What we’re fighting about

The following is from one of the DOJ briefs defending Obamacare. Less than 800 words that describe the whole law:

First, Congress made health insurance available to millions more low-income individuals by expanding eligibility for Medicaid. Beginning in 2014, Medicaid eligibility will extend to anyone under age 65 with income up to 133% of the federal poverty level. Currently, Medicaid beneficiaries are primarily children in low-income families, their parents, low-income pregnant women, and low-income elderly or disabled individuals. The newly eligible persons will consist primarily of low-income non-elderly adults without dependent children.

Second, Congress enacted taxing measures that encourage expansion of employer-sponsored insurance. The Act establishes new tax incentives for eligible small businesses to purchase health insurance for their employees. In addition, the Act’s employer responsibility provision imposes a tax liability under specified circumstances on large employers that do not offer adequate coverage to full-time employees.

Third, Congress provided for creation of health insurance exchanges to enable individuals and small businesses to leverage their collective buying power
and maintain health insurance at rates competitive with those charged for typical large employer plans.

Fourth, Congress enacted market reforms that will make affordable insurance available to millions who cannot now obtain it. Certain reforms have already taken
effect, including provisions that bar insurers from canceling insurance absent fraud or intentional misrepresentation and from placing lifetime caps on benefits, 42 In addition, the Act establishes medical loss ratios for insurers, i.e., minimum percentages of premium revenues that insurers must spend on clinical services and activities that improve health care quality, as opposed to administrative costs or profits. The Act also requires insurers providing family coverage to continue covering adult children until age 26, which has led to an additional 2.5 million young adults gaining coverage. Beginning in 2014, the Act will bar insurers from denying coverage to any person because of medical condition or history,
(guaranteed-issue provision), and from charging higher premiums because of a person’s medical condition or history, (community-rating provision).

Fifth, Congress enacted new tax credits, cost-sharing reduction payments, and tax penalties as incentives for individuals to maintain a minimum level of health insurance. The Act establishes federal premium tax credits to assist eligible individuals with household income up to 400% of the federal poverty level purchase insurance through the new exchanges. These premium tax credits, which are advanceable and fully refundable such that individuals with little or no income tax liability can still benefit, are designed to make health insurance affordable by reducing a taxpayer’s net cost of insurance. The credits will be available even to families with incomes at (and above) the median level, which, in 2010, was $75,148 for a family of four and $42,863 for an individual. For eligible individuals with income up to 250% of the federal poverty level, the Act also authorizes federal payments to insurers to help cover those individuals’ cost-sharing expenses (such as co-payments or deductibles) for insurance obtained through an exchange. CBO projected that 83% of people who buy non-group insurance policies through exchanges will receive premium tax credits, (20 million of 24 million), and that those credits, on average, will cover nearly two-thirds of the premium,

In addition to those incentives through tax and other subsidies to purchase health insurance, Congress assigned adverse tax consequences to the alternative of attempted self-insuring. Congress provided that, beginning in 2014, non-exempted federal income taxpayers who fail to maintain a minimum level of health insurance coverage for themselves or their dependents will owe a tax penalty for each month in the tax year during which minimum coverage is not maintained.

And, just for supporters of the law (I am one), here’s a short, brutal description of the opposing brief that you might find amusing:

The challengers to the health care mandate have filed their Supreme Court brief – the definitive statement of the case against the mandate, drawing on the strongest arguments that have been made against it by advocates and federal judges, and authored by conservative superlawyer Paul Clement. It is astoundingly thin and weak. A standard admonishment to young lawyers is that they should address the very strongest arguments on the other side, instead of substituting weak caricatures of their opponents’ views. Yet the brief does this repeatedly.

Now, it has been clear for some time that the most articulate opponents of the mandate (who include such formidable intellects as Richard Epstein, Randy Barnett, and Gary Lawson) have just this in mind. They despise the modern state and want to blow it up. But the Supreme Court has no such revolutionary ambitions. The challenge for the challengers of the law, then, is to come up with a theory that lets them win this case without committing the Court to the end of American civilization as we know it. Clement evidently could not figure out how to do that (other than – here he shows excellent sense – being coy about the implications of his argument). If you accept his brief’s logic, then it is not clear how, say, the Environmental Protection Agency could survive, since there is no enumerated power to keep the country’s air breathable or its water drinkable.

As I’ve noted in a different context, when a lawyer as good as Clement makes arguments this bad, it tells you a lot about how desperate his case is.

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137 replies
  1. 1
    Mike G says:

    Please
    drop the center-aligned text
    It is really
    a pain to read.

  2. 2
    handy says:

    @Mike G:

    I don’t see that on my end. What browser/OS are you using?

  3. 3
    Judas Escargot, Your Postmodern Neighbor says:

    Is the US a Union, or Confederation? We’re about to find out.

    Brace yourselves for the howling laughter from the right when ACA is repealed by their hand-picked Justices.

  4. 4
    Mike G says:

    @handy:

    IE8

  5. 5
    Daaling says:

    What with the liberal media bias, all I have been hearing all day today is how ‘religious groups’ are laying flowers around the supreme court because ObamaCares is apparently an attack on religious freedom somehow.

    Your liberal media hard at work reporting the truth……

    Can someone explain to me how Obamacares is an attack on religious freedom???

  6. 6

    Virtually all the judges this morning poo pooed the notion that the penalty for not buying insurance is a tax per say, for a variety of reasons, one of which was Ginsberg saying no one would have to pay the penalty is they chose to get insurance, and taxes don’t work like that. So we will likely get to the final word by the SCOTUS to decide on the merits in June.

  7. 7
    Comrade Mary says:

    The center alignment of text showed up a day after the new site was rolled out. It’s a bug, not a feature, and seems to show up in IE8 and IE9 only, possibly IE7 as well.
    I assume the design team is working on this.

  8. 8

    @handy: It’s an IE thing. Could be the site’s serving up different CSS for IE, or it’s some conditional thing, or an IE bug or whatever. I use firefox and chrome, so I don’t see it.
    .
    PeakVT’s user style at http://userstyles.org/styles/63049/bj2012-fixes might fix it if you can figure out how to install it for IE. But it really does need to be fixed on the site itself.

