Don’t believe anyone who is highly confident of the overall outcome of this case. (Jeffrey Toobin of CNN has written so strongly of the death of health reform that he has convinced me not to pay attention to him in the future.) This case is important, it’s unprecedented (in a technical sense – there is no clear ruling precedent), and the one thing that does seem clear from the oral argument is that it should be close. But here are my guesses, on each of the four questions the Court asked the parties to address….
So writes Stanford Law School Professor Hank Greely in a thoughtful essay packed with inside information about the SCOTUS really works.
How would the current SCOTUS rule on the Armed Forces Participation Mandate, a.k.a The Draft? If the state can compel me to risk my life, what can it not compel me to do?
I’m sorry, but anyone who is surprised that Alito seems to be an automatic vote for overturning the law, and thinks Roberts is a swing vote, doesn’t really have a good sense of the reality of this Court.
The behavior of the right-wing majority on the court was disgraceful; they came across as a bunch of partisan Congressmen quoting talk radio fallacies. If you believe that the Court is now controlled by reactionary hacks then you neither have reason to respect them nor reason to bother with fine analysis of the law. They’ll do whatever serves their extremist ends best.
I’m not so sure. I think Alito, Scalia and Thomas are going to write really amusing opinions (on the order of Bush v. Gore amusing). I also think Roberts goes wherever Kennedy goes. Roberts goes with Kennedy if the law is upheld in order to control the opinion: he’ll assign it to himself. He’ll go with Kennedy to overturn, because that’s what his masters want done.
The whole sad affair makes me wonder why we think there is intelligent life on this rock. Without some sort of reform of our health care finance system, it will collapse. It may collapse even with the current reform, because I’m afraid that PPACA doesn’t go far enough. But if it’s overturned, I think the for-sure outcome of picking up the debris will be a government-run single-payer system. And that just isn’t what the trog’s masters want at all.
“Really amusing opinions”…as long as the decision doesn’t affect your life.
Another instance of the need for a “dry humor” font.
Dahlia Lithwick also predicted 6-3 with Roberts writing for the majority to uphold.
I suspect that Greely is wrong that there’ll be multiple opinions. Supporting justices won’t want to dilute the impact of the opinion they’re supporting. Though if the CJ does write to uphold, I’d expect an ad hominem invective from Scalia.
I wouldn’t totally rule out the anti-injunction act, either. If the court splits 4-1-4 so there’s five to drop the mandate and a different five to uphold everything else, they may decide to kick the can down the road three years with a per curiam no standing ruling.
I’d been saying before the argument either 6-3 to uphold, or 5-4 to strike. Now I’m thinking the latter has to be modified, and am thinking it may well end up 3-1-1 on the remedy (ie, the scope of what gets stricken).
A vote for the tax issue is a vote to uphold the statute, so I never thought it could get more than 1 or 2 at most. I’m in the camp that thinks they only took that part of the case to box the SG in one the merits tax issue.
I’m thinking it’s to delay a ruling until Romney has had a chance to replace Ginsburg.
Alas, I fear Greely is sipping the happy juice. Time will tell.
The comments so far seem quite astute and incisive to me — better than Greeley’s essay, which struck me as almost deliberately naive, not only about the court, but about the zeitgeist.
On the zeitgeist, liberals and moderates really, really want to believe that the ACA is a good thing, a step in a better direction — a small, hesitant step, perhaps — but a step toward a more caring, more rational political economy and society. They hear members of the SCOTUS, at least one of whom cynically decided a Presidential election not so terribly long ago, echoing the intellectual bon mot of right-wing talk radio, and they grit their teeth, and try to think better thoughts. Greeley thinks Justice Kennedy worries about being on the wrong side of history, but fails to take notice that “history” at the moment is increasingly all bad side; the good side of “history” seems largely limited to gays on television and the iPad/iPhone. I won’t rehearse a rant on student debt peonage, or the prospective stealing of social security, or the immunity granted elite crime from torture to foreclosure fraud, declining wages and employment, plutocratic politics, etc. — just note it.
