As conservatives cry about Chief Justice Roberts being a traitor, or having suffered an acute bout of confusion because he has epilepsy (yes, seriously), a 2007 article by Jeffrey Rosen — Roberts’s Rules — provides some much-needed context for Roberts’s actions.
In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.
With the above in mind and after reading the opinion carefully (some parts, more than once), I think that Roberts’s approach was outcome determinative and ultimately, very savvy. He threaded the needle in such a way that he could find the mandate constitutional without advocating for what he saw as such an overexpansive interpretation of Congress’s power to regulate interstate commerce under the Commerce Clause that it rendered such power almost limitless.
(There’s a whole lot more at ABLC.)
rikyrah
I think Roberts saw the crazy and said ‘ I can’t go along with this’.
Cermet
Yes
ABL 2.0
@rikyrah: that’s the shorter version of what i wrote, yes. HA!
Tyro
@rikyrah: Yeah, this. With the added issue that every decision made is a decision from “The Roberts Court.” He was going to have to take personal ownership of the decision to strike down the ACA, and couldn’t just pass the buck to the crazy wing of the court. He knew he would have to own the final decision and that he would go down in history as the justice who struck it down, and he didn’t want that to be what his “legacy” was remembered for.
c u n d gulag
Roberts may have “ruled for the left”* on this one case, but he never doesn’t always support whatever it is corporations want.
And the health care corporations WANT THIS!!!
He did just enough real damage to Obama and the D’s with defining this as a “tax,” and limiting Medicaid, without seeming like some partisan hack.
The R’s can now run and scream about D’s and “taxes” and spending!
And allow their Governors and State Legislators to undermine ACA in their states.
He’s the exact same right-wing corporate feckin’ idjit and hack that he was on Wednesday!
Plus, with this ONE vote, he’s solidified his “Centrist” bona fides with the MSM for decades – if not the rest of his life.
He can now vote to gut the ’64 and 65 Civil Rights Acts, and anything else, and the MSM will say, “Well, he must know which side is right – he voted FOR ACA!”
suzanne
As an epileptic, I am super-offended by Dipshit Savage’s assertion that Roberts went stupid because of his anti-seizure medication. You know, people already look at us like we’re ticking time bombs, ready to piss ourselves any time the lights flicker.
burnspbesq
@c u n d gulag:
I keep thinking someday you’ll get a clue. Alas, today is not that day.
Raven
@c u n d gulag: Yea and the fucking Russian might launch an attack when the weather cools off.
burnspbesq
Credit where credit is due: this is the smartest thing you’ve written in months, ABL. It will inevitably be dismissed by some as lawyers’-guild group-think, but fuck ’em.
chris
You’re overthinking this.
Name one vote Roberts has cast against big bidness. Look how big bidness had come around to support ACA by the time it was tested by the SCOTUS. Use Occam’s Razor. Have a cocktail. You’re done.
burnspbesq
One other thing that can’t be repeated often enough:
Everything Roberts wrote about the Commerce Clause is dicta. This is still the same Court that decided Raich. Everybody who is whingeing about The Twilight of the Commerce Clause should just stow it.
Southern Beale
Rupert Murdoch called Scientology “creepy, even evil” on Twitter today, which is so fucking hilarious. Has he looked in a mirror lately?
sharl
Slightly OT, but I think it worth noting that it’s only a matter of time before Justice Vaffanculo bites the head off a live chicken after reading a dissent from the Bench. That’s gonna be SO AWESOME!
c u n d gulag
@burnspbesq:
I’m so sorry I don’t meet your high standards.
Apparently – again!
What a sad, sad, day for me.
Perhaps you might take the time to enlighten me, instead of insulting me.
Honey, vinegar, and flies, and all of that – you know?
ellennelle
definitely agree with rikyrah, but threw this in the mix as well: roberts was facing historical cynicism re: the court from the public, so he knew there was going to have to be more than just one decision that crossed over partisan lines. immigration was not that hard (ferchrissake, we can’t have 50 different approaches to immigration that ultimately must deal with countries of origin, clearly a federal issue), but between aca and citizens united, aca was the easy call. keeping the latter allows for greater likelihood that republicans will keep gaining control of the gubmint, thus enabling repeal of aca. plus, he deftly wove the limitations on the commerce clause into the mix for future reference.
nicely done, all in all. if self-serving. lord knows he did NOT do this for the 30 mill uninsured in this – his – country.
ChrisNYC
Here’s what the Chamber of Commerce has to say about the ACA:
“While we respect the Court’s decision, today’s Supreme Court ruling does not change the reality that the health care law is fundamentally flawed. Left unchanged, it will cost many Americans their employer-based health insurance, undermine job creation, and raise health care costs for all.”
Full-throated support. Plain and simple.
General Stuck
@rikyrah:
I think this is basically correct. The details are up for speculation, but he flinched from taking the court and country into having all three branches of government into the void to be utterly consumed by hyper partisan politics. Which would have been quite possibly destabilizing for the country on the whole. Plus shying away from taking away health care for so many, and opening up for doubt, all kinds of other CC cases. I agree with the view that Roberts tinkering around with the IM as a tax, is not what the wingnuts think. It is not some kind of future path to undue or block future new deal like laws.
Actually, I think he simplified and expanded the tax and spend powers of congress, as well as giving the stamp of constitutional approval calling about any kind of funding new deal laws as a tax, as well as reaffirming that power by congress for the ones that exist, like SS medicare, etc. I have no problem with this, and democrats will just have to sell their programs funding as levying taxes, though all the existing ones, that is already the case. And deal with whatever consequences that comes from that. I do understand why right now with a bad economy in the heat of a big election, the Obama folks would rather call the IM a CC matter.
The limitation on taking away some power of the feds to dictate state behavior as the feds dole out tax monies, like they did with the ACA medicaid expansion, is a little more troubling to be built on in the future. If read in the most wingnutty way possible by future SC’s.
All that said, I think this was a special case with tectonic consequences to do the federalist society thingy, and I expect Roberts to keep on with the judicial activism, the path of making voting suppression easier, as well as turning the corp cash spigot wide open, by banning any limits on cash from top to bottom for elections in this country. Roe is in real danger, with what seems as Kennedy going fully over to the dark side. And any other social issue they don’t like. But limiting the CC for progressive laws that are deeply woven into the American fabric, was a shark to big to jump.
Brachiator
@ABL:
Excellent observations. I like to think that Roberts also sent the message that it would be the Roberts Court and not Fat Tony Scalia’s House of Originalism.
I wonder if any conservative pundits have praised the decision, or at least have acknowledged it as being reasonable in any way.
Southern Beale
@suzanne:
Agreed. I was treated for epilepsy as a kid, diagnosis still haunts me though I haven’t had a seizure in decades. Can’t give blood, etc.
But Michael Savage being an asshole is nothing new.
JPL
ABL, IMO non-legalese opinion EMTALA declared health care a right since the sick cannot be turned away from emergency rooms. His argument against the commerce clause seemed far fetched. If a person is treated in CA for an illness and cannot pay, my insurance premiums can rise. If a person in NDak is on Medicaid, my tax payer money is used. Help..am I just wrong?
Southern Beale
Via LGM: Roberts swtiched, according to one report –
Davis X. Machina
dupe…
Linda Featheringill
@burnspbesq: #11
Help me out here. Do you mean that Roberts’ essay on the commerce clause is commentary and not binding?
jl
@burnspbesq:
IANAL, but will pipe up anyway.
Yes, it is dicta; but dicta that will be useful to Roberts whenever he needs to find a way to agree with the 3 crazies. And Schumer has accused Roberts of contradicting his testimony on his view of the Commerce Clause.
Schumer: Roberts Broke His Promise On Commerce Clause
http://tpmdc.talkingpointsmemo.com/2012/07/chuck-schumer-john-roberts-broke-promise-commerce-clause-health-care-wickard-filburn-gonzales-raich.php
So, looks like more hard days ahead for the Commerce Clause until can replace one of the 3 hard core crazies, KennedyWTF, or Roberts on the court.
Edit: A quetion: if Roberts’ 20 odd pages on the Commerce Clause are not important, why was the whole issue not handled with the delete key?
NR
It’s pretty obvious. Roberts got a phone call from the CEOs of Aetna and Wellpoint, and they told him he’d better not fuck with their guaranteed profits. Being the ultimate corporate whore he is, Roberts supported the corporate legislation.
rikyrah
I think that Roberts was willing to kill the mandate, and keep the rest – splitting hairs.
but, as with everything with the GOP these days, they don’t see ‘compromise’ as a good thing. like their compatriots in the House and Senate, the dissenting 4 said ‘ our way or the highway’.
and, Roberts said, ‘ see reason’.
when they said NO, he had to switch sides.
ps – whomever coined the Fat Tony moniker for Scalia – not only on point, but cracks me up everytime I think about it.
