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Well, it was never a mandate anyway (by the same logic), so he didn't do anything about any mandate. Congress fully knew that people would still not buy insurance and didn't forbid that.
You might have missed this, which Jim added to his original comments in the lead-in:
Until further notice: You poor dear.
Jim's updated the thread header, this is now the official OT-Politics thread for June, so it shouldn't get nuked ...
No -- he held that the mandate is functionally a tax, regardless of how it's labelled. The ruling doesn't change the structure or implementation of the mandate AFAICT.
http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
Ditto this, Jimmy.
Flags fly forever.
agreed.
Does this mean Obama passed a tax increase on us all? Short-term, politically, that's not going to work for him.
No, b/c most Americans won't be affected by the mandate.
Oh please. Everyone who makes predictions about what the political implications of the ruling will be is just pulling sh*t out of their asses. The truth is that the public in general barely pays attention to policy, and no attention at all to process. I saw a poll recently in which 25% of respondents believed the ACA had already been repealed.
I know that's completely simplistic, but something about it seems almost comforting.
Davey tears are full of rainbows.
Only if "all of us" make about $80k annually and don't have health insurance... which, I don't believe to be the case.
This. The GOP will attempt to *spin* this as a new tax, probably. Because otherwise they'd have to say "all that rhetoric of the last two years; we got ############ by the court and sent home." Obviously that's not their play.
A reminder of the importance of Alternative Theories in appellate work.
I think that's what motivated Roberts' decision, actually. If he votes as part of a 5-4 to overturn all of ACA, it really had the potential to provoke a backlash against the court.
I don't think, IOW, that Roberts' decision was without an eye towards the political winds. Thus, the choice to limit the precedent by basing the decision on taxing powers rather than commerce clause.
10:53 Lyle: Interesting, at least to scholars, that while the mandate and its attached penalty are a tax for purposes of its constitutionality, but not for the Anti-Injunction Act. If it were a tax for AIA purposes, this case would not have been decided re the mandate.
Get in line buddy.
Agreed. I predicted that it wouldn't survive either under the commerce clause or under the taxing power. So I was half right, but 90% wrong.
It'll make the yahoos go even crazier than they already are, if such a thing is possible. But there's not a snowball's chance in Hell that Congress will ever repeal this law**.
And once it's in place for a few years and reality begins to overtake the propaganda, the Republicans' worst fears will be realized, as the law comes to be seen as a basic pillar of security rather than the bogeyman that it's been presented as by the right wing noise machine.
And BTW I distinctly remember reading in the aftermath of the oral arguments that Roberts might turn out to be the crucial swing vote. I can only imagine the heat he's going to be taking for this, and it won't be pretty.
**See Post # 414 above, and add a "duh".
from a National Review Online writer:
Heh.
All prognosticators everywhere should resign. They're almost always wrong. Economic forecasters, sports draft or recruiting analysts, TV weathermen ... useless parasites, one & all, AFAICT.
Haven't gotten there yet, but I believe the idea is that Feds cannot coerce States that choose not to expand Medicaid by taking away all the money they get under the "un-expanded" Medicaid.
UNLESS its to keep those stupid potheads from toking a joint!
If this ruling does lead to Republicans destroying the filibuster in order to repeal (in some form) national health care, it will be the greatest victory for the left since the 60s. If you hate social democracy, the filibuster is your bestest friend.
I don't think, IOW, that Roberts' decision was without an eye towards the political winds. Thus, the choice to limit the precedent by basing the decision on taxing powers rather than commerce clause.
My motto for today: Never look a gift horse in the mouth. This isn't single payer, but it's sure as hell an improvement over the Darwinian health care system we've got now.
Wow, sarcasm not allowed today. A handful of you guys fell for this. Sam elaborates further on my attempts at humor. Talking heads must spin, we must talk about the politics of this before lunch, nevermind the opinion hasn't even be read yet. What does it all mean!!!
It will be very interesting to see how the first few years go - these are significant changes and will not be without bumps in the road.
As do I, particularly given what I've heard about him.
