F6 on reading "But there’s another explanation for the botched prediction:" there was an instant notion .. well, maybe just because they didn't consider the possibility of the conservative side of the bench being too stuck in their ideological conservatism to be able to fulfill their constitutional responsibility responsibly .. yup .. yours confirms the thought .. thank you ..
Aside: is there anyone else out there who never knew/can't recall exactly what the 'Cornhusker Kickback' was?
Nebraska Compromise
The Nebraska Compromise or Cornhusker Kickback refers to a deal made in December 2009 by United States Senate Majority Leader Harry Reid to Nebraska’s Democratic Senator Ben Nelson, allegedly in order to secure his vote as the last Democratic hold-out for the Patient Protection and Affordable Care Act and provide the Democrats with the required 60 votes needed to overcome a Republican filibuster. Concessions that were said to have been granted included a provision allowing states to restrict funding for abortions under certain circumstances, as well as a provision giving Nebraska 100 percent federal funding of the Medicaid expansion indefinitely into the future.
Ben Nelson had earlier threatened to filibuster with Republicans when language he proposed to restrict federal funding of abortion was not added to the Bill.
Senator Kent Conrad of North Dakota, a Democrat, said that the deal was not unusual, and that states often received individualized treatment based on the priorities of their representatives. Three months prior to the Nebraska Compromise, Reid secured within the health care bill 100 percent funding for Medicaid in Nevada.
Eventually, a later version of the bill gave all states 100 percent funding for the first three years of the Medicaid expansion, with the exception of the above provision made for Nebraska. For all other states the costs would be about 15 cents on every $1 they receive from the federal government.
The Health Care and Education Reconciliation Act of 2010 repealed and removed the deal. Nelson voted against the reconciliation bill, however it was able to pass without his vote since reconciliation bills cannot be filibustered.
My sense is the two longer bold bits above [mine] are not given much media attention, as all i read about is possible financial problems for the states over an increased Medicaid bill, without the financial help the states get in the ACA being mentioned.
I miss a lot of what you guys get, of course, so that thought could be off-the-mark.
Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.
Let’s start with the already famous exchange in which Justice Antonin Scalia [ http://topics.nytimes.com/top/reference/timestopics/people/s/antonin_scalia/index.html ] compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.
Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.
Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional? It’s hard to see why — and it’s not just those of us without legal training who find the distinction strange. Here’s what Charles Fried — who was Ronald Reagan’s solicitor general — said [(linked in) the post to which this is a reply] in a recent interview with The Washington Post: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them.”
Indeed, conservatives used to like the idea of required purchases as an alternative to taxes, which is why the idea for the mandate originally came not from liberals but from the ultra-conservative Heritage Foundation. (By the way, another pet conservative project — private accounts to replace Social Security [ http://topics.nytimes.com/top/reference/timestopics/subjects/s/social_security_us/index.html ] — relies on, yes, mandatory contributions from individuals.)
So has there been a real change in legal thinking here? Mr. Fried thinks that it’s just politics — and other discussions in the hearings strongly support that perception.
I was struck, in particular, by the argument over whether requiring that state governments participate in an expansion of Medicaid — an expansion, by the way, for which they would foot only a small fraction of the bill — constituted unacceptable “coercion.” One would have thought that this claim was self-evidently absurd. After all, states are free to opt out of Medicaid if they choose; Medicaid’s “coercive” power comes only from the fact that the federal government provides aid to states that are willing to follow the program’s guidelines. If you offer to give me a lot of money, but only if I perform certain tasks, is that servitude?
Yet several of the conservative justices seemed to defend the proposition that a federally funded expansion of a program in which states choose to participate because they receive federal aid represents an abuse of power, merely because states have become dependent on that aid. Justice Sonia Sotomayor seemed boggled by this claim: “We’re going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.” And she was right: It’s a claim that makes no sense — not unless your goal is to kill health reform using any argument at hand.
As I said, we don’t know how this will go. But it’s hard not to feel a sense of foreboding — and to worry that the nation’s already badly damaged faith in the Supreme Court’s ability to stand above politics is about to take another severe hit.
Impeach the Supreme Court Justices If They Overturn Health-Care Law
If the Supreme Court Justices dump the Affordable Care Act, writes David Dow, we should dump them. Tim Sloan, AFP / Getty Images
The Roberts Court’s rulings appear to be a concerted effort to send us back to the Gilded Age. If they dump the Affordable Care Act, writes David Dow, we should dump them.
You think the idea is laughable? Thomas Jefferson disagreed with you.
Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Salmon Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.
During that period—which ran from the years after of the Civil War to the start of the 20th century—wealth became highly concentrated and corporations came to dominate American business.
At the close of the Gilded Age, the U.S. infant mortality rate was around 10 percent—a number you find today in impoverished Central African nations. In some cities, it exceeded 30 percent. Women could not vote, and their lives were controlled by men. Blacks lived apart from whites and comprised an economic, social, and political underclass. Corporations exerted an unchecked and deleterious influence on the lives of workers.
