SCOTUS v. Obamacare Pt. Deux
November 7, 2014 10:51 AM   Subscribe

 
Part Trois, non?
posted by Holy Zarquon's Singing Fish at 10:52 AM on November 7, 2014 [1 favorite]


...
posted by Buttons Bellbottom at 10:55 AM on November 7, 2014


Anyway, I tend to agree with SCOTUSBlog - this is not a good sign. Not a guarantee of doom, but if they were looking for an excuse not to take the case they had a big honkin' one right in front of them. So you've got at least four votes to gut the law from the get-go.
posted by Holy Zarquon's Singing Fish at 11:04 AM on November 7, 2014 [2 favorites]


I wonder how the large numbers of folks in the affected Red States will manage to blame Obama once they lose their subsidies? Because of course they will.
posted by Justinian at 11:04 AM on November 7, 2014 [39 favorites]


If the Democrats had a spine, they'd be painting the Republicans as soft on disease and in favor of sickness. The party that defends with all of its strength Cancer, and wants to make sure it takes food from your children's mouths while it steals your life. They want you to lose your house because a billionaire wants to have enough money to buy a yacht - not that they'd do something so productive with the money that was supposed to save your life as buy a yacht. Mostly it just sits, something for the rich to have just 'cus they're rich, while you waste away and die, and lose everything you worked your whole life for.
posted by Slap*Happy at 11:05 AM on November 7, 2014 [105 favorites]


Here's the context on the challenge (form the vox link under "granted"):
The Affordable Care Act provided for the creation of different types of insurance exchanges. Fourteen states and DC established "state-based" exchanges, which give them more flexibility and authority in controlling their Obamacare markets.

In the event that a state chose not to establish its own exchange, the Affordable Care Act dictates that the federal government would step in and create a "federally-facilitated" exchange. There's also a middle ground for partnership exchanges, where states and feds share authority. Healthcare.gov is the face of federally-facilitated and partnership exchanges.

These different types of exchanges were set up by different parts of the health law. But the part of the Affordable Care Act that calculates the subsidies specifies that those subsidies are available to people "enrolled in through an Exchange established by the State under 1311" — the section that sets up state-based exchanges. It does not reference section 1321, which sets up the federal and partnership marketplaces.

Because it's written that way, the plaintiffs argue that subsidies are only available in the 14 states that established their own exchanges.
The SCOTUS accepts horseshit of any grade, it seems.
posted by notyou at 11:05 AM on November 7, 2014 [2 favorites]


HZSF: My only quibble is that I don't think there was ever any realistic chance of there not being four votes to kill it. It's like if you go to the doctor with the bone sticking out of your forearm. Is it actually a "bad" sign if he orders an X-Ray? I mean, sure, that means he thinks its broken... but come on, it was obviously going to happen.
posted by Justinian at 11:06 AM on November 7, 2014


So you've got at least four votes to gut the law from the get-go.

They've had that from the beginning, the big question is whether Roberts has changed his mind, or has finally gotten tired of fielding calls from every member of the Federalist Society over the last two years and is ready to atone for his apostasy.
posted by T.D. Strange at 11:06 AM on November 7, 2014 [4 favorites]




This is going to go like the Voting Rights Act, I assume? I.e., Because the authors of the law missed a jot or a tittle in the details, the whole thing gets thrown out.
posted by Harvey Kilobit at 11:07 AM on November 7, 2014 [1 favorite]


Why should today be any different...
posted by dry white toast at 11:10 AM on November 7, 2014 [1 favorite]


All I can say is thank god I live in California. Y'all move here. It's great.

Bring your own water, though.
posted by Justinian at 11:11 AM on November 7, 2014 [16 favorites]


The SCOTUS accepts horseshit of any grade, it seems.

This is going to go like the Voting Rights Act, I assume? I.e., Because the authors of the law missed a jot or a tittle in the details, the whole thing gets thrown out.


There's a whole school of statutory construction for resolving exactly this type of drafting error or ambiguous wording leftover from the oftentimes messy legislative process of committing congressional intent to paper. Unfortunately, Scalia doesn't believe in any of those words, and his school of "originalism", or more accurately, "what Scalia says to justify his preferred outcome" is the predominant judicial theory in practice.
posted by T.D. Strange at 11:13 AM on November 7, 2014 [13 favorites]


The VRA case and this one aren't really comparable except in the mendacity of the arguments. The argument there was that society has changed since the VRA was passed, so we shouldn't still assume that the Deep South is a hotbed of racism just because of all those lying statistics, whereas this suit rests on the principle that if a single provision of a law appears to be either (a) poorly drafted and thus unclear; or (b) intended to cancel out other portions of the same law, rendering them a meaningless waste of time...you enforce option B. Which is insane, but that's par for the course by now.
posted by Holy Zarquon's Singing Fish at 11:13 AM on November 7, 2014 [5 favorites]


Slap*Happy: "If the Democrats had a spine..."

Ahahahahaha. Good luck with that.
posted by Runes at 11:14 AM on November 7, 2014 [8 favorites]


So, what does that mean as we're about to enter the next open enrollment period this month? Here in Indiana, we have only the Federal exchange. Thanks to the ACA, and the subsidies, my son was able to afford insurance, now that he's off our insurance. Is he simply SOL now? I mean, if he doesn't get subsidies, he simply can't afford health insurance. Period.

If they take away the subsidies, what happens to the mandate?

FWIW, I'm going to have to shop the exchange this year, too, though I doubt I qualify for any subsidy.
posted by Thorzdad at 11:14 AM on November 7, 2014


If they take away the subsidies, what happens to the mandate?

It applies. The Republicans literally want to tax the poor for being too poor to afford healthcare.
posted by Slap*Happy at 11:19 AM on November 7, 2014 [34 favorites]


So, what does that mean as we're about to enter the next open enrollment period this month? Here in Indiana, we have only the Federal exchange.

Nothing yet, there won't be a SCOTUS decision until probably next June.

Thanks to the ACA, and the subsidies, my son was able to afford insurance, now that he's off our insurance. Is he simply SOL now?

If SCOTUS were to uphold the lower court ruling and invalidate the federal subsidies, yes, because Indiana is not likely to cooperate with a state level fix by setting up its own exchange.

I mean, if he doesn't get subsidies, he simply can't afford health insurance. Period.

That's the whole point, without the federal subsidies, the whole law falls apart, at least in states that have no interest in it working.
posted by T.D. Strange at 11:20 AM on November 7, 2014


You are exempt from the individual mandate if a qualifying insurance plan would cost you more than 8% of your annual household income after subsidies. If you don't qualify for subsidies, then you almost surely would be exempt (you would have to have a job that pays very well but offers no benefits, e.g. high-dollar contract work).

Of course, by the same token, without subsidies the people the federal exchange is designed to serve can't afford the policies being sold there, because they would cost a huge percentage of their annual income. This is the result that the challengers are arguing was meant to happen - that the federal exchange the law requires would be completely futile from day one - and somehow their pants aren't spontaneously catching on fire.

So the upshot is that if SCOTUS rules against the government the ACA would simply stop applying in any state that didn't set up its own exchange. That includes red states opposed to the whole thing because Fuck You Poor People, but also blue states like Oregon that chose to sign on to the federal program instead of building their own separate marketplace.
posted by Holy Zarquon's Singing Fish at 11:23 AM on November 7, 2014 [4 favorites]


I think severability will be a pretty interesting issue. It's not clear to me, as with the individual mandate case, that you can sever the subsidies from the ACA as a whole. They could use it as a wedge to strike down the whole thing.
posted by Justinian at 11:23 AM on November 7, 2014 [1 favorite]


I love SCOTUSblog, but this sentence seems a bit silly to me:
But the Court’s decision to grant King substantially increases the odds that the government will lose this case.
Well, yes. Obviously. If they hadn't granted cert, the government would have won, so of course granting cert increases the odds of the government losing, given that they'd been zero otherwise. It is infinitely more probable now. It's like saying "By not immediately winning, the odds of the government losing increases".

Anyway, I'm honestly not too worried. It only takes four justices to grant cert, and we all know who those four justices are: the same ones that dissented in the previous case. Which means that it's gonna come down to either Justice Kennedy (though presumably he voted for cert, so he's probably gonna go against the ACA) or Justice Roberts as tie-breakers.

Justice Roberts had his chance to rule against the ACA, in a case which had more merit (though not much) than this, and he didn't do it. He's not gonna do it now, not when the law has gone into effect and and his decision would adversely affect millions of people, all because of a legislative typo. He's chosen his side on this historical battle, and it's the right side.

Not to say that this is *good* news. Obviously it's not. But things will probably work out ok.
posted by gkhan at 11:23 AM on November 7, 2014 [1 favorite]


If they take away the subsidies, what happens to the mandate?

Not necessarily, there's an exception for people who are unable to get coverage for less than, I believe, 8% of their income, which would probably apply to a lot of people in the event the subsidies were taken away.
posted by T.D. Strange at 11:23 AM on November 7, 2014 [1 favorite]


Actually I think seeing how the government argues the severability issue will be an interesting litmus test for how they think the wind is blowing.
posted by Justinian at 11:24 AM on November 7, 2014 [1 favorite]


Politicized Supreme Court Plans to Murder Obamacare Soon So it Won't be An Issue in 2016
Everyone in Washington knows that crafters of the bill intended to give subsidies in every state, not just in the ones with state-run exchanges. Everyone in Washington knows that the courts should defer to legislative intent when there's ambiguity. Everyone in Washington knows that the Republicans on the Supreme Court are doing this just because they can.

Or am I looking at this all wrong? Is John Roberts going to save the law a second time because its continued existence is a huge motivator for Republican voters?

I think it might be too late for that. If the law survives two more years, crazy GOP base voters will at least partly blame the crazy Republicans they just elected to kill the law. Plus, the longer it's in place, the more we're going to get used to it. So it has to be killed.

And it should be killed soon. These guys know that, in contrast to Republican voters, who never forget anything that makes them angry, liberal and moderate voters barely remember their anger at Republicans as long as the cause is something that happened a while ago. So the law will be mortally wounded in the first half of 2015. The death spiral will happen after that. Maybe Republicans and Democrats will agree to a mercy killing by veto-proof majorities, to put the law out of its misery (or maybe Republicans will let it twist slowly in the wind, so their president can finish it off). In any case, by 2016, the typical voter will forget that the fingerprints on the murder weapon were those of five Republican judges. Republicans will have framed the whole Obamacare era as a Democratic fiasco, and that's what voters will think.
And it's only 2:30 here, which means I have several hours before I can drink away my misery.
posted by tonycpsu at 11:24 AM on November 7, 2014 [7 favorites]


If the Democrats had a spine, they'd be painting the Republicans as soft on disease and in favor of sickness.

Honestly, we have to stop assuming good intentions at some point with these people. Benign incompetence is a pretty flimsy defense for a complete abrogation of their moral responsibility to the people.
posted by clockzero at 11:24 AM on November 7, 2014 [19 favorites]


Well, yes. Obviously. If they hadn't granted cert, the government would have won, so of course granting cert increases the odds of the government losing, given that they'd been zero otherwise. It is infinitely more probable now. It's like saying "By not immediately winning, the odds of the government losing increases".

As opposed to waiting for the DC Circuit to rule en banc, they mean. If there's a circuit split the court would basically have to take the case. By accepting it now they're taking it because they want to, and there's a good chance that means they want to throw out the law.
posted by Holy Zarquon's Singing Fish at 11:25 AM on November 7, 2014 [4 favorites]


Little-by-little, ACA is going to be eroded, to the point where on balance, there is a net loss to citizens. This didn't have to happen.

I am FURIOUS with both the GOP and the Obama Administration in all this.

The GOP, with it's continued attempt to confuse the worst of capitalism with "democracy and freedom", and then sell that sack of shit to the most vulnerable voters via highly-charged emotional spin that appeals to ignorance. Thus, the beginnings of America's very own "Taliban Lite"!

The Obama Administration: who could have, with the mandate they had in 2008, CRUSHED the private insurance sector and shown that they meant what they said with so many fancy progressive words in the 2008 election. Instead, Obama negotiated with the crooked private insurance sector. Democrats? Mostly spineless cowards and dissemblers.

Even though I have seen this coming,I didn't want to admit it - and now that it's here I didn't think it would make me this angry.

Voter turnout for the 2014 election is but one result of the apathy that has been created by our bought party system, with more to come as soon as more of the current crop of dissemblers begin to announce their plans for 2016.

America is in decline; we're watching that decline with the kind of relaxed demeanor of a king whose castle is surrounded by bloodthirsty peasants calling for his head, feeling secure in his dissociation from the inevitable because of a long history of seeming invulnerability. Americans are going to start learning the kinds of lessons that they only thought "lesser" nations suffered through, unless serious structural changes occur in the electoral process; we get leaders who are doing more than selling soap and hope; and Americans start realizing that the largesse we think is owed us just because we are Americans is a myth.

There are some hopeful signs, but it's going to get way worse before it gets better, if ever.
posted by Vibrissae at 11:27 AM on November 7, 2014 [19 favorites]


As opposed to waiting for the DC Circuit to rule en banc, they mean. If there's a circuit split the court would basically have to take the case. By accepting it now they're taking it because they want to, and there's a good chance that means they want to throw out the law.

Ah, I see. I misunderstood that. My apologies to SCOTUSblog.
posted by gkhan at 11:27 AM on November 7, 2014 [1 favorite]


Unfortunately, Scalia doesn't believe in any of those words, and his school of "originalism", or more accurately, "what Scalia says to justify his preferred outcome" is the predominant judicial theory in practice.

Scalian Originalism is an interesting judicial philosophy. It dictates that in cases of ambiguity, the drafter's intent trumps all other possible interpretations, except when the drafter is, you know, alive, and working in government, and in some cases actually present in the same building, in which case it's nuh-uh, you wrote that, no take-backs.
posted by Faint of Butt at 11:27 AM on November 7, 2014 [39 favorites]


Again I maintain that there was never any real chance that 4 of the justices didn't want to throw out the law. Hell, we already know they do from the last case. All this tells us is they haven't had a miraculous road to Damascus moment.
posted by Justinian at 11:27 AM on November 7, 2014 [1 favorite]


Again I maintain that there was never any real chance that 4 of the justices didn't want to throw out the law. Hell, we already know they do from the last case. All this tells us is they haven't had a miraculous road to Damascus moment.

Exactly right. This shouldn't have been unexpected.
posted by gkhan at 11:29 AM on November 7, 2014 [1 favorite]


As fate would have it, I'm reading about this bullshit while listening to Mike Duncan's Revolutions podcast. He's doing the French Revolution at this time.

It all seems so...applicable...
posted by Thorzdad at 11:31 AM on November 7, 2014 [1 favorite]


The stars are aligned for this. Right wingers who are beholden only to wealthy corporate interests now control 3 out of 4 branches of our federal government, if you count house/senate as distinct . They have gubernatorial control of at least 32 states. Republicans now control 68 state legislative chambers while Democrats control 30. My quick count of the map is that there are only 20 states that have either democratic or split legislative bodies.

Good thing pot is decriminalized in my state.
posted by madamjujujive at 11:31 AM on November 7, 2014 [2 favorites]


The Obama Administration: who could have, with the mandate they had in 2008, CRUSHED the private insurance sector and shown that they meant what they said with so many fancy progressive words in the 2008 election. Instead, Obama negotiated with the crooked private insurance sector. Democrats? Mostly spineless cowards and dissemblers.

No they couldn't. Obama may have won big, but laws need to pass through Congress, and Obama needed 60 votes to break a filibuster. It's a miracle that a law that's even this progressive passed through and got that many votes. Thinking that the Obama could've "crushed the private insurance industry" is a pure fantasy.

An elected president, even a popular one, is not a dictator.
posted by gkhan at 11:33 AM on November 7, 2014 [39 favorites]


I'm just so fucking sick of the utterly amoral bullshit behind the anti-ACA efforts. This country has real problems that need solving, and the Supreme Court is hearing yet another challenge to this law? At what point does the political process cease to function as an extremely complex method of benefiting from the impoverishment of the people?

Again I maintain that there was never any real chance that 4 of the justices didn't want to throw out the law. Hell, we already know they do from the last case. All this tells us is they haven't had a miraculous road to Damascus moment.

Like the midterm elections? The elections whose results guarantee that an anti-American ruling will be welcomed and respected by the plutocrat class?
posted by clockzero at 11:33 AM on November 7, 2014 [5 favorites]


We're already one of those states with a godawful Republican governor who refused to create an exchange and refused to expand Medicaid, but we have the added bonus of a godawful Republican governor who's on the cusp of launching a bid for President!

I can see it now: Walker will refuse to move to reinstate the tax credits in Wisconsin once the King decision eliminates them, and he'll do it with a smile. He'll knowingly sacrifice the finances, health, and well-being of Wisconsin citizens to increase, however slightly, his chances of winning the GOP nomination in 2016. Not that other decisions of his haven't had similarly dire effects, but taking away people's affordable health insurance on purpose seems especially fucking monstrous. But he'll do it with a smile all the same.

Last night I posited that Governor Kleefisch would be at the helm of Wisconsin's darkest timeline, apparently not realizing that we might already be living in it.
posted by divined by radio at 11:34 AM on November 7, 2014 [4 favorites]


gkhan: No they couldn't. Obama may have won big, but laws need to pass through Congress, and Obama needed 60 votes to break a filibuster. It's a miracle that a law that's even this progressive passed through and got that many votes. Thinking that the Obama could've "crushed the private insurance industry" is a pure fantasy.

And one that comes up, what, once a month on MeFi? Zombie lies really do last forever.
posted by tonycpsu at 11:36 AM on November 7, 2014 [2 favorites]


We are going to continue getting fucked over until we can get someone besides wingers to vote in midterms and people to take interest in their state offices. The apathy for midterms is a longstanding problem, it didn't start with Obama and won't end with him. The Republicans have been playing a long game and it is paying off.
posted by madamjujujive at 11:39 AM on November 7, 2014 [3 favorites]


If the Democrats had a spine

S'cool, I can sit here and wait 'til they grow one. Long as nobody starts talkin' that crazy third party talk.
posted by telstar at 11:42 AM on November 7, 2014 [5 favorites]


It applies. The Republicans literally want to tax the poor for being too poor to afford healthcare.

Well, that's just a bonus. Right now it's simpler than that even. Hurt as many people as possible with Obamacare because the people are believing that it's Obamacare hurting them. Not that the Republicans are making it do that on purpose.

It's a childish spite tantrum on an enormous scale, with no care for who it's fucking over. There is no such thing with them as "well, lost that one, what next"? It has to be "not over yet," always.
posted by ctmf at 11:47 AM on November 7, 2014 [5 favorites]


Obama may have won big, but laws need to pass through Congress, and Obama needed 60 votes to break a filibuster. It's a miracle that a law that's even this progressive passed through and got that many votes. Thinking that the Obama could've "crushed the private insurance industry" is a pure fantasy.

An elected president, even a popular one, is not a dictator.


POTUS didn't need to be a dictator; he just needed to follow through on promises. Obama had a massive mandate; he could have used that mandate AND his golden oratorical skills - because it was fresh (and people *believed* him) to push way harder on the private insurance providers. He didn't.

