Yesterday, President Barack Obama made the surprising prediction that the Supreme Court would uphold the health care law and further labeled those who would vote against it as judicial activists. I am not sure what he is basing his prediction on, but the comment on judicial activism is both unfounded and unwise.
With most observers saying that five justices, including Justice Anthony Kennedy, appeared to be opposed to the law on federalism grounds, the prediction of victory lead some to allege “insider information.” Fingers were pointed at Justice Kagan who some (including myself) felt should have recused herself because she was Obama’s Solicitor General at the start of litigation to defend the act and received emails on that effort. However, there is no basis to make such an accusation against Kagan who I believe would not commit such an egregiously unethical act in telling Administration officials what the initial vote was in the conference last Friday. Obama may simply be engaging in hopeful thinking (it is after the Administration that ran on “Hope”) or his continuing belief that the cases favor the Administration. It also seemed to set up his next (and much more disturbing statement) on judicial activism.
Obama stated that:
“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress . . . And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”
Of course, all acts found to be unconstitutional were generally the product of democratic process. The point of an independent judiciary is to serve as a bulwark against abuses by the majority. Obama’s statement about judicial activism is equally wrong. There are good faith arguments on both sides of this question and one does not have to be a judicial activist to vote to strike down the law on federalism grounds. I support national health care but raised the same federalism concern before Congress passed the law. I do believe that the law violates federalism guarantees while I respect my friends with opposing views. It is simply unfair to characterize a vote against the law in advance as judicial activism — a term that is often used by people whenever a court rules against their view of the law. To put it simply, it was a cheap shot and beneath a president.
Moreover, it was unwise at this time. This comment is not going to appeal to any of the justices, particularly not Justice Kennedy. The Administration needs Kennedy’s vote and he previously voted to strike down two federal laws on the federalism grounds — the very judicial activism described by the President. Additionally, the Administration is trying to convince Chief Justice Roberts and Justice Scalia to moderate aspects of any ruling. They are likely to view this comment as directed at them. Roberts was ticked by Obama’s statement during his State of the Union address where he criticized the Court. While I felt Roberts failed to condemn the actions of Justice Alito at that address and felt that Alito’s actions were far more problematic, Roberts felt the President was irresponsible. Now, he is condemning any vote against the law in advance as activism. Even if Roberts and Scalia (or Kennedy) were inclined to vote against the individual mandate, they may be on the fence on questions like severability.
The message can easily be taken by justices as a threat that, if you vote against my law, I will denounce you publicly as judicial activists. I realize that this is an election year, but I believe a president should transcend such petty attacks. In this case, it is not just petty but inimical to the Administration’s case.
Source: Yahoo
Tony,
Yeah, I usually avoid daytime television like the plague, but the three or four Andy Griffith reruns I have melding in my head are kind of pleasant on Percocets. 😀
@Swarthmore: No it doesn’t. Neither does Obamacare. Neither party wants to get anywhere near Medicare for All, even though Medicare is by far the insurance plan with the greatest support of those insured.
There is soooo much profit for the rich in health care insurance that any overhaul plan that seriously jeapordizes that profit would be political suicide, especially since Citizens United and SuperPacs.
The goal for both parties really is just to appear to be addressing the problem without actually making any negative impact whatsoever on the profit picture, because it is literally cheaper for the the health insurance companies to spend billions of dollars defeating true reformers than to allow any true reform to pass.
Congressional districts are small, only 250,000 voters on average. No representative wants to be primaried by some newcomer backed by warchest of $20M, that is about $80 in ads per voter. An insurance superpac could drop that on a race to punish an incumbent for stepping out of line without blinking. And they would be smart and target the poorest and most vulnerable ones first. There is just no way to get the votes one would need for true reform, in either the House or Senate.
The insurance companies hire lawyer-lobbyists to communicate these consequences clearly (and legally) to the politicians, and the politicians are too afraid for their seat to defy them.
