What is so hard about that to understand?

of the same form that gutted the New Deal and a whole host of progressive programs.

is that supposed to mean?

had an opinion that this should be done by Congress, not the court. Stay tuned.

...as long as it dies. I want to see the commercial health insurance industry gutted, not elevated to the point where enriching greedy insurance execs is a patriotic obligation.

I'm not talking about the merits of the mandate (though you are certainly wrong about that). I'm simply talking about whether the ends should really justify the means, even if we assume (for the sake of argument) that the mandate is horrible policy.

What will you say when a hypothetical Single Payer program is ruled unconstitutional, stemming from precedents that originated with the one to throw out the mandate?

What will you say when the structure of Medicaid is potentially gutted this June? What will you say to the 18 million people who will now no longer get government-run Medicaid after this decision? (More than half of the insurance expansion was with Medicaid -- not private insurance.)

What will you say when the court throws out the entire law, INCLUDING the non-discrimination on the basis of pre-existing conditions (saving the insurance industry)? Do you realize that the primary focus of today's arguments (at least the primary focus of the Conservatives' arguments) were about helping the insurance industry, and ensuring that they junk sufficient parts of the law to keep it viable and vibrant?

What in the WORLD makes you think that throwing out the entire law does anything other than ensuring the private insurance industry flourishes for the next several decades (in a market where the sick are discriminated against)?

I'm not happy with people profiting from sickness either. But when your vendetta against corporations takes precedent over concern for people with pre-existing conditions, then thats when you can stop calling yourself a liberal.

chanting "State's rights" is a grave mistake for a progressive (with respect to broad economic policy)?

For exactly the reasons I cited in my OP?

What happens when Vermont's single payer program fails, because many providers flee the state at the prospect of rational cost control? None of this would be a problem if we enacted single payer at the federal level.

Do you think progressives should be advocating for "states' rights" in this area, as a pretext for 5 black robed men junking an broad social program that got 218 votes/60 votes in Congress and a Presidential signature? Will you be consistent, and say the same thing when this precedent is used to junk a law that is extremely important to you?

What if the Supreme Court throws out the expansion of government-run Medicaid to 18 million people this June -- using the same broad "pro-state's-rights" arguments as in the mandate case?

but not when his critics do it? Okay when it suits his social agenda but not when it doesn't?

I think this was a terrible bill and agree with mike that it should be ditched in any way possible. I'm sorry that if that happens, it might damage the president and disappoint a lot of my friends but that is a lesser evil than enshrining a corrupt, even criminal, industry further in our national health care.

just fine with you?

This isn't an abstract concept. These are people's lives we are talking about.

their employment just so you can pretend peace is a reality'.
If you need to exploit others and use them as your rally flag, your argument is a stretch. Also, caring for others in terms of justice and health care is simply not what the President or his supporters are for all the time. One of the major issues that makes marriage equality so important is health insurance. Yet the President says his 'faith' is more important than equal access to partner insurance. So it is fine in some cases to let others suffer for the sake of opinion, such as 'Newt and all straights are Sanctified'. We are not sanctified, so my partners does not get my Social Security nor my insurance. There is NO reason for that other than the cold opinions of others. So to claim such great concern for those uninsured is just comedy gold.
Sacraments and superstitions are more important to the administration than millions of gay people. So sure. It is all for those without insurance. Right. Of course, that is ALWAYS the only thing on the administration's mind. That's why they oppose equality under the law, that makes sense.

the insurance expansion in the act.

I'm not talking about the administration's motives. Why are they relevant to this conversation? The ONLY thing I am talking about is whether it is a good thing that we have the ACA, versus having nothing. Objectively -- not based on anyone's motives.

How can you argue that whatever negative effects exist in the bill, that they are serious enough to outweigh expanding purely government insurance to 18 million people, and heavily subsidized private insurance (with mandated benefits and caps on premiums) to another 16 million?

Might your perspective be a little different if you were one of the 30+ million to obtain life-saving care from this bill? Why should you decide for them, on their behalf? Why not ask them whether your concerns outweigh the undeniable benefits?