Obama and his staff/supporters could have used his fresh, mandated power to create an atmosphere of fear among those who would dare filibuster his efforts to create a single-payer system, leading those who oppose him to fear repercussions at the polls in 2010. He could have also used that power to send *serious* challenges to the private insurance industry; he didn't; he caved.

Instead, we get a half-ass ACA that has more holes than Swiss cheese. (not to derail: the same thing happened with the financial sector, where playing footsie with criminals led to more half ass result).

Summing up: it didn't take long for the GOP and Tea Party goons to size up the Obama Administration. This is the result: people who have been helped by ACA are going to start worrying about having benefits cut. States with Neanderthal Governors can screw their own citizens. This did not have to happen.
posted by Vibrissae at 11:47 AM on November 7, 2014 [12 favorites]


Vibrissae: please explain the causal mechanism between this "mandate" and the passage of the ACA. In particular, tell us why Ben Nelson, Blanche Lincoln, and Mary Landrieu (among others) would have given a shit about anything Obama had to say when he was extremely unpopular in their states throughout the entire duration of the ACA fight.
posted by tonycpsu at 11:51 AM on November 7, 2014 [8 favorites]


I'm no Republican, but it's not like the word "mandate" actually means jack shit.
posted by Steely-eyed Missile Man at 11:52 AM on November 7, 2014 [1 favorite]


I definitely start believing a person's point when they're selectively bolding words.
posted by Brandon Blatcher at 11:55 AM on November 7, 2014 [11 favorites]


Long as nobody starts talkin' that crazy third party talk.

Primaries are a thing that exist. The only reason you want to back a third party is because you either don't understand how political parties chose their candidates and platforms, or you're trying to do an end run around the democratic process that determines such things. Not a good place to start from.

And, you know, it's funny - the goddamn Greens and Moderates and Libertarians rarely if ever organize and back candidates for school boards and town councils and small-town mayorships. Which is a third reason third parties are terrible - they're lazy and won't put in the work. Their supporters all demand instant success at the state and national level, as if having a good idea and a snappier campaign slogan's all it takes to win fucking elections.

No, they exist simply as spoilers - libertarians to steal elections from Republican candidates in close races, Greens to steal elections from Democrats in close elections. Cementing victory for your ideological opposite because you refuse to ally with imperfectly aligned fellow travelers is, well... stupid. It's devastatingly dumb. It's responsible for the Iraq War and the Great Recession. Nader and the Greens did that, knowing how close the race would be - peeling away percentages Gore couldn't afford to lose because why? What did they prove? What did they achieve? Two Justices that could have been appointed by Gore but weren't now stand poised to sicken and bankrupt millions of Americans.

If a third party were to start at the local level and work their way up, endorsing large party candidates in loose alignment with their platform until sufficient momentum is built to meaningfully challenge for the seat, I might respect the notion. It's never worked out that way, now has it?
posted by Slap*Happy at 11:57 AM on November 7, 2014 [32 favorites]


The only reason you want to back a third party is because you either don't understand how political parties chose their candidates and platforms, or you're trying to do an end run around the democratic process that determines such things. Not a good place to start from.

What? Some people like third party candidates because they actually stand for the same things that we do.
posted by roomthreeseventeen at 11:59 AM on November 7, 2014 [7 favorites]


It's the Congress's fault. They didn't write a "no take-backs," "no un-dibs" clause into the law. This allows Scalia to play "my ball, my rules."
posted by dances_with_sneetches at 12:00 PM on November 7, 2014 [2 favorites]


Right. Like I said, we have all the time in the world to wait for that Democrat spine to form and start growin'.
posted by telstar at 12:01 PM on November 7, 2014


Steely-eyed Missile Man: I'm no Republican, but it's not like the word "mandate" actually means jack shit.

Yeah, remember how George W. Bush's "mandate" after the 2004 election led to privatization of Social Security and immigration reform?

Look. Roughly speaking, a "mandate" gives a president a brief period of time in which he can expect to be able to accomplish things that the public wants to do, and a significant portion of the Congress isn't dead-set against. Keep in mind that even in the 2008 Democratic primaries, single payer was essentially off the table, with the individual mandate (no relation!) being the fulcrum of the debate on the left.

There was really no large public constituency for single payer or even a public option, and even assuming the best sales job in the world somehow convinced people to want it, the only people who would have put pressure on their legislators to support it would be in blue states where the persuadable Senators were already amenable to it. That leaves many red states with conserva-dems that would not only never be pushed to do it by their constituents, but opposed it on personal ideological grounds.

So yeah, a mandate is a thing, but it's at best able to push popular things over the finish line, and only then, if there aren't enough "hell no" votes to kill it, which there were.
posted by tonycpsu at 12:02 PM on November 7, 2014 [6 favorites]


Right. Like I said, we have all the time in the world to wait for that Democrat spine to form and start growin'.

Yes, because moving a third party vanity candidate from 0.3% to 0.4% of the vote is really going to change the conversation!
posted by tonycpsu at 12:02 PM on November 7, 2014 [3 favorites]


Arguing that a "mandate" and great oratory can get Joe Lieberman, or Blue Dogs to vote for single payer, to vote for "crushing" the insurance industry is one of the classic examples of Green Lanternism.

You know what's not really a thing? The bully pulpit.
posted by X-Himy at 12:11 PM on November 7, 2014 [6 favorites]


please explain the causal mechanism between this "mandate" and the passage of the ACA. In particular, tell us why Ben Nelson, Blanche Lincoln, and Mary Landrieu (among others) would have given a shit about anything Obama had to say when he was extremely unpopular in their states throughout the entire duration of the ACA fight.

At the height of Obama's popularity, don't you think Obama could have made a direct, progressive/populist appeal to the to people in red states who are suffering;who don't have health insurance? Instead, he negotiated in secret with private insurers. Don't you think he could have used the marketing power and targeted messaging to voters in Nelson's, Lincoln's and Landrieu's electorate to push his promises forward?

Look at the result of ACA: yes, millions of uninsured are now insured. People can't be turned down for preexisting medical conditions. Great! But ACA is going to be under constant attack by right wing goons because it wasn't built with the full interest of citizens at heart - i.e. the insurance companies guaranteed themselves a place in all this, and have been/were all too happy to start raising rates on previously qualified policy holders to cover the costs of ACA. Don't you think they (the insurance companies) didn't figure this out from the get go?

Sorry, we disagree about this. And apparently, I'm not the only one who does, because Obama and his spineless Democrats managed to knuckle under to the Tea Party goons to the degree where even those that had supported Obama are pulling away and/or are even more apathetic than when he came into office. This failure in the face of the greatest opportuntity any sitting POTUS has had to make an *essential* difference in America, since FDR, was lost.

Mind you, I am not excusing the hateful, bigoted, and near criminal conspiracy by the GOP/Tea Party to break into pieces even the weak compromises that Obama made with the insurance companies and financial sectors, but let's spread the blame for this out among all who are to blame. It gets really old seeing the Obama administration taken off the hook for its inability to seize advantage and come back at the right with the kind of fanatical power and effective messaging that the reight seems so willing and able to deliver in the other direction.
posted by Vibrissae at 12:11 PM on November 7, 2014 [4 favorites]


What? Some people like third party candidates because they actually stand for the same things that we do.

Then get them nominated on a ticket that has the resources to actually win. There are no shortcuts! You start at the local level and in the primaries, and you work for it. Third parties are a lazy shortcut for people who don't know how to win elections - it still doesn't get them decent representation. It just removes their candidates from anywhere near an elected position or meaningful inflence.
posted by Slap*Happy at 12:12 PM on November 7, 2014 [13 favorites]


Yes, because moving a third party vanity candidate from 0.3% to 0.4% of the vote is really going to change the conversation!

This is exactly the kind of meme that proves the apathy that I'm writing about. I understand where it comes from, but it's sad to see people think that this every 2-4 year farce that we participate in, in America, can be made by "working within boundaries".
posted by Vibrissae at 12:13 PM on November 7, 2014 [2 favorites]


At the height of Obama's popularity, don't you think Obama could have made a direct, progressive/populist appeal to the to people in red states who are suffering;who don't have health insurance?

He did precisely that in 2009 and it went absolutely nowhere because the people in red states who weren't already going to vote for him were inundated with birther bullshit.

And it's not even about the people in red states. This needs to be pointed out as often as possible: one of the options the Democrats floated, which was an Obama trial balloon, was literally "hey what if we just let people who aren't on Medicare pay to be in Medicare." You know who killed that one? Joe Lieberman, who said he wouldn't vote for cloture and accordingly let the Republicans filibuster it to death, because Lieberman was the biggest insurance whore in Congress at the time and a raving egomaniac to boot. Did Obama need to go to Connecticut and tell people that Joe Lieberman was selling them out? Because progressives tried that in 2006, got Lieberman booted off the ballot and then Lieberman won as an independent anyway.

Your theory makes absolutely no sense. None. Period. Obama negotiated with insurance companies who then spent billions of dollars trying to prevent the bill's passage? Come on now.
posted by mightygodking at 12:16 PM on November 7, 2014 [29 favorites]


mightygodking: He did precisely that in 2009 and it went absolutely nowhere because the people in red states who weren't already going to vote for him were inundated with birther bullshit.

Don't forget Poland the Death Panels!
posted by tonycpsu at 12:16 PM on November 7, 2014


What a week.
posted by dirigibleman at 12:18 PM on November 7, 2014 [7 favorites]


At the height of Obama's popularity, don't you think Obama could have made a direct, progressive/populist appeal to the to people in red states who are suffering;who don't have health insurance?

No, no I don't. Or more accurately, I think all sorts of populist appeals were made. And? It wasn't like states around the country could insta-elect new representatives. That's not the way our system works.

Look, the ACA isn't what I want. It doesn't go far enough. I want single payer, I want to crush the insurance markets, and I want us to not let people suffer and die because they cannot afford medical care. It's sick and immoral.

But when you let perfect be the enemy of good, you're doing the same damn thing. There's an argument to be made that Obama should have begged for the elephant, started at single payer and bargained down to a better version of the ACA we have now. But there's a risk there, if you start by asking too high, you never get to the bargaining table. It's just a complete nonstarter. Obama has never been much of a risk taker. Nor do I think his policy goals were that high.

I want something better than the ACA, but it's a godsend now, providing coverage for millions that wouldn't have it (myself too). There is such a thing as incremental improvements. And it's hard for anything to withstand the sheer evil of the Republicans in their repeated attempts to kill off the lower classes.

But if you for one second think that Obama had a "mandate" or a filibuster-proof majority then you're a fool. Ted Kennedy's death, and the election of Scott Brown, threw everything into such chaos that the entire passage of the bill was in doubt. One Senator!
posted by X-Himy at 12:18 PM on November 7, 2014 [4 favorites]


Nader and the Greens did that, knowing how close the race would be - peeling away percentages Gore couldn't afford to lose because why? What did they prove? What did they achieve? Two Justices that could have been appointed by Gore but weren't now stand poised to sicken and bankrupt millions of Americans.

Gore and his handlers did this to themselves. Gore was painted as a stone statue, without emotion. He didn't get it, nor did his handlers.

Also, remember that the Democratic Party kept a qualified Ralph Nader from the 2000 debates. Was that Democratic? Was that the right thing to do? Nader, on so many social issues was (and still is) right on target, but he was roundly mocked out of the race. So don't go blaming Ralph Nader for that loss, blame the Democratic party hacks and Gore's incompetent campaign (a spineless campaign) for losing POTUS.
posted by Vibrissae at 12:19 PM on November 7, 2014 [2 favorites]


POTUS didn't need to be a dictator; he just needed to follow through on promises. Obama had a massive mandate; he could have used that mandate AND his golden oratorical skills - because it was fresh (and people *believed* him) to push way harder on the private insurance providers. He didn't.

Actually, he did exactly that: remember the public option? It would have been a part of the ACA that created a sort-of public insurer, acting as "insurer of last resort" for people who couldn't get insurance any other way. This would, as you put it, pushed the insurance industry way harder.

Obama fought for this piece of the law hard. There was like a whole month there where he travelled across the country speaking to people trying to convince them it that it was a good idea, saying "just because there are public schools doesn't mean Harvard doesn't exist" and things like that. But, in the end, he had to drop it.

Why do you think he did that? Did he just wake up one morning and realize that this lovely little progressive policy was a terrible idea? No, of course he didn't: he realized that if the ACA included the public option, it would have never passed the senate. So, in order to pass anything, he dropped it.

You're creating some alternate version of the past where Obama had all the power in the world to do whatever he likes, but instead decided suddenly one day to become much less liberal. That is just not what happened, and we know that as a historical fact: he tried to pass a more progressive law, and he used all of his mandate and considerable oratorical abilities to make it so, but he failed. He passed what he could pass, which is exactly what we want a responsible leader to do.

Cut him some slack, will you? It's not enough that the Republicans are viciously attacking him for being a "communist" or whatever, we don't need people on the left to go apeshit because Obama couldn't achieve the impossible. Passing the arguably the most substantial and best health-care reform law in American history should be enough.
posted by gkhan at 12:22 PM on November 7, 2014 [23 favorites]


I've got third parties, Ralph Nader, green lantern-ism, the public option, the bully pulpit, quick, someone say 'filibuster reform' and I'll have a bingo!
posted by T.D. Strange at 12:22 PM on November 7, 2014 [4 favorites]


Crap, my card sucks, I still need "O-bots", "firebaggers", and "Mike Gravel."
posted by tonycpsu at 12:24 PM on November 7, 2014 [3 favorites]


This failure in the face of the greatest opportuntity any sitting POTUS has had to make an *essential* difference in America, since FDR, was lost.

At one point, FDR had 75 Democrats in the Senate and 347 Democrats and Democrat allies in the house. The situations aren't even remotely comparable.
posted by seymourScagnetti at 12:25 PM on November 7, 2014 [3 favorites]


But when you let perfect be the enemy of good...

This is yet another example of how using aphoristic thinking as a base for compromise can generate cognitive dissonance - letting people feel good about compromises that have basically resulted in getting them screwed over in the long term.

Nobody will ever convince me that the "delicacy" of negotiation (or ONE Senator - i.e.Ted Kennedy) *had* to make the difference. Obama was huge when ACA was being debated; he folded into private negotiations with the enemy, and ended up with something that was far less good than it should have been - not perfect, but way better than we see, today. That's on Obama; so he gained something, but in the offing, in the long run (and corporations always have the long run; they don't term out) the private insurers won.
posted by Vibrissae at 12:26 PM on November 7, 2014 [2 favorites]


But ACA is going to be under constant attack by right wing goons because it wasn't built with the full interest of citizens at heart

Beaver biscuits. That is not at all why ACA is under attack by the right wing, and you know it.
posted by feckless fecal fear mongering at 12:28 PM on November 7, 2014 [12 favorites]


Is there anything more succinctly American than a bake sale to fund cancer treatments ?
posted by Pogo_Fuzzybutt at 12:28 PM on November 7, 2014 [13 favorites]


At one point, FDR had 75 Democrats in the Senate and 347 Democrats and Democrat allies in the house. The situations aren't even remotely comparable.

FDR didn't have social media, the Internet, and an army of rabid 10's of millions pulling for real reform. Yes, FDR had a better legislative formula, but Obama had a glassy-eyed electorate (and indeed, the world) willing to listen and support bold, courageous "change you can believe in" (remember those words?).

In the end it's always about the votes, but there are many intangibles that can be put into play to ameliorate the impact of the opposition. Obama's 2008 campaign was brilliant. What did he follow that up with? Same old; same old.
posted by Vibrissae at 12:30 PM on November 7, 2014 [2 favorites]


I just want to remind everyone that "the ACA" isn't just the exchanges. It's also the Medicaid expansion, the ban pre-existing condition exclusion, the provisions that force insurance companies to pay a certain percentage of their revenues out as benefits, and many other decidedly not-insurance-company-friendly provisions. I know many of the folks saying the ACA didn't go far enough are aware of this, but I've also seen a lot of people talking about it as if the entire thing is just a giveaway to the insurance companies, and that's definitely not the case.
posted by tonycpsu at 12:31 PM on November 7, 2014 [10 favorites]


But ACA is going to be under constant attack by right wing goons because it wasn't built with the full interest of citizens at heart

Beaver biscuits. That is not at all why ACA is under attack by the right wing, and you know it.


Wait, yeah. Do you really believe this, Vibrissae?
posted by Steely-eyed Missile Man at 12:32 PM on November 7, 2014 [4 favorites]


I hope they go fully crazy and argue that “established by the state” is singular, meaning only one state can get subsidies.
posted by spaltavian at 12:32 PM on November 7, 2014


This seems like a nice time to remind people that the United States is not a democracy (or a republic). Money didn't want single-payer. Money gets what it wants. Voters may be nice but they're not made of hundred-dollar bills.
posted by Holy Zarquon's Singing Fish at 12:32 PM on November 7, 2014 [5 favorites]


So, Vibrissae... What should Obama have done, then? ACA would not pass, period, with a public option. Should he have washed his hands of the whole thing?

What did he follow that up with? Same old; same old.

Hardly.

Look, you don't like Obama. Fine. But stick to facts, ok? Otherwise you're employing the same empty rhetoric you're decrying.
posted by feckless fecal fear mongering at 12:33 PM on November 7, 2014 [2 favorites]


But ACA is going to be under constant attack by right wing goons because it wasn't built with the full interest of citizens at heart

Beaver biscuits. That is not at all why ACA is under attack by the right wing, and you know it


Maybe I didn't make myself clear. By "full interest of citizens at heart" I meant that the insurance companies negotiated a place within ACA for themselves that gave them an opportunity to undermine it. Simply by dint of including private insurers in private negotiations, America lost an opportunity for a good that would have been far better than the current good. So now, we're getting challenges like the one made by King vs. Burwell, with probably dozens more on the back burner.
posted by Vibrissae at 12:33 PM on November 7, 2014 [1 favorite]


This wasn't the first time comprehensive health reform was tried. You might remember the 1990s?

What I'm saying is this. Half a sandwich is better than no sandwich. I can stomp my feet and demand a whole sandwich, but if I get nothing, I'm still hungry. You have some confused memory of Obama's massive popularity (when the inherent racism of the Republicans was already kicking around in birtherism), combined with a belief that if someone wants it hard enough, they'll get it.

I've been trying to float myself through telekinetic for years, no dice. Obama doesn't get to pass the legislation, he gets to sign it. That legislation has to pass through two houses in Congress. One of those houses is the Senate, where due to massive malfeasance on the part of the Republicans, instead of running on the Consitutionally mandated majority vote, we require a de facto super-majority to pass anything. At this point, Mitch McConnell had already declared in a meeting with his people that their strategy was simply "NO". Obama had a shaky group of Democratic Senators that numbered 60, but that included such notable shitbags as Joe Lieberman (seriously Joe, fuck you). People who are on record of saying that they wouldn't vote for cloture for the bills you suggest.

No amount of finger-wagging by Obama is going to matter. Not even on national television. Joe Lieberman got primaried out of his own party and still got elected.
posted by X-Himy at 12:34 PM on November 7, 2014 [5 favorites]


By "full interest of citizens at heart" I meant that the insurance companies negotiated a place within ACA for themselves that gave them an opportunity to undermine it.

