I disagree with Hightower.

What you will find here is: a centrist's view of current events;
a collection of thoughts, arguments, and observations
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Friday, June 29, 2012

Affordable Care Act

As predicted here ( see Is the Affordable Care Act Constitutional?  from April 20) the SC did not let semantics stand it its way and OKd the ACA.  I got  Kennedy wrong, but Roberts right (sort of).

The leftist columnists have been ranting for weeks that we were going to get a blatantly partisan ruling by the reactionary right that represents the tea party wing of the Republican Party.  Paul Begala intended it to be hyperbole, but the reality of their partisanship comes through in his piece about being left in the lurch by the decision.  From damn you John Roberts : " I'd already drafted a bitter, bilious, bombastic broadside against the right-wing hacks on the Republican Court. (Oops, my side won, so they're the highly esteemed and completely independent Supreme Court.)"

They were stunned into a moment of silence, but it did not last long.

I believe the most important part of this law is the requirement that businesses which do not provide health care will be required to pay a fine which is much less than the cost of health care.
This will motivate them to withdraw from employer provided health care.
This will lead to an increase in support for national health insurance.
That will lead, eventually, to national health insurance.

(revised from yesterday's version)


  1. Here's a link to some pretty funny reactions to the ruling...


    I think my favorite is the "Individual Man Date".

  2. My, what an intellectually circuitous and torturous route we took to get here. I was pleased with the explanation that the mandate was not justified by the commerce clause.

  3. Sean Trende - at RealClear Politics is comparing the Roberts - Obama maneuver to what John Marshall did to Thomas Jefferson. That is give up the immediate result for the long term result.

    Marshall gave Jefferson the cancellation of some of Adams's appointments, but the manner of his doing it was to declare Judicial Review.

    Roberts gave Obama his law, but got the court to declare that the Commerce Clause does not allow Congress to command you to buy something. (He also cut the ground out from under the argument that the court's conservatives are rank partisans who vote as a block.) While not nearly as substantive as Marshall's it is nonetheless a good maneuver.

  4. There is probably nothing that would galvanize the right's base more than this. One could speculate that if Roberts wanted to assist the right in their efforts to totally control Washington after the election, casting the deciding vote to uphold the law is the best thing he could possibly do. The Facebookosphere is just overloaded with apacolyptic prophecy and posts saying things like "we have got to get that guy out of the White House" and similar comments.

    A Supreme Court Justice is in a perfect position to engage in such strategy. They don't have to run for reelection. And though the immediate result is unfavorable, a Republican win in just a few short months will let them make the the whole thing go away. Plus a ruling unfavorable to the left could have galvanized that base enough to turn out a much bigger left leaning vote...perhaps just enough to make the difference in Obama's favor.

    Pure cynical speculation.

    1. Several things make me doubt that Roberts' decision had much to do with the upcoming election: Roberts' strong jurisprudential bona fides, the real sense of betrayal amongst some conservatives, and the idea that it would have been worse for Obama had Roberts' ruled against ACA. On the latter point, had SCOTUS struck down the law, it seems that complaints that Obama is flailing around in DC could stick to him in a really bad way. But that's also just a piece of speculation.

  5. A liberal friend of mine said that the Court had approved of the bill.

    This is reflective of the liberal point of view about what the court's business is: making law -- "approving" bills.

    In fact the court did not approve of the bill.
    They decided that it was consistent with the constitution.
    That is their business.

  6. To me one of the more interesting things to watch in the nearish term is how people react when they begin to focus on how the tax will be levied -- when they see who is taxed, how much, and how equitably (or not) it will be applied. In the longer term, one of the more interesting questions is whether this will lead to national health care as Wayne predicts. (I say this as someone who has a lot of personal interest in us moving in that direction as a nation and a lot of misgivings about how that will work out in terms of medical innovation, overall quality of care, etc.)

    Here's one of my concerns about ACA that echoes one of Tom's recent posts -- Combo #1 from June 20, 2012. Now that the government's role in health care has expanded, I do worry about more "public interest" arguments that aim to regulate personal health: no more Big Gulp sodas, no more trans fats in french fries, no more booze (oh wait we already tried that), mandatory health club memberships for everyone (I'm sorry, taxes imposed on non health club members), etc etc.

  7. Seems to me there's little doubt that Roberts is an outstanding legal intellect. My wife and I were absolutely entranced several years ago when we watched late-night re-runs of Roberts' confirmation hearings on C-Span, and Roberts' engaging back-and-forth with various audiences when he's out "on tour" really impress. I agree with those who have suggested that in the long-term legal game being played here, "he's playing chess while everyone else is playing checkers."

    I've heard some conservative commentators worry aloud whether Roberts' ruling -- and it seems to be his, owing to the split -- might be too clever by half, in that it will expand Congress' use of taxation as a means of coercion even though it (nicely, in my view) limits the application of the commerce clause.

    I don't understand this particular concern. To me, it seems that in the short-run, "tax" is such a bugaboo that there's little threat of Congress going there in any big way. And in the long run (for better or worse), people will have an easier time arguing and campaigning against new taxes than they would have arguing and campaigning against over-reaches of the commerce clause.

    So, power to the people?

    1. On the other hand some have argued that Congress can now pass taxes without having to call them taxes.

      If Obama says it is a not a tax to get it past Congress and the people and Roberts says that it is a tax to get it past the Constitution, then which is it?

    2. Good question.

      It seems the legal answer, now, is that it's a tax.

      And from now on, even if legislators or the President balk on uttering the word "tax" in reference to any future "mandate", they'll have a harder time pretending it's not, since commerce is off the table as a justification.

    3. I have not heard any Obama people call it a tax (although I think the Solicitor General did in front of the court).

      I wonder if the "not through my commerce clause you won't" ruling will carry the normal weight of a decision since the Court did not "decide anything" based on that. They just used the other arguments.

    4. I think the words “tax” and “penalty” take on distinct meaning, usually, based on the context in which they are used. We tax so the government can pay for things, we penalize (and collect penalties) due to violations. Arguably, both activities raise government revenue and in this case it appears to me that Roberts simply said if we are raising money it’s a tax.

      So, no penalty, just a tax that you have to pay if you don’t voluntarily buy insurance. The definitions of convenience bother me not. The impact on an individual’s bank account is the same.

      Obama’s dilemma in using the word “tax” is a consequence of (past actions in) disguising the raising of revenue with words. A tactic seemingly common to most politicians.

  8. Ted Olson seems to be impressed with Roberts' judicial thinking. Writing in the July 16 issue of TIME, he says, among other things, that "The court's decision, while reaffirming authority that is hard to use" [i.e. taxation as a way to compel behavior], "resrticted authority that is easier to use" [i.e. invoking regulation of commerce as a way to compel behavior]. He goes on to say that "liberals may have lost by winning."

    He also noted that in his view, "five Justices decided that Congress did not have the power under the commerce clause to regulate doing nothing".

  9. Oh yeah, in all my ramblings I forgot to congratulate Wayne on the (almost) accurate prediction he made in his April 20 post. Well played sir! (Although, I agree with Tom's comment from that post... did you have to say you'd get 6 Supremes voting to uphold it?)