The Day After

“It is not our job to protect the people from the consequences of their political choices.” – Chief Justice Roberts

Yesterday was one of the most important days in American political history. Over a million people tuned into SCOTUSblog to find out what was happening. I read more and posted more in comments sections and on Twitter than I ever have.

Let’s be clear: I think Obamacare is a bad bill. What few cost controls it attempts are ineffective and misguided. It massively expands the horrible Medicaid system. It will blow up the deficit. It does nothing to increase competition or consumer involvement. Its model — Romneycare — has controlled insurance prices and increased coverage. But that has come with an exploding state budget and increasingly ham-fisted efforts to clamp down on costs.

But the ultimate impact of yesterday’s decision may be different than what we think. Allahpundit has a roundup of some of the more interesting commentary, including must-reads from Orin Kerr, George Will and Ezra Klein. The gist is that while we may have lost the battle, we may also have put ourselves on track for winning the war. The Decision does several critical things:

  • It set limits on the use of the Commerce Clause, which has long been the duck blind for liberal activism. This is now Constitutional law.
  • In doing so, it reverted Obamacare to a tax, which means it can be repealed with 51 votes (same as when it was passed). And yes, the bill did originate in the House, technically.
  • It set the first limits in American history on the ability of the Federal government to use its spending power against the states. This limit was upheld by two of the liberal justices.
  • It reaffirmed the idea of judicial restraint. Roberts’ opinion goes to great lengths on this, reaffirming the idea that if there are multiple interpretations of a statute, the Court should go with the one that complies with the Constitution. This is the kind of judicial restraint we’ve wanted for decades.
  • It did all this without appearing to be a partisan decision.
  • Think about what happens if the GOP wins the election and actually — and this is by no means a certainty — repeals or massively repairs Obamacare. The Left will lose Obama’s signature achievement and the only legacy will be a firm precedent set for restraining the power of the federal government. This possibility is almost enough to make me consider voting for Romney, something I was incredibly dubious about just 24 hours ago.

    We shouldn’t be rending garments. We should be seeing this as the long game — the slow move toward a more restrained federal government. In the long run, National Federation of Independent Business v. Sebelius — actually, let’s just call it Sebelius so that she will always be tied to this — may turn out to be one of the most important conservative decisions in history. But it’s up to us to take advantage of the opportunity.

    Comments are closed.

    1. sahrab

      One of the biggest outcomes from Justice Roberts ruling is it puts the onus back on the republic. He either said, or inferred (theres so much commentary the last 2 days i cant keep it straight) that Elections have results, and Obamacare as it was enacted is the result of the election.

      If the people dont like it, then it is up to them to elect representitives that represent them in the Government to resolve it.

      As much as i dislike the ruling, Justice Roberts put it on us to fix it.

      Thumb up 5

    2. salinger

      What I find interesting about this debate is that when asked about the various components of the bill individually everyone seems to be for them (except the mandate).

      When hard pressed to explain what a Republican reform would look like right wingers say that they would keep the provisions that let kids stay on their parents insurance longer – make sure people can’t be turned down for preexisting medical conditions, allow state insurance pools etc. etc. – pretty much vowing to keep everything already rolled out in Obamacare – just taking away the part that is ostensibly going to pay for it. (kind of like their prescription drug bill).

      I would be grateful for a more compelling argument than the soundbite scare tactics being spouted. This will limit choice! (okay how?) – this will limit care! (okay how?) this will increase the deficit (Okay how – because the CBO says otherwise). It seems to me that every time one of these talking heads is pressed for more details beyond the talking point they just bluster.

      I’d love to see the right’s arguments succinctly put without being peppered with insults.

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    3. Hal_10000 *

      What I find interesting about this debate is that when asked about the various components of the bill individually everyone seems to be for them (except the mandate).

      I’m not convinced by this argument. The bill doesn’t work without the mandate. Breaking it down by component is a bit dubious because you have to take the entire package, not just the part you like. That’s like saying Big Government is really popular … except for the taxes. If I offered to give you a $10000, a new car and a big house and the only price would be that I cut off your head, you’d turn it down even though three of the four components of that proposal were awesome.

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    4. salinger

      I’m not convinced by this argument. The bill doesn’t work without the mandate. Breaking it down by component is a bit dubious because you have to take the entire package, not just the part you like.

      This is exactly the point I wanted to make. The Right wingers seem to be for everything but the mandate – which you correctly state is needed to even get this pig close to working – but they offer no alternative to the mandate once it is removed. How do they propose to keep these pieces (which they have said they would) and pay for it?

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    5. Seattle Outcast

      What I find interesting about this debate is that when asked about the various components of the bill individually everyone seems to be for them (except the mandate)

      .

