @Glen Tomkins: If SCOTUS invalidated social security or medicare the US would either dissolve or fall into actual civil war within a decade. It would be that traumatic.

  44. 44
    burnspbesq says:

    @cleek:

    You silly boy. You do exactly what Judge Hudson did: make shit up.

  45. 45
    harokin says:

    @Glen Tomkins: Totally agree. This is much bigger than ACA. The fundamental social contract we have had for the last 75 years is getting ripped up.

    And you can bet the Fourth Circuit will affirm.

  46. 46
    harokin says:

    @burnspbesq: This is really beyond me, but a friend suggested he had to find non-severability because of his ruling on N&P. I don’t really get that from the opinion, but thought it was an interesting theory.

  47. 47
    jsfox says:

    @david mizner:

    David my point was you seemed to be agreeing that this is a massive blow to The Affordable Care Act. And one ruling by one Federal District Judge that based on what I have read (by no means an exhaustive reading) seems to indicate he could easily be overturned. I’m not seeing the massive blow by this one case. Now if I got the reading of you initial comment wrong . . . I’ll gladly admit my failure at reading comprehension.

  48. 48
    lacp says:

    Isn’t Cuccinelli the dipstick who is (or was) hassling climate-change scientists?

  49. 49
    IrishGirl says:

    The right-wing meme spouting of the NY Times no longer surprises me. However, this morning, even NPR was spouting nonsense about how this ruling was a “major upset” for HCR. Hasn’t there been at least three court rulings so far and 2 of them said it was constitutional and only 1 said it wasn’t……It’s starting to make me feel like I’m the only sane person in an insane asylum.

  50. 50
    Stillwater says:

    @cleek: how does one kill the mandate without kill the whole thing?

    Not a lawyer, but this is my understanding as well. If any part of a bill is deemed unconstitutional, then the entire bill is rejected. It’s not like (at least on my understanding) the SC has a line item veto of parts of bills.

  51. 51
    Alwhite says:

    When even the far left liberal New York Times calls it a win for Republicans you know it must be!

    I don’t think the Republicans are against this act in theory – it is after all primarily Bob Doles counter offer to Clinton. They invented the mandate, this bill gives a lot of money to the insurers, the drug companies and the like.

    But, like cap-n-trade, they only like it when they do it. When the Dems do it it is eeeeeeeeevil & must be stopped. They don’t care about America, only about ruling.

    As for the NYhoTimes? They want so badly to be loved by the right, to have the right stop calling them bad names & they know if they just try a little harder & not do those things the right hates they are sure that this time it will work.

  52. 52
    General Stuck says:

    @jwb:

    If SCOTUS invalidated social security or medicare the US would either dissolve or fall into actual civil war within a decade. It would be that traumatic.

    Yup, and still I wouldn’t reject out of hand, musings that the SC will not impose for the first time, significant limits on the other two branches using the CC for federal interventions. There is an ideological savior complex stench rising from the entitled and supremacy airs of the right wing in this country right now. And recently, the supremes have been on a tear overturning precedent. Such a ruling on ACA would open the door to challenge all sorts of CC structured laws in this country, including most federal forays into environmental protection.

    Though I am not sure Kennedy would go along with this legal nihilism, but the others, oh yea.

  53. 53
    Martin says:

    @Jewish Steel:

    Right. Why does the right want to gut the one thing that will provide a windfall for ins companies and prop up our lousy system?
    __
    Martin? I know know you’re around here somewhere.

    Wha? Someone called?

    Simple: politics rules all. They want to defeat Obama worse than they want to prop up insurers. Further, I think the GOP knows full well that ACA will help – maybe help a lot – with the entitlement problem. If the Dems can actually fix Medicare, that takes a big campaign issue away from the GOP.

    But also remember, it’s only a windfall for insurers in a fairly narrow context. It brings them revenues at the cost of profits. I think the insurers are more than happy with that arrangement because revenues keep you alive. But they lose their profit margins pretty much by fiat – ACA requires their profit+administrative costs stay under 15%. The GOP hates that shit, and frankly I do too, but there’s really no alternative. That means that health insurers will perpetually be shitty investments, and that I suspect is the bigger problem for them.

