AI
Saturday, June 30, 2012 10:02:14 PM
A Vindication, With a Legacy Still Unwritten
President Obama, discussing the Supreme Court’s decision on Thursday, called it “a victory for people all over this country whose lives are more secure.”
Luke Sharrett for The New York Times
Document
The Supreme Court Decision on the 2010 Health Care Law
http://www.nytimes.com/interactive/2012/06/29/us/scotus-healthcare-document-annotations.html
Graphic
How the Justices Ruled on the Health Care Law
http://www.nytimes.com/interactive/2012/06/28/us/how-the-justices-ruled-on-health-care.html
By MARK LANDLER
Published: June 28, 2012
WASHINGTON — For Barack Obama [ http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html ], who staked his presidency on a once-in-a-generation reshaping of the social welfare system, the Supreme Court’s health care ruling [ http://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html ] is not just political vindication. It is a personal reprieve, leaving intact his hopes of joining the ranks of Franklin D. Roosevelt, Lyndon B. Johnson and Ronald Reagan as presidents who fundamentally altered the course of the country.
For all its weight, however, the judgment does little to settle the bitter debate, spanning decades, over the proper role of government in American life. That debate rages on, with the next acid test only four months away — an election that will give voters the chance to render their verdict on Mr. Obama’s ambitious legacy.
What the Supreme Court’s decision does do is preserve Mr. Obama’s status as the president who did more to expand the nation’s safety net than any since Johnson. It preserves a bill intended to push back against rapidly rising income inequality [ http://topics.nytimes.com/top/reference/timestopics/subjects/i/income/income_inequality/index.html ]. And for a self-consciously historic figure, it allows Mr. Obama to argue that he has delivered on the most cherished goal of his 2008 campaign: “Change we can believe in.”
“Historians will compare this to F.D.R.’s Social Security [ http://topics.nytimes.com/top/reference/timestopics/subjects/s/social_security_us/index.html ] and Lyndon Johnson’s Medicare [ http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/medicare/index.html ],” said the historian Robert Dallek, who has written about both presidents. “This is another step in humanizing the American industrial system.”
In political terms, said Douglas G. Brinkley, a professor of history at Rice University, “It’s the cornerstone of what could turn out to be one of the most extraordinary two-term presidencies in American history.”
Beyond his legislative agenda — not just on health care, but on education and Wall Street regulation — Mr. Obama has sketched out a view of government as a force for good, a great leveler and a protector of the middle class. That view stands in stark contrast to the Republican mantra, articulated by Reagan, who headed in the opposite direction in his first inaugural address, saying that “government is not the solution to our problem; government is the problem.”
Republicans, including the president’s challenger, Mitt Romney, have largely hewed to the Reagan script in the decades since, and have met with considerable success doing so. Polls show continuing skepticism of government — especially of the health law — and Republicans captured the House of Representatives in 2010 with a small-government message.
But Mr. Obama has constructed his political career on the notion that Americans are ready for something different after three decades of rising inequality and slow-growing incomes for the middle class. While still a candidate in 2008, Mr. Obama declared that Reagan changed history more than either Bill Clinton or Richard M. Nixon. The planets, he said, were once again aligned to make a transformative presidency possible.
“The Republican approach, I think, has played itself out,” he said to the editorial board of The Reno Gazette-Journal.
Health care has been Exhibit A in that argument, a project he undertook at the cost of other ambitious efforts like curbing climate change [ http://topics.nytimes.com/top/news/science/topics/globalwarming/index.html ] or rewriting the tax code. While Mr. Obama will be remembered for bailing out the auto industry, winding down two wars and dispatching Osama bin Laden, health care was his play for history.
Not just Roosevelt and Johnson, but Harry S. Truman, Nixon and Mr. Clinton all tried and failed to move the country toward universal health coverage. Mr. Obama and the Democratic leaders on Capitol Hill succeeded, passing a bill that, through an expansion of private and government insurance, seeks to end the status of the United States as the world’s only rich country with millions of involuntarily uninsured citizens.
“Health care has been a squabble without end since the beginning of the progressive era, since Theodore Roosevelt,” Professor Brinkley said.
In addition to broadening the safety net, the law also seeks to alter a tax structure largely created by Reagan. To pay for the expanded insurance, Mr. Obama and Congress raised Medicare taxes on high-income households, as well as on medical companies.
“We’ve entered an era of zero-sum trade-offs, and Obama is trying to dramatize those trade-offs,” said Theda Skocpol, a professor of government at Harvard. “The health care law [ http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html ] really symbolizes that; it’s a really redistributionist law.”
Had the justices struck down the law, they would have dealt Mr. Obama a crippling blow in the midst of a hard-fought campaign. Knocking down the central pillar of his legislative agenda would have called into question not only his judgment, but his very legitimacy, according to the presidential scholar Michael Beschloss.
Mr. Obama briefly found himself contemplating that fate just after 10 on Thursday morning as he watched live coverage of the ruling on a bank of television screens outside the Oval Office. Two cable TV networks, CNN and Fox News, erroneously reported [ http://thecaucus.blogs.nytimes.com/2012/06/28/rushing-to-report-the-health-ruling-and-getting-it-wrong/ ] that the court had struck down part of the law, before correcting themselves.
If Mr. Obama and his opponents can agree on one thing, it may be that he is trying to move the country away from a laissez-faire period. The rise of the Tea Party movement [ http://topics.nytimes.com/top/reference/timestopics/subjects/t/tea_party_movement/index.html ] and the Republican takeover of the House were a backlash against what his opponents saw as an arrogant overreach by the president. The fact that he did it while the country was mired in a recession [ http://topics.nytimes.com/top/reference/timestopics/subjects/r/recession_and_depression/index.html ], and without a single Republican vote, compounded the outrage.
“That changed the entire tenor of politics,” said Sean Wilentz, a professor of history at Princeton. “It took a while for the White House to figure out that post-partisanship didn’t fit the realities of Washington. They may have misjudged the political situation.”
More broadly, Mr. Obama may have misjudged the readiness of the country to accept an expansion of the government after decades in which Reagan’s conservative credo had come to be embraced, even by Democrats like Mr. Clinton, who declared in 1996 that “the era of big government is over.”
As Steven F. Hayward, an expert in the presidency at the American Enterprise Institute, pointed out, Mr. Obama promoted his health care bill in conservative terms. While still a candidate, he resisted proposals for a mandate to buy insurance. “He saw that as the kind of big-government idea that doomed Hillary-care,” Mr. Hayward said, referring to the reform championed by Hillary Rodham Clinton when she was the first lady.
Historians liken Mr. Obama’s challenge to Roosevelt’s, who had parts of his New Deal struck down in his first term. The lesson for this president, said David M. Kennedy, a historian at Stanford, is to forge a coalition robust enough to change the political landscape. Roosevelt was elected to a second term in a landslide in 1936, cementing the New Deal.
Even if Mr. Obama is re-elected, he could face further legal challenges to the health care law from the states. Likewise, changes in the nation’s political landscape could render this week’s ruling less definitive than it now appears. But the Supreme Court has given the president crucial standing to make his case.
“It’s not so much that the court has, in one stroke, affirmed his legislative legacy,” said Laurence H. Tribe, a Harvard constitutional law professor who taught both Mr. Obama and Chief Justice John Roberts. “That will depend on what happens down the road. But there is an interdependence here: the court’s decision to say, ‘this is not an un-American act’ is critical.”
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Related
Supreme Court Upholds Health Care Law, 5-4, in Victory for Obama (June 29, 2012)
http://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html
News Analysis: G.O.P. Vowing to Take Battle Over Health Care Law Into November (June 29, 2012)
http://www.nytimes.com/2012/06/29/us/politics/republicans-press-on-with-health-law-challenge.html
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© 2012 The New York Times Company
http://www.nytimes.com/2012/06/29/us/health-care-ruling-may-secure-obamas-place-in-history.html [ http://www.nytimes.com/2012/06/29/us/health-care-ruling-may-secure-obamas-place-in-history.html?pagewanted=all ]
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The Real Winners
By PAUL KRUGMAN
Published: June 28, 2012
So the Supreme Court — defying many expectations — upheld the Affordable Care Act, a k a Obamacare. There will, no doubt, be many headlines declaring this a big victory for President Obama, which it is. But the real winners are ordinary Americans — people like you.
How many people are we talking about? You might say 30 million, the number of additional people the Congressional Budget Office says will have health insurance thanks to Obamacare. But that vastly understates the true number of winners because millions of other Americans — including many who oppose the act — would have been at risk of being one of those 30 million.
So add in every American who currently works for a company that offers good health insurance but is at risk of losing that job (and who isn’t in this world of outsourcing and private equity buyouts?); every American who would have found health insurance unaffordable but will now receive crucial financial help; every American with a pre-existing condition who would have been flatly denied coverage in many states.
In short, unless you belong to that tiny class of wealthy Americans who are insulated and isolated from the realities of most people’s lives, the winners from that Supreme Court decision are your friends, your relatives, the people you work with — and, very likely, you. For almost all of us stand to benefit from making America a kinder and more decent society.
But what about the cost? Put it this way: the budget office’s estimate of the cost over the next decade of Obamacare’s “coverage provisions” — basically, the subsidies needed to make insurance affordable for all — is about only a third of the cost of the tax cuts, overwhelmingly favoring the wealthy, that Mitt Romney is proposing over the same period. True, Mr. Romney says that he would offset that cost, but he has failed to provide any plausible explanation of how he’d do that. The Affordable Care Act, by contrast, is fully paid for, with an explicit combination of tax increases and spending cuts elsewhere.
