Settled and Unsettled

Gerald Ford, the one president who was never elected to the office, when Richard Nixon was somewhere high over Kansas on his way to San Clemente out here, an hour or two after resigning rather than face impeachment and certain removal from office, told us that our long national nightmare was over. It wasn’t – there was still that hopeless war in Vietnam, and all the dead that entailed, and finally that last helicopter lifting off from the roof of what was left of our embassy in Saigon. But it was a nice thing to say. And Gerald Ford was a nice man, with nothing dark and nightmarish about him in the slightest. He smoked a pipe. He never said anything particularly odd and he didn’t seem brooding or angry or paranoid about anything at all. Frankly he was a bit boring – but that’s okay. After a long night of tossing and turning and demons and monsters and plots within plots, and dreams of falling forever in the dark, the flat morning sunshine and bowl of stale Cheerios is a relief. There would be other nightmares to follow, but this one awful nightmare was over, and as with all nightmares, you soon forget the details, and then remember none of it. Gerald Ford wisely kept it that way. Within six months, by executive order, he pardoned Richard Nixon of all crimes Nixon might or might not have committed. There would be no trial, or multiple trials. No one wants a massively unsettling nightmare to return. Nixon walked on the beach, and then he moved to New Jersey. It was over.

And here we are again. After two years of demonic talk about the Affordable Care Act, which passed in 2010 – after all the shouting and screaming and weeping at the 2009 town hall meetings, with all that talk of the Death Panels that would order the execution of harmless little granny, after all the talk of socialized medicine and the end of America, and how the Muslim-Atheist Kenyan usurper was out to ruin the nation as a form of reparation for slavery in the South in the nineteenth century or some such thing – after all the rest about how some people didn’t deserve access to healthcare as they were the morally inferior inherently lazy Takers and not the noble Makers – then that particular nightmare simply ended. The Republicans, who never had the votes to stop the Affordable Care Act in the first place, and certainly never had the votes to repeal it – every repeal vote passed overwhelmingly by the heavily Republican House died in the Democratic Senate, and would have been vetoed by the sitting Democratic president anyway – turned to the courts. State after state – the red ones – challenged the new law. Some district courts agreed with them, that it was unconstitutional, while others told them they were full of crap. So it had to go to the Supreme Court, packed with conservatives appointed by Bush and Bush, the same panel that had stopped the Florida recount cold and had declared the second Bush president, not Al Gore, who actually won the popular vote.

This was going to work. If the stupid American people hadn’t elected enough Republicans, and had also stupidly elected the wrong guy president in an election that wasn’t close enough to contest, at least they had the Supreme Court. Obama had only replaced two of the nine with his folks.

Yes, this certainly was going to work. All the pundits said so. Everyone said so. The oral arguments went well for them – Obama’s solicitor general had been pummeled by Scalia and their guys. Thursday, June 28 – that morning the court would finally issue its ruling – the individual mandate would be struck down. You can’t make people buy what they don’t want to buy. Maybe all of it would be struck down, and thus Obama would be humiliated. The nation would turn on him and he’d lose in the fall, and the people would vote to fill the House and Senate with so many Republicans that the Democrats might as will just fold up the tent and go home. It was in the bag.

And then it wasn’t. The Chief Justice, John Roberts, appointed by the second George Bush, who then-senator Obama had vigorously opposed, surprised everyone and channeled his inner Gerald Ford:

Led by a chief justice who some conservatives immediately branded a turncoat, the Supreme Court upheld most of President Obama’s healthcare law Thursday, resolving a high-stakes constitutional clash not seen in decades and handing Obama a victory that surprised many in Washington.

Chief Justice John G. Roberts Jr. and the four liberal justices joined to uphold the Democrats’ most ambitious social legislation in a generation.

The unpopular requirement that everyone buy health insurance or pay a penalty – likened by detractors to a rule that everyone purchase broccoli – was unconstitutional as a mandate, Roberts said, but valid as long as it was simply considered a tax.

“We do not consider whether the act embodies sound policies,” wrote Roberts, a conservative appointed to the court by President George W. Bush in 2005. “That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

That last part is the essence of it. In his confirmation hearings Roberts had said he’d be like an umpire calling balls and strikes – no more than that. They should have listened. He wasn’t there to endorse sound policies, or wipe out bad policies, or establish new policies. That’s not the court’s job. The court judges what’s legal, what’s constitutionally permissible – not what’s wise or foolish. He wasn’t going to do their dirty work, and this, the Affordable Care Act, was permissible. No one will ever know if Roberts thinks it’s wise. Don’t even bother asking.

