Thursday, March 29, 2012

SCOTUS on Obamacare - will it do the right thing for the wrong reasons?

This may be the most purely political Supreme Court of the United States in memory. And that may bode well for the Obamacare case before the court.

The mandate issue under consideration is laughable. There is nothing unique or unusual about the 'mandate' - which is not even a mandate - the "tax penalty", approximately $700 for those who are able to obtain Medical Insurance but choose not to, is unenforceable. If they choose to not add the amount to their tax returns, there is no consequence, neither the IRS nor anyone else has the authority to do anything about it, no charges, no prosecution, no attempts to collect it. If you fail to follow the mandate, the penalty is completely voluntary.

The argument that the government cannot require citizens to pay for something they don't want to is childish and wrong. It happens all the time. Taxes, licenses, garbage fees. So they pretzel their logic to say that what makes it unconstitutional is making people purchase it from a private source, even though you can be coerced to buy from the government - such as Social Security and Medicare social insurance contributions. Again, nonsense. One of the earliest acts of the Republic was to require merchant marines to buy private hospital insurance. Another required all free men of militia age to purchase and keep a firearm. Laws against public nudity require the purchase of clothing from private sources.

The 'broccoli' argument is the most absurd. Usually run along the lines of "if the government can require you to buy health insurance, what is next, broccoli?". As if the idea of buying broccoli is so morally bankrupt that anything that starts the slippery slope that ends with broccoli is evidence of unequaled tyranny. Here's the thing, not buying health insurance is very very costly, since lack of insurance does NOT prevent the delivery of medical care, it just pushes the cost onto others. This is not theoretical, we know that right now, every private health insurance policy in America is about $1000 more expensive because of the cost of treating the uninsured. People who can afford insurance but choose not to buy it are transferring real and substantial costs to others. This does not happen with broccoli.

On legal and logical grounds the case before the Supreme Court is groundless. But this is a political court, and this is a partisan political issue, so here it is. We know that a solid majority of the court is aligned with the political forces that want this law overturned. But will they?

Consider this. This court took this case politically, they will rule on it politically. But what is the bigger picture? Chief Justice Roberts is already worried about his troubled legacy, particularly due to his pivotal role in the disastrous Citizens United outrage. Scalia is concerned about his own reputation for making principled judgments narrowly focused on the minutia of constitutional law and history, yet always seems able to bend them to reach his desired political result. Alito is shedding his "Scalito" reputation as Scalia's second vote. Kennedy, who values his role as 'reasonable swing vote' has been anything but, he almost always swings right in politically charged cases. Only Thomas is unapologetically always political. The other 4 conservatives have reasons concerning reputation and legacy to at least consider being something other than a rubber stamp. But they are still going to make a political decision in this case.

What factors might influence their political decision? Well ... there is an election going on. What do you suppose will be the political fallout of a decision that overturns, or guts the Affordable Care Act (Obamacare) just three months before the election? Probably not much on the presidential race, by all accounts the GOP will be putting up the most unpopular nominee in decades (no matter who gets the nod), so they will depend on their Citizens United enabled billions to use saturation attack ads to close the gap. The presidential election will depend on if overwhelming advertising is enough to decide the vote. But that is not the only election. The GOP has a commanding majority in the House to defend, and only need switch two or three seats to take the Senate. But in the aftermath of an anti-Obamacare SCOTUS decision, what happens? Outrage and anger in the Democratic base, and not a few independents too. When they lose it, they will suddenly notice all the very popular things in ACA that they and even Republicans like and overwhelming want, all taken away. Lots of outrage and anger.
Elections very seldom turn on persuasion, they are decided by which side is most effective at turning out its partisans and discouraging its opponents partisans - that's how negative ads work, they don't change minds, they make people stay home. But an anti-Obamacare decision will angerize the Democratic base, and they will turn out in numbers not seen since ... 2008. The GOP base is already energized in its hatred of Obama, and an anti-Obamacare decision will not increase that, indeed they may become less energized in their satisfaction with the political win and its slapdown of Obama.

So there you have it, the most likely political outcome of the Supreme Court overturning or gutting Obamacare will be new and larger Democratic majorities in the House and Senate - with the ability to repair Obamacare, or even replace it with single payer. That is what those four conservatives will have to consider while making their political decision on Obamacare. Are they willing to make a bad decision, that fulfills their partisans' political desire to kill Obamacare, knowing it will lead to GOP defeat and lasting harm to the conservative movement? Or will they burnish their reputations and save the GOP (despite itself) by reluctantly upholding it.

I don't know, they have proven themselves to be incredibly reckless, but I think there is a very good chance that at least one of them will choose to make the right decision for all the wrong reasons - and one is all that it will take.

UPDATE  June 28, 2012

ACA UPHELD by US Supreme Court

And the answer is in - by a 5 to 4 decision ACA has been upheld by the Supreme Court. As suspected the swing vote was Chief Justice Roberts - who is protecting his legacy, and more importantly - the Republican majority in the 2012 election.

It is surprising that the remaining 4 conservatives - including the so-called 'moderate' Kennedy - all dissented and were apparently willing to completely overturn ACA despite the likely adverse consequences for the GOP.  However - I suspect one of the other conservatives would have found a reason to switch his vote if Roberts hadn't - partisanship trumps ideology for this conservative block, which is why they are always willing to be the most extreme 'activists' to uphold GOP interests no matter how much they claim to be strict constructionists.

The majority decision upheld the so called mandate - correctly identifying it as a tax (a peculiar voluntary tax at that) well within the Constitutional authority of Congress.
More perplexing is the ruling on the Medicaid expansion that is designed to expand Medicaid to 18 million Americans who do not qualify under current rules. Medicaid (not to be confused with Medicare) is a joint federal/state medical program for the poor. The expansion in ACA would extend it to some of the working poor and those in their households who currently earn more than the current limits. ACA required the states to participate in the expansion or lose all of their Medicaid matching funds - which 26 states argued is unconstitutional coercion. This type of 'coercion' is very common - for instance highway funds are subject to a number of conditions, which will result in a state not receiving their share of federal highway dollars if they don't meet them - the most well known examples were the 55mph speed limit back in the 70s, and the requirement to raise the drinking age to 21 in the 80s. It is not inconceivable that this Obamacare ruling could result in lower drinking ages in some states - perhaps states that would like to attract college tourist dollars like Florida, Louisiana or Texas.

What the Medicaid decision won't result in is states not extending Medicaid coverage - because there is no coercion - the federal government will be paying for 100% of the expansion cost for the first 3 years (2014-17) and it is unlikely that Congress will not extend federal payments after that. Despite the fact that 26 states filed suit against the Medicaid expansion provision, since it is of no cost to them only the most recalcitrant of ideologues would face the wrath of their constituents by turning it down - which leaves only Florida, Ohio and Wisconsin as possible states to eliminate health care for the working poor for absolutely no reason at all. We'll see if Scott, Walker or Kasich are willing to be that reckless - I'm only betting on Scott.

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