So the law that the Supreme Court upheld is an act of human decency that is also fiscally responsible. It’s not perfect, by a long shot — it is, after all, originally a Republican plan, devised long ago as a way to forestall the obvious alternative of extending Medicare to cover everyone. As a result, it’s an awkward hybrid of public and private insurance that isn’t the way anyone would have designed a system from scratch. And there will be a long struggle to make it better, just as there was for Social Security. (Bring back the public option!) But it’s still a big step toward a better — and by that I mean morally better — society.
Which brings us to the nature of the people who tried to kill health reform — and who will, of course, continue their efforts despite this unexpected defeat.
At one level, the most striking thing about the campaign against reform was its dishonesty. Remember “death panels”? Remember how reform’s opponents would, in the same breath, accuse Mr. Obama of promoting big government and denounce him for cutting Medicare? Politics ain’t beanbag, but, even in these partisan times, the unscrupulous nature of the campaign against reform was exceptional. And, rest assured, all the old lies and probably a bunch of new ones will be rolled out again in the wake of the Supreme Court’s decision. Let’s hope the Democrats are ready.
But what was and is really striking about the anti-reformers is their cruelty. It would be one thing if, at any point, they had offered any hint of an alternative proposal to help Americans with pre-existing conditions, Americans who simply can’t afford expensive individual insurance, Americans who lose coverage along with their jobs. But it has long been obvious that the opposition’s goal is simply to kill reform, never mind the human consequences. We should all be thankful that, for the moment at least, that effort has failed.
Let me add a final word on the Supreme Court.
Before the arguments began, the overwhelming consensus among legal experts who aren’t hard-core conservatives — and even among some who are — was that Obamacare was clearly constitutional. And, in the end, thanks to Chief Justice John Roberts Jr. [ http://topics.nytimes.com/top/reference/timestopics/people/r/john_g_jr_roberts/index.html ], the court upheld that view. But four justices dissented, and did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship.
The point is that this isn’t over — not on health care, not on the broader shape of American society. The cruelty and ruthlessness that made this court decision such a nail-biter aren’t going away.
But, for now, let’s celebrate. This was a big day, a victory for due process, decency and the American people.
© 2012 The New York Times Company
http://www.nytimes.com/2012/06/29/opinion/the-real-winners.html [with comments]
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Romney’s Supreme Burden
By TIMOTHY EGAN
June 28, 2012, 9:00 pm
Congratulations to Mitt Romney! His signature contribution to American life, devising a health plan that became a model for the only major Western democracy without medical care for nearly all of its citizens, has been upheld. If Romney accomplishes nothing else in life, he will go down in history as the man who first proved, in the laboratory of Massachusetts, where he once governed, that an individual mandate could work.
Jeers to Mitt Romney! As the presumptive Republican nominee for president, he stood in front of the Capitol just after the Supreme Court ruling on Thursday and promised to fight in the coming campaign against one big idea — his own.
Now Romney has no choice but to run against himself. It was Rick Santorum who put it in blunt political terms during the Republican primary. Romney, he said, “is the worst Republican in the country to put up against Barack Obama” because he is the intellectual godfather of the most consequential act of the Obama presidency.
If Romney was honest, and his party less locked in the grip of its far-right base, he could point with pride to the progress that Massachusetts has made. In the Bay State, compliance with the law is high, and nearly two-thirds of the people support it. The cost of insurance fell significantly in the first year after the law took effect. And fewer than 1 percent of the people chose to pay the penalty — or tax, as Chief Justice John G. Roberts Jr. helpfully clarified for Obamacare — rather than sign up for health insurance.
But the days of Romney praising his plan, which he did as recently as 2009, are long gone. Remember, it was in a moment of debate candor that Romney turned to Newt Gingrich and acknowledged the free-market, Republican origins of the mandate.
“We got the idea from Newt,” said Romney. “And Newt got it from the Heritage Foundation.” And the idea is a simple one: freeloaders cost the system billions and indirectly raise insurance for those who do the right thing.
To please a Republican Party that waves its gnarled fists at progress, Romney promises, crosses his heart and swears on his mother’s grave that he will repeal Obamacare on Day 1 of his presidency.
Except that, hedge, hedge, he wants the law’s most popular features — preventing insurance companies from dumping people who get sick or denying care to those with pre-existing conditions — to remain on the books.
All of this just reinforces Romney’s worst character flaw — the weasel factor. Every time he opens his mouth to denounce the individual mandate, he contradicts one of the most successful things he ever did as governor.
Plus, the Republican majority in the House has no intention of passing any measure that would keep the most popular parts of the health care act intact. Instead, the House will most likely vote next month to repeal the whole law, and from there it will sit in the Senate and await the election outcome in November.
The mandate is unpopular, without doubt. But big pieces of the law are supported by large majorities. People love the fact that insurance companies no longer have lifetime caps on coverage — an especially crucial element for those with long-term, chronic illness. Older Americans like closing the so-called doughnut hole in prescription drug coverage. Families like the part that allows children to stay on their parents’ insurance until the age of 26. And the medical community likes the law’s emphasis on preventive care.
We can expect a great deal of histrionic stewing and stomping from the Tea Party. Some of its followers have already called for Justice Roberts to be impeached or step down. Too bad Romney’s campaign Web site says he will nominate judges “in the mold of” John Roberts. We’ll see if that statement remains by next week.
The Tea Party, even with the flares that will light up after the court ruling, is a spent force, and most Americans have turned against it.
But Romney still has to carry the Tea Party’s anger at a time when independents — the key to the election — are sick of hyper-partisan scraps and want real solutions to national problems.
The health care law, if tweaked to help small businesses and properly implemented, can join Medicare and Social Security — which are, after all, mandates through taxes — as popular programs that elevate American life and help average people.
President Obama now gets a chance to resell his biggest legislative achievement. He did just that on Thursday, in a brief (for him) and very effective summary of the principles of the health care law: “People who can afford to buy health insurance should take the responsibility to do so.”
Sound familiar? It’s very close to what Romney said in 2009: “Using tax penalties, as we did, or tax credits, as others have proposed, encourages free riders to take responsibility for themselves rather than pass on their medical costs to others.”
Wait till the presidential debates, when Obama can use the words of Mitt Romney, health care pioneer, against Mitt Romney, health care obstructionist.
© 2012 The New York Times Company
http://opinionator.blogs.nytimes.com/2012/06/28/romneys-supreme-burden/ [with comments]
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Bobby Jindal Slips, Says 'Obamney[care]'
By Amanda Terkel
Posted: 06/29/2012 10:27 am Updated: 06/29/2012 11:32 am
The Republican National Committee hosted a conference call on Friday morning, with Virginia Gov. Bob McDonnell (R) and Louisiana Gov. Bobby Jindal (R) criticizing the Supreme Court's decision and vowing to continue to oppose Obamacare.
While arguing why President Barack Obama needs to be thrown out of office in November, Jindal slipped while talking about health care reform, saying "Obamney" before quickly correcting himself:
There's only one candidate -- Gov. Romney -- who's committed that he will repeal the Obamney -- the Obamacare tax increase. He will repeal Obamacare as soon as he's elected. So to me, the choice going forward is very clear.
"Obamneycare" was made popular by former Minnesota Gov. Tim Pawlenty, who used the expression when he was running against Romney to draw similarities between the president's health care plan and the one that Romney passed as governor of Massachusetts.
"President Obama said that he designed Obamacare after Romneycare and basically made it Obamneycare [ http://www.huffingtonpost.com/2011/06/12/tim-pawlenty-mitt-romney-obamacare_n_875515.html ]," said Pawlenty on "Fox News Sunday" in June of last year.
Both Jindal and McDonnell are considered to be potential vice presidential picks for Mitt Romney, although "Obamneycare" is a term that the Romney campaign had likely hoped to have disappeared by now.
LISTEN [ http://www.youtube.com/watch?v=bVVNxgetn-o ]:
http://www.huffingtonpost.com/2012/06/29/bobby-jindal-obamneycare_n_1637368.html [with comments]
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Health Care Dissent: Here's What The Conservative Wing Wanted To Happen
By Ryan Grim
Posted: 06/28/2012 1:02 pm Updated: 06/29/2012 2:16 pm
WASHINGTON -- Mitt Romney, reacting to the Supreme Court's health care ruling Thursday, said, "I agree with the dissent."
The dissent tosses out the entire health care law, dismissing the case for it as "feeble" and a "vast judicial overreach." It argues that "against a mountain of evidence," its backers offer only the "flimsiest of indications to the contrary."
Four of the five Republican appointees on the Court agreed with this interpretation, and it would have carried the day if Chief Justice John Roberts had joined them. Had he done so, the "entire statute" -- meaning the entire law, from beginning to end -- would have been invalidated, including provisions that had already gone into effect. Strangely, the dissenting justices argue that even constitutional provisions must be ruled unconstitutional because "the Act’s other provisions would not have been enacted without" its central elements, the mandate and the Medicaid provision. The justices never reveal how they know what would have happened in the alternate reality they posit.
The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.