It comes down to this:

Overall, the new law, which already is being phased in, will require insurers to offer coverage to all, even those who have serious diseases. And it will require those who can afford it to carry “minimum” coverage. Republican state officials sued to strike down the law before it could take full effect, arguing this insurance “mandate” amounted to an unprecedented and unconstitutional overreach by the Democrats.

The chief justice, defying many predictions, found a way to uphold the law in an opinion that steered something of a middle course.

On the one hand, Roberts agreed with the law’s conservative challengers who said Congress did not have the power to compel the purchase of a private product such as health insurance.

But in practice, the only penalty the law provides for not complying is an extra charge on income tax returns beginning in 2015 for those who choose not to have insurance coverage.

And that is constitutional, Roberts said.

“The federal government does not have the power to order people to buy health insurance,” he wrote in the majority opinion. “The federal government does have the power to impose a tax on those without health insurance.”

Consider it this way. If, like Gerald Ford, you smoke a pipe, you pay a hefty tax on each pack of pipe tobacco – but you don’t have to pay it if you don’t smoke. What’s the big deal here? This is a penalty paid by people who choose not to purchase insurance. The Congressional Budget Office estimates that this tax will apply to about four million Americans – maybe one percent of the population. No, no – not THAT One Percent. Yes, it’s still a tax, and no one should ever pay more taxes, as they say, but one of Andrew Sullivan’s readers puts it this way:

I do not understand why Democrats don’t embrace the newly defined “tax” saying: you bet we raised taxes, but not on the hard-working, responsible middle class. This is a tax on those deadbeats who don’t pay for their own insurance but still expect care when they show up at emergency rooms. It’s a tax, all right, and I think we should agree to raise it even higher so they have more of an incentive to buy their own damned insurance and leave the rest of us alone. Let the Republicans protect the rights of deadbeats; Democrats are fighting for people who play by the rules.

But on talk radio there was Michael Savage:

Let’s talk about [US Supreme Court Chief Justice John] Roberts. I’m going to tell you something that you’re not going to hear anywhere else – that you must pay attention to. It’s well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts’ writings you can see the cognitive disassociation in what he is saying.

Others disagree:

“This was an impressive feat of statesmanship by the chief justice,” said New York University law professor Richard Pildes. “Legal analysis, not politics, controlled the decision.”

“When the chips were down, Roberts did exactly what he promised to do under oath,” said Harvard law professor Noah Feldman. “He stayed the court’s hand and rejected activism.”

Your mileage may vary. John Boehner calls it a tax hike and Joe Walsh, among many other Republican congressmen, called it  “new tax on middle-class America” – and there’s Sarah Palin of course – and Mitt Romney just kept saying the same thing – “Obamacare raises taxes.”

But this is not a big tax hike to raise revenues. There is a difference between something being a tax and what Roberts was talking about – a penalty permissible under congress’ taxiing authority. Joan McCarter adds this:

And what’s (way, way) more, most of the federal spending for the ACA is in tax credits for middle-class people to help them afford insurance – which is actually more like a tax cut.

Facts aside, since you know Republicans won’t be swayed by them, here’s the other part that Republicans, particularly Romney, have to tread carefully around. It’s exactly how Mitt Romney expanded health insurance coverage in Massachusetts. If you don’t buy health insurance in Massachusetts, guess what? You pay a tax, as Mr. Romney explains at that link. You pay a tax and take personal responsibility. (Remember that phrase, Mr. Romney? It’s a real favorite in your set – or was.)

The individual mandate isn’t the route most of us on the left would have taken toward universal health coverage. But it’s the route settled on by pragmatic, moderate political leaders like Barack Obama. And Mitt Romney.

No one needs this nightmare bickering to continue and Jonathan Chait sees Roberts exiting his own nightmare:

Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.

Ezra Klein adds this:

The individual mandate, by bringing healthy people into the insurance market and lowering premiums, means health insurance for between 12.5 million and 24 million more Americans than if the mandate was struck down. And as Kennedy said in his dissent that the conservatives on the Court believed the entire law should have been invalidated, it means health insurance for 33 million more Americans than if Kennedy and the conservatives had their way.