That still isn't why the right wing is attacking it and will continue to attack it.
posted by feckless fecal fear mongering at 12:36 PM on November 7, 2014 [3 favorites]


But when you let perfect be the enemy of good

Arguing for better isn't letting the perfect be the enemy of the good.

I'm a Democrat. I'm a leftist. I vote Democratic in almost all elections, especially at the congressional and presidential level.

I urge elected Democrats and the Party to advocate stronger for the progressive policies most Americans support. This is not letting the perfect be the enemy of the good, even when I say that President Obama, Senator Reid or Representative Pelosi could have or should have taken a different strategic or tactical approach to a given policy question.

I advocate to others who share my views but who don't vote or don't vote Democratic about why they should vote Democratic. This is a hard case to make when they see the Party more interested in condemning reformers as ideological purists (who in fact are not demanding ideological purity but are willingly compromising to work for pragmatic reform while still articulating their ideals) than thanking them for the compromises they are willing to make and respecting their contribution to the big tent of the Democratic Party.
posted by audi alteram partem at 12:37 PM on November 7, 2014 [2 favorites]


Correct, they are attacking it for a couple reasons. One, it takes power away from their natural constituencies (money). Two if it's a success, it is a success for the Democrats. They could have come to the table, negotiated, made themselves a part of the process. Instead they went full-bore opposition.

And finally, it's because poor people benefit. And by poor people, I mean black people. Black people would benefit, and ever since the Southern Realignment, Republicans have been more than willing to cut their nose if it will spurt some blood onto minorities.
posted by X-Himy at 12:38 PM on November 7, 2014 [1 favorite]


FDR didn't have social media, the Internet, and an army of rabid 10's of millions pulling for real reform. Yes, FDR had a better legislative formula, but Obama had a glassy-eyed electorate (and indeed, the world) willing to listen and support bold, courageous "change you can believe in" (remember those words?).

Oh, please:
The fact is, the Obama/Reid strategy with Lieberman was vindicated; stripping him of his chairmanship would have just led to him caucusing him with Republicans, which means not only no public option but no ACA and no DADT repeal. And even in the extremely unlikely event that this worked his vote for the public option is worthless without the votes of other senators (like Bayh) Obama has no leverage over at all. (Why would we think that Nelson wanted a kickback he had to distance himself from and was stripped from the final bill so badly he would support the public option?) Baucus wasn't "empower[ed]...to be a kingmaker" by Barack Obama, but by the fact that he controlled one of the relevant committees, and in any case how disempowering him would have made him more likely to support the public option is unexplained, for the obvious reason that it doesn't make any sense. And so on. The idea that this amateur-night political speculation reflects hidden presidential powers is just bizarre. At some point, maybe you have to consider that a lot of Democratic senators are conservatives, and the leverage that presidents have over them is very limited.

But the real key is the assertion that "LBJ and FDR were legendary for their arm-twisting tactics when it came to recalcitrant Congresses, and they are Democratic legends in Presidential history." The idea that the success of FDR and LBJ was in their ability to steamroller Congress is a myth. Let's go to Sides again:
The short answer: presidents don't often succeed in persuading reluctant members of Congress to go along with their views. Take Lyndon Johnson, supposedly a master manipulator of Congress. Edwards shows that support in Congress for Johnson's initiatives was not systematically higher than Kennedy's or Carter's. For example, on crucial votes in the House, Johnson won the support of 68% of Democrats and 29% of Republicans. Kennedy did better among Democrats (74%) and worse among Republicans (17%). Carter did worse among Democrats (59%) but the same among Republicans (29%).
FDR and LBJ are the two presidents of the last century with longer lists of progressive accomplishments than Obama, and they were the two that had substantially more favorable legislative environments.  And the Democratic presidents with a less impressive record of achievements than Obama all (with the possible exception of Carter) had substantially less favorable legislative environments. Republican presidents in Democratic-dominated periods had much more liberal records than those in Republican-dominated contexts. At some point, you have to start wondering if it's more than just a coincidence.
posted by tonycpsu at 12:39 PM on November 7, 2014 [10 favorites]


I mean, Obama could have passed a full-on national healthcare system modeled on Canada's (or the UK, Australia, NZ, Cuba, etc etc etc etc etc) and the right wing would still be attacking it because socialism (also Presidenting while black). Insurance companies are the reddest of herrings and it's really weird you believe that's why the right wing is trying to tear it down. They'd find reasons.
posted by feckless fecal fear mongering at 12:39 PM on November 7, 2014 [1 favorite]


What I think is that in this country people do not expect health insurance, it isn't really thought of as a "right" like the right to not die in a gutter. Getting people insurance is the first step, it shifts perceptions, makes people realize that full coverage is where to go. The ACA isn't the endgame, it's the first step to doing the right thing.
posted by X-Himy at 12:40 PM on November 7, 2014 [4 favorites]


Look, you don't like Obama. Fine. But stick to facts, ok? Otherwise you're employing the same empty rhetoric you're decrying.

I looked at that list a few weeks ago. Take a look at the accomplishments vs. compromises and broken promises. It's not very impressive.

Look at so-called "job growth" (as an example, not to derail). Roughly 80% of all new jobs are paying $6-$13 per hour. It that a recovery?

Obama doesn't control the economy, no POTUS does, but these "promise kept" lists are the same for every POTUS. I *expected* more! And apparently, based on voter turnout in the past two midterms, so did a hell of a lot of other Americans - many of them liberal or center-left (like me)

It's not just Obama; it's what he and the Democrats appear to have become. Spineless. I don't hear passion; I hear compromise and whining. I'm not saying that Obama completely failed; I'm saying that I expected a lot more, based on what he was promising "hope and change" - instead we end up with "compromise and threats-of-reversal-of change".

I swallowed hard when Obama beat Hillary - I admit that. But I supported him over his GOP opponent. I was expecting more.
posted by Vibrissae at 12:48 PM on November 7, 2014 [1 favorite]


So what should Obama have done about ACA then? "Well if it won't pass exactly the way I want it I guess we won't have it at all then" seems like something you'd be unhappy about.
posted by feckless fecal fear mongering at 12:50 PM on November 7, 2014


At the height of Obama's popularity, don't you think Obama could have made a direct, progressive/populist appeal to the to people in red states who are suffering;who don't have health insurance?

You mean other than the direct progressive appeal to the people in red states he made every day from 2007 to election day 2008? He ran on healthcare reform. Your mandate is meaningless if you only have filibuster-proof majority for a few months that depends on Lieberman and Nelson and the other side is just will not blink.

Obama ran a good campaign, but it was not an Earth shattering rearrangement of the political field that Obama "wasted". His election was a bizarre constellation of a Obama being a good candidate, McCain being a surprisingly weak candidate, war-weariness, an terrible incumbent and what appeared to be the Second Great Depression starting six weeks before the polls opened. Many of those factors were no longer at play once legislation actually had to be hashed out.
posted by spaltavian at 12:52 PM on November 7, 2014 [8 favorites]


I'm generally sympathetic to the argument that there was a bit too much pre-compromising involved in the original ACA debate, but today I'm very concerned that the Supreme Court is going to take my subsidies away and I won't be able to afford health insurance this year. I live in a non-exchange state and rely on subsidies, and I'm extremely concerned about the stuff that is happening right now, not as much what happened five years ago. While I understand that the original health care fight laid the groundwork for some of this, it's done, it's in the past, we can't go back and change it now, and I'm still going to lose my health care coverage if these assholes strike down the subsidies.

Could we focus on the issue at hand and not relitigate the original ACA battle (or the ongoing Obama: perfect or worthless? battle) for once?

For starters, here's a handy rundown of which states run their own exchanges and which don't (this may have been in the original links, apologies if it's redundant). There's a map about halfway down the page that will tell you whether or not you're fucked if you rely on those subsidies (spoiler alert: I'm fucked).
posted by dialetheia at 12:53 PM on November 7, 2014 [13 favorites]


I'd definitely like to shift away from Vibrissae's tangent, because it's something I've seen before and isn't really what the post is about.

I don't know enough about the politics of SCOTUS, or law, to know why the granted cert to the case before the en banc hearing for Halbig. There's been the suggestion that it's the pro-ACA four who did it, and that just seems like wishful thinking. It's mind boggling to me that the fate of so many people rests on whether or not someone hugged Anthony Kennedy that day.
posted by X-Himy at 12:55 PM on November 7, 2014 [5 favorites]


At this point, Mitch McConnell had already declared in a meeting with his people that their strategy was simply "NO"

The importance of this cannot be overstated. The Republicans had a strategic plan from the outset of the Obama administration. They were disciplined and they voted in lockstep. They opposed everything with every vote they had, to the point where Obama was conned into believing he had to negotiate with them to keep the world economy from collapsing (at least he didn't fall for that one twice). No matter how reasonable or popular the proposal (early on in the healthcare reform process, amazingly enough, a large majority of Americans were in favor of a public health insurer) the Republican answer, to a man and woman, was always the same. "No". McConnell actually said, in 2010, "The single most important thing we want to achieve is for President Obama to be a one-term president." Never mind the economy, jobs, healthcare, or anything else. The most important, or maybe the only thing that mattered to the Republicans was the failure of the Obama administration. That's the reason they fought the ACA tooth and nail (the specifics of the law were immaterial). No amount of skilled oratory by Obama or the actions of his legions of admirers was going to change this simple fact.
posted by seymourScagnetti at 12:56 PM on November 7, 2014 [26 favorites]


The idea that this amateur-night political speculation reflects hidden presidential powers is just bizarre. At some point, maybe you have to consider that a lot of Democratic senators are conservatives, and the leverage that presidents have over them is very limited.

What I'm saying is that the Obama I saw and heard in the election (along with many of his legislative supporters, many of whom rolled into office on Obama's coattails) changed their tune after the 2008 election. Is it bizarre to expect that one who promises the degree of hope and change that Obama did, should go right back to business as usual. Maybe it's naive to expect that. Is that what you're saying? If your claim (that's it's "bizarre", or even naive to *expect* what people promise them, especially when extra-exceptional promises are made, what does that say about American politics? What does that say about the seemingly permanent "reality" of our broken system that breaks "hope and change" down into little pieces until the crumbs that are picked up are seen as "promises kept" or accomplsihments?

Most people are realistic about incremental change. Most people don't expect full blown revolutions (that is bizarre). What I'm arguing for is that Obama caved too soon; that he didn't work hard enough; that he didn't use his mandate to carve out more guarantees within ACA; that he didn't paint the private insurers for what they are (thieves and criminals who care only about profit). That he didn't use his exceptional oratory to bring those facts home to the American people. Obama had a unique populist and progressive moment available to him; it was maybe 20% successful. Proof? Look at his ratings among former robust supporters. Who are we supposed to blame that on? Sure, the GOP was able to manipulate and lie about Obama, but Obama and his administration and the spineless Democrats made that task much easier for the GOP.
posted by Vibrissae at 1:01 PM on November 7, 2014 [1 favorite]


Vibrissae, all of your arguments, including the one about using his exceptional oratory to bring those facts to the American people, have been specifically refuted by myself and others, so if you want to engage with those points, please do, but if you're going to just keep restating your premises, then I'm going to respect the desire some here have expressed for us to move on from this discussion of how we got here to focus on what's going on now.
posted by tonycpsu at 1:04 PM on November 7, 2014 [6 favorites]


it's sad to see people think that this every 2-4 year farce that we participate in, in America, can be made by "working within boundaries"

List of methods for achieving change that 1) don't involve working within the existing legal boundaries and political framework, 2) are actually effective, and 3) don't amount to treason:
 
 
 
 
 
 
 
 
posted by one more dead town's last parade at 1:06 PM on November 7, 2014 [5 favorites]


Cementing victory for your ideological opposite because you refuse to ally with imperfectly aligned fellow travelers is, well... stupid. It's devastatingly dumb. It's responsible for the Iraq War and the Great Recession.

no, it's not - the iraq war, as you call it, began in 1990 and never has ended - for 8 years a democratic administration continued it and when president bush asked to escalate it, most democrats voted for his plans

i have grave doubts that a president gore would have done otherwise

as far as the great recession is concerned, it was going to happen anyway - a gore administration wouldn't have provided much more oversight than the bush administration did - or the obama administration is now

it's a lot easier to blame those who speak up than to blame those who have power, isn't it?

nader boy - "the emperor has no clothes!"

the left side of the court - "it's your fault - you stole them!"

a few thousand in florida vote for nader and the cry is immense

a couple of million in florida choose not to vote at all and all you can hear is *crickets*

get real, grow up and move on
posted by pyramid termite at 1:07 PM on November 7, 2014


Vibrissae, if you "saw and heard" Obama during the 2008 election, then surely you also heard him say that no matter what, he also was going to emphasize working with the GOP on all matters, because all of the mandates and presidential orders in the world would only perpetuate an already-existing partisan divide.

The problem wasn't that Obama "changed" from what he promised. The problem was that Congress didn't change. And no amount of public lobbying in red states would matter a damn if you had PAC money from the Koch brothers secretly seeding opinion against him in those same very states.

Be mad about the ACA if you want, but blame the right people for the problem.
posted by EmpressCallipygos at 1:10 PM on November 7, 2014 [3 favorites]


as far as healthcare, the ACA, and everything else is concerned, the answer is simple

the republicans play hardball and the democrats don't
posted by pyramid termite at 1:12 PM on November 7, 2014 [6 favorites]


The more I read about law and all this, the more I think we really really really need to start programming tools for politicians (or law drafters, whatever) to use to be able too look for mentions of sections of laws - see what links - potential missing links based on certain AI reasoning tools (Imagine a form of "Clippy" ---> Did you mean to also add a reference to 1321???"

The more complex a law becomes, the more need there is for simplificatin. We need at the minimum:

1) Versioning applied to the text of a law as it passes through drafts (including listing those who alter the text attached to each alteration)

2) A system to track the voting of the bills in the committees and the debates (including notes and relevant highlights automatically selected).

3) We need more visual tools and ability to scan structure. In the same way you have sublime text with its nifty overview.

We need tools and more importantly well-designed, efficient, clear and consistent in its "language" to use in construction of laws. No longer is mere text capable of handling the ever growing complexities of society.
posted by symbioid at 1:12 PM on November 7, 2014 [12 favorites]


At some point, if you folks want to stop talking about this derail, you have to stop talking about this derail.

I'm sick over today's news because my niece, who is recovering from a brain tumor, only has insurance because of the ACA. This is real-world awfulness, that is going to kill people. I am over worrying about whether Obama did all he could. I'm too busy worrying about my niece.
posted by jbickers at 1:14 PM on November 7, 2014 [14 favorites]




Obama's slogan was "Hope and Change" and he implied a strong progressive stance. He promised dozens and dozens of reforms and a break from the status quo.

Everything about him felt like he was going to pull an FDR. He did not. What he has done is kept to the letter of his platform.

He's kept to the 'little t' truth.

When FDR was faced with the class of bull that the Republican's have been pulling he threatened to pack the Supreme Court.

EDIT:

I do love some of the affordable care act regardless, and really hope it isn't repealed. It helps my family a rather lot.
posted by pan at 1:21 PM on November 7, 2014 [3 favorites]


And to return to something rather earlier in the thread, I'm actually horrified at the utterly immoral idea of taking healthcare away from people. It's one thing not to give it in the first place; still disgusting, but if I squint I can almost see a point there.

But taking it away? Making sure people have to stop recieving healthcare they need? It's monstrous.

What I'm saying is that the Obama I saw and heard in the election (along with many of his legislative supporters, many of whom rolled into office on Obama's coattails) changed their tune after the 2008 election.

Like every politician in the history of the universe.

that he didn't work hard enough

I'm not privy to conversations held in the Oval Office. I doubt that he said "oh well" and moved on; on the contrary, I suspect there was an enormous amount of hard work going on behind the scenes. There is only so much one can do when one is negotiating with someone whose answer is always 'no.'

that he didn't use his mandate to carve out more guarantees within ACA

Specifically refuted above; not all Democrats were onboard, for a wide variety of reasons.

that he didn't paint the private insurers for what they are (thieves and criminals who care only about profit)

I'm in Canada, and I heard a whole lot of that specific message coming out. Or are you complaining that those words didn't come directly from Obama's mouth?

That he didn't use his exceptional oratory to bring those facts home to the American people.

He did, though. For something like three years.

it was maybe 20% successful.

The link I provided above and which you said you have read directly contradicts this: 45% of his promises have been kept. Another 22% have been partially kept. 7% are in the works. That's a 74% partial/success rate, which is pretty impressive for any politician.

Sure, the GOP was able to manipulate and lie about Obama, but Obama and his administration and the spineless Democrats made that task much easier for the GOP.

Obama could literally be Jesus and the GOP would still manipulate and lie.

i have grave doubts that a president gore would have done otherwise

I think it's a relatively reasonable proposition that President Gore wouldn't have invaded Iraq over a Saudi-financed terrorist attack. It's somewhat less reasonable, though still in my mind believable, that 9/11 wouldn't have happened in the first place, because there seem to be fewer "fuck what the intelligence people say unless it dovetails with my hawkishness" apparatchiks like Rumsfeld on the Democrat side.

Be mad about the ACA if you want, but blame the right people for the problem.

This. Please this. It's fine to be disappointed in Obama (and, for that matter, whatever twit(s) wrote this legislation and made such a stupid clerical error), but credit where credit is due.

jbickers, I really hope your niece makes a full recovery and stays in remission. That is why healthcare is important, and frankly those stories are what Democrats should be repeating all day every day until people start understanding the unmitigated evil that the Republicans are perpetrating here.
posted by feckless fecal fear mongering at 1:21 PM on November 7, 2014 [2 favorites]


I'm most interested in how they'll handle severability issue, both how the government will argue it and how it will be decided. It'll be terrible enough to revoke subsidies and the mandate all at once, but I will be beyond furious if we end up keeping the mandate with no subsidies.
posted by dialetheia at 1:26 PM on November 7, 2014


pan: Everything about him felt like he was going to pull an FDR.

GAAAAAAAAAAAAAAAAAAAAAAAH.
posted by tonycpsu at 1:26 PM on November 7, 2014 [2 favorites]


But SCOTUS has already ruled that the mandate is legal, no? That would suggest to me the mandate stays.
posted by feckless fecal fear mongering at 1:28 PM on November 7, 2014


GAAAAAAAAAAAAAAAAAAAAAAAH.

Myth or not, that was the perception.
posted by pan at 1:28 PM on November 7, 2014


and frankly those stories are what Democrats should be repeating all day every day until people start understanding the unmitigated evil that the Republicans are perpetrating here.

Yes, and not just the neagtive of the human costs exacted by failure but also the positive of what people gain from ACA and from other legislation. People support healthcare. They support raising the minimum wage, progressive taxation, employment protections, etc., and those issues can help energize voters in the future.
posted by audi alteram partem at 1:29 PM on November 7, 2014


Those who dismiss the bully pulpit I think miss its main purpose, which is not to sway short-term opinion but long-term. Obama did a decent job in those first two years; it's really the last four that his failure to articulate a positive philosophy has encouraged his tanking numbers and the huge disappointments of the young in particular. But that's mostly post-ACA.

But those making the hard-nosed pragmatic arguments that Obama clearly achieved absolutely as much as he possibly could given the Senate situation omit a number of important instances where more could have been done. Again, for any of these, it's hard to know what difference it might have made -- but it's hard to know because it didn't happen.