Did the minority's uncompromising insistence on invalidating the entire law push Roberts to join the moderates in upholding it? We won't know until the next tell-all book on the court, but below are excerpts from the dissent, signed by Anthony Kennedy, Clarence Thomas, Samuel Alito and Antonin Scalia.
The case is easy
The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.
That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.
Vast judicial overreaching
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
[...]
The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.
[...]
Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go beyond those powers. We conclude that they do.
Why it's not like the medical marijuana case, when Scalia upheld vast Commerce Clause powers
Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced.545 U. S., at 22. See also Shreveport Rate Cases, 234 U. S. 342 (1914) (Necessary and Proper Clause allows regulations of intrastate transactions if necessary to the regulation of an interstate market). Intrastate marijuana could no more be distinguished from interstate marijuana than,for example, endangered-species trophies obtained before the species was federally protected can be distinguished from trophies obtained afterwards—which made it necessary and proper to prohibit the sale of all such trophies, see Andrus v. Allard, 444 U. S. 51 (1979).
With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance.
On Aspirin
It is true enough that everyone consumes "health care," if the term is taken to include the purchase of a bottle of aspirin. But the health care “market” that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance. Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits.
It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.
Wonderful things
The [Ginsburg] dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce.
Mocking the tax argument
Commerce Clause authority, and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was im- posed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.5 The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not.
Quite separately, the fact that Congress (in its ownwords) “imposed . . . a penalty,” 26 U. S. C. §5000A(b)(1),for failure to buy insurance is alone sufficient to renderthat failure unlawful.
Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends theInternal Revenue Code to provide that a non-exempted individual . . . will owe a monetary penalty, in addition to the income tax itself,” and that “[t]he [Internal RevenueService (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not.
The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Staples v. United States, 511 U. S. 600, 618 (1994). Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement.
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Actof 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives.
Copyright © 2012 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/2012/06/28/health-care-dissent_n_1634514.html [with comments]
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The Court Affirms Our Social Contract
Reuters
The health-care case wasn't about broccoli or the Commerce Clause. It was about ratifying a change in our nation's social policy.
By Jack M. Balkin
Jun 29 2012, 5:00 PM ET
In civics class we learn that federal courts decide whether laws passed by Congress and the state legislatures are constitutional. Therefore the federal courts are the guardians of our Constitution. That is certainly true, but it not the whole story. In fact, the most important function of the federal courts is to legitimate state building by the political branches. That is the best way to understand what happened in the Health Care Case. It also helps explain why Chief Justice John Roberts' opinion is written the way it is.
What is "state building?" Throughout our country's history, government has taken on many new functions. The early 19th century American state actually didn't do very much more than national defense and customs collection. The executive branch was tiny. Over the years, the federal government took on more and more obligations, offering new protections and new services for its citizens. After the Civil War, Congress passed a series of civil rights laws, it created the Interstate Commerce Commission to regulate railroads, it passed an income tax, and early in the twentieth century it created a central bank. State building really took off after the New Deal, which established the modern administrative and regulatory state and added a host of labor and consumer protection regulations, investments in infrastructure, and Social Security. The National Security State was born after World War II, and the 1960s brought new civil rights laws and new social welfare programs through the Great Society. At the turn of the 21st century, the federal government expanded its national security infrastructure even further, implementing vast new surveillance programs and strategies for dealing with terrorism-- including detention of "enemy combatants" -- that I collectively call the National Surveillance State [ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1141524 ].
Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution. In this way, courts ratify significant revisions to the American social contract.
The words "legitmate" and "ratify," however, are ambiguous terms. Courts do not simply rubber stamp what the political branches do. Rather, they set new ground rules. The government may do this as long as it doesn't do that. Legitimation is Janus-faced: it establishes what government can do by establishing what the government cannot do.
When the judiciary is staffed by people more or less allied with changes in governance, courts legitimate them fairly easily. But when the federal judiciary is staffed by people hostile to a new president's program, it often casts a skeptical eye on the innovations. Then there can be a protracted struggle over the terms of the new social contract--a struggle waged not only in the courts but also in the court of public opinion.
The most famous example of this is the constitutional struggle over the New Deal between 1933 and 1942. In the early 1930s the Supreme Court was dominated by conservative Republican judges who feared that the New Deal was out-of-control socialism inconsistent with our Nation's basic charter. They struck down President Franklin D. Roosevelt's National Recovery Act and other legislation protecting coal miners and railroad employees. Roosevelt responded with a new round of state building, sometimes called the Second New Deal. In 1937 Justice Owen Roberts joined the liberal Justices in a pair of 5-4 decisions upholding a state minimum wage law and the National Labor Relations Act, thus ratifying key aspects of the Roosevelt program. Over the next few years, Roosevelt made nine new appointments to the Supreme Court and this Court legitimated the New Deal regime in a series of landmark opinions.
Contrast this with the civil rights revolution and the Great Society. By 1962, the Warren Court was staffed with liberal Republicans and Democrats who generally supported Kennedy/Johnson liberalism. The Justices upheld the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and precedents established during the New Deal ensured that Great Society programs would be constitutional. The real constitutional struggle begins in 1968, when Richard Nixon appointed four new conservative justices to the Court in his first term. These new justices accepted and ratified the changes of the 1960s, but also limited them in important ways. They made clear that the welfare state was constitutionally permissible but not constitutionally required, held that education was not a fundamental right, limited the use of busing to achieve racial integration, and halted the Warren Court's revolution in criminal procedure. The changes in social contract were ratified, but on more conservative terms.
Flash forward to today. During his first term in office, President Barack Obama made health care his signature issue. The Patient Protection and Affordable Care Act of 2010 made the most significant change to the American social contract since the Great Society programs of the 1960s. It realized the long held dream of progressives of universal and affordable care for everyone in the United States.
By the time the ACA was passed, however, the nature of the party system had radically changed. The New Deal and the Great Society had support from liberal and moderate Republicans as well as Democrats. But by 2010, there were almost no moderate Republicans left. The ACA was passed solely with Democratic votes, and the two parties were at loggerheads over the nature of the social compact. The new radical Republican Party wanted to roll back important aspects of the social safety net -- the Paul Ryan budget is a blueprint for this new dispensation. Conversely, Democrats wanted to complete their long struggle for basic rights of health care.
Not surprisingly, the Affordable Care Act was challenged in the courts almost as soon as it was passed. A change this big in the social contract needed ratification by the federal courts. That is what this litigation was always about, and everybody knew it.
The litigation strategy was complicated. Opponents knew that most of the act was perfectly constitutional under long tanding precedents. They needed to find a weak spot in the law that, once overturned, would throw the entire Affordable Care Act into jeopardy. They hoped their challenge would work like Luke Skywalker's well-aimed shot that brought down the entire Death Star.
But the task was even more challenging than this. Most Republican politicians don't actually want to strip the federal government of most of the powers to regulate, tax and spend that came with the New Deal. That is because Republican politicians want to use those powers to promote Republican policies, like income tax breaks for corporations, new business-friendly environmental regulations, national tort reform, and partial privatization of Social Security (which, ironically, would require individuals to purchase securities and pension plans from private companies). What opponents wanted, in short, was a constitutional challenge so precise and so narrowly targeted that it would take out one and only one law -- the Patient Protection and Affordable Care Act of 2010 -- while leaving everything else standing for the next Republican majority.
The opponents seized on the individual mandate to purchase insurance as their most likely target. Ironically, it was a Republican idea, offered in response to President Clinton's failed health care proposal. Nevertheless, the attack on the individual mandate captured an important theme in the radical Republican vision of the social contract: The government should not force some people to buy insurance that would effectively subsidize health care for others. Moreover, because federal laws normally don't use mandates directed at the general public, the challenge would just take out the mandate and leave virtually everything else in place.
The opponents also attacked the ACA's Medicaid expansion, which sought to bring subsidized health care to millions of poorer Americans. Once again, the challenge reflected unhappiness with income redistribution in the new regime. Expanding Medicaid to cover everyone up to 133 percent of the poverty line would unfairly divert federal tax dollars to the poor, and shift money to states with more poor people.
If either the mandate challenge or the Medicaid challenge succeeded, opponents would then argue that the entire statute had to fall, because the Affordable Care Act had no severability clause. In this way, the opponents could wipe Obamacare off the books with a single stroke, something they could never have done through the ordinary political process. (The day before the opinion came down, I wrote a brief parody of these conservative hopes -- a mock Supreme Court opinion [ http://balkin.blogspot.com/2012/06/supreme-court-strikes-down-all-laws.html ] that struck down not only the ACA, but everything that Barack Obama had done in his first term.)
The stage was now set for the Supreme Court to decide whether to ratify the Democratic changes to the social contract. Would the Court act like the old Court that struck down the National Recovery Act and maximum hours laws? Would it be like the Warren Court that happily ratified the civil rights revolution? Or would it be like the Nixon Court that accepted the 1960s but on more conservative terms?
Four Justices of the Supreme Court -- Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito, swallowed the radical Republican strategy hook, line, and sinker. Having decided that the individual mandate and the Medicaid expansion were unconstitutional, they sought to leverage that conclusion to strike down the entire law, including features that had nothing to do with the individual mandate or the Medicaid expansion.
Chief Justice Roberts thought this a bridge too far. He joined with the four liberals to uphold the Affordable Care Act, thus placing the Supreme Court's stamp of approval on the most important piece of social welfare legislation since the 1960s. But he extracted a price for this legitimation.