Baud
@jl:
FTFY
Valdivia
I think all the leaks–see the CBS article–are to discredit him and make Obama look like the thug they claim he is.
Lawnguylander
If Roberts voted the way he did because big business wanted him to, does that mean that Scalia, Alito, Thomas and Kennedy voted against the interests of big business? Am I supposed to believe that 4 of the 5 conservatives were given a clear choice and ruled against the interests of big business?
Lolis
@Southern Beale:
Really? I have epilepsy and have given blood before.
I do think the left wing freakout over the Commerce clause is probably misguided. After all, if Romney wins nothing really matters anyway, because the right wing will have complete control over the court for decades.
Brachiator
@c u n d gulag:
So, are you saying that you would have preferred to see the health care law overturned in its entirety?
Sister Rail Gun of Warm Humanitarianism
Good thing Roberts is headed for an impregnable island fortress for the summer break, ain’t?
JPL
@Southern Beale: There was a good article on why the interns on the ct. don’t leak.. It has to do with money. Clerking on the court means that you can walk away with a three figure job in a prestigious firm and most would not risk it.
There was a time that someone heard about the 11th court ruling in 2000 before it was announced so who knows. How’s that about being vague.
General Stuck
I also think a lot of people are conflating the regulatory framework with the Individual Mandate. As the health care insurance industry and health care industry as a whole, is clearly within the interstate commerce realm to trigger a CC action. No one I know is disputing that, except the 4 wingnut judges that claimed the entire bill was unconstitutional , which seems like a hackish emo hissy fit to me, that doesn’t represent reality. The IM was a separate matter, though linked to the success or viability of those national regulations, but not directly related to regulation. But claiming in general, that the congress does not have authority to regulate the health care industry, is kind of jaw dropping nonsense by the dissenters.
Xenos
@burnspbesq:
Of course, right? Since the court decided on taxation power grounds it did not have a case in controversy over the commerce clause… it lacked jurisdiction to issue a binding decision. Inferior courts are still in the Raich
I have been out of circulation regarding federal constitutional law for a couple years, but this is pretty basic stuff. Unless my memory is just shot from too much swimming in the wine lake, which is possible.
FlipYrWhig
@Lawnguylander: Of course. Upholding the law would be corporatist, and striking down the law would also be corporatist, because corporatists, that’s why. It’s like playing a Get Out Of Jail Free card. It trumps all arguments and clinches your leftier than thou bona fides all at once.
FlipYrWhig
@General Stuck: I think the dissenters’ argument was essentially that since the individual mandate was not severable, if the IM was unconstitutional than so must the whole law be, because there’s no way to pick and choose the parts of the law that aren’t tainted by the IM. Poison fruit of the poison tree and all that.
jl
The doctrine of corporate personhood escaped from its reasonable beginning (as entities that could enter into contracts and appear in court) to is current insane extremity started as a dicta, did it not?
Not sure that was the same type of ‘dicta’ as Roberts’ disquisition. Apparently, the court just told the lawyers that was an stipulation that they demanded the lawyers follow in arguments. (And an rather nebulous stipulation it was, that could lead to all sorts of mischief and the legal insanity, as we now see).
Corporate personhood
http://en.wikipedia.org/wiki/Corporate_personhood
General Stuck
@rikyrah:
Very possible take. Because to strike down the entire law, regs and all, would be seen as nothing short of corrupt by the greater legal community. To a same or greater degree as Bush V Gore. I remember hearing rumors that this was going on several weeks ago.
FlipYrWhig
While we’re on the subject, maybe one of the resident lawyers could clarify for me the following. When people who object to the law say that it declared “It’s a tax,” what is “it”? The mandate, the penalty for not following the mandate, or something else?
General Stuck
@FlipYrWhig:
But they didn’t say that, they said the entire law was unconstitutional. Not because of the lack of a severability section in the passed law. These guys already ignored a law about taxes not ready for litigation until the tax is collected. Which would have been 2014, but they just did what the fuck they wanted, like always. Ended up calling it a tax, and ruling now anyways. Their power is scary, and is utterly plenary for anything that arrives at their desks.
ABL 2.0
@JPL: i don’t think you’re wrong. i think Ginsburg’s opinion was the most sensible of the three and your point is essentially her point. But given that Roberts is a conservative, he wasn’t going to go along with the expansion of Commerce Clause power (which I don’t think is really an expansion at all because of the reasons Ginsburg stated — HCR and the mandate are so unique that Congress is unlikely to pass anything of the sort anytime soon, if ever.)
FlipYrWhig
@General Stuck: But that’s also why I’m not terribly persuaded by the idea. If it would be as “corrupt” as Bush v. Gore, OK, but what negative effects have followed from Bush v. Gore? If the ruling would have made people as upset as B v. G., honestly, what would have happened? I have a hard time seeing any conservative as concerned about “legacy.” They care about principles (as they define them) and about smiting their foes. Victory is the only legacy they embrace.
Lawnguylander
@NR:
Oh, yes, perfectly obvious. Just as obviously, Scalia, et all got the same call and were like, “fuck you, man, we’re not dancing to your tune.”
Did you cancel your health insurance yet?
@FlipYrWhig:
Thanks. I was worrying that a transparently nonsensical argument had taken widespread hold on various blogs, again. But now I understand.
Brachiator
@suzanne:
Wingnuts like Savage and Limbaugh delight in going for the low blow. If asked, “have you no shame?” their easy response is “No, none at all”
Worse, their worshipers, uh, I mean listeners, will parrot and defend them to the death, even if they have to slime people they know, family or friends.
FlipYrWhig
@General Stuck: Maybe I’m misusing the word “severability,” then, but IMHO their logic was that if one part was unconstitutional, the whole thing must necessarily be unconstitutional, because it was not going to be possible to isolate the one tainted piece. Like if one incriminating piece of evidence is acquired through deception or force, everything that piece led to finding is also off limits.
Steeplejack
@jl:
Fixed your link: “Schumer: Roberts Broke His Promise on Commerce Clause.”
FlipYrWhig
@Lawnguylander: When you really take the time to think about it, Scalia, Alito, Thomas and Kennedy are actually populist heroes. It’s practically Occupy The Bench over there, with all the anti-corporatism.
NR
@Lawnguylander: You seriously don’t recognize kabuki? The dissent was nothing more than theater to placate the teatards. There were always going to be just enough conservative votes to uphold the mandate and no more. Just like the Democrats always ensure that there are just enough Democratic votes to kill whatever piece of progressive legislation is currently on the table.
The ACA is a corporatist bill, so it was always going to be upheld.
Joel
@Southern Beale: Rooting for injuries.
chris
Roberts is a Wall Street Republican. Scalia and Alito are movement conservatives. Thomas is Scalia’s meat puppet. Kennedy is apparently schizophrenic and answers only to the voices in his head.
The right isn’t as monolithic as it used to be. I think that goes without saying. Roberts has dinner parties with CEOs, not the Chamber of Commerce nutbags.
General Stuck
@FlipYrWhig:
The word ‘corrupt’, I admit is not what it suggests for an institutional body that can do about anything they wish, and vanquish every other precedence set for similar cases in the past, and not suffer any political consequences, like failing to get reelected, or accused of breaking the law, when they have the power to make law.
So my using it would mean mostly, taking a case and deciding it with political motive perceived, in part or whole, and wiping out all previous court actions to the contrary, to what appears as a political act, or as we say, judicial activism. Striking down the entire ACA, would have been right up there in dubiousness for perceptions widely held that that was the case, at the jumping off place for deciding the order of law in this society.
FlipYrWhig
@chris: What’s the difference in demographic between “CEOs” and “the Chamber of Commerce”?
ABL 2.0
@FlipYrWhig: i think the opponents to ACA view the penalty itself as a tax. The argument goes, I think, the mandate itself is unconstitutional, so how can the government tax us on an unconstitutional mandate.
The response, I think, is, it doesn’t matter what Congress called it. The Government argued that the mandate was valid either under the Commerce Clause or as a valid exercise of Congress’s taxing power.
That is the part that is exploding most conservative brains: How is it not a tax for purposes of the Anti-Injunction Act, but a tax for purposes of upholding the mandate? ARGLE BARGLE.
The answer is, the “shared responsibility payment” is not a tax — it’s a penalty (or assessment or fee as Romney called it back in 2006) — but it can be viewed as a tax under the taxing power for purposes of saving constitutionality.