  54. 54
    eemom says:

    @lacp:

    yes, and his witch-hunt subpoena againt UVA got slapped down by a state court judge who is NOT a partisan hack in a black robe.

  55. 55
    Alwhite says:

    @cleek:

    Because if you don’t have to buy insurance but the insurance companies MUST cover pre-existing conditions no sane person would buy insurance until they needed it. The cost of insurance would not be spread out over everyone only over really sick people and overly-cautious or not too bright types.

    What I wonder is wouldn’t this also rule out the sort of ‘no-fault’ insurance most states have for auto insurance? That has been a big money maker for insurance companies since you are required to have insurance.

  56. 56
    jwb says:

    @General Stuck: Oh, I don’t discount the possibility. The SCOTUS conservatives have not shown themselves to be terribly astute. And if it didn’t result in dissolution or civil war, it would undoubtedly severely fracture the conservative coalition and scramble the political deck in completely unpredictable ways.

  57. 57
    harokin says:

    @Stillwater: No. It depends on the circumstances. The court can strip the objectionable part out and leave the rest in. One of the parts of the opinion conservatives are “heh-indeed”ing over is where the judge says this giant bill was passed so quickly and with so little thought, it’s impossible to figure out what congress would have done without the mandate.

  58. 58
    Davis X. Machina says:

    @jwb:

    The whole employer-sponsored benefits system is set to collapse and if that happens it will bring down the insurance industry and health care industry with it.

    This has mystified me for a while.

    Why the savage opposition to what is essentially the Health Insurance Captive Market, Mild Profitability and Long-Term Survial Guarantee Act of 2010?

    Are long-terms trends so bad for private, for-profit HI that the only viable business plan left is being the last survivor, and going through your competitors’ corpses’ pockets for change on the way to Chapter 11?

  59. 59
    david mizner says:

    @jsfox:

    Oh, no, I don’t think a massive blow. (I don’t think the headline suggests it is, but…)

    This is really isn’t important, now that I think about it. I’ll see you elsewhere…

  60. 60
    Bill Arnold says:

    To be slightly fairer, this was Cuccinelli who was saying that it was round one, and it was round one, for him.
    Still pathetic to title the story that way though.

  61. 61
    Mnemosyne says:

    @Davis X. Machina:

    Why the savage opposition to what is essentially the Health Insurance Captive Market, Mild Profitability and Long-Term Survial Guarantee Act of 2010?

    I can’t Google it at the moment, but I know I’ve read several times before that insurance premiums are much more tied into the insurance company’s luck in the stock market than they are to the cost of any actual services the insurance company provides.

    If the ACA is messing with the Wall Street’s ability to take other people’s money and gamble with it, you’re going to get fierce opposition even if it’s going to hurt what is supposed to be the insurance company’s primary business. Playing the big casino is everything, and the casino owners own the board.

  62. 62
    Mnemosyne says:

    You know, it’s very difficult to talk about Wall Street when you’re not allowed to mention that they’re in the gambling business. Stupid moderation.

  63. 63
    singfoom says:

    @Davis X. Machina: The problem is that you’re discussing the merits of this policy. As we all know, it’s not the outcomes or the policy itself that matters. This was a Democratic piece of legislation, passed under a Democratic President.

    Therefore, it is a threat to jeebus and country and all that nostalgic 1950/1850s bullshit that our current crop of so-called conservatives and religious whackjobs must fight with the core of their being.

    Our politics has become full meta. It is not about the policy and it is not about the outcomes. It is about pitting those who have brains and a little money vs. those with no brains and a little money against each other so they won’t notice banksters and their friends picking their pockets as they fight.

    I continue to hold out hope that this will change, but all past evidence IMHO points towards this trend continuing.

  64. 64
    singfoom says:

    @Davis X. Machina: The problem is that you’re discussing the merits of this policy. As we all know, it’s not the outcomes or the policy itself that matters. This was a Democratic piece of legislation, passed under a Democratic President.