  9. 9
    Ash Can says:

    @Mike G: I started using Firefox quite a while ago when I was having trouble with the site on IE8. If Firefox is an option for you, I highly recommend it.

  10. 10
    KG says:

    The goal of the conservative legal movement has been to overturn Wickard and go back to Lockner. They really are Anti-Federalists and they know that this case is their last best chance to go back. I saw it while a member of the Federalist Society in law school.

  11. 11
    Ed Drone says:

    @Daaling:

    Sure — without it, many more people will be relying on prayer alone when they get sick.

    Ed

  12. 12
    Kay says:

    @Daaling:

    “Religious freedom” now includes any law anyone who says they are religious doesn’t want to follow, so beats the hell out of me.
    There’s a religious exemption to the mandate in the PPACA, not that anyone’s interested in the actual law:)

  13. 13
    ThatLeftTurnInABQ says:

    @Judas Escargot, Your Postmodern Neighbor:

    Brace yourselves for the howling laughter from the right when ACA is repealed by their hand-picked Justices.

    Agreed about the Union vs. Confederation subtext when it comes to much of US politics. But this part quote above, IMHO you’ve got it wrong. I predict a 7-2 decision upholding the ACA. The right wing of the Roberts court, as much as it loves the GOP and the right, it doth love the large corporation more. And there is no way to strike down the ACA without wrecking havoc in corporate America.

  14. 14
    Kyle says:

    @Daaling:

    The Southern fundies want to people who can’t afford healthcare to suffer without it. Because if you’re poor, you’re being punished by the invisible sky daddy for being bad.

    You know, just like Jesus said.

  15. 15
    the Conster (f/k/a Cat Lady) says:

    Slightly OT to this, but on The Takeaway this morning (WGBH radio) they took texts/calls from people pro and con to the outcome of the case, and one call almost made me drive off the road. A Republican called in who said he’d vote for Obama this year precisely because of the ACA – he was 43, and figured that he’d paid BC/BS approximately $240,000 over the course of his working life, and used about $30,000 of it. Now that he’s been unemployed and is without insurance he feels like he’s owed healthcare, and I couldn’t think of a single reason why he’s not exactly right.

  16. 16
    Jim, Foolish Literalist says:

    I just heard somebody on MSNBC say Roberts is very sensitive to the perception of partisanship on the SC, and so he’s unlikely to make what would be a 5-4 decision. This must be some new sensitivity on Roberts’ part.

    I have been wondering about Kennedy, if he’s aware of the people saying these new abortion regulations grow out of his (IIANM) ruling on “informed consent”, and if he’s conscious of/concerned about cementing his legacy as a partisan, from Bush v Gore through CU to ACA.

  17. 17
    ThatLeftTurnInABQ says:

    @Mike G:

    Please
    drop the center-aligned text
    It is really
    a pain to read.

    But that is how you know this is a centrist blog. Because both margins do it.

  18. 18

    @Daaling: Their religion is “Republican Death Cult”, the rites of which include preventing a Democratic president from ever holding office.

  19. 19
    S. cerevisiae says:

    I have a hunch the Supremes are going to uphold the ACA, with a surprise conservative (Scalia?) voting with the majority. No basis for this, just a hunch.

  20. 20

    @ThatLeftTurnInABQ: Espresso is really harsh when snorted out one’s nose. Damn you.

  21. 21

    @S. cerevisiae: Scalia and Thomas will vote against. There was one time when Scalia had some sense of prudence, but that was before Bush v. Gore. He is a partisan weapon and makes no pretense about it. As for Thomas, he’s just a psychotic ball of hate and will do whatever he can to hurt the most people.

  22. 22
    Judas Escargot, Your Postmodern Neighbor says:

    @ThatLeftTurnInABQ:

    And there is no way to strike down the ACA without wrecking havoc in corporate America.

    I do agree that if I’m wrong and ACA gets upheld, this will be why. But given the current state of the GOP (which is now little more than a tribal ideology with no real interest in logic, reason or justice), I’m not optimistic.

    I just can’t see a scenario where the current crop of right-wing justices pass up a once-in-a-decade chance to say “suck it, Libs!”.

  23. 23

    @Jim, Foolish Literalist:

    Yea, I read where Roberts was very skeptical of the anti ACA position on the nature of the mandate,

    Rounding out the arguments inside the courtroom, Gregory Katsas of the law firm Jones Day spoke for the challengers to the law. He argued that it was irrelevant whether the penalty qualified as a tax, because the challengers’ lawsuit targeted the requirement to carry insurance, not the penalty for failing to do so.

    Chief Justice John Roberts said that distinction seemed senseless, because the penalty was the only consequence for disregarding the mandate. Otherwise, the law would be “completely toothless,” he said. “Buy insurance or else,” he said. “Or else—nothing.”

    It was one of the points I had read about that made sense, sort of. That as Chief Justice, Roberts would bear the legacy of undoing 80 years of commerce clause legislation, and the chaos that would follow such a legacy. Hope that is true.

  24. 24
    wrb says:

    @ThatLeftTurnInABQ:

    And there is no way to strike down the ACA without wrecking havoc in corporate America.

    Why?

  25. 25
    Daaling says:

    Front page WaPo. See it must be true because the liberal media says ObamaCares is a war on Religion. Sigh. How can you even have an honest debate when one side wraps every single issue in right wing poll tested hotbutton phrases. Does not matter if we are talking ObamaCares or pink slim in your hamburger. EVERYTHING is a war on religion. EVERYTHING eventually ends up in gov’t funded abortion factories. EVERYTHING is a war on traditional family values or whatever.

    Heck of a job liberal media.

    http://www.washingtonpost.com/.....story.html

  26. 26
    Bruce S says:

    “not a lawyer, etc.etc.” but this critique of the opposing case sounds well-founded. Which means the right-wing faction of the Supremes are in the position of having to re-visit pure politicization of a decision a la Bush v Gore if the opposition is to prevail. I have a gut feeling they won’t go there. They may be some very creepy, retrograde dudes, but they don’t face recall by the Tea Party and the outlines of this law were pretty much hatched in conservative GOP circles in the ’90s. I am wondering just how crazy the anti-Obamacare street thugs and blogosphere wackos go if the constitutionality is upheld. We’ll probably see reprises of those “Impeach Earl Warren” billboards I recall from my childhood.