“It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax.” – Roberts
Bmaccnm
@Southern Beale: I heard an interesting take on this on Thom Hartman(n)’s Program. As a person with a life-long diagnosis of epilepsy, John Roberts is, himself, uninsurable. As in, without above-average income and a good group policy, the Chief Justice of the Supreme Court could not buy medical insurance. Empathy? Just a bit? Don’t tell anyone.
Johannes
Actually, I’m somewhat in agreement with burnsie here. Roberts’ Commerce Clause analysis is wrong, and an innovation, but one which does much less damage than that of the dissenters. And it might not command a court on the day this issue is litigated again. Which does not negate, in my opinion, cundgulag’s entire point; Roberts remains a hack. An intelligent hack, though, with an eye to his place in history.
ABL 2.0
@NR:
I think that’s absolutely incorrect.
FlipYrWhig
@NR: So the millions upon millions of dollars big business spent trying to kill the bill was also part of the “kabuki,” I guess. If it was so much in their interests, why didn’t they lobby FOR it? Wouldn’t that be a much better way to get their way? Make people like it, get it passed quickly, have it upheld in the Supreme Court like 8-1 or something, and start raking in the dough while cackling at how easy it was to dupe their liberal patsies?
Chris Andersen
If you are right about Robert’s core conservative principles (“don’t strike down the entire law even if you find parts of it unconstitutional. Find the best way you can preserve the intent of Congress within the framework of the Constitution.”), then perhaps it could be argued that those who think Roberts is out to tear down Medicare, Social Security and the Voting Rights Act are misunderstanding the dude.
He may, someday, limit those acts, but it is clear what the intent of Congress was in passing those acts and Roberts views his job to be preserving that intent *even if he may disagree with it*.
FlipYrWhig
@ABL 2.0: OK, I think I get that, but from the rhetoric I get the impression that the right is trying to run with the idea that the mandate is itself a tax, rather than that the ability to levy a fine for not abiding by the mandate is in keeping with the suite of taxation powers the federal government has.
Heliopause
Problem being, this was a 5-4 decision. If Roberts is sick and tired of 5-4 decisions the only thing he personally can really do about it is side with Kennedy (rarely, Scalia or Thomas) when Kennedy “swings” to the “liberal” side, making it 6-3. That’s effectively saying that Kennedy gets two votes if he’s leaning “liberal” on a decision and Roberts is abdicating his own duty. Furthermore, most of the public don’t follow this closely enough to distinguish one 5-4 decision from another. Furthermore, this is the very first time Roberts has ever sided with the “liberal” wing on a 5-4 (even Thomas has done so more), if this is some sort of “unity” schtick why did he sit through a gajillion 5-4s as a conservative?
chris
CEOs hire the CoC to be their rabid attack dogs. The CoC strengthens their bargaining position by being harsh ideologues, when CEOs have to answer to more pragmatic concerns.
Hill Dweller
@FlipYrWhig:Big business spent over 250 million trying to kill the legislation last I heard.
JPL
@ABL 2.0: Another post, someone explained that the tax penalty is the same as tax credits but in reverse. The comment was before the ruling and it’s certainly interesting. Personally, I don’t care why Roberts ruled the way he did, as long as he upheld the mandate. Now it’s important to keep the President in office and then hope a conservative retires or goes hunting with Cheney.
General Stuck
@FlipYrWhig:
I’m no lawyer, as aren’t you, so that is getting past what i feel comfortable saying is the case. Or not. Just striking down the mandate, simply puts the onus on congress to come up with a constitutional way to make the ACA whole, and there are more than a few out there that aren’t convinced the IM is all that vital. But I assume it is. I don’t think it would be up to any court to make that policy decision, (and this is what Roberts said about that) by knocking down the IM and the regulations, for that reason. Of them deciding that it isn’t good policy, or workable policy, to not go ahead and knock down regulations that are clearly within the CC purview. Roberts said no to that, obviously. Too far. So he just called it a tax, which isn’t out of the realm of rational since the penalty is listed and collected by the IRS. I also don’t think Roberts wanted to go along with downing the entire bill, that despite any reasoning he could imagine to do so, would in effect supplant one of the most important laws passed in this country, with the will of the SC. And him being Chief Justice, just made that all the more unpalatable.
chris
I’ll put it another way: I don’t think Roberts was ready to attend his next dinner party with his sponsors and have to explain why he saddled their companies with billions of dollars in wasted sunk costs and a suddenly chaotic and uncertain regulatory future. The stock exchanges all went up after the law was upheld. This isn’t a coincidence.
Xenos
@FlipYrWhig: Some of us who are involved, to a limited degree, at least, with the CoC would disagree. Day to day life in the organization is not particularly wingnutty or oligarchic. But the organization presumes to speak on behalf of its members, which it really does not have the right to do. And when it speaks, it is much more concerned about the interests big business than anything else.
scav
Well, that strikes me as lousy reasoning in this complicated sub-lunar world with shades of grey all over the place and where the laws of statistics still allow for six rolls of the dice to come up 1-2-3-4-5-6.
ETA: Seriously, that’s a concern for brand-fucking-management, not evidence of a respect for truth or justice .
General Stuck
I don’t think ‘corporatism’ had anything to do with this particular case. It was about ideology, for the players involved, and some fealty to the concept of a country of laws, not men. At least with Roberts, maybe, some. The four wingnuts, all of it was ideology, in my opinion.
jwb
@ABL 2.0: This is why I always presumed ACA would be upheld: the corporations wanted it. But but it does make me wonder if the corporatists aren’t having second thoughts about the other four conservatives on the court, who apparently went all out to get Roberts to change his vote—especially Kennedy. Of course, who knows how real these reports are. The corporations also have no desire to make it look like the court is bought and paid for, and the close vote, especially with the conservative block voting against, ensures that corporate influence on the court will continue to receive little attention.
jl
@Steeplejack:
Thanks. I thought I had checked it.
A commnter above speculates that Roberts’ got some signals from the insurance industry no how this should go. That crossed my mind too, but I don’t like to be that cynical unless some harder evidence.
Even if the Commerce Clause stuff is dicta, it bothers me.
Seems like Roberts’ dicta expresses an attitude towards the economically nonsensical activity/inactivity distinction. Maybe if a person cannot distinquish between how produce markets for broccoli and insurance markets with claims with long temporal tails work, it might seem to make sense.
But if I understand Roberts’ legal mumbo jumbo correctly he makes odd and irrelevant arguments about time and space and seeming distance between buying a comprhensive health insurance policy and something else happening years afterward and oh os many miles away. Well, yes, that is how comprehensive health insurance works. Sometimes a person wants to insure themsevles against health disasters that might happen years in the future and will work if they have to move.
The activity/inactivity arguemnt has to take into account the fact that if an under regulated market destroys itself through cherry picking and adverse selection, there will be a lot of inactivity in terms of observed transactions. There are still a lot of people who would like to buy insurance at an acturarlly fair price, but cannot.
And Robers doesn’t seem to understand that just becuase health insurance contract itself usually deals with a company that has some state specific legal entity and deals with providers of service within the state (which is not true in general BTW, but let that go for now) then there is no interstate commerce. Corporate enttities that can coordinate financia reserves, and manpower, and regulatory compliance resources, certaintly cross state lines.
The Supreme Court did better on economics 100 years ago, when it had to deal with meta pakcing plants.
Distressing ignorance and total lack of ‘lick of sense’ factor, IMH IANAL opinion.
If a lawyer comes by who can explain the Commerce Clause nonsesne in Robert’s opinion, please do so.
NR
@FlipYrWhig:
The reason the insurance companies fought the bill so hard is because by doing so, they were able to strip it of all real reform.
If they’d just adopted the attitude of “well, we’ll take whatever we can get,” the way the left did, things would have turned out very differently.
Lurker
@NR:
Wrong. The ACA is why Vermont is getting a single-payer health care system in 2017.
This is because of the ACA’s Waiver for State Innovation component, which means that any state is free to use ACA funds to implement whatever system they like in 2017, as long as that health care system insures just as many citizens for the same price or lower than the ACA.
Vermont chose to go single-payer in 2017 on the ACA’s dime. What will your state choose to do?
General Stuck
@jwb:
Why would the health insurance corps want their profits capped by the federal government? I think they went along with it, as better than a PO, in a political atmosphere that was likely to produce some kind of new regulation on them. I don’t think they for a minute “wanted it”
sparky
two things:
1. i may well have missed something but i don’t believe that the dissenters said that the entire ACA fell as a matter of judicial fiat, unless you consider the dissent’s application of a severability analysis the equivalent of blank paper. in other words, i don’t think it’s correct to say that the dissenters’ rationale for invalidating all of the ACA was a kind of ipse dixit. see dissent at 48-64.
if i am wrong, no doubt someone will point it out to me….
