As Obamacare heads for extended oral arguments at SCOTUS, has anyone noticed the flavor of some of the coverage? It’s written as though “of course” the 4 democratic appointees will support the admin but maybe one or more of the GOP appointees will be “open-minded” enough to join them. (Here’s a good example. When you look past the bias in the nose-counting the author actually does a good job of briefly outlining the case the govt will be making.)
Recognize the flavor? It’s fruity, and pretentious, with a hint of some kind of nut: disagreeing with intransigent liberals is divisive, partisan, and close-mined. Maybe, just maybe, those 4 justices are the ideologues and only the conservatives are actually weighing the matter as judges should. As one good friend of mine puts it,
“Their view is national health care is a critical public good and no credible Constitution could ever stand in the way of it, even if the particular version of health care offered is flawed. The only real consideration they’ll give to the constitutional principles involved in this issue will be to cover their tracks.”
At any rate… I am hopeful the ruling will come down 5-4 to overturn, and with a little luck we might get a split 7-2 like Bush v Gore. The weight of the arguments, the veil it would pierce, the unpopularity of the measure, the public breach of decorum by the prez on Citizens &etc., the bullying of The Church…
And don’t doubt the latter two will factor in! I believe there will be some defense, or at least a brush back pitch, of institutional integrity/prerogatives/separation of powers. This isn’t Civil Rights or even Roe. (It is to me, right?! But I don’t think they’ll see it so… epically.) I suspect the executive branch’s behavior just might ease a couple of the justices towards a conclusion to which they were already inclined.
A 5-4 ruling to overturn would be sad. On a crucial case like this you’d like to see a resounding/clarifying 9-0 as was the case with Brown. After securing a majority, Chief Justice Warren negotiated an opinion that could garner unanimous support by appealing to the Justices’ better angels and political wisdom. What are the odds that, should the 5 GOP appointees vote to overturn, any of the 4 Dem appointees will consider joining the opinion?
I don’t have a great deal of faith in progressives’ intellectual honesty, at least in the context of C law, where there’s a tinge of will-to-power, ends-justify-means to their thinking. After all, they’re just updating an anachronistic document. In a way that is intellectually honest. But it’s a principle with too much mischief. I’d like to believe SCOTUS justices rise above the urges they learned in law school, but color me skeptical, at least on the more recent grads Kagan&Sotomayor.
If this were gay rights or abortion I would expect and honor a principled minority holding out, writing for the future (as they see it). But for this power grab, for legislation that they too must see won’t succeed in its goals? Other than the hidden goal of slow-walking to single payer…
Enough for now, I think I’ve pulled my spleen. Here are 4 of my greatest hits on the subject plus six excellent samples of more recent writing on the same:
David Rivkin and Lee Casey argue Congress crossed a fundamental Constitutional line for mere political expedience in The Supreme Court Weighs Obamacare :
The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage. Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.
Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. [This] was politically expedient but constitutionally deficient. Congress’s power to regulate interstate commerce is broad but not limitless.
Michael Tanner revisits the
sales snow screw job in Obamacare, Two Years Later:
(W)hen health-care reform was passed, we were promised that it would do three things: 1) provide health-insurance coverage for all Americans; 2) reduce insurance costs for individuals, businesses, and government; and 3) increase the quality of health care and the value received for each dollar of health-care spending. At the same time, the president and the law’s supporters in Congress promised that the legislation would not increase the federal-budget deficit or unduly burden the economy. And it would do all these things while letting those of us who were happy with our current health insurance keep it unchanged. Two years in, we can see that none of these things is true.
Yuval Levin summarizes the nature of the non-reform in Romneycare and Obamacare:
Obamacare… keeps Medicare unreformed and just doubles down on price controls through an unconstitutional rationing board, it keeps Medicaid unreformed and just vastly expands it, and it exacerbates the economic distortions in the employer and individual markets. Romney (like every other Republican at this point) proposes to actually address each of these problems, a process that would have to begin with the repeal of Obamacare and then continue with reforms of Medicare, Medicaid, and the tax treatment of health insurance—all of which he has proposed.