      That’s because people are looking at it as being phrased “in a perfect world, where there are no consequences to stupid decisions, wouldn’t it be great if…..?”

      So, when you get to the “here’s how you have to pay for this sort of stuff”, everybody balks.

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    6. Seattle Outcast

      How do they propose to keep these pieces (which they have said they would) and pay for it?

      You don’t. Oh, they’ll keep portions of it up an running until the baby-boomers die off, but eventually it will all get gutted.

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    7. sahrab

      How do they propose to keep these pieces

      Wrong question; By what authority does the Government have the power to tell a citizen they have to purchase {fill in the blank}

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    8. salinger

      Wrong question;

      See – this is what I am talking about – try to get an answer and the subject gets switched. It is not the wrong question – it is a different question.

      It is a question that should be answered If the opponents of Obamacare are promising to keep these facets of Obamacare in place (which they are) – and if as you point out the Govt. has no right to decree that a US citizen be obligated to buy anything – how do these people propose to pay for these entitlements that they are promising to keep in place?

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    9. tomchamberlain

      This is exactly the point I wanted to make. The Right wingers seem to be for everything but the mandate – which you correctly state is needed to even get this pig close to working – but they offer no alternative to the mandate once it is removed. How do they propose to keep these pieces (which they have said they would) and pay for it?

      ==================

      See – this is what I am talking about – try to get an answer and the subject gets switched. It is not the wrong question – it is a different question.

      Your premise is flawed. You’re taking “Yeah, that would be great in a perfect world” and turning it into “I’m for that”.

      Example, In a perfect world it would be great if Insurance companies could completely ignore pre-existing conditions when giving people health insurance. So when a survey asks “if we could do [x]” most people, right and left, agree with it. But that doesn’t mean they’re for the way it’s done in Obamacare (or for it in any way)

      What the left side of the equation never seems to understand is the idea of limited resources. You can’t just answer everything by “take from the rich” and when you start to take from the middle class and poor there are consequences.

      Opinions start to change when you get to the point where middle class people see the quality of their children’s healthcare falling because we’re trying to give health care to everyone.

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    10. salinger

      Your premise is flawed. You’re taking “Yeah, that would be great in a perfect world” and turning it into “I’m for that”.

      There is nothing wrong with my premise – I don’t have a premise. I am telling you what I am hearing from high ranking representatives of the right (Mitt Romney for one) saying from their own mouths. They are saying that they will keep these things without a mandate. If anything it is the Republican Party premise.

      Stop saying I am getting it wrong – I am merely quoting others. I am not getting the quoting wrong.

      I understand that one cannot give this stuff away for free – it seems to me the Republican party doesn’t get this, as evidenced by their prescription medicine bill. At least the Obama plan makes an attempt at paying for this stuff.

      Now if Romney or any other talking head from the Republican party came out and said,”Hey this is crazy talk – you can’t have this shit and not be taxed for it and we think not being taxed is more important than having this shit.” then I think it would be an honest argument – but what they are ultimately saying is you can have it for free.

      How come nobody on the right is calling them on this?

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    11. Seattle Outcast

      They are saying that they will keep these things without a mandate. If anything it is the Republican Party premise.

      I consider it to be standard election year BS – lots of promises followed up by doing the opposite.

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    12. Section8

      As much as i dislike the ruling, Justice Roberts put it on us to fix it.

      It’s not so much the ruling that alarms me, as I really wasn’t surprised. It’s the logic behind it. It’s a tax? Really? As Jim pointed out in another thread now basically the door is wide open any fine for behavior to be considered a tax. Unfair punishment is wrong, but if you call it a tax well ok then. So you don’t have a solar panel on your roof? Well you’ll be taxed until you do. Not walking enough? Well you’ll be taxed until you do. Now the door is opened for you to be punished with fines masked as a tax, and it’s perfectly ok, And we do know the government will start abusing the shit out of this. Of course people always say no way until it happens then they just live with it. Why have tax incentives when now you can just do negative reinforcement and tax people until they comply with whatever your goals are? Will this all happen right away? Probably not, but politicians tend to be creative, and any extra item they can put in the pot to brew up a fuck you in the ass stew, well they’ll use it.

      Oh yeah, and don’t count on the GOP to fix anything. Yeah, they’ll vote against it when they know it’s just for show, but 10 years down the road, if they have enough control to do anything, they’ll probably be tacking shit on to this just like Bush did with Medicare.

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    13. tomchamberlain

      There is nothing wrong with my premise – I don’t have a premise. I am telling you what I am hearing from high ranking representatives of the right (Mitt Romney for one) saying from their own mouths. They are saying that they will keep these things without a mandate. If anything it is the Republican Party premise.

