You win some, you still lose some
December 13, 2010 9:43 AM   Subscribe

A Federal Judge in Virginia has ruled the mandate in the recently passed Affordable Health Care Act unconstitutional. This unlikely result means that the Supreme Court will be in the position to decide whether or not all or part of the health care reform remains intact. Some argue this development may reflect the success of broad-reaching Republican efforts in recent years to tilt the political alignment of the Federal judiciary. Others, naturally, disagree.
posted by saulgoodman (205 comments total) 4 users marked this as a favorite
 
The Republicans are going to come down hard on this activist judge.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 9:48 AM on December 13, 2010 [45 favorites]


Fuck.
posted by kmz at 9:49 AM on December 13, 2010 [5 favorites]


The Supremes are going to gut this law like a freshly-caught trout.

Also, as a Virginia resident whose tax dollars are paying Mr.Cuccinelli's salary, I apologize. I'm sure this victory will make him more of a national political figure than he was already. It's not a question of if he'll run for President, but when.
posted by longdaysjourney at 9:51 AM on December 13, 2010


Judge's bio (skeletal, just education and professional highlights).
posted by blucevalo at 9:51 AM on December 13, 2010


If it goes to the Supreme Court, my amateur guess is that it will be upheld, as the commerce clause is insanely broad. It'll be 5-4, and Kennedy will swing it.
posted by klangklangston at 9:52 AM on December 13, 2010 [2 favorites]


Hundreds of billions to war = fine
Hundreds of billions to the wealthy = fine
Nothing for healthcare = fine
Nothing for education = fine
Nothing for unemployment = fine

GRRRRRRRRR. My solution:

Class Parking Lot.
posted by Aquaman at 9:53 AM on December 13, 2010 [3 favorites]


When Senator Clinton says a mandate, it's not a mandate on government to provide health insurance. It's a mandate on individuals to purchase it. Massachusetts has a mandate right now. They have exempted 20% of the uninsured because they've concluded that 20% can't afford it. In some cases, there are people who are paying fines and still can't afford it so now they're worse off than they were. They don't have health insurance and they're paying a fine.
posted by Joe Beese at 9:54 AM on December 13, 2010 [6 favorites]


I'm as liberal as they come, and I know the bill as passed is better than the preceding status quo, but I was pretty upset about the mandate myself. The problem was the lack of a public option, which meant that the mandate was a massive giveaway to the same private, parasitical, middleman-infested insurance conglomerates who screwed things up in the first place. Being required to give your money directly to private business really does sound un-American to me. Can someone explain why that would actually be a desirable scheme, as opposed to a lesser evil?
posted by Faint of Butt at 9:54 AM on December 13, 2010 [70 favorites]


An activist judge is one who makes a ruling with which you disagree.
posted by caddis at 9:55 AM on December 13, 2010 [7 favorites]


Great. They're going to make the shirt I made for my home state a lot harder to sell.
posted by Uther Bentrazor at 9:55 AM on December 13, 2010 [1 favorite]


This is the guy who sent Michael Vick to prison. I am amazed that a person is capable of doing good things with their head lodged so fucking firmly up their goddamn ass.
posted by griphus at 9:56 AM on December 13, 2010


I really don't know how I feel about this. I understand the idea of expanding the pool as widely as possible, but, without serious, demonstrable cost controls in-place, that mandate stands as a huge present to the insurance industry.
posted by Thorzdad at 9:56 AM on December 13, 2010 [9 favorites]


If it goes to the Supreme Court, my amateur guess is that it will be upheld, as the commerce clause is insanely broad. It'll be 5-4, and Kennedy will swing it.

The court hasn't lately held it to be as insanely broad as it has in the past, e.g., Lopez. I don't think its chances are that great unless there is a change in the court before it gets there.
posted by enn at 9:56 AM on December 13, 2010


If it goes to the Supreme Court, my amateur guess is that it will be upheld, as the commerce clause is insanely broad.

Wouldn't the broad interpretation of the Commerce Clause work in favor of a reversal?

If I'm understanding correctly, an affirmation would essentially be a check on Federal powers -- which the Court has not been especially eager to do in recent years -- while a reversal would arguably be consistent with the expansive view of the Commerce Clause.
posted by Kadin2048 at 9:57 AM on December 13, 2010


It seems pretty unconstitutional to me to force people to buy a product from a private company.
posted by furiousxgeorge at 9:58 AM on December 13, 2010 [12 favorites]


I think klang meant the law would be upheld, not this ruling.
posted by enn at 9:58 AM on December 13, 2010


I don't think the Health Care Bill went far enough and would like to see a public option and a complete restructuring of the system, but I don't like the idea of forcing individuals to pay a private company. I understand the rationale,

This does seem to extend the commerce clause further than it's been applied in the past, and I would like to hear arguments as to why this is acceptable (I'm not being argumentative, I would actually like to read arguments and learn more about this). For example, what limits should there be on the commerce clause? Would a requirement that everyone, for example, purchase a bicycle or be fined be acceptable?
posted by null terminated at 9:58 AM on December 13, 2010 [1 favorite]


*I understand the rationale, but I don't like the requirement on citizens.
posted by null terminated at 9:59 AM on December 13, 2010


I understand the idea of expanding the pool as widely as possible, but, without serious, demonstrable cost controls in-place, that mandate stands as a huge present to the insurance industry.

The mandate is a cost control. Without the mandate, healthy people won't get health insurance, and the pool will be more sick, and premiums will go up.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 9:59 AM on December 13, 2010 [8 favorites]


Meanwhile, according to the first link, in separate challenges, two other judges have upheld the new law and a ruling in the big 20 state blunderbus challenge in Florida is yet to come.

So, ACA fans, let's not freak all the way out just yet.

Also, somebody remind the writer at TPM that it's "attorneys general" and not "attorney generals".
posted by notyou at 9:59 AM on December 13, 2010 [2 favorites]


The mandate part was stupid, stupid, stupid. Calling it a "mandate" was just a way to extract the dollars necessary to run the program, and NOT call it a tax.

But noooo ... we're not socialists. Nope, not at all. See, it's not a tax. It's a purchase.

That we happen to force on you.

You know. Like a tax.

Seriously, have Democrats always been this stupid? Did LBJ take all the smart Democrats with him when he left office? Clinton doesn't count.
posted by Cool Papa Bell at 10:00 AM on December 13, 2010 [3 favorites]


It seems pretty unconstitutional to me to force people to buy a product from a private company.

At the state level, as a condition of driving, I'm required to purchase state mandated insurance from a private carrier. How does, as a condition of using public healthcare resources, requiring people to provide proof of insurance differ? Why should the states have more power in terms of mandating coverage than the federal government.

Everyone has to access health care, but not everyone has to do it using public resources. If they don't want insurance they pay a fee for using the resources. I don't agree with it, but it's a perfectly sensible way to do it. There are European countries with similar set ups, I understand.
posted by saulgoodman at 10:02 AM on December 13, 2010 [7 favorites]


The Federal Government is not imposing a mandate. States are allowed to opt out of the mandate.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 10:02 AM on December 13, 2010 [1 favorite]


It's pretty damn convenient for the Republicans that this verdict was handed down a month after the elections, and only a few days before the lame duck session ends.

I don't like the mandate sans public option (or cost controls) either, and it seems fairly likely that if the ruling is allowed to stand, it will kill the entire reform.

F%*#
posted by schmod at 10:04 AM on December 13, 2010 [1 favorite]


Did LBJ take all the smart Democrats with him when he left office? Clinton doesn't count.

As smart, or as a Democrat?
posted by schmod at 10:04 AM on December 13, 2010 [8 favorites]


It seems pretty unconstitutional to me to force people to buy a product from a private company.

Anti-trust exempt private companies. With a long, well-documented history of profit gouging. Whose "regulator" is a former industry VP who co-authored a version of the bill.
posted by Joe Beese at 10:05 AM on December 13, 2010 [6 favorites]


The court hasn't lately held it to be as insanely broad as it has in the past, e.g., Lopez.

I think the mandate fits within the Lopez, Morrison, & Raich trio of cases. Health insurance is squarely within the "activities that substantially affect or substantially relate to interstate commerce" category from Lopez. Even if insurance companies do not directly compete across state lines, many of the insurance companies nonetheless span multiple states, and an insurance company in one state will commonly pay for health care services rendered in many other states. There are many other interstate commerce hooks, but those are some easy ones.

Since purchasing health insurance is a directly economic activity, it also fits with Morrison and avoids Raich entirely.

The bigger issue seems to be the requirement that people do something (i.e. purchase health insurance) when there is normally very little that people are actually required to do by law just for living in the US. I think the whole thing could've been avoided by making it a tax-based scheme. Just raise taxes for everybody and give a tax credit for having health insurance. Bam, problem solved, no constitutional issue at all. But since that could be spun as a tax hike in violation of Obama's campaign promises, we have this mess.
posted by jedicus at 10:06 AM on December 13, 2010 [5 favorites]


The health insurance exchange will be required to include state-based co-ops, which are non-profit. No-one has to give money to any big businesses.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 10:08 AM on December 13, 2010 [2 favorites]


At the state level, as a condition of driving, I'm required to purchase state mandated insurance from a private carrier. How does, as a condition of using public healthcare resources, requiring people to provide proof of insurance differ?

You can opt out of driving. In addition, auto insurance mandates are to protect the other drivers, not you.

There are communities such as the Amish, (exempted from the mandate IIRC) that don't believe in health insurance and pay their own way. Health care is a personal decision.
posted by furiousxgeorge at 10:09 AM on December 13, 2010 [2 favorites]


Why should the states have more power in terms of mandating coverage than the federal government.

Because states are constrained by state Constitutions (or similar documents) which may be less restrictive in some respects than the Federal Constitution?
posted by Kadin2048 at 10:09 AM on December 13, 2010 [2 favorites]


At the state level, as a condition of driving, I'm required to purchase state mandated insurance from a private carrier.

That analogy breaks down, though. Driving is a privilege, for which you must be certified and deemed capable to do. Moreover, if you drive, you must purchase and maintain a road-worthy vehicle, which also must be licensed and certified.

In other words, you don't have to drive, and when you do, care must be taken to ensure you don't harm others.
posted by Cool Papa Bell at 10:10 AM on December 13, 2010 [8 favorites]


Why should the states have more power in terms of mandating coverage than the federal government.

Because the states have a general police power and the federal government does not. It's all right there in the Constitution, pretty plainly.

At the state level, as a condition of driving, I'm required to purchase state mandated insurance from a private carrier. How does, as a condition of using public healthcare resources, requiring people to provide proof of insurance differ?

You can't directly compare what's legal for states to do versus what's legal for the federal government to do. Furthermore, as you say, it's a condition of driving. If you don't like it, you don't have to drive. The health care mandate applies pretty much whether you like it or not, except for certain religious objections. There's no easy way to opt-out at the individual level, at least not without paying a fine. That's the argument, anyway.
posted by jedicus at 10:10 AM on December 13, 2010 [2 favorites]


As smart, or as a Democrat?