    Therefore, it is a threat to jeebus and country and all that nostalgic 1950/1850s bullshit that our current crop of so-called conservatives and religious whackjobs must fight with the core of their being.

    Our politics has become full meta. It is not about the policy and it is not about the outcomes. It is about pitting those who have brains and a little money vs. those with no brains and a little money against each other so they won’t notice banksters and their friends picking their pockets as they fight.

    I continue to hold out hope that this will change, but all past evidence IMHO points towards this trend continuing.

  65. 65
    burnspbesq says:

    Steven Lubet of Northwestern has come up with the best concise description of the legal theory underlying the district court opinion.

    “(1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.”

    http://balkin.blogspot.com/201.....r-one.html

  66. 66
    Davis X. Machina says:

    @Mnemosyne: There’s a potential comment, in which a State-owned slot machine at a People’s Gambling Palace spits out prescription erectile-dysfunction medication, that will destroy this entire website.

    Don’t make me post it…..

  67. 67
    jwb says:

    @Davis X. Machina: What’s mystified me is that it seems like it should be in the clear interest of corporate America to get the health care costs off their books (as they are in almost every other country), so they should, I would think, find something like Medicare for all an appealing idea. But they seem to feel that being fleeced by the insurance industry and health care industry is preferable to being taxed by the government, even if the tax, as it seems, would be much better for their bottom line.

  68. 68
    Omnes Omnibus says:

    @jwb: Corporate overlords have become ideologues. It is bad for business, but what can you do?

  69. 69
    Davis X. Machina says:

    @jwb: It’s hard to fathom — it reminds me of Pseudolus at the beginning of A Funny Thing Happened on the Way to the Forum loudly insisting on his right to be scourged by his owners — otherwise there’s no advantage to being a family slave.

    Attention, Corporate America: Dudes, you’re going to get beaten either way.

  70. 70
    Stillwater says:

    @harokin: Is there a case in which the SC ruled against a provision in an otherwise constitutional bill, yet sustained the remainder? I don’t see how that’s possible, and my reading of various cases (limited to the Opinions) seems to suggest otherwise. I’d like to know of any such cases if they’re out there.

  71. 71
    harokin says:

    @burnspbesq: That’s good.

    In the 21st century, should there be any limits on federal power with respect to economic activity (or inactivity)? Do limits even make any sense to anybody outside the confederacy?

  72. 72
    Martin says:

    @Davis X. Machina: The long term trends are very bad, in large part because of how the insurance structure got set up in this country – particularly the fault of both insurers and employers.

    Bottom line – more and more of the public are being priced out of the system. Either individually or their employers (particularly small employers). As the insurers lose customers, they lose their revenue stability, and then you get in a cycle of having to extract even more money out of your limited customer base, pricing even more people out of the market. Because the medical community is more effective at expanding their menu of treatments than it is at innovating in order to reign in costs and because both states and the feds mandate that insurers cover certain things, the insurers are unable to reverse this trend. They are all in a financial death spiral, with M&A and gaining monopoly status in a given market the best means of survival. If we ever get a national medical crisis – a flu pandemic or some such thing, you’ll see them blow up just like the property insurance companies do after bad hurricane seasons.

  73. 73
    El Cid says:

    @The Ithacan: Chomsky once remarked that you could get a much better view about the point of an article if you first just skipped to the last few paragraphs. I tried that with a bunch of newspapers and sometimes it was eerily correct.

  74. 74
    jwb says:

    @Martin: I don’t think it will necessarily even be a medical crisis that will bring it all down. I think it’s more likely to be one company in a large industrial sector deciding that health insurance is too expensive and cutting the cord. All the other companies in that sector will then shortly follow suit. Then suddenly none of those workers will be able to afford insurance or health care, certainly not specialists. Then the specialist doctors won’t be able to pay off all the fancy machines they bought, etc., etc. The whole thing just goes kaboom.