      Stop saying I am getting it wrong – I am merely quoting others. I am not getting the quoting wrong.

      Perhaps you should actually share some quotes and not just proclaim the existence of shared quotes. The only thing I’ve heard Mitt Romney say about Obamacare is that he’ll pursue market based solutions that will make healthcare more affordable. Now admittedly that’s politicians speak for “I’m going to hope someone else figures it out” but it isn’t an endorsement of the goals behind Obamacare.

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    14. Mississippi Yankee

      As Jim pointed out in another thread now basically the door is wide open any fine for behavior to be considered a tax. Unfair punishment is wrong, but if you call it a tax well ok then. So you don’t have a solar panel on your roof? Well you’ll be taxed until you do. Not walking enough? Well you’ll be taxed until you do. Now the door is opened for you to be punished with fines masked as a tax, and it’s perfectly ok,

      Section8,

      I have to disagree with this line of thinking. If any tax issue is brought up in the Senate it first, can not be filibustered. Secondly it only takes a majority vote (51%) to over turn it. After yesterday’s SCOTUS ruling there is no reason why the US Senate shouldn’t become a (R) majority on Jan. 3 2013. Right along with the House. And the WH on the 20th.

      Here is an article explaining some of the other points.
      More on Roberts’ ruling

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    15. salinger

      Perhaps you should actually share some quotes and not just proclaim the existence of shared quotes.

      Here you go

      Here are some more:

      Rep. Allen West,
      “You’ve got to replace it with something. If people want to keep their kid on insurance at 26, fine. We’ve got to make sure no American gets turned back for pre-existing conditions, that’s fine. Keep the doughnut hole closed, that’s fine. But what I just talked to you about — maybe 20, 25 pages of legislation.” (Videotaped interview, 5/28/2012)

      Senate Republican Conference Vice Chair Roy Blunt,
      “It’s a way to get a significant number of the uninsured into an insurance group without much cost. [The under-26 provision is] one of the things I think should continue. I’ve been in a couple meetings lately and there’s some general understanding that that’s one of the things … and there are other things like that as well.” (Radio interview, 5/24/2012)

      And here’s another article.

      You really had not heard any of this?

      See – what I am most afraid of is that the Republicans do win the senate – then they repeal any mandate and employer requirements – but still keep the stuff in that everyone likes without ever figuring out a way to pay for it – just like they did with prescription drugs.

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    16. georgebalella

      Think about what happens if the GOP wins the election and actually — and this is by no means a certainty — repeals or massively repairs Obamacare.

      OK so if that does happen Hal… then we go back to the old system. People without employer provided health care or those who are self employed effectively pay taxes to subsidize those with employer provided health care. EVERYONE goes back to paying higher premiums or taxes to subsidize the uninsured. Large corporations go back to having a huge advantage over smaller employers and American companies in general continue to be disadvantaged with other countries companies which do not have to pay for employer mandated heath care as a huge cost of doing business. So why is that way better? Why would you vot e for Romney to tax self employed people?

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    17. Section8

      After yesterday’s SCOTUS ruling there is no reason why the US Senate shouldn’t become a (R) majority on Jan. 3 2013. Right along with the House. And the WH on the 20th.

      Perhaps, but it will still take more than getting a simple majority. There are plenty of liberal minded GOP politicians, and there are those from questionable districts or states for the Senate where backing for a GOP member isn’t solid. Knowing this, keep in mind politicians are about getting reelected first and foremost.

      Second of all, if it was argued based on the Commerce Clause, and that was struck down, don’t find a loophole to semi uphold it for the sake of looking good to everyone. That’s not what the court is about. We have tax on cigarettes, alcohol, gas, well just about everything, and some taxes such as those on cigarettes are higher based on behavior (which is bad enough) but you actually have to purchase those items to pay the tax. This is a tax for NOT purchasing something, and now it’s deemed as such and constitutional. I personally don’t care for that, because GOP to the rescue or not, there have been plenty of times they’ve worked with the other side to screw over Americans. Now there is another tool in the arsenal thanks to Roberts. Also, we’re not getting Reagans in office here. We’re getting Bushs and Romneys these days. Reason to worry.

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    18. blameme

      American companies in general continue to be disadvantaged with other countries companies which do not have to pay for employer mandated heath care as a huge cost of doing business.

      Dumbass, I thought you were against subsidizing businesses? But, you want to have all Americans be forced to get healthcare or pay a fine, I mean tax, to subsidize insurance costs so those businesses can compete internationally?

      It’s true. Cartoons don’t have to be consistent.

      Dumbass.