Mickey Kaus at The Daily Caller asks for just one example of cost control not based on rationing:
Arguments in favor of Obamacare’s appointed, cost-cutting “Independent Payment Advisory Board” … would be a lot more persuasive if they gave at least one (1) concrete example of ineffective health spending the IPAB will eliminate to achieve its cost target. We’re assured the “board may not make recommendations to ration health care, cut benefits, increase premiums and cost sharing, or restrict eligibility” for Medicare. Good to hear! (And we know they would never try to finesse the definition of “ration.”) So what would they recommend?
Tevi Troy says it’s worse than you think in Obamacare at the Supreme Court:
Once in effect, the law will lead exactly to the results conservative health-care experts have been warning against for the past three years: Costs will continue to rise; innovative technologies and procedures will dwindle; significantly more citizens will become dependent on the federal government for their health coverage; and the American people will be burdened with one more entitlement that will be a political nightmare to fix.
Perhaps even more important, a Supreme Court win for the Obama health-care law would have a ripple effect that goes beyond the health-policy realm and touches on the question of the unprecedented reach of the federal government… if even this Supreme Court agrees that an individual mandate is constitutional, the Commerce Clause will have been fundamentally breached, and Congress will be able to act almost without limit… It would also become much less likely for the courts to rein in future policy excesses in almost any sector of the economy.
Holman Jenkins estimates how much our kids get to pay so that Warren Buffett can enjoy subsidized Lipitor and Viagra in Conservatives and the Mandate:
Barack Obama says his mandate is about extending health care to the uninsured. But look closely. It’s also partly about forcing the young, healthy and otherwise uninclined to overpay for health insurance so the money can be used to pay for heavy users of the health-care system. To put a round guess-estimate on it, people who might consume $900 worth of health care in a year will be asked to buy $5,000 policies so the money can be used for somebody else…
Let’s step back. ObamaCare is a specific instance of a broader truth about America’s health-care policy: It’s grossly regressive. The giant tax subsidy for employer-provided health insurance is most rewarding to those in the highest brackets. Medicare is regressive: It transfers money from working people, with few assets, to the elderly, who own most of America’s wealth. Even Medicaid, the program for the poor, is morphing into a program for helping the middle class shield its assets from long-term care bills.
The cumulative impact of these interventions has given us the health-care system we have. Because it subsidizes third-party payership, it destroys any hope of price-value comparisons by consumers. Because it commits the cardinal economic impossibility of trying to subsidize everybody, the end result is not better health but higher costs in the form of rising prices and the provision of services of questionable value.
Now to worry about a free rider problem, as conservatives have done, is almost pointless when everybody is getting a subsidy. Those who don’t buy private insurance and don’t qualify for Medicaid simply receive a different kind of subsidy, through emergency room bills transferred to the rest of us. Think of it this way: Such a person is merely recapturing a bit of the subsidy he’s been paying through his taxes to support health care for people who are mostly richer. Yes, his actions distort the market, but it’s a drop in an ocean.
But suppose the policy bias in favor of third-party payership were corrected. Suppose insurance became insurance again, i.e., protection against large, unpredictable costs. Suppose patients began paying for a bigger share of health care out of their own pockets. Suppose providers responded by putting price-tags back on medical services and competing to offer value-for-money.
A young, healthy person might still choose to skip insurance and rely on the emergency room. But the problem would be a small one, because many fewer people would be voluntarily uninsured, because insurance would no longer be an overpriced luxury to anybody not benefiting from a direct subsidy.
By the way, this critique of health-care policy is not a conservative critique, but was once shared by Bill Clinton and plenty of Democrats. Nor are the policy difficulties insoluble: The solution can be summarized as “stop subsidizing the unneedy” (and a well-conceived tax reform would go a long way toward doing just that).
In a sense, ObamaCare, RomneyCare and George W. Bush’s major legislative efforts were but revisitations of a single question: Are we ready to act? So far the answer has been no, with the tiny exception of President Bush’s promotion, in his otherwise execrable Medicare drug act, of health savings accounts.
Why politicians like to shovel benefits at the capable, self-sustaining majority is not a mystery—that’s where the votes are. Yet notice that what little progress has been made in corralling health insurance costs in recent years has come from corporate America, using health savings accounts and other tools to make subsidized users cognizant of the value (or lack thereof) of the services they consume.