Struck me as unlikely*, but not impossible. There has been some pretty incredible misinformation spread about this issue...
(meant non-partisanly - dealing with this reform is a significant part of my job)
*EDIT: I was referring to the poll saying 25% thought it had already been repealed.
apologies, but in the current political/media environment it's hard to separate parody from the real deal
Mockery aside, no other major aspects of the social democratic state regulate "inactivity" in any particular way, so it shouldn't matter much in the future.
I think that once the economy gets to a fuller recovery, and the law goes into effect, it will eventually become quite popular.
People don't complain bitterly about their electric utility. PPACA turned health insurers into utilities.
The Lefty-Blogosphere seems to mostly be in shock, but I guess more and more will start taunting the righties soon enough...
Well, if the GOP House were to actually partner with the liberals in the House to pass universal coverage, that would get through Congress I suspect.
I think that Roberts was most likely expressing his real opinion on the legal issues (and on the merits, it's hard to see how the implementation of the mandate isn't a tax that just wasn't called one for political reasons), but I am confident that establishing himself as a decision-maker and a moderate, and maintaining a historical connection to a long tradition of Supreme Court decisions on the welfare state were a part of informing his decision.
Ray (or David, or any anti-ACA folks really): How does today's ruling make you *rethink your own assumptions about the law, the Constitution or the public good?
Really?
IANAL, but it seems to me that he wants to defer to Congress (and the states to some extent) as much as possible, and make the least disruptive ruling possible. Calling the penalty a tax is the least expansive and disruptive ruling he could make, and letting states decide if they want to expand medicaid or not is the least disruptive of that program. In that way, it was a legally conservative opinion. The other 8 justices either wanted to expand commerce clause or abridge congresses taxing and regulating power.
Alls I'm saying is that the transition will be interesting - particularly as factors used to calculate rates change - some people will see significant changes in what they cost.
I agree with this as well (less so on the issue of moderation, but more wrt maintaining that connection and developing a legacy).
Craig/453: I agree with that as well. [/tevye]
No because polls show that most people who vote is influenced by their dislike of taxes are voters who would vote against Obama anyway- and believed Obama had raised their taxes before this anyway.
IMHO Obama/Romney is still 50/50 and the rate of growth/unemployment rate between now and November is going to be more important
.... It is amusing how so many rightwing commentators are now saying things like Romeny and Congress will "fix" this after November... Gee whatever happened to Romneycare?
Yes they do, where do you live?
Backlash Theory, while it has little empirical backing, is highly respected among Washington, DC elite as an explanation of political trends and Supreme Court decisions. John Roberts, a man who's been a DC elite for a couple decades, might believe Backlash Theory anyway. So it's not entirely a crazy suggestion.
1. The day David appeals to populism is upon us! Beauty.
2. The ACA is not "unpopular" in the manner you wish to portray it as being, here.
I don't believe in states' rights (people have rights, not state or federal governments), but it's perfectly consistent for a conservative, presumably believing in states' rights, to be in favor of a program at the state level and against that exact same program at the federal level.
He didn't say it was a bad law because it was unpopular, he said that striking the law wouldn't cause a backlash among the public because it was unpopular. Whether or not that is true or not is irrelevant (I'm not getting involved in that question) - if you're measuring whether something's popular, checking whether or not it's popular is the logical investigation.
The "law" is unpopular, but the provisions are relatively popular (besides the mandate, but when polled together and framed as a non-exclusionary question... as in, do you want provision X, Y, and Z even if it means you must keep provision A - the mandate - it scores better).
Opponents most certainly won the sturm und drang phase of the post-passage... but now that it's been through the court and survived, that phase has ended.
Now, people are going to continue to see the actual impacts on their lives - and for most folks, the impact will be negligible. For many, the changes -- elimination of pre-existing condition discrimination, limitations on other discriminatory practices for rate hikes, etc -- will be popular. For those who start getting checks back from their insurers when the MLR ratios aren't met - it will also be popular. For some -- mainly those in the sour spot where the subsidies phase into penalties for those in the individual market (and those who don't try the state exchanges), it will be unpopular. However, I think that number will be fewer than those hit by the AMT.