2. although strictly speaking it is true that what Roberts wrote about the CC is dicta insofar as it was not part of the decision, it remains that the ACA was not upheld on CC grounds. as to CC-based social welfare legislation i would not be particularly sanguine about that result, unless all general welfare legislation is to henceforth contain a “tax” as an element.
kay
@Hill Dweller:
Of course they did. Employers with over 50 employees are going to have to offer their employees coverage that is comparable to a “federally qualified plan” or pay the government what it costs to subsidize those employees when
they go to an exchange to buy a policy.
They wanted to avoid large employers dumping all of their employees who make less than 400% of poverty level onto a taxpayer-subsidized exchange Medicaid.
They can do that, large employers, but they’re going to have to cover the cost.
Do you remember when low wage employers were shifting health care costs to taxpayers because their employees kids qualified for Medicaid?
We found out we were subsidizing the Walton family fortune by covering their employees kids?
Now they have to pay us if they choose to freeload.
General Stuck
@sparky:
I’d like to hear some of those general welfare legislation as per the CC clause, that is not funded by ‘a tax’?
Ever heard of FICA?
Baron Jrod of Keeblershire
@NR: And if the left had unlimited billions to spend lobbying, things also would have turned out very differently. And just think how different things would be if a beautiful pink unicorn nuzzled us to sleep on a bed of cotton candy!
jl
Also, this IANAL thinks the early compulsory maritime hospital insurance act, which was passed when a whole lot of framers were around to make a fuss, is a very good parallel.
I joked awhile back that the act was necessary because so many US merchant sailors were shooting and beating their merchant seamen hospital insurance policies to death. It caused quite a stir back in the 1790s. Surely, this totalitarian maritime hospital insurance was not forced on them after the mere inactivity of them not buying it, was it?
jwb
@General Stuck: Insurance companies like the fact that there are more people to be covered. I also think they saw the writing on the wall: without health care reform, the system was on the verge of collapse. Companies had begun to drop health care coverage from benefits, and I would guess that the system had at best five years without reform. Had the law been struck down, there would have been few options to solve the health care problem aside from Medicare for all, which would mean at best a much, much smaller role for insurance companies.
General Stuck
@jwb:
They are also going to have to cover people with pre existing conditions now, as well as others they didn’t before. It looks like on paper, they should do okay, but no one can say for sure until the thing fully is implemented. And then a while after that. The rest of your comment is taking some pretty big leaps of faith going into the future. On the state of health care viability in this country. But we kind of agree that the insurance companies had to make a choice to stand down, at least, with opposing the ACA, for the reason something was going to get passed. And to them the ACA was better than medicare for all, or a PO. But saying they went out of their way to support the ACA, I just don’t think is true. Some CEO’s voiced their support, but this is an industry that has fought tooth and nail against any and all national based regulation for decades. I don’t think they would have minded much riding the gravy train on out to the end of the tracks. Rather than have a huge unknown, as is the ACA.
Valdivia
Now we have Ryan, serious and whip-smart® Republican chiming in about how Obamacare is against the rights given to us by God. WTF?
gwangung
@jwb:
I think this is more a “making lemonade out of lemons” thing than anything else. (apparently, many progressives don’t think like that, given it’s a pragmatic attitude). They certainly wouldn’t have like the caps on profits or the ban on recission.
ACCA is corporatist in the sense that it allows a place for corporations. But it certainly doesn’t beat the previous status quo.
gnomedad
Let’s see … Rush mocked Michael J. Fox’s Parkinson’s; Savage has Roberts’s epilepsy covered … who wants cancer?
jl
@Valdivia:
That is standard US political boilerplate. We dirty libs say the same thing when we oppose crazy right wing Supreme Court nominees. Might be a clip fo Joe Biden verifying that.
It has no meaning, unless the speaker glosses his own meaningless slogan. Biden could probably provide a meaningful gloss, since it might mean something in a judicial confirmation hearing. Ryan cannot, or at least I have never seen him do so, and especially impoosible in the context of how to arrange health care finance in the midst of an historic helathcare market failure that is getting lesser people dead before their time and ripping them off to the tune of billions.
Ash Can
@Valdivia: The link says he said this on ABC’s “This Week,” but it sounds like he said it at The Brat Stop after a few boilermakers.
hoodie
Roberts’ Commerce Clause reasoning is fairly constrained and a lot of folks may be overemphasizing it. I can’t see much affect on regular federal regulation, such as environmental or business regulation. At most, it seems to be saying that the Feds can’t throw an individual citizen in jail or confiscate their property if they refuse to buy a commercially available product. I don’t have a particular problem with that per se.
It is a bit troubling that his opinion could have some impact on the necessary and proper clause and the taxing power, but the reasoning of the opinion dealing with those issues is pretty embryonic. It will depend on who joins the Court over the next couple of decades. I guess, in that sense, Roberts was conceding these are political issues, recognizing that this is a moment in time in which the direction of the Court on these issues will be settled by the next few elections. He at least had the decency to realize that his Court shouldn’t try to stack the deck beyond its normal conservative biases, like it did in Bush v. Gore and Citizens United. Thus, this could be the first wave of a reactionary Court, or the high water mark of a reactionary Court. Send Obama and your Dem Senate candidates money to make sure that it’s the latter.
hoodie
Roberts’ Commerce Clause reasoning is fairly constrained and a lot of folks may be overemphasizing it. I can’t see much affect on regular federal regulation, such as environmental or business regulation. At most, it seems to be saying that the Feds can’t throw an individual citizen in jail or confiscate their property if they refuse to buy a commercially available product. I don’t have a particular problem with that per se.
It is a bit troubling that his opinion could have some impact on the necessary and proper clause and the taxing power, but the reasoning of the opinion dealing with those issues is pretty embryonic. It will depend on who joins the Court over the next couple of decades. I guess, in that sense, Roberts was conceding these are political issues, recognizing that this is a moment in time in which the direction of the Court on these issues will be settled by the next few elections. He at least had the decency to realize that his Court shouldn’t try to stack the deck beyond its normal conservative biases, like it did in Bush v. Gore and Citizens United. Thus, this could be the first wave of a reactionary Court, or the high water mark of a reactionary Court. Send Obama and your Dem Senate candidates money to make sure that it’s the latter.
kay
@jwb:
I disagree with this. I think insurance companies have a lot of options to stay in business and make money without reform.
If we had gone with the deregulatory
states rights conservaplan, they wouldn’t
be regulated at all.
They would simply push everyone but
the top-level to the equivalent of a
catastrophic plan.
I think this “death spiral” assumption is based on “health insurance as we know it”
There is absolutely nothing that indicates that “health insurance” has to stay the same for the vast majority of people, or that it WOULD, absent reform. We’d all end up with less comprehensive policies, and they’d still make a profit.
The story goes that health insurance stays comprehensive, and then… the system crashes. Why would that happen? That isn’t what’s happening NOW. They’re profitable because they’re shifting costs. They’ll simply continue to do that, absent reform.
bemused
@Valdivia:
I had to read that three times and I still can’t comprehend what I read.
McConnell said to Wallace 30 million uninsured is “not the issue” with ACA.
They both (and a very large number of Republican legislators) are criminally insane.
jl
Also, this is a good day to avoid all machines emitting corporate news talky political analysis media content. It is always a ‘high threat to sanity’ environment after a big politically charged court decision.
General Stuck
@kay:
I think it could have crashed, but that is much less so now with the feds having a rather large foot in the door. Though I agree that that “crashing” would not be monetary, as these folks are very good at squeezing the last drops out of anything as profit. But it could have, and still can, though less likely with ACA, in a political sense, of the product the insurance companies provide, becoming so meager in substance, the voters would demand and be open to a not for profit system of some kind. The insurance companies are well aware of this, I suspect, with a keen survival instinct, and likely why they went along with the ACA in the first place.
jl
@hoodie:
I hope you are correct. But I still say, it don’t make a lick of sense for this case.
In something like tobacco advertisements near schools, maybe, but not this one.
What troubles me is that Robert’s at places seems to concede that insurance markets, especially comprhensive health insurance markets, are not like produce markets.
But then Roberts spouts off unnecessarily (which is what this ‘dicta’ thing is, right?) using reasoning that insurance is like other markets. All he leaves out is the brocolli itself.
Makes no sense to IANAL me.
I think he could consistently say, as some extreme free market economists, and mystic Austrian obscurantist economists, would that if a market cannot exist in an unregulated environment, then it should not exist at all, period. But that surely is not what the Holy Blissful Founders(TM) PBUT, wanted, is it? And it does not seem to be what Roberts was thinking.
Honus
@burnspbesq: Thank you “7-2 slam dunk” Burns.
kay
@jwb:
The death spiral theory assumes the writing is on the wall for health insurance companies.
