I disagree with Hightower.

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Sunday, April 15, 2012

Supreme Court Justice Scalia

Scalia also disappointed me in the SCOTUS hearings on the Affordable Care Act.

For starters, I think it is a legitimate point to ask, “If the government can make you buy healthcare insurance, then what can they not make you do?” However, if you are a SC justice speaking during the hearing, then you should find an example to illustrate that point that is different from the one (broccoli) that has been bandied about in political circles. Using broccoli as he did reinforces his opponents’ characterization of him as a shill for conservatives. (PS It is a reasonable position that healthcare insurance is special in that regard.)

Second, suppose they decide that the mandate is unconstitutional. Then there is the business of determining whether each point in the 2,700 page bill can stand alone (independent of the mandate.) I agree with him that that is the job of Congress (because it would be very hard to decide what the congress would have intended without the mandate.) I would even consider it reasonable if they thought the length of the bill alone was sufficient to send it back to congress. I understand that Nancy Pelosi is still waiting to find out what is in the bill. But it sounds childish to say out loud, “You really want us to go through these 2,700 pages?”

Finally, I think that, like Caesar’s wife, members of the court should be beyond reproach, in this case about being political. Talk about the “cornhusker kickback” and needing “60 votes in the Senate” seemed to me to be quite inappropriate.


  1. There is plenty to criticize Pelosi about without falling back on the totally out of context "have to pass the bill to find out what's in it" cheap shot quote. I couldn't let that pass uncontested as it so often is.

    And as far as Scalia is concerned I thought he made a mockery of the proceedings. And yes, I do want you to go through how ever many pages the entire bill that you are to rule on is. I don't really understand the criticism of the bill based on how many pages it is. Perhaps, like a great novel, it is not one page longer or shorter than it needed to be. It is after all an extremely complex issue with many ancillary issues and possible scenarios. I have a lot of criticisms of it but the length of it is not even at the bottom of my list.

    How about the profit motive that is still, under this bill, very much alive in health care decisions? To me, this is unacceptable and why we need a nonprofit single payer system, which this law doesn't even come close to. This law has many many flaws. But whatever system we decide on, if indeed we ever do, in order for it to have any chance of success all Americans will have to participate. If we can't force that then we are, it seems to me, spitting into the wind.

  2. 1. What was the context of Pelosi's remarks that change them from what they plainly mean? ("But we have to pass the bill so that you can find out what is in it.") Many of the people who voted for the bill acknowledged that they didn't know what was in it.

    2. You said: "I don't really understand the criticism of the bill based on how many pages it is."
    There wasn't such a criticism in the post, either by Scalia or by me. The statement about the length was part of a conditional: Suppose that the mandate was declared unconstitutional. Then what do you do about the rest of the bill? If it was short and simple bill the Court might easily determine what Congress WOULD HAVE INTENDED without the mandate. If it is very long then it is much harder to determine what Congress would have intended. In that case it seems like proper restraint for the Court to say "that is for Congress to decide."

    3. The profit motive was not a part of the post. I also support a single payer plan but I don't see how that removes the profit motive? Do you think there is no profit motive in the operation of Medicare?

    In any case, I can certainly see why people who are in the healthcare business would not want to have the profit motive taken out of their business. What business person would?

  3. 1. To paraphrase, she begins with a summary of some the things that are in the bill that she believes will be exciting for people, mostly preventive type things. She says that she is aware of all the controversy and heated discussions and that there are a lot of misconceptions. Then she says that they will have to pass the bill so that people can "see what is in the bill" away from the fog of controversy. The last part of the sentence is always cut off when people are making the point that you were. Clearly she was saying that after the bill was passed we would be able to see what was in the bill with cooler heads and outside the fog of controversy. Also clear, in hindsight, is that she was wrong. The fog of controversy has not cleared a bit and misconceptions abound, are nurtured, and spread throughout the country

    2. It appeared that you might be following down a well traveled path of using the number of pages in the bill as a criticism of it. It was ridiculed on the floor of congress countless times for its volume and that was only the beginning. One of the former R presidential candidates ridiculed it and promised that when he was president no bill would be larger than 3 pages to raucous applause. And even if you did not intend a criticism based on the number of pages I am pretty sure Scalia was implying at least a dig...it is on the R talking points after all.

    3. No, the profit motive was not in your post. I brought that up all by myself. And only a small percentage of people in the healthcare industry care about a profit. They are just working for a paycheck. The ones who care about profits are stockholders and CEOs whose compensation is based on profit. Making those people happy adds unnecessary costs, not to mention red tape and other barriers, to the system. And why does Medicare need to do more than break even? I'm not following you on that. Who are the owners expecting an adequate return on their investment?

    And to be clear I am not suggesting removing the profit motive from the entire healthcare industry, just the parts that have a profit motive in deciding who gets healthcare and who doesn't. A business's number one goal is to maximize profit. That does not reconcile with saving people's lives because saving people's lives is the moral thing to do. I hope we agree that saving people's lives Is the moral thing to do. Maybe I presume too much.