Both.
posted by Cool Papa Bell at 10:10 AM on December 13, 2010


You can either have a mandate (which is the only way to fund healthcare while using insurance companies as your middleman) or fully public single-payer (which is both simpler and more cost-effective, but impossible to achieve in a country full of people that believe getting rid of taxes and the services they fund would lead to more freedom, not to rule-by-armed-goons).

Because the insurance/banking industry has our government by the short and curlies, we got a mandate. Not much of a mandate, it has too many loopholes, and we made sure and gave the insurance industry has a good amount of time in which to figure out ways to game the system before it had to do much of anything.

Of course, maybe we'll kill off the mandate too, in which case, those of us (about 99%) without the wealth to pay out of pocket/insanely high premiums will just get Early Death instead.

Combined with our refusal to fund public education or research properly, and we're well on our way to third-world status.
posted by emjaybee at 10:11 AM on December 13, 2010 [2 favorites]


At the state level, as a condition of driving, I'm required to purchase state mandated insurance from a private carrier. How does, as a condition of using public healthcare resources, requiring people to provide proof of insurance differ? Why should the states have more power in terms of mandating coverage than the federal government.

Setting aside arguments about the interpretation of the Constitution, and how that allows states and the federal government to do different things, states do not require you to purchase auto insurance if you do not drive.
posted by gyc at 10:11 AM on December 13, 2010


At the state level, as a condition of driving, I'm required to purchase state mandated insurance from a private carrier. How does, as a condition of using public healthcare resources, requiring people to provide proof of insurance differ?

If you're opposed to buying private car insurance, you can choose not to drive a car. Mandated private health insurance has no such opt-out condition. I suppose that we could require hospitals to confirm insurance status before providing medical aid, but I'd really rather not go down that route.
posted by Faint of Butt at 10:12 AM on December 13, 2010


You can opt out of driving.

In theory but not in reality for most Americans. In most of the country, outside of a few older big cities, trying to survive without a car is difficult at best.
posted by octothorpe at 10:12 AM on December 13, 2010 [4 favorites]


Guys, you can opt out of the mandate as well, just choose to stop living.
posted by Ad hominem at 10:14 AM on December 13, 2010


Oh, and one more thing about the driving vs. health care ... most states (perhaps all?) have state insurance commissions that (in theory) regulate the market and its providers, and prevent you from being gouged.

Emphasis on "in theory."
posted by Cool Papa Bell at 10:15 AM on December 13, 2010 [2 favorites]


The mandate is a cost control. Without the mandate, healthy people won't get health insurance, and the pool will be more sick, and premiums will go up.

Sorry, but, no. Sure, economic theory says that enlarging the pool will make prices go down, but do you really think that's how it would happen in reality? I sure don't.

Given a mandated captive pool of everyone in the US, and no defined cost controls/caps/limits/etc., I think one would have to be the most wide-eyed, true-believer of classic supply-and-demand to say, honestly, that the insurers wouldn't simply keep with their status-quo of ever-escalating premiums.
posted by Thorzdad at 10:17 AM on December 13, 2010 [13 favorites]



In theory but not in reality for most Americans. In most of the country, outside of a few older big cities, trying to survive without a car is difficult at best.


Yes, it is difficult, but there are people with DUI suspended licenses in every town in America. You survive.
posted by furiousxgeorge at 10:18 AM on December 13, 2010 [1 favorite]


Looks like we'll be striking this off the increasingly small & irrelevant list of Things Obama Has Done.
posted by Rarebit Fiend at 10:18 AM on December 13, 2010 [4 favorites]


In theory but not in reality for most Americans. In most of the country, outside of a few older big cities, trying to survive without a car is difficult at best.

Lots of things are difficult, but people manage nonetheless. I've never had a driver's license, a car, or insurance and I've lived in small southern cities where public transit is a sick joke. I wasn't the only one, either. Surviving without healthcare is a very different thing unless you are very lucky and never become sick or injured.
posted by enn at 10:18 AM on December 13, 2010 [3 favorites]


I don't like the mandate sans public option (or cost controls) either, and it seems fairly likely that if the ruling is allowed to stand, it will kill the entire reform.

If the one part is held unconstitutional, does that mean the exchanges, free choice use of employer-provided subsidies, and expansion of medicaid are all out?
posted by zennie at 10:19 AM on December 13, 2010 [1 favorite]


The mandate is a cost control, surely, but it's not a price control. Insurers will certainly see lower overall costs if everyone, including the healthy, pays into plans. But that won't translate to lower prices unless required by law, which it ain't.
posted by echo target at 10:20 AM on December 13, 2010 [5 favorites]


octothorpe: that's a de facto and not a de jure distinction.

The problem is that law is meant to be conservative (in the "preserve the old ways" sense, not in the political sense), radical new laws (such as the health care law), is meant to be questioned like this, and the question of whether the federal government can force people to purchase a commercial product is an important one. As others have said, car insurance is not a good example since driving is not a legal requirement. Personally, I don't think the government has the right to mandate people to buy insurance (though I think we'd be a little better off if it did). I think a public option would have been a far better (and legal) solution. I don't think insurance is the right way to go about health care at all.

The problem is that, like car insurance, the more people that have health care (not health insurance), the better off we all are. By making sure all my neighbors are healthy and safe, I become healthier, it's why heath care should be universal, poverty breeds more poverty and health breeds more health.
posted by thebestsophist at 10:25 AM on December 13, 2010 [1 favorite]


The myth of the rule of law is dead in this country, the "attitudinal model" is the clear victor over the legal model ever since Bush v. Gore, and especially with the addition of Roberts and Alito, possibly the two most nakedly politcal Judges to ever sit on the bench.

There are 4 Republican Teabagger Justices on the Court, hence 4 solid votes to repeal "ObamaCare" from the outset, probably in its entirety lacking a specific severability clause (which is just egregious legislative malpractice from the Democratic Congress...so par for the course). Sotomayor and Kagan are real unknowns, but probably won't flip on a Democratic President and their patron's signature bill. Hence it will all be on bizzaro O'Connor Anthony Kennedy, a reliable conservative who voted with Reinquist on all of the major descisions restoring some limits to the expansive interpretations of the commerce clause dating to the New Deal (Raich, Lopez, Morrison).

So, the teabaggers have a golden path to total repeal at the Supreme Court. Probably the best thing that ACA supporters can hope for is a split opinion punt from SCOTUS, rather than out right repeal.

Even if SCOTUS follows Hudson's USDC rationale, severing the mandate from the rest of the bill as unconstitutional, that result effectively evicerates the bill's supposed cost control measures. The whole point of the mandate (aside from sastifying insurance industry wet dreams) was to offset the increased costs associated with eliminating preexisting conditions, without that offset of healthy people forced to pay into the insurance poor to cover new riskier additions to coverage, all measure of cost control is lost. Health costs will rise that much faster and much of the intended impact of the bill will be lost, a crushing defeat for liberals and Obama and a resounding victory for teabaggers and their allies on the Court.
posted by T.D. Strange at 10:27 AM on December 13, 2010 [2 favorites]


You can't have guarantee issue without a mandate. So assuming we can't have single-payer because it's a political impossibility, which would you rather have: insurance companies can turn down people because they don't want to insure sick people, or requiring everyone to carry insurance?

I understand why healthy individuals like myself would want the former, but I believe the purpose of government is to provide for the greater good where free market forces fail to.
posted by justkevin at 10:29 AM on December 13, 2010 [2 favorites]


If the legislation had only mandated the purchase of (i) health insurance and (ii) a firearm, this would be sailing through the courts unscathed.
posted by brain_drain at 10:30 AM on December 13, 2010 [3 favorites]


Surviving without healthcare is a very different thing unless you are very lucky and never become sick or injured.

People do that, too (survive without health insurance), and according to the GOP, that's exactly as it should be, God willing.
posted by blucevalo at 10:34 AM on December 13, 2010 [1 favorite]


AHCA is like Obama's recent tax agreement with the Republicans: a flagrant sucker deal.

In exchange for paltry and illusory benefits, they shower the rich with a permanent bonanza worth hundreds of billions of dollars.

One might get the idea that the President likes this arrangement.
posted by Joe Beese at 10:34 AM on December 13, 2010 [5 favorites]


Corrente:

1. On the ethics: It's wrong to force people to buy junk insurance under penalty of IRS enforcement, which is what the mandate did. How do we know the insurance is going to be junk? Because although the price can be controlled, the costs are not, and there is no effective cost containment in the bill. So, to make their profit, Big Insurance will cut services. ...

2. On the politics. Sheesh. Leaving aside the madness -- and the evil -- of punting on real implementation until 2014, in a medical system where 45,000 people die each year for lack of care, how on earth could any HCR supporter have imagined that forcing people to buy a defective product from a hated industry was going to fly, politically?

posted by Joe Beese at 10:43 AM on December 13, 2010 [1 favorite]


justkevin...Without cost/price controls to balance the mandate, you are simply mandating increased financial hardships to even more American families. Even middle-class families full of perfectly healthy people often find insurance unaffordable. And many, if not, increasingly, most of these families have incomes too high to qualify for the sad little "high risk" programs some states provide, yet find the high-3-figure-to-4-figure monthly cost of family coverage unaffordable.

As for the exchanges...well...I wasn't holding my breath. No one knows, really, how they will work, and the whole scheme seems pulled out of some unicorn's ass as window-dressing meant to distract from the absence of a real public option. Frankly, I don't think you'll ever see the exchanges happen in any form other than a high-risk program that only about 100 families ever qualify for.

Mandated purchase without mandated price controls is a doomsday recipe for many families.
posted by Thorzdad at 10:44 AM on December 13, 2010 [3 favorites]


In exchange for paltry and illusory benefits

Removal of refusal for pre-existing conditions is "paltry" now?
posted by mightygodking at 10:45 AM on December 13, 2010 [4 favorites]


You can't have guarantee issue without a mandate.

Well, yes, you can. They're called "taxes" or "reducing spending in some areas and increasing spending in others, e.g. Medicare." The latter is also called "prioritization."

Democrats just can't frame issues or craft legislation with any significant skill. I wonder when one of them will rise up and show themselves as being truly representative of the intelligent, learned segments of society, rather than just saying they are.
posted by Cool Papa Bell at 10:47 AM on December 13, 2010


Removal of refusal for pre-existing conditions is "paltry" now?

what's the point of having your pre-existing condition "covered" if you can't afford the premiums?
posted by atlatl at 10:52 AM on December 13, 2010 [7 favorites]


So assuming we can't have single-payer because it's a political impossibility, which would you rather have: insurance companies can turn down people because they don't want to insure sick people, or requiring everyone to carry insurance?

You're begging the question. Single-payer is a political impossibility today, but if the "third way" / Obamacare / individual mandate falls through, and things continue to be perceived as getting worse by the electorate ... well, desperation makes all things possible.

At the end of the day, the legislature can Amend the Court right out of the picture (as was done with the income tax); that may well what needs to happen in order to get universal healthcare.