I look at it the other way. I think the writing is on the wall for the people who have traditional, comprehensive health insurance policies, and THOSE go WELL before health insurance
companies do, absent reform.
The biggest, most delusional lie media and conservatives have promoted in this whole thing is that people who have traditional health insurance will keep that absent reform. We won’t. They’ll continue to shift costs to policyholders.
Valdivia
@Ash Can:
I am so glad you called it that. He always seemed to me a total brat.
@bemused:
and thank you because I was beginning to think I had lost all my cognitive abilities suffering through the soccer game (i.e. +2)
FlipYrWhig
@NR: Hold on, there, though. Not all Corporate Interests are on the same side. Famously/notoriously, pharmaceutical companies didn’t object to the bill. Insurance companies squawked. The US Chamber of Commerce has been shrieking like a stuck pig. Walmart supported it. Isn’t that a blow against the whole idea of “corporatism”? If Scalia rules in a way some corporations like, and Roberts rules in a way that other corporations like, and Ginsburg rules in a way some corporations like, is that proof that everyone is a dread corporatist regardless of their views, or is it instead an indication that “corporatism” is not a very useful frame for interpreting what happens?
Baud
I’m still in a “I don’t care why he did it, I’m just glad he did” mode.
Ash Can
@Valdivia: Actually, the Brat in Brat Stop rhymes with “stop” and is short for bratwurst. There’s a link in my comment, but my links don’t show up in blue anymore since I have to enter them manually since, for no discernible reason, the editing buttons don’t show up for me on Firefox any more.
jl
@kay:
I agree with that completely.
No one knows how long it takes for the death spiral to play out. But ordinary people will get cut out of the market long before the industry itself finds itslef in an existential crisis and goes running to the government for protection.
In fact, that is how the death spiral works. The destructive chaos of market competition when there is no competitive equilibrium works by cutting various less profitable customers out of the market.
Or, the death spiral ends up with one or two dominent insurers.
In either case, people will not be ablet to keep their their insurance policies on the current terms. And that unpleasant surprise will happen long before the insurers are in trouble.
Yutsano
@Baud: This.
FlipYrWhig
@kay: I feel like taking steps that guarantee some level of profitability for insurance companies _while also_ ordering them to coordinate medical treatments for policyholders is a significant step in the right direction, because, as you point out, right now they’re making money by shifting costs, denying treatment, and generally functioning as a racket — a protection racket that’s great at the extortion and skimps on the protection. A protection racket that provides actual protection is a lot better than a protection racket that lets you get robbed and still keeps demanding payment.
Villago Delenda Est
Of course, if you look this as the wingnuts do, which is, this is about getting the ni*CLANG* out of the White House, the vote makes perfect sense.
They were willing to destroy the country once before over slavery. They’re willing to do it again over racial equality.
Valdivia
@jl:
I guess I have to fine-tune my boiler-plate translator. :)
@Ash Can:
ah! I couldn’t click on it, that’s why I missed the reference
ABL 2.0
@NR: this is asinine.
kay
@General Stuck:
I still think you are thinking within a frame of “what we have now”
States could mandate purchase of a catastrophic policy like they do with auto insurance. There’s no constitutional issue.
States thus cover their ass on the cost of the majority of uncompensated care, the big bills, and people get little or no “ordinary care” benefit or coverage.
There’s a lot of ways for insurance companies to
solve the profitability problem.
States didn’t mandate car insurance because they love us. They mandated rock-bottom auto coverage because they were getting stuck with costs after car accidents.
Are auto insurance companies in a ‘death spiral”?
Hell, no.They’re raking it on on policies that cover nothing but states’ exposure to uninsured losses.
jl
@FlipYrWhig: Add in large corporate providers to insurance companies, and I would agree with you.
Honus
@burnspbesq: Yes it’s dicta. Also, three more justices than the minimum you predicted said the Commerce Clause didn’t justify the mandate. So quit snaking on ABL, who went to a far better law school than you, and c und g, who perceptions are more accurate.
ABL 2.0
@FlipYrWhig: you might be right. wingnuts are screaming about it being the most massive tax hike on americans ever! i’m not sure it matters to them whether the penalty is the tax or the mandate is a tax. all they know is that they’re being taxed to death!
they know the word “tax” scares people, so they’re just making shit up. If you want a good example of this, check out the Twitter feed of @keder.
FlipYrWhig
@ABL 2.0: Buckle up. Discussing this with NR is going to be a bumpy ride. :P
jl
@Valdivia:
” I guess I have to fine-tune my boiler-plate translator. :)”
Just step back slowly from all machines emitting old fart pundit noises today, is may advice, is all.
Good day to drink, but I see you getting startedon that already.
ABL 2.0
@Heliopause: i think roberts thought he could persuade kennedy to swing left with his taxing power argument, thus making it 6-3. in any event, i don’t think he wanted to have to swing between both sides: go with the cons on constitutionality, but then go with the libs on severability. that would have created a mess.
the new CBS report, however, indicates that Kennedy was pretty stalwart about deeming the entire bill constitutional, so who the hell knows! i’m just speculating.
TenguPhule
Don’t care why Roberts ruled as he did, he’s still got a number in line for the wall, albeit a little further back.
The system needs to be cleansed.
General Stuck
@kay:
I think I said that companies and their state partners, and they are partners at the state level, will find all sorts of ways to find some profit to take. But in the madness of this as a fragmented national condition, it is like you say, and I said, that it is likely the product of insurance coverage would reach such a “meager” or unacceptable level, both states and IC’s would face a voter revolt, at such a threshold, and demand a different more sane system. Whether that continues to be private, or public, I would say more likely public, cause the private system failed. But who knows that?
edit – plus, I think comparisons with the mandate and auto coverage for insurance is accurate in that sense, but limited in comparison much past that as products, or services.
Cacti
@Brachiator:
I like to think Scalia being such a raging arsehole of late might have influenced Roberts’ decision. If he was out to send a message, I’d say it was letting “moderate” Kennedy know that he no longer rules the roost.
Linda Featheringill
@Valdivia:
Ryan and rights coming from God:
He’s an idiot. And an arrogant idiot. Full of hubris.
Where is Zeus? Can he punish this hubris?
kay
@FlipYrWhig:
I just wish we could talk honestly about this. If Obama had dismantled the employer-provided health insurance system, the one that exists, where college educated people ARE COVERED, the 55% of people who have health insurance would have gone insane.
He started every speech with “you can keep your health insurance” for a reason.
They’re going to sell this as “security”
It’s a guarantee. No matter what happens to you or me, get fired, get divorced, whatever, they’re guaranteeing a level of coverage and a price as a percentage of income.
That’s what they’re selling.
c u n d gulag
@Brachiator:
No, and that’s my point.
He’s a corporatist.
And a political animal.
He looked at what the other 4 corporatist had written, and decided, for his own reputation, the courts, the benefit of health care insurance companies, and the detriment of Obama and the D’s running for office, to do what he did – call the mandate a tax (which, for all intents and purposes it always was), and gut state Medicaid requirements.
In other words, enough for the R’s to run against Obama and the D’s on this issue. if that’s what they wanted to do.
If Obama wins, and ACA stands, his corporate pals will make potentially billions and trillions of dollars.
And if the R’s win, the status quo stands, and everything eventually returns to what there was before some portions of ACA took effect.
And, Roberts can continue on in his career as the CJ on the SC, and say, “Hey, it ain’t MY fault Obama lost, and ACA got repealed but not replaced!”
And the MSM will lick him like he was a Centrist ice-cream cone – his bona fides on ACA allowing him to be the 5th vote on countless cases that whittle away at any progressive measures gained in the 20th Century.
THAT’s what I think.
Please explain what YOU think.
Soonergrunt
@suzanne: funny, you don’t look epileptic.
bemused
@Valdivia:
Ryan’s philosophy is that “our rights come from nature and God according to the Declaration of Independence”. That’s quite a stew of Ayn Rand and prosperity religion.
Omnes Omnibus
I know this is a novel viewpoint, but has anyone considered the possibility that Roberts voted to uphold the law as a valid exercise of the tax-and-spend power because he saw it as a valid exercise of the tax-and-spend power? Sometimes a cigar is just a cigar.
Valdivia
@jl:
Hey after the beating Italy took I had to have a drink! ;)
@Linda Featheringill:
Can we get a couple of extra kick ass gods to join in?
Raven
@Omnes Omnibus: Oh hell no, what fun is that?
Soonergrunt
@Brachiator:
Fat Tony Scalia’s House of fake Originalism.
There was no originalism to the dissenting opinion. It was dripping with contempt for more than a century of settled law.
jl
@Valdivia:
But, if you are a futball fan, doesn’t the rest of existence sort of lapse, until the tournament is over?
