• This is still not a game

    I still remember the day after the public option was finally pulled from the bill that would someday become the Affordable Care Act. One of my conservative friends (I have many, by the way) called to gloat about its demise. In one of the rare moments that I lost my cool, I snapped back, “Congratulations. You just increased the deficit by about $70 billion over the next decade. Nicely done.”

    I feel the same way today. If the mandate goes, so be it. The general consensus is that it will raise the cost of premiums significantly for those in the exchanges and lead to significantly fewer people getting insurance. If that’s what it takes to make the law “constitutional”, then again, so be it. As I said, there are other ways to address adverse selection and gaming.

    I put “constitutional” in quotes because I sometimes feel like I’m the only one who’s a little uncomfortable about that word.

    I get why pundits like to make excited pronouncements about it on TV. It’s how they get to be on TV more. But predicting how nine justices will decide in June from some questions the last few days is like predicting how the election will go in November based on the first debate. They’re making a guess. That’s all it is. Moreover, they don’t impress me because they sound sure today. They sounded sure last week, too, when they were saying the exact opposite thing.

    Moreover, I really wish people would stop acting so darn sure about whether the mandate is constitutional or not. You know what? I’m not sure. I think it seems reasonable, but I don’t profess to know it as truth. But you know what’s crazy? The Supreme Court justices can’t agree! That means the people who are actually in charge don’t even “know” if it’s constutitional. We have to wait until we can poll them and get a consensus before we “know”. And you know what will happen right after that? Half the country will start crowing about how they were “right” and treat the other half as if they were crazy.

    Am I the only one who thinks that’s insane? If it’s 5-4 then even though 44% of the Supreme Court justices felt the opposite, they are “wrong”. And so is everyone who agreed.

    Can we all develop a little humility here? Can we agree that our system of government is open to interpretation and reinterpretation and stop with all the surety?

    No matter what happens, though, I can tell you what you won’t see here: gloating. This is not a game. It wasn’t then, and it isn’t now. This is about policy, and trying to make the health care system of the United States a little better in terms of quality, a little more cost-effective, and open to more people.

    I say this now so you won’t be surprised in June. We don’t strut, and we won’t tolerate it here from anyone else.


    • Absolutely agree.

      There are some “constitutional” issues that are clearly absurd e.g. people who claim that the government doesn’t have the right to tax. That’s just nutty. But this isn’t one of those cases. People can intelligently and in good faith come down on either side of the issue of using the commerce clause to justify the individual mandate; unfortunately, the debate is usually conducted un-intelligently and in very bad faith. All of us, liberals and conservatives, lose out when the discussion degrades into gloating over who “won”.

    • People seem to have forgotten, or maybe they never knew that individual mandates have been present for many years in our health care system. Their existence precedes both Romneycare and the Heritage Foundation recommendations from the early 1990s, and were actually introduced by Ronald Reagan in 1986. His EMTALA law (do we call it Reagancare?) of that year mandated that physicians and hospitals provide emergency care for patients regardless of whether they get paid for providing that treatment. EMTALA introduced an individual mandate for us physicians so that we, along with emergency rooms, would not dump uninsured patients onto other facilities. Just as EMTALA ensures that providers don’t cheat the system by treating only insured patients, the ACA introduces a mandate to ensure that patients don’t game the system by expecting to receive health care without making any contribution to the overall costs.

      So I don’t understand why people are making such a fuss about the mandate. It’s understandably not a great option, as we’d have a much better and cheaper health care system with a single payer model.

    • I agreed with your earlier column and I agree with this one. We need more “reasonable conversations” to improve this problem that, in one way or the other and at one time or another, will effect us all.

      Nice West Wing reference, btw…

      Well done…

    • Thank you.Thank you. Have about had it with the media coverage this week as it seems to serve no purpose.

    • Yes, people who confidently assert the ACA is or is not constitutional are really annoying. No one knows whether it is constitutional until the Supreme Court rules. A Supreme Court ruling is the definition of constitutionality and no assertion before hand, regardless how well reasoned and argued, is a substitute. So, here’s what the partisans on both sides should be saying:

      “I surely hope the ACA is/is not constitutional.”

      “I think the ACA should/should not be constitutional, and here’s why: …”

      • I think mean, in a “shorthand” sort of way, that their OPINION is that it is or is not constitutional. Obviously, no one is going to follow our opinions even after the Supreme Court rules. Shoot, even about half of the Supreme Court judges will be wrong on it’s constitutionality if we go by your definition.

      • I don’t think it’s quite right to say that a Supreme Court ruling is a definitive judgment on the constitutionality of a law. A Supreme Court ruling can always be overturned by subsequent Supreme Court rulings. (See, e.g, Brown v. Board (overturning Plessy v. Ferguson)) A supreme Court ruling is only a snap-shot in time of 5 judges’ opinion of what is constitutional. When the composition of the court changes, so does what is “constitutional.” That’s why the Court should be humble when deciding whether to strike down laws enacted by the people’s representatives.

    • Here’s a related prediction: regardless of the Supreme Court decision, partisans on the losing side will attack justices on the “winning” side as biased, if not corrupt, tools of special interests, or, at least, of being ill informed and not smart enough to understand the issues.