All these ills were ultimately addressed by the federal government, but the strongest and most sustained resistance to fixing them came from the court. One exception was the great Justice Oliver Wendell Holmes, who argued that where economic regulations are at stake, judges must respect legislative decisions aimed at protecting society’s most vulnerable members. Our Constitution, Holmes famously wrote [ http://www.pbs.org/wnet/supremecourt/capitalism/history2.html ], does not enact social Darwinism. If the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch.
That idea doesn’t appear to hold much water with the current court. Justice Clarence Thomas, in particular, has a well-known affinity for the values of the Gilded Age. But he has quietly gone from being an outlier to being only one of five consistently regressive votes.
The pattern began with the court’s 2007 decision in Gonzales v. Carhart, a case involving a rarely used, late-term abortion procedure. In holding that the government can prohibit abortion even where a woman’s life or health is at risk, the court overturned a decision that was not yet 10 years old.
To justify the ruling, Justice Anthony Kennedy—an ostensibly staunch believer in individual liberty [ http://www.nytimes.com/2012/03/30/us/justice-anthony-m-kennedy-may-be-key-to-health-law-ruling.html ]—explained that some women who might otherwise undergo it would come to regret their decision. Ah, fickle women! Since Roe v. Wade the abortion debate has always involved male-dominated legislatures enacting laws telling women what they can and cannot do. The Roberts Court, it seems, is similarly not averse to helping protect women from themselves.
Also in 2007, the court ruled that a Seattle school district’s plan to achieve racial balance in its public schools was unconstitutional. Reasonable people can of course disagree about whether using race to arrive at a diverse student body is good policy or bad. But there is an unquestionable moral distinction between using race to encourage racial integration versus using race to keep the blacks away.
The latter is, of course, what the court allowed in 1896, when it upheld the so-called “separate but equal” doctrine in Plessy v. Ferguson. Justice Harlan famously dissented in Plessy, insisting that the Constitution is colorblind. In a perverse rhetorical move, Chief Justice John Roberts, writing for the court in the Seattle case, suggested that Harlan's phrase applies equally where the government is trying to promote the blending of the races rather than maintaining their separation.
And then came Citizens United, in which the court struck down a popularly supported, bipartisan effort to place limits on the ability of the wealthy to dominate political discourse. Income inequality is a fact of life in a capitalist system. But when it comes to choosing our elected representatives, the people are supposed to stand on equal footing. Your right to control your destiny by electing people who share your visions and values is not supposed to depend on the fatness of your wallet. But now, thanks to five justices, it does. In ruling that corporations have a First Amendment right that precludes Congress from regulating how much money they can spend to support political candidates or causes, the court propped up a regime where the voices of the wealthy drown out all the rest.
Each of these cases was decided by a 5-4 vote, along predictable and ideological lines. Each overturned comparatively recent precedent. Each paid obeisance to a 19th-century norm. And while any individual ruling can always be justified or explained away, a larger truth emerges ineluctably from the whole. A decision overturning the Affordable Care Act will fit snugly into this narrative.
First, Congress’s authority in passing the law rests on an elementary syllogism: You don't have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do). That logic is obviously satisfied in the health-care context. You are going to use medical care, so the government can make you buy insurance in order to make sure you can pay for it. Liberty, like every other human and constitutional right, is not absolute. Under some circumstances, it can be regulated.
Which leads to the second point: critics of the health-care law say the only reason the rest of us have to pay for medical services used by people who have no money is that laws require hospitals to treat people who come in for emergencies regardless of their ability to pay. In other words, the critics say, the only reason there is a social cost—the only reason the syllogism works—is because of the underlying laws requiring hospitals to treat the poor.
Unlike silly examples involving broccoli and cell phones, that so-called “bootstrap” argument is sound. But here the critics drop their ideological mask as surely as the court dropped it in the Gonzales ruling. Their argument can be restated thusly: if you repeal laws requiring hospitals to treat the poor, you eliminate the constitutional basis for mandatory insurance coverage.
You don’t have to pull the analytical thread of that reasoning very hard to see that it boils down to an argument for allowing the poor to die. And if the Supreme Court strikes down the health-care law, that is exactly the ideology it will have to embrace. It will be saying that Congress cannot guarantee medical coverage for the poor and then implement a system to pay for it. In other words, the only people entitled to health care are the people who can afford it.
The last time the court went down this path, saner heads prevailed. Oliver Wendell Holmes’s view was historically and constitutionally correct, and the court finally acknowledged this in a pivotal 1937 case, West Coast Hotel v. Parish. In West Coast Hotel, the court ruled that the Constitution safeguards not just individual liberty but community interests as well; and in matters of economics, it is the legislature’s job to strike the appropriate balance between those two. If the Roberts Court overturns the Affordable Care Act, it will be mimicking the discredited court of 1935.
We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
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