At its core — the so-called mandate — the ACA can be interpreted as the government setting up an institutional structure to compel its citizens to fund a parasitical insurance sector and the predatory medical care it finances. Like a lot of complex institutional structures, still not elaborated in its details or administration, it could become a vehicle for something else; I won’t deny anyone hope in that, but it would be wrong not to also see the implications, the potential of the dark times in which we live. Health insurance in the U.S. is a really lousy deal for the vast majority of people, and ACA won’t change that — the political deal struck by Obama was actually to benefit the insurance industry to gain their acquiescence. Medical care, without health insurance, is worse than a bad deal, which is what makes the reforms of the ACA politically appealing, at the margin, at least in prospect. But, it is hard, objectively, to see this dispute as anything other than another case of “heads the rich win, tails the masses lose”, run by and for the plutocrats. The Rich Elite are, in effect, having an argument among themselves about whether an extractive economy with a neoliberal happy face imprinted on it, but featuring an outsized predatory financial sector is more sustainable than a neolibertarian “freedom” fest and open-season turkey shoot. The neoliberals, I suppose, represent the finance sector, while the libertarians represent oil folks, epitomized by the Kochs, leading the broader group, including many business owners, which has traditionally exploited and oppressed labor and polluted the environment, and decried the provision of public goods, since the days of chattel slavery. The latter resents the demands of the former, but neither is interested in the public good or the welfare of the whole People.
In the context of this political division in the country, in which the mass of people is invited to “participate” only as a cheering, or sullen, audience, the law is rapidly evolving into an instrument of multifarious oppression. The fascist state is under construction, and it is only going to get uglier.
Bruce - it has been under construction for some time (reminds me of Adam Smith’s comment that there is a great deal of ruin in a nation). The question is how friendly it will be.
At its core — the so-called mandate — the ACA can be interpreted as the government setting up an institutional structure to compel its citizens to fund a parasitical insurance sector and the predatory medical care it finances.
I guess. However, it can also be interpreted as finally giving me a chance to get individual health insurance. Until you have a better option, not in theory but actually ready to go, I’ll take the incremental improvement.
Honestly, I wish I thought that everyone complaining about having to buy parasitical health insurance would demonstrate their commitment by refusing to have any of it for themselves.
J. Michael Neal: Beautifully stated.
At it’s core the mandate can be seen as another step towards the imposition of fascism: An economic system where, while the government nominally leaves the means of production in private hands, it asserts a sufficient level of control over business that the ‘private’ businesses become mere appendages of the government.
And so we have very detail dictates as to the nature and pricing of the industry’s product, combined with a mandate which effectively transfers the power to tax to industry. Why is the mandated purchase of insurance argued to be no different than government imposing a tax, and buying the insurance for you?
Because it’s understood the insurance companies are being reduced to agencies of the government, with only the pretense of independence.
Well, I think that is an excellent point. The use of state coercion for the ends of private firms is certainly being applied. If that be fascism, here it is.
I’d much rather see the principles of utility law applied to the situation, but our nation seems incapable of marshalling such collective action on our own behalf.
Banking is another sector where the application of utility law would be consistent with progressive ends and conservative means.
But it’s not the ends of the private firm, that’s the point: The private firm is being forced to serve the government’s ends. The use of state coercion is simply to keep the cost of doing this from prematurely destroying the firm. Essentially, the firm has become the government’s sock puppet, a way for the government to pretend that it isn’t running a welfare program.
Brett, as someone who has actual family members who lived under a fascist regime [1], I think this is one of the most expansive and weirdest definitions of fascism I’ve ever seen.
Under that definition, pretty much all European countries and Canada would be proto-fascist states. (I could have understood a claim that it’s going towards socialism, but under any existing definition of fascism, it just doesn’t make sense).
That said, once I strip your claim of that hyperbole, I can see where you’re coming from, and to an extent you’re right.
Insurance companies are incrementally being protected from market influence; that is, because very obviously, the market has failed (not just in America, but in pretty much every other OECD country). Not only does it provide the wrong incentives (insure the healthy, refuse insurance to the sick), but it doesn’t provide anything close to Pareto-optimality. Not trying to eliminate these problems would be irrational; the market is a means to an end, not a religion that one has to serve dogmatically. But they are not turned into government agencies, either.