Tony C:
“I can’t! I have made many a buck, and I haven’t screwed anybody over in the process, because I trade value for value with willing participants.”
That is the optimum, but you do understand that government forcing someone to buy health care is not willing participation?
Tony C:
“Bron thinks anybody that doesn’t want gun-totin’ anarchy doesn’t want to be “free” or “responsible for themselves.””
Now how do you get the idea that I am anarchist? I guess you dont read very well or have limited [severely] comprehension of the written word.
But you definitely are a totalitarian which has been amply proven by numerous people on a few threads.
Otteray Scribe:
“Bron, not for profit hospitals and care providers cannot be advocates for fear of running afoul of the IRS. The insurance lobby is powerful and rich. Guess who wins that tug of war?”
Reason enough to get rid of the IRS.
Affordable Care Act Repeal Would Have Immediate Consequences
Huffington Post
President Obama is “confident” the Supreme Court will rule that his health care law is constitutional, but heated questioning by conservative justices at last week’s hearings leaves uncertain the fate of not only the individual mandate but also the entire law.
If the mandate is struck down, insurance premiums might shoot up and millions of Americans would be left uninsured. But for some, the Affordable Care Act without the mandate looks a lot better than no law at all.
“It’s a choice between a wrecking operation, which is what you are requesting, or a salvage job,” Justice Ruth Bader Ginsburg said last week as the former solicitor general in the George W. Bush administration, Paul Clement, argued that without the mandate, the rest of law could not stand. “And the more conservative approach would be [to] salvage rather than throwing out everything.”
Many provisions of the Affordable Care Act took effect when it was signed into law in 2010, and a full repeal would eliminate reforms that are already providing widespread relief to some Americans. Here are some consumer benefits that would disappear if the whole law were to be ruled unconstitutional:
Increased coverage of preventive services
Many health insurance plans are now subject to new rules that require them to cover recommended preventive services without charging a co-payment. As a result, consumers pay nothing for services like routine screenings, vaccines, counseling, flu shots and well-baby and well-child visits from birth to age 21.
Birth control coverage
One aspect of the preventive care coverage — and among the most discussed provisions of the new health care law — is the requirement that health insurance plans cover contraceptive services. After a widely publicized effort by religious leaders and Republican lawmakers to repeal this measure, the Obama administration announced a compromise that shifts the cost of contraceptive coverage from employers to insurance companies.
Restrictions on lifetime and annual limits
The Affordable Care Act prohibits insurers from placing lifetime limits on most benefits that consumers receive and sets a minimum for annual dollar limits. By 2014 annual dollar limits are slated to be phased out entirely.
Coverage for children with pre-existing conditions
Under the new law, insurance companies cannot deny coverage or limit benefits to children under age 19 because of a pre-existing condition or disability. Starting in 2014, people of all ages with pre-existing conditions will be protected.
Pre-Existing Condition Insurance Plan
Adults who have been refused insurance coverage because of pre-existing conditions and who have remained uninsured for at least six months are eligible for the Pre-Existing Condition Insurance Plan. The program covers primary and specialty care, prescription drugs and hospital visits without requesting higher premiums for pre-existing conditions.
No health plan barriers for ob-gyn services
Health plans cannot require women to get a referral from a primary care doctor before seeking ob-gyn services.
Access to out-of-network emergency room services
The Affordable Care Act prohibits a health plan from charging higher co-payments for emergency room visits in hospitals outside of the plan’s network. Patients are also exempt from needing a plan’s approval before seeking out-of-network emergency care.
Right to appeal health insurance plan decisions
Obama’s health care law gives consumers the right to appeal decisions made by their health insurance providers. If an insurance company reviews its decision and still denies a consumer insurance coverage for a treatment, consumers have the right to request an external review and have an independent review organization decide whether to overturn the plan’s decision. Some states have Consumer Assistance Programs that help people file appeals and request external reviews.