  75. 75
    jwb says:

    Cool moderation. FYWP. Reposting.

    @Martin: I don’t think it will necessarily even be a medical crisis that will bring it all down. I think it’s more likely to be one company in a large industrial sector deciding that health insurance is too expensive and cutting the cord. All the other companies in that sector will then shortly follow suit. Then suddenly none of those workers will be able to afford insurance or health care, certainly not spec-ialists. Then the spec-ialist doctors won’t be able to pay off all the fancy machines they bought, etc., etc. The whole thing just goes kaboom.

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    El Cid says:

    Wait — weren’t there a number of pundits talking about how it was a Republican win of sorts just after HCR passed?

  77. 77
    Mogden says:

    The health care law is plainly unconstitutional. It is depressing that this fact even needs to be debated, much less that it is accepted Supreme Court doctrine.

  78. 78
    Nick says:

    @david mizner:

    Many of us knew that a mandate w/o a PO would create political, moral, and possibly constitutional problems.

    This would’ve been overturned even with a public option, and you’d be telling us “Many of us told you this would be unconstitutional if it wasn’t single payer”

    so cut the crap

  79. 79
    ThatLeftTurnInABQ says:

    @singfoom:

    It’ll get kicked up to SCOTUS who will rule in whatever way the wingers want, despite any previous precedent because the Roberts court has no respect for precedent at all.

    That may be overstating it a bit. I suspect that with enough rooting around in the caseload from the years 1935-1936 they can find some precedents worthy of respect. Ditto for the 1890s. The 1850s don’t look too bad either.

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    Bill Arnold says:

    @jwb:

    What’s mystified me is that it seems like it should be in the clear interest of corporate America to get the health care costs off their books…

    Have you ever watched Fox Business Network?
    It seems to be about 30-50 percent wingnut news. I wouldn’t be surprised if it was found to cause financial damage to those who watch it, except when it manages to instantiate its own reality.
    (I don’t watch with sound though or closed caption though, so can’t be sure.)

  81. 81
    Bobby Thomson says:

    Thought experiment. Imagine that DADT had been challenged 14 times unsuccessfully, never making it past a motion to dismiss. Imagine how the NYT would describe an outlier case ruling that DADT was unconstitutional. For that matter, imagine the NYT describing it at all.

    And it wasn’t just the NYT. All the corporate-owned media were breathlessly reporting this “huge setback” yesterday.

  82. 82
    Ash Can says:

    @Mogden: OK, then you’ll be able to rebut in clear detail for us all the points Koppelman makes in the link burnspbesq furnished. To make it simple, I won’t even ask you to address any of the points made in the other 14 court cases. Go ahead, you’re the expert. Knock yourself out.

  83. 83
    Nate says:

    Haha…the headline now says, “The Man Who Took On Obama Health Care — and Won One Round”. Notice they switched the placement of the “One”. Nice going NYTimes.

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    jwb says:

    @Bill Arnold: Except most business folks don’t let ideology get in the way of making money, which has traditionally been a far higher calling. Sometimes there is a disconnect between short-term and long-term optimization, but even that doesn’t really explain the positions in the current situation.

  85. 85
    El Cid says:

    What’s the functional or legal difference between a “mandate” on people who do not have health insurance to buy it giving them a ‘fine’ or a tax if they don’t, and a tax credit for those who do?

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  87. 87
    chopper says:

    @Nate:

    lol, that’s awesome. no notice or anything.

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    Triassic Sands says:

    Do they even try to get things right at the NY Times?

    That’s funny, John, the other day when you agreed with something in the Times you wrote this:

    I’ve kind of been telling you this for a while, but it is nice to see it in the NY Times…

    Hey, that’s the way it is. They get some things very, very right and others horribly wrong. Some reporters can be counted on for hackery, but we don’t know who the editors are and what effect they have on a story.

    I still think the Times may be the last indispensable newspaper in the US, but they do blow it on a fairly regular basis.

    I really laughed the other day when Krugman started out a blog post with this:

    “I don’t usually bother looking at the Washington Post.”