That fact that you even noticed that Ryan said anything makes me question your devotion to futball!
Raven
@Soonergrunt: You watchin the golf? They have American Flags on the greens and uniformed troops holing them at parade rest while the putt. Nice touch.
Valdivia
@Omnes Omnibus:
I like how you think, can I subscribe to your newsletter? :)
I understand the speculation but as I said above way at the beginning I think there is an element of speculation that is coming from the right to delegitimize the constitutionality here. See all the leaks per the CBS article today making it seem Roberts switched sides under ‘outside pressure’ and then went with a flimsy argument (per the tone of the article as I understood it)
And that truly pisses me off. There is always some back and forth between the Justices, they argue and lobby each other, but in this case they are making it out to be some sort of crime of that Roberts changed sides.
Raven
@jl: Until the next most important game in the history of the universe! Haven’t we had at least three of them in the past 2 months?
MikeJ
So if the Supremes overturned the ACA we could point at the US Chamber of Commerce’s hatred of the bill and say they were being corporate lackies. And if they upheld it, we could point to the insurance companies[1] and call them corporate lackies.
[1] Insurance companies that now all have a profit cap written into federal law
Omnes Omnibus
@Valdivia: Like you said, there is frequent back and forth between Justices. Sometimes (frequently?) comments and questions from the bench during oral argument are aimed at influencing other justices. What appears to be a non sequitur to observers makes perfect sense in the context of a discussion or dispute between Justices.
Valdivia
@jl:
and later I will also have to pay attention to the Mexican election annoying people again with a thread about that :)
(for which I will be a little late since I won’t be free til after 9)
I guess they are going to take my futbol-fan card away. will try not to pout!
Baud
@Omnes Omnibus:
Are you on drugs?
kay
@General Stuck:
Sorry, Stuck. I don’t really buy the ‘voter revolt’ theory either.
They slowly took people from pensions with a guarantee to stock funds with no guarantee and I haven’t seen any voter revolt.
FlipYrWhig
@kay: And that’s why the advocates for single-payer have such a rough slog. As I think Obama said once, if you were designing a system from scratch, that’s probably how you’d want to do it. But given what people have now, telling them they’re going to lose that but gain something else that’s slightly better for being less likely to be taken away… That’s DAMN hard to overcome. Especially given the prevalence of crab-bucket thinking in this country, made worse under economic stress, where people _with_ perks are highly disinclined to bringing the perk-less up to their level.
Abstractly speaking, yes, I think it’s ethically dubious to enshrine into law a degree of profitability for insurance companies. But given where we are now, that ethical consideration is trumped by the millions of people suffering, or in precarious situations, by the way insurance companies presently function.
I mean, it would be ethically better for all electricity to be generated by municipal non-profits rather than private corporations, but that doesn’t mean we have to mistrust it when private corps offer rebates for fuel-efficient equipment and programmable thermostats. Sure, it helps them continue to make money off us, but it also benefits us. And in a capitalist system, that’s the type of thing we learn to get used to.
jl
My cynical little economist’s heart and mind, does not believe that the ACA in its current form provides enough regulation, even with the exchanges, to create a stable market.
People will have coverage, but the insurance companies will be able to make it expensive enough to seriously bother people.
So, its a transitional system. Robert’s bad economic analysis in his Commerce Clause
officially pointless bloviating, excuse me, dicta, indicates a seriously bad attitude on the court for allowing reasonable regulation that can ensure a competitive market, and for measures to do anything about regional provider market power.So, I think once people get coverage, that will be irreversible step, but still will be a rocky road ahead. Probably need public option of some sort to make it work long term. Otherwise, will still end up with glacial evoultion towards Medicare/Medicaid for all (or most).
Edit: but with the ACA making that transitoin with less needless permature death and suffering.
So, I worry about Commerce Clause nonense, and economic nonsense within the Commerce Clause nonsense.
FlipYrWhig
@MikeJ: QED. See every NR comment since the issue first came to a head, inclusive of this very thread.
Valdivia
@Omnes Omnibus:
yes which is why I thought Roberts was thinking of that and arguing for it with Kennedy in mind when he made that remark during arguments. It just seems the narrative is now set that Roberts was intimidated by the Liberal media and that Thug Obama and changed his mind pulling the argument from you know where. Le sigh.
Raven
@jl: Isn’t all legislation of this scope “transitional”?
Nellcote
McConnell Says GOP Needs Just 51 Votes to Overturn Mandate
Senate Minority Leader Mitch McConnell (R-KY) indicated that Republicans believe they will only need 51 votes to overturn the centerpiece of the 2010 health care law, Roll Call reports.
“If Republicans take the majority in the Senate in the 2012 elections, McConnell said, he would use budget reconciliation to overturn the law — a move that would not be subject to the 60 votes necessary to overcome a filibuster.”
Said McConnell: “Reconciliation is available because the Supreme Court has now declared it a tax. They have unearthed the massive deception that was practiced by the president and the Democrats to constantly deny that it was a tax. … And as a tax, it is eligible for reconciliation.”
Steve in DC
@FlipYrWhig:
There is practical corporatism and ideological corporatism, they are not the same. Alito, the Koch’s, and many others are pure ideologues. Roberts seems to be more pragmatic.
A fair amount of those on the right simply want to make a bit more money, for profits to rise, less regulation in areas that harm business, and are willing to make concessions to get there. This isn’t a “bad” thing at times. On the other hand pure ideologues hate the entire New Deal and are furious at Liberals and Moderate Conservatives who placed human and civil rights on a higher place than economic and property rights. They want the entire thing thrown out, this is dangerous and nuts.
Make no bones about it, the ACA is feeding citizens to corporations to protect their profits and existence… it just manages to extend coverage to people in the process.
General Stuck
@Omnes Omnibus:
What I heard today was the ACA decision was the first for Roberts siding with the court liberals in a 5 to 4 decision. For that reason, speculation for alternate alternatives is authorized. But a cigar can be a cigar, and not diabolical noodling of hanky panky goings on.
Linda Featheringill
@<a href="#comment-3403214″>Valdivia: #122
“Can we get a couple of extra kick ass gods to join in?”
Thor maybe. And that Chthulu or whatever deity. and the God of Destruction from old India. And . . .
:-)
Edited because block quote is picking on me.
Omnes Omnibus
@Baud: No, unfortunately. I just do not yet see the institution as irredeemably corrupt. There are Justices who I will concede are right-wing hacks, but there are others who I simply see as right-wing. I think there is a difference.
Valdivia
@jl:
you are an economist?
/insert outraged emoticon here/
kidding, I am not going to hold it against you. :)
@Linda Featheringill:
sounds like a plan. Thor is the one I am most partial to. ;)
Davis X. Machina
@kay:
Josh Marshall making the same point here:
Maude
@Omnes Omnibus:
That’s what I thought. Kept it real quiet.
kay
@FlipYrWhig:
Honestly? I think we’re going to go from what I consider an obsessive focus on insurance companies, the mechanism of payment, to what it is we’re buying.
I think that for a reason. That’s what’s happening in Massachusetts AND Vermont.
The payment method, mechanism, goes in and then we get to the hard part, which is health care.
jl
@Raven:
” Isn’t all legislation of this scope “transitional”? ”
In a broader political sense, yes. In the narrower sense that legislation, on a topic where economics is a key issue, should produce an economically stable system, no
But, that is just my opinioin. I will admit that.
FlipYrWhig
@jl: To get to something like a Medicare For All we’ll probably need a new economic boom _and_ leading businesses rallying for it as something that will make them even more competitive/profitable globally. It’ll never happen if it looks like a “bailout” or “welfare.”. And then we’d get to enjoy decades of meddling by conservatives over abortions and end-of-life treatments. Say what you will about Corporatists, at least they care more about raking in the green than about social engineering, and an insurance company at present would much rather fund your abortion than your sickly child.
Raven
@jl: That’s what I was seeking but I guess my point is that it was always going to change from the original legislation in the regulatory process.
But what do I know? I’m watching golf!
Steve in DC
@jl:
Simply having coverage does not make healthcare affordable. Coverage helps, but it’s weak. I have great health insurance, routine items are pretty much covered, as are most medications, so are ER trips. I’ve had a couple major issues and they were taken care of.
But even with good coverage if something truly catastrophic happens, you’re finished. You’re either rich and can afford it plus the time off work, or you’re fucked for the rest of your life. And for seniors, lol, the top doctors don’t like medicare. They don’t get much money for it, takes forever to get the funds back, have to hire extra staff just to deal with it. My dad is kicking along at 83 despite cancer and shitting health over all long past his friends, largely because he see’s top doctors, many of whom don’t take insurance at all and if they do are constantly trying to push people using government plans off and have them replaced with people who have private plans.