You are correct in thinking that, right now, the political will to do that doesn't exist. But if things continue to get worse for another generation or two, or even just another decade as the population ages, I'm not sure I'd count it out. It's going to be harder to be against universal healthcare when the bodies are piling up in the streets. For a change of this magnitude, that may literally be what is required.
posted by Kadin2048 at 10:56 AM on December 13, 2010


Removal of refusal for pre-existing conditions is "paltry" now?

That falls under "illusory".

Everyone touting how all these new regulations that will keep Big Insurance from screwing us under AHCA need to remind themselves how well existing regulations have kept us from getting screwed by Big Finance.
posted by Joe Beese at 10:57 AM on December 13, 2010


It's going to be harder to be against universal healthcare when the bodies are piling up in the streets.

45,000 bodies make a pretty big pile.

Yet Washington still finds it quite easy to be against universal healthcare.
posted by Joe Beese at 11:02 AM on December 13, 2010 [2 favorites]


zennie: If the one part is held unconstitutional, does that mean the exchanges, free choice use of employer-provided subsidies, and expansion of medicaid are all out?

Those are probably severable provisions, so their survival would be independent of this ruling. The requirement that insurance companies take those with pre-existing conditions, however, is probably not severable, so if the mandate goes, so does that.

longdaysjourney: Also, as a Virginia resident whose tax dollars are paying Mr. Cuccinelli's salary

As a federal judge, his salary is paid by all U.S. taxpayers.

furiousxgeorge: It seems pretty unconstitutional to me to force people to buy a product from a private company.

Do you think it's also unconstitutional to force people to sell a product? Because we already do exactly that, and I don't see any Constitutional basis for the distinction.
posted by thesmophoron at 11:03 AM on December 13, 2010


In exchange for paltry and illusory benefits, they shower the rich with a permanent bonanza worth hundreds of billions of dollars.

One might get the idea that the President likes this arrangement.


And yet, the Republicans want to overturn it.
posted by Amanojaku at 11:06 AM on December 13, 2010


Although the "mandate" is arguably severable from the law, I don't think it is feasible to eliminate the mandate while requiring insurers to provide coverage despite pre-existing conditions. Wouldn't that be the same as allowing everyone to buy their auto insurance only after an accident?
posted by Cletis at 11:09 AM on December 13, 2010


And yet, the Republicans want to overturn it.

It wouldn't be the first time they've come out against something that was their idea in the first place once they decided Obama might benefit from it.
posted by Joe Beese at 11:09 AM on December 13, 2010 [1 favorite]


Doh! Apologies, longdaysjourney, you were talking about the AG and not the judge.
posted by thesmophoron at 11:11 AM on December 13, 2010


what's the point of having your pre-existing condition "covered" if you can't afford the premiums?

Gosh it would have been great if Congress had passed some sort of law giving subsidies to people who couldn't afford healthcare premiums oh wait they did that
posted by mightygodking at 11:11 AM on December 13, 2010 [1 favorite]


Being required to give your money directly to private business really does sound un-American to me. Can someone explain why that would actually be a desirable scheme, as opposed to a lesser evil?

If only Democrats and President Obama had supported a public option, there would have been economic pressure on private business to ensure cost reduction and efficiency measures, while preserving quality of care.
posted by Blazecock Pileon at 11:14 AM on December 13, 2010


Do you think it's also unconstitutional to force people to sell a product?

If you're talking about, for example, being required to serve someone you don't like at your restaurant, that doesn't really apply. The law is that if you're going to sell a product, you have to sell it to everyone. That's not the same as being forced to sell it when you'd rather not sell anything at all. Again, this is something you can opt out of in a way that doesn't really apply to health care.
posted by echo target at 11:14 AM on December 13, 2010 [2 favorites]


saulgoodman: "How does, as a condition of using public healthcare resources, requiring people to provide proof of insurance differ?"

You're required to buy liability insurance, because the damage you can do with a car often exceeds your net worth. This is society protecting itself from reckless people.

In contrast, the mandate would require you to buy insurance to protect yourself. It's society protecting reckless people from themselves. The harm to society from your uninsurance is minimal, and could be further minimized if we found a better solution than barring ERs from turning the insolvent away.

Furthermore, the justifications for this is that bringing young people into the insurance pool lowers rates. Because healthy young people generally can't afford insurance unless paid by and offered through employers as a tax deductible expense. In effect, the mandate is targetting the young and poor for extra payments and taxes. Good thing they don't vote or anything.
posted by pwnguin at 11:16 AM on December 13, 2010 [2 favorites]


But that won't translate to lower prices unless required by law, which it ain't.

It is required by law:
Insurers will need to report publicly how they spend premium dollars beginning next year, according to the new rules. The regulations also specify that insurance companies in the individual and small-group markets need to spend at least 80% of the premium dollars they collect on medical care and quality improvement activities; those in the large-group market must spend at least 85%.
The Patient Protection and Affordable Care Act mandated that HHS issue the regulations and implement them by Jan. 1, 2011.
posted by electroboy at 11:16 AM on December 13, 2010 [4 favorites]


Thank god Obama didn't ntry to [push a Public Option becauase surely that would be more illegal! GOBAMA!
posted by orthogonality at 11:18 AM on December 13, 2010


Gosh it would have been great if Congress had passed some sort of law giving subsidies to people who couldn't afford healthcare premiums oh wait they did that

Subsidies can be slashed. Or "taken hostage".

The individual mandate, once effected, will be virtually impossible to remove.
posted by Joe Beese at 11:18 AM on December 13, 2010 [1 favorite]


You are correct in thinking that, right now, the political will to do that doesn't exist. But if things continue to get worse for another generation or two, or even just another decade as the population ages, I'm not sure I'd count it out. It's going to be harder to be against universal healthcare when the bodies are piling up in the streets. For a change of this magnitude, that may literally be what is required.

God, how I wish this was true. But, sadly, this isn't how America works.

The scenario you're describing is what would happen in a logical, rational culture. America is not like that and probably never will be.

Think of it like this: unemployment right now is worse than it's ever been in decades and what is the major talking point of the GOP and Joe Sixpack? That unemployment insurance needs to be curtailed.

That the American unemployed are lazy, shiftless, unmotivated and greedy. That they need to have their $weet government cheeze taken away so they'll go out there and get themselves a job, just like my pappy did back in the depression dang'nabbit.

When things get bad here in America, we blame the victim. And worst of all, the victims invariably accept the blame. We had an FPP here on the blue not too long ago about unemployment recipients who agreed that benefits needed to be stopped -- for everyone else. They had good reasons to be unemployed, you see. It's the others who are lazy and unmotivated.

This is the same cultural vein that causes Evangelical women to take their daughters to get an abortion on Saturday and protest the same clinic on Sunday. "Oh, she just made a mistake. She'll never do it again. Yes of course abortion should be illegal, but this is different. Stay out of our private lives! This is between us and God!"

Mark my words: if we ever get to the point where old people are dying in the streets from lack of medical care, there will be a push to dissolve Medicare and Medicaid. It won't be framed as "kill the old and the poor", of course. No, it'll be framed as "Take personal responsibility for your actions and your family members! Is your grandma eating catfood? Well start providing for your elders and this won't be a problem! That's how things have always been done!"

Naturally that won't happen. I don't know anybody who has the financial (or even food) resources to care for an elderly senile parent or two. Or four. If it ever comes to that, you're going to see a lot of senile old folks wandering the streets and, horrifyingly, a lot of "accidental" medication overdoses.

This will happen. It will happen because we are Americans and our cultural heritage prohibits us from extending generous benefits to those we deem unworthy, including ourselves.

Obama was right in one respect: we do need change. But it's not political change we need, it's cultural, even spiritual change. We need to become a different people before this terrifying apocalyptic future can be averted.
posted by Avenger at 11:21 AM on December 13, 2010 [37 favorites]


echo target: If you're talking about, for example, being required to serve someone you don't like at your restaurant, that doesn't really apply. The law is that if you're going to sell a product, you have to sell it to everyone. That's not the same as being forced to sell it when you'd rather not sell anything at all. Again, this is something you can opt out of in a way that doesn't really apply to health care.

What text in the constitution gives rise to that distinction? It seems to me like you're inventing stuff out of thin air. The Commerce Clause makes NO distinction between buyers and sellers, so you're going to have to tell us what you're basing this on.
posted by thesmophoron at 11:24 AM on December 13, 2010


need to spend at least 80% of the premium dollars they collect on medical care and quality improvement activities

And the insurance companies won't find any creative definitions for what constitutes a "quality improvement activity".

And even if they do, the former Wellpoint VP in charge of policing them will make sure they don't get away with it.
posted by Joe Beese at 11:26 AM on December 13, 2010


In other words, you don't have to drive, and when you do, care must be taken to ensure you don't harm others.

You don't have to use public health system resources to live either. You can also opt to pay the fine (which is not forcing you to pay a private insurer, but forcing you to pay the state, which no one in their right minds could argue isn't already within the rights of the state when it comes to matters covered under interstate commerce), and that fine could be used to defray the additional high health care costs that those who, like you, chose to opt out of the public health care pool, would eventually cost the system on an aggregate level.

The law, even just on its face, doesn't require you to buy private insurance, so the argument is a misguided one. If you can't afford to pay a fee to opt out of coverage, then you likely already qualify for subsidized coverage. And as pointed out up-thread, the act also establishes local non-profit plan providers under the state level insurance exchanges, as alternatives to private plan providers. Of course, in states like Florida, those exchanges are going to be implemented and managed by stand-up Republican fellows, like billionaire governor elect Rick Scott who might not always be shooting from the hip, considering his complicated history in the health care industry.
posted by saulgoodman at 11:26 AM on December 13, 2010


If you can't afford to pay a fee to opt out of coverage, then you likely already qualify for subsidized coverage.

It would be foolish at any time for people to clutch at the idea that subsidies offer any kind of protection against a rapacious system.

But for them to do so at a time when a Democratic President is trying to destroy Social Security, it's insane.
posted by Joe Beese at 11:32 AM on December 13, 2010


Gosh it would have been great if Congress had passed some sort of law giving subsidies to people who couldn't afford healthcare premiums oh wait they did that

Are these subsidies part of the mythical things that we'll get in 2014? Tell that to my mother who has MS, lives on a terrifyingly low income, buys her own insurance and whose premium has more than doubled in the last year, while the cost of her prescriptions have tripled. Too little, too late; and as mentioned above, capable of being taken away or removed completely.
posted by atlatl at 11:32 AM on December 13, 2010 [4 favorites]


Are these subsidies part of the mythical things that we'll get in 2014?

Along with withdrawal from Afghanistan.
posted by Joe Beese at 11:34 AM on December 13, 2010


And the insurance companies won't find any creative definitions for what constitutes a "quality improvement activity".

So we should never pass any laws because someone might try to circumvent them?
posted by electroboy at 11:35 AM on December 13, 2010 [1 favorite]


* waves hand *

This is not the health care plan you are looking for

* coughs *
posted by blue_beetle at 11:37 AM on December 13, 2010


Along with withdrawal from Afghanistan.