    Ten years ago I read (parts of) the Post (online) almost every day. Now, I almost never go there voluntarily — occasionally a link will take me there, and as often as not, once I see where I am, I just leave.

  90. 90
    Mike Lamb says:

    @d.s.: Actually, I could see the SCOTUS stating that Hudson was right that the mandate was unconstitutional, but incorrect that the mandate was “severable”–ergo, the whole thing goes buh-bye.

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    The Sheriff's A Ni- says:

    @jwb: Corporate America isn’t monolithic. There’s a lot of corporations out there who are as astute as we are, but they’re not the ones driving GOP policy.

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    Davis X. Machina says:

    @El Cid: Mandates are evil. Kill the Bill!

    It’s constitutional. If it isn’t, the entire neo-liberal system of using tax expenditures instead of transfer payments to provide the fundamentals of a social democracy goes down.

    This would leave us with a stark choice of models going forward between the Netherlands-Germany-France today or the US in 1905. They’d be the only two constitutionally kosher paths left.

    I can’t see the Supremes, even with Roberts and Scalia and Thomas, going into that coffin corner. Too many of those tax expenditures go directly into the pockets of the people who own the Justices.

  93. 93
    Glen Tomkins says:

    @jwb:

    Really? A second Civil War over ending Medicare and SocSec? The other side’s noise machine already has placed, as a very respectable, centrist, “No Label”, opinion, all sorts of ideas about Medicare and SocSec being already dead, and war has yet to break out.

    The beauty about having their activist judges do the dirty deed of actually executing SocSec and Medicare, is that it keeps the elected official elements of their conspiracy from having to touch the third rail themselves. Yes, that could prove tricky for elected officials to do directly. But this way, the indirect execution by the judiciary leaves the legislators and/or president among them to ride to the rescue with some alternate. They could even call the replacement programs SocSec and Medicare, if that will help quiet the masses.

    We’ve already seen their replacement for SocSec. Yes, Bush couldn’t get it as a legislative initiative when we were starting from SocSec as is still intact. But in the aftermath of SocSec’s unfortunate and untimely death at the hands of SCOTUS, none-dare-call-it-privatized-SocSec will look like a godsend. They’ll call it SocSec, just with a new funding model mandated by the SCOTUS decision. Money will no longer be collected by the gummint to be handed out to other workers, it will go into individual “investment” accounts. Everyone but the DFHs will agree that this will yield higher RoI. Who, but the DFHs, will be unhappy?

    Their replacement for Medicare will be enhanced federalism. Remember, the Cuccinelli lawsuit arose from an act of nullification by VA. Cuccinelli doesn’t beleive that no govt can impose a mandate, he believes that the federal govt cannot impose a mandate precisely because that power is reserved to the states. While the federal govt is strictly limited in what it can do by Art I, sec 8 of the Constitution, the 10th makes clear that the states retain the whole array of the original plenary powers enjoyed by all sovereign states. The fed is strictly limited in what it can do, the states are not, or so will go the mantra in the world post-mandate-rejection by SCOTUS. Medicare will be able to continue in those states that want it, because these states will be able to do what the federal govt cannot, compel their citizens to buy health insurance, private (the mandate) or public (payroll deductions to support Medicare.).

    The Right will get its states’ rights, and will use it to bring back second-class citizenship in the Red states. Denying many people in their states health care will be just one more way of controlling them. If these second-class citizens, or the Blue states, respond with violence, well, I’m sure the Right is confident they will prevail. The prospect of a second Civil War may terrify you, but it exhilerates them. “Bring it!”, is their cry.

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    Glen Tomkins says:

    @lacp: Yes, indeed, Cuccinelli is that very dipstick.

    He wants to be governor in 3 years, and his numbers aren’t so good, because he has all sorts of dipstick, too crazy even for VA, irons in the fire. Validation by a federal judge iof one of his many dipstick suits was a godsend. That may be the only reason that Hudson decided this way, knowing that he will probably be reversed, but at least he buys Cuccinelli some respite by validating him as not completley off-the-wall.

