The Put-Up-or-Shut-Up Gambit

It was a small item everyone missed because the big news of the day was about the government shutdown being averted for the third time this year, by sheer dumb luck. Ah, FEMA had enough money for the week, which was the end of the current October to September fiscal year, so Congress didn’t have to have a food fight over immediate funding of emergency disaster relief, and whether funding for that had to be offset by shutting down other parts of the government. There was nothing to fight over. Everyone went home. And yes, the fights over the next year’s budget will be far worse. Urged on by their Tea Party wing, the Republicans will no doubt again repeatedly threaten to shut down the government and pay for nothing but the military and investigations of Planned Parenthood, unless they get their way. But it’s what they do. They want us to admire them for it.

But most everyone has tuned out. That’s how government works these days, entirely by means of self-righteous blackmail, which never quite works but always assures gridlock. Fine – those in control of the House say they were elected to dismantle as much of the federal government as possible. Yeah, yeah – we get it. But we don’t have to pay attention. When the political system has become completely dysfunctional it ceases to be very interesting. Sure, you can stare at the broken microwave in the lunchroom, pretending there’s something to think about it just sitting there, but your frozen prepackaged lunch is going to stay frozen. The microwave is broken. Go out and get some Chinese.

What was interesting was that small item from Monday, September 26:

The Justice Department announced on Monday that it would not ask the full Court of Appeals for the 11th Circuit to reconsider a three-judge panel’s ruling against the 2010 health care law. That presumably leaves the government to appeal its loss directly to the Supreme Court, although Tracy Schmaler, a Justice Department spokeswoman, declined to comment on the next steps. The Supreme Court has already received one of the multitudes of federal cases challenging the constitutionality of the law’s individual insurance mandate. It arrived in July from the Court of Appeals for the Sixth Circuit, in Cincinnati, which upheld that provision on a 2-to-1 ruling. A month later, the Court of Appeals for the 11th Circuit, in Atlanta, ruled 2 to 1 against the mandate.

It seems that the Obama administration is tired of rulings this way and that on the matter – fodder for the news cycle that resolves nothing – and wants the matter settled.

In a strange decision the 11th Circuit Court of Appeals had ruled against the Affordable Care Act – rejecting the individual mandate provision, but saying the rest of it was fine and dandy. The Obama administration of course said it would appeal the decision – that’s what they do. But this time how they appealed the thing is odd. There was the option of asking the full Circuit to hear the case, which would have delayed consideration of the case at the Supreme Court. But the Justice Department decided to skip that option and will take the appeal directly to the Supremes (the ones without Diana Ross). And that means that the Supreme Court will deliver a major ruling next summer, right in the middle of the presidential campaign.

As for the strange Circuit Court of Appeals decision see this from Steve Benen:

The legal argument in support of the Affordable Care Act – specifically the individual mandate that ran into trouble at the 11th Circuit – has always been straightforward: the Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. Ergo, the ACA fits comfortably within the confines of the Commerce Clause.

But the court didn’t see it that way:

The individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. …

The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce.

The emphasis in the original and Benen argues back:

The reasoning is all wrong. Is the mandate “wholly novel”? That’s certainly open to some debate. The notion of government-mandated purchases is hardly foreign – existing federal laws require millions of homeowners, for example, to purchase flood insurance. Nuclear power plants have to purchase liability insurance, whether they want to or not. The Civil Rights Act mandated businesses engage in commercial activity that owners found objectionable. George Washington signed a law requiring much of the country to purchase firearms and ammunition. John Adams and Thomas Jefferson even supported legislation that required private citizens to pay into a public health-care system, and included a “regulation against a form of inactivity.”

Does the rationale behind the mandate point to “potentially unbounded” state power? That’s not even a legal argument – courts can’t strike down provisions within laws because they’re afraid it might lead to other, imaginary laws they may not like in the future.

And as for the notion of compelling people “to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives” – Benen is not impressed:

Most of this is needlessly melodramatic; it ignores the fact that subsidies will offset the “expensive” insurance; and continues to draw political conclusions rather than legal ones.

And abstaining from buying the product does have a cumulative effect:

Yes, there may be folks who don’t want to buy insurance, and they would be penalized under the law. But under our system, those folks still get sick, still go to the hospital with medical emergencies, and – here’s the kicker – still get care. As you may have noticed, for quite a while, it’s been one of the right’s favorite arguments: the uninsured can always just go the emergency room and receive treatment, whether they have insurance or not.