Hey, it would be great if you could stick to the topic at hand, rather than dragging in other issues.
posted by nomadicink at 11:38 AM on December 13, 2010 [5 favorites]


So we should never pass any laws because someone might try to circumvent them?

You should never try to improve a health care system made lousy by for-profit insurance companies by delivering them millions of involuntary new customers.
posted by Joe Beese at 11:39 AM on December 13, 2010 [5 favorites]


atlatl: Tell that to my mother who has MS

My mom has MS too. Good luck.
posted by paisley henosis at 11:41 AM on December 13, 2010


electroboy: Yes, you should not pass new, easily circumventable laws, when you know that there are people who stand to make billions of dollars from circumventing them.
posted by Grimgrin at 11:45 AM on December 13, 2010 [3 favorites]


Democrats are increasingly seeming like the liberal version of Lord Henry's uncle: "In politics he was a Tory, except when the Tories were in office, during which period he roundly abused them for being a pack of Radicals."

In politics, we are Democrats, except when Democrats are in office, during which period we roundly abuse them for being a pack of Republicans.
posted by Astro Zombie at 11:45 AM on December 13, 2010 [1 favorite]


When Senator Clinton says a mandate, it's not a mandate on government to provide health insurance. It's a mandate on individuals to purchase it. Massachusetts has a mandate right now. They have exempted 20% of the uninsured because they've concluded that 20% can't afford it. In some cases, there are people who are paying fines and still can't afford it so now they're worse off than they were. They don't have health insurance and they're paying a fine.
posted by Joe Beese


I'm from Massachusetts and this is plainly wrong. It is not a fine, it's a tax penalty (on your State income tax) which is not the same thing as a fine, and if you truly are low enough income it really won't affect you. The Massachusetts plan has cost controls and a great system called "the connector" which made the insurance I can get better (minimum coverage), and cheaper (as someone who can't get it through a business since I'm an independant contractor.) I know people of many different economic levels (from the very wealthy to the unemployed) and every single one of them is either in the same situation or better off than before. Granted this is because the Mass plan is better than the federal one because it has the public option, but Obama was wrong at that point, his information was incorrect. They've exempted people whose income is below a certain amount, there is no 20% cap on that.

I'm sure your point is to prove that Obama is bad because he changed his mind, but he went from being wrong to being right. Where he went wrong was in losing the public option.

If you want things to get better, keep the mandate and add in the public option. The more people who get used to having the equivalent of universal healthcare, the harder it will be for people to take it away from them. Just try convincing anyone who is on the Massachusetts Commonwealth Care (public option) to vote against it.
posted by haveanicesummer at 11:48 AM on December 13, 2010 [5 favorites]


As others have said, it is either the mandate or a U.S. NHS. We can't have a U.S. NHS, because we're a center-right country, so we got the mandate.

Looks like we'll be striking this off the increasingly small & irrelevant list of Things Obama Has Done.


Oh ho ho so clever.

Sometimes I wish Obama would slap down five bucks for a metafilter membership, come in here and incisively rip some new ones.
posted by angrycat at 11:49 AM on December 13, 2010 [4 favorites]


I'm from Massachusetts and this is plainly wrong. It is not a fine, it's a tax penalty (on your State income tax) which is not the same thing as a fine, and if you truly are low enough income it really won't affect you. The Massachusetts plan has cost controls and a great system called "the connector" which made the insurance I can get better (minimum coverage), and cheaper (as someone who can't get it through a business since I'm an independant contractor.) I know people of many different economic levels (from the very wealthy to the unemployed) and every single one of them is either in the same situation or better off than before.

Yet all of this is what GOP candidates will be running against in 2012, along with doing everything they can to tie it as an albatross around the neck of Mitt Romney, who will in the end have to somehow disavow what he was instrumental in pushing into place (or deny that he had any involvement at all in it, which would not be surprising given his history).
posted by blucevalo at 11:52 AM on December 13, 2010


electroboy: Yes, you should not pass new, easily circumventable laws

Cite?
posted by electroboy at 11:52 AM on December 13, 2010


Are these subsidies part of the mythical things that we'll get in 2014? Tell that to my mother who has MS, lives on a terrifyingly low income, buys her own insurance and whose premium has more than doubled in the last year, while the cost of her prescriptions have tripled.

Well, she's not going to have to buy insurance until 2014 if she can't afford it anyway. The subsidies are no more "mythical" than the mandate is. Both are explicitly written into the law. The mandate doesn't go into effect before the increased subsidies.

The health care industry is responsible for increasing costs right now, and they're doing it in part to thwart the reform going into effect, because those reforms (among other things) limit the amount of revenue insurance companies can take in that doesn't specifically get spent on treatment. None of those increases are direct costs of the plan; they are preemptive self-motivated actions on the part of the health insurance industry. The vast majority of the health care reform hasn't even gone into effect. But they already don't like not being able to drop people for arbitrary reasons and having to cover children with preexisting conditions (to the extent they haven't already maneuvered around those features of the reform).

Either you charge people more in taxes, or you collect fees to defray the costs of regulated public services. Both methods have long been recognized in law as legitimate revenue generating powers of the Federal government. This case is no different on the legal merits. To me, it seems like the constitutional case is much clearer cut than the policy arguments.

Now, that said, I never wanted to see a mandate and still don't (and I'm pretty damn confident the President didn't/doesn't really consider it an ideal outcome either, since it wasn't part of his own original proposal--but remember, a lot of respected Dems and moderates are gung-ho proponents of the mandate, including both Clintons, so it's not like the mandate is some kind of radical, out of the mainstream idea). You've got to acknowledge the facts: it's either got to be a mandate or some even less politically attractive revenue generating mechanism if health care reform in whatever form it takes is going to keep the health care system from simply imploding under the costs of having to treat everyone who gets sick whether they ever pay a dime toward their care or not.

If the courts strike down only the mandate, then things could get interesting, because if the decision held the law only partially invalid and there were no additional legislative modifications, the act without the mandate would potentially destroy the health insurance industry completely (which might not be a bad thing, long term, potentially leading further down the road to a more comprehensive set of reforms like a true public system, but it seems likely it would look and feel like an absolute public policy disaster in the near/mid-term).
posted by saulgoodman at 11:54 AM on December 13, 2010 [2 favorites]


Sometimes I wish Obama would slap down five bucks for a metafilter membership, come in here and incisively rip some new ones.

I have no doubt he would.

The most intense passion Obama exhibits is when he gets to explain why the Left is so misguided: he really lights up; it's inspiring
posted by Joe Beese at 11:55 AM on December 13, 2010 [3 favorites]


Both Hudson and Cuccinelli own stock in Campaign Solutions, Inc., a GOP-linked form that has worked on campaigns of health care opponents like John McCain, Sarah Palin, and John Boehner. Campaign Solutions released a statement in July stating that Hudson was a "passive investor" only.
posted by blucevalo at 11:58 AM on December 13, 2010 [3 favorites]


form = political consulting firm
posted by blucevalo at 11:59 AM on December 13, 2010


Do you think it's also unconstitutional to force people to sell a product? Because we already do exactly that,...

I assume you made this comment without an explanation or an example so you could wait for someone to come along and ask: "Hey, thesmopheron, what the hell are you talking about? Who is being forced to sell a product?", so let me be that someone.
posted by rocket88 at 11:59 AM on December 13, 2010


The most intense passion Obama exhibits is when he gets to explain why the Left is so misguided has to defend himself against people he thought were on his side

I'm willing to bet this is true of pretty much any of us.

On another note, there's some good analysis of this issue over on the Volokh Conspiracy, where they point out that the opinion really fails to address an argument put forth by the administration.

The DOJ argues that the preexisting condition legislation is suitably connected to the Commerce power, and that the individual mandate is necessary to make the preexisting condition provision work, so it comes in under the Necessary & Proper clause.

The judge rejects this only by saying that the individual mandate isn't suitably connected - by itself - to the Commerce Clause, and completely ignores the Necessary & Proper hook.
posted by thesmophoron at 12:01 PM on December 13, 2010




And the judge who struck down Proposition 8 is gay. And he stands to gain more personally from his ruling than this judge does.
posted by Joe Beese at 12:04 PM on December 13, 2010 [1 favorite]


And your point is irrelevant, not to mention specious (how do you know what the Prop 8 judge stands to gain or not to gain "personally"?).
posted by blucevalo at 12:08 PM on December 13, 2010


and blucevalo beat me to it....

It's an interesting question. I (and would guess most Mefis) would say that being gay is not a choice. Owning a stake in a political consulting firm certainly is (and points to some greater ambitions I would argue). I'd actually argue the second would make you more biased in a ruling. And you also have to take into account the very weak defense for constitutionality put up in the Prop 8 trial.
posted by dig_duggler at 12:10 PM on December 13, 2010


Meanwhile, the Republicans are also busy at work right now, blocking a Democrat attempt to prevent a provision of the health care law from going into effect that by all accounts would have the unintended effect of imposing onerous new tax filing requirements on small businesses. The Republicans know the provision is a problem, the Dems are trying to repeal it because it will hurt people, and the Republicans are blocking them from repealing it, perversely, for the same reason.
posted by saulgoodman at 12:13 PM on December 13, 2010 [3 favorites]


> Would a requirement that everyone, for example, purchase a bicycle or be fined be acceptable?

I currently have four bicycles, so I'm good.

Anyone who needs to show a bike as proof, I might be able to loan you one for a bit.

...but not the StumpJumper
posted by mmrtnt at 12:20 PM on December 13, 2010


Do you think it's also unconstitutional to force people to sell a product? Because we already do exactly that,...

I assume you made this comment without an explanation or an example so you could wait for someone to come along and ask: "Hey, thesmopheron, what the hell are you talking about? Who is being forced to sell a product?", so let me be that someone.


The only thing I can think of is the seizure of private property, with compensation, under eminent domain. You could argue that that counts as being forced to sell. We could definitely have an extensive debate on that topic, but I don't think it's germane to the current conversation.

On the other hand, if he's arguing that business owners are forced to sell their goods to customers even if they don't like the color of the customer's skin, then to hell with him.
posted by Faint of Butt at 12:20 PM on December 13, 2010


And your point is irrelevant, not to mention specious (how do you know what the Prop 8 judge stands to gain or not to gain "personally"?).

And more than a little offensive, equating "being gay" with "ruling on a law you are being paid to undermine".
posted by kafziel at 12:26 PM on December 13, 2010


Companies are sometimes also required to sell specific pieces of safety technology bundled as part of their product offerings. That in effect is like requiring some vendors to sell particular private sector products--i.e., the possibly more expensive but safer version of the product. In the world of power tools I've heard of political controversy surrounding Federal mandates that require certain power tools to include certain specific safety features (which are often proprietary third-party patented technologies), but as far as settled law goes, I think it's well within the right of the Federal government to force retailers to sell certain specific products within a class of products in at least this narrower sense. The US can't however force you to be a power tool retailer, but I can't see how any of that has bearing on the health care reform question.
posted by saulgoodman at 12:28 PM on December 13, 2010


Sometimes I wish Obama would slap down five bucks for a metafilter membership, come in here and incisively rip some new ones.