Roberts held that the individual mandate could not be justified by Congress's power to regulate interstate commerce. If it was constitutional, it was only as a tax, which gave people a choice to purchase health insurance or pay a small penalty. As I have argued [ http://www.pennumbra.com/debates/debate.php?did=23 ] for [ http://www.nejm.org/doi/full/10.1056/NEJMp1000087 ] many [ http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/january_2011/obamacare.cfm ] years [ http://www.theatlantic.com/politics/archive/2012/05/the-health-care-mandate-is-clearly-a-tax-0151-and-therefore-constitutional/256706/ ], this is, in fact, the correct interpretation of what the mandate does. Once this point is accepted, the argument for the mandate's constitutionality is straightforward, and Roberts quickly showed why this was true.
The crucial point, however, is that Roberts' reasoning captures the dual nature of judicial legitimation. He has said to Congress: "You may compel people to enter into commercial transactions like the insurance mandate, but you may not do so as a direct order under the commerce power. Instead, you must do it through the taxing power, always giving people the choice to pay a tax instead. And as long as you structure the mandate as a tax, the people's rights are protected because they always have the right to throw their elected representatives out of office if they don't like the tax." Roberts' opinion thus harks back to a basic source of legitimacy enshrined in the American Revolution: "No taxation without representation." The converse of this proposition, Roberts tells us, is that if you have been represented, and if you can punish your representatives for passing new taxes, your rights have been respected. This logic accepts the new social contract but redefines it in a way more palatable to conservatives.
Roberts then turned to the Medicaid extension. He argued that Congress may create new social programs that expand protection for the poor. But Congress may not tell states that they must accept the new programs or else lose all federal contributions to existing social programs of long standing. The federal government may, if it wants, totally fund the Medicaid extension out of its own pocket without any help from the states. It may abolish the old version of Medicaid and create a new version in its place identical to the expanded version. What it may not do, Roberts argued, is to leverage States' dependence on federal money in established social welfare programs to compel States to participate in new social welfare programs. There are various problems with this solution, which I have discussed elsewhere [ http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2012/_supreme_court_year_in_review/supreme_court_year_in_review_it_was_always_about_the_tax_.html ] and will not repeat here. But the important point is that, here again, Roberts is both legitimating and redefining the new social contract in a more conservative way.
Some have called Roberts' opinion statesmanlike, putting aside personal ideology to apply the law. Others have called it clever, handing conservatives an ideological victory while giving Democrats a policy result they like. My own view is that the Court as a whole performed the traditional function of federal judges in our constitutional system. The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward.
What does the decision mean in terms of constitutional doctrine? Much will depend on who wins the next several presidential elections. If the Republicans dominate American politics in the decades to come, Roberts' opinion will seem much more conservative than it does now, precisely because Roberts will be assisted by a series of new conservative Supreme Court appointments. They will remake the Constitution in their own image. If the Democrats continue to hold the presidency, the Supreme Court may regain a liberal majority for the first time since the late 1960s, and the Constitution will look appreciably different. But whoever wins, health care reform is here to stay. The social contract in America has forever changed. That is the lasting legacy of President Obama's efforts, and the lasting legacy of the Supreme Court's decision.
Copyright © 2012 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2012/06/the-court-affirms-our-social-contract/259186/ [with comments]
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Here's a Map of the Countries That Provide Universal Health Care (America's Still Not on It)
The U.S. stands almost entirely alone among developed nations that lack universal health care.
Jun 28 2012
http://www.theatlantic.com/international/archive/2012/06/heres-a-map-of-the-countries-that-provide-universal-health-care-americas-still-not-on-it/259153/ [with comments]
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Consumer 12.0: When ideology eclipsed health-care problem-solving
Jeff Gelles, Inquirer Business Columnist
Posted: Sat, Jun. 30, 2012, 5:07 PM
From the day in 2010 that President Obama signed the Patient Protection and Affordable Care Act, a legal fever gripped much of the country. Was the "individual mandate" — the requirement to buy insurance if you weren't already covered, a key pillar of the law — constitutional? Would a Supreme Court dominated by Republican appointees toss it out, no matter what?
You know how that fever finally broke. In a 5-4 decision that surprised both sides, Chief Justice John Roberts ditched his fellow conservatives to conclude that Congress and the President acted within their authority, not under the Commerce Clause, but because the penalty for violating the mandate was permissible as a tax. Within hours, the body politic was gripped again, this time with a fever bound to last till Election Day — or well beyond — over a role Roberts disowned: weighing the law's "wisdom or fairness."
It's sometimes hard to remember amid all the spin, but that's what lies beyond: real questions from people with genuine concerns about their health, their finances, and, yes, their taxes — and, for many, in a country that values individualism, concerns about the fairness of any program that offers government support to anyone else.
If it survives the feverish debate ahead, the law almost everybody now calls Obamacare will change key elements of our health-care system. In a moment, I'll tell you about five sets of people who stand to benefit from the law, and how we all may benefit if their access to health care improves. But first, a comment about the strange moment we're in, when politics and ideology seem have totally eclipsed problem-solving.
Roberts may have done so briefly, and to the country's benefit, but on this topic, it's nearly impossible to straddle the partisan divide. So I'll just come clean. Like the Democrats in Congress who ultimately passed Obamacare without a single GOP vote, I've long believed our health-care system was broken and needed fixing. Sadly, I seem to have believed so more urgently than Republicans who'd voiced similar concerns in response, say, to Census Bureau data showing 45 million people uninsured even before the Great Recession, or stories of sick people denied lifesaving treatment, or of families bankrupted by costly care.
Our long economic slump has only widened the ideological chasm — a divide reflected in a June blog post by libertarian economist Tyler Cowen [ http://marginalrevolution.com/marginalrevolution/2012/06/what-kind-of-mandate-should-the-right-have-supported.html ], who argued for the rejection of what he calls "health-care egalitarianism" and wrote: "We need to accept the principle that sometimes poor people will die just because they are poor."
Give Cowen credit. He's a clearheaded advocate for his viewpoint and was gamely trying to address a question raised by many who disagree: Since the individual mandate was born as a Republican idea, what kind of mandate — what kind of market intervention — could he stomach?
It's hard to dispute what followed Cowen's remark about death and the poor: "Some of you don't like the sound of that," he wrote, "but we already let the wealthy enjoy all sorts of other goods — most importantly status — which lengthen their lives and which the poor enjoy to a much lesser degree."
Of course, some of us consider that more a bug than a feature — especially in a society with growing disparities in income and wealth and a class of increasingly powerful plutocrats.
But Cowen is fighting a straw party. Obamacare won't deliver "health care egalitarianism" — far from it. Nothing will stop the well-off from buying more or better care, as they do now through services such as "concierge medicine." Nearly half the 33 million people it promises to add to the insurance roles would get there via Medicaid, the safety-net insurance system for the poor — including those who get there after exhausting all their resources in nursing homes.
Roberts' ruling — siding this time with the court's four other conservatives — threw a monkey wrench into that plan, by allowing states to opt out of the Medicaid expansion. But for now, the rest of the law survives. Here are five groups whose lives stand to change as a result:
• Families with ailing children. You may have heard that the law already bars insurers from refusing to cover children with preexisting conditions, as it will for adults in 2014. Maybe you even have such a child, and are unconcerned because you have good group coverage. But consider this: Even if your child is safely protected now by your plan, the new rules will also offer security as he or she grows up. No longer will a parent's career advice have to start with, "Above all, choose a career at a large employer that offers health insurance.
• Women and their families. The law aims to improve health by requiring new plans to offer a range of preventive services without co-pays or other cost-sharing, and both women and children will be particular beneficiaries. Kaiser Family Foundation says the services will include childhood immunizations and screenings for diseases and developmental disorders. As adults, women will be eligible for services such as annual well-patient visits, breast-feeding support, and screening for domestic violence.
• Entrepreneurs. Finding affordable insurance has always been problematic for the self-employed and people at start-ups. Sometimes, it's the tail wagging the dog, a factor that keeps people clinging to ill-fitting jobs, or discourages them from taking entrepreneurial risks, because someone in the family needs the protection of group insurance. It's tough to measure, but once the exchanges are running in 2014, similar coverage will be available to everybody, with subsidies for people earning up to four times the federal poverty level — support akin to the tax-deductibility of employer-sponsored plans.
• Young adults. You may know that Obamacare enables children to stay on family policies until age 26, and that some states, such as Pennsylvania, authorize extended coverage even further in certain circumstances. The new rules have helped millions of young adults in the economic slump.
• Insurance customers. Yes, that's all of us who don't have Medicare, veterans' coverage, or another government plan. The new law already requires large-group insurers to spend at least 85 percent of premiums on medical care, and those serving the individual and small-group market to spend at least 80 percent. As of last month, 12.8 million Americans, including 576,000 in Pennsylvania, were due to get $1.1 billion in rebates averaging $151 per family.
There's a price for all this. The Congressional Budget Office puts the net expense at $110 billion in 2015. And the numbers are wrapped up in the larger necessity — partly addressed by innovations built into Obamacare — of having to “bend the cost curve" for medical care.
But doesn't a humane society have value, too?
© 2012 Philadelphia Media Network Inc.
http://www.philly.com/philly/health/20120701_Consumer_12_0__When_ideology_eclipsed_health-care_problem-solving.html?cmpid=138896554 [with comments]
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President Obama, discussing the Supreme Court’s decision on Thursday, called it “a victory for people all over this country whose lives are more secure.”