  27. 27
    Culture of Truth says:

    Where are the death panels??

  28. 28

    @KG:

    They really are Anti-Federalists and they know that this case is their last best chance to go back. I saw it while a member of the Federalist Society in law school.

    I’ve had the wrong definition to Federalist vs Anti Federalist, and I think you cleared that up for me. thanks.

  29. 29

    I would be surprised if healthcare reform is ruled unconstitutional because it actually further cements our private, for-profit health insurance system. A ruling against the law would blow the system up and it’s so broken and inefficient already, the only outcome I see happening is the eventual dismantling of private insurance altogether.

  30. 30
    MikeJ says:

    @Mike G: Holy shit, I thought people were just talking about the nonsensical fixed sized center column. I hopped on a windows box, found IE, and you’re right. Everything is center justified.

    Get a better browser until they fix it. Wired’s webmonkey says ie 10 is actually usable. Wonder if it screws it up the same way.

  31. 31
    ThatLeftTurnInABQ says:

    @wrb:

    Why?

     
    Two sorts of havoc would be wrecked.
     
    First, the health insurance companies themselves would at bare minimum have to stop whatever preparations they have in pipeline for getting into compliance with the ACA and pivot in a different direction. Worst case for them is the mandate is severed and struck down leaving other provisions in place, which pretty much destroys their entire business model. Even without severability, it still would create chaos in the insurance industry, and remember that the insuranace industry depends on forecasting models. Pivoting on a dime just doesn’t work well in that business.
     
    Secondarily, the same long term planning considerations apply to corporations more generally, and the larger the company the more difficult for them to pivot rapidly in response to chaos in the insurance market.
     
    The amount of retraining and planning required at the HR level and in terms of employee compensation package restructuring to deal with a change of this sort is massive. This is the sort of thing that, the only thing middle mangement hates more than having to change, is having to change half-way and then go back. They won’t like the disruption which a repeal of the ACA would create.

  32. 32
    elmo says:

    @MikeJ:

    Yeah, it’s awful. I’ve suffered quietly under the mobile site glitch, and the hugely extended right margin glitch before that, but I swear this is making my favorite website unpleasant to visit.

    It makes every post and every comment look like bad haiku.

  33. 33
    jim pharo says:

    The Great Unmasking, underway at last.

    The elephant in the room (no pun intended — I swear!!) is that the GOP desires anarchy. There’s isn’t one of their views that doesn’t boil down to all government is inherent illegitimate, and that the only legitimate actors are private individuals.

    There’s just no other way to understand what they’re saying…

  34. 34
    Poopyman says:

    @MikeJ: Please remember that there are those of us who are, ah, not at home shall we say, who don’t have permission to download apps on corporate computers.

  35. 35
    Judas Escargot, Your Postmodern Neighbor says:

    @Daaling:

    Religion is the last refuge of unreason– really, the last sphere where you can make a claim, not have to back it up with evidence, logic or reason, yet still demand respect for your view. It’s also the last place where you’re allowed to demand special treatment (or even exemption) from the law.

    Unfortunately for those of sincere faith who would prefer to be left alone in their private beliefs, I expect to see Religion being used in this disingenuous way more and more by the GOP as they do their best to overturn the Enlightenment.

  36. 36
    Raven says:

    @MikeJ: People still use IE???? WTK-K?

  37. 37
    Hill Dweller says:

    Charlie Pierce has a good post up today talking about the wingers’ intentional shift to ‘religious freedom’, which will guarantee continued resentment and protests even if the SC votes to uphold.

  38. 38
    amk says:

    @General Stuck (Bravo Nope Zero): who the fuck is Bravo Nope Zero ?

    @elmo: +1. If this blog redesign was cole’s gut instinct, he should kick it to the curbs forever. Stupid fuck.

  39. 39
    efgoldman says:

    @Daaling:

    Can someone explain to me how Obamacares is an attack on religious freedom???

    In spite of your trollish tendencies, this seems like a legitimate question, so I refer you to the estimable Mr. Pierce:

    One consequence of the very weird debate we’ve been having about contraception, and its place in the overall scheme of things in the ACA, has been to inject the always ameliorating element of religious frenzy into what already was a debate so carried off by emotion that it had departed the actual reality of the law two years ago. Suddenly, we weren’t just talking about the limits of the Commerce clause, or the dead hand of government choking the marketplace or, more generally, the place of government in our lives. We now also were talking about whether or not the government not only could tell us what we could buy, it was telling us what we could believe. That this argument was the purest moonshine is utterly irrelevant.

    http://www.esquire.com/blogs/p.....z1qFI4Nsfi

  40. 40
    noodler says:

    For everyone clamoring about author’s bylines after the titles in this new format (to be changed in a future upgrade…) – it’s interesting that even without the byline up top, I knew this was a Kay post.

    I took my daily jog through Cap hill this morning to have a little look see at the proceedings. That’s what serves as entertainment for us politigeeks here in DC (and a town with notoriously bad sports teams). A colorful crowd to say the least.
    http://www.washingtonpost.com/....._blog.html

  41. 41
    amk says:

    @Raven: It sux in FF too.

  42. 42
    PeakVT says:

    @The Other Chuck: I haven’t done anything specific to fix centering b/c I don’t see the problem on FF. AFAIK the Stylish plugin only works on FF.

    … I just looked and there’s an unclosed center tag before the top banner at that FF chooses to ignore after a certain point, but IE applies to the whole page. If the developer doesn’t use IE they wouldn’t have seen the problem.

  43. 43
    jibeaux says:

    There’s no question the legal arguments against the mandate are really bad. The question is to what extent the Supreme Court of the United States cares about legal arguments. I don’t think Roberts cares, but I do think he cares about public perception. I think Kennedy does care, but I find him inconsistent and difficult to read. He’s like those “independent” voters that at the end of the day make their decision based on some meaningless throwaway line someone said that they liked or didn’t like. It’s quite the tossup.

  44. 44
    wrb says:

    @amk:

    who the fuck is Bravo Nope Zero ?

    http://www.barglenawdlezouss.com/

    I’m not sure whether Stuck is Weird Al himself or just the center of the Weird Al faniverse.