Do you even know? An infrastructure losing funding so that insurance companies can get 447 billion? Apparently this is an abstract concept to you because you haven't even considered how an already underfunded program is going to accommodate 18 million new clients when funds are being shifted over to cover for profit insurance.

You, like everyone else that pitches this mess, collapse "coverage" with "care".

And that's to say nothing of the 27 million that remain "uncovered".

Don't bother to tell me about the reality of people's lives because with OR without this bad bill, I have zero chance of accessing health "insurance", let alone, of getting actual good enough health care. So save it.

I have no idea about your circumstances, so I'll accept your statement that for whatever reason, this bill will not help you get access to care.

Why is that a reason to deny healthcare to the 18 million that would get government-run Medicaid under the bill? They did not just dump an additional 18 million people onto Medicaid. They increased Medicaid funding by hundreds of billions of dollars.

They did not take money away from Medicaid to use to subsidize private insurance. The ADDED money to Medicaid (on the scale of hundreds of billions). They did exactly the opposite of what you claimed.

Why is that a bad thing? Why is it a bad thing to spend hundreds of billions to give government-run medical care to 18 million people? Why does the fact that you won't be helped under the bill justify not helping the 18 million who will be unambiguously helped? Why should we not provide life-saving care to 18 million people, just because there are others that it does not affect?

This is literally mind-boggling to me. I am not just asking a rhetorical question. I literally do not understand it, and I want to understand why some people here think that NOT helping tens of millions get access to life-saving care is better than doing so through this bill.

It's mind boggling!

passed the healthcare law?

congress is imposing the requirement to buy insurance on individuals, not states, correct?

argument against marriage equality. He got sick of sounding so much like Palin and dropped the clerical 'Sacrament' talk to a certain extent, and switched to 'State's Rights'.
So which is it?

states rights to ensure that progressive economic policy is forbidden by the Constitution?

What?

I am not defending Obama's stance against marriage equality. It is awful. In fact, I'm not defending anyone's motives for anything. I am talking about the OBJECTIVE effects of the legal argument, not the subjective motives for offering it.

Why should we embrace the same states rights arguments (in the economic sphere) that were used to strike down the New Deal, and a huge portion of the progressive policy passed in the first quarter of the century? Why?

They hate Obama for it. I think there's a PUMA element there, too.

The mandate is more than federal vs. state, it's federal vs. individual. The federal government can take my money and they can return the money in the form of tax subsidies or just plain benefits, but allowing federal micromanagement of the citizens is a bad idea.

...vs. individual.

This would, as the OP points out quite clearly, throw a wrench into all federal programs. The right wing SCOTUS is trying to pull an anti-Federalist argument. Future cases then could say "Medicare should only be handled by states," which would be hard to argue against with the precedent set by the right wing SCOTUS. It would be a dismantling of the overall federal government to a return to the confederacy, one case at a time.

broad arguments to throw out the Medicaid expansion, which will result in 18 million people poor people not getting government run healthcare.

If you want to buy into right-wing arguments from the pre-new-deal court as a justification for 5 black robed judges striking down a duly-enacted social program, this is what you are buying into. Is that OK with you?

require the states to tax their citizens to provide for the state portion of the cost.

I don't see that it has anything to do with the commerce clause. Or with the mandate for individuals to buy insurance in the health care law.

I'm starting to feel like you're mixing apples and oranges.

on Medicaid money (simply because the offer is so good). Medicaid is a voluntarily partnership with states (where the government tells states "you can use X money if you follow Y conditions&quot , and the conservative justices believe that the amount of money the government is offering is so big that no state could rationally refuse. Therefore, it is being "coerced" into entering Medicaid, and this is unconstitutional.

Why is it unconstitutional? Because it supposedly "blurs the lines of accountability." If an individual is dissatisfied with Medicaid, they won't know who to hold accountable: their state government or their federal government.

Their remedy to this situation is to strike down the expansion of Medicaid to 18 million people (up to 133% of the poverty line).

That is where these unprincipled, made up federalism arguments get you. There's a reason you will hardly find a single liberal legal scholar who is in favor of this kind of scrutiny for broad federal economic programs, even beyond the fact that these arguments are clearly wrong. It is because they know what they are talking about. They know where these arguments lead. They lead directly to where we were when the Supreme Court struck down large portions of the New Deal.

on whatever they like, either.