    That’s the optimistic take. See my other comments for the possibiliuty that Hudson’s Fed Society co-conspirators in SCOTUS will uphold him.

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    Glen Tomkins says:

    @General Stuck: They will use the Imperius curse on Kennedy. It seems to be working splendidly on Obama.

  96. 96
    General Stuck says:

    @Glen Tomkins:

    It seems to be working splendidly on Obama.

    You just can’t yourselves, can you? Even when commenting on the SCOTUS, got to slip that Obama fail shiv in.

  97. 97
    agrippa says:

    40 to 60% of the eligible voters in the USA do not vote. And, so many have very little knowledge of what is taking place. They, certainly, have no idea of what may happen with medicare and social security.

    Most have little idea of what banks and investment houses have been doing for years. So many saw only rising prices and easy credit. They certainly don’t understand how it all fell down.

    What many do seem to understand is their fear and anger; the how and why causing the emotions is lost on them.

    Many, of course, do not have a clue. They are just unaware.

    As for civil war: not a good idea; it may not even be a good idea for he who starts it. It would be partisan war at the outset; many have rolled the iron dice and failed.

  98. 98
    Glen Tomkins says:

    @General Stuck: Well, I would think that mention of the Imperius curse would have placed my comments in a non-threatening context.

    Not that, even if a slur against Obama were intended, I feel that it is at all appropriate for commenters on blogs to “watch what they say”, lest they fail to give lip service to the right causes, because the right causes will thereby suffer a reverse.

    Such thinking might apply if I were a Senator or Congressperson, or any sort of govt official, whose opinions on any matter carry any weight whatsoever beyond what force of reason they might convey. I am not any sort of “name”. No one will walk away from this blog thinking that Team Obama is right or wrong, is carrying the day or losing, simply because my name is attached to what I say. Only the content will convince people that what I say is either on the mark, or all wet.

    If people do think, as a result of my little one-liner, of Obama as in any sense behaving as if he were under the Imperius curse, it will be because that’s the reality as it strikes them looking at the evidence, an impression that has to bore through the ridiculousness of juxtaposing Harry Potter with real events, and carry through entirely on its own merit, because it’s not as if anyone will think it at all on the money just because Tomkins said it.

    I volunteered countless hours to get Obama elected in 2008, despite already being thoroughly disillusioned of any idea that he was anything but the lesser of two evils. He was very clear during the campaign, long before any of these recent stands (or lack thereof) that have people criticizing him, about being for “winning” in Afghanistan. That stand alone is so much more foolish and destructive than any of these more recent arguable failures of his, that there really is no comparison of scale.

    I put in all those hours in 2008 to get Obama elected, and doubtless will again in 2010, because even if there is only a dime’s worth of difference between the two parties, the issues at stake are so huge that even marginal differences are a matter of life and death. But if we are to remain capable of discerning these marginal differences, we cannot let up, even a little bit, in the unblinking acknowledgement of political realities, one of which is that Obama sucks. Maybe a little less hard than any Republician who could possibly get their nomination, maybe less hard than the avg Dem. But he still sucks, disastrously, murderously.

    Yep, always tearing the man down, which is the only reasonable approach to any politician ever in the history of mankind.

  99. 99
    Septic Tank says:

    @mikefromArlington:

    Uh, you kidding? Force us into single payer? Try to imagine a situation in which 60 out of 90 Democratic Senators, let alone 60 out of 52, would ever vote for single payer. No, if this breaks down, what happens is bupkus. Status quo, baby. And the next Democratic effort to move towards universal healthcare, which would come sometime around 2050, would be even more conservative and insurer friendly than this one (and the insurance companies would still spend hundreds of millions laundered through the Chamber of Commerce to defeat it).

  100. 100
    Davy Jones says:

    Um, the NYTimes headline appears to be accurate. It doesn’t refer to the other attempts to challenge the law, only this one guy, and he did get a federal judge to rule the law unconstitutional (that’s Round 1).

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