(1) The bill was delayed in the Senate for months between when Franken and Spector gave them 60 and Kennedy died while Obama and his centrist Senators tried to craft a bipartisan bill. Waiting as long as they did for the reasons they did was clearly an error, even granting they had no idea the clock would stop sooner than expected.

(2) There were no accounts of serious threats being made to Lieberman. Whether they would have worked remains a hypothetical since Obama didn't even try. The Scott Lemieux article cited earlier basically argues that threats could not have worked on Lieberman because he would switched to the Republican side, which is extremely unlikely and IMHO severely undercuts Lemieux's knowledgable-pragmatist bona fides. In any case, Obama didn't try, presumably because he's long been close with Lieberman. More fundamentally, Lemieux's arguments regarding Lieberman, Nelson, or Baucus are all variants of a more general argument, that threats never work; this too seems unlikely. Contra Sides, what matters is not the overall percentage of Democrats LBJ got, but whether and how he got the marginals, which he seemed quite good at. But in any case, the idea that threats regarding primaries, fundraising, or committees never work is silly. That doesn't mean it would have worked here, but again, there's no record of Obama having seriously tried.

(3) After Brown's election, Emanuel immediately started advocating for watering down the bill farther, with Pelosi pushing the other way. That is, Obama and the White House were actively negotiating right-ward behind the scenes, or at least, were pushing for a piecemeal approach that was designed to allow some provisions to pass and others to fail.

(4) When the bill went to reconciliation, what prevented any significant changes was not the reconciliation rule -- which itself could be changed, as of course can the filibuster at any time -- but the Byrd rule, an addendum to the reconciliation rule adopted in 1985. Changing this rule would have been even less significant than the so-called "nuclear option" adopted last year which allows a 50-vote threshold on lower court nominees. There is no record of Obama advocating that this minor internal rule be changed in the name of allowing the House's more progressive ACA variants to pass.

That's just four instances off the top of my head. There's a *lot* of complexity in the law-making system, which is what makes the claims that Obama achieved as much as he possibly could so misguided. To say that there are ways he could have played it better is not necessarily to say that he made disastrous choices -- it's almost inevitable that in a complex game, one could have done better, and to argue otherwise seems a bit naive. The bigger question is less whether he could have done better, and more about whether his mistakes were all due to a rightward-leaning tendency that the progressive left objects to. (1) and (3) were directly due to centrism, I think; (2) and (4) were due to his famous desire for bipartisanship, cooperation with the center-right (especially the Democratic ones), respect for the Senate and its weird rules (perhaps due to having been a Senator), and a general desire not to twist arms, or at least, mainly twist arms on his left flank (see the sequester negotiations), who clearly irritate him more the the center-right does. (See also his "I heard the 2/3 of you who didn't vote" snark yesterday.)

Anyway, the point is, a lot happened, and it seems almost impossible that in such a complex game there wasn't more Obama could have done. We also know that he is well to the right of what his left flank would like (see NSA, Syria, etc). Whether the second played a role in the first is hard to say, since we lack counterfactuals, but it's not at all clear that it didn't.
posted by chortly at 1:34 PM on November 7, 2014 [4 favorites]


But SCOTUS has already ruled that the mandate is legal, no? That would suggest to me the mandate stays.

There's the separate issue of severability, which is basically whether or not the law still holds if parts of it are struck down by the court. If I remember correctly, this depends entirely on how the bill was written, and there's been a great deal of confusion over whether the entire health care bill goes down if parts of it are struck down, or if those parts that aren't struck down will continue to be law.

I know this was a big issue when they were talking about the mandate because there was the possibility that they could strike down the mandate itself but that all the accompanying regulations would remain law, or conversely that the entire ACA would be struck down altogether. Here's a more in-depth post on severability as it related to the mandate argument.
posted by dialetheia at 1:40 PM on November 7, 2014 [2 favorites]


There were no accounts of serious threats being made to Lieberman.

What could they have possibly threatened Lieberman with? Killing his family? By 2009 he was already deeply unpopular in his home state and knew he was never getting elected to anything ever again. He existed in the Senate at that point essentially to do as he was instructed by the insurance companies and troll Democrats.

Sorry to continue the derail. So, to stay on topic, I don't see Roberts overturning the law over what amounts to a typo. If not an actual conscience, the man at least appears to have some interest in his own legacy.
posted by seymourScagnetti at 1:42 PM on November 7, 2014 [1 favorite]


...And since that last link I posted is to a very long blog post, here's the key excerpt about the way the government argued severability when the mandate case was heard:

"On severability, the government wanted the Court to rule that, if it nullified the individual mandate, it should also “sever” (and thus salvage) the rest of the Act, with only two exceptions: the requirement that the insurance companies not turn away insurance applicants with preexisting medical conditions, and the provision that companies could not raise their premiums without limit to cover their new coverage obligations. Those, the government said, were so closely linked to the mandate that they could not function without it."

Can the government change the way they argue severability in this new case? If they stick with the argument they made before, it definitely suggests we could be left with a mandate but no subsidies, but maybe they can still argue that the mandate is so closely linked to the subsidies that it couldn't function without them.
posted by dialetheia at 1:44 PM on November 7, 2014


Republicans represent the force of entropy. Democrats work to build something up. Social Security, safe access to abortion, gay rights. We "win" - nominally, and seemingly successful at first.

Then along comes the inevitable decay and rot of entropy.

Chipping away. Breaking apart at the edifice. A foundation, slowly crumbling, rotting.

Though Entropy is too kind. Entropy is like the Tao. Entropy lets things take their course, it just IS.

These assholes, they're not really entropy, are they? They're a countervailing and reactionary force. They're not merely entropy they're the "opposite and equal reaction"...

But really overreaction, not really equal.
posted by symbioid at 1:44 PM on November 7, 2014 [1 favorite]


dialetheia: I'm most interested in how they'll handle severability issue, both how the government will argue it and how it will be decided. It'll be terrible enough to revoke subsidies and the mandate all at once, but I will be beyond furious if we end up keeping the mandate with no subsidies.

I understand where you're coming from but I think you're wrong about this. If the mandate is struck down the ACA is dead. Not just wounded. Dead, and will not be replaced. The subsidy issue, on the other hand, is only a wound. And one which can (and I think mostly would) be addressed. So I think hoping that, if the subsidies in some states are struck down, that the whole thing gets permanently killed is really throwing out the baby with the bathwater.

We can fix the subsidies. We cannot and will not be able to replace the ACA if the mandate is tossed.
posted by Justinian at 1:46 PM on November 7, 2014


"No". McConnell actually said, in 2010, "The single most important thing we want to achieve is for President Obama to be a one-term president." Never mind the economy, jobs, healthcare, or anything else. The most important, or maybe the only thing that mattered to the Republicans was the failure of the Obama administration.
posted by seymourScagnetti at 3:56 PM on November 7


seymourScagnetti, do you have a source for that quote? I've been telling people that McConnell said that (and I seem to recall that John Boehner made a similar comment at some point) but I can't find a source.
posted by magstheaxe at 1:47 PM on November 7, 2014


Meanwhile, Massachussetts still has their Romneycare, surviving its one legal challenge.
posted by filthy light thief at 1:48 PM on November 7, 2014 [1 favorite]


the problem with the ACA is pretty simple, the law divides people into four categories of beneficiaries:

1) people who will retain job-based insurance: they get pre-existing condition protection, extension to kids under 25, and whatever else

2) people who are able to buy personal insurance on the exchanges due to price lowering regulations

3) people who are able to buy personal insurance on the exchanges due to subsidies

4) people able to get onto medicaid due to the expansion

Each of these groups get something different from the law and what affects one group may not effect the other. Now you can make some guesses about which voter groups fit into these four categories, and then ask yourself whether slicing or dicing the electorate this way benefits Republicans or Democrats?
posted by ennui.bz at 1:49 PM on November 7, 2014


all of your arguments, including the one about using his exceptional oratory to bring those facts to the American people, have been specifically refuted by myself and others

We disagree. That's your and a few others perception. It's not the perception of most of the many many dozens of Democrats I know, nor the perception of many who are going to have their ACA benefits apparently perennially challenged by GOP goons; nor, am I only speaking of oratory; I'm speaking about sheer will to win.

My last word: The GOP/Tea Party has been successful (if you want to call it that) because they have virtually no rhetorical opposition; they control and invent the memes that work. Americans are captive within a system that is now almost guaranteed to deliver mediocre results.

How does that happen? Because the so-called other side is a vacuum; it's spineless. As tough a posture that Obama and his administration have presented, or tried to present, they have along with most of the Democratic Party failed to turn the conversation in this country around. We are better off than we were in 2008, but not by much. Look deeply into the promises kept and compromised. there is a lot of chaff in those categories. Where's the wheat?

I expected more outright passionate opposition; more *fight*; more determination to crush the life out of democracy-killing GOP memes that appeal to negative emotion. Instead, all I have seen is "compromise" that leans advantage to the other side (and claimed as 'victory' by the Democrats).

Refute all you want; the FACT is that the GOP/Tea Party is winning the war of the memes; they are winning the game of compromise. They are blocking ACA whenever and wherever they can. All that is made possible because their opposition has become a huge liberal echo chamber without the guts to really challenge the system. Both parties have the electorate - even the informed electorate who understand the rules of the game - that "this is the way it is; this is why we have to compromise". Yes, compromise, while the mass of wealth and benefit created in America continue to wick up to the top 5%.

It's easy to go about speaking about how "politics is compromise", but not so easy to insure that when you compromise you don't negotiate zero sum, long-term "wins" for the other side, These zero sum "wins", including ACA are the crumbs that Americans have been conditioned to feeding on. Sad.
posted by Vibrissae at 1:53 PM on November 7, 2014 [2 favorites]


The subsidy issue, on the other hand, is only a wound. And one which can (and I think mostly would) be addressed.

I sure hope so! But I live in a conservative state, and the chances of my state leaders addressing subsidies or state-run exchanges on their own are approximately nil, so it would really have to be done at the federal level. Given that we also just elected a big crop of people who would be thrilled to wound ACA in any way possible, the likelihood that this new congress would address those subsidies also seems pretty low, although I would dearly love to be wrong about that.
posted by dialetheia at 1:53 PM on November 7, 2014


My last word: The GOP/Tea Party has been successful (if you want to call it that) because they have virtually no rhetorical opposition; they control and invent the memes that work.

It doesn't hurt that they also enjoy 1) a dedicated, 24/7 propaganda media machine, including Fox News and talk radio, and 2) the rest of the national media falling all over themselves to provide "balance" by airing the right's rhetoric with nary a challenge.

The Democrats simply have no clue about propaganda. The right, otoh, have been writing and re-writing the book for decades now.
posted by Thorzdad at 1:59 PM on November 7, 2014 [1 favorite]


Meanwhile, Massachussetts still has their Romneycare, surviving its one legal challenge.

Meanwhile, the changes brought by the ACA are accelerating the collapse of local health care systems in western massachusetts.
BMC HealthNet Plan was founded by Boston Medical Center in 1997 and provides managed care coverage to Massachusetts residents eligible for MassHealth, Medicaid, Commonwealth Care and Qualified Health Plan.

It is a managed Medicaid plan. Managed Medicaid is a federal program that pays health care providers like doctors and hospitals more than standard Medicare.

The additional money goes to pay case managers, called care coordinators, who help patients enrolled in the plans focus on prevention and wellness, Keroack said. Examples of work a care coordinator would do include reminding plan members to get their children vaccinated on time, he said.

The plans cost more up front, but eventually save the government Medicare costs by keeping families healthier and preventing disease, Keroack said.

The BMC HealthNet program became very popular, he said.

"They initially got some fairly generous federal subsidies," Keroack said.
"But they are starting to lose a substantial mount of money."

Klein said BMC HealthNet has $33 million cumulative loss this year through the most recent quarter.

He said there are two reasons for the loss:

A new hepatitis C drug that costs $100,000 a treatment and was not included in BMC's financial plans.
The patient population in BMC HealthNet's managed Medicaid plan is sicker than the population the state predicted the plan would have. This is due to the failure of the state's health connector Website.

"What we have here is a disparity between what the state pays us and what Baystate wants and what it has been getting historically," Klein said. "We need to bring them into line with what the state pays us."
BMC Health Net is the main "insurer" for Medicaid recipients in *western* mass. Baycare provides essentially all of the sophisticated outpatient services in western mass and runs most of the hospitals.

And, in the Berkshires, emergency room services are being disrupted as local hospitals go bankrupt.
posted by ennui.bz at 2:00 PM on November 7, 2014


1) Versioning applied to the text of a law as it passes through drafts (including listing those who alter the text attached to each alteration)
This should be a simple three step process:

I. Make public high-quality version-control software available for everyone to use.

II. Convince Congress that total transparency in the legislative process is a good idea.

III. Make sure at least one staffer for each Member of Congress is competent enough to use the version-control software.

Since (III) should be trivial (Git has how many million users now? We can probably afford to hire a few hundred in DC.), and (I) is already done, I'm guessing (II) is the holdup.

There seems to be a German group who's putting their laws on Github, but third party copies aren't more than a partial solution. I don't just want "git diff", I want "git blame".
posted by roystgnr at 2:13 PM on November 7, 2014 [2 favorites]


Man, it's been a few years since I've been in an argument about the way the ACA was negotiated so I may be a little rusty, but here we go.

What's never helpful in these discussions is asking who would have voted for a different plan based solely on how people actually did vote in the timeline in which we exist. But several issues shaped the discourse throughout 2009, and if any of them had been handled better, a plan with a public option could have been possible. Here are a few:

Issue 1: Terrible negotiation. When you know that the other party in a negotiation is going to be hostile and resist everything kicking and screaming, you don't come to the bargaining table asking for exactly what you want in the end, because inevitably they're going to pull you in their direction from there. If you want private plans with a public option, you don't start the negotiation asking for private plans with a public option, you start the negotiation asking for single payer and negotiate down from there. (I'm saying this as someone who desperately wants a single payer system but can acknowledge that that would have been politically impossible.) Of course some would say don't support something that would never pass, but that ignores the whole concept of the Overton Window in politics and the demonstrated success that Republicans have had moving it over the past several decades.

Issue 2: Terrible PR. People say that voters didn't really want the public option (in this thread for instance, someone said "There was really no large public constituency for single payer or even a public option…"), but that's historical revisionism. There's a great timeline in this depressing Politifact page charting public opinion polls talking about the public option. In a WSJ poll conducted from June 12-15, 2009, 41% of respondents said a choice between a federally-administered public plan and a private plan was "extremely important" and 35% said it was "quite important." That's 76% of respondents saying the public option is important. The numbers steadily declined over the summer, but remained in the 59-66% range in polls through July. But the August recess in 2009 is when the Republicans seized control of the narrative - astroturf groups of old white people bussed in to town hall meetings by tea party organizations funded by billionaires raised a shit fit, yelling about death panels and generally spreading lies to terrify people about what Obamacare really was. And the 24-hour networks and blogs that feed off controversy for eyeballs gave the spectacle plenty of coverage and offered the standard he-said, she-said, it's probably somewhere in the middle analysis that's all too familiar now. By fall, at least a plurality of people opposed the public option. I don't know what it would have taken to effectively counter the shit PR being pushed by Republicans, but if the vast majority of the public still favored the public option, it would have been much harder for cowardly Dems worrying about their re-election prospects to vote against.

Issue 3: Obama bargained it away anyway. Several people have come forward in the aftermath and admitted that the public option was taken off the table in private negotiations with insurance and hospital association representatives in July 2009. For instance, Tom Daschle wrote in his book about the health care negotiations that the Senate Finance Committee and the White House, to convince hospitals to accept payment reductions, made two concessions: the Senate would aim for health coverage of at least 94% of Americans, and "The other was it would contain no public health plan." In a later interview, quoted at the same link, Daschle said "It was taken off the table as a result of the understanding that people had with the hospital association, with the insurance (AHIP), and others. I mean I think that part of the whole effort was based on a premise. That premise was, you had to have the stakeholders in the room and at the table. Lessons learned in past efforts is that without the stakeholders’ active support rather than active opposition, it’s almost impossible to get this job done. They wanted to keep those stakeholders in the room and this was the price some thought they had to pay." NYT reporter David Kirkpatrick reported that the chief lobbyist for the hospital industry confirmed the existence of the deal. Notably, as negotiations dragged on through the fall, Obama had given up on the public option. In his September 9 address to a joint session of Congress, he announced he would not "insist" on the inclusion of a public option. Addressing the Democratic caucus in early December, he didn't even mention it, much to Lieberman's delight. This was infuriating and a little surprising to those of us who had eagerly expected that he would defend his campaign promise to include a public alternative in his health plan, but it makes much more sense in retrospect knowing that he'd already bargained it away in the back channel.

I'm glad that Obamacare got passed, even as it is. I hope the Supreme Court doesn't further undermine it. I'm thankful that more people are covered, that denials based on pre-existing conditions are a thing of the past, and so on. I still wish it had been better. I'm not saying that the Congress that existed on the day of the vote would have passed anything better.

But if the three things listed above had happened differently, the stakes would have been different, and I don't believe a public option would have been outside the realm of possibility. And I think it's important not to whitewash what happened, so that we can learn from these mistakes. Ask for more than you want. Don't sleep on the narrative. And for god's sake, don't bargain things away that would massively benefit the public for the promises of cooperation from industry groups that are going to stab you in the back and raise hell about it anyway.
posted by cobra_high_tigers at 2:21 PM on November 7, 2014 [17 favorites]


I'm guessing (II) is the holdup.

Congress, or rather it's corporate ownership, does not want any more transparency in process than they already have to deal with. In fact, it's going the other way around.
posted by T.D. Strange at 2:24 PM on November 7, 2014 [2 favorites]


What could they have possibly threatened Lieberman with? Killing his family?

Lemieux for instance not only grants there were things Lieberman could have been threatened with, he even implies that the particular threat on the table was too extreme: "The fact is, the Obama/Reid strategy with Lieberman was vindicated; stripping him of his chairmanship would have just led to him caucusing him with Republicans, which means not only no public option but no ACA and no DADT repeal." Who knows whether this would have worked (or threatening his earmarks, other committees, proteges in CT, or whatever). But these levers do exist, even for lame ducks, and weren't tried, as far as we know.

Regarding the meta-discussion, sorry to continue the derail. On the other hand, it's pretty relevant to the case, since these sorts of errors were made precisely because of the crazy negotiations that went into passing this bill.

posted by chortly at 2:39 PM on November 7, 2014 [1 favorite]


(1) The bill was delayed in the Senate for months between when Franken and Spector gave them 60 and Kennedy died while Obama and his centrist Senators tried to craft a bipartisan bill. Waiting as long as they did for the reasons they did was clearly an error, even granting they had no idea the clock would stop sooner than expected.

Right, the "months" between when Al Franken was seated (2009-07-07) and when Ted Kennedy died (2009-08-29.) 1.58 months if I'm doing my math right, a majority of which was eaten up by the August recess. Contra your revisionist account that relies almost entirely on hindsight, there was no contemporaneous reason to believe that rushing a bill through prior to the recess was desirable.

(2) There were no accounts of serious threats being made to Lieberman. [...] That doesn't mean it would have worked here, but again, there's no record of Obama having seriously tried.