I don't see the relevance to the commerce clause in that formulation. Or to the "individual" aspect.

Is the sc making that argument?

As i think about it more it makes even less sense. It seems kind of a jumble.


States and the federal government jointly administer and finance the Medicaid program. State participation in Medicaid is optional. States that elect to participate, as all have done for the past 30 years, must meet minimum federal standards related to coverage and benefits to receive federal matching funds. States have flexibility to cover populations and services beyond federal minimums and receive federal matching funds for these costs. States generally have a great deal of flexibility to determine who is covered, what services to cover, how to deliver care and how much to pay providers. Flexibility to set eligibility levels has been limited over time by increases in federal minimum levels for children and pregnant women and more recently by eligibility protections put in place under the American Recovery and Reinvestment Act (ARRA) and the Patient Protection and Affordable Care Act (ACA). However, as a result of general flexibility there is large variation from one state Medicaid program to the next. Financing for Medicaid is shared between the states and the federal government, with the federal government paying 57 percent of Medicaid costs on average across states (although this rate has been temporarily increased under ARRA). For states, Medicaid represents a major budget item and the largest source of federal revenues.

http://www.kff.org/medicaid/upload/8139.pdf

and 91% after that.

You are looking at the figures for the pre-expansion pot of money.

And yes, all the conservative Supreme Court justices today made that argument in oral argument in one way or another (save Thomas, who hasn't spoken during oral argument in six years).

Justice Kennedy in particular (along with the others in other ways) said that because the federal government mandates following strict conditions, and because the offer is so good, states don't really have a choice. And that the lack of choice blurs the line between individuals and their government, destroying accountability. An individual in theory won't know which government to blame when things go south.

I agree that it makes little sense. But I also understand the root of this problem: 5 Supreme Court justices feeling that they can strictly scrutinize and strike down general economic legislation passed by a 535-member Congress. We had the same problem through 1937, and much of the New Deal was struck down because of that problem. Progressive policy could not be generally enacted until the problem was SOLVED (by the appointment of Justice Hugo Black, and then others, to replace these conservatives).

After that, the Court never again struck down a broad economic package on any of these grounds... until potentially now. That environment allowed Social Security to flourish and the Great Society to pass (with all of its later enhancements).

You may very well believe that 5 Republican justices/philosopher-kings should have the right to strike down broad economic programs passed by Congress (rather than the people, through their elected representatives). But as a purely historical matter, such review and action is not consistent with permitting progressive policy to work.

program administered by the feds like medicare and ss.

Actually, I believe that the sc is more often supportive of capital than labor or anything progressive. Not much different in that respect from the states or the feds, though.

I tend to trust the population generally more than the leadership on most things.

I am talking about alternatives that exist in the real world.

economic rents to insurance corps. And to the rest of the big corps, banks, etc.

Since about 1980 I've watched people make the argument "this is the best we can get" & the country has steadily gone down the toilet in multiple ways.

In another 20 years it will be worse unless we realize that appeasers are losers.

I am not saying that is always the case. But I do think that the opposite is not also always the case. Sometimes, the best we can get is still not nearly enough. But that doesn't necessarily change the fact that it is the best we can get.

The argument that "we tried tactic X and that didn't work, so let's try tactic Y" is absurdly overbroad. It obviously depends on tactic Y. If tactic Y is far worse than nothing, it is by definition a bad idea. I this case, tactic Y is repealing this bill in the hope it will somehow make things better.

30 years, half my lifetime, and nothing to look forward to but more shit.

argument or not, though.

They're going to do it regardless of people's support for the argument, because gutting social programs is on the agenda of the 1%.

They took the case in order to do it with an unpopular program first.

Which is why it was so stupid for the Democrats to get behind a provision that was so unpopular and so fundamentally undemocratic and unDemocratic.

to the subsidized private insurance rolls. They think it would be a better idea to enact the only other alternative that could pass during the last Congress (and probably for the next two decades) -- absolutely nothing.

