Motley Moose – Archive

Since 2008 – Progress Through Politics

Would losing the SCOTUS decision on the ACA be the worst thing?

OK.  I’ll answer my own question right off the bat.  Yes.  Losing would be horrendous.  It would be horrendous for us politically and policy-wise.  It would validate those on the right who claim the mantle of The Constitution (along with God, Reason, History, Morality, etc.).  If the mandate alone falls, the whole thing becomes an economic albatross.  

How do we maintain the prohibition on exclusion of pre-existing conditions without maintaining the economic participation of the healthy?  [A caveat to Clintonians here.  You were right 4 years ago.  HRC was right.  I never mixed it up on this issue, in part because it made me uncomfortable, though I cringe to acknowledge that it was not enough to admit at the time that Obama was wrong.  What’s worse is that I think Obama knew even then that mandates were the key to economic viability.  So while some Obama supporters recoiled from Hillary Clinton as the professional politician who would say anything, as a caricature machiavel, she was the candidate bold enough to tell the controversial truth on this issue.  And this should be marked forever to her credit.]  And if the whole thing goes down, millions of Americans will lose their care and unfunded emergency services will continue to be a drain on the economy and the lack of preventive and timely care will exacerbate them.  One of Obama’s 3 undersold signal accomplishments (the other being the auto industry and killing OBL, though we might add the draw down in Iraq and prevention of a 2nd great depression as well) will be turned into a defeat.

But perhaps because it’s possible (a law professor I spoke with this morning who clerked for Ginsburg thinks it’s about 2-1 that it will be upheld) let’s imagine how to turn this no longer unimaginable lemon into a huge ice-cold fountain of minty strawberry lemonade, served in big sugar-encrusted crystal goblets, maybe even with a shot of gin…

If it loses, we will be energized like almost never before.  Conservatives will lose credibility to gripe about “activist judges legislating from the bench.”  Anyone who cares in the least about social policy and its economic benefits will no longer be able to remain passive or on the fence.  Getting a more progressive SCOTUS will be an unambiguous and urgent priority.  The alienated “Obama’s a corporate shill and there’s no difference between the parties” crowd will be silenced.  No longer will we receive the “Oh, yeah, I guess there’s that” sigh from the purists.

And that energy will be fully channeled into a fight for a public health safety net, one that might lay the groundwork for a workable public option that will finally loosen the absurd tie between health care and employment.  Our argument will be:

“Fine.  Mandates are unconstitutional.  Congress can’t force people to buy a good or service on the private market.  We tried the compromise designed by the Heritage Foundation.  It was pragmatic and patriotic of us and our President to do so.  But no one can argue that Congress does not hold the power to tax.  So the only option left beside telling the uninsured sick, impoverished, and unemployed to go suck earth (which is neither the Christian way nor consonant with our fundamental American commitment to equal opportunity) is to expand medicare to cover those folks and pay for it with a tax on all Americans.  It’s the only way to get healthy people to pay into a necessity that they will ALL inevitably require at some point in the future.”

Then perhaps large employers will look to that infrastructure and begin to support it.

It will be a longer slog.  And the outcome will be unmistakably uncertain.  But we’ll have an unambiguous rationale for a critical issue.  They will have backed themselves into a corner.  

I know this may be a pipe dream.  But taking the long view…


  1. fogiv

    a law professor I spoke with this morning who clerked for Ginsburg thinks it’s about 2-1 that it will be upheld

    I hope s/he’s right. I dunno, we already know where Thomas is (what with his wife being a Bagger anti-Obamacare crusader). Friend of mine thinks Roberts will be looking for revenge after the SOTU call-out re: Citizens United. Alito, Saclia, puh-leeze. Do these guys care about the integrity of the institution…like, at all? Heard a poll on NPR on the way to the office this AM: 75% of American think the decision will be based on politics as opposed to the merits of the case (80% of self described independents).

    The alienated “Obama’s a corporate shill and there’s no difference between the parties” crowd will be silenced.

    Meh, nothing shuts them up. No known cure for ODS.

  2. fogiv

    from a political perspective, a potential silver lining to SCOTUS strikedown:

    Judges will deliberate over the next three days on a number of issues, including whether the insurance mandate can be challenged before taking effect in 2014 and if the coverage mandate is constitutional. The outcome of the case will have an important effect on Latino voters in the November presidential elections, as Hispanics are the largest ethnic group in the United States lacking health insurance. Some political analysts believe Latino voters could sway the election and, given a tendency to vote on issues rather than party affiliation, health care could be a key component of winning the Hispanic vote.