Check that.
posted by brent at 12:29 PM on December 13, 2010


Fuck Ya! More seven dimensional ninja chess from Obama, if you think he didn't plan this out two years ago you are crazy. He is like the flash and y'all are standing still.

Four More Years!
posted by Ad hominem at 12:34 PM on December 13, 2010 [2 favorites]


And more than a little offensive, equating "being gay" with "ruling on a law you are being paid to undermine".

Do you have a source for the latter besides dig's link? Cause that's not what it says.

... he owns a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm that worked this election cycle for John Boehner, Michele Bachmann, John McCain, and a whole host of other GOP candidates who've placed the purported unconstitutionality of health care reform at the center of their political platforms. Since 2003, according to the disclosures, Hudson has earned between $32,000 and $108,000 in dividends from his shares in the firm (federal rules only require judges to report ranges of income).

"Earning dividends from a company that consults for Repubilcan politicians" ≠ "Being paid to undermine AHCA".

But it's irrelevant in both cases. Regardless of their political sympathies, the respective judges are either correct in their application of the law or they're not. Which will be decided - to the extent that such things ever can be - by the Supremes.
posted by Joe Beese at 12:45 PM on December 13, 2010 [1 favorite]



Oh ho ho so clever.

Sometimes I wish Obama would slap down five bucks for a metafilter membership, come in here and incisively rip some new ones.


Oh, bring it on.
posted by furiousxgeorge at 1:01 PM on December 13, 2010




Sometimes I wish Obama would slap down five bucks for a metafilter membership, come in here and incisively rip some new ones.

I wish he would just do what he was elected to do, what he said he would do when running for office. Wouldn't that be better?
posted by Blazecock Pileon at 1:02 PM on December 13, 2010 [1 favorite]


"...obama y pues obama y obamay pues obama. Our obama who art in obama, obama be thy name thy kingdom obama thy will be obama in obama as it is in obama. Give us this obama our daily obama and obama us our obama as we obama our obamas and obama us not into obama but deliver us from obama; pues obama."

(I think I preferred Hemingway's version of this shtick.)

posted by saulgoodman at 1:03 PM on December 13, 2010


beer diplomacy
posted by clavdivs at 1:14 PM on December 13, 2010


Sometimes I wish Obama would slap down five bucks for a metafilter membership, come in here and incisively rip some new ones.

You said "Obama" and "incisively." We're learning now about him that these two words are never used together.
posted by Cool Papa Bell at 1:17 PM on December 13, 2010 [2 favorites]


fuck. If they can pervert the constitution to overturn anything the president does, it's time to get rid of the constitution. I hope every Republican gets the most painful and incurable cancer and is denied health coverage.
posted by mike3k at 1:22 PM on December 13, 2010


I wish he would just do what he was elected to do, what he said he would do when running for office.

Obameter:

Promise Kept: 123
Compromise: 39
Promise Broken: 24
Stalled: 85
In the Works: 232
Not yet rated: 3

He's broken .04 percent of his promises. He's compromised on .07 percent of his promises. He's completed, without compromise or breaking, 24 percent of his promises.

Looks like you got your wish.
posted by Astro Zombie at 1:23 PM on December 13, 2010 [1 favorite]


Sometimes I wish Obama would slap down five bucks for a metafilter membership, come in here and incisively rip some new ones.

Liberals do seem to be the only people he has any interest fighting with.
posted by XQUZYPHYR at 1:24 PM on December 13, 2010 [5 favorites]


Er, perhaps that's four percent of his promises broken, and seven percent of his promises compromised.

I'M INNUMERATE!
posted by Astro Zombie at 1:24 PM on December 13, 2010


Liberals do seem to be the only people he has any interest fighting with.

Just keep calling 'em liberals and one day that's what they'll be. In my opinion, it's not the liberals that are the problems, so much as the idiots.
posted by saulgoodman at 1:26 PM on December 13, 2010


In the Works: 232

No. 1: Increase the capital gains and dividends taxes for higher-income taxpayers

Yeah, let us know how that turns out.
posted by Joe Beese at 1:28 PM on December 13, 2010 [1 favorite]


Obama hasn't magically convinced Congress, including a Senate with enough Republicans to literally stop anything that they want to stop, to increase the capital gains and dividends taxes for higher-income taxpayers. The fascist.
posted by Flunkie at 1:39 PM on December 13, 2010 [2 favorites]


Could someone knowledgeable in the area explain to me why 'mandate' implicates Commerce Clause issues, rather than the Taxing Power? If the mandate is structured as a tax penalty, isn't this implicating Congress' power to enforce taxes, rather than it's ability to regulate something affecting interstate commerce?

/futurelawyer fail
posted by HabeasCorpus at 1:40 PM on December 13, 2010


The DOJ argues that the preexisting condition legislation is suitably connected to the Commerce power, and that the individual mandate is necessary to make the preexisting condition provision work, so it comes in under the Necessary & Proper clause.

IANAL* but my hunch is that this ruling will stand, and it's got nothing to do with the attitudinal politics of the current Supreme Court. I've felt from the very beginning that the mandate would result in a constitutional challenge, and this (necessary and proper) was pretty much the response I heard from others who disagree.

The difficulty with this strategy is that the constitutionality of the mandate has to be inferred from the N&P clause, whereas the prohibition on capitation is explicit. Usually when there are arguments about whether this or that thing is constitutional, the controversial rule is neither mandatory nor prohibited in the constitution itself; rather, it's a battle of inferences where each side argues that there is more and better precedent resting on one constitutional provision than there is on the other.

But here, persons are hit with a tax liability by virtue of existing as individuals, and that seems to me to head straight for a collision with the 16th amendment. I know it's note exactly a fine, and not exactly a tax, and that you can get free of it by buying insurance or you will get a subsidy if you're too poor etc., but the net effect is that if you do not act to seek relief via one or other these routes, you'll owe the government (via the IRS) an extra, fixed, amount. And the fixed nature of the amount means that it's no longer a tax on your income, but an enumerated tax on the individual. By contrast, the necessity and propriety argument requires a great deal of theoretical justification and is ultimately a matter of opinion, whereas the capitation argument goes straight to a Plain Meaning question.

If this were a question of administrative law and agency authority, the Court would have employed a Chevron test to see first whether an explicit statutory rule existed in opposition to the agency's policy, and if not, which of the opposing statutory constructions was the more persuasive. Although it's not the same thing, I suggest that there's a strong parallel between an agency's exercise of its rulemaking authority (which is broad under the powers delegated to the agency, but constrained by statute) and Congressional legislative authority (which is broad under the powers delegated to the legislature, but constrained by the Constitution).

Consider the following reductio ad absurdum, which parallels the United States' position in this case: Congress decides that America's security is closely tied to its prosperity, and to ensure the latter passes a law saying that all candidates for elected federal offices must possess a business degree. This is of course challenged immediately, and the argument presented by its defenders is that Congress is exercising its commerce power for the necessary and proper end of ensuring elected officials are business-savvy. This would be laughed out of court because the constitution already contains specific qualifying requirements for office and tacking on new ones under the authority of the necessary and proper clause would wildly exceed the limits of Congressional authority.

Why Congress expected to succeed in doing essentially the same thing with the health insurance mandate, I have no idea. As a matter of fact, one reason that I developed an early preference for Barack Obama over Hilary Clinton in summer 2007 was that (IIRC) her proposal was more mandate-oriented and I expected it to run into precisely these kinds of problems. On the upside, I strongly suspect that this can be fixed by amendment rather than requiring the entire thing to be canned...at least, I certainly hope so.

* yet

Everyone else, please don't extrapolate views about my policy from my views about law. Personally I support universal health care but don't think most Americans are willing to pay the higher income taxes it will require, and more importantly are not prepared to tolerate the inequities that will result - eg taxpayers who have maintained a healthy lifestyle paying for the treatment of shiftless patients who maintained a very unhealthy lifestyle. The reform passed last year is mediocre but reasonable, under the circumstances. The mandate is not such a bad idea as a practical matter, but I just don't think it works constitutionally. It would be nice if it did, but this post is about what (I think) the law is, not what it should be.
posted by anigbrowl at 1:42 PM on December 13, 2010 [3 favorites]



Obama hasn't magically convinced Congress, including a Senate with enough Republicans to literally stop anything that they want to stop, to increase the capital gains and dividends taxes for higher-income taxpayers. The fascist.


Yes We Can -- Unless Republicans Don't Want To
posted by furiousxgeorge at 1:51 PM on December 13, 2010 [1 favorite]


As a matter of fact, one reason that I developed an early preference for Barack Obama over Hilary Clinton in summer 2007 was that (IIRC) her proposal was more mandate-oriented and I expected it to run into precisely these kinds of problems. On the upside, I strongly suspect that this can be fixed by amendment rather than requiring the entire thing to be canned...at least, I certainly hope so.

Me, too. I didn't think, politically, Americans would swallow a mandate, and that's why I supported Obama's own initial health care proposal, which distinguished itself from Clinton's by omitting the individual mandate. It was congress, though, that ultimately authored the health care reform package that finally made it through, and it was congress that signaled early on that it preferred a version with the mandate. Ultimately, I accepted that because the only alternative to a mandate without a public option seemed to me to be a policy that would almost necessarily cause massive plan rate increases and a short-term collapse in the health insurance industry, with no alternative in place to replace it.
posted by saulgoodman at 1:51 PM on December 13, 2010 [1 favorite]


Looks like you got your wish.

Rather than counting, it might help to look at substance of the promises broken and unkept. It's easy to game a measurement by saying minor executive victories more than offset the more important, more critical defeats and broken promises.
posted by Blazecock Pileon at 1:53 PM on December 13, 2010 [4 favorites]


Yes We Can -- Unless Republicans Don't Want To
Given the number of Republicans in the Senate, that's actually an appropriate summary of the actual Senate rule. Snarking about it isn't going to help change that fact, and I frankly doubt that trying to convince other liberals that Obama is the second coming of Dubya is going to help change it, either.
posted by Flunkie at 1:56 PM on December 13, 2010 [4 favorites]


More like...
Yes We Obama all by himself through sheer charisma and force of will Can had better regardless of how insane the degree of deliberate opposition he encounters or we'll drop him faster than Jimmy Carter to join in on the Republican pile-on.
posted by saulgoodman at 1:59 PM on December 13, 2010 [4 favorites]


Rather than counting, it might help to look at substance of the promises broken and unkept. It's easy to game a measurement by saying minor executive victories more than offset the more important, more critical defeats and broken promises.

I'm giving him leeway on the harder measures. It's only been two years. When the next election comes up, I'll see what he's done.