I just never understood how that coincides with liberalism. I don't understand it and I probably never will. It seems that among some here, given a choice between help 34 million people get access to health care (more than half through a public program) that might incidentally help insurance companies, or helping 0 people get access to health care to ensure that insurance companies are not helped, they actually pick the latter.

Or to sum up, some here seem to think that hurting insurance companies is prioritized over the lives of 36 million people. Nearly everyone here agrees that we should have a single payer system. But when it is obvious that such a system would get 5 votes in the Senate, some would rather do nothing than the next best option. It is utterly, utterly mind-boggling.

And considering that the insurance industry is highly concentrated, it helps very specific individuals. I object to any extension of their power. It's like the hmo thing revisited. it didn't help anyone, just helped the industry to consolidate further, removed power from caregivers and gave it to insurance corps and big medical corps.

And considering that the mandate was not popular, the Democrats came into office with a majority & a lot of good will, plus a lot of ill will toward big business in the wake of the economic crash, it was the perfect time to push for something different.

and i still don't get where the "individual" thing comes in. what is the analogy to "individuals" being forced to buy private insurance with the medicaid expansion?

There's a reason investors jumped ship on insurance companies. In fact, the right wing decision that is in the works is making investors jump back on board.

to be enacted.

Be blind to the systemic damage you are doing by supporting this scam and think of the people that are helped, do it for the shorties man.

I can say sit and spin, the scams do far more damage than they ever help.

No to staying in Afganistan to help the women and protect our children at home from terror.

No to phony drug wars no matter how many kids are removed from meth labs.

No to no child left with an education and the race to the bottom.

No unfunded give away to big pharma, despite the reality of drug coverage for seniors because now we are stuck with it because the right used our logic, once the people have the benefit you can't take it away and it helps drag down our entire economy and creates massive debt, when a rationally constructed program with a revenue stream would build something that could help generations but instead we "helped people" and have built entropy into Medicare by falling for a drown the pig tactic.

Liberals don't shouldn't support "helping people" when it causes you to do more harm to more people over a longer period of time.

Jumped right into a similar tact as "class warfare" too. The fucking cartel is the leading source of systemic pain. They are the problem. You cannot "help" them and not be adding to the problem. They are sucking us dry, already a huge percentage of the economy goes through their hands and it grows and grows, the paradigm is unacceptable and dangerous.

No BZA, liberal does not mean mark for extortion or bribery that will do any stupid thing as long as you dangle someone benefiting that needs help in front of them.

It is easy to say this is "extortion," when you are not just rejecting healthcare just for yourself (if at all for yourself), but instead you are rejecting healthcare for 18 million other people (on their behalf). It is child's play to come up with criticisms of a bill, and say that the positive effect on mere other people doesn't matter. (And that this is just a "right-wing&quot ?) guilt tactic, etc etc etc.)

But maybe -- just maybe -- those 18 million people have a different opinion than you. And maybe their opinion should be respected (or at least examined). Perhaps that is why vast majority of liberals support the law. Have you asked yourself why you are in such a small minority of the party on this issue?

Personally, if the mandate was not extracting profit under the color of law, and if their was a public option that would make a huge difference. Other nations that employ a mandate for health insurance also make it criminal to profit from those products. This is the first such mandate to require citizens to add to the profit of other citizens.
I also say that when all the 'compromise' talk gutted all those aspects of reform the reason stated was that 'it is what we can get done'. If it turns out that it does not stand, then the choice to gut the works to get it passed was not a wise one.
I think they will let it stand. It sucks enough for them to like it, really.

I'm simply pointing out the obvious fact that Medicare for all was not a politically feasible option at the time, and it probably will not be for at least a decade. (Certainly a bare minimum is us controlling the district lines in 2020 to reverse their gerrymanders in 2010.)

Do you believe Bernie Sanders was lying, when he said that single payer would not get 10 votes in the Senate? Perhaps maybe his knowledge of this was what led him to vote for a not-as-good, but still better-than-nothing-for-a-decade bill?

Was Bernie Sanders wrong to cast the deciding vote for Obamacare? Is he not progressive enough?