    Latinos are among the most vulnerable groups when it comes to health care in the United States. In 2010-before the law went into effect-around one-third of Latinos had no health insurance, and 39 percent of Hispanic children lacked coverage. The same year, one in six Latinos under the age of 65 had a pre-existing condition. Currently, over half of Latinos between the ages of 18 and 44 do not have a doctor. Moreover, the recent economic crisis took a toll on Hispanics with coverage. An October 2011 survey of Latino voters found that over the past two years, 28 percent lost their health insurance, and 17 percent currently lack coverage. Over half of Latinos reported a rise in health-care costs last year.

    The new law brought benefits to Latinos, who gained access to insurance and expanded coverage. In 2011, 6.1 million Hispanics received preventative coverage at no additional cost. Around 736,000 Latinos under 26 were able to stay on their family’s insurance plan because of the law-the largest increase of any minority group. The clause forbidding lifetime caps on coverage benefited 11.8 million Hispanics. With the expansion of Medicaid and tax credits, an additional 9 million uninsured Latinos will become eligible for coverage.

    Health care could be a critical issue among Hispanic voters, since over half favor keeping the law in place. Support among Latinos is on the rise, from 49 percent in March 2011 to 57 percent in January 2012. They overwhelmingly back much of the law, such as extended coverage for low-income Americans, tax credits for small businesses, and preventing insurance companies from denying coverage because of medical history. But a majority of Hispanics-59 percent, according to an October 2011 survey-reject the law’s mandate requiring all Americans to have health insurance or pay a fine. Still, Latinos tend to be less concerned about government intrusion, differing from some of the law’s critics. “The majority of Latinos see government action on social issues like these in a favorable light,” said Matt Barreto, an advisor for Hispanic political website Latino Decisions.

  3. HappyinVT

    If it loses, we will be energized like almost never before.

    I think having ACA overturned would cause those who hate it for various reasons, on both sides of the aisle, to gloat while shouting “single payer or nothing” until I want to smack ’em all upside the head.  Those who support it would likely wonder, “what’s the point?”  And given the difficulty of retaking the House, much less holding onto the Senate, we won’t get another chance for who knows how long.

    Policy-wise it would be a disaster for those with pre-existing conditions.  What happens to them, anyway?  Can insurance companies just drop them?  Would they?

    Saw via Twitter that some 85% of ABA members seem to think ACA will be upheld; Dr. Dean seems to think it will go down.  Me?  I’m already tired to folks parsing every word and question and answer.

  4. If it is declared unconstitutional, it adds to the meme that President Obama has ignored or acted in an unconstitutional manner. Not a message you want to put out there during an election year. It will also add to the meme that President Obama is ineffective. This is supposed to be his most important achievement. If this goes badly then he’ll take hits from all sides.

  5. Steve M

    Bonus points for the mea culpa to the Clintonites.  Super fierce!!! Okay, enough of that.

    I think the closing point of the diary is extremely important in terms of the long-term implications.  The Heritage Foundation approach is not something unique to health care, it is typical of modern conservative solutions to almost every problem.  (When you can get them to propose solutions, that is.)  Bush’s plan for private Social Security accounts was another example of the exact same type of market-based system.  What Paul Ryan wants to do to Medicare is the same thing.  Sometimes these conservative, market-based solutions have a public option (Bush’s plan did; you could stay in traditional Social Security, kinda, if you ignored the fact that his plan would make it insolvent), and sometimes they don’t.

    But overturning the ACA would either mean that you simply can’t enact one of these programs without a public option (because it’s so goshdarned unconstitutional to make someone buy a product from a private company) or, even worse, you just can’t have one of these market-based programs at all because you can’t force people to enter the market if they don’t want to.

    No matter how retrograde the Court gets, single-payer is never going to be taken off the table, because that would require them to declare that Medicare is flat-out unconstitutional.  No matter what you think of John Roberts, that’s not going to happen.  So when you strike down the ACA you basically declare that the major conservative alternatives to Social Security and Medicare are unconstitutional, leaving conservatives with an unpalatable political choice between “do nothing” and “abolish these popular programs altogether.”