Luke Sharrett for The New York Times
Document
The Supreme Court Decision on the 2010 Health Care Law
http://www.nytimes.com/interactive/2012/06/29/us/scotus-healthcare-document-annotations.html
Graphic
How the Justices Ruled on the Health Care Law
http://www.nytimes.com/interactive/2012/06/28/us/how-the-justices-ruled-on-health-care.html
By MARK LANDLER
Published: June 28, 2012
WASHINGTON — For Barack Obama [ http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html ], who staked his presidency on a once-in-a-generation reshaping of the social welfare system, the Supreme Court’s health care ruling [ http://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html ] is not just political vindication. It is a personal reprieve, leaving intact his hopes of joining the ranks of Franklin D. Roosevelt, Lyndon B. Johnson and Ronald Reagan as presidents who fundamentally altered the course of the country.
For all its weight, however, the judgment does little to settle the bitter debate, spanning decades, over the proper role of government in American life. That debate rages on, with the next acid test only four months away — an election that will give voters the chance to render their verdict on Mr. Obama’s ambitious legacy.
What the Supreme Court’s decision does do is preserve Mr. Obama’s status as the president who did more to expand the nation’s safety net than any since Johnson. It preserves a bill intended to push back against rapidly rising income inequality [ http://topics.nytimes.com/top/reference/timestopics/subjects/i/income/income_inequality/index.html ]. And for a self-consciously historic figure, it allows Mr. Obama to argue that he has delivered on the most cherished goal of his 2008 campaign: “Change we can believe in.”
“Historians will compare this to F.D.R.’s Social Security [ http://topics.nytimes.com/top/reference/timestopics/subjects/s/social_security_us/index.html ] and Lyndon Johnson’s Medicare [ http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/medicare/index.html ],” said the historian Robert Dallek, who has written about both presidents. “This is another step in humanizing the American industrial system.”
In political terms, said Douglas G. Brinkley, a professor of history at Rice University, “It’s the cornerstone of what could turn out to be one of the most extraordinary two-term presidencies in American history.”
Beyond his legislative agenda — not just on health care, but on education and Wall Street regulation — Mr. Obama has sketched out a view of government as a force for good, a great leveler and a protector of the middle class. That view stands in stark contrast to the Republican mantra, articulated by Reagan, who headed in the opposite direction in his first inaugural address, saying that “government is not the solution to our problem; government is the problem.”
Republicans, including the president’s challenger, Mitt Romney, have largely hewed to the Reagan script in the decades since, and have met with considerable success doing so. Polls show continuing skepticism of government — especially of the health law — and Republicans captured the House of Representatives in 2010 with a small-government message.
But Mr. Obama has constructed his political career on the notion that Americans are ready for something different after three decades of rising inequality and slow-growing incomes for the middle class. While still a candidate in 2008, Mr. Obama declared that Reagan changed history more than either Bill Clinton or Richard M. Nixon. The planets, he said, were once again aligned to make a transformative presidency possible.
“The Republican approach, I think, has played itself out,” he said to the editorial board of The Reno Gazette-Journal.
Health care has been Exhibit A in that argument, a project he undertook at the cost of other ambitious efforts like curbing climate change [ http://topics.nytimes.com/top/news/science/topics/globalwarming/index.html ] or rewriting the tax code. While Mr. Obama will be remembered for bailing out the auto industry, winding down two wars and dispatching Osama bin Laden, health care was his play for history.
Not just Roosevelt and Johnson, but Harry S. Truman, Nixon and Mr. Clinton all tried and failed to move the country toward universal health coverage. Mr. Obama and the Democratic leaders on Capitol Hill succeeded, passing a bill that, through an expansion of private and government insurance, seeks to end the status of the United States as the world’s only rich country with millions of involuntarily uninsured citizens.
“Health care has been a squabble without end since the beginning of the progressive era, since Theodore Roosevelt,” Professor Brinkley said.
In addition to broadening the safety net, the law also seeks to alter a tax structure largely created by Reagan. To pay for the expanded insurance, Mr. Obama and Congress raised Medicare taxes on high-income households, as well as on medical companies.
“We’ve entered an era of zero-sum trade-offs, and Obama is trying to dramatize those trade-offs,” said Theda Skocpol, a professor of government at Harvard. “The health care law [ http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html ] really symbolizes that; it’s a really redistributionist law.”
Had the justices struck down the law, they would have dealt Mr. Obama a crippling blow in the midst of a hard-fought campaign. Knocking down the central pillar of his legislative agenda would have called into question not only his judgment, but his very legitimacy, according to the presidential scholar Michael Beschloss.
Mr. Obama briefly found himself contemplating that fate just after 10 on Thursday morning as he watched live coverage of the ruling on a bank of television screens outside the Oval Office. Two cable TV networks, CNN and Fox News, erroneously reported [ http://thecaucus.blogs.nytimes.com/2012/06/28/rushing-to-report-the-health-ruling-and-getting-it-wrong/ ] that the court had struck down part of the law, before correcting themselves.
If Mr. Obama and his opponents can agree on one thing, it may be that he is trying to move the country away from a laissez-faire period. The rise of the Tea Party movement [ http://topics.nytimes.com/top/reference/timestopics/subjects/t/tea_party_movement/index.html ] and the Republican takeover of the House were a backlash against what his opponents saw as an arrogant overreach by the president. The fact that he did it while the country was mired in a recession [ http://topics.nytimes.com/top/reference/timestopics/subjects/r/recession_and_depression/index.html ], and without a single Republican vote, compounded the outrage.
“That changed the entire tenor of politics,” said Sean Wilentz, a professor of history at Princeton. “It took a while for the White House to figure out that post-partisanship didn’t fit the realities of Washington. They may have misjudged the political situation.”
More broadly, Mr. Obama may have misjudged the readiness of the country to accept an expansion of the government after decades in which Reagan’s conservative credo had come to be embraced, even by Democrats like Mr. Clinton, who declared in 1996 that “the era of big government is over.”
As Steven F. Hayward, an expert in the presidency at the American Enterprise Institute, pointed out, Mr. Obama promoted his health care bill in conservative terms. While still a candidate, he resisted proposals for a mandate to buy insurance. “He saw that as the kind of big-government idea that doomed Hillary-care,” Mr. Hayward said, referring to the reform championed by Hillary Rodham Clinton when she was the first lady.
Historians liken Mr. Obama’s challenge to Roosevelt’s, who had parts of his New Deal struck down in his first term. The lesson for this president, said David M. Kennedy, a historian at Stanford, is to forge a coalition robust enough to change the political landscape. Roosevelt was elected to a second term in a landslide in 1936, cementing the New Deal.
Even if Mr. Obama is re-elected, he could face further legal challenges to the health care law from the states. Likewise, changes in the nation’s political landscape could render this week’s ruling less definitive than it now appears. But the Supreme Court has given the president crucial standing to make his case.
“It’s not so much that the court has, in one stroke, affirmed his legislative legacy,” said Laurence H. Tribe, a Harvard constitutional law professor who taught both Mr. Obama and Chief Justice John Roberts. “That will depend on what happens down the road. But there is an interdependence here: the court’s decision to say, ‘this is not an un-American act’ is critical.”
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Related
Supreme Court Upholds Health Care Law, 5-4, in Victory for Obama (June 29, 2012)
http://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html
News Analysis: G.O.P. Vowing to Take Battle Over Health Care Law Into November (June 29, 2012)
http://www.nytimes.com/2012/06/29/us/politics/republicans-press-on-with-health-law-challenge.html
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© 2012 The New York Times Company
http://www.nytimes.com/2012/06/29/us/health-care-ruling-may-secure-obamas-place-in-history.html [ http://www.nytimes.com/2012/06/29/us/health-care-ruling-may-secure-obamas-place-in-history.html?pagewanted=all ]
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The Real Winners
By PAUL KRUGMAN
Published: June 28, 2012
So the Supreme Court — defying many expectations — upheld the Affordable Care Act, a k a Obamacare. There will, no doubt, be many headlines declaring this a big victory for President Obama, which it is. But the real winners are ordinary Americans — people like you.
How many people are we talking about? You might say 30 million, the number of additional people the Congressional Budget Office says will have health insurance thanks to Obamacare. But that vastly understates the true number of winners because millions of other Americans — including many who oppose the act — would have been at risk of being one of those 30 million.
So add in every American who currently works for a company that offers good health insurance but is at risk of losing that job (and who isn’t in this world of outsourcing and private equity buyouts?); every American who would have found health insurance unaffordable but will now receive crucial financial help; every American with a pre-existing condition who would have been flatly denied coverage in many states.
In short, unless you belong to that tiny class of wealthy Americans who are insulated and isolated from the realities of most people’s lives, the winners from that Supreme Court decision are your friends, your relatives, the people you work with — and, very likely, you. For almost all of us stand to benefit from making America a kinder and more decent society.
But what about the cost? Put it this way: the budget office’s estimate of the cost over the next decade of Obamacare’s “coverage provisions” — basically, the subsidies needed to make insurance affordable for all — is about only a third of the cost of the tax cuts, overwhelmingly favoring the wealthy, that Mitt Romney is proposing over the same period. True, Mr. Romney says that he would offset that cost, but he has failed to provide any plausible explanation of how he’d do that. The Affordable Care Act, by contrast, is fully paid for, with an explicit combination of tax increases and spending cuts elsewhere.