      Thumb up 1

    19. georgebalella

      I particularly love the one about moving to Canada. Apparently it’s not even satire.

      Rationality is not a prerequisite to being a neocon… in facts it’s frowned upon. Rage with a sound bite slogan …now that gets you in the club.

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    20. Biggie G

      This will limit choice! (okay how?) – this will limit care! (okay how?) this will increase the deficit (Okay how – because the CBO says otherwise).

      Limit choice: PPACA has already set major limits on low deductible plans and HSAs. These plans which many people feel are the best choice for their health care needs are on the way out due to national standards. There are also provisions that do not allow people to use money from their HSA to purchase OTC drugs. This means that people if people who want to use HSAs to save money will be forced to waste that money by paying extra for the same drugs.

      Limit care: see above. OK, I tried on this one, but I am not too sure. If reimbursements go down, you will probably see some doctors quit and there will probably be a shift to more profitable specialties which would put more stress on ERs. I will admit, most of this is theoretical, so I don’t have a good answer.

      Increase the deficit: There have been many stories out there about how the CBO is redoing the numbers and that PPACA will cost more than we thought. The CBO scores on the numbers that they are given. If they are given fishy numbers, they will give you the score that you want.

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    21. Mississippi Yankee

      Also, we’re not getting Reagans in office here. We’re getting Bushs and Romneys these days. Reason to worry.

      Section8, Yes I understand you have a distaste/dislike/disenchantment with the 2 party system. Believe me, I get it. But before we canonize Mr. Reagan it should be noted that he was a tax raiser, several times in fact. And although neither of the Bushes charmed the libertarian cause they were IMO better than the men they replaced. The same will be true of Romney.

      But my point about Roberts’ ruling is this: Elections have consequences, past and future.

      Roberts: (paraphrased of course)
      ‘I ain’t your mama, and I will not fix all of your self inflicted problems. But I will show you how to scrape the dog shit off of your shoe. Next time watch where you walk’

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    22. Xetrov

      This will limit choice! (okay how?)

      My company went from two providers in 2009-10 to one provider as a direct result of changes to the healthcare laws (cheaper to have everyone on one provider). Limited choice.

      Nevermind that companies can save Billions by dumping coverage for their employees and paying the penalty.

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    23. salinger

      My company went from two providers in 2009-10 to one provider as a direct result of changes to the healthcare laws

      Which changes specifically? Was it not cheaper to have one provider before the law changes? I’m not doubting you – I just want to have some specific answers to understand the criticisms better.

      Nevermind that companies can save Billions by dumping coverage for their employees and paying the penalty.

      They could save even more if they dumped the coverage before there was a fine. Were these hypothetical companies just waiting for a scapegoat to drop insurance? Are there any examples of companies doing this?

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    24. georgebalella

      The idea that altruism is not a real and significant feature in biological systems and evolution is even dumber than being a creationist. This is something we can visibly observe and measure.

      When you see people denying hard evidence and facts that conflict with their presuppositions that is when you know you have an unthinking non-objective ideologue on your hands. These glaring facts are as Al Gore called them inconvenient truths only denied with healthy dose of cognitive dissonance.

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    25. hist_ed

      Hey Salinger, I’m a bit late in answering your original question but I’ll take a swipe at it:

      I am against forcing insurance companies to keep 26 year olds on their parents incurance. If they want to offer this, fine, but the gov’t shouldn’t force it.

      I am against barring insurance companies from screening out those with pre-existing conditions. They should be able to do so.

      “allow state insurance pools” isn’t the word you are looking for “mandate”? States could form their own insurance pools before Obama care and should be able to do so.

      So the big question is how to fix things after repeal. It is simply not true that there are no Republican or conservative alternatives out there. Just because something is not covered by the NYT or NBC doesn’t mean it doesn’t exist. Through this debate, there have been alternatives floated.

      First, we really should settle some semantics (Shit, that again?): The current system and the system prior to Obamacare was not a system of insurance, it was a system of group pre-payment. I am sure you know how it got cobbled together with WW2 wage controls (damn lefty economics can be blamed for almost anything) so I won’t get into that. Here are my humble suggestions:

      #1 Allow purchase across state lines-is there any other product that you can’t buy from another state?

      #2 flip deductability-Empoyer paid insurance should be treated as wages for income tax purposes for the employer; all insurance expenses should be tax deductable for the individual. Require employers to offer equivalent wages instead of their insurance plans.

      #3 Increase limit for tax exempt spending plans and allow unspent money to accumulate from year to year (oh and let me use them to buy my fucking band aids and advil again-thanks Obama)

      #4 Allow some sort of 401k style match to health savings plans make those matches tax exempt.

      Let the awesome free(er) market roll.

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