  45. 45
    pseudonymous in nc says:

    A couple of general thoughts: the Roberts court is all about defending the already-powerful, and it’s also about creating legal get-out clauses. In this case, I think the outcome’s going to treat Big Insurance as the “powerful” — and its long-term future, for better or worse, depends upon the constitutionality of the individual mandate.

  46. 46
    Lee says:

    @ThatLeftTurnInABQ:

    /rimshot

    I’m not sure if that was bad or brilliant. But I chuckled.

  47. 47
    David says:

    IE 9 does the text center justified too.

  48. 48
    Poopyman says:

    @PeakVT:

    … I just looked and there’s an unclosed center tag before the top banner at that FF chooses to ignore after a certain point, but IE applies to the whole page. If the developer doesn’t use IE they wouldn’t have seen the problem.

    DING! We have a winner!

    Actually sounds like a pretty easy bug to find and fix. Yay!

  49. 49
    Scott P. says:

    Brace yourselves for the howling laughter from the right when ACA is repealed by their hand-picked Justices.

    I’ll be laughing too. What the Supreme Court would have said is that any healthcare reform that combines private and public funding is unconstitutional. That leaves single-payer as the only legal option.

    Next time, when the Blue Dogs gripe about free markets and keeping insurance companies in the loop, the response will be simple: The Supreme Court nixed it.

  50. 50
    eemom says:

    I wish people who don’t know what the fuck they’re talking about would stop telling us what the Supreme Court is going to do.

    I just really wish that.

  51. 51
    jibeaux says:

    I kind of do wish the mandate could have been scrapped in favor of signing a waiver on your taxes that you could not receive any benefits of the ACA for the next five years, and in exchange you would not be assessed the penalty. Kind of a way to opt in to the status quo if you like being denied coverage for pre-existing conditions. It wouldn’t be before the SCOTUS and all the fucking whiners who value the freedom to be uninsured could STFU. The only problem is the uninsured free rider problem. I would ideally want it combined with some manner of ensuring that any unpaid medical bills get taken out of your ass before you can spend it on any more yellow flags with snakes on them.

  52. 52
    Judas Escargot, Your Postmodern Neighbor says:

    @Scott P.:

    That leaves single-payer as the only legal option.

    I agree that, in the long term, this is the only sustainable way for it to play out. But how many millions end up with no health insurance again in the meantime? And how many decades will we have to wait until our betters in Congress decide to allow us to have a modern, public health-care system?

  53. 53
    Bruce S says:

    No doubt all will be well sometime in the near future, but I’m trying to figure out what problem this blog redesign was an attempt to solve. I’ve experience far too many IT “upgrades” where the outcome created worse problems than whatever annoyances it was trying to fix. IMHO incremental change rules!

  54. 54
    Eric S. says:

    A tangent here.

    In addition, the Act’s employer responsibility provision imposes a tax liability under specified circumstances on large employers that do not offer adequate coverage to full-time employees.

    The company I’ve been working at for qutie a few years is moving towards hiring employees with a “defined end date.” There are one or two openings now for computer programmers. The positions are listed as having a termination date of 12/31/2014.

    The company is large, employees thousands, but I’ve been trying to figure out what the angle here is. Will they get away without providing some or all benefits to anyone that accepts this position?

  55. 55
    catclub says:

    @ThatLeftTurnInABQ: All this is true. But still not a peep from those corporations saying so. Tribal coherence is still stronger.

    GM never came out in favor of single payer, even though it would make them competitive worldwide AND solve all their retiree pension/healthcare problems. And they never will.

  56. 56
    Legalize says:

    @S. cerevisiae:
    I don’t think Fat Tony would count as a surprise to uphold the Act. I think that the government thinks they have him in the bag. They want a 7-2 decision – the spread matters to them (I agree); they are trying to peel off Roberts or Alito. I don’t think they’ll get either.

    6-3. Alito, Roberts, and Thomas in the minority, with a dissenting opinion penned by Thomas that the other two concur with.

  57. 57
    Splitting Image says:

    @pseudonymous in nc:

    I think the outcome’s going to treat Big Insurance as the “powerful”—and its long-term future, for better or worse, depends upon the constitutionality of the individual mandate.

    That sounds about right to me. It’s important to remember that John Roberts is not Newt Gingrich. If it were up to Newt, he’d issue whatever ruling would be sure to give Obama a bad press day, then trust that he’d be able to deal with the fallout later.

    The actual court can’t do that. Whatever they decide will be the law of the land for years if not decades, and if a ruling seems likely to cause more problems over the long haul for corporate America than for the Democratic party, John Roberts and his fellows will be very hesitant to make that decision.

    My guess is 6-3 or 7-2 to uphold, unless they punt it completely. Kennedy, Roberts, and maybe Alito will side with the four Democrats. I would guess Thomas and Scalia will dissent.

  58. 58
    catclub says:

    Can I just say that I like the wiping out of the post/like/facebook buttons, that expanded when you moused over them.

    I hated those.

    The little grey arrow near “Reply” is sometimes over text, which annoys me.

  59. 59
    Mary says:

    @Mike G: Center justification.
    Is entertaining.
    If read as comment haiku.

  60. 60
    NR says:

    @Judas Escargot, Your Postmodern Neighbor: That will never happen. The same court that gave us Citizens United will gleefully uphold the mandate, because it brings about a massive transfer of wealth from American citizens to private corporations.

  61. 61
    ThatLeftTurnInABQ says:

    @catclub:

    But still not a peep from those corporations saying so. Tribal coherence is still stronger.
     
    GM never came out in favor of single payer, even though it would make them competitive worldwide AND solve all their retiree pension/healthcare problems. And they never will.

    I’m guessing that this doesn’t reflect tribal support for the GOP position re: the ACA. It reflects corporate timidity and risk aversion, in the face of an issue where no matter what you say you are going to piss off somebody. A consumer products company with a broad market in both Red and Blue states would be insane to put their public face on this issue in a way that seems destined to call down consumer boycotts.
     
    Not to mention that the auto industry in particular was the beneficiary of govt bailouts, and this could happen again in the future. So that last thing an auto industry exec is going to want to do is to stick their neck out on a hot political issue in a way that will not only piss off some of their customers, but piss off a non-trivial fraction of Congress too. Some of those pissed-off Congresscritters may be the ones voting on your next bailout.
     