So the law that the Supreme Court upheld is an act of human decency that is also fiscally responsible. It’s not perfect, by a long shot — it is, after all, originally a Republican plan, devised long ago as a way to forestall the obvious alternative of extending Medicare to cover everyone. As a result, it’s an awkward hybrid of public and private insurance that isn’t the way anyone would have designed a system from scratch. And there will be a long struggle to make it better, just as there was for Social Security. (Bring back the public option!) But it’s still a big step toward a better — and by that I mean morally better — society.
Which brings us to the nature of the people who tried to kill health reform — and who will, of course, continue their efforts despite this unexpected defeat.
At one level, the most striking thing about the campaign against reform was its dishonesty. Remember “death panels”? Remember how reform’s opponents would, in the same breath, accuse Mr. Obama of promoting big government and denounce him for cutting Medicare? Politics ain’t beanbag, but, even in these partisan times, the unscrupulous nature of the campaign against reform was exceptional. And, rest assured, all the old lies and probably a bunch of new ones will be rolled out again in the wake of the Supreme Court’s decision. Let’s hope the Democrats are ready.
But what was and is really striking about the anti-reformers is their cruelty. It would be one thing if, at any point, they had offered any hint of an alternative proposal to help Americans with pre-existing conditions, Americans who simply can’t afford expensive individual insurance, Americans who lose coverage along with their jobs. But it has long been obvious that the opposition’s goal is simply to kill reform, never mind the human consequences. We should all be thankful that, for the moment at least, that effort has failed.
Let me add a final word on the Supreme Court.
Before the arguments began, the overwhelming consensus among legal experts who aren’t hard-core conservatives — and even among some who are — was that Obamacare was clearly constitutional. And, in the end, thanks to Chief Justice John Roberts Jr. [ http://topics.nytimes.com/top/reference/timestopics/people/r/john_g_jr_roberts/index.html ], the court upheld that view. But four justices dissented, and did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship.
The point is that this isn’t over — not on health care, not on the broader shape of American society. The cruelty and ruthlessness that made this court decision such a nail-biter aren’t going away.
But, for now, let’s celebrate. This was a big day, a victory for due process, decency and the American people.
© 2012 The New York Times Company
http://www.nytimes.com/2012/06/29/opinion/the-real-winners.html [with comments]
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Romney’s Supreme Burden
By TIMOTHY EGAN
June 28, 2012, 9:00 pm
Congratulations to Mitt Romney! His signature contribution to American life, devising a health plan that became a model for the only major Western democracy without medical care for nearly all of its citizens, has been upheld. If Romney accomplishes nothing else in life, he will go down in history as the man who first proved, in the laboratory of Massachusetts, where he once governed, that an individual mandate could work.
Jeers to Mitt Romney! As the presumptive Republican nominee for president, he stood in front of the Capitol just after the Supreme Court ruling on Thursday and promised to fight in the coming campaign against one big idea — his own.
Now Romney has no choice but to run against himself. It was Rick Santorum who put it in blunt political terms during the Republican primary. Romney, he said, “is the worst Republican in the country to put up against Barack Obama” because he is the intellectual godfather of the most consequential act of the Obama presidency.
If Romney was honest, and his party less locked in the grip of its far-right base, he could point with pride to the progress that Massachusetts has made. In the Bay State, compliance with the law is high, and nearly two-thirds of the people support it. The cost of insurance fell significantly in the first year after the law took effect. And fewer than 1 percent of the people chose to pay the penalty — or tax, as Chief Justice John G. Roberts Jr. helpfully clarified for Obamacare — rather than sign up for health insurance.
But the days of Romney praising his plan, which he did as recently as 2009, are long gone. Remember, it was in a moment of debate candor that Romney turned to Newt Gingrich and acknowledged the free-market, Republican origins of the mandate.
“We got the idea from Newt,” said Romney. “And Newt got it from the Heritage Foundation.” And the idea is a simple one: freeloaders cost the system billions and indirectly raise insurance for those who do the right thing.
To please a Republican Party that waves its gnarled fists at progress, Romney promises, crosses his heart and swears on his mother’s grave that he will repeal Obamacare on Day 1 of his presidency.
Except that, hedge, hedge, he wants the law’s most popular features — preventing insurance companies from dumping people who get sick or denying care to those with pre-existing conditions — to remain on the books.
All of this just reinforces Romney’s worst character flaw — the weasel factor. Every time he opens his mouth to denounce the individual mandate, he contradicts one of the most successful things he ever did as governor.
Plus, the Republican majority in the House has no intention of passing any measure that would keep the most popular parts of the health care act intact. Instead, the House will most likely vote next month to repeal the whole law, and from there it will sit in the Senate and await the election outcome in November.
The mandate is unpopular, without doubt. But big pieces of the law are supported by large majorities. People love the fact that insurance companies no longer have lifetime caps on coverage — an especially crucial element for those with long-term, chronic illness. Older Americans like closing the so-called doughnut hole in prescription drug coverage. Families like the part that allows children to stay on their parents’ insurance until the age of 26. And the medical community likes the law’s emphasis on preventive care.
We can expect a great deal of histrionic stewing and stomping from the Tea Party. Some of its followers have already called for Justice Roberts to be impeached or step down. Too bad Romney’s campaign Web site says he will nominate judges “in the mold of” John Roberts. We’ll see if that statement remains by next week.
The Tea Party, even with the flares that will light up after the court ruling, is a spent force, and most Americans have turned against it.
But Romney still has to carry the Tea Party’s anger at a time when independents — the key to the election — are sick of hyper-partisan scraps and want real solutions to national problems.
The health care law, if tweaked to help small businesses and properly implemented, can join Medicare and Social Security — which are, after all, mandates through taxes — as popular programs that elevate American life and help average people.
President Obama now gets a chance to resell his biggest legislative achievement. He did just that on Thursday, in a brief (for him) and very effective summary of the principles of the health care law: “People who can afford to buy health insurance should take the responsibility to do so.”
Sound familiar? It’s very close to what Romney said in 2009: “Using tax penalties, as we did, or tax credits, as others have proposed, encourages free riders to take responsibility for themselves rather than pass on their medical costs to others.”
Wait till the presidential debates, when Obama can use the words of Mitt Romney, health care pioneer, against Mitt Romney, health care obstructionist.
© 2012 The New York Times Company
http://opinionator.blogs.nytimes.com/2012/06/28/romneys-supreme-burden/ [with comments]
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Bobby Jindal Slips, Says 'Obamney[care]'
By Amanda Terkel
Posted: 06/29/2012 10:27 am Updated: 06/29/2012 11:32 am
The Republican National Committee hosted a conference call on Friday morning, with Virginia Gov. Bob McDonnell (R) and Louisiana Gov. Bobby Jindal (R) criticizing the Supreme Court's decision and vowing to continue to oppose Obamacare.
While arguing why President Barack Obama needs to be thrown out of office in November, Jindal slipped while talking about health care reform, saying "Obamney" before quickly correcting himself:
There's only one candidate -- Gov. Romney -- who's committed that he will repeal the Obamney -- the Obamacare tax increase. He will repeal Obamacare as soon as he's elected. So to me, the choice going forward is very clear.
"Obamneycare" was made popular by former Minnesota Gov. Tim Pawlenty, who used the expression when he was running against Romney to draw similarities between the president's health care plan and the one that Romney passed as governor of Massachusetts.
"President Obama said that he designed Obamacare after Romneycare and basically made it Obamneycare [ http://www.huffingtonpost.com/2011/06/12/tim-pawlenty-mitt-romney-obamacare_n_875515.html ]," said Pawlenty on "Fox News Sunday" in June of last year.
Both Jindal and McDonnell are considered to be potential vice presidential picks for Mitt Romney, although "Obamneycare" is a term that the Romney campaign had likely hoped to have disappeared by now.
LISTEN [ http://www.youtube.com/watch?v=bVVNxgetn-o ]:
Copyright © 2012 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/2012/06/29/bobby-jindal-obamneycare_n_1637368.html [with comments]
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Health Care Dissent: Here's What The Conservative Wing Wanted To Happen
By Ryan Grim
Posted: 06/28/2012 1:02 pm Updated: 06/29/2012 2:16 pm
WASHINGTON -- Mitt Romney, reacting to the Supreme Court's health care ruling Thursday, said, "I agree with the dissent."
The dissent tosses out the entire health care law, dismissing the case for it as "feeble" and a "vast judicial overreach." It argues that "against a mountain of evidence," its backers offer only the "flimsiest of indications to the contrary."
Four of the five Republican appointees on the Court agreed with this interpretation, and it would have carried the day if Chief Justice John Roberts had joined them. Had he done so, the "entire statute" -- meaning the entire law, from beginning to end -- would have been invalidated, including provisions that had already gone into effect. Strangely, the dissenting justices argue that even constitutional provisions must be ruled unconstitutional because "the Act’s other provisions would not have been enacted without" its central elements, the mandate and the Medicaid provision. The justices never reveal how they know what would have happened in the alternate reality they posit.
The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.
Did the minority's uncompromising insistence on invalidating the entire law push Roberts to join the moderates in upholding it? We won't know until the next tell-all book on the court, but below are excerpts from the dissent, signed by Anthony Kennedy, Clarence Thomas, Samuel Alito and Antonin Scalia.