In short - opponents won the bloviating phase, but are now looking like the IJN circa Midway...
yes.
Let's say Congress passed a law raising taxes on everyone by $5,000.
Then gave people a $5,000 tax "break" if they buy health insurance.
Same effect.
Congress has always had the power to levy a per person tax not based on income- it took a constitutional amendment to allow it tax income.
I own a house
I used to rent.
Now I can deduct a good chunk of my mortgage payment from my income, before I could not deduct any of the rent I paid.
Assuming that tax receipts are to be held constant, in essence people without mortgages are subsidizing people who don't have mortgages.
Of course I pay through the nose for property taxes now- and subsidize religious institution who do not pay property taxes.
Because your opinion and his opinion on the matter would each be based on legal study and theory; and you might think that he has enough more than you that you might consider his opinion worth considering?
Absolutely right. But what I think has been overlooked is that the ACA was in large part a mandate on the states - either come up with your own plan and receive the waiver (like Massachusetts), or go with the ACA.
P.49: Congress may attach appropriate conditions to federal taxing andspending programs to preserve its control over the use of federal funds.
P.50: Conditions that do not here govern the use of the funds, however, cannot be justified on that basis. When, for example, such conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes.
As usual, the answer is depends. Certainly is a limit on Congressional power.
It's unpopular in the sense of not being popular. There is no relevant "manner." I know the left takes the positions that
(a) Some of its unpopularity comes from the left, so that doesn't count; and
(b) People really support it but are too dumb to know it, because they support its provisions.
As to the first, so what? Regardless of why someone wants it repealed, if it's repealed there won't be a backlash from them. As to the second, even if that logic were valid, so what? They don't support it, so there won't be a backlash from them.
Everyone on both sides understood that this was as likely to happen as Donald Trump and Rosie O'Donnell sharing a romantic private cruise. If Obama suffers another defeat this complete in November, Mitt Romney will be very available for speaking engagements.
Sounds like an "essential nexus" argument to me. Interesting.
To be clear, my rates in the Brave New World will be higher than they are in the present day. I can afford it and I believe in universal coverage ... but not everyone will react as I do.
In the long run - and I don't know when the long run starts (pipe down, JMK) - I think that this program or something like it will be popular - moreso, that people will wonder why we didn't have something in its place sooner.
I have to read it first. I am pleased (based solely on media reports) that the commerce clause argument doesn't appear to have entered into the majority's reasoning. Even as someone who opposes ACA, the idea that Pols. running in November can 'fix' this, uh, I just don't see it that way, certainly not for Romney. This will garner lots of attention (as it should) and so forth for the next week or so, but at some point it will all return to jobs, growth, lack of growth, etc.
There are many on the left who are as upset by those on the right -- thinking a PPACA strikedown would have meant a clear Democratic no-choice-but supporting single payer/medicare expansion/etc.
For those who claim to be moderate, this decision ought to be hailed. It incorporates a mix of traditionally right-leaning and traditionally left-leaning philosophies (I don't want to rehash the whole Heritage debate... but the fact is, no one is clamoring to repeal EMTALA. It's always been that no one wants to pay for it - except in "hidden" ways like Medicare charity care provisions).
There's nothing radically right or left about this plan - it's a fairly moderate and even-keeled approach... doesn't mean it will work as policy, of course.
The number of "conservatives" who are consistently in favor of states rights- meaning in favor of states rights when:
a: The state passes a law the conservatives like;
b: the state passes a law the conservatives do not like;
c: the Feds pass a law the conservatives like; and
d: the Feds pass a law the conservatives do not like
is vanishingly small.
There are many federal taxes that are not income taxes. For example, the ACA also has a tax on tanning beds to help raise revenues.
If you are asking if there are Congressional taxes that are more punitive than revenue-raising, what about protectionist trade tariffs?
He was answering a question, not appealing to populism. Not that I understand what a "backlash" is, or why Roberts would be concerned about that or allow it to affect his vote.