At this point, though, he's passed a lot of legislation, and a lot of it is terribly, terribly important. As even a cursory look through his list of accomplishments would show.
posted by Astro Zombie at 2:12 PM on December 13, 2010 [2 favorites]


You know, there's a difference between criticizing Obama for not making his case more forcefully and criticizing him for not solving all the problems in the world with the snap of his rose-scented fingers. The White House seems incapable of controlling a news cycle, and not just since the election, but going to back to - well, how 'bout August of '09 and the town-hall-death-panel crazies. I for one (and I suspect many disgruntled left-leaners) understand that the business of making laws is messy, ugly, sausages, etc. But I expect BHO to get dirty with it - to be out there every single fucking day engaging the Repubs in their (let's call them what they are) lies - just as he did at the Republican caucus thing in the beginning of '10 when he schooled them all in front of the camers. Full court press to get your agenda through - publicly, in full view of the press. And THEN, when you run in to the inevitable Republican filibuster, it's pretty clear who's obstructing progress. And maybe, just maybe, along the way, you'll sway public opinion enough that there will be an upsurge in support for your agenda.

THAT'S the President I thought I was voting for in '08.
posted by fingers_of_fire at 2:16 PM on December 13, 2010 [8 favorites]


It seems pretty unconstitutional to me to force people to buy a product from a private company.

I agree that the car insurance example isn't a good one because while impractical in some places, you *can* opt-out.

Consider utilities, though. In my city I can't haul my own solid waste to the landfill that gives me the best price. Instead "Each residential premises in the city shall be provided solid waste collection services at least once per week regardless of whether the premises are occupied and regardless of whether solid wastes are set out for collection."

My solid waste collection, water and gas+electricity companies are all non-governmental and for-profit. I don't know if I must buy from them, but I've heard about people trying to go "off grid" that a residential dwelling, even owner-occupied, must have some services in some communities.
posted by morganw at 2:22 PM on December 13, 2010


Thanks, thesmophoron.
posted by zennie at 2:25 PM on December 13, 2010




Oh my God. Any thread on this administration is going to be a clearinghouse for every single link Joe has accumulated, whether related to the actual subject of the thread or not, offered as soon as the slimmest pretext presents itself.

I guess any discussion of the president is going to be an opportunity for a referendum on his absolute failings as a leader. Which is precisely what Republicans do.

We don't deserve Democrats in office. we get one that's electable, we then stake out our bivouac and seek to destroy him, as surely as Republicans do. We give no quarter when he does something good, and we escalate our criticism of his failings as though this made him identical to his predecessor. Why don't we just elect Dionysus. Then we'd at least have an excuse for cannibalizing him.
posted by Astro Zombie at 2:44 PM on December 13, 2010 [11 favorites]


Why don't we just elect Dionysus

The child of a single mother with an uncertain birthplace?
posted by Bromius at 2:47 PM on December 13, 2010 [8 favorites]


Man, Yoo wrote something about HCR? Wow, I'll have to check it out.

/reads

Joe, knock it off. Buy a blow up Obama doll and just punch it every five minutes or whatever.
posted by angrycat at 2:50 PM on December 13, 2010 [1 favorite]


I wish he would just do what he was elected to do, what he said he would do when running for office.

You mean like when he said "The only way to end the petty partisanship that has consumed Washington for so long and make a difference in the lives of ordinary Americans is by bringing Republicans and Democrats together to get things done. That's what I've done throughout over a decade in public office." (USA Today, Sept. 18, 2008).

Because I'm pretty sure he's doing that.
posted by schoolgirl report at 2:50 PM on December 13, 2010


Blazecock Pileon: "Rather than counting, it might help to look at substance of the promises broken and unkept. It's easy to game a measurement by saying minor executive victories more than offset the more important, more critical defeats and broken promises."

That's a common criticism of PolitiFact. But if you look at their pre-selected list of the Top 25 most important promises, the percentages are largely the same:

Promise Kept: 6 (24%)
In the works: 10 (40%)
Stalled: 4 (16%)
Compromise: 3 (12%)
Promise Broken: 2 (8%)
posted by Rhaomi at 2:57 PM on December 13, 2010 [2 favorites]


their pre-selected list of the Top 25 most important promises

No. 134: Send two additional brigades to Afghanistan - PROMISE KEPT

Huzzah!

No. 441: Reduce oil consumption by 35 percent by 2030 - IN THE WORKS

That's one way of putting it.

No. 177: Close the Guantanamo Bay Detention Center - STALLED

But no need to stop force feedings in the meantime.

No. 180: Restrict warrantless wiretaps - STALLED

NYT Editorial: "Breaking a Promise on Surveillance"
posted by Joe Beese at 3:03 PM on December 13, 2010 [4 favorites]


Given the number of Republicans in the Senate, that's actually an appropriate summary of the actual Senate rule. Snarking about it isn't going to help change that fact, and I frankly doubt that trying to convince other liberals that Obama is the second coming of Dubya is going to help change it, either.

So why did Obama campaign on stuff he knew would never pass?
posted by furiousxgeorge at 3:04 PM on December 13, 2010


Who says he knew he wouldn't pass it?
posted by Astro Zombie at 3:05 PM on December 13, 2010


So these Senate rules that make his agenda impossible were passed after the election somehow?
posted by furiousxgeorge at 3:06 PM on December 13, 2010 [1 favorite]


The number of Republicans in the Senate changed.
posted by Astro Zombie at 3:07 PM on December 13, 2010


...to less of them.
posted by furiousxgeorge at 3:08 PM on December 13, 2010


We're obviously talking about different elections.
posted by Astro Zombie at 3:10 PM on December 13, 2010


When I read threads like this, I can't help wishing for a moment that McCain/Palin had won in 2008. Because, you know, things obviously would have been so much better than they are under Obama. Only for a moment, and then I realize that I wouldn't wish that on anybody regardless of how misguided I think their political vision might be.
posted by Go Banana at 3:13 PM on December 13, 2010


"So why did Obama campaign on stuff he knew would never pass?"

Gambling? At Ricks?
posted by klangklangston at 3:13 PM on December 13, 2010



When I read threads like this, I can't help wishing for a moment that McCain/Palin had won in 2008. Because, you know, things obviously would have been so much better than they are under Obama. Only for a moment, and then I realize that I wouldn't wish that on anybody regardless of how misguided I think their political vision might be.


Blah blah blah. They couldn't do anything if the Democrats didn't let them, right? That is how the Senate works.
posted by furiousxgeorge at 3:16 PM on December 13, 2010


So these Senate rules that make his agenda impossible were passed after the election somehow?
No, but these Senate rules that make Joe Beese's agenda impossible have existed for quite some time.

I don't really remember Obama ever not speaking about not trying to find common ground, not even during the campaign. Maybe I'm just misremembering. If so, could you please point out some choice campaign quotes from him about how he would never give in to the Republicans, never compromise, even if it meant losing everything that he was trying for instead of losing some, but not all, of them at the cost of accepting other things that he doesn't agree with?

I'm sure Joe's robotic apoplectic histrionic threadshitting link dumper program has a setting to pump out several dozen quotes like that, right?
posted by Flunkie at 3:23 PM on December 13, 2010


I'm wondering that myself, why did he promise all this stuff.

He couldn't have predicted the epic landslide victory that pretty much made him capo di tutti capi. Did he just get caught up and keep promising more and more stuff? Yeah he said he was going to ramp up Afganistan but I clearly remember him saying he was going to close Guantanamo, was that just a massive overreach? Did he wake up the first day in office to an intel briefing that had proof that these guys were Dahlmer with a touch of Houdini? Did Pelosi and Reid stop by and say, "You done good but there is nooo way we are doing that"?

Maybe he believed his own hype and thought that since he could convince voters maybe he could convince a couple hundred of the most intractable bastards that ever existed that they should just give out free health care.

What the hell happened to the most awesome guy ever who had the most awesome team ever? He kinda pulled an episode 1 on me, I got up at 5am to see that shit!
posted by Ad hominem at 3:25 PM on December 13, 2010 [1 favorite]


Blah blah blah. They couldn't do anything if the Democrats didn't let them, right? That is how the Senate works.
In theory, yes, that is how it works. But if you're actually laboring under the false impression that the Democratic caucus in the Senate, or the House, or indeed even among the American people marches in lockstep to anywhere near the degree that Republicans do, I frankly don't think you've been paying much attention.
posted by Flunkie at 3:28 PM on December 13, 2010


furiousxgeorge: "So these Senate rules that make his agenda impossible were passed after the election somehow?"

No, but abuse of those rules to the extent that Republicans have abused them didn't exist until the most recent sessions. Obama was pretty clearly wanting to work with moderate Republicans to get shit done in a reasonable, truly bipartisan way, but that strategy was thwarted by a GOP leadership that banked on blind, uncompromising opposition to save their hides.

I suggest reading the articles in this FPP, particular the piece on the Senate. It's pretty disquieting:
Oh, they insist that they want bipartisan action. But in the coming weeks McConnell’s party will three times vote against even allowing debate on the matter to proceed in the Senate—all part of a deliberate strategy, openly articulated by McConnell, of forcing the G.O.P. to play “team ball” and vote no on everything Obama proposes, regardless of principle or conviction, in hopes of fielding a “bigger team” after this fall’s midterm elections. Never mind that taxpayer bailouts are precisely what this bill is intended to avoid. The Republicans know—as one of their party’s leading message and polling gurus, Frank Luntz, has advised them—that “big bank bailout” is a catchphrase guaranteed to spark public opposition. Never mind, too, that when Boehner says the bill will “protect the biggest banks in America and harm the smallest banks” he knows that this is untrue, and that in fact the biggest banks are all lobbying fiercely to block it, with Republican help.
And from the New Yorker article:
Under McConnell, Republicans have consistently consumed as much of the Senate’s calendar as possible with legislative maneuvering. The strategy is not to extend deliberation of the Senate’s agenda but to prevent it. Tom Harkin, who first proposed reform of the filibuster in 1995, called his Republican colleagues “nihilists,” who want to create chaos because it serves their ideology. “If there’s chaos, things will tend toward simple solutions,” Harkin said. “In chaos people don’t listen to reason.” McConnell did not respond to requests for an interview, but he has often argued that the Republican strategy reflects the views of a majority of Americans. In March, he told the Times, “To the extent that they”—the Democrats—“want to do things that we think are in the political center and would be helpful to the country, we’ll be helpful. To the extent they are trying to turn us into a Western European country, we are not going to be helpful.”

One of the mysteries of the Senate is how Mitch McConnell has been able to keep his members in line, on vote after vote. Why do moderates with years of experience and their own power base back home—Richard Lugar, of Indiana; Susan Collins, of Maine; George Voinovich, of Ohio—keep siding with the more extreme members of their caucus? Alexander said that McConnell listens well to all his members, adding, “When you have your back against the wall and the gallows are hanging in front of you, it tends to unify. Operating with forty members—it concentrates the mind.”
Lindsey Graham described to the Times how McConnell exhorted his caucus after the disastrous 2008 election: “He said if we didn’t stick together on big things, we wouldn’t be relevant.”
I really wonder how much better off if the GOP had moderated in response to the 2008 election instead of embracing cynicism. I have the feeling Obama could have been a truly great and transformative president.
posted by Rhaomi at 3:33 PM on December 13, 2010


In theory, yes, that is how it works. But if you're actually laboring under the false impression that the Democratic caucus in the Senate, or the House, or indeed even among the American people marches in lockstep to anywhere near the degree that Republicans do, I frankly don't think you've been paying much attention.