Shielding something from market forces does not make it a government agency (otherwise, churches would be government agencies). You’re probably subscribing to theories of government/market dualism, but in practice, we have a government/commons/market triangle at the very least. Health insurance companies (several of which are already not-for-profit organizations to start with) are being pushed towards becoming part of the commons (similar to credit unions), shielded from both the most destructive aspects of the market and excessive government control.
I have no principal problem with that, as long as it works; the commons are that area of public life where personal liberties generally have the most room to breathe, protected both from the heavy hand of the state and the tidal forces of unfettered capitalism [2]. They can function organized around smaller, more local entities, plagued not nearly as much by the problems of either big government or big business. And this is a good thing, in my opinion.
[1] Including my maternal grandfather, who, as a registered social democrat and member of the Reichsbanner Schwarz-Rot-Gold, was damn lucky to not die in a concentration camp.
[2] Obviously, to prevent a “tragedy of the commons”, one will still need some government oversight or some exposure to market forces or both; but neither has to be untrammelled.
“Under that definition, pretty much all European countries and Canada would be proto-fascist states.”
Well, yes. They are.
(I could have understood a claim that it’s going towards socialism, but under any existing definition of fascism, it just doesn’t make sense).”
Wikipedia: “An inherent aspect of fascist economies was economic dirigisme,[3] meaning an economy where the government exerts strong directive influence, and effectively controls production and allocation of resources. In general, apart from the nationalizations of some industries, fascist economies were based on private property and private initiative, but these were contingent upon service to the state.[4]“
Fascism is essentially socialism without transparency: The government controls the means of production, but does not admit to having taken ownership.
“Insurance companies are incrementally being protected from market influence;”
Is that what you call being told the exact details of the products you may legally offer, and how much you’ll charge for them? Being protected from market influence? In the sense of a “protection” racket, I suppose…
Umm … right. And the Catholic Church (as well as several evangelical churches) is a communist organization, because it advocates a class- and moneyless order (post-Rapture). And communism is about creating a society that is about individuals associating freely and thus the exact same thing as libertarianism. Riiiiight.
You cannot just cherry-pick one single aspect of a political ideology or philosophy and claim that all societies that share that one aspect (but none of the others that identify it), without even considering matters of degree, are one and the same. I mean, seriously … I’m trying to give you the benefit of the doubt, but “this does not parse” does not even begin to adequately describe such claims.
If you have such an expansive, all-encompassing view of fascism (excluding anything but a pure libertarian or anarchist society), is there any non-fascist country, and does the term “fascism” retain any differentiating power? Is there any purpose left to its use other than as a non-discriminating pejorative?
Look, I said it was “a step towards” fascism. And by the definition of economic fascism, it certainly was that. We’ve been taking a lot of steps towards economic fascism of late, as the government decides doing things itself is too inconvenient, and that simply ordering private firms to do those things for it was desirable.
Maybe we’re not there yet, but can’t we discuss if that’s the direction we want to be going, before we arrive at the destination?
My position here is that, if the government thinks that people ought to to be provided something, they should levy the taxes to pay for it, and then provide it. Not order private firms to provide it, and then order the public to buy the firms’ product at the inflated prices necessary to foot the bill. If the government wants to provide people with something, the government should buy it, and hand it out. Not order companies to give it away, and then order us to buy their products to keep the companies from going under due to the cost.
It’s a matter of transparency. Obamacare is a public welfare program implemented in a really goofy way in order to avoid putting it on budget, and openly paying for it. If it’s worth having, have that debate, and enact it. Don’t regulate it into existence.
I keep coming back to this: If Obamacare is legitimate, why have food stamps? Why not just issue regulations requiring grocery stores to provide food free of charge to poor people?
This has nothing to do with what we should be doing, and everything to do with how we should be doing things.
Brett: It’s a matter of transparency. Obamacare is a public welfare program implemented in a really goofy way in order to avoid putting it on budget, and openly paying for it. If it’s worth having, have that debate, and enact it. Don’t regulate it into existence.
It’s not a “goofy” way. It’s a variant on the Swiss and German (and more recently, Massachusetts) systems, except that health insurance costs are not explicitly regulated by the government, but left to be determined by some controlled market forces on the exchanges.
