Thank goodness for the Daily Beast.
Wait, did I just say that?
Here I was, trying to come up with an efficient way to understand the left and right smarties’ reactions to the health care decision. How can I possibly ingest all that opinion? Would my head have to start radiating beams of yellow light as my skull fails to withstand the pressure of so much agenda-driven analysis, combined with the stress of wading through the internet to find it?
Nope. Tina Brown did it for me. Hope her skull’s intact!
Reaction 1: ‘Tax’ is a 4-letter word
Did Obama say it was a tax? Nope. None of his lawyers argued so before the courts. Roberts did. And none of the other pro-PPACA justices agreed with Roberts that the mandate under the commerce clause was unconstitutional. But since Roberts called it a tax, conservatives have started using that against Obama.
But why can’t we do it under the commerce clause, like 4 justices agreed?
The chief justice reasoned that, while the Constitution authorizes Congress to regulate commercial activity, it does not permit the regulation of commercial inactivity.
What is the source of this curious distinction? According to the chief justice, the difference “between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.” That argument gets it exactly backward: the idea that “activity” and “inactivity” are fundamentally different seems to be more metaphysical than practical, not the other way around. In any event, the chief justice overlooked the inconvenient fact that the framing generation actually enacted a bevy of mandates. In 1792, for example, no less a founder than President George Washington signed a law mandating that every able-bodied man buy firearms. As “practical statesmen,” the Framers obviously recognized that the good of the nation sometimes called upon Congress to require people to purchase things, even when it might be theoretically possible for the government to make the purchases for them.
Thanks, Tribe, because I never bought that broccoli thing. If you want to drive a car, you buy insurance or face a penalty when you get in trouble with it, which you know you will. And if you want to have a body, unlike those transhumanists, who want to download it all into a computer, you’re going to need health care. So you buy some insurance or pay a penalty so that the rest of us aren’t going to go broke over your broken arm.
Buying health insurance isn’t the same as buying and eating broccoli, people. Try to think straighter, please. All this misdirected rhetoric is degrading our debate and making it impossible to understand what’s really going on.
But back to it. Tribe says that whatever impact this commerce clause decision may have, we can’t know till we know who gets to appoint the next justices in the next presidential term. Which is a nice, cautious, practical way to look at it. Even out liberal legal scholars are refraining from apocalyptic visions of a conservative court wreaking havoc on our country. Maybe that’s because the actual practice of law relies more on measured, sober assessments than on apocalyptic visions. Despite how it may seem in cable news.
The decision put limits on the commerce clause, sure, but it may not matter much more than as an indication of the rightward progress of the SCOTUS, which we all already knew about.
Reaction 2: Liberals Can Always Find a Reason to Despair: Medicaid Edition
Always-reliable Wonkblog has some reporting on how the Court’s limitations on the Medicaid expansion may go down state by state. States’ve got some thinking to do:
The Medicaid expansion sounds like a real win: States get loads of free money to pay their residents’ health-care bills. It would be a big help to local hospitals and doctors, who often get stuck with uninsured patients’ bills. And it would likely drive down the cost of health care for everyone; studies have found higher rates of uninsurance to be associated with higher costs for everyone else.
That’s the good side. Now, the negatives: States could incur significant costs from the expansion. The federal government won’t cover all bills for Medicaid enrollees who were already eligible for the program but never signed up. States worry about those people showing up to enroll, because of all the publicity around the health-care expansion, and having to accept them at the regular match rate.
Meanwhile, the 100 percent match rate doesn’t last forever. After those first three years, the federal government’s match rate starts dropping: It will pay 95 percent of the cost beginning in 2017 and then, in 2020, foot 90 percent of the bill.
Ideology aside, states will have a very practical problem, figuring out how best to pay for their citizens’ Medicaid coverage now that the expansion is optional.
Also, bonus round, here’s a missive from the liberal doomsday factory about the impact of polarized media. Romano takes for granted the supposed unpopularity of Obamacare (I happen not to, maybe that’s another post. It would require research.) And he deflates the liberal and conservative explanations for the so-called unpopularity. And he says, instead, that our media are to blame for the impossibility of any big ideas to pass the test of popular opinion. Big government expansions and improvements, or big government reductions. Either way. Sure! Conflict-based news media suck! It’s bad for our democracy. But I have a little more faith in us than that. Not sure why.
Reaction 3: Can someone feel good about this decision yet? Please?
Women can! Lots and lots of ovary-based coverage will lock into place as early as August. We’re talking birth control-as-preventative care, an end to gender bias in individual market rates, no more of domestic violence or C-sections being considered a pre-existing condition. No more punishing women in the insurance market for being women. Plus, stuff that whole families need: maternity and well-baby coverage, no more annual and lifetime caps, more caps on co-pays. Lower costs for all! Hallelujah!
Also, this decision is basically a boon to hospitals and insurance companies. They can pay for their investments in the law, they can pay for the massive expansion of coverage. They can figure out how to adapt to the changes.
Reaction 4: The long view
I enjoyed this recent Jill Lepore piece, about how the framers never intended the court to be anywhere close to this significant. It was supposed to be by far the weakest federal branch. Justices weren’t elected because they didn’t want anyone directly elected. But that changed in the late 19th and 20th centuries, during which the Court grew in power, especially in the power to strike down federal law (judicial review).
The commerce clause has one history, judicial review another. They do, however, crisscross. Historically, the struggle over judicial review has been part of a larger struggle over judicial independence: the freedom of the judiciary from the other branches of government, from political influence, and, especially, from moneyed interests, which is why the Court’s role in deciding whether Congress has the power to regulate the economy is so woefully vexed.
For a long time, they just didn’t do judicial review. But starting with Reconstruction, they started really getting into it. Along the way, direct election of judges became more common such that now, 90% of our nation’s judges are elected.
For centuries, the American struggle for a more independent judiciary has been more steadfast than successful. Currently, nearly ninety per cent of state judges run for office. “Spending on judicial campaigns has doubled in the past decade, exceeding $200 million,” Shugerman reports. In 2009, after three Iowa supreme-court judges overturned a defense-of-marriage act, the American Family Association, the National Organization for Marriage, and the Campaign for Working Families together spent more than eight hundred thousand dollars to campaign against their reëlection; all three judges lost. “I never felt so much like a hooker down by the bus station,” one Ohio supreme-court justice told the Times in 2006, “as I did in a judicial race.”
This is Lepore’s own apocalyptic vision: a world in which our jurists are elected and therefore subject to the financial pressures of contemporary elections, with no hope left of the reformer’s dream of impartiality.
Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.
I’ll note that Tribe and others have praised Roberts’ decision as impartial enough to restore some faith in the institution. I’m not so sure. His tax move seems pretty calculatedly partisan to me, giving the right a big hammer to pound Obama with, now that taxes are a four-letter word. In any case, Lepore’s got such a lovely touch with these issues.
What do you guys think? I’ve missed so much in this roundup. Any more doomsday visions? Any shiny happy people? Looking forward to the comments here!
Have a great weekend!