Of course, when the uninsured get this care, and can’t pay for it, the costs are passed on to the rest of us – it makes the entire system more expensive, with hospitals and medical professionals providing care without compensation from the patient. The 11th Circuit suggests those who “abstain” from making a purchase aren’t affecting the commercial marketplace, but those who would choose not to get coverage have a significant impact on the larger health care system, which is precisely why the notion of a mandate enjoyed broad, bipartisan support up until late 2009. There was never any doubt as to its constitutionality.

And of course this also ignores sixty years of precedent – which is no small matter. And Benen notes that Sarah Kliff has this piece in the Washington Post on why the Obama folks decided to force the issue:

The Obama administration will definitely handle the case. Delaying a ruling until 2013 came with a big risk – a Republican administration could be in power, and arguing the case. It’s pretty hard to see a President Rick Perry or Mitt Romney asking his attorney general to defend the health reform law given that both have pledged to overturn the legislation. …

The review might not have been granted – or gone against the administration. Even if the United States had asked the 11th Circuit Court of Appeals to hear the case, the court didn’t have to accept…. And even if it did, that wouldn’t necessarily be good news for the Obama administration. …

The move shows confidence. Asking for review of the 11th Circuit decision would have been widely interpreted as foot-dragging, the administration attempting to slow a case that’s almost inevitably headed to the Supreme Court. For the White House to proactively pursue a faster timeline makes the administration look more confident that it will prevail in court.

And Benen adds this:

Common sense suggests the outcome at the Supreme Court is a no-brainer – of course the court majority will rule in favor of the law. If the justices stick to precedent, it won’t even be close. They’d have to take a truly radical approach to the law to conclude otherwise.

But since the Roberts Court is quite capable of radicalism, the Obama administration has to consider the possibility in a political context. And next summer, the president and his team will either be able to say, “See? Republicans are wrong, the law passes muster, and it’s time to finish implementation and bring health care access to 30 million people who don’t already have it,” or they’ll say, “See? The far-right takeover of the judiciary is standing between the American people and the services they need. Re-elect me to help put things right.”

Well, they did declare corporations are people and money is free speech. This should be interesting. The administration has simply cleared the path toward the Supreme Court as early as this spring and that means there could be a ruling by the end of June, just a few months before the election.

At least that’s how Slate’s Dahlia Lithwick sees it in this item rounding up who is guessing what as they all pretend they know what the Obama team is doing. And she states the problem clearly:

Right now the individual mandate has been upheld, by a 2-1 margin by the Sixth Circuit and struck down 2-1 at the 11th Circuit, while the Virginia lawsuit challenging the act was dismissed on procedural grounds at the Fourth Circuit. This split between the federal appeals courts almost demands that the high court agree to hear the case, as does the fact that it’s the Justice Department filing the appeal.

But why do this now. She cites this Politico item suggesting that the administration took a pass on an appeal before the full 11th Circuit because the chances of success with that larger panel were less than slim. And then the item quotes Randy Barnett, who has worked with plaintiffs in these cases – “The president and solicitor general deserve full credit for refusing to employ delaying tactics in this pressing constitutional controversy” – and then quotes former acting solicitor general Walter Dellinger, who has worked to defend the legislation – “This confirms what I had already concluded: That the government is confident that it’s going to prevail in the Supreme Court and would like to have a decision sooner rather than later.” So maybe this is a slam-dunk for the Obama folks – just choose the right forum at the right time.

But election law expert Rick Hasen also sees this as good politics:

If the Court strikes down the law, Obama makes more of an issue of a court out of control (think FDR) during the 2012 campaign… If the Court upholds the law, this takes some of the wind out of the argument likely to come from the Republican presidential nominee that the health care law is unconstitutional.

And there’s Peter Suderman:

If the mandate is upheld, Obama will claim constitutional victory, and argue that Republicans pursued a frivolous challenge in service of political gain. If not, he’ll presumably argue that the challenge itself represented a partisan attack by political foes who aren’t interested in fixing the health care system and that America’s court system has become hopelessly biased by an extremist conservative judiciary that’s in the thrall of the Republican party.