The nightmare ends, with Josh Marshall adding this:

We may learn that President Obama sacrificed his presidency to push through this piece of legislation – the Dems already lost Congress over it. But presidencies are for doing important things not just for getting elected to second terms in office. And I strongly suspect that even if Mitt Romney wins and gets a Republican Congress, they still won’t be able to get rid of this law.

That counts. That matters.

Long ago, a young Senator Obama said this:

I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting. The bottom line is this: I will be voting against John Roberts’ nomination.

Oops. Send an apology. And see Andrew Sullivan:

For millions of people, this will mean one thing. They will have an opportunity to purchase healthcare that would otherwise be denied them because of a pre-existing condition or simply lack of means to buy it. This has been done through the private health insurance sector along lines many Republicans were proud of until very recently. And this is a good thing.

The fact that there is no constitutional issue in doing this federally, as opposed to by the states, also removes Mitt Romney’s only argument in defense of his own almost identical law in Massachusetts. And so the GOP candidate will be running against his own record in his own state on no rational grounds whatever – and against a Chief Justice appointed by George W. Bush.

But that matters less to me than that someone in America who once had to suffer in silence may now get some help to tackle her health issues. For me, that’s a moral principle. Much more needs to be done, specifically in restraining healthcare costs and reforming Medicare. But the core beginning of this process will be getting everyone in the same boat. That now seems unstoppable. So Obama’s first term remains historic. And his re-election to cement this change essential.

But in the New Republic, Nate Cohn says not so fast, Andrew:

If the Court had gone a different direction, the electoral consequences could have been more significant. But since the ruling preserves the status quo, the fundamentals of the health care debate remain essentially unaltered. Dissatisfaction with the health care law is already priced into the President’s approval ratings – Obama’s pursuit of health care reform was a defining element of his first term, and voters have already judged him on that basis. Opposition to the health care law was never driven by arcane constitutional concerns, even if many viewed it as government overreach.

And Nate Silver jumps in:

Be wary of whatever the polls say for the next week or two – the short-term reaction to the news of the ruling may not match its long-term political effects. As before, the presidential election is mostly likely to be contested mainly on economic grounds. Next week’s jobs report is likely to have a larger effect on the election than what the Supreme Court ruled on Thursday.

But here’s an array of Tweets from angry conservatives who say they will now move to Canada – because it’s so all socialism down here now. Irony is fun, and from Politico:

In a closed door House GOP meeting Thursday, Indiana congressman and gubernatorial candidate Mike Pence likened the Supreme Court’s ruling upholding the Democratic health care law to the Sept. 11 terrorist attacks, according to several sources present.

Someone wants the nightmare to continue. Everything is always a nightmare, as noted by John Cole:

One helps provide millions of Americans gain access to health insurance, works to lower costs of health care, and does innumerable good things, but a black President might get credit for some of that. The other had 3k Americans killed in a terrorist attack. SAME DIFFERENCE!

Pence apologized. He was just upset. But also in Politico see Blog Chatter: Impeach Roberts – something must be done. Glenn Beck is now selling John Roberts “Coward!” t-shirts, and there’s this:

Responding to Thursday’s Supreme Court decision upholding the constitutionality of the Affordable Care Act, Congressional Republicans have scheduled a vote in the House to repeal the law and Mitt Romney pledged to undo the measure if he’s elected president in November. But unless the GOP wins a super majority in the Senate – a scenario no one thinks is plausible – it can do little more than weaken Obamacare’s regulations and defund some of its provisions.

That opens Igor Volsky’s detailed discussion of the structural and legal reasons Romney just couldn’t do that. As president he wouldn’t be a CEO – government is different. But there’s this:

A Lansing-based civil rights attorney, who has held positions with the Michigan Republican Party and Department of Corrections, questioned in a widely distributed email today whether armed rebellion was justified over the Supreme Court ruling upholding Obamacare.

Matthew Davis sent the email moments after the Supreme Court ruling to numerous new media outlets and limited government activists with the headline: “Is Armed Rebellion Now Justified?”