Best summary I've seen yet of what we have at stake in this Supreme Court challenge. I listened to the arguments on Medicaid yesterday & my blood just ran cold.

middle class. So of course it's challenged and pissed on every day.

I don't recall many Democrats at all that supported it when it was the Newt Gingrich/Heritage Foundation Health Care Plan. You can say it helps people. I can say that it entrenches the obscene private health insurance model in this country for the next 50 years.

Why not pass a deeply flawed plan that helps tens of millions of people get life saving care?

Maybe you think Single Payer is politically feasible soon. So let's assume for the sake of argument that Bernie Sanders was not lying, when he said it would not get 10 votes in the Senate. Let's further assume that single payer and/or a public option (no matter how popular) will not be enacted at least until 2022 (the first election after the next redistricting), and probably well beyond that.

Given that assumption for the sake of argument, what could possibly be your justification for denying health care to tens of millions of people that would otherwise get it under this bill (more than half through an entirely government-run program)? By assumption, the insurance industry isn't going anywhere with or without the bill. It doesn't matter how much you hate that fact -- by assumption, it is a whether-you-like-it-or-not proposition.

Given that assumption, what is your justification? I literally don't understand.

...there is someone arguing that the SCOTUS doesn't have the power to strike it down, but in this thread believes it should be struck down.

Then there is another one who does believe they have that power but doesn't seem to care if it gets struck down.

Then there's me who thinks that they do have that power but does not want it to be struck down.

Fascinating. I love it. Such a wide array of opinions.

Of course, I'm right here, but what can you do.

You don't want it struck down because it hurts people, but you accept that it can be struck down because that's how the system is set up.

Last edited Fri Mar 30, 2012, 12:26 AM - Edit history (1)

Wasn't that decided in Marbury vs. Madison? I haven't seen the argument here, that when a court has to evaluate which wins when they are in conflict (an unconstitutional law or the Constitution), judges must always choose the unconstitutional law instead off the Constitution.

I obviously don't believe there is any actual basis for them to strike it down, but of course they have the raw power of being able to say "it is struck down." (And of course the executive should not ignore such a statement from the opinion of the court.)

One of the consequences of striking down the whole law will be less respect for the court as a supposedly non-political actor. This happened in the 30s, and the result was that one political side lowered their respect for both the court and the concept of judicial review. The result was that in addition to the rejection of anything remotely related to the right-wing constitutinoalization of laissez-faire, the bar was much higher for throwing out any law on any ground. Even for laws that should be thrown out.

That's why Hugo Black dissented in Griswold, and voted to uphold a birth control ban. He was appointed in the era of the four horsemen striking down any law that contradicted right-wing ideology, and that resulted in him using that awesome power extremely sparingly.

If the court goes through with this, it may really undermine respect for that role of the court. And that might be bad for the country in many ways (even if we agree that the conservatives striking down the healthcare bill on such flimsy made-up arguments deserve no respect).

I'm kind of over it right now and don't feel like going over it, but Thom doesn't think they have the power to strike down Congressional laws because the Constitution doesn't explicitly say it and some anti-Federalists argued against it when the Constitution was formed. He thinks it's "implied" that they the framers didn't "intend" for that power to exist (despite that the language in Article III is unambiguous), Marbury vs. Madison be damned.

Fascinating. (That someone like Thom Hartman could believe that.)

or other securities, because planning for your financial well being is (in his/her eyes) the same as buying insurance to protect your physical well being.


You are going to be OK with that mandate?


The individual mandate isn't progressive economic policy. It is conservative economic policy. An employer mandate would be a moderate policy and single payer would be a progressive policy. I want the individual mandate struck down and the remainder of the law upheld. I think any progressive who looks at this issue objectively will agree.

Here is my list of major provisions of the ACA that have nothing to do with the individual mandate, if you find an error please feel free to correct me. I would love to be able to refine this list.