Tell me, if I'm buying an $18,000 MSRP car, does it make sense for me to "try" to get it for $18? Or do I instead accept going into the negotiation that, while I have some leverage to negotiate a better deal than the sticker price, I don't have $17,982 worth of leverage?

Similarly, what leverage did Obama have over Joe Lieberman, who wasn't up for election again until 2012 (and ended up retiring anyway)? And on what basis are you discounting him switching parties? After his victory against Ned Lamont in '06, his entire raison d'etre in the Senate was about being a thorn in the side of Democrats, and on the few issues where he was still ideologically liberal at that time, he could have voted his conscience and remained a Republican. He openly courted Republican support throughout his independent run in '06, and I bet if he'd listed his ten best friends in the Senate, more than half would have been Republicans.

And, along those lines, how would he have strong-armed Nelson, Baucus, Landrieu, or Lincoln in their deep red states where Obama's support would be unwelcome, and where a primary challenger from the left wouldn't have a chance to begin with? Every one of those Blue Dogs knew that a threat to them would be empty, because it would almost invariably lead to giving the seat away to a Republican. Even if OFA and the party had backed a different moderate in those races, they'd be forefeiting the incumbency advantage in a state where Democrats have to fight for their lives every six years.

Could Obama have bluffed one of these Senators with such a bad hand? Perhaps? As you say, counterfactuals are hard. But all of them? No. Fucking. Way. It just beggars belief that he could strike that kind of bargain with so little to threaten them with.

(3) After Brown's election, Emanuel immediately started advocating for watering down the bill farther, with Pelosi pushing the other way. That is, Obama and the White House were actively negotiating right-ward behind the scenes, or at least, were pushing for a piecemeal approach that was designed to allow some provisions to pass and others to fail.

This is more revisionist history. Emmanuel had his views, and often made those views known, but he did not represent "the White House" in those negotiations -- Obama himself did. Notably, Obama did not listen to him, he listened to Pelosi. It's accurate to say that a senior member of Obama's staff wanted the piecemeal approach, but inaccurate to paint it as Obama and Emmanuel fighting Pelosi. At worst, this was a failure to put a muzzle on his Chief of Staff, not an indication that Obama was fighting for a weaker bill. (And it's no coincidence that Emmanuel would be out of the White House within a year.)

(4) When the bill went to reconciliation, what prevented any significant changes was not the reconciliation rule -- which itself could be changed, as of course can the filibuster at any time -- but the Byrd rule, an addendum to the reconciliation rule adopted in 1985. Changing this rule would have been even less significant than the so-called "nuclear option" adopted last year which allows a 50-vote threshold on lower court nominees. There is no record of Obama advocating that this minor internal rule be changed in the name of allowing the House's more progressive ACA variants to pass.

No, as a matter of fact, killing the Byrd rule would have had much more far-reaching effects than the relatively minor changes the Dems made to the filibuster last year, because the hurdles to get a bill that can pass through reconciliation are relatively minor. Far from being a "minor internal rule", it was the lynchpin of the Republicans' ability to filibuster, and would have unleashed unshirted Hell at a time when people actually believed the parties could and should work together. (Note that the 2013 filibuster changes were only possible after years and years of being obstructed.)

All of your points have some element of 20/20 hindsight to them, and some are simply wrong on the basic facts. I share your view that we should examine places where Democrats could have done better, but we need to do so looking at what information was known at the time, and what political incentives were at the time.
posted by tonycpsu at 2:48 PM on November 7, 2014 [3 favorites]




Some back-of-the envelope numbers, based on my subsidized silver-level coverage (which is, thankfully, offered through a state-based exchange).

Month-to-month, my plan eats up about 13% of my take-home before I even attempt to access coverage. Without the subsidy, that would shoot up to about 22.5%.

If I need to use up my deductible (if, for instance, I need acute care or have a chronic condition or decide to access mental health services), that's another 10% of my take home. Without the subsidy, I think that goes up to 17.5%.

In short, people with chronic conditions and medical emergencies could go from paying almost a quarter of their take-home income to health insurance—as they do with the subsidy—to about 40%. And that's before you take into account any copays or out-of-network care.

And that is why my heart rate doubled when I read that this case was taken up by the court.
posted by evidenceofabsence at 2:55 PM on November 7, 2014 [6 favorites]


If the mandate is struck down the ACA is dead.

If the court finds that there are federal exchange subsidies, then the necessary upshot is that mandates without subsidies are how the law really is. The severability issue only comes into play when a section is struck down.
posted by jpe at 3:05 PM on November 7, 2014


cobra_high_tigers: But if the three things listed above had happened differently, the stakes would have been different, and I don't believe a public option would have been outside the realm of possibility.

You make a more persuasive case than has been made so far, but I still think getting from 44 supporting the public option to 60 was nigh impossible when numbers 55 through 60 are the gadflies mentioned above. I'm willing to listen to arguments that suggest otherwise, and I can't argue with the "terrible PR" point. I don't think better PR in and of itself would have been enough to get a substantially better bill, but maybe at the margins things could have been improved.

I think the "terrible negotiation" point ignores the downside risk of opening with a bid so far to the left (single payer) that it would have instantly shut down negotiations. On the Overton window aspect, you correctly note that the GOP has shifted the right pole of the debate on any number of issues over decades, but Obama and the Democrats didn't have decades, they had some number of months. Even if he had barnstormed the country more than he did, he could not have created a constituency for the public option large enough to motivate red state Democrats or blue state Republicans in a matter of months.

On "bargaining it away": Obama folded on the public option in September 2009. At that time, it was clear that none of the recalcitrant Democrats were going to change their position on it, and having just lost their 60-seat majority (which they'd get back briefly later in that month when Paul Kirk was seated) he didn't have time to fuck around waiting for something to happen. Taking the public option off the table likely galvanized support for the ACA as it came to be, and was likely the only way to get support from Lincoln, Lieberman, et al.

So I see one point on which you're correct, one where you're assuming the fastest Overton window shift ever, and one where you're mistaking the thing that may have saved the bill as some kind of strategic mistake.
posted by tonycpsu at 3:07 PM on November 7, 2014 [1 favorite]


> The only reason you want to back a third party is because you either don't understand how political parties chose their candidates and platforms, or you're trying to do an end run around the democratic process that determines such things. Not a good place to start from.

Or you might have actually done the math and realized that in non-swing states, voting R or D has absolutely no value of any type. For example, in the recent NYS governor's election, the D led the R by approximately 2 to 1. By voting Green (who by the way got the highest showing in 50 years for any third party) we were able to ensure that they get represented in the debates, which is a Big Deal because it means that a point of view other than the established "Wall Street good, wars good, surveillance good, ..." idea we get from the standard parties.

> And, you know, it's funny - the goddamn Greens and Moderates and Libertarians rarely if ever organize and back candidates for school boards and town councils and small-town mayorships. Which is a third reason third parties are terrible - they're lazy and won't put in the work.

I can't speak for the other states, but in New York State the Greens pulled a respectable slate of over two dozen local candidates.

But there's perhaps something you have failed to understand - which is the fact that no third-party can afford to have full-time political workers. The Green Party in New York State has a budget that's a couple of percent of the budget of the Democrats - the gubernatorial candidate, Howie Hawkins, is a UPS worker.

If you are right, then we are continue to get a succession of right-wing Democrats and ultra-right-wing Republicans till the end of time - endless warfare, endless surveillance, ever-increasing usage of fossil fuels, climate change, the ongoing destruction of the working classes and of the public educational system.

For a few people, this is an intolerable situation. A few people choose to work against this, not because they're ignorant of how political parties or the system works, but because the only alternative is despair.

Lazy people wouldn't be taking all their spare time and more to work for no possible benefit to themselves simply because they hope to improve the world - particularly given the scorn and derision that is heaped upon them by people such as yourself.
posted by lupus_yonderboy at 3:09 PM on November 7, 2014 [9 favorites]


The sixty vote requirement in the Senate is still taken as a given...that is, until the day after the Republicans gain a majority.
posted by idb at 3:09 PM on November 7, 2014 [4 favorites]


I'd be tickled pink if the GOP actually wanted to end the filibuster, but one back-bench House member from Virginia doesn't mean much. Most Senators are the type who value their own individual power over any kind of party-wide goals, and the power of individual senators is enhanced by the filibuster. I just don't see them pulling the trigger, but if I'm the Democrats, I don't get in their way.
posted by tonycpsu at 3:15 PM on November 7, 2014


tonycpsu: I should have spoken with more precision. I certainly didn't mean to imply that Obama could shift the Overton window immediately -- I just meant to counter the argument, sometimes aired in discussions like this, that taking positions outside of the narrow range of what Villagers consider to be "acceptable" is a waste of political capital. I think it's important to have people in positions of power speak out on the left, even if they aren't ultimately successful. And you're right that single payer would probably be too far to work (especially given that the only Democratic candidate who campaigned on that was Kucinich, from what I recall, and Obama never said he would deliver it so it would be an obvious bluff), but maybe open with drastically expanded Medicare coverage, to be bargained down to a public option? Anyway, I think the bargaining position point is important to keep in mind for future negotiations, even if I spoke in haste in my original comment. (Told you I was rusty)
posted by cobra_high_tigers at 3:24 PM on November 7, 2014 [3 favorites]


Is there anything more succinctly American than a bake sale to fund cancer treatments ?

Wounded Warrior. $19 a month. Mark Wahlberg in the commercial. America.
posted by RolandOfEld at 3:57 PM on November 7, 2014 [3 favorites]


All these rich fuckers investing so much time, money, intelligence, organization, privilege, cleverness, and cynical brilliance into one project after another to fuck over poor people is absolutely infuriating to me. Seriously what is wrong with these people?
posted by Philemon at 4:15 PM on November 7, 2014 [4 favorites]


If the court blows up the health care of millions of Amercan, Congress will have to amend the law to address the problem. That or they can assure Hillary 2016 and a Democratic wave.
posted by humanfont at 4:26 PM on November 7, 2014 [1 favorite]


I don't see that what the Supreme Court does really matters to the majority of Americans. The states currently using the federal exchange just need to put up their own splash page and wrapper around the federal exchange and call it done -- they have their own state exchange. The federal government is just another contractor like any other contractor that builds state exchanges. Nothing changes for people in those states.

In some of the red states, the politicians will have some real pressure against taking away a benefit for millions of voters that have had subsidies for the prior two years. If they decide to cave in on the exchange issue, they just might have the cover to add on Medicaid expansion at the same time.

None of this is an actual threat to the ACA law. There is no severability issue because this case isn't about revoking the law, only about interpretation of the law. The exchanges will still exist, even in the red states. It just means that those people will no longer get subsides if their politicians don't have a change of heart when the pressure is turned up.

I have to wonder about the timing of the Supreme Court taking on this case. It was highly unexpected and against custom that they would jump in before the 6th Circuit ruling. The cynic in me suggests that the four horsemen of the court intentionally did this just before the new enrollment opened up in an attempt to scare people from signing up for new insurance by raising doubts about subsidies. They know as well as everyone that the more people who sign up for the ACA, the harder it will be for politicians to take it away.
posted by JackFlash at 5:01 PM on November 7, 2014 [1 favorite]


If the court blows up the health care of millions of Amercan, Congress will have to amend the law to address the problem.

Am I just a terrible pessimist these days that I don't have any faith that this is true? Congress has shown not even a glimmer of an ability to address any problems at all over the last few years and I don't see it getting better with the crew we just elected. I also have no faith that my red-state legislators would create a state-run exchange even if it was the easiest thing in the world, solely because it would mean buying into ACA.

It just means that those people will no longer get subsides if their politicians don't have a change of heart when the pressure is turned up.

... and that means I'm stuck with a mandate to buy health care that I absolutely can't afford without those subsidies.
posted by dialetheia at 5:08 PM on November 7, 2014 [1 favorite]


Halbig: "the card says Moops".

Low Bridge: The Lingering Death of Health Care Reform
posted by homunculus at 5:09 PM on November 7, 2014


and that means I'm stuck with a mandate to buy health care that I absolutely can't afford without those subsidies.

No, the law exempts you from the mandate if you do not have affordable insurance without subsidies, so you wouldn't have to pay a penalty. But then again, you probably won't have insurance either. But you wouldn't pay a penalty.
posted by JackFlash at 5:16 PM on November 7, 2014 [1 favorite]


Everything will be cool guys because, as I've heard innumerable times, both sides are the same.
posted by Joey Michaels at 5:35 PM on November 7, 2014 [9 favorites]


I should have spoken with more precision. I certainly didn't mean to imply that Obama could shift the Overton window immediately -- I just meant to counter the argument, sometimes aired in discussions like this, that taking positions outside of the narrow range of what Villagers consider to be "acceptable" is a waste of political capital.

Oh, absolutely, and I'd say even most hardened anti-Green Lanternites have acknowledged there are cases where Presidential rhetoric and the ability to set the agenda can result in gains around the margins. The thing is, you have to balance the potential positives of taking a non-beltway-approved position with the downside risks, and I think a lot of people minimize those, in part because of their own disappointment over what the bill ended up being.

but maybe open with drastically expanded Medicare coverage, to be bargained down to a public option?

Maybe? I can't entirely discount the possibility of something like that, but since we so little about the early negotiations (and what we do know is usually from people who were directly involved, and thus have an agenda) there's no knowing if the opening position did, in fact, start with a demand for a more generous Medicaid expansion. I'd be shocked if it didn't, honestly, but we don't know those numbers, so we're all stuck reading tea leaves.

Anyway, I totally understand where you're coming from. The reason I push so hard against this kind of argument is because it lets the real villains -- the Liebermans, Nelsons, Lincolns, Baucuses, and to some extent the Snowes and Collinses, off the hook entirely. That may not be the intent of those suggesting Obama should have pushed harder, but I think that's what people take away from arguments that rely in part on "pull an FDR" / "bully pulpit" / "Didnt. Even. Try." kind of rhetoric. I do acknowledge that Presidents have power, but in our system legislators also have power, and in some cases they have more power.
posted by tonycpsu at 5:40 PM on November 7, 2014 [1 favorite]


Convince Congress that total transparency in the legislative process is a good idea.

There's plenty of people invested in this, both in office and in civil service. All the people behind THOMASCongress.Gov, for example. I'm not going to out them since I think they work to keep some distance between their online life and professional, but there's a MeFite who essentially, professionally, is all about communication of the legislative process to the outside world. In the elected world most of the interest is in the House and the Republicans are actually better on the issue. The Senate I'll address below.

If you're really interested in this subject those of us who work on it would love to have you. You could do worse than to simply start with the Data Transparency Coalition website. Or some of our members are CREW and the Open Gov Foundation and they have good links to follow.

For how it happens now, in the House, you might look at Drafting Legislation in the House of Representatives. or any of the stuff up at the higher level talking about the House's embrace of XML.

When it comes to improved traceability etc, you have three enemies.

One, the process. It's not quite like what you learned on Schoolhouse Rock. Here's a still pretty accurate diagram of the potential steps in the flow of a bill[pdf] (jpg here - illegible, but you can get a quick idea of the steps and complexity here). You've got the major types, like H.R. and S. which are simply out of the two chambers. Then there's joint resolutions from each chamber, and concurrent from each chamber, and simple from each chamber. Simples don't involve the other chamber and are for most purposes BS you wouldn't care about in this circumstance - they don't have force of law.

That's not so bad, but the steps also mean versions and woo baby there's a lot. My project only addresses a fraction; here's the list out of my code:

'ih', 'is', 'eh', 'es', 'rh', 'rs', 'ats', 'pcs', 'cps', 'cph'

We don't mark up the other 50 or so possibilities for each bill (though in fairness I am overselling it - many would never, by nature, have those versions)

The House is where it's at for tech innovation, as I have said, and they have some resources if you're interested. Here's their chart of the simplified process of what's in the frightening image above[pdf[ and a fun tech timeline of how things have been done since back in the 18th century. My favorite: In 1874 the first elevator was installed in the U.S. Capitol, and in the 1880s electric lighting began to replace gas lights.

Two, inertia and tech hostility. The Senate is technologically in the stone ages. Why this is is speculated on wildly, but most of the folks I talk to on the outside think it's a combination of the chamber being older and working slower and having less turnover. For all the ill it creates, the House's turnover and size means new blood coming in and being frustrated with The Way Things Have Always Been Done, so they push and bring in new ideas/tech.

Three, not wanting to show how the sausage is made. The worst place for transparency, IMNSHO, is in the committee level. They are often just black holes, and the number of things we see that happen inside them is slim and the reporting of them even worse.

If you're a coder and interested in applications that advance government transparency there's a tools common on Github called United States which includes a number of things that advance transparency in the legislative process. The two of them I use in the project that I work on for a significant part of my professional life are Congress, which automates retrieval of the XML marked up versions of introduced legislation, and Citation, which finds legal citations in text. In the second case my project uses that to apply further markup to the XML bill to provide richer links.

We have some shared tools using that, as well as a somewhat up-to-date corpus of our marked-up bills in XML format, over here. A lot of it is designed towards creating wikisource documents, a focus that has shifted somewhat, but they show some of the complexity of taking legal markup and turning it into something more useful.

And this is already tl;dr. Maybe I need to put together a data transparency in government metafilter post.
posted by phearlez at 5:45 PM on November 7, 2014 [23 favorites]


No, the law exempts you from the mandate if you do not have affordable insurance without subsidies, so you wouldn't have to pay a penalty. But then again, you probably won't have insurance either.

Ah, fair enough. That's some cold comfort, at least they won't charge me extra for losing my insurance. I'm going to go cry into my beer and make a list of preventative health care I should get before these assholes take it away from me and my terrible intransigent state legislators refuse to do anything about it.
posted by dialetheia at 5:48 PM on November 7, 2014


You know how they say staying angry at someone is allowing them to have power over your thoughts and emotions? That's got to make Barack Obama one of the most powerful people EVER. The level of obsession with proving him wrong or making him have a failure, no matter how small, is frightening. And the ACA is not small.
posted by ctmf at 5:58 PM on November 7, 2014 [1 favorite]


The more complex a law becomes, the more need there is for simplificatin.

Write all laws as flowcharts.
posted by jason_steakums at 7:03 PM on November 7, 2014 [1 favorite]


But SCOTUS has already ruled that the mandate is legal, no? That would suggest to me the mandate stays.

According to that ruling, the individual mandate's penalty is the same as a tax, and it's legal as a tax. There's also all this stuff in Roberts's majority opinion about how the commerce clause doesn't mean that the government can force people to buy things, even if they should buy those things for their own good (the "broccoli" theory that Scalia floated), and that the individual mandate is an overreach in that context -- but that the penalty attached to the individual mandate is still legal because taxes are legal. Personally, I thought Roberts's opinion made it sound like the mandate itself wasn't legal, because it represented an overreach of the authority that the commerce clause actually gives the federal government, but that the mandate *penalty* was legal, because the federal government can levy taxes. Which seems utterly bizarre to me and I can't imagine how it could come into play now. I'm not a lawyer, though, and when I discussed this with my health policy professor she just waived it off totally, so I'm not really sure how all that commerce clause blather in the opinion is supposed to be interpreted or how it's relevant.

No, the law exempts you from the mandate if you do not have affordable insurance without subsidies, so you wouldn't have to pay a penalty. But then again, you probably won't have insurance either.