    So I think the silence you hear from large corps which in the long run stand to benefit from a single payer system, and which at the present time would be hurt by a repeal of the ACA, that silence is easily explained by cowardice; malice isn’t needed to explain it.

  62. 62
    NR says:

    @General Stuck (Bravo Nope Zero): Good. The argument that the penalty for not buying insurance is a tax is a ridiculous one. A person does nothing, and they are taxed? Absolutely ridiculous. You cannot tax inactivity.

    No, what we are talking about is a punitive fee–a punishment–for doing nothing; i.e., for not buying health insurance.

  63. 63
    gene108 says:

    The Act establishes new tax incentives for eligible small businesses to purchase health insurance for their employees.

    The biggest problem with the law is it puts a lot of restrictions on what employers can offer, has a very narrow definition of what a small business is versus what insurance carriers consider a large group, which is businesses of over 100 lives, and puts on onus on employers to provide health insurance coverage.

    I was really hoping the law would make it easier for individuals to purchase their own insurance, so we could get rid of employer based coverage.

    The decision making process for employers to offer medical coverage really doesn’t change and it skews the employer-employee relationship.

    For example, if your a productive worker, who had a catastrophic or chronic, but manageable condition, the employer now adds the extra cost you bring on their medical insurance policy versus just how well you are working. Women are charged more for medical coverage, so I wouldn’t be surprised, if employers would want to skew towards a male dominated medical coverage plan, if the risk of adding women is to drive up medical insurance premiums.

    But I guess the PPACA is a start and moves in the right direction to universal coverage. The Democrats view that employers have this responsibility to provide medical coverage needs to change though.

  64. 64
    Punchy says:

    The challenge for the challengers of the law 5 Republican Judges , then, is to come up with a theory that lets them win this case without committing the Court to the end of American civilization as we know it

    Fixed for the fix that’s baked in.

    Edit: Strike key doesnt work in IE. Neither does the edit funkshun

  65. 65
    David in NY says:

    C’mon, let’s deal with the important questions. It’s not “wreck” havoc, damn it, it’s “wreak” havoc.

  66. 66
    David in NY says:

    @catclub:

    The little grey arrow near “Reply” is sometimes over text, which annoys me.

    Me too.

  67. 67
    Belafon (formerly anonevent) says:

    @Southern Beale:

    I would be surprised if healthcare reform is ruled unconstitutional because it actually further cements our private, for-profit health insurance system. A ruling against the law would blow the system up and it’s so broken and inefficient already, the only outcome I see happening is the eventual dismantling of private insurance altogether.

    Except ruling it constitutional further solidifies how much control the government has over health care. Remember, the ACA tells companies that they have to spend at least 80% on healthcare, cannot end coverage due to preexisting conditions or if the problem is expensive – cancer – and they are required to cover children up to 26.

  68. 68
    gene108 says:

    @catclub:

    GM never came out in favor of single payer, even though it would make them competitive worldwide AND solve all their retiree pension/healthcare problems. And they never will.

    Single payer in America scares me. It’s not that I think single payer is bad per se. It’s the fact Republicans will destroy it, if they ever get into power, to the point people will start to hate it and/or demand something less “government-ee”.

    Republicans are undermining Social Security and Medicare, despite their popularity. I’m 37 and most people in my age group are convinced those programs won’t be there in 30 years, when we get ready to retire.

    Unless you have a dedicated source of funding for single-payer that limits the ability of politicians to mess around with it, you are just setting yourself up for trouble by enacting it.

  69. 69
    honus says:

    @Bruce S: Wat he said.

  70. 70
    Punchy says:

    Big big bug — when you go to edit, instead of saving the comment, it deletes it, apparently. I had a comment here that has been 86’d upon editing. Also, strikethru doesn’t work. Bascially, this blog is completely broken. I haz me a sayud.

  71. 71
    catclub says:

    @ThatLeftTurnInABQ: “in the face of an issue where no matter what you say you are going to piss off somebody.”

    I think your explanation is plausible, but the national chamber of commerce is just the type of money laundering organization that GM could fund to speak for it without leaving too many obvious fingerprints — if they wanted to.


    When companies want to say something they can find a way. That is what lobbying organizations DO.

    Exxon Mobil has no problems pissing off (some) customers by its climate change denialism.


    GM had no problem opposing safety and gas mileage regulations that could also piss off ‘Soccer Moms’.


    There is a vast amount of money that they are leaving on the table by opposing single payer. You seem to think it is because they do not want to piss off (some) consumers.
    I think it is due to tribalism. Potayto, potahto, I guess.

  72. 72
    FlipYrWhig says:

    @gene108:

    The Democrats view that employers have this responsibility to provide medical coverage needs to change though

    The trouble is that if you come up with a new system that blows up the existing system, wide swathes of the population will completely panic, because they’ll be afraid to lose what they’re used to. Even if what they’re used to sucks and confuses them. That’s why the fixes are all so roundabout and incremental. Dramatic and decisive change would unleash the Kraken.

  73. 73
    FlipYrWhig says:

    @gene108: For that matter, good luck getting abortion covered in a single-payer national health plan. That’s one case where corporate players’ relentless focus on money and profits actually helps produce better health policy — because abortion is cost-effective.

  74. 74
    Face says:

    @eemom: Shorter eemom: I wish everyone who’s not me would stop giving their political and legal opinions on a political and sometimes legalistic blog.

    ee, you sound…..concerned.

  75. 75
    David in NY says:

    Reading this blog makes my head hurt (form, not substance). Testing edit.

    Edit worked OK for me on Firefox.

  76. 76
    Jess says:

    I wish the politicians who are being attacked with this “War on Religion” nonsense had the guts to say, “No, it’s a War on Theocracy!” Maybe when pigs fly…

  77. 77
    arguingwithsignposts says:

    Related, both communists.com and socia1ists.com are redirecting to barackobama.com ACA landing page atm. Ratf*ckery re: the ACA?

  78. 78
    shortstop says:

    Thanks for reminding me of Balkinization, kay. I’m forever forgetting about it, even though I know one of the regular contributors (oops), and I’m always glad to rediscover it.