    In the recent decision from the DC Circuit Court of Appeals upholding the mandate, Federalist Society darling Brett Kavanaugh noted this precise issue:

    This case also counsels restraint because we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help. The theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later. Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now. Courts naturally should be very careful before interfering with the elected Branches’ determination to update how the National Government provides such assistance.

    You see exactly what he’s saying here, right?  “Danger here guys, danger… think about it before you take the entire conservative legislative model off the table…”

  6. Strummerson

    To reiterate, I absolutely do NOT prefer losing in the SCOTUS.  I think it far more likely to be calamitous.  Just looking for a hypothetical silver lining if the cloud descends.  It’s the case that Reich makes here.  Of course, RR is always better at policy than politics.  He’s got the same political blind spot of most smart policy folks.  He assumes too much rationality, pragmatics, and long term thinking in popular opinion.

  7. fogiv

    Conservatives emerged from Tuesday arguments with an air of confidence that the Supreme Court will hand them a victory and strike down the heart of “Obamacare,” emboldened by the fact that swing Justices John Roberts and Anthony Kennedy sounded far from convinced that the law’s requirement to buy insurance passes constitutional muster.

    Forecasting the individual mandate’s “imminent demise,” The Washington Examiner’s Conn Carroll declared Tuesday, “Today’s oral argument makes it sound like the five conservative justice will find that there are limits to congressional power.” Other conservatives were equally hopeful.

    They might be getting punk’d.


  8. fogiv

    Justice Antonin Scalia suggested many members of Congress might not have voted for the bill without the central provisions, and he said the court should not go through each and every page to sort out what stays and what goes.

    “What happened to the Eighth Amendment?” Scalia asked, referring to the Constitution’s ban on cruel and unusual punishment. “You really expect us to go through 2,700 pages?”

    Well, yes. I’ll wait.





    I don’t like this guy.

  9. Strummerson

    The logic of the anti-ACA case is that the only way to meet social needs is by govt taxing and itself spending the money. Funny result

    U kno what else isn’t mentioned in the Constitution? An Air Force.

    He also notes that the upshot of an anti-ACA decision is that Social Security is constitutional and private Social Security accounts (that GOP wet dream) are unconstitutional.

    By working to render all hybrid market-gov’t solutions to social policy conundrums unconstitutional, which the right is doing purely for political reasons and not principles at this point, they are pushing us toward an extreme dichotomy between actual socialism and steroidal liberalism (in the classic sense).  Is there drear really to render the US a military collective, where cooperation only extends to borders and defense?  Do they really want all 50 states to be linked only as members of NATO are?  Hell, we could simply put the interstate system under the auspices of the Army Corps of Engineers.

    If that happens, I’m moving back to the People’s Republic of Brooklyn.

  10. Strummerson

    For if this court heeds the Journal’s advice, then Congress will confront a new legal reality when it next confronts the healthcare problem, as it surely will: The way to pass constitutional muster is for the federal government to claim more power-to tax rather than to mandate, to spend itself rather than regulate how private insurers spend. Such a policy truly would have frightening consequences for American liberty. And today’s over-confident, all-or-nothing pseudo-conservatives are-like characters in some Greek tragedy-working blindly to face the outcome they should most abhor.

    All correct.  Especially the “frightening consequences for American liberty” posed by a single payer system.  Those poor downtrodden Swedes and Danes and Britons and Germans suffering under the terrible yoke of their government doctors and gulag clinics.  “Go down, Moses.”  And they have internalized their subjection to their tyrant physicians to the point that they don’t even know what benighted drones they are…

  11. creamer

    If the mandate is struck down, does the rest survive. If it does, it proably energize’s the right (doesn’t take a lot), maybe the left (if we are not to demoralized), the center is harder to figure. The realization that the GOP has no answers might lead them to move left. I like to think that the center is more able to understand the ramifications but I’m skeptical. As complicated as this is, even those of us paying attention struggle to grasp it all, a large part of the center might just tune out the whole health care disscussion.

      This issue really needs to be solve by both sides. The real crime of our hyper-partisanship is the inability of the “smart” people we elected to solve complicated issues. The fact that the Heritage Foundation helped build and support Romneycare is telling. Also if Obama was white, would the whole thing been and easier lift?

      Is Rush Limbaugh the anti-christ?

  12. …in this cool conversation. If only strummerson had added an image,or edited an introductory para, this should so be the front page piece.

    Until he does so, I’m just going to add a crazy image of my own (or rather one Stephen Fry has just posted)

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