Yes, right now in states without expansion, adults with incomes below 100% of the poverty line by and large don't have insurance (there are some demographics that are eligible for public insurance even in those states, like people on disability are eligible for Medicare, etc, but eligible adults are a tiny percentage of the adults who are eligible by way of income alone under expansion). The states who refused expansion probably don't have state exchanges, though, so if the Supreme Court rules that the government doesn't have the authority to distribute subsidies to people who bought their insurance through the federal exchange, that coverage gap that people with incomes below 100% of the poverty line fall into will probably increase to include adults with incomes between 100% and 400% of the poverty line, too. 400% of the poverty line is really pretty high -- for a family of four it's an income of $95,000+/yr -- so that's a *lot* of people.

The only thing that might make this marginally better is that the employer mandate still hasn't gone into effect, but once it does, more people will hopefully have access to insurance to insurance through their employer. Unless all the insurance options offered by your employer cost more than 9.5% of your income to purchase an *individual plan* (even if in reality you have dependents and need to buy a family plan), then you weren't going to have access to the exchanges anyway. There are other issues that come into play w/r/t the adequacy of employer-based plans (there are lots and lots of regulations within the ACA about this, but of course there are also lots and lots of people trying to find ways to cut corners -- the wild frontier w/r/t this is small businesses, if you want to research it more). But the employer mandate will still probably be important.

BTW, the group that REALLY doesn't want the subsidies to go away are the insurance companies. They would be *screwed.* It's also turning out that they're really eager to get the bigger market share they can access through the exchanges, and so they're being competitive in terms of joining the exchanges and in terms of pricing the plans they're offering on them -- which means that premiums aren't going up (which is what everyone was fearing) and the costs of the subsidy program won't be going up. So actually, everything's going surprisingly well w/r/t how the exchanges are functioning right now, and insurance carriers are actually pretty happy! But yeah, if suddenly it turns out that the federal government can't pay out all this money it's been promising the insurance companies through the subsidies (and afaik, the government still hasn't *actually* paid out the money even for 2014, they've been floating the insurers so far) the shit is going to hit the fan.

I actually think that the insurance companies might lean hard enough on everybody that the ACA won't be gutted in this *particular* way. Or my fingers are crossed, anyway! I got my insurance through a federal exchange. We already don't have Medicaid expansion here, and if it turns out we can't get subsidies, either, I'll probably just try to move across the state line so that I can get access. Ridiculous, but it's just too much. This is also only a couple days after I turned up at the poll for midterms only to find out that they put a voter ID law into effect here a few months ago. This was of course the first major election since then and the new ID requirement wasn't publicized at all. Of course, because publicizing it would have defeated the purpose. I'm just sick of it tbh.
posted by rue72 at 7:40 PM on November 7, 2014 [4 favorites]


But there's perhaps something you have failed to understand - which is the fact that no third-party can afford to have full-time political workers.

This is what primary challenges are for—so you can actually get your candidate the backing they need to have a shot at actually making policy.

If you are right, then we are continue to get a succession of right-wing Democrats and ultra-right-wing Republicans till the end of time

Again, this is what primary challenges are for. If you kick Joe Lieberman (for example) off the Democratic ticket and he wins anyway, by creating the Joementum Party, the idea that your farther-left candidate had a shot at winning the seat is pure fantasy.

For a few people, this is an intolerable situation. A few people choose to work against this, not because they're ignorant of how political parties or the system works, but because the only alternative is despair.

They can do what they want, but they shouldn't expect others to pretend that it has any chance of affecting policy.
posted by one more dead town's last parade at 7:50 PM on November 7, 2014 [1 favorite]


I for one don't have especially strong feelings on the ACA stuff, but certainly those on the Obama-did-it-right side seem to have at least as strong feelings as those on the other side. I don't particularly enjoy arguing with claims of "revisionist history" (aren't we both arguing about history?), but one more round I guess...

Regarding the period between Franken and Kennedy, negotiations were active, and a recess by no means meant that the WH or Senate players were in stasis. If I'm revising history, so is wikipedia. As I originally said, they didn't know the time was almost up, but time was clearly wasted in a fruitless search for bipartisanship.

Regarding Lieberman, Lemieux and I and quite a few others thought there were levers regarding committees, earmarks, and Liberman's more general legacy. That is not revisionist history; it may not be correct, but it is accepted history. And I discount him switching parties based on his CT core supporters, who were ok with supporting an Independent, but unlikely to support a Republican; that's not a matter of reelection, but again about his legacy and final three years. Again -- could be wrong, but it's not very outlandish, and such things happen all the time.

Regarding the other centrists, I agree there's not much leverage besides the usual committees and essentially threatening to make them lose to Republicans. Obviously Obama would never do that, though strategically I myself am able to think multiple years ahead, even at the cost of losing a few seats. But again, there are different stages here: negotiations when Lieberman was the sole swing are different from those where 4 or 5 of the centrist D's were swing. The point originally was just that there were many strong-arm negotiations that Obama could have taken that he didn't. I gather your argument is that, since it would not have worked, it is best not to have tried. But that is different than some the arguments being made that there was nothing to be done and no levers at all.

Regarding Emanuel (one m), what we know is that Obama ultimately went with Pelosi. I myself see no reason to believe that Obama immediately sided with her and Emanuel was totally off the reservation the whole time, especially since it went on for a while. But in any case, this too is accepted, not revisionist, history. When Emanuel says he's happy Obama listened to her, that's politics, not history; all we know for sure is that Obama's guy was arguing for one thing and Pelosi was arguing for the other, and eventually Obama's guy gave in.

And finally, regarding the Byrd rule, it doesn't matter so much given that most of the final negotiations were budgetary anyway, but my point was that changing was merely a political matter, not a legislative one. There was nothing stopping them but the fear of "unshirted hell", which they got anyway. There was almost no way there could have been more hell. But again, that's just political prognostication; the original point was that they could well have done it and chose not to.

More generally, these are neither 20/20 hindsight (except for arguably the first one, as I originally granted), nor are they revisionist history. The account of the negotiations largely follows what you can find in Wikipedia, for instance. It may be wrong, but it's part of the standard story, one you can already find in, for instance, mainstream textbooks like Congress and Its Members. There were a lot of gambits that were not taken because of political judgments, not because they were impossible to take. Those political judgments may or may not have been correct, but neither side can definitively say. What we can say was that there were strategies available but unpursued, and that one would have to be a true Leibnizian to think that, in all those complex negotiations back then, there were no moves that could possibly have been both more successful and foreseeable at the time.
posted by chortly at 7:54 PM on November 7, 2014 [2 favorites]


that coverage gap that people with incomes below 100% of the poverty line fall into will probably increase to include adults with incomes between 100% and 400% of the poverty line, too. 400% of the poverty line is really pretty high -- for a family of four it's an income of $95,000+/yr -- so that's a *lot* of people.

This is the reason I think this legal challenge might backfire on the plaintiffs. It's one thing to deny benefits to the poors. It's a whole different thing to, effectively, raise taxes on hundreds of thousand of middle class people by thousands of dollars a year. The subidy is structured as a healthcare tax deduction. Republicans would have to be on record as taking away tax deductions from the middle class. They might have people with pitchforks on the steps of the state capitals. Under that pressure, these recalcitrant politicians might then be in the embarrassing position of having to actually actively implement Obamacare rather that just passively letting the feds handle it all.

Technically, it's just a formality. All the states have to do is slap a state ownership page on the existing federal website.

The worst thing Obama could do would be to bargain away some ACA pieces in exchange for a legislative fix. He would be better off standing his ground and letting the chips fall where they may. It is the state politicians who will be feeling all the heat.
posted by JackFlash at 8:04 PM on November 7, 2014 [2 favorites]


I am absolutely unable to understand why Medicare, which is LITERALLY SOCIALIZED HEALTHCARE, is a-okay constitutionally, but the ACA is apparently not.
posted by jcreigh at 8:07 PM on November 7, 2014 [2 favorites]


Technically, it's just a formality. All the states have to do is slap a state ownership page on the existing federal website.

This is an ideological problem, not a practical problem. Medicaid expansion was supposed to be a pretty uncontroversial part of the law because the federal government was funding it at 100% for a few years and gradually reducing its funding to 90% -- by not doing Medicaid expansion, states are leaving lots of money on the table. It is absurd, in a practical sense, for states not to expand Medicaid. But that's what they're doing, because of party politics. When the Republicans do things in lockstep, it's not necessarily because all the back benchers want to. The parties polarized way back under Gingrich and the Republican party now is run in a very authoritarian, no-dissension-welcome kind of way, by all accounts that I've heard or seen, anyway. Apparently, nobody wants to kill their own political career by being the weak link who stops kicking and screaming about the ACA, *even when it would be practically beneficial to his state.*

So yeah, of course if states wanted to set up their own exchanges it wouldn't be completely effortless, but it would be doable. But if states wanted to expand Medicaid, they could also just say yes and get their check in the mail. They don't want to, though, which is the problem. (Of course, some states do and have, but I'm talking about the hold outs, which are many, many states, many of which are the poorest states in the nation with large populations who desperately need coverage).
posted by rue72 at 8:16 PM on November 7, 2014 [1 favorite]


BTW, the group that REALLY doesn't want the subsidies to go away are the insurance companies. They would be *screwed.*

Honestly (and depressingly), this is the most hopeful thing I've read about keeping my coverage all day. For one brief, shining moment, my interests may have aligned with those of the insurance companies! O frabjous day!
posted by dialetheia at 8:17 PM on November 7, 2014 [2 favorites]


I am absolutely unable to understand why Medicare, which is LITERALLY SOCIALIZED HEALTHCARE, is a-okay constitutionally, but the ACA is apparently not.

Two responses:

1) Because Obama.

2) Because to the hard right, Medicare is not ok and they would like to get rid of that too, but one thing at a time.
posted by Joey Michaels at 8:20 PM on November 7, 2014 [3 favorites]


Republicans would have to be on record as taking away tax deductions from the middle class.

I think you're grossly underestimating how easy it will be to spin it as a reveal of how bad obamacare really is see we told you so repeal now! Rather than what you said.
posted by ctmf at 8:27 PM on November 7, 2014 [2 favorites]


I know we refuse to believe that telling a bald-faced lie enough times with a straight face (and some gratuitous outrage for good measure) will get half the country. It's true though, and the GOP's not above taking advantage of it.
posted by ctmf at 8:32 PM on November 7, 2014


Honestly (and depressingly), this is the most hopeful thing I've read about keeping my coverage all day. For one brief, shining moment, my interests may have aligned with those of the insurance companies! O frabjous day!

I don't actually think that the federal government was withholding the subsidy payments and floating the insurance carriers on promises up till now because they were trying to keep their leverage in case this went to court, I think the ACA is just underfunded and the government is disorganized/slow/in gridlock -- but I'm happy that they have leverage now all the same!

And yeah, insurance carriers obviously are not going to go gently into this good night if, in one decision, the Supreme Court forces massive reductions in their rolls and takes millions and millions of dollars out of their pockets. At this point, insurers are invested in this law (they've also made tons of huge changes in other areas of their coverage, because of other regulations associated with the ACA ) and are starting to see the (financial) upside of it. They don't want it gutted and to have to be out all that money, with no more subsidies and a market share reduced to the size it was before roll out and more likely to shrink further than to grow.

I think that what's likely to happen is that the conservative members of the Court will write all kinds of ridiculous and brash opinions that are so ideologically right-wing that I'll probably splinter my teeth* by gritting them so hard while reading them (looking at you, Scalia) in order to make a big show of what good arch-conservatives they are, but in the end, the court's majority isn't going to decide to stop the flow of subsidies to insurance carriers. It would make a lot of people (the insurers) incredibly unhappy, and for what gain? There are a LOT of bad things about the politicization of the Court, but I guess luck runs both ways!

Seriously, whose pockets would be lined by stopping that flow, since it's government money funding the subsidies anyway and that money is going to -- not coming from -- private biz? If a private industry bigger than the insurers stand to gain by stopping that flow, then I think there might be an issue, but as far as I know that's not the case (?) so I think it'll be OK. Probably Roberts will throw something into the majority opinion that will piss me off personally and hurt people on public insurance or hurt whoever else isn't private industry's problem, in order to show that he hasn't abandoned ~the Cause~ as far as the Repubs are concerned, but that's as far as I *think* the gutting of the ACA will go (w/r/t this case, anyway).
posted by rue72 at 8:40 PM on November 7, 2014


I am absolutely unable to understand why Medicare, which is LITERALLY SOCIALIZED HEALTHCARE, is a-okay constitutionally, but the ACA is apparently not.

It's not all that complex a legal theory even if you don't agree with it. The ACA's individual mandate requires (almost) every American to purchase a private instrument on the (kinda) open market. Medicare does not. Opponents of the ACA would liken it to the government passing a law which requires every American to purchase a Ford F150 pickup, or to spend at least $1000 a year on McDonalds, or to require every American to buy a Smith&Wesson pistol. And they're right, the ACA does require people to purchase insurance from a private company and that is controversial to people on both the right and the left (though for different reasons). So there is no reason you should be unable to understand it.
posted by Justinian at 8:43 PM on November 7, 2014 [1 favorite]


When the overall financial effect of the ACA was estimated, was it with or without typo? Seems like that would make a difference.
posted by ctmf at 8:53 PM on November 7, 2014


Justinian, yeah, fair point about the mandate. But since the mandate has already been ruled on, I was thinking in reference to the constitutionality of these subsidies, but I should have RTFA, because I now see that there isn't a constitutionality question in play here, merely whether the IRS is adhering to the law as written.
posted by jcreigh at 9:08 PM on November 7, 2014


When the overall financial effect of the ACA was estimated, was it with or without typo? Seems like that would make a difference.

Second part first: this is a political decision the right-wingers on the court are making without regard to what's logical or legal. It's totally motivated reasoning. They're crooks acting in bad faith, full stop.

That said, the CBO scored the bill as if the federal exchanges would have subsidies, which bolsters Obama's case that this was the intent. The idea of using the subsidies as a way to coerce states to have exchanges seems to have fallen away very quickly, if indeed it was ever the Democrats' plan at all; the preponderance of evidence suggests this really is just a lack of clarity resulting from a drafting error.

As I understand the case from reading years of commentary on this issue, even showing legislative intent is actually above the burden the government has to meet; under precedent they only have to show that the IRS's interpretation of the rule is *feasible,* not that it is either the intended or the best interpretation. It just has to make sense, which it plainly does -- certainly much more sense than the opposite claim, which is that the ACA instructs the government to laboriously set up federal exchanges even though these will have no function.

The idea that this could potentially undo Obamacare is, in short, totally bananas. But here we are.
posted by gerryblog at 9:26 PM on November 7, 2014 [5 favorites]


They're crooks acting in bad faith, full stop.

At some point, we have to assume a coup is happening. Tuesday may have convinced them the time is now, if they want to get away with it.
posted by Slap*Happy at 9:45 PM on November 7, 2014 [1 favorite]


I think that when it's all said and done this case is going to lose because the SC is going to take the "legislative intent" escape hatch. It'll be either 5-4 or 6-3 but the subsidies will remain. The reason I think this is that the conservatives on the court aren't stupid; at least one of them will figure out "if we kill the subsidies, the conservatives will likely lose the presidency, the Senate and even the house."

Health care is NOT something the Republicans will want to dominate the 2016 cycle particularly if millions just lost their insurance. There are several problems with that: First, the voters are far more likely to trust the Dems on the health insurance issue. The GOP has run on repeal, repeal, repeal but has never put forth a serious plan as an alternative. Tax credits and selling across state lines and tort reform aren't going to fly with most voters. They'll be seen as the party that wanted to take health insurance away from millions of people and if this case wins they're going to have to try to explain why they're not at fault after all of the repeal screaming. Second, the insurance companies would take a massive, massive hit. This would force insurance rates to go up and not just on health insurance. The GOP does not want to go into 2016 trying to explain why wrecking the law just led to skyrocketing premiums - that kind of ruins their message that the ACA will cause costs to go up. Last, hospitals will also take a massive hit. They're seeing less uncompensated care and more patients. Add into this the millions who would lose subsidies - and by extension their insurance in most cases - and every single GOP presidential candidate who has been talking repeal, repeal, repeal over the last few years are going to have a lot of trouble against Hillary. Then there's the "all politics are local" angle. The Dems will campaign hard in the districts where GOP representatives ran on repeal, causing lots of locals to lose insurance and others seeing rates go way up.

Bottom line, I just don't see enough votes to unleash this kind of chaos. But then again, we've already seen with this SC that all bets are off on anything that comes to them.
posted by azpenguin at 6:59 AM on November 8, 2014 [1 favorite]


Thing is - what is there to lose, for conservatives, in killing it?

On the states where Republicans rule locally, they have already refused to setup the state exchanges, this means, that since only the federal or joint exchanges would be exempt from the mandate, these states' citizens will then lose the mandate. When they lose the mandate ("Hey we were just reading what Obamacare wrote into law!"), they can then blame Obamacare (of course, not themselves for bringing the suit in the process). In states that are pretty swing-y (I would have counted WI among them, but the gerrymandering damage has been done here and it's too late for any hope for the next half decade of any change on that front, alas, so I just say "we're red for the next half decade")... Well in states that are Swing-y and if the Dems are bold enough they might push an attack to point out that the only reason subsidies were lost in the first place were because the Repubs brought the suit.

But that assumes good faith in the dems to not be spineless cowards... This might be a bit more optional in more liberal areas, but it seems to me that in more swing areas, they're going to play the "moderate/inoffensive" game, which means they're not really gonna go full throat in defense of obamacare, which means, it's one more tool the Repubs have to their advantage.

Now - what's the other option, from the political view of legislative elections: You let the mandate remain. Now - you can hope beyond hope that it is an utter failure on its own, but you don't really believe that. If you did, you'd let it fail. You KNOW it's going to be a success, which is why you fight so hard against it. So, it passes because Kennedy votes, and people love it. You can't attack it anymore on that ground. It removes on more locus of attack. You might be able to take a different attack about forcing people to pay for others, which is the typical attack, but that holds less water than a challenge based on the letter of the law. That's a political game.

You just punted the ball back into the political field for another day, but you just stripped a particular option from being played (that of an attack claiming that Obamacare's subsidies are ineffective and unfair (even though it was caused by you)- you could say "rewarding liberal sycophantic states" if you wanted to phrase it in some psuedo-intellectual terminology for readers of Weekly Standard or something... Showing how it's unfair to the conservative states that tried to take a principled stand. HOW UNFAIR!)

Now, again, politically, this takes into account that Dems are fairly gutless turds. If you knew the dems would fight back, perhaps you might not take that gamble, figuring it safer to avoid that fight, but based upon the current flow of things in this country (le sigh), there's no (political) reason to keep the federal/joint exchange mandates.

Now, let's just hope Kennedy is moderate and works on intent, not the letter. And even better if Roberts were to take the same tack, but I think Roberts will go the way of the letter, not necessarily for Partisan readings. So it might pass, but not 6-3... At best 5-4. Maybe.

I just don't trust Kennedy enough to believe he will do the right thing, though. I swear he's swung more to the right than he used to be, but maybe that's my own imagination.
posted by symbioid at 8:34 AM on November 8, 2014


> "They're crooks acting in bad faith, full stop."