  79. 79
    Scott P. says:

    @NR:

    A person does nothing, and they are taxed? Absolutely ridiculous. You cannot tax inactivity.

    It’s not inactivity. That’s a non-starter. Everyone participates in the health care system, sooner or later.

  80. 80
    shortstop says:

    @arguingwithsignposts: Lord, these people are tedious. Not one of them could correctly summarize the basic tenets of socialism or communism.

  81. 81
    KG says:

    @General Stuck (Bravo Nope Zero): Not sure if you’re being sarcastic or not there. But yeah, I actually remember sitting in a conversation with a fairly high profile FedSoc/conservative movement type and someone asked them why they chose the name “Federalist Society” when they seemed to be, well, less than Federalists and it was some bullshit about nobody knowing what an Anti-Federalist was and a different understand then and now. It was one of the first warning signs I had about them being unserious (another was someone openly suggesting repeal of the 17th Amendment and getting applause)

  82. 82
    dance around in your bones says:

    @PeakVT: Thank you for the user script on Firefox.

    It fixes the ‘no empty line between paragraphs’ and makes the Reply button only appear on hover as well as making the comments wider, for those who wonder what it does.

  83. 83
    Suzan says:

    Thank you for posting this. I admit that at times I’m tempted to skip your posts because they are usually longer than other front pagers but I have learned that is a terrible mistake for a number of reasons, not least of which is how much info, and hence ammo, you give me. Yes, alas, I’ve ruined my mind with soundbites and these intertubes to the point that I consider an article/post too long to fit on my screen to be “reading”. Thanks again (I actually can’t believe they were that nasty to the other side in their brief. I’d never dare do that. Maybe I should try.)

  84. 84
    Kay says:

    @eemom:

    I’ll tell you what scares me, though.

    When this started, the constitutional argument was (generally) dismissed as a political argument rather than a legal argument. Yet here we are. I know anyone can file anything, and I know how this got to the SCOTUS, but the truth is what was dismissed as a purely political tactic employed some very ambitious and ruthlessly partisan advocates (like the Virginia AG) and/or a really radical libertarian take on the commerce clause is now being heard and the whole thing hangs in the balance.

    So there’s that. That’s why I’m not making any predictions. Here we are. I’m an optimist (generally) and I won’t waste a whole lot of time fretting over something I can’t control, but a lot of really smart people said this had no merit right out of the box, and it’s gotten this far.

  85. 85
    Kay says:

    @NR:

    for doing nothing; i.e., for not buying health insurance.

    It looks like the opposition dropped that argument. I think it’s now considered a non-starter.

  86. 86
  87. 87
    Kay says:

    @FlipYrWhig:

    if you come up with a new system that blows up the existing system, wide swathes of the population will completely panic, because they’ll be afraid to lose what they’re used to.

    This is where I ended up, too. It’s true. There was a reason Obama kept saying those with health insurance would retain their health insurance, and that was the reason.

    People think it’s a finite quantity, and if someone else gets “some” they will get LESS. I think we saw how effective that is a political argument, when you consider that Republicans RAN ON THAT in 2010, re: the bullshit about “500 billion cut from Medicare”. The subtext there was Obama cut Medicare to give that health care to someone else, and it worked like a charm.

    We haven’t really had a debate on health care yet. We’ve had a debate on health insurance, and that was insane enough. I cannot imagine what would happen if we ever reached the ACTUAL ISSUE.

  88. 88
    PeakVT says:

    @dance around in your bones: YW. It looks like someone is working on the site, so I’ll probably update it later today.

  89. 89
    eemom says:

    @Kay

    True — but I don’t think anyone really expected the lack of merit to stop it from getting this far. IOW, I don’t think anyone assumed that, bullshit as it is, the case against would be sufficiently killed at the lower court level that it wouldn’t reach the Supreme Court.

    @Face:

    Wrong, facefuck. Shorter me is that people who know jack shit about constitutional law and Supreme Court jurisprudence — including a detailed knowledge of the decisions of each of these nine Justices — are full of shit when they make grandiose pronouncements about an intensely complex and nuanced situation.

    ok, maybe that’s longer me.

  90. 90
    burnspbesq says:

    @eemom:

    I wish people who don’t know what the fuck they’re talking about would stop telling us what the Supreme Court is going to do.

    God doesn’t love you that much. ‘Sides, some of the nonsense that gets spouted, both here and elsewhere, is pretty funny.

  91. 91

    @PeakVT:

    An unclosed tag. A center tag. Wow.
    .
    John please don’t tell me you’ve already paid the site designer. Because that’s… wow.

  92. 92
    Face says:

    @eemom: Then perhaps all 3 of you should be the only ones to post comments. I bet that sounds like a lot of fun! Perhaps if these comments anger you so much you should take a long hiatus from reading and posting. It’s not healthy to be this angry about a freakin’ blog.

  93. 93

    Whoah, numbers now. Big honkin numbers.

    And “Says:” is back, which screws up the troll-blocker because it’s the only content in replies that isn’t contained in an element. Time to widen the net to nuke it again.

  94. 94
    burnspbesq says:

    The audio of today’s argument is up.

    http://www.supremecourt.gov/or.....398-Monday

  95. 95
    Thymezone says:

    @eemom:

    Like.

  96. 96
    Kay says:

    @eemom:

    IOW, I don’t think anyone assumed that, bullshit as it is, the case against would be sufficiently killed at the lower court level that it wouldn’t reach the Supreme Court.

    Okay. I’ll buy that :)

    It’s sort of surreal, talking to people here. A hell of a lot of people think it has been repealed. Not surprisingly. The local paper had this giant banner headline when the Tea party House “repealed” it. I can’t imagine what those people are thinking, today.

    “I thought that was gone!” Also. Alternately. ” No? Still here? When are the death panels to be seated”?

    I’m bitter about the media coverage. It’s irresponsible.

  97. 97
    NR says:

    @Scott P.: Nope. Not everyone does. And there’s no way to predict who will and who won’t.