The ACA is a step in the right direction in a few areas, but it doesn’t solve people being ruined for life if a major illness hits them, does not really reign in rising costs, and does not provide equal healthcare for all or do anything about the multi tiered healthcare system we have.
Enjoy your insurance, pray you don’t catch cancer… if you do please don’t expect treatment from a top doctor!
jl
@Valdivia:
” you are an economist?
/insert outraged emoticon here/
kidding, I am not going to hold it against you. :) ”
I am an economic statistician (econometrician). I am not required to believe the theory. There is a secret code on my diploma which I show to the Economic FUD Thought Police when they show up at my door.
On the other hand, you are a person with a artistic sensibilties, and a futball fan, and do not root for Brazil to excluson of everyone else?
Yet I forbear and said nothing. But, I try to be broad minded.
Edit: Oops. Wait, what galactic soccer tournament of the universe is this one, anyway? European Cup? OK, then. A hall pass is granted.
Steve in DC
@Linda Featheringill:
Khrone, Tzeentch, Nurgle, and Slaneesh are the best gods of all gods.
gwangung
@Davis X. Machina:
So, folks, why is this important or not important?
Kerry Reid
@gnomedad: Sarah Palin is on it! http://www.youtube.com/watch?v=j9AIDRGzUAw
General Stuck
@kay:
There certainly is evidence to support your position on all sorts of wingnutty stuff happening in this country. But health care is different imo, it is deeply personal and connected to all sorts of basic fears. I do think there is a threshold for as you say. Something like
@kay:
With ‘ordinary care’ being mostly primary care and preventive care that the 80 percent that hold policies will have a revolt threshold for voters. They may not automatically vote for democrats, but if the wingers don’t offer real solutions, they won’t vote for them.
I just don’t see the point in caring, if there are no limits to deprivations in this country to a big degree to what people are used to counting on in the past. And not using their vote to express this. We might as well just crawl under the bed and die.
Baud
@Omnes Omnibus:
I was being somewhat tongue in cheek. But I do not think Roberts opinion ignored the politics of the situation.
kay
@Davis X. Machina:
I got there, oddly enough, thru Chuck Schumer. He said a true, blunt thing that no one wants to hear
He said Democrats won’t get any immediate benefit because people w/out insurance don’t vote in the numbers that people WITH insurance
do.
I was so relieved to read something so
true amid all of this nervous, multi-layered avoidance of what is a class issue that I could have hugged him.
Valdivia
@jl:
I have met a few folks who do econometrics, you guys are a-ok
And while I appreciate the forbearance, you should say, I don’t mind! ;)
I rarely root for Brazil I confess (watch Randinho come and kick my ass now). I pretty much all the time root against Argentina and had the most exuberant of happy dances in the last world cup when they lost to Germany by a whole lot.
So you see, not only are they taking my fan-card away but also my hemispheric-loyalty card as well. A lot of the time I root for Barca (sadly Costa Rica’s team truly sucks).
Omnes Omnibus
@Baud: Nor do I. I actually suspect the Commerce Clause part of his opinion was a bone thrown to the right.
Odie Hugh Manatee
@Southern Beale: ““He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.””
Most libertarians are.
jl
@Raven:
I am OK with the broader point of view, if voters feeling ripped off doesn’t stall or reverse the progress.
” But what do I know? I’m watching golf! ”
Attend you all to the wise Raven. On a day like this, even watching golf, the sports equivalent of drying paint, is a far superior way to spend the day that wandering within earshot of the pundits.
Soonergrunt
@Omnes Omnibus: There you go again.
(rolls eyes)
FlipYrWhig
@Steve in DC: Well, making a corporation provide a useful service is a big step in the right direction. It’s less sweetness and light than having a government directly provide a public service, but that’s America for you. We have a lot of profit and looting baked into the cake already. My town doesn’t have government providing trash collection — everyone needs to contract with a private company or take their trash to the dump themselves. It could be a public service with public employees, but it isn’t. Someone makes a profit. Life goes on. I’m more concerned that they pick up the trash. With health insurance, it feels like you hire a trash company that doesn’t even reliably pick up your trash, or when you have a big pile they skip your house until you pay them more. Profit is onerous from a left perspective because it’s the extraction of surplus value. But profit without service is far, far worse. And that’s the tradeoff ACA offers insurance companies: make money providing services and you’re golden.
Soonergrunt
@Raven: Nope. Been out looking for a new house.
Soonerwife has been making noises about wanting a new house, so I spent the day taking her around to some newer neighborhoods in the OKC metro and talking to real estate agents and builders.
I think we’re going to build a new house. God knows after putting up with me for 20 years, she deserves a nice thing now and again.
JPL
IMO..and I am not a lawyer and I don’t pretend to be.. but if you want more of Roberts and crew..vote for Romney. If not donate to the President now. A few dollars goes a long, long ways. We can be a collective Koch brothers. BTW..I sure hope that Cole reaches lots of folks.
jl
@Valdivia:
I do not know much about futball. I was taught how to appreciate the game by a bunch of Brazil fanatics in grad school. So I learned everything about the perfection and beauty of the Brazilian game, pathetic charm of the Brazil wannabes, and the pure evil of anything else.
Some of the Northern European game did remind me of the regimented mechanical approach I was forced to play in Middle School phys ed. I mentioned that to my futball tutors and they were horrified at the barbarity of the futball being forced on innocent children in the US.
It does seem to me that US sports are better at integrating cheating into the flow, philosophy, and spirit, of the game. Cheating in futball always comes off mean spirited and tacky. That is something soccer people need to work on, IMHO.
kay
@General Stuck:
Oh, I’m hopeful as hell. Democrats succeeded in covering poor and lower middle class children in this country with SCHIP.
They did that despite 2 vetoes and the conservative terror that if working people got used to having their children covered they might love that.
They do love it. I talk to them every day. We’re not going back to millions of CHILDREN w/out coverage. That’s huge. A success.
General Stuck
@kay:
Sorry, Kay, I don’t believe in your theory that anything can happen in the future, and voters won’t respond at some point, either.
Judas Escargot, Acerbic Prophet of the Mighty Potato God
@Bmaccnm:
I remain convinced that Roberts’ epilepsy very well might have saved the ACA.
I may disagree, but the man appears to be a sincerely pious man. Maybe his conscience, and the knowledge that ‘there but for the grace of god go I’ turned his mind.
Either that, or he was visited by Three Ghosts in the Night…
kay
@General Stuck:
Stuck, when people tell me their children are “on the Buckeye” I say “your children are on Medicaid”.
They don’t know where it came from.
I could say “George W Bush vetoed your children’s health insurance coverage, twice” but I suspect most of them don’t vote.
I just have trouble with what I see as hoping for some seminal event of mass enlightenment.
It’s always been a slow grind. People are busy getting by and it’s a big country.
Southern Beale
Smug Republican asshole at my place doing that thing they’re all doing now, which is to accuse Democrats of not being sufficiently compromising on healthcare reform. When the entire Affordable Care Act is almost identical to the 1993 Republican healthcare plan. When I point this out he says, “yes but your side only did that after we refused to go along with single payer.” I’m like, sooo…?? Look up compromise in a dictionary, asshole.
This is what they’re doing, now…. blaming US for the very crap THEY have been doing for years. We took the GOP plan and they screamed and hollered “socialism!” and “government takeover of healthcare!” when we did what they wanted all along and NOW they cry “you aren’t compromising!”
They are horrible, awful, terrible people. Really.
Omnes Omnibus
@Soonergrunt: Yes, I expect to be called a sad buffoon fairly soon.
General Stuck
@kay:
I said nothing about a “seminal event”. I said if it gets to the point that even the 80 percent with what passes as decent health insurance, can’t go to the dern doctor when they are sick, as “ordinary care” then they will not be happy campers. The poor are in that boat already, but no one cares much about them, but when everyone is in that boat, something has to give, and the vote is all any of us really has as power, in the end. Please don’t read into my comments stuff that isn’t there.
Raven
@Soonergrunt: Sounds like fun. We bought our 100 year old place 13 years ago and spent 4 years remodeling and adding on. The we bought the place next door and gutted it. My wife’s dad was a builder and they designed the renovation and he built much of the cabinetry. I don’t recon we’ll leave this place.
Valdivia
@jl:
well the Spaniards play very nicely without looking at all regimented. As for cheating: my favorite is to see them flop like they got injured when no one touches them. Takes good acting!