I keep imagining this sane, just world where a clarification is written and quickly passes both houses with 100% of the vote. "I'm against this bill, but no one wants to see it revoked because of some completely insignificant typo," someone might say. "A functioning democracy requires acting in good faith."

Ha ha, yeah. Wacky notion.
posted by kyrademon at 8:35 AM on November 8, 2014 [5 favorites]


Thing is - what is there to lose, for conservatives, in killing it?

If you're the GOP, you don't want to hand this over on a silver platter for Hillary. They've already got enough of an uphill climb against her as it is. The biggest matter about winning the presidency is that the next president may be picking 3 Supreme Court justices. If the conservatives were to pick between letting Obamacare stand and potentially picking up two seats on the Supreme Court, the smart money is on going for the court. The status quo right now is a far better political scenario for the GOP.
posted by azpenguin at 8:45 AM on November 8, 2014


"A functioning democracy requires acting in good faith."

Not so. The Founders expected everyone associated with it would act in bad faith (or at least each in pursuit of his or her own self interest). We'll soon see if the checks and balances built in to trap bad faith work well enough to catch this or don't.
posted by notyou at 8:48 AM on November 8, 2014


They haven't done anything to trap the bad faith of the past six years, so I'm not particularly sanguine on that point.
posted by feckless fecal fear mongering at 8:50 AM on November 8, 2014


... bad faith (or at least each in pursuit of his or her own self interest ...

Big difference between the two. I don't see how any checks and balances can overcome the first.
posted by benito.strauss at 9:41 AM on November 8, 2014 [1 favorite]


If Obama is so terrible why is his name associated with the Affordable Care Act? Why isn't it called FDRcare or LBJcare or Clintoncare? Or even Reagancare or Eisenhowercare? And if it's so easy to make the case for universal healthcare to American people, why did no one think of doing it before Obama took office? He has the bully pulpit, true, but people had a few decades to come up with some slam dunk talking points and a marketing strategy.

Hmm, so confusing.
posted by leopard at 10:40 AM on November 8, 2014


Big difference between the two. I don't see how any checks and balances can overcome the first.

"If men were angels, there would be no need for government..."

Yours is not a distinction James Madison shared.
posted by notyou at 10:45 AM on November 8, 2014


Lord spare the disappointed former believers in perfection who think that just because we can't be perfect we might as well be the worst bastards we can imagine. If you have no trust or hope in people you build a castle and a militia, not a government.
posted by benito.strauss at 11:15 AM on November 8, 2014 [2 favorites]


And, you know, it's funny - the goddamn Greens and Moderates and Libertarians rarely if ever organize and back candidates for school boards and town councils and small-town mayorships. Which is a third reason third parties are terrible - they're lazy and won't put in the work.

Hey now, when I was Executive Director of the Libertarian Party of Washington State, we put up lots of candidates for smaller offices in our state. It's just that those offices were officially nonpartisan in our state so there were no Ls behind our candidates' names, but we recruited them, trained them, funded them, directed our volunteers to help them, etc. And we got a few dozen elected as well.

No, they exist simply as spoilers - libertarians to steal elections from Republican candidates in close races...

That's an outdated and erroneous assumption. These days there are a lot of left-Libertarians like me whose lesser evil is the Democrats, not the Republicans. Stop assuming that we'd all vote Republican if there were no Libertarian in the race.
posted by Jacqueline at 11:58 AM on November 8, 2014 [2 favorites]


>I am absolutely unable to understand why Medicare, which is LITERALLY SOCIALIZED HEALTHCARE, is a-okay constitutionally, but the ACA is apparently not.

>Justinian: The ACA does require people to purchase insurance from a private company and that is controversial to people on both the right and the left (though for different reasons). So there is no reason you should be unable to understand it.

As has been pointed out many times, why is this controversial? You are mandated to buy private auto insurance to own a car, and this includes about 100% those complaining about the ACA, so you would say it's a universal mandate. You are mandated to buy private home insurance if you get a mortgage to buy a house. You are mandated to buy private health insurance before you can enroll in most universities. So this idea of insurance mandates is not a foreign concept. People accept it as routine.

And Medicare, which is quite popular, is not free of mandates and penalties either. For every year you fail to sign up for Medicare Part B, you are assessed an accumulating penalty of 10%. For every year you fail to sign up for Medicare part D, you are assessed an accumulating penalty of 12%. So if you say to yourself you are healthy so don't want to pay for Medicare insurance until you are age 70, you pay a penalty of 50% to 60% -- and you must pay that 50% to 60% penalty every year for the rest of you life. Medicare is exactly the same concept as the ACA. You pay a penalty for delaying buying insurance until just when you think you might need it.

Further, Medicare premiums and penalties are taken directly from your Social Security check before you even see it. You don't have a choice in the matter.

Medicare has mandated private insurance as well in the Medicare Advantage program. And guess what, the same conservatives who rant against mandating private insurance in the ACA are the same ones who mandate that Medicare offer subsidized private insurance, rather than the government version of Medicare. So contrary to your claim, conservatives love mandates for private insurance in Medicare.

So this idea that the ACA mandates and private insurance are some brand new threat to libertarian freedoms is just a smokescreen. It is really just about denying benefits to poor people.
posted by JackFlash at 12:06 PM on November 8, 2014 [2 favorites]


Lord spare the disappointed former believers in perfection who think that just because we can't be perfect we might as well be the worst bastards we can imagine. If you have no trust or hope in people you build a castle and a militia, not a government.


Lighten up, Francis. My original comment about bad faith was to express hope (a confident hope) that the system set up by Madison and others would eventually prevail, since it accounted for ... or sought to ... the actions of believers and bastards both.
posted by notyou at 12:32 PM on November 8, 2014


chortly: Regarding the period between Franken and Kennedy, negotiations were active, and a recess by no means meant that the WH or Senate players were in stasis. If I'm revising history, so is wikipedia. As I originally said, they didn't know the time was almost up, but time was clearly wasted in a fruitless search for bipartisanship.

And as your Wikipedia link clearly states, the reason for that search for bipartisanship was:
due to disagreements over the substance of the bill, which was still being drafted in committee, and because moderate Democrats hoped to win bipartisan support.
This directly contradicts your implication that there was any non-bipartisan alternative for passing a bill with just the 60 votes Democrats had in the ~7 weeks between 7/7 and 8/29. Not only was there no bill to push through, but even if there was, the usual suspects weren't going to support it without bipartisan cover, which, at that time, wasn't considered impossible. Remember that Collins and Snowe at least were both still saying the right things about their ability to support it, and Snowe voted for it on the finance committee. So, yes, there were negotiations going on, but the White House had no leverage to take their ball and go home.

Regarding Lieberman, Lemieux and I and quite a few others thought there were levers regarding committees, earmarks, and Liberman's more general legacy.

Of course there were levers, but I really don't get how you're pointing to Lemieux as support for your position. His point was that yes, of course there were things that could have been done, but that, in his estimation, they wouldn't have been productive. You're free to disagree with that, but the fact that they didn't exercise various punishments doesn't mean they didn't consider exercising them, it means they assessed the situation and thought they would be unproductive, or perhaps counterproductive. "We don't have evidence that they tried" is very thin gruel, as we have very little evidence of any of the behind-the-scenes negotiations during that time. We also don't, for instance, have evidence that they tried to enlist the help of an astrologer, but I don't see that as very relevant to our conversation.

Also, Lemieux plainly states that jawboning Lieberman was worthless without similar leverage over all of the other problem children in the Democratic caucus. Getting him on board would have been necessary but not sufficient.

I gather your argument is that, since it would not have worked, it is best not to have tried. But that is different than some the arguments being made that there was nothing to be done and no levers at all.

I don't know who's making those arguments. There were bad choices that could have been made. I acknowledge that. If you want to die on the hill of "well he could have done something then I'm not going to stop you, but doing something doesn't equal doing something productive.

I myself see no reason to believe that Obama immediately sided with her and Emanuel was totally off the reservation the whole time, especially since it went on for a while.

You're looking at this through the lens of knowing that they failed to get centrist Republicans on board. At the time, people on all sides agreed that the Maine senators were in play, and without them, they couldn't get the support of the centrists in their own party. This is important! In retrospect, it looks pretty terrible., but knowing what we knew at the time, Emanuel's overtures to the centrists made perfect sense as a strategy.

I stand by my description of your view of all of this as revisionist history and 20/20 hindsight. You describe the quest to get a bipartisan bill as "clearly an error", which is only an assessment you can make knowing that it didn't work out, and also requires you to ignore the many Democrats that wouldn't have been on board at that time without some Republican cover. You point to things that could have been done to get Lieberman on board when even if he was on board, that still leaves a handful of red staters against whom Obama had much less leverage. We can agree to disagree on these points if you like, but I don't think I'm being unfair in my assessment when the sources you yourself point to clearly disprove your own arguments.
posted by tonycpsu at 12:36 PM on November 8, 2014


Oh, and it also worth mentioning that in those few red states that have reluctantly implemented expanded Medicaid have explicitly asked for waivers that allow them to take single-payer Medicaid out of the hands of government and put it into the hands of private insurers. So this idea that those opposing and trying to strike down the ACA are offended by private insurance is simply nonsense. They explicitly prefer private insurance.
posted by JackFlash at 12:37 PM on November 8, 2014


Jack Balkin: States’ rights—to block the flow of federal funds to their citizens?
But fundamentally, what interests me is this question: what so attracts some Justices about giving states the power to interpose themselves in between the federal government and their own citizens in this way?   What is so seductive, in the end, about giving states the power or right to block the flow of federal funds for health insurance?  I don’t have the answer and I think it deserves some serious thought.  I wonder if the right lens through which to view the King challenge is not NFIB at all, but Shelby County.  That is, perhaps there is some sort of notion of the sovereign dignity of the states at stake here—a view that states generally ought to have the power, or perhaps I should say the right, to choose whether or not to accept controversial bundles of federal funds.  Of course, there is a third party here: the citizen.  And so what we’re really talking about is the state's right to stand in the way, interposing itself to block the flow of federal funds to their intended recipients.

Or perhaps, finally, it is a combination of (2) and (3) above: an idea that even if the federal government has not embraced a neo-Lochnerian libertarian constitutional vision, we ought to make darn sure that individual states retain the power to embrace such a vision, rather than being saddled with a fundamentally different social model—one with more social insurance—imposed by the federal government.

Either way these are exceedingly strange principles to see bubbling around just beneath the surface of the questions the Court is ostensibly grappling with in King.
posted by tonycpsu at 12:38 PM on November 8, 2014 [1 favorite]


As has been pointed out many times, why is this controversial? You are mandated to buy private auto insurance to own a car, and this includes about 100% those complaining about the ACA, so you would say it's a universal mandate. You are mandated to buy private home insurance if you get a mortgage to buy a house. You are mandated to buy private health insurance before you can enroll in most universities. So this idea of insurance mandates is not a foreign concept. People accept it as routine.

Owning a car, buying a house, and attending a university are all optional and you do not have a right to do them. U.S. citizens have the right to live in the U.S., and some don't have the ability to leave, so the ACA mandate is demonstrably different from the others.

That said, I think it's a justifiable mandate, because it is difficult to ensure that you will never receive medical care. And even if you could sign a piece of paper saying that you preemptively refuse all medical care and therefore refuse to purchase insurance, I have qualms about letting people suffer and die because of their own stupidity.
posted by one more dead town's last parade at 1:26 PM on November 8, 2014 [1 favorite]


Not only was there no bill to push through, but even if there was, the usual suspects weren't going to support it without bipartisan cover, which, at that time, wasn't considered impossible.
...
You're free to disagree with that, but the fact that they didn't exercise various punishments doesn't mean they didn't consider exercising them, it means they assessed the situation and thought they would be unproductive, or perhaps counterproductive.
...
At the time, people on all sides agreed that the Maine senators were in play, and without them, they couldn't get the support of the centrists in their own party
...
I stand by my description of your view of all of this as revisionist history and 20/20 hindsight.


So we agree that there were things that could have been done and that might have worked, but at the time people thought wouldn't work. That was my only point: judgments were made about what politically was impossible at the time that in retrospect might not have been impossible. There were avenues for pushing a bill through, but instead they tried to get Collins and Snowe on board; there were levers for pushing Lieberman (Lemieux and I agree on that), but they thought they wouldn't work at the time; there was a push by Emanuel based on a poltical judgment at the time which even Emanuel agrees in retrospect was mistaken; etc.

To say that there were things that could have been done better but were not is not revisionism and not 20/20. The whole point is that political judgments were being made at the time that may have been flawed -- particularly, the wisdom of pursuing a bipartisan bill; of not playing hardball with Lieberman and/or other centrists; of retaining the Byrd and other rules; and of pursuing a piecemeal reconciliation. The alternatives were not only not inconceivable at the time, they were both conceived of and advocated on Obama's left flank. To say that the players at the time thought that such actions were "considered impossible," thought to be counterproductive, and agreed "on all sides" is simply to make the point that they didn't make these decisions because they thought it wouldn't work. This only supports my point that the alternatives were both conceivable and possible. Furthermore, there's arguable evidence they may have worked (eg, it would have been better to have abandoned the bipartisan approach from the get-go, as many people at the time advocated). That is not historical revisionism, that is historicism. To say everyone at the time decided against these alternatives is tautology.
posted by chortly at 1:30 PM on November 8, 2014


There were avenues for pushing a bill through

What bill???

If you're saying that Obama could have made a "welcome their hatred" speech on January 20th 2009 and then immediately started on a path to drafting a bill without the input of Republicans or the conservatives in his own party, then you're going to need to demonstrate that there would have been 50 votes (plus Biden) to do so, and I'm sorry, but you can't simply ignore the political considerations of doing that as merely political considerations, since they would directly impact the passage of your hypothetical bill.

So who are the 50 votes that would have done this, knowing full well they'd be foreclosing on any cooperation from Republicans for the foreseeable future?
posted by tonycpsu at 1:46 PM on November 8, 2014


of not playing hardball with Lieberman

Play hardball how? Are you aware that Lieberman endorsed McCain and actively campaigned against Obama? He was registered as an Independent. He had already burnt his bridges with the Democrats. Lieberman retired two years later. Anything they did to him would only strengthen his resolve to retaliate just out of spite, jerk that he was.

Lieberman pledged that he would not vote for any bill with single-payer. Without Lieberman's vote, there is no ACA, period. How do you play hardball with a resentful senator who holds veto power?
posted by JackFlash at 2:14 PM on November 8, 2014


Nothing against any of you, but it's so profoundly depressing that we're still doing the whole circular firing squad thing about fucking Joe Lieberman 5 years later.
posted by dialetheia at 2:20 PM on November 8, 2014 [2 favorites]


(Regarding Lieberman, please see above. Like Lemieux and many other, I'm not the only one who thinks there are still levers for outgoing Senators. No one claims it would be a magical cure, only that (a) such levers exist, and (b) they were not attempted.)

knowing full well they'd be foreclosing on any cooperation from Republicans for the foreseeable future?

So I guess the argument is, yes, there was no cooperation from Republicans anyway, but how were they to know that back then? And the counter-argument to the point that there were plenty on the left saying that there would never be any cooperation -- for exactly the reasons that turned out to be true -- is how were the centrist-Dems to believe that, given that they were centrists?

But if we can put down our guns for a moment: regarding the circular firing squad, why does this matter? It's not really about history or Obama-good-or-evil, and in that sense maybe it is revisionistic, inasmuch as what this is really about is what we can learn for the very near future, not what we wish would have gone otherwise in the near past. In 3-12 months, Obama and the centrist Dems are going to be negotiating with McConnell and Boehner about the Ryan budget, with huge cuts to many essential federal programs. God willing, in a couple years HRC is going to be doing the same, and if not, the Dem's are going to be arguing with those same centrist D senators about filibustering even huger cuts. One's judgment about what sorts of strategies work in these situations -- bipartisanship, arm-twisting, rule-bending, the bully pulpit, etc -- will matter a huge amount in the very near future. And inasmuch as these are factual, not normative, judgments -- about what strategies work or don't -- the only evidence we have is what did or didn't work in the past. So it matters quite a lot and quite soon what we think should have been done a few years ago.
posted by chortly at 2:32 PM on November 8, 2014 [3 favorites]


The real question is should the Democrats filibuster and veto the GOP lead House and Senate action to repeal the ACA in January. Is is better for them to be the kind of obstructionists (hypocritical though it would be) as the GOP was, or should they stick with the principle that elections matter.

Are the politics better from letting the GOP kill this bill, and then showing the voters the consequences or are they better in trying to hold onto this modest set of reforms.

If the GOP kills Obamacare, something new has to be put in place before next fall (when plans expire). The must pass nature of the replacement will make for an opportunity to renegotiate everything.
posted by humanfont at 2:44 PM on November 8, 2014 [1 favorite]


Even more generally, this is part of a centuries-old argument between the pragmatic-centrist and left wings of the left. Not only were these exactly the debates we were having about the Iraq War, the Patriot Act, Clinton's welfare reform, HRC's previous failed health bill, etc, but as Lincoln last year showed, these were exactly the same arguments we were having in 1865! Pragmatic compromise vs the bully-pulpit, arm-twisting, etc. The debate over the movie broke down on almost the exact same lines, with the same people on either side, as the debate over ACA and all these other things. And it's a debate we'll be having very soon again. But just because we keep having it doesn't mean that there's nothing to be learned, and that no one changes their views. Quite a few do. Witness, for instance, the debate about bipartisanship; regardless of whether anyone should have known better, between 2010 and 2014 increasingly many Democrats -- including to some degree Obama himself -- came to the view that that strategy was hopeless in the current climate. Now that there will be new bipartisan opportunities to "get stuff done" with McConnell running the Senate, it is quite important just which of those bipartisan lessons Obama and the Democrats retain over the next year or two.

(Sorry, I know that's too much for a single thread, so I'll go now. This what happens when I'm left alone on a Saturday!)
posted by chortly at 2:45 PM on November 8, 2014 [1 favorite]


Owning a car, buying a house, and attending a university are all optional and you do not have a right to do them. U.S. citizens have the right to live in the U.S., and some don't have the ability to leave, so the ACA mandate is demonstrably different from the others.

Given that less than 9% of households do not have cars, you are talking about a semantic distinction without a difference. Auto insurance is mandatory for 91% of Americans.

And look at Medicare. It has the same sort of mandate and penalties as the ACA and it is extremely popular, including private insurance. So the distinction is not mandatory vs non-mandatory. For the ACA it is simply a war against the poor. Middle class folks like mandatory Medicare just fine.
posted by JackFlash at 2:46 PM on November 8, 2014


but as [the film] Lincoln last year showed, these were exactly the same arguments we were having in 1865!

Of course in Lincoln's case, when pushing through the 13th Amendment, all of the southern segregationist states were excluded from Congress. If only Obama were so lucky.
posted by JackFlash at 2:55 PM on November 8, 2014 [3 favorites]


In 2009, a landslide mandate for change and biggest possible Democratic majority couldn't even achieve the absolute minimum of decent policy.

Are there any lessons from that episode other than that the USA is utterly doomed?
posted by moorooka at 8:53 PM on November 8, 2014


chortly: So I guess the argument is, yes, there was no cooperation from Republicans anyway, but how were they to know that back then? And the counter-argument to the point that there were plenty on the left saying that there would never be any cooperation -- for exactly the reasons that turned out to be true -- is how were the centrist-Dems to believe that, given that they were centrists?