  98. 98
    dance around in your bones says:

    Humongous numbers! But not the elegant curvaceous old grey numbers :(

    But, numbers! :)

  99. 99
    eemom says:

    @Suzan:

    I admit that at times I’m tempted to skip your posts because they are usually longer than other front pagers but I have learned that is a terrible mistake for a number of reasons, not least of which is how much info, and hence ammo, you give me.

    The other thing is that — charming as some of the other FPers are in their own unique ways, God blessem — Kay is pretty much the only one whose posts are the product of actual research and original analysis, rather than varying degrees of regurgitation of (1) other people’s ideas or (2) the same old tired memes.

  100. 100
    burnspbesq says:

    And Scalia’s first question for Long is just asinine.

  101. 101
    eemom says:

    @Face:

    Or perhaps people might engage in an intelligent discussion that includes QUESTIONS about things they don’t understand instead of moronic pronouncements.

    But having an intelligent discussion instead of a constant cacophany of idiots talking out their asses would just fucking ruin all the fun, wouldn’t it? Damn, I’m such a KILLJOY.

  102. 102
    Kay says:

    @NR:

    That isn’t the argument. It isn’t about “predictions”. That’s the airy-theory-abstract argument put forth in the opposition brief.

    But, the DOJ argues WHAT IS, not what might be. The argument is that there is a guarantee under federal law that any person will be stabilized in any emergency room that accepts federal funds (all emergency rooms). That’s a base-line federal guarantee of emergency health care, it passed Congress overwhelmingly, Reagan signed it, and no one will ever repeal it.

    That’s what makes health care different under federal law than all other goods or services. We don’t guarantee emergency housing, or emergency food, or an emergency car. We do guarantee that we won’t let you bleed out on the sidewalk, regardless of your ability to pay, in all 50 states.

  103. 103
    shortstop says:

    @Kay: Nicely summarized.

  104. 104
    TaMara (BHF) says:

    I’m just testing the paragraph feature, since reading the comments with people’s paragraphs all bunched together is driving me nuts.

    Have I mentioned I hate this redesign? Whatever we gained in speed we lost in readability and general design.

    /yelling into the wind

  105. 105
    Judas Escargot, Your Postmodern Neighbor says:

    @eemom:

    Shorter me is that people who know jack shit about constitutional law and Supreme Court jurisprudence—including a detailed knowledge of the decisions of each of these nine Justices—are full of shit when they make grandiose pronouncements about an intensely complex and nuanced situation.

    If actual domain-level expertise were a requirement to comment here on any given topic, this would be a quiet, lonely place. I certainly haven’t seen non-technical people being shy about commenting on science or technology issues of which they really have no professional knowledge. And I wouldn’t have it any other way.
    __
    Perhaps if you’d be so kind as to dispense your lawyerly wisdom upon us mere canaille, some of us would change our outlook. But having lived through Bush v. Gore and Citizens United, I see no reason to expect this particular Court to behave rationally.

  106. 106
    Mark B says:

    Well, Cole yelled at me for suggesting they should have tested the site design before rolling it out, so I’m just going to keep my design suggestions to myself. I tried to offer constructive criticism and … well, it didn’t work out.

    The content is still great. The design needs work, but to tell the truth, I’ve seen a whole lot worse. It’s a little disappointing that the site owners don’t seem to care that much, but it is what it is.

  107. 107
    David Koch says:

    KILL DA BILL!

    KILL DA bILL

    KILL DA BILL!

    KILL DA bILL

    KILL DA BILL!

    KILL DA bILL

    /firebagged

  108. 108
    Commenting at Balloon Juice since 1937 says:

    They despise the modern state and want to blow it up. …the Supreme Court has no such revolutionary ambitions. … without committing the Court to the end of American civilization as we know it

    Citizens United demonstrated the court does have revolutionary ambitions and ending American civilization as we know it is probably considered a bonus.

  109. 109
    shortstop says:

    How about a new thread in which everyone outraged about the still-in-process redesign can air their grievances RIGHT NOW RIGHT THIS MINUTE YES YES WITHOUT WAITING FOR ANYTHING TO SHAKE OUT YES NOW?

    I keep thinking of this.

  110. 110
    Suzan says:

    @Kay:

    We don’t guarantee emergency housing, or emergency food,

    Hate to disagree but we do provide emergency food, stamps at least. My state is under a consent decree (for 30 years) to make sure we do it right. It is only for a short period of time unless you qualify for continued benefits.

  111. 111
    Chyron HR says:

    @burnspbesq:

    But, jeepers, I thought that every member of the Supreme Court was a paragon of jurisprudence, and anyone who suggests otherwise is (to borrow your parter in interweb law’s terminology) “full of shit”.

    So do you and eemom have a backup plan in case the Supreme Court does hand down a 5-4 decision split along party lines? Or are you just going to loudly insist that it’s a big coincidence?

  112. 112
    TaMara (BHF) says:

    Yup, paragraphs don’t work and edit feature is not working today either.

    Sigh.

  113. 113
    dance around in your bones says:

    Soft grey numbers nice, but where’s the curves? ;)

  114. 114
    eemom says:

    @Judas Escargot, Your Postmodern Neighbor:

    Just in case you are curious, O Talker Out the Ass and Proud of It, here’s an example of what a Supreme Court “prediction” by someone who knows their shit looks like:

    http://www.scotusblog.com/2012.....e-mandate/

    Notice its modesty, its caution, its narrow scope: i.e, well, looks like they ARE going to move past the tax roadblock and rule on the mandate. Notice how it’s based on an a day of sitting there in the Court and listening carefully to what’s being said.

    And you don’t, actually, have to be a legal expert to do that.

  115. 115
    Kay says:

    @NR:

    If you are worried about a slippery-slope, the thing to look for would be a federal guarantee of a good or service, provided, a federal law akin to that they’re relying on here.
    That’s why your argument doesn’t work for k-12 education. Ohio has been fighting for 25 years over what the state constitution guarantees as far as a public school education.

  116. 116
    Comrade Mary says:

    Meanwhile, Ontario’s Supreme Court has legalized brothels. Wait, I can hear society falling around me …
    __
    EDIT 2: On FireFox 11, I have to refresh this page twice to see my edits come through. What browsers aren’t accepting this?

  117. 117
    Bulworth says:

    Ah, left justification policies in effect.