Having said all that you had the best futbol tutors one could wish for. Beautiful game concept comes from there for a reason. See: http://www.youtube.com/watch?v=0i5xdwVAt1k
Canuckistani Tom
@Valdivia:
Who was that guy, you know, the one who healed the blind and the cripples and the lepers for free?
kay
@General Stuck:
Ultimately it doesn’t matter. They’ll retain a guaranteed coverage level if this law survives.
My only quibble was with what has become, to me, a set of lock-step assumptions about what happens ABSENT reform.
Health insurance system crashes, people respond THIS way, which leads inexorably to THIS. .
I don’t think anyone knows. I don’t know if Obamacare will “work”. It’s a big, complex law. I assume some of the plans will fail in ways we don’t anticipate.
ABL
@Omnes Omnibus: I considered that, but the way the dissent was crafted was just too weird for it to not have been intended to be a majority opinion. Also, Ginsburg’s opinion reads like a harsh dissent against a majority led by the Chief Justice. At least that’s what I think.
Soonergrunt
@Raven: I don’t know if I’ll stay in the new house forever, but I fully expect to file my retirement paperwork from that address. The main reason we’re going custom build is to get the important stuff in at first when it’s easier and cheaper. If we had time to renovate, I’d do that like you did. I’m pretty envious of that, actually. But for her to get what she wants, and for me to get what I want, we pretty much have to build new.
ABL
@Southern Beale: It’s a fucking Heritage Foundation bill! How much more compromise did they expect?
Sore losers.
Soonergrunt
@ABL:
Paul Campos at LGM thinks the same. On Roberts’ majority opinion becoming the joint dissent.
Southern Beale
@ABL:
Thanks. ABL for commenting over at my place. God that guy annoys the crap out of me.
He’s a GOP activist but pretends to be just a nice, moderate guy. This is their new talking point: the Democrats are the ones who are the big fat meanies! They’re trying really hard to push that meme.
kay
@General Stuck:
Just one more thing. John McCain got half the country to vote for him promising to decouple health insurance from employment and give them a tax incentive to go buy their own.
They voted for him. Now, maybe they didn’t know that he was promising to gut their employer provided health insurance by removing the tax incentive for employers to provide coverage and thereby provide them the “liberty” to go get their
own coverage, but that’s the end game of that “plan”.
A little less than half of them voted for him.
Anne Laurie
@Canuckistani Tom:
He was executed for his terrorist ideology and freedum-murdering tactics, after which I am told his name was expunged from the Official History(tm).
Southern Beale
@kay:
People in this country are uneducated. They don’t know that in 1993 Newt Gingrich thought the individual mandate was crucial for “personal responsibility.” All they know is what they heard on TeeVee 10 minutes ago.
I don’t know how we educate the public when we have such short term memories. We have to figure this out. The fucking mainstream media isn’t going to do it.
kay
Southern Beale:
The reason I know how attached people are to their employer-provided health insurance is because The McCain Plan ( such as it was) would gave gutted that system.
Obama ran against him on that. There were flyers and things.
The McCain Plan was much more radical than anything Clinton or Obama ever dreamed up. His “plan” was: here’s your tax credit! Good luck out there!
It bombed, although it was infused with liberty on every level :)
Soonergrunt
@kay: I think most of those votes were about McCain’s “war 24/7/365 on everybody” stance and his not being black more than anything else. And while I’m sure that some people voted to get screwed over, I think a big part of that was still about “I’d rather be fucked by a white guy than helped by a black guy.”
ruemara
@Baron Jrod of Keeblershire: Can I still vote for the nuzzling pink unicorn and the cotton candy bed? Because this sounds awesome.
brantl
Anybody who thinks the repubs on the court pinning the “tax” label on this matters is nuts. It mattered at the time that it was voted on. If it worked like a tax, it would be a tax. This isn’t a tax, it’s a fine, for not following the law, and everybody knows it. And Roberts decided the way large corporations told him to decide it. Health care insurance companies have a lot of skin in this game, and they intend to keep it.
brantl
@burnspbesq: When you get one then you’ll know what one looks like.
kay
@Soonergrunt:
I don’t know on McCain/health insurance. I feel I got some traction for Obama on that issue in ’08, canvassing and such.
I generally (now) agree with you, though.
I was blissfully naive on race in this country before this President.
It has been a real fucking learning experience. I had no earthly idea how nuts it would get. I am seeing things I never noticed before.
brantl
@NR: This is dead on the money. Roberts is the justice by the corporations, for the corporations.
General Stuck
@kay:
That has nothing to do with what I was talking about, absent reform, and even maybe with it. That if what you yourself said about ‘ordinary care’ going by the wayside as a general condition, that at some point, the voters will react to that. Has nothing to do with some lame campaign promise. Nor did I say, if THIS happens, THEN this is what will happen. Only that SOMETHING will happen, as the voters won’t stand for loss of basic access to their primary care providers, let alone specialists.
The reason Mccain did as well as he did, was almost totally tribal, and nothing else. But even tribalism has its limits around the edges, and enough deprivation will break that bond, when basic things needed to live are not available.
brantl
@Chris Andersen: Citizens United certainly didn’t do that, did it?
General Stuck
@Omnes Omnibus:
Yeh, I saw that “sad buffoons’ blurt in an earlier thread. I think you can take some solace in that it doesn’t sound quite as bad as ‘shithouse lawyer’/ Small victories in the defense of liberty, or something like that/
jncc
@c u n d gulag:
Exactly so.
In the future, the option for most people will be 1) buy an insurance policy from the insurance companies or 2) pay a tax to the gov’t equivalent to the “average policy cost”.
The ACA is a huge boon to the insurance industry. They helped craft it, they endorsed it, and they lobbied for it.
Look, I a pleased as punch that ACA was upheld, but to think that Roberts suddenly discovered his conscience or something is just silly.
kay
@General Stuck:
We disagree but I don’t think it matters. I personally believe the law sticks, the majority of it, as long as Mitt Romney loses.
I went to an event last night and Democrats here are energized by the
win. Obama has to sell it all over again, but I like the “security” angle that I think they have settled on. It’s one sentence. This is a guarantee of health insurance, no matter what happens to you in your life.
That’s a good message :)
Corner Stone
@Omnes Omnibus:
I apologize for being late.
Corner Stone
It’s baffling to me that anyone doesn’t understand what CJ John Roberts did here. It’s just as transparent as his being a member of the Federalist Society, his “balls and strikes soliloquy, or his shredding of 100 years of precedent to decide CU.
He’s not seeking broad consensus, nor does he give one shit about that.
catclub
@kay: “The biggest, most delusional lie media and conservatives have promoted in this whole thing is that people who have traditional health insurance will keep that absent reform. We won’t. They’ll continue to shift costs to policyholders.”
I nearly wrote:
Of course, one of the most prominent people saying this is Barack Obama.
But I did not read the ‘absent reform’ the first time through.
Glad I read a second time.
Sarah, Proud and Tall
@Linda Featheringill:
I’m not sure if anyone has answered this for you, Linda.
As I understand it (IMBALIRL) (and I am explaining this imperfectly because the real answer would have defined terms, a number of footnotes noting exceptions and possibly an index), the obiter dicta are the parts of a court’s decision that are, or can be argued to be, unnecessary to actually support the final decision of the entire court, statements “said in passing”.
Obiter isn’t binding on the judges at a lower level than the deciding court, although it might be persuasive, whereas anything that is rationes decidendi must be followed by any lower judge (which when the full Supreme Court says it means everyone) unless they can distinguish the case they are hearing in some meaningful way.
Dissents are obiter, unless it is a part of the dissent that actually agree with the majority on a particular subject for the same reasons. Often judges will signpost their more brazen obiters, things where they just want to rabbit on about a subject of interest.
It’s often not entirely clear whether something is or isn’t obiter, particularly where there are multiple judgments agreeing or disagreeing on a variety of highly technical and specific points.
That said, as burnspbesq points out the parts of Roberts’ decision which relate to the commerce clause are obiter. Roberts doesn’t need to express a view on the commerce clause as the basis for the mandate. That part of his decision is clearly marked as Roberts’ decision, not the decision of the court, because no one else on the court signed onto it, not even Fat Tony and friends.
Lawyers like arguing, so you can imagine they find the whole idea of arguing about obiter dicta and which bits of particular decisions are obiter quite arousing.
The wikipedia entry is also quite helpful.
stratplayer
Basically, what you’re saying is that Roberts acted as an authentic conservative in this instance, putting the brakes on the radical econo-libertarianism of his reactionary colleagues. At certain times and under certain circumstances, the true conservative impulse can be a very good thing. I also agree with those who regard the liberal doomsaying over Roberts’s nonbinding Commerce Clause dicta as ridiculously overblown.
brantl
@Corner Stone: When will you apologize for being stupid? That’s the one you’re really late with.
EnoughIsEnough
@Lawnguylander:
Great question