This is what is generally known as “piecemeal engineering”. Sure, Congress could have gone the single-payer way, but that would have been a sweeping change with unpredictable effects (for starters, it would essentially have wiped out all insurance companies, require them to fire all their employees, and so forth). So, it makes sense to aim for a system that allowed for a smoother transition, and the PPACA is loosely modeled after systems that have historically succeeded at that, while retaining traditional elements of the American system. It also borrowed quite a few ideas from “Assuring Affordable Health Care for All Americans”, a publication by Stuart Butler of the Heritage Foundation.
If you’re familiar with healthcare systems around the world, you have a pretty good idea how the PPACA (and before that, the Massachusetts system) came to be.
As to “having a debate”, where were you in 2009? The entire country was talking about little else (from the public options to hypothetical death panels). You can complain about a whole lot of things, but not that the PPACA wasn’t given enough coverage or room for debate. There was a debate, and then the law was enacted at the end of it.
Brett: I keep coming back to this: If Obamacare is legitimate, why have food stamps? Why not just issue regulations requiring grocery stores to provide food free of charge to poor people?
Practicality, mostly. Food stamps are basically a secondary currency with little administrative overhead and comparatively little opportunity for fraud, unlike a hypothetical scheme that used grocery stores as middlemen for subsidies.
But most importantly, groceries are unlike health insurance in that their price is unrelated to your personal characteristics and the price range is much more limited. You do not have to pay more for a head of lettuce because you have a pre-existing condition. You are not going to need any food that costs tens of thousands of dollars.
In short, the health insurance market is being regulated because the market has been shown not to work for health insurance without regulatory pressure.
I keep coming back to this: If Obamacare is legitimate, why have food stamps? Why not just issue regulations requiring grocery stores to provide food free of charge to poor people?
Because Congress decided that food stamps are a better approach to providing food to the poor? Where is it written that laws must conform to your ideas of the best way to do something?
The existence of an alternative way to accomplish an objective does not make the chosen method illegitimate. It’s just foolish to argue that Obamacare is illegitimate because the same thing could have been achieved by other means. Under that logic no government program is legitimate if there exists a different way to accomplish the same thing.
Oh, and about: Being protected from market influence? In the sense of a “protection” racket, I suppose…
In the same sense that you cannot voluntarily sell yourself into slavery and noone can purchase you as a slave, yes.
Trading in human misery (which is what full free-market health insurance systems have historically wrought) is not something most free societies approve of.
That’s the “inalienable” part of personal liberties. “Inalienable” means, among other things, that they are not for sale.
More like, in the sense that a slave is “protected from the labor market”.
So it’s the “trains run on time” side of fascism, rather than the “slaughtering your political enemies in death camps” side.
Do you have evidence the two are correlated always?
So, facha is something good, then. If it referred to the political movement Mussolini led, I’d be offended. Men
wearing this uniformvoting for universal health care died ridding Europe of fascism.Chief Justice John G. Roberts Jr. wrote in a 2005 paper that “the secret to successful advocacy is simply to get the Court to ask your opponent more questions.” Studies have confirmed this theory, finding that justices tend to ask more questions of the lawyers whose positions they oppose. During arguments this week over three questions on the health care law, like-minded justices tended to focus their questions on the same lawyers.
[...]
In Number of Questions Asked, Hints on the Court’s Views
I can’t give much credence to this article. It is premised not only on the proposition that single-payer is inevitable if the ACA is struck down, but on the proposition that Anthony Kennedy believes single-payer is inevitable if the ACA is struck down. I’ve never even shaken hands with the man, but I’m pretty confident he doesn’t believe that.
My speculation — If Kennedy votes to uphold, it would be more because he doesn’t want the Court to be seen to be partisan, combined with a sense that he could craft genuine limits on the Commerce Power that the liberals would have to accept. But the ACA is unpopular enough that the former is probably not a concern to him, and striking down the ACA would show there are real, politically-significant limits on the Commerce Power, and I’m sure he would think establishing that would be a positive aspect of his legacy.
I agree with the article on the Medicaid side.