It seems our long national nightmare isn’t over after all. From Wonkette:

If you have an Obama sticker on your car, you maybe want to avoid the local Wal-Mart or Bob Evans parking lots for a few days. Clearly, this health care thing has angered up the rustics something fierce.

And the rest of the world is puzzled:

As the news spread that the U.S. Supreme Court had upheld the law and its requirement that most people buy health insurance, some people across Europe took to Twitter to ask: What’s the big deal?

“Dear Americans. Health insurance is very important for your health and life. Don’t forget. We have it in Germany,” one Twitter user from Germany wrote, adding a smiley face to the end.

Rafael Dohms, a computer engineer living in the Netherlands, wrote, “I’m forced to pay health insurance here in the [Netherlands] … not as bad as I would have imagined.”

And Parisian filmmaker Vincent Galiano joked, “At least USA becomes a modern nation! Soon even the education could be good!”

And there’s this:

Canadians also found the furor confounding. “Why do Americans have to be dragged kicking and screaming into a policy choice that the rest of the civilized world decided long ago was a cornerstone of a humane society?”

Wait! All our angry conservatives are coming your way!

They’ll be disappointed, as in the National Post up there there’s this from Jonathan Kay:

Canadians lament that they have few national myths. But as the health-care debate shows, an absence of myths makes policy-making easier. In the United States, where the Founding Fathers are treated as secular saints, where many “originalist” judges are trapped in a 1789-era reading of the Constitution, and where conservatives such as Ron Paul still imagine a country of frontier yeomen who can get their health care from neighbors and local well-wishers, Obamacare became a proxy for a larger and more vexing question: Can Americans still afford to entertain 18th-century political reveries when 50-million of their countrymen lack health insurance in the world of 2012?

And the kicker is this comment from Jeffrey Luscombe – “I’m just a simple Canadian so maybe someone could explain why it is that some Americans don’t like healthcare?”

We prefer nightmares. That’s the other part of the ruling:

One part of the law would greatly expand Medicaid to cover an additional 17 million low-income people. Although Washington would pay nearly all the extra cost, states ultimately would pay a small portion of the bill.

Roberts said the required expansion of Medicaid would violate the rights of states by threatening them with the loss of all their Medicaid money if they refused.

“The states are given no choice in this case,” Roberts wrote, likening the requirement to “a gun to the head.”

Instead, Roberts wrote, states must be given the right to opt out of expanded coverage. That raises the likelihood of a wide gap in coverage between states with Democratic majorities, which are already eager to cover more residents under Medicaid, and conservative states, which are likely to say no, even if it means turning down large amounts of federal money. Already on Thursday, some Republican governors were saying they would opt out.

Kevin Drum discusses this:

Southern states, the very ones whose residents would gain the most from the new Medicaid provisions, are the most likely to opt out. The question is how long will this last?

He thinks they won’t hold out all that long, for these reasons:

Federal funding is 100 percent for the first three years. That’s going to be hard to resist.

That 100-percent funding runs through 2016. Right now emotions are running high, but if Obama is reelected and it becomes obvious that Obamacare is here to stay, things will probably cool down. By 2014 or 2015, as the specter of jackbooted federal tyranny recedes, wiser heads may prevail.

There’s going to be a lot of pressure from various interest groups to accept the funding. That includes pressure from within government agencies as well as from outside groups. After all, state and local governments are already on the hook for indigent healthcare, and that includes caring for those who fall in between the current Medicaid cutoff and ACA’s new one (roughly speaking, those who are between 50% and 133% of the poverty line). Even the stingy states may discover that they’re already spending enough money on that group that they’d be better off simply enrolling them all in Medicaid and paying their small share of the new benefits instead.

So this may work out:

For now, I wouldn’t pay too much attention to whatever crowd-pleasing bluster we start hearing from (primarily) Southern governors. It’s election season, after all. Instead, wait until next year. If Romney wins, it’s probably moot. If Obama wins, expect opposition to the new rules to cool down over time. By the time Obamacare kicks in in 2014, the blusterers may be having second thoughts.

But that’s a long nightmare. It’s not over. You trade one nightmare for the next.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in Affordable Care Act of 2010, Constitutional Law, Constitutionality of Obamacare, Individual Mandate, John Roberts, Supreme Court, Supreme Court Rules Affordable Care Act Constitutional and tagged , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

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