  118. 118
    Kay says:

    @NR:

    I have to say, too, NR, you present yourself as an uber-liberal here, and you love slippery-slope arguments, but you never look at the other side.

    There’s a slippery-slope threat for liberals at cheering limits on the commerce clause, because so much of the New Deal and civil rights legislation is based on the commerce clause.

    You do know that conservatives and libertarians (like Rand Paul) seek to limit the commerce clause, because it’s the foundation of the whole liberal administrative/welfare state.

    You’re attacking the foundation of your own house, The House that FDR Built, but your only focus is on the fact that you hate THIS LAW, and the possible slippery slope ramifications of this law.

    What about your house? Are there conservative-libertarian slippery slope threats if they succeed here? Can they then go after the next federal law that is based on the commerce clause?

  119. 119
    Ruckus says:

    @Scott P.:
    As well there are a lot of things most of us don’t participate in, but pay for. And probably want to be there when we do need it. Military, FEMA, NOAA just to name 3.

  120. 120
    catclub says:

    @Judas Escargot, Your Postmodern Neighbor: I just suggested on LGM that in order to limit the bad effect of trolls, that once they are identified, you can post their comments so that their comments only appear to THEM. I know Slashdot has done this for postings before they are further moderated by the crowd. So it should be do-able.

    I was thinking a more post-modern blog would do that for EVERY poster. Suddenly everyone gets a “Frist psot!”

  121. 121
    ThatLeftTurnInABQ says:

    @Comrade Mary:

    Wait, I can hear society falling around me …

     
    No, those ominous vibrations you are feeling are just the heavy tread of Rush Limbaugh as he staggers towards the Canadian border. Sort of like the ripples in the glass of water scene from the first Jurassic Park movie, only with a way-uglier dinosaur.

  122. 122
    burnspbesq says:

    @Chyron HR:

    So do you and eemom have a backup plan in case the Supreme Court does hand down a 5-4 decision split along party lines?

    I’ll call it what it is: a lawless act that brings the Court as an institution into disrepute.

  123. 123
    shortstop says:

    @ThatLeftTurnInABQ: Consenting adults with legal rights and dignity are not the product he wishes to purchase, methinks.

  124. 124
    ThatLeftTurnInABQ says:

    @shortstop:

    How dare you speak that way about the Baron Harkonnen of Freedom!

  125. 125
    Kay says:

    @Suzan:

    Well, okay, emergency food stamps, but it would be impossible to design or collect some kind of minimum guaranteed food insurance, other than what we already do, which is paying federal taxes to support federal programs we might not ever use.
    One of the DOJ arguments goes directly to that. That the costs of uncompensated care are shifted to other people. Food stamps don’t shift anything. They’re a direct voucher, and if anything they bring down the cost of food, because they’re a sort of ag subsidy.

  126. 126
    Ruckus says:

    @burnspbesq:
    Does your calling it lawless change that it might happen?

    And I realize that you may have better standing to make the prediction that this would be a lawless claim than I, but in actuality how does your making that statement differ from any of the rest of us pontificating?

  127. 127
    Valdivia says:

    I must say Kay that your post is the best thing I have read on this all day. Thank you as usual.

  128. 128
    pseudonymous in nc says:

    @jibeaux:

    The only problem is the uninsured free rider problem. I would ideally want it combined with some manner of ensuring that any unpaid medical bills get taken out of your ass before you can spend it on any more yellow flags with snakes on them.

    That’s a big “only”. Once you have voluntary free-riders, then the pool gets distorted, and you have to adjust all the models accordingly. Obviously, that’s addressed by single-payer — or at very least, a single-payer or flat multi-payer floor and a supplementary ceiling.

  129. 129

    @KG:

    Not sure if you’re being sarcastic or not there.

    Not sarcasm

  130. 130
    middlewest says:

    It’s really too bad that the resident lawyers have such severe personality disorders that they can’t make substantive comments. People here could use the informed perspective, but that’s the internet for ya.

  131. 131

    @amk:

    who the fuck is Bravo Nope Zero ?

    I added the Bravo, but the nope zero came from this.

  132. 132
    Intercalation says:

    @eemom: God, you’re really pretty dumb. Your link isn’t a prediction (scare quotes or no) or even an analysis, it’s just a condensed version of the back and forth of today’s hearing. It would make good background for a post that people here might actually want to read, but on its own it’s too boring for a BJ audience or any lay audience. If that’s your platonic ideal of what you’d like to see here at BJ, then you really should just go elsewhere. Or at least shut your yap and recognize that your opinions on this matter are not widely held, and that your constant whining in the comments doesn’t add any value.

  133. 133
    James E. Powell says:

    After Bush v. Gore, I stopped believing that prior court decisions, briefs, or oral arguments have any impact on the supreme court’s decisions. I wonder why I ever did.

  134. 134
    Mnemosyne says:

    @NR:

    A person does nothing, and they are taxed? Absolutely ridiculous. You cannot tax inactivity.

    .
    So childless people shouldn’t have to pay taxes that go toward schools, because you’re taxing inactivity.
    .
    People who don’t use public transportation shouldn’t have to pay taxes to fund it, because you’re taxing inactivity.
    .
    People who never call the police department shouldn’t have to pay taxes to fund it, because you’re taxing inactivity.
    .
    Yeah, that sounds like a great society where you want to live: everything is pay-as-you-go, and there’s no collective action at all, because people only pay for the things they actually use at the exact time that they use them. Paradise.
    .

  135. 135
    ChrisNYC says:

    @NR: The action is the choice as to how to pay for healthcare. That’s the action. There is no inaction that is being regulated. There is a known known that all people will eventually at some point sometime, seek healthcare. People who choose not to carry health insurance are choosing not to have insurance pay for their healthcare. They are either choosing to self insure (damn risky bet, see, for example the plaintiff in the S Ct case who wanted to self insure and tada! found she couldn’t pay her medical bills) or they are choosing to have other people pay for them. Congress can regulate healthcare and Congress can regulate how people pay for healthcare. There is no regulation of inaction going on.

  136. 136
    eemom says:

    @Intercalation:

    WHO the fuck are you again? And WHY should I care?

    I do so love it when little nobodies who have never posted here before crawl out of the woodwork to berate me. Makes me feel special.

  137. 137

Comments are closed.