Small business tax credits which are then increased in 2014
Increased Federal funds to states for Medicare
"doughnut hole" closed
Anti-fraud measures
Expanded coverage for early retirees
Healthcare.gov site to help compare insurance options and choices
Children able to stay on parent's plan until age 26
Requiring plans to cover preventive care
Prohibiting Insurance Companies from Rescinding Coverage
People can now appeal insurance company coverage determinations
Lifetime limits on coverage are gone
Annual limits are regulated until 2014, then eliminated
Rate hikes need to be justified
Funding for scholarships and loan repayments for primary care doctors and nurses
Establishing Consumer Assistance Programs in the States
A new $15 billion Prevention and Public Health Fund
Funding for community health centers
Increased payments to rural health care providers
Prescription drug discounts
Free preventive care for Seniors
At least 85% of premiums spent on health care services (some exceptions)
Reforming the Medicare Advantage program
A new Center for Medicare & Medicaid Innovation that will begin testing new ways of delivering care to patients
Improved care for seniors after they leave the hospital
The Independent Payment Advisory Board
Increased access to at home services
Incentives for integrated health systems
Fighting racial and ethnic health disparities
Reduced paperwork and administrative costs
Payments linked to quality outcomes
Improved Preventive Health Coverage
Increased Medicaid Payments for Primary Care Doctors
A national pilot program to encourage hospitals, doctors, and other providers to work together to improve the coordination and quality of patient care
More funding for CHIP
Establishing Affordable Insurance Exchanges
Increased Access to Medicaid
Tax credits to help the middle class
Insurers will be prohibited from dropping or limiting coverage because an individual chooses to participate in a clinical trial
Paying Physicians Based on Value Not Volume



http://www.healthcare.gov/law/timeline/

I am also confident that the political process would never produce a Congress that would enact such a mandate in the first place.

In other words, I don't fear the political process. I don't trust five black robed men to throw out massive economic legislation that was passed by the political process.

There are some instances where the court must step in, because the political process doesn't work. (For example, the political process is not sufficient to protect the right to say unpopular things, since the things being said are by hypothesis unpopular. Likewise, it is not sufficient to prevent racial minorities, who can by definition be outvoted by the majority. There are others.)

But policing economic policy is not one of those things. We live in a democracy, and striking down a major piece of economic legislation is profoundly undemocratic. The possibility of bad policy is merely the risk we take to live in a free society. It is not a justification for a court overturning two landslide elections.

As to your other questions, the justices are using some of the same states-rights arguments against the mandate to strike down the Medicaid expansion to 18 million poor people. That isn't a mandate at all. Similarly, they look like they might very well strike down the entire bill (every page), since they don't want to evaluate whether each provision should stand line by line.

This exactly what happens when you decide that it is OK to open Pandora's box "just this once" to strike down legislation you aren't thrilled with. It is exactly what happens in the 30s, when the Supreme Court threw out huge portions of the New Deal.

and it is very unlikely that will be struck down.



I also think it is very unlikely that the entire bill will be struck down. If you look at that list I posted I just don't see any legal justification for striking any of that.



As far as your "Pandora's Box" comment goes, you need to look into these things more closely. Courts strike down laws all the time, it is fairly common. I will give you one extreme example.


http://en.wikipedia.org/wiki/Lawrence_v._Texas


^snip^


Lawrence v. Texas, 539 U.S. 558 (2003),[1] is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in every state and territory of the nation. The court thereby overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.




I suppose you want to argue that the court didn't have the authority to do that either. That these states elected representatives who passed the laws they needed and that the people in the black robes should have respected that. Good luck with that.

I specifically said (in the post you replied to!) that of course there are some laws the courts would and should strike down. (I specifically mentioned laws discriminating against minorities.) I even said why.

Furthermore, did you listen to the six hours of oral argument? I did. If you didn't, you might want to.

Justice Kennedy expressed support multiple times for striking down all 2700 pages, and was hostile to the suggestion that it should pick and choose. He kept saying that it would be more restrained to strike the whole act (rather than to leave a partial act that Congress didn't think it was enacting). He also clearly supported the idea that the Medicaid expansion was coercive, because the state didn't have a "real" choice.

Maybe Kennedy will step back from the brink. (Of all the cases he might step back, the Medicaid case is probably the most likely.) And of course oral arguments don't always predict the outcome. But the oral arguments (whether or not they serve as a good data point) point directly through nullifying the whole act.