It is unpopular. Most conservatives/republicans/libertarians/"teapers" (to use JPFW's favorite term) dislike it, and that makes up a large percentage of the populus.
The Supreme Court says its a tax.....the filibuster doesn't really apply to tax issues....all it takes is 51 votes (and the house and president of course) to take out almost all of the law. The Democrats needed 60 because they needed the non-financial issues as well (or thought they did). I think Republicans would be fine with repealing everything that effected government revenues and expenditures and cleaning up the unmanageable carnage after the fact.
- raises eyebrow -
It is unpopular. Most conservatives/republicans/libertarians/"teapers" (to use JPFW's favorite term) dislike it, and that makes up a large percentage of the populus.
This is a far better answer. I do think "most" is a debatable, though, less in numbers than in commitment. While the complaints about it have been very loud and shrill, I don't think it's something that much of the bell-curve of the right is going to choose to fight stick their flag into and fight to the metaphorical death over. YMMV, of course.
DMN specifically mentioned "public good"
I think that if you think the ACA is bad policy you would still think it is a bad policy even if you change your mind and agree with Roberts that it is constitutional under the taxing power.
For example, I've come around to believe that District of Columbia v. Heller was correctly decided, my opinion over whether or not striking down DC's gun laws constitutes good policy has not really changed however.
Yeah, but that's a little like saying "You have the right to choose your lunch, so long as it's ham or peanut butter and jelly." Again, I don't believe in states' rights.
I expected this, I had a nice haul on Intrade at the ridiculous percentages on the case the last few days. Roberts isn't a firebrand generally - ruling that a de facto tax is a de jure tax isn't exactly the direst threat to liberty when you compared it to accepting the government's view that it has the right to ban books that contain political speech, as was argued in Citizens United.
I'm fairly sure a number of insurers have already announced rebates to participants, pending the outcome of the SCOTUS decision. In a bit of a eye-opener for some of the most virulent anti-private insurance elements on the left, the numbers are actually showing that most insurers are already at or near the statutory limits on MLR (80 to 85% depending on plan size, I believe) -- but it seems pretty ironclad.
Yes, that would have been an unmitigated disaster. At least this is a mitigated one.
I don't think even most liberals truly believed this was constitutional under the commerce clause.
And people from all sides should have been worried as to the unlimited power Congress would have if the commerce clause argument had not been denied. I'm sure unlimited powers would seem all peachy to liberals and socialists now, but when the power changes hands they might not feel that way.
To follow up, as I've now finished Roberts' opinion..
P 58: Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.
It is relevant in the context that one of the Right's main arguments against it is that "the people" see it as excessive government interference. The fact that about 15% want more government interference by the way of single payer (or other more liberal govt supported healthcare plan) is extremely relevant.
Sorry, sloppy wording - I'm only a baseball writer who grew up in a family of lawyers, after all. I don't think it's inconsistent, though it's probably a tricky position to argue to the masses on both sides, who mostly only care about the balance of federal and state law to the extent that it affects what they want.
Sure - a large percentage of people will be voting against Obama and every Democrat this fall. By this metric, everything and everyone is unpopular.
But that's not exactly atypical - only extremely left-wing and extremely right-wing opinions don't have daylight on both their sides.
There is a prospective case to be made that Obamacare will become popular, but it isn't popular right now.
Well, most generous *reasonable* reading. I expect you could get approval anywhere from 20-80% or so if you get really creative with the wording. I'm generally not a fan of polling when the questions leave so much difference of opinion.
David, can you please dissuade Ray of this insane claim? The scholarship on the Commerce Clause from left and center-left judicial scholars is wide-ranging and extremely clear on this. Of course this is what liberals think the Commerce Clause does. There were four votes (the four center left votes) for a Commerce Clause based upholding of the law. WTF?
EDIT: Over now. I'm probably wrong, then, I expected a way longer speech.
It's unpopular in the sense of not being popular.
- raises eyebrow -
David is entirely correct.
I wasn't taking issue with his conclusion as much as his wording, which I found a little amusing. I'm sure that wasn't clear.
Luckily for Romney, the economy is weak enough that he won't need to find a different flagship issue.
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