And Lithwick summarizes the Sarah Kliff conjecture this way:

It allows the Obama Justice Department to defend the statute, as opposed to the Romney Justice Department trying to explain next winter why they were for the mandate before they were against the mandate, and why it’s only constitutional sometimes.

But Lithwick has a different take on this:

Much of the analysis we’ve seen quietly assumes that the court will eventually hand down a blockbuster 5-4 ruling that perfectly tracks the political ideology of the various justices. Reuters’ James Vinci suggests it may all hinge on Chief Justice John Roberts and Anthony Kennedy. At a panel last weekend at William & Mary law school, court watchers – including Dellinger – mainly agreed that this would not be a close vote: The high court would find the law constitutional. I argued last winter that the fate of the law at the high court rests less on constitutional law than on the willingness of the court’s conservatives to stretch a good bit past their collective legal worldviews to strike down this law.

And that’s the problem here:

I remain unsure that there just are five justices at the high court eager to have the court itself become an election-year issue. I don’t think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point. And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about. Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom. But the long game at the court is measured in decades of slow doctrinal progress – as witnessed in the fight over handguns and the Second Amendment – and not in reviving the stalled federalism revolution just to score a point.

Lithwick seems to think having to rule on this, now, is too much trouble for the court:

That’s why I suspect that even if there are five justices who believe the individual mandate is unconstitutional, there probably aren’t five votes to decide that question in this instant.

And she notes others reminding us of something important – the court has all sorts of options to defer any sort of showdown with the president – so Lithwick sees it this way:

If the justices opt to consider the technical question raised at the Fourth Circuit – about who has legal standing to challenge the mandate in the first place – the court could dodge the constitutional question altogether until 2015, when the first penalties will be paid. It’s not so much a matter of the court having to decide whether to bring a gavel to a knife fight. It’s just that this isn’t really this court’s knife fight in the first place.

Well there you go. And here you have a new dynamic. The president has his new attitude. This is my jobs bill. It’s all paid for. It contains what you once said you wanted. Pass the damned bill now. What’s your problem? And so it is with the constitutionality of the Affordable Care Act, with its individual mandate – buy insurance or pay a fine. But no one gets a free ride, sticking the rest of us with their medical costs when they get sick or get hit by a truck. So, you guys say this is unconstitutional? Fine, let’s stop all the second-level bullshit back and forth in one circuit court after another and move it up to the Supreme Court, right now. No more impassioned speeches about death panels or whatever you think scares the crap out of people, no more ads from this political action committee or that, no more town hall meetings – let’s just let the nine folks in the black robes have the facts and settle the matter. You got a problem with that?

This is new, and the odd thing is that Obama may have found a way to do what he promised, to change how things work in Washington, although this is far from what he used to talk up – bipartisan compromise and patriotic reasonableness, and everyone just getting along in Happy-Happy Land. But that’s not how government works these days, although perhaps it once did. Now the government runs – if it runs at all – by means of self-righteous blackmail, which never quite works but always assures gridlock. And of course folks have tuned out – we don’t have to pay attention to this nonsense. When the political system has become completely dysfunctional it ceases to be very interesting. People yell a lot and call each other names, and point to the other guy for us.

But who cares? What outrages the right and all its flavors – from the corporate head earning millions and millions each hour to the social conservative evangelical values voter worried that there might be a gay man on his television – doesn’t outrage the left. They have their own demons. But all we get is the outrage. Seeing this politician or that pundit on television loudly proclaiming that they are outraged, really outraged – and this time more outraged than ever before – gets old real fast.

And here we have a way out. Pass the jobs bill or don’t. And quit pissing and moaning about the unconstitutionality of the individual mandate and all the rest – let’s take to court right now. Enough talk. We’ve heard your speeches. We know your positions. We see the flag pin on your lapel – fine, we get it. Now put up or shut up.

Now there’s a new way to run things in a democracy – put up or shut up. Could that work? We’ll see. But it might get Obama reelected. When folks have simply tuned out, and you see why they have, then you have an edge. You can come up with some good lines. Nice speech senator/congressman/governor/mayor – loved the outrage and the passion and all – but now what are you going to do? In these times what voter would cheer for that someone who keeps asking that question?

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, Obama and the Washington Establishment, Obama Stands Up to Republicans, Obama's Management Style and tagged , , , , , , , , . Bookmark the permalink.

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