    The bottom line on this for me is that the healthcare industry needs to work on how to help people who need their services, not whether or not to help them.

  4. 1. You say that she is taken out of context because of what she said immediately afterwards and then you say that what she said was wrong. The recent dustup about whether Catholic hospitals would be required by the law to pay for contraceptives for their employees makes it very clear that nobody knew what was in the bill because they now making adjustments in it.

    2. You said that “It appeared that you might be ” and then again argued against something that somebody else said and ignored the point that was made.

  5. Item 3: “Who are the owners expecting an adequate return on investment” – That would me and anyone that has a diversified investment portfolio, and I strongly suspect it includes those “just working for a paycheck”.

    BTY the retirement funds for not for profit hospitals (such as a county facility) have investment portfolios as well and any investment manager that does not pay attention to “return on investment” would be jeopardizing the retirement future of all those “just working for a paycheck”.

    Profit and who gets health care – When you buy a commercial health care insurance policy you make the decision (at purchase) on the coverage you want balanced against the cost of the coverage. That is not a choice I am anxious to abdicate to the Secretary of HHS or a panel created within the ACA.

    If you wished, you could buy a commercial health insurance policy that simply said “Covers all, no deductible” but I doubt you would like the premiums. The fact that no one is requesting or purchasing such a commercial policy is absolutely telling. The ACA provides for creation of a panel that has the power to determine what is covered and what is not. I will assert that it is naive to think that cost vs. available funds will NOT influence their decisions. The fact that a non-profit calls them “margins” instead of “profit” is simply semantics.

  6. Wow! You guys were laying for that one. It appears to me we are not even speaking the same language. I say when? And you say yellow. I ask what color and you say ear lobe. From my perspective Wayne, my responses to both your original post and your response to my response was clear as could be, so I don't know what more I could say. I'm open to reason and I can be persuaded of the error of my thinking, but yours and Tom's respective critiques on my comments seem to miss my points entirely making me seriously doubt the value of trying to explain myself further.

    The one thing you said Wayne that I can reply to is that the recent dust up over the Catholic Church and birth control is hardly irrefutable proof that "no one" knew what was in the bill. I have considered it from the very beginning simply an opportunity for the R's to make political hay. The administration and the Catholic Church had been discussing it for sometime, apparently, when the public dust up began. One cannot simply ignore the fact that businesses have been studying the law since it was passed to make the changes necessary to be in compliance. They and others have been in contact with the administration and regulators asking for clarifications, exemptions, etc., and receiving same. So even if, for the sake of argument, I recognize the power of your superior reasoning and comprehension of what people mean when they speak and say Pelosi did not know what was in the bill and still doesn't know what's in the law, the evidence would indicate that many do. But I stand by my interpretation of what Pelosi said. It seems clear to me. She may not be the sharpest tool in the shed, but even she wouldn't make such an ignorant statement. "Gee fellas, I'm just a girl. I don't know what's in the bill. I know, let's pass it and see".

    1. Well I guess that that is the end of that thread (wrt the first paragraph).

      I agree with your related point that criticism of the ACA on the basis of length is not, in and of itself, a valid complaint.

      I'm sorry that I could not get you to consider the original point: If the Court strikes down the mandate, then the length of ACA would be relevant to what the Supreme Court should do.

    2. I understand that question and I apologize for my unintended thread jacking.

      If the court strikes down the mandate then the rest of the Act is unsupportable. The mandate is the economic engine that makes the rest of it even plausible. What could replace the mandate that would act in the same role? So the Court may as well put it out of its misery. If the size is relevant to what the Supreme Court should do, I don't see how. Regardless of the size, it is moot without the mandate.

    3. If the bill were short then one might look at the whole thing together in the beginning. Mandate and all. If the mandate is the main question and the bill is very long, then it seems reasonable to me to look at the mandate separately. If the mandate falls that does not mean that the rest of the law is unconstitutional, just that it is unfunded or under funded*. The mandate could be replaced by a tax, which would of course be for Congress to decide not the Court. The court would then have to decide whether to look at the rest of a bill that Congress might or might not fund. Perhaps not the best use of their time.

      * Our current financial situation makes it clear that it is constitutional for Congress to pass bills that are under funded.

    4. Ah yes...a tax. Good point. But I don't see anyone in Washington that I think would get behind anything that could be called "a tax on the middle class", which is what it would be called.

    5. I think which way Congress might go is not on the list of things that the Court should consider.

  7. As a follow to Bruce’s point about context surrounding Pelosi’s statement I think Pelosi was entirely accurate.

    We all knew when the ACA was passed that the ACA gave the power, to unelected appointees, to unilaterally decide what things were “health” issues and therefore covered by the law. What we discovered with the dust-up concerning the Catholic Church and away from the fog of controversy is what can actually be done with that power.

    We have gotten a little far from the original post regarding appropriate/inappropriate remarks by SCOTUS and in particular Scalia. I would agree that a comment about broccoli sounds a little bit beneath a justice. Something akin to an authority figure using a curse word or street language.