So the problem is a lack of purists, too much compromising. Yes, in fact I have noticed that.
posted by furiousxgeorge at 3:34 PM on December 13, 2010


What the hell happened to the most awesome guy ever who had the most awesome team ever?

October 31, 2008 - "A gifted orator, Obama is on an historic path"

August 6, 2010 - "Obama's Failure to Communicate"
posted by Joe Beese at 3:35 PM on December 13, 2010


I will buy that. That he was simply naive and thought he could work with republicans, not that he is the total monster Mr. Beese makes him out to be who cynically hoodwinked the American public in order to fatten the pockets of his corporate masters.
posted by Ad hominem at 3:39 PM on December 13, 2010


he was simply naive

Chicago politics being noted for its preponderance of naifs.
posted by Joe Beese at 3:41 PM on December 13, 2010 [2 favorites]


But if things continue to get worse for another generation or two, or even just another decade as the population ages, I'm not sure I'd count it out.

Kadin2048 is very often right. Depressing as hell, but right.

Just two more generations of dysfunction and preventable disability and death, with the attendant loss of productivity and loss of peace of mind as Americans continue to postpone their medical needs in order to pay rent, or give up eating to afford medication, or spend their last terminal months fighting with an insurance company or just plotting to die sooner so as not to bankrupt their children.

Just two more generations of Americans learning that third-world health care is their lot as soon as the lose their jobs (or hold on to a McWal*Mart job), and then maybe the Harvard educated potentates and pundits and cocktail party crowd in the Democratic Party will deign to notice that the peasants are dying at alarming rates, and maybe do something about it.

We used to have a nation; now we just have corporations we pay fealty to and a "Party of the People" that apparently can do nothing more that tut tut grandiloquent and entirely meaningless sympathy every two years when they need our votes.
posted by orthogonality at 3:46 PM on December 13, 2010 [4 favorites]


So the problem is a lack of purists, too much compromising. Yes, in fact I have noticed that.
Oh, quit the theatrics. "Lack of purists" and "too much compromising" are not the same thing, and can't be so easily amalgamated outside of propaganda.

The "lack of purists" -- e.g. a Ben Nelson in Nebraska instead of the Nebraskan version of Noam Chomsky -- exists, whether you like it or not, and whether you think Al Franken and Bernie Sanders should compromise with Nelson or not. And if you lean to the "or not" side of that, you're resigning the American people to getting absolutely none of what Franken and Sanders want.
posted by Flunkie at 3:48 PM on December 13, 2010


He's broken .04 percent of his promises. He's compromised on .07 percent of his promises.

No, he's broken 4% of his promises and compromised on 7%. I'm not saying that's terrible, but you're off by a factor of a hundred.
posted by Justinian at 3:48 PM on December 13, 2010


Could someone clear up for me whether Joe likes Obama?
posted by found missing at 3:49 PM on December 13, 2010 [1 favorite]


And if you lean to the "or not" side of that, you're resigning the American people to getting absolutely none of what Franken and Sanders want.

We resigned to that a long time ago.
posted by T.D. Strange at 3:51 PM on December 13, 2010


Really, T.D. Strange? Then why did Franken and Sanders vote for the health care bill, for example, if it gives the American people absolutely none of what Franken and Sanders want?
posted by Flunkie at 3:52 PM on December 13, 2010


[few comments removed - if you want to focus on specific users go to MetaTalk and don't be jerks here. If the specific user you want to focus on is Obama, he does not have an account here.]
posted by jessamyn (staff) at 3:54 PM on December 13, 2010


Oh, quit the theatrics. "Lack of purists" and "too much compromising" are not the same thing, and can't be so easily amalgamated outside of propaganda.

The "lack of purists" -- e.g. a Ben Nelson in Nebraska instead of the Nebraskan version of Noam Chomsky -- exists, whether you like it or not, and whether you think Al Franken and Bernie Sanders should compromise with Nelson or not. And if you lean to the "or not" side of that, you're resigning the American people to getting absolutely none of what Franken and Sanders want.


There are moderates in the Republican party too, they vote with their party more often and it isn't because of ideology. It's because of party discipline and leadership. If the Democrats can't respond with the same strength they can't win, from a party politics perspective not an ideology perspective. If they can't win, I won't vote for them.

*insert whining that McCain would be worse*

No, he wouldn't be. The Republicans get what they want anyway.


Look, is liberal ideology impossible to pass? Fine, it's impossible, I'll ignore politics or vote third party in protest and do something else with my time. Is it possible? How is it possible, explain how.
posted by furiousxgeorge at 3:59 PM on December 13, 2010


Joe Beese: "Chicago politics being noted for its preponderance of naifs."

Contrary to breathless FreeRepublic posts, Obama did not get his start in politics by slandering, cheating, and knifing his way to becoming Senator of Cartoonishly Evil Chicagoland (D-Evil). He was a community organizer in poor neighborhoods, a professor at U-Chicago, and a state senator in Springfield. While this requires a certain mettle, he was also renowned for hammering out bipartisan deals with Republican legislatures and winning the respect of Republican voters. And he was never a part of Daley's machine. It's a style that worked for him, and it's a genuine shame that he couldn't find the same sense of comity in Washington.
posted by Rhaomi at 4:07 PM on December 13, 2010 [2 favorites]


(See also the Post's overview of his legislative record in Illinois)
posted by Rhaomi at 4:09 PM on December 13, 2010


If they can't win, I won't vote for them.

Eternally relevant:

If Democrats can’t deliver on good policy with strong popular support and dominant congressional majorities, then they’re too incompetent to be in power.
posted by Joe Beese at 4:10 PM on December 13, 2010 [1 favorite]


The Republicans get what they want anyway.
The Republican platform includes, for example, support for a federal Constitutional amendment to define marriage as being between a man and a woman, and for explicitly extending Constitutionally-guaranteed rights to fetuses.
posted by Flunkie at 4:12 PM on December 13, 2010


To be clear, I am not using "platform" in a loose sense. That's their official national party platform.
posted by Flunkie at 4:14 PM on December 13, 2010


The Republican platform includes, for example, support for a federal Constitutional amendment to define marriage as being between a man and a woman, and for explicitly extending Constitutionally-guaranteed rights to fetuses.

Who cares if it is an amendment or not? Obama doesn't think gay people should be allowed to get married either. Abortion would be illegal if not for the Supreme Court, not fucking modern Democrats.
posted by furiousxgeorge at 4:15 PM on December 13, 2010 [2 favorites]


Who cares if it is an amendment or not?

I do.
posted by found missing at 4:17 PM on December 13, 2010


I would think that many people who have been legally married by their state would very much care if a federal amendment overturned that. And as for abortion, again, the Supreme Court has no power over an amendment.
posted by Flunkie at 4:17 PM on December 13, 2010


Ok, but you couldn't pass a constitutional amendment that banned murder right now so the scare tactics aren't exactly hitting home with me.
posted by furiousxgeorge at 4:19 PM on December 13, 2010


Scare tactics? You claimed that Republicans get what they want, in your "McCain wouldn't be worse" post. I contradicted that claim.
posted by Flunkie at 4:21 PM on December 13, 2010


Your cancer tumor does not care whether or not the Obama health insurance policy is unconstitutional. Neither does your coronary infarction, your acute appendix, or your gastrointestinal hemorrhage. Nor does your prematurely born child with breathing difficulties or your aged parent with Alzheimer's Disease.

We're going to end up a failed state with health care for most (non-rich) people provided by the International Committee of the Red Cross and Médécins sans Frontières, as has already happened in New Orleans at the time of Katrina. Maybe when we have cholera outbreaks in the United States, or yellow fever or some other mass pandemic, the Powers that Be will see the reason of national health care. But I doubt it; they'd prefer the problematic, increasingly brown-colored masses to die off.
posted by bad grammar at 4:23 PM on December 13, 2010 [3 favorites]


They want gay marriage banned. Gay people can't cross most state lines and still be considered married. They got what they want on the federal level with DOMA. I mean seriously, you are gonna look at the state of how the law treats gay people right now and tell me the Republicans aren't on top? Get real.
posted by furiousxgeorge at 4:24 PM on December 13, 2010 [2 favorites]


You claimed that Republicans get what they want, in your "McCain wouldn't be worse" post. I contradicted that claim.

Can you lay out the path to passing a constitutional amendment to ban gay marriage that is different in any way if McCain is in the White House instead of Obama. Guess what? President doesn't even have to sign it.
posted by furiousxgeorge at 4:32 PM on December 13, 2010 [1 favorite]


I don't think this thread is about DOMA, either (although I wholeheartedly support its repeal)
posted by angrycat at 4:35 PM on December 13, 2010


When the political tides don't go the Republicans' way, Republicans blame the Democrats. When political tides don't go the Democrats' way, Democrats blame the Democrats.
posted by notswedish at 4:35 PM on December 13, 2010


They want gay marriage banned. Gay people can't cross most state lines and still be considered married. They got what they want on the federal level with DOMA. I mean seriously, you are gonna look at the state of how the law treats gay people right now and tell me the Republicans aren't on top? Get real.
Where have I argued that Republican desires have no influence on federal laws? Of course there are a lot of abhorrent things that the government does that the Republicans like, and I never said otherwise.

But if they were getting everything that they wanted regarding gay people, I seriously doubt that governmental worker benefits, such as health care and various tax benefits, would have been extended to the partners of gay federal workers, as they were this year.

And I'm still waiting for an answer: If the health care act gives us nothing of what Bernie Sanders and Al Franken want, why did Bernie Sanders and Al Franken vote for it?
Can you lay out the path to passing a constitutional amendment to ban gay marriage that is different in any way if McCain is in the White House instead of Obama. Guess what? President doesn't even have to sign it.
I'm sorry, are you seriously asking me to explain how Republicans would possibly get what they want, when I'm contradicting you saying that Republicans get what they want?
posted by Flunkie at 4:37 PM on December 13, 2010


When the political tides don't go the Republicans' way, Republicans blame the Democrats. When political tides don't go the Democrats' way, Democrats blame the Democrats.

And both are correct.
posted by furiousxgeorge at 4:38 PM on December 13, 2010 [2 favorites]


But if they were getting everything that they wanted regarding gay people

From your absurdly literal definition of everything, of course not. From a practical standpoint, yes they get what they want. Gay people do not have legal marriages at the federal level.

That is what the Republican lawmakers at the federal level want.

When you ask the question, "Is gay marriage legal in the US?" the answer is no and Republicans smile. Democratic presidents don't even to pretend to fight it.