Something like that, but I think it's actually worse. The hypothetical you've outlined, and that you suggest was being talked about openly on the left (more on that in a moment) of moving forward without even the pretense of reaching out to Republicans and using reconciliation to avoid the need to work with votes 51 through 60, would have unquestionably led to losing the support of many more Senators outside the usual gang of idiots. At a minimum, I guarantee you'd have also lost people like Rockefeller, Bingaman, and MacCaskill right away -- the left-center types from purple states who might have favored a public option or a more robust Medicaid expansion under the right conditions, but wouldn't have wanted to be seen as throwing away the Senate's norms on day one to get something that the public had been conditioned to think of as soshalism.

In fact, I'm not sure you could have even scrounged 20 votes for steamrolling it through under reconciliation without at least making a show of trying to get some GOP votes on board, especially given the bipartisan-fetishism in the news media. In your quest for a pure bill that doesn't get watered down by the centrists, you end up losing not only the centrists, but also a whole lot of lefties who would favor the bill on policy grounds, but respect institutional norms enough to at least try to bargain with the other side, or at least recognize that railroading such a huge bill through will imperil their ability to get other legislation done in the future.

And, by the way, where are you getting this notion that "many people" "on Obama's left flank" were openly talking about doing a bill with just 50+1 votes at that time? I was a regular reader of FDL, Democratic Underground, OpenLeft, and many other hubs of the left flank of the blogosphere, so I think I would remember if there was significant momentum at that time to slam the entire bill through reconciliation, but I don't recall serious talk of using reconciliation until after bipartisan efforts had already failed.

Witness, for instance, the debate about bipartisanship; regardless of whether anyone should have known better, between 2010 and 2014 increasingly many Democrats -- including to some degree Obama himself -- came to the view that that strategy was hopeless in the current climate. Now that there will be new bipartisan opportunities to "get stuff done" with McConnell running the Senate, it is quite important just which of those bipartisan lessons Obama and the Democrats retain over the next year or two.

Oh, no doubt, and I think you see with his sudden propensity to use executive orders that he recognizes he's not going to get any help from the other side. That may change now that the Senate can start launching various kangaroo court hearings against the White House, but I'm pretty sure the lesson's been learned at this point.
posted by tonycpsu at 10:33 PM on November 8, 2014


moorooka: In 2009, a landslide mandate for change and biggest possible Democratic majority couldn't even achieve the absolute minimum of decent policy.

Do me a favor and tell that to someone who's currently receiving healthcare thanks to the Medicaid expansion.
posted by tonycpsu at 10:33 PM on November 8, 2014 [2 favorites]


Do me a favor and tell that to someone who's currently receiving healthcare thanks to the Medicaid expansion.

Sorry, sometimes I forget that as a citizen of a developed country that isn't the USA I have standards that you guys think are "unrealistic". And always will, it seems.
posted by moorooka at 1:22 AM on November 9, 2014


Well, the reasonably generous Social Security program we have now would have been considered "unrealistic" under FDR, given how limited that program was when it started, and how it was attacked by opponents as socialism. Obama understands, like FDR did, that the important thing is getting a foothold with as significant a program as you can at the time, then building on it over decades.

Now, don't get me wrong... This isn't the healthcare law I was hoping for in 2009, but it's currently helping millions get healthcare who otherwise wouldn't, including members of my family, so I'm rather hostile to arguments that we should have engaged in this or that legislative gambit that could have gotten us a better bill, but could have also put Obama in the rather large club of Presidents who've tried and failed to get a healthcare bill passed. We put some points on the board with a field goal in 2009, and yeah, a touchdown would have been great, but if we get out there and play some defense, we can build on our lead and win this thing.

Sorry, it's almost game time.
posted by tonycpsu at 8:24 AM on November 9, 2014 [1 favorite]


Well, the reasonably generous Social Security program we have now would have been considered "unrealistic" under FDR, given how limited that program was when it started, and how it was attacked by opponents as socialism. Obama understands, like FDR did, that the important thing is getting a foothold with as significant a program as you can at the time, then building on it over decades.

That was the idea I believe in Obama's thinking, but the "building it over decades" part doesn't seem likely to happen this time, as the 'socialism' attacks today appear more effective, with a dedicated opposition congress aided by the ideological and ideologically aligned Supreme Court (oh and an opposing 24-hr cable news/talk radio propaganda/disinformation machine, let's not forget FOX here). FDR never to face anything that level of opposition in the early days of the New Deal. At the moment, complete repeal under full Republican control in 2016, or death by 1000 beginning with this case and proceeding from there appears far more likely than that the law will ever be "fixed", much less expanded to include something like a public option. Which plenty of people predicted at the time and were denounced as firebaggers or worse.

That's not saying that a public option was ever actually achievable in 2009, I don't think it was. But that was likely the one and only shot for the next 50 years, so not trying for it at least as a bluff was an epic blunder and betrayal. It can be both a great achievement in the moment and an epic fuckup precluding future gains, the two are not mutually exclusive.
posted by T.D. Strange at 9:00 AM on November 9, 2014


In 2009, a landslide mandate for change and biggest possible Democratic majority couldn't even achieve the absolute minimum of decent policy.

Are there any lessons from that episode other than that the USA is utterly doomed?

Sorry, sometimes I forget that as a citizen of a developed country that isn't the USA I have standards that you guys think are "unrealistic". And always will, it seems.


Im really quite confused as to your contribution to these debates. You seem to have strong feelings about the nuances of Democratic political strategy, in a country that you admittedly don't live in, but when someone, accurately, points out that perhaps you're not grasping all the nuances of the native political climate, you're quick to come back with LOLUSAIANS. What is it you're going for? Because whatever it is, continuing to misrepresent history in predictably debunked ways and then lobbing superiority bombs when called on it doesn't add much to the discussion.
posted by T.D. Strange at 9:09 AM on November 9, 2014 [1 favorite]


not trying for it at least as a bluff was an epic blunder and betrayal

What was there to bluff? All the cards were face up on the table. Lieberman, who had veto power, said it was either private insurance or no insurance. Your move. What do you do to bluff?

A bluff requires willingness to risk losing everything. Would you be willing to stand up and tell millions of people that sorry, they aren't getting any insurance because your bluff didn't work out?
posted by JackFlash at 9:09 AM on November 9, 2014 [1 favorite]


What was there to bluff? All the cards were face up on the table. Lieberman, who had veto power, said it was either private insurance or no insurance. Your move. What do you do to bluff?

Well, maybe the bluff would've failed, like I said, I don't think it would've actually worked for exactly that reason, Joe Liberman is a treasonous little shitstain. But someone else mentioned 'levers' or whatever upthread, and it's not really clear to me that all of those avenues were tried, rather than Obama preemptively taking it off the table in a backroom deal. I don't want to rehash the whole debate again, my main point was that 2009 was the one chance, maybe Obama did get the best deal possible, but it sure doesn't feel like in hindsight that he really fought for the 2nd-best outcome. But maybe that's just me engaging in greenlanternism, I honestly can't tell.

And even as the 2nd or 3rd best policy choice, the ACA looks more likely on the road to full repeal or a Republican induced death spiral than continued improvement over decades as the population comes to accept and revere it, as happened with Social Security.
posted by T.D. Strange at 9:19 AM on November 9, 2014


the 'socialism' attacks today appear more effective

Which is insane when you think about it.
posted by Steely-eyed Missile Man at 9:19 AM on November 9, 2014


T.D. Strange: the 'socialism' attacks today appear more effective, with a dedicated opposition congress aided by the ideological and ideologically aligned Supreme Court (oh and an opposing 24-hr cable news/talk radio propaganda/disinformation machine, let's not forget FOX here). FDR never to face anything that level of opposition in the early days of the New Deal.

It's not really as much about the opposite party's messaging, or the FOX News effect, or even SCOTUS as it's about this. Comparisons between Obama and either FDR or LBJ never seem to take into account that both of them had massive Congressional majorities to work with, while Obama, in addition to having to deal with Blue Dogs*, had a (comparatively) razor thin majority to work with.

Don't get me wrong, the factors you enumerated all played a part (and continue to do so), but the primary reason was that Obama simply didn't have a majority with the sheer size or cohesiveness that his predecessors did.

* LBJ did have to deal with the Dixiecrats, but the size of his majority gave him leeway that Obama has never had with the Blue Dog types.
posted by tonycpsu at 9:31 AM on November 9, 2014


Right, that's basically what I meant by opposition congress. Full Dem control lasted barely one midterm cycle and was never as much of a 'done deal' as some people continue to claim. If Obama had had FDR sized majorities in Congress, Im sure we could've had a public option, hell maybe single payer would've been on the table, and we wouldn't have even had to mention Joe Fucking Liberman except as the one nominally Democratic senator who voted against the ACA. But he didn't, the flawed mess of an ACA barely passed, and here we are still having the circular firing squad discussion 5 years later while the actually passed law, which was still good, seems set to burn to the ground.
posted by T.D. Strange at 9:39 AM on November 9, 2014 [1 favorite]


the ACA looks more likely on the road to full repeal or a Republican induced death spiral

It doesn't have to as long as Obama holds a veto pen. I have my doubts about Obama's resolve, given his willingness to trade away Social Security benefits. But if the ACA goes away, it will be due to Obama, not the Republicans. By 2017 the ACA will be so ingrained that not even the Republicans will be able to take away millions of people's insurance.

This Supreme Court case, even if it turns out adversely, will have no effect on Obamacare in most of the U.S. The only ones affected will be some red states that are already screwed on Medicaid. Even in those states there will be a lot of heat over taking away people's insurance.
posted by JackFlash at 9:43 AM on November 9, 2014


I am more convinced than ever that the conservative Supremes timed this case as a blatant political ploy, one week before ACA annual registration starts. I have been looking around on various healthcare boards and sure enough there is a lot of fear, uncertainty and doubt about signing up and then having to pay back subsidies. Legal scholars were surprised that the Court jumped in even before the 6th Circuit ruling and politics would explain why.

Obama has been particularly weak on selling Obamacare. When Bush pushed through Medicare Part D for prescription drugs, there was a massive rollout and publicity campaign. Very slick presentations were scripted and every single one of the Republican representatives went back to their districts and held open houses and signup events. I think this likely contributed to Bush's election victory in 2004.

Contrast that with the Democratic response to the ACA. They acted as if embarrassed and pretended they had barely even heard of it. As with the website, execution and followup has been dismal by Obama. Republicans have been quite successful in buffaloing Democrats into silence.
posted by JackFlash at 10:18 AM on November 9, 2014 [5 favorites]


This Supreme Court case, even if it turns out adversely, will have no effect on Obamacare in most of the U.S. The only ones affected will be some red states that are already screwed on Medicaid. Even in those states there will be a lot of heat over taking away people's insurance.

Huh? About half of the population lives in states that didn't set up their own exchanges.
posted by one more dead town's last parade at 10:43 AM on November 9, 2014 [1 favorite]


Contrast that with the Democratic response to the ACA. They acted as if embarrassed and pretended they had barely even heard of it. As with the website, execution and followup has been dismal by Obama. Republicans have been quite successful in buffaloing Democrats into silence.

Which is why I can easily see them allowing the law to be papercutted to death, they immediately ran away from Obamacare and have been running away constantly since 2010. Theyre not even willing to campaign on having passed it, much less fight for it now against a Republican congress. Each little victory will go unchallenged until there's nothing left.

By 2017 the ACA will be so ingrained that not even the Republicans will be able to take away millions of people's insurance.

This Supreme Court case, even if it turns out adversely, will have no effect on Obamacare in most of the U.S. The only ones affected will be some red states that are already screwed on Medicaid. Even in those states there will be a lot of heat over taking away people's insurance.


I think you're vastly understating the amount of people this case could impact, 4-6million people in some 31 states that haven't, and likely won't set up a state exchange no matter the benefits. I don't believe a state like Utah, or even Indiana which went for Obama in 2008, would be willing to cooperate with a trivial fix, no matter how many of their own citizens suffer. Maybe that's overly pessimistic, but I don't believe its possible to overstate the Republican party's malevolence on this issue. They don't want poor people to have health insurance, period. And they don't want even the middle class to have health insurance if it can be attributed to government. They will have zero problems taking it away for good even if simple workaround is available.
posted by T.D. Strange at 10:52 AM on November 9, 2014 [3 favorites]


Huh? About half of the population lives in states that didn't set up their own exchanges.

Remember, in most of those states this is just a formality. All they have to do is slap a state wrapper on the federal exchange and they will be okay.

Not all of the states on the federal exchange are hostile to the ACA. Many just thought it was simpler and cheaper to have the feds set it up for them. They can quickly comply with whatever the Supreme Court decides by using the federal exchange as the engine for their state exchange.

But even the remaining red states that are hostile to the ACA are going to face a lot of pressure taking away insurance from hundreds of thousands of middle-class voters.

Unlike the previous Supreme Court case, this one does not threaten the existence of Obamacare. The great majority of the U.S. will have Obamacare no matter what the court decides and in the rest there will be great pressure on why middle-class voters are missing out on a big benefit that they are paying taxes for.
posted by JackFlash at 11:22 AM on November 9, 2014



Im really quite confused as to your contribution to these debates...


I appreciate that Obama made a huge difference to the lives of many Americans with health care reform. Compared to what existed before it's a huge improvement, but compared to what's taken for granted outside the US it's still a complete mess. As an outsider I just can't make sense out how your Democratic Party sets its goals so low. I don't think its "misrepresenting history" to say that when the opportunity for reform existed for that brief period in 2009, it was because of opposition to good policy within the Democratic Party that you ended up prioritizing the stocks of the private health insurance industry over the principle of truly universal health care. And given that you won't get another shot like that for maybe 50 years, and that even what was achieved seems so vulnerable to possible legal challenges... I just wonder, where's the hope?

It's like... in any developed country outside the USA, universal health care is considered a basic human right, even on the Right side of politics. "Socialised medicine" has proven its superiority over and over and over. Medicare and Medicaid have proven the same inside the U.S., and the American public (it seems) are very much in favor of these programs. Yet apparently making such programs "universal" is beyond the wildest imagination of most Democrats. Even the "public option" was killed by conservative Democratic Senators. And apparently you need useless conservative Democratic Senators like that to ever hope of reaching 60+ seats, which might happen once in a generation if you're lucky. So I guess that my rather useless contributions to these debates are just expressions of a kind of vicarious despair that I feel for people living in a country with a "left" party like the Democrats.

I get it that Republicans will oppose anything good since they represent pure evil, but when I look at the Democrats in Congress I see something like one third who actually hold principles with the same sort of zeal that seems mandatory in the Republican Party. Then there's one third that hold Democratic principles but give them a lower priority than "institutional norms" and "bipartisanship" etc. And then another third who are just wreckers. Contrast this with the organised way the GOP operates and it seems pretty hopeless.
posted by moorooka at 2:28 PM on November 9, 2014 [1 favorite]


Crap, my card sucks, I still need "O-bots", "firebaggers", and "Mike Gravel."

Speaking of Gravel: Senator Who Put Pentagon Papers Into Public Record Urges Udall To Do Same With Torture Report
posted by homunculus at 2:59 PM on November 10, 2014 [2 favorites]


Why ACA Trooferism Is Obviously Wrong
The reality, however, is that Congress can define the phrase "Exchange established by the State" to also include exchanges established by the federal government - just like they can define the word "dog" to mean "cat" - and that is exactly what Congress did in the Affordable Care Act.

Two provisions of the law accomplish this task. The first provides that "[a]n Exchange shall be a governmental agency or nonprofit entity that is established by a State." Read in isolation, this passage can be read in one of two ways. One way to read it is as a passage limiting who can set up exchanges. If an Exchange "shall be" an "entity that is established by a State," that seems to mean that no other kind of "Exchange" can exist. If the passage is read this way, federally run exchanges would be illegal, because they are not an "entity that is established by a State."

The other plausible interpretation of this provision, however, is that it is meant to define the term "Exchange." Under this second possible reading, the word "Exchange" is defined so that any Exchange is deemed to be "established by a State," even if it was actually established by the federal government.

Read in isolation, there is no way to decide which one of these two possible readings of this provision is correct. A third provision of the law clarifies this ambiguity, however. That third passage provides that if a state elects not to set up its own exchange, "the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements." This is an explicit provision authorizing the federal government to establish Exchanges. Thus the ambiguous passage cannot be read to require all "Exchanges" to be "established by a State." The only remaining possibility is that any "Exchange," whether state or federally run, shall be deemed an "Exchange established by the State."
posted by tonycpsu at 1:25 PM on November 12, 2014 [3 favorites]


Linda Greenhouse: "I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender."
posted by T.D. Strange at 10:20 AM on November 13, 2014 [1 favorite]




Then there's one third that hold Democratic principles but give them a lower priority than "institutional norms" and "bipartisanship" etc.

Let the preemptive surrender begin: "For the Democrats, the sentiment many senators shared on Thursday reflected the views of their constituents: Congress is not working. “This was a change election,” said Senator Heidi Heitkamp, Democrat of North Dakota, who also did not vote for Mr. Reid. “I think that we needed to demonstrate that we heard the American public.”"

The lesson Senate Democrats just took from the midterms is that the Republicans won a total and complete mandate, and the American people want them to pass the entire Republican agenda unchanged and unchallenged.
posted by T.D. Strange at 6:14 AM on November 14, 2014 [2 favorites]


Which is exactly the lesson the Republicans take from Democratic victories. Explains a lot about the state of the country, huh?

(One nice piece of news - the D.C. court of appeals just ruled that the opt-out mechanism for religious objectors to contraceptive coverage is okay under the Religious Freedom Restoration Act, which limits the effects of Hobby Lobby. Unless the Supreme Court steps in again, no matter how much your employer hates birth control, they can't actually stop you from getting insurance that covers it; all they can do is pass the buck to the government.
posted by Holy Zarquon's Singing Fish at 7:25 AM on November 14, 2014


Which is exactly the lesson the Republicans take from Democratic victories. Explains a lot about the state of the country, huh?

Umm, what? I seem to remember that what the Republicans took from 2008, an actual Democratic landslide, was to deny Obama even the tiniest semblance of a Democratic victory through unprecedented use of the filibuster.
posted by T.D. Strange at 7:47 AM on November 14, 2014 [3 favorites]


By "exactly" I mean literally verbatim; they see Democratic victories as a sign that the Republicans won a total and complete mandate, and the American people want them to pass the entire Republican agenda unchanged and unchallenged.
posted by Holy Zarquon's Singing Fish at 8:00 AM on November 14, 2014 [1 favorite]


You don't need to listen to "the American public," Heidi, you need to listen to your constituents, who elected you.
posted by Steely-eyed Missile Man at 8:26 AM on November 14, 2014


Commentary: The whole Gruber non-scandal is about convincing John Roberts.
posted by T.D. Strange at 1:52 PM on November 15, 2014


Elections should matter and have consequences. That's the whole point of democracy. I don't like the conservative agenda, but they won the election. I don't think the Democrats should embrace the bullshit tactics used by the GOP minority.
posted by humanfont at 2:47 PM on November 15, 2014


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