      • You seem to be suggesting that they would be equally unjustified. Is it not possible that one side would be more justified than the other?

    • Obviously gloating is uncalled for. Shock at the way the arguments went , both from a substance and form perspective is appropriate though.

      I am not a ConLaw attorney so can’t really speak to the strength of the arguments but as I commented on the earlier thread, I do think that Verrilli’s performance was shocking. The anti-ACA arguments such as the limiting principle, etc. are familiar to anyone who reads conservative or libertarian blogs or even the submitted briefs so when Kennedy asked that obvious question on a limiting principle right away, I would have thought it was a softball. There has literally been years to prep an answer to that concern and even if one’s answer was unpersuasive, the govt could have avoided looking shocked and unprepared with a fluent, succinct comeback.

      Anyway, I think there should be some serious self-reflection about exactly why the ACA is in this position (even if it survives the challenge).

    • EMTALA was Reagan’s work and it has improved the quality of child birth in many areas of the US. Hospitals used to routinely transfer patients in active and premature labor to the nearest public/safety net hospital at the risk to mother and child. EMTALA and expanding Medicaid along with Medicaid paying OB/GYNs a reasonable has greatly improved our infant morbidity and mortality by getting pregnant women into early prenatal care. How is it we don’t see this as a success? Isn’t this a “right to life issue?”

    • If God wants to punish you, he answers your prayers.

      I am not a constitutional lawyer. We have a procedure for deciding whether a law is constitutional or not. This procedure leads to peculiar results, such as 5-4 votes. Still, it is better to have a procedure than not.

      I am wondering today if conservatives who inveigh against the individual mandate will come to regret a decision which finds a constitutional prohibition against forced purchase of a commercial product. Don’t they want to privatize social security? Don’t they want to require that every adult worker pay into an account at a brokerage? Aren’t those accounts commercial products?

      O noble tea party advocates, rise with me to oppose the fascist bureaucracy that tells me what I can and cannot do with my money. How can I be required to save? Surely, I cannot be required to sign a contract with a brokerage!

      When the republicans are in the driver’s seat and social security privatization is passed, remember that you, not I, argued before the justices against a constitutional requirement to engage in commerce. See you in court.

      • That is an excellent point – shows you the unintended consequences of resting constitutional arguments on ridiculous logical abstractions.

    • This reminds me of the conversations around the CLASS Act, and just like then I think the anger is misplaced. We wouldn’t even be having this discussion if the mandate had been setup as a tax increase coupled with a deduction for buying coverage. But the Democrats cynically wanted to avoid anyone being able to call it a tax, and opened themselves up to the constitutionality issue. Now if SCOTUS rules against this, even a mandate structured in that way is unlikely to happen, it will be politically toxic.

      So just like they diminished our ability to address long-term care by playing games with the CLASS Act, they’ve possibly derailed this entire bill, and certainly endangered at least the ability to have a mandate, all in the name of cheap politics.

    • 21st Century Americans don’t do humility or shades of gray. Everyone has an opinion, usually uninformed, but dammit, they will not consider the possibility that they might be wrong.

    • Let’s imagine a world in which Obamacare included a tax credit rather than a mandate and also included a public option. Is there anyone that thinks that we wouldn’t be in exactly the same position right now if this had happened? There were constitutional arguments against various aspects of healthcare reform throughout 2009. I have little doubt that Randy Barnett or someone else would’ve invented some way in which the law was unprecedented and worthy of judicial consideration.

      For example, previous Medicaid and Medicare expansions (and related laws) covered populations who largely cannot afford health insurance. The public option would be available to anyone not qualifying for Medicaid or Medicare or receiving insurance through their employer. This would be an unprecedented Federal intervention into the private insurance market.

      And that’s not even getting into the effective nationalization of the health insurance industry that would be single-payer insurance. This idea that “everyone knows” that Obamacare would’ve been a constitutional no-brainer absent the mandate is inane.

    • The thing I find most irritating is the substitution of “unconstitutional” for “policy I dislike.” For example, a 94% income tax rate is perfectly constitutional (regardless of what the nutters say), but is also astoundingly stupid economic policy.*

      I agree that I do not know if the ACA is unconstitutional, though my main qualm has been over freedom of association more than anything else. That is, I’m not sure Congress can force me to interact with people whom I would otherwise wish not to communicate with, regardless of money changing hands. But honestly, this is an issue where I just don’t know enough to make a strong enough argument to say where I stand. It may not be in accordance with the constitution, but this is not nearly as clear cut as, say the constitutionality of a restriction on free speech.

      *FDR, I’m looking at you.

    • Well said. Judicial review is kind of bizarre. Whether a law is “constitutional” depends on the judgment of 9 people who happened to have been on the court when the law was enacted. Take away a Scalia or a Thomas and replace them with a more moderate jurist (i.e., one more representative of mainstream legal thought), and suddenly the law becomes “constitutional.” This is the essence of the counter-majoritarian problem. The Court’s only authority comes from its supposed moral authority and claim to evaluate the laws without partisan bias. That authority was severely eroded by Bush v Gore and Citizens United, and maybe this case as well depending on how it turns out. The conservative critique of judicial activism had some merit (but of course the conservatives apply the critique rather cynically, of course).