I'm sorry, are you seriously asking me to explain how Republicans would possibly get what they want, when I'm contradicting you saying that Republicans get what they want?


I said Obama or McCain made no difference. You said 'but constitutional amendments', explain the relevance.
posted by furiousxgeorge at 4:44 PM on December 13, 2010


Oh, good lord. My absurdly literal definition for everything. This coming from someone who wants no compromise at all even in the face of the facts that people like Ben Nelson exist, and have the power to stop any piece of legislation that they want.

OK, so forget about the amendments. How about the extension of spousal benefits? Do you think that that would have happened under McCain? It happened under Obama.

And I'm still waiting for an answer to the question of why Sanders and Franken voted for the health care act, if it gives us nothing of what they want.
posted by Flunkie at 4:48 PM on December 13, 2010


bad grammar: "We're going to end up a failed state with health care for most (non-rich) people provided by the International Committee of the Red Cross and Médécins sans Frontières, as has already happened in New Orleans at the time of Katrina. Maybe when we have cholera outbreaks in the United States, or yellow fever or some other mass pandemic, the Powers that Be will see the reason of national health care. "

About that -- I'm surprised the forces of one industry (insurance) have been able to stymie reform that would benefit all industries for so long. A healthy populace is a productive populace, right? How many billions or trillions are we losing to avoidable treatments, preventable illnesses, and early death?
posted by Rhaomi at 4:48 PM on December 13, 2010 [3 favorites]


Oh, good lord. My absurdly literal definition for everything. This coming from someone who wants no compromise at all even in the face of the facts that people like Ben Nelson exist

Can we compromise on not erecting massive straw men? Of course compromise is necessary, but on the whole when you have a supermajority you should be winning on the issues. If the question is tax cuts for the rich and you want to get rid of them and doing so is massively popular the rate should not stay exactly the same.

This goes back to what I'm saying about gay issues, there are details and then there is the crux of the issue...Bottom line the Republicans win on gay marriage and win on taxes no matter how many Democrats you elect.
posted by furiousxgeorge at 4:56 PM on December 13, 2010


Erecting massive strawmen? About me thinking that you were anti-compromise? You explicitly equated "lack of purists" with "too much compromise", in direct response to the point that people like Ben Nelson exist and have the power to stop whatever they don't like. I apologize for apparently having misconstrued your position on the merits of compromise, but I assure you I was not erecting a massive strawman.

You know what? Good night.
posted by Flunkie at 5:05 PM on December 13, 2010


I think I drank too much beer implies there is an ideal non-zero amount of beer that has been exceeded.
posted by furiousxgeorge at 5:09 PM on December 13, 2010


STOP EVERYTHING and reset to "reacting to judge's decision" mode.

Because one of my favorite left-wing contrarian (but still often wrong) commentators has a totally different spin on the loss of the Mandate:

No Mandate to Buy Insurance, But Mandate to Sell You Insurance Still Preserved - A Progressive Win?
posted by oneswellfoop at 5:18 PM on December 13, 2010


The mandate is a cost control. Without the mandate, healthy people won't get health insurance, and the pool will be more sick, and premiums will go up.

To first order, the mandate reduces premiums of people paying by increasing the number of people paying; it has no direct effect on the total amount consumed.
posted by a robot made out of meat at 5:18 PM on December 13, 2010


Looks like we'll be striking this off the increasingly small & irrelevant list of Things Obama Has Done.

Oh for - - WHY??? Obama wasn't the one who ruled it unconstitutional. Obama wasn't the one who wrote up the half-assed bill that got put through. If people want to blame someone, blame the Democrats in Congress for being wimps or the judge for being a dicksmack, Obama didn't have SHIT to do with this getting repealed. And I'm not saying this out of "how dare you besmirch Obama," I'm saying this because the executive branch, the legislative branch, and the judicial branch of government are separate entities.

Was I seriously the only person who paid attention in 6th grade civics class? What's next, do we blame Obama for my local Ben and Jerry's running out of Chunky Monkey?
posted by EmpressCallipygos at 6:34 PM on December 13, 2010 [1 favorite]


No, he's broken 4% of his promises and compromised on 7%. I'm not saying that's terrible, but you're off by a factor of a hundred.

Generally, it's nice to read through all the comments before responding to one that's a ways back.
posted by Astro Zombie at 7:34 PM on December 13, 2010


Obama wasn't the one who wrote up the half-assed bill that got put through.

Russ Feingold: Obama got the health care bill he wanted
posted by Joe Beese at 7:37 PM on December 13, 2010


Nowhere in Russ Feingold's cited press conference, Joe, does he mention the overhaul of the Constitution that would have been necessary for Obama to personally take a hand in the actual writing of the bill in question. Because, that's what it would have taken for an acting president to do something in the legislative branch.

I ain't saying the guy's perfect. I'm just saying let's place the blame where it belongs -- with the other Democratic congresspeople who didn't show some guts during the drafting process.
posted by EmpressCallipygos at 8:06 PM on December 13, 2010


Empress, what you don't seem to understand is that Presidents have a magic wand that makes every single member of their party do their exact bidding without question. Obama's failure is in not waving that wand.

Seriously, I see this complaint constantly - and not exclusively here - that the Democrats are somehow at fault for not having the rigid ideological lockstep of the Republicans. Maybe I'm crazy, but I see having varied points of view and the opportunity for actual policy debate as being a good thing, one of the reasons I like the Democratic party more than the Republicans. Telling the Democrats to be more like the Republicans so they can prove they're not like the Republicans is just silly, and berating them for not doing that is counterproductive.
posted by kafziel at 8:16 PM on December 13, 2010


Telling the Democrats to be more like the Republicans so they can prove they're not like the Republicans is just silly, and berating them for not doing that is counterproductive.

What I'm saying is that it's counterproductive to berate the president for something Congress did. That's all I mean. People are saying "Obama" when they mean "the Democrats," and I'm just asking them to blame the Democrats that actually happened to have an impact on the issue in question.
posted by EmpressCallipygos at 8:51 PM on December 13, 2010


If you don't like it, you don't have to drive.

There are few places in the United States where this is a viable option.
posted by IvoShandor at 9:37 PM on December 13, 2010 [1 favorite]


Thorzdad wrote: "Given a mandated captive pool of everyone in the US, and no defined cost controls/caps/limits/etc."

Uh, there is a defined cost control. There is a loss ratio requirement of 80% or 85%, depending on the specifics of a given insurance plan. That means that the insurer must spend at least 80 cents or 85 cents of each premium dollar on health care services for its insureds.

Personally, I think the mandate should have been for at least 90%, but my dissatisfaction with the particular number does not change the fact that it is there.

Joe Beese, the insurance companies don't get to decide what counts and what doesn't. The relevant HHS regulations define specifically what is included in the loss ratio calculation and what is not. Again, I may not agree with exactly what those regulations include in the calculation, but that doesn't handwave them from existence.

The system is neither as good as I hoped for nor as bad as you fear.
posted by wierdo at 10:17 PM on December 13, 2010


This thread is awesome. It's why I love Mefi.
posted by IvoShandor at 11:55 PM on December 13, 2010


Fine cancel the requirement for health coverage, but also then cancel the requirement that you have to get treated if you show up at the ER. You don't want health care and want to opt out of it, then you well and truly opt out of it and don't get to opt into it when you are in trouble. Eventually all of the people who will want to opt out will die and then maybe then people will get some universal coverage.
posted by koolkat at 3:11 AM on December 14, 2010


What's next, do we blame Obama for my local Ben and Jerry's running out of Chunky Monkey?

It happened on his watch!
posted by electroboy at 6:27 AM on December 14, 2010


astroturf libertarians are the real threat to internet democracy

I think it's actually these guys that Gibbs and Obama have meant to be the focus of the more controversial recent statements criticizing the "professional left" (hence the modifier "professional"), although these comments have been helpfully pre-interpreted for us by the press in terms that suggest mere "hippy-bashing."

Anyway, I'm still really interested to see how this is going to turn out. In the unlikely event the Supremes strike down the mandate but uphold the rest of the law, something's got to give.
posted by saulgoodman at 6:55 AM on December 14, 2010


We don't deserve Democrats in office. we get one that's electable, we then stake out our bivouac and seek to destroy him, as surely as Republicans do. We give no quarter when he does something good, and we escalate our criticism of his failings as though this made him identical to his predecessor.

Holy shit, you have a quarter?
posted by XQUZYPHYR at 7:09 AM on December 14, 2010


Legal experts claim an elementary logical flaw exists in judges ruling.

Of course, "legal experts" don't sit on the Supreme Court, so...
posted by dirigibleman at 8:20 AM on December 14, 2010


Could someone knowledgeable in the area explain to me why 'mandate' implicates Commerce Clause issues, rather than the Taxing Power? If the mandate is structured as a tax penalty, isn't this implicating Congress' power to enforce taxes, rather than it's ability to regulate something affecting interstate commerce?

Taxes are paid to the government, this will be a mandate that you pay someone else. The fact that it is mandated via a tax versus a fine or jailtime doesn't matter, I don't think. The mandate is the thing, not how it is done.

They could make it a tax credit that you get if you do something- they do that all the time. But that would likely require a commensurate tax increase (in order to make it a penalty), which would be untenable.

Also, in constitutional law, function sometimes counts more than form. If you are doing something that is not allowed, through a series of connected things that are allowed, it can be seen as doing the not allowed thing. Here, it is plainly a law that forces you to buy something simply for being a citizen. The Federal Government does not have that power. (Yet.)

All of the other examples are different; commerce clause justifications have to be of the form "if you engage in interstate commerce (as we now define it), you must adhere to these regulations." As far as I know, it is almost always used to force business to adhere to some regulation, but only if they fit the definition of engaging in interstate commerce. This, on the other hand, would be stretching the definition of engaging in interstate commerce to include "being a person". I don't think that will fly.

We need universal healthcare, but not at the expense of the law.
posted by gjc at 8:35 AM on December 14, 2010


As far as I know, it is almost always used to force business to adhere to some regulation, but only if they fit the definition of engaging in interstate commerce.

No. The Commerce Clause is much more broadly interpreted in law than this. For instance, Federal laws prohibiting the medical use of marijuana have been upheld on the basis of the Commerce Clause, and in that case, the courts explicitly upheld the law under the commerce clause despite their being no direct connection to interstate commerce:

Similarly, the Court upheld a ban on the growth of marijuana intended for medical use on the grounds that Congress could rationally conclude that this growth might make enforcement of drug laws more difficult by creating an otherwise lawful source of marijuana that could be diverted into the illicit market:
In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Gonzales v. Raich
The only reason we aren't blocking medicalized marijuana laws now, in a break with previous administrations, is because the current DOJ has as a matter of policy committed to defer to state authority on the issue despite having the legal authority to override the states on the basis of interstate commerce clause juris prudence.

In practice, the commerce clause's applications in law are all over the map.
posted by saulgoodman at 10:25 AM on December 14, 2010


"there." among other things. ack.
posted by saulgoodman at 10:25 AM on December 14, 2010


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