The case is easy
The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.
That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.
Vast judicial overreaching
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
[...]
The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.
[...]
Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go beyond those powers. We conclude that they do.
Why it's not like the medical marijuana case, when Scalia upheld vast Commerce Clause powers
Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced.545 U. S., at 22. See also Shreveport Rate Cases, 234 U. S. 342 (1914) (Necessary and Proper Clause allows regulations of intrastate transactions if necessary to the regulation of an interstate market). Intrastate marijuana could no more be distinguished from interstate marijuana than,for example, endangered-species trophies obtained before the species was federally protected can be distinguished from trophies obtained afterwards—which made it necessary and proper to prohibit the sale of all such trophies, see Andrus v. Allard, 444 U. S. 51 (1979).
With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance.
On Aspirin
It is true enough that everyone consumes "health care," if the term is taken to include the purchase of a bottle of aspirin. But the health care “market” that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance. Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits.
It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.
Wonderful things
The [Ginsburg] dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce.
Mocking the tax argument
Commerce Clause authority, and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was im- posed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.5 The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not.
Quite separately, the fact that Congress (in its ownwords) “imposed . . . a penalty,” 26 U. S. C. §5000A(b)(1),for failure to buy insurance is alone sufficient to renderthat failure unlawful.
Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends theInternal Revenue Code to provide that a non-exempted individual . . . will owe a monetary penalty, in addition to the income tax itself,” and that “[t]he [Internal RevenueService (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not.
The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Staples v. United States, 511 U. S. 600, 618 (1994). Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement.
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Actof 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives.
Copyright © 2012 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/2012/06/28/health-care-dissent_n_1634514.html [with comments]
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The Court Affirms Our Social Contract
Reuters
The health-care case wasn't about broccoli or the Commerce Clause. It was about ratifying a change in our nation's social policy.
By Jack M. Balkin
Jun 29 2012, 5:00 PM ET
In civics class we learn that federal courts decide whether laws passed by Congress and the state legislatures are constitutional. Therefore the federal courts are the guardians of our Constitution. That is certainly true, but it not the whole story. In fact, the most important function of the federal courts is to legitimate state building by the political branches. That is the best way to understand what happened in the Health Care Case. It also helps explain why Chief Justice John Roberts' opinion is written the way it is.
What is "state building?" Throughout our country's history, government has taken on many new functions. The early 19th century American state actually didn't do very much more than national defense and customs collection. The executive branch was tiny. Over the years, the federal government took on more and more obligations, offering new protections and new services for its citizens. After the Civil War, Congress passed a series of civil rights laws, it created the Interstate Commerce Commission to regulate railroads, it passed an income tax, and early in the twentieth century it created a central bank. State building really took off after the New Deal, which established the modern administrative and regulatory state and added a host of labor and consumer protection regulations, investments in infrastructure, and Social Security. The National Security State was born after World War II, and the 1960s brought new civil rights laws and new social welfare programs through the Great Society. At the turn of the 21st century, the federal government expanded its national security infrastructure even further, implementing vast new surveillance programs and strategies for dealing with terrorism-- including detention of "enemy combatants" -- that I collectively call the National Surveillance State [ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1141524 ].
Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution. In this way, courts ratify significant revisions to the American social contract.
The words "legitmate" and "ratify," however, are ambiguous terms. Courts do not simply rubber stamp what the political branches do. Rather, they set new ground rules. The government may do this as long as it doesn't do that. Legitimation is Janus-faced: it establishes what government can do by establishing what the government cannot do.
When the judiciary is staffed by people more or less allied with changes in governance, courts legitimate them fairly easily. But when the federal judiciary is staffed by people hostile to a new president's program, it often casts a skeptical eye on the innovations. Then there can be a protracted struggle over the terms of the new social contract--a struggle waged not only in the courts but also in the court of public opinion.
The most famous example of this is the constitutional struggle over the New Deal between 1933 and 1942. In the early 1930s the Supreme Court was dominated by conservative Republican judges who feared that the New Deal was out-of-control socialism inconsistent with our Nation's basic charter. They struck down President Franklin D. Roosevelt's National Recovery Act and other legislation protecting coal miners and railroad employees. Roosevelt responded with a new round of state building, sometimes called the Second New Deal. In 1937 Justice Owen Roberts joined the liberal Justices in a pair of 5-4 decisions upholding a state minimum wage law and the National Labor Relations Act, thus ratifying key aspects of the Roosevelt program. Over the next few years, Roosevelt made nine new appointments to the Supreme Court and this Court legitimated the New Deal regime in a series of landmark opinions.
Contrast this with the civil rights revolution and the Great Society. By 1962, the Warren Court was staffed with liberal Republicans and Democrats who generally supported Kennedy/Johnson liberalism. The Justices upheld the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and precedents established during the New Deal ensured that Great Society programs would be constitutional. The real constitutional struggle begins in 1968, when Richard Nixon appointed four new conservative justices to the Court in his first term. These new justices accepted and ratified the changes of the 1960s, but also limited them in important ways. They made clear that the welfare state was constitutionally permissible but not constitutionally required, held that education was not a fundamental right, limited the use of busing to achieve racial integration, and halted the Warren Court's revolution in criminal procedure. The changes in social contract were ratified, but on more conservative terms.
Flash forward to today. During his first term in office, President Barack Obama made health care his signature issue. The Patient Protection and Affordable Care Act of 2010 made the most significant change to the American social contract since the Great Society programs of the 1960s. It realized the long held dream of progressives of universal and affordable care for everyone in the United States.
By the time the ACA was passed, however, the nature of the party system had radically changed. The New Deal and the Great Society had support from liberal and moderate Republicans as well as Democrats. But by 2010, there were almost no moderate Republicans left. The ACA was passed solely with Democratic votes, and the two parties were at loggerheads over the nature of the social compact. The new radical Republican Party wanted to roll back important aspects of the social safety net -- the Paul Ryan budget is a blueprint for this new dispensation. Conversely, Democrats wanted to complete their long struggle for basic rights of health care.
Not surprisingly, the Affordable Care Act was challenged in the courts almost as soon as it was passed. A change this big in the social contract needed ratification by the federal courts. That is what this litigation was always about, and everybody knew it.
The litigation strategy was complicated. Opponents knew that most of the act was perfectly constitutional under long tanding precedents. They needed to find a weak spot in the law that, once overturned, would throw the entire Affordable Care Act into jeopardy. They hoped their challenge would work like Luke Skywalker's well-aimed shot that brought down the entire Death Star.
But the task was even more challenging than this. Most Republican politicians don't actually want to strip the federal government of most of the powers to regulate, tax and spend that came with the New Deal. That is because Republican politicians want to use those powers to promote Republican policies, like income tax breaks for corporations, new business-friendly environmental regulations, national tort reform, and partial privatization of Social Security (which, ironically, would require individuals to purchase securities and pension plans from private companies). What opponents wanted, in short, was a constitutional challenge so precise and so narrowly targeted that it would take out one and only one law -- the Patient Protection and Affordable Care Act of 2010 -- while leaving everything else standing for the next Republican majority.
The opponents seized on the individual mandate to purchase insurance as their most likely target. Ironically, it was a Republican idea, offered in response to President Clinton's failed health care proposal. Nevertheless, the attack on the individual mandate captured an important theme in the radical Republican vision of the social contract: The government should not force some people to buy insurance that would effectively subsidize health care for others. Moreover, because federal laws normally don't use mandates directed at the general public, the challenge would just take out the mandate and leave virtually everything else in place.
The opponents also attacked the ACA's Medicaid expansion, which sought to bring subsidized health care to millions of poorer Americans. Once again, the challenge reflected unhappiness with income redistribution in the new regime. Expanding Medicaid to cover everyone up to 133 percent of the poverty line would unfairly divert federal tax dollars to the poor, and shift money to states with more poor people.
If either the mandate challenge or the Medicaid challenge succeeded, opponents would then argue that the entire statute had to fall, because the Affordable Care Act had no severability clause. In this way, the opponents could wipe Obamacare off the books with a single stroke, something they could never have done through the ordinary political process. (The day before the opinion came down, I wrote a brief parody of these conservative hopes -- a mock Supreme Court opinion [ http://balkin.blogspot.com/2012/06/supreme-court-strikes-down-all-laws.html ] that struck down not only the ACA, but everything that Barack Obama had done in his first term.)
The stage was now set for the Supreme Court to decide whether to ratify the Democratic changes to the social contract. Would the Court act like the old Court that struck down the National Recovery Act and maximum hours laws? Would it be like the Warren Court that happily ratified the civil rights revolution? Or would it be like the Nixon Court that accepted the 1960s but on more conservative terms?
Four Justices of the Supreme Court -- Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito, swallowed the radical Republican strategy hook, line, and sinker. Having decided that the individual mandate and the Medicaid expansion were unconstitutional, they sought to leverage that conclusion to strike down the entire law, including features that had nothing to do with the individual mandate or the Medicaid expansion.
Chief Justice Roberts thought this a bridge too far. He joined with the four liberals to uphold the Affordable Care Act, thus placing the Supreme Court's stamp of approval on the most important piece of social welfare legislation since the 1960s. But he extracted a price for this legitimation.
Roberts held that the individual mandate could not be justified by Congress's power to regulate interstate commerce. If it was constitutional, it was only as a tax, which gave people a choice to purchase health insurance or pay a small penalty. As I have argued [ http://www.pennumbra.com/debates/debate.php?did=23 ] for [ http://www.nejm.org/doi/full/10.1056/NEJMp1000087 ] many [ http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/january_2011/obamacare.cfm ] years [ http://www.theatlantic.com/politics/archive/2012/05/the-health-care-mandate-is-clearly-a-tax-0151-and-therefore-constitutional/256706/ ], this is, in fact, the correct interpretation of what the mandate does. Once this point is accepted, the argument for the mandate's constitutionality is straightforward, and Roberts quickly showed why this was true.
The crucial point, however, is that Roberts' reasoning captures the dual nature of judicial legitimation. He has said to Congress: "You may compel people to enter into commercial transactions like the insurance mandate, but you may not do so as a direct order under the commerce power. Instead, you must do it through the taxing power, always giving people the choice to pay a tax instead. And as long as you structure the mandate as a tax, the people's rights are protected because they always have the right to throw their elected representatives out of office if they don't like the tax." Roberts' opinion thus harks back to a basic source of legitimacy enshrined in the American Revolution: "No taxation without representation." The converse of this proposition, Roberts tells us, is that if you have been represented, and if you can punish your representatives for passing new taxes, your rights have been respected. This logic accepts the new social contract but redefines it in a way more palatable to conservatives.
Roberts then turned to the Medicaid extension. He argued that Congress may create new social programs that expand protection for the poor. But Congress may not tell states that they must accept the new programs or else lose all federal contributions to existing social programs of long standing. The federal government may, if it wants, totally fund the Medicaid extension out of its own pocket without any help from the states. It may abolish the old version of Medicaid and create a new version in its place identical to the expanded version. What it may not do, Roberts argued, is to leverage States' dependence on federal money in established social welfare programs to compel States to participate in new social welfare programs. There are various problems with this solution, which I have discussed elsewhere [ http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2012/_supreme_court_year_in_review/supreme_court_year_in_review_it_was_always_about_the_tax_.html ] and will not repeat here. But the important point is that, here again, Roberts is both legitimating and redefining the new social contract in a more conservative way.
Some have called Roberts' opinion statesmanlike, putting aside personal ideology to apply the law. Others have called it clever, handing conservatives an ideological victory while giving Democrats a policy result they like. My own view is that the Court as a whole performed the traditional function of federal judges in our constitutional system. The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward.
What does the decision mean in terms of constitutional doctrine? Much will depend on who wins the next several presidential elections. If the Republicans dominate American politics in the decades to come, Roberts' opinion will seem much more conservative than it does now, precisely because Roberts will be assisted by a series of new conservative Supreme Court appointments. They will remake the Constitution in their own image. If the Democrats continue to hold the presidency, the Supreme Court may regain a liberal majority for the first time since the late 1960s, and the Constitution will look appreciably different. But whoever wins, health care reform is here to stay. The social contract in America has forever changed. That is the lasting legacy of President Obama's efforts, and the lasting legacy of the Supreme Court's decision.
Copyright © 2012 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2012/06/the-court-affirms-our-social-contract/259186/ [with comments]
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Here's a Map of the Countries That Provide Universal Health Care (America's Still Not on It)
The U.S. stands almost entirely alone among developed nations that lack universal health care.
Jun 28 2012
http://www.theatlantic.com/international/archive/2012/06/heres-a-map-of-the-countries-that-provide-universal-health-care-americas-still-not-on-it/259153/ [with comments]
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Consumer 12.0: When ideology eclipsed health-care problem-solving
Jeff Gelles, Inquirer Business Columnist
Posted: Sat, Jun. 30, 2012, 5:07 PM
From the day in 2010 that President Obama signed the Patient Protection and Affordable Care Act, a legal fever gripped much of the country. Was the "individual mandate" — the requirement to buy insurance if you weren't already covered, a key pillar of the law — constitutional? Would a Supreme Court dominated by Republican appointees toss it out, no matter what?
You know how that fever finally broke. In a 5-4 decision that surprised both sides, Chief Justice John Roberts ditched his fellow conservatives to conclude that Congress and the President acted within their authority, not under the Commerce Clause, but because the penalty for violating the mandate was permissible as a tax. Within hours, the body politic was gripped again, this time with a fever bound to last till Election Day — or well beyond — over a role Roberts disowned: weighing the law's "wisdom or fairness."
It's sometimes hard to remember amid all the spin, but that's what lies beyond: real questions from people with genuine concerns about their health, their finances, and, yes, their taxes — and, for many, in a country that values individualism, concerns about the fairness of any program that offers government support to anyone else.
If it survives the feverish debate ahead, the law almost everybody now calls Obamacare will change key elements of our health-care system. In a moment, I'll tell you about five sets of people who stand to benefit from the law, and how we all may benefit if their access to health care improves. But first, a comment about the strange moment we're in, when politics and ideology seem have totally eclipsed problem-solving.
Roberts may have done so briefly, and to the country's benefit, but on this topic, it's nearly impossible to straddle the partisan divide. So I'll just come clean. Like the Democrats in Congress who ultimately passed Obamacare without a single GOP vote, I've long believed our health-care system was broken and needed fixing. Sadly, I seem to have believed so more urgently than Republicans who'd voiced similar concerns in response, say, to Census Bureau data showing 45 million people uninsured even before the Great Recession, or stories of sick people denied lifesaving treatment, or of families bankrupted by costly care.
Our long economic slump has only widened the ideological chasm — a divide reflected in a June blog post by libertarian economist Tyler Cowen [ http://marginalrevolution.com/marginalrevolution/2012/06/what-kind-of-mandate-should-the-right-have-supported.html ], who argued for the rejection of what he calls "health-care egalitarianism" and wrote: "We need to accept the principle that sometimes poor people will die just because they are poor."
Give Cowen credit. He's a clearheaded advocate for his viewpoint and was gamely trying to address a question raised by many who disagree: Since the individual mandate was born as a Republican idea, what kind of mandate — what kind of market intervention — could he stomach?
It's hard to dispute what followed Cowen's remark about death and the poor: "Some of you don't like the sound of that," he wrote, "but we already let the wealthy enjoy all sorts of other goods — most importantly status — which lengthen their lives and which the poor enjoy to a much lesser degree."
Of course, some of us consider that more a bug than a feature — especially in a society with growing disparities in income and wealth and a class of increasingly powerful plutocrats.
But Cowen is fighting a straw party. Obamacare won't deliver "health care egalitarianism" — far from it. Nothing will stop the well-off from buying more or better care, as they do now through services such as "concierge medicine." Nearly half the 33 million people it promises to add to the insurance roles would get there via Medicaid, the safety-net insurance system for the poor — including those who get there after exhausting all their resources in nursing homes.
Roberts' ruling — siding this time with the court's four other conservatives — threw a monkey wrench into that plan, by allowing states to opt out of the Medicaid expansion. But for now, the rest of the law survives. Here are five groups whose lives stand to change as a result:
• Families with ailing children. You may have heard that the law already bars insurers from refusing to cover children with preexisting conditions, as it will for adults in 2014. Maybe you even have such a child, and are unconcerned because you have good group coverage. But consider this: Even if your child is safely protected now by your plan, the new rules will also offer security as he or she grows up. No longer will a parent's career advice have to start with, "Above all, choose a career at a large employer that offers health insurance.
• Women and their families. The law aims to improve health by requiring new plans to offer a range of preventive services without co-pays or other cost-sharing, and both women and children will be particular beneficiaries. Kaiser Family Foundation says the services will include childhood immunizations and screenings for diseases and developmental disorders. As adults, women will be eligible for services such as annual well-patient visits, breast-feeding support, and screening for domestic violence.
• Entrepreneurs. Finding affordable insurance has always been problematic for the self-employed and people at start-ups. Sometimes, it's the tail wagging the dog, a factor that keeps people clinging to ill-fitting jobs, or discourages them from taking entrepreneurial risks, because someone in the family needs the protection of group insurance. It's tough to measure, but once the exchanges are running in 2014, similar coverage will be available to everybody, with subsidies for people earning up to four times the federal poverty level — support akin to the tax-deductibility of employer-sponsored plans.
• Young adults. You may know that Obamacare enables children to stay on family policies until age 26, and that some states, such as Pennsylvania, authorize extended coverage even further in certain circumstances. The new rules have helped millions of young adults in the economic slump.
• Insurance customers. Yes, that's all of us who don't have Medicare, veterans' coverage, or another government plan. The new law already requires large-group insurers to spend at least 85 percent of premiums on medical care, and those serving the individual and small-group market to spend at least 80 percent. As of last month, 12.8 million Americans, including 576,000 in Pennsylvania, were due to get $1.1 billion in rebates averaging $151 per family.
There's a price for all this. The Congressional Budget Office puts the net expense at $110 billion in 2015. And the numbers are wrapped up in the larger necessity — partly addressed by innovations built into Obamacare — of having to “bend the cost curve" for medical care.
But doesn't a humane society have value, too?
© 2012 Philadelphia Media Network Inc.
http://www.philly.com/philly/health/20120701_Consumer_12_0__When_ideology_eclipsed_health-care_problem-solving.html?cmpid=138896554 [with comments]
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Greensburg, KS - 5/4/07
"Eternal vigilance is the price of Liberty."
from John Philpot Curran, Speech
upon the Right of Election, 1790
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