Consumer Assistance Program
The Affordable Care Act improves the services that some states provide to help people with insurance problems. Grants have allowed states to strengthen and grow programs that assist consumers with enrolling in a health insurance plan and with filing complaints and appeals.
More value for the insurance dollar
A provision of the law called the 80/20 rule requires insurance companies to spend at least 80 percent of their premium dollars on medical care. If they don’t, they must provide consumers with refunds starting this summer.
No insurance cancellations for honest mistakes
Insurance companies are not allowed to rescind coverage when patients make honest mistakes on their insurance applications. Before the Affordable Care Act, insurance companies could retroactively cancel patients’ policies because of unintentional paperwork errors with little medical bearing.
Expanded Medicare coverage
The law gives elderly adults who face the Medicare coverage gap a 50 percent discount on prescription drugs covered by Medicare Part D. Seniors will receive additional prescription drug savings until the coverage gap is closed in 2020.
Indian Health Care Improvement Act reauthorized
The law reinstates the Indian Health Care Improvement Act, which provides resources to curb the health care disparities faced by American Indians. Originally passed in 1976, the act was last reauthorized in 1992 and many of its provisions expired in 2000.
Tanning salon tax
The Affordable Care Act imposes a 10 percent tax on tanning beds, and these proceeds help underwrite other provisions of the law.
Expanded coverage for young adults on their parents’ plans
The law requires insurance plans that offer coverage of dependents to allow children to stay on their parents’ plans until age 26. Adult children can be covered on their parents’ plans even if they are married, eligible for work or student insurance, living away from home or financially independent.
HuffPost:
The republican plan certainly doesn’t resemble “single payer”.
Republicans say they will have to make good on their pledge to replace the health care law if the Supreme Court strikes down any significant parts of it.
“Our wheels are beginning to turn,” said Representative Fred Upton, Republican of Michigan and chairman of the House Energy and Commerce Committee, which would have a large role in developing Republican alternatives to the Obama health care law. […]
Republicans are dusting off proposals that date back more than a decade: allowing individuals to buy health insurance across state lines, helping small businesses band together to buy insurance, offering generous tax deductions for the purchase of individual policies, expanding tax-favored health savings accounts and reining in medical malpractice suits.
The Congressional Budget Office already estimated their “plan” would only extend coverage to about three million additional people, while leaving 52 million uninsured, not to mention their “plan” for Medicare, which the CBO says would result in “reduced access to health care; diminished quality of care; increased efficiency of health care delivery; less investment in new, high-cost technologies; or some combination of those outcomes.”
Republicans have controlled the House for two years. By Speaker Boehner’s count, they have voted 27 times to repeal the Affordable Care Act, and one actual vote on a “reform” plan, another tort reform bill that was actually, substantively just another repeal effort.
The only Republican who’s ever had a real health care plan is Mitt Romney. And in order to win the Republican nomination, he’s trying to pretend it never happened.
From the Daily Kos
@Gene: They make me really sleepy though.
All the better for old reruns. Semi-consciousness and a vague recollection of the plot is more than enough to keep track of the story.
id707,
Not so serious as annoying. A molar with an old filling became abcessed and cracked so that a root canal couldn’t save it. I had it pulled and in a year, I’ll get bridge work done. I’ll tell this for nothing though: these are stout pain killers. They make me really sleepy though.
Gene H.
I trust it was not for serious reasons.
Tony C.
Fantastic. Words can’t describe, so no words.
Obama called as he saw it. This Court has no idea what is constitutional but it does know
what it likes. Strip searches for all and a government by the corporations and for the corporations who don’t get sick and won’t perish from this world. SCOTUS has no credibility after Bush v. Gore.
leejcaroll,
It’s a really long thread, in fact it is the longest thread in blog history, but if you’d like details about what is wrong with Bron and his thinking (such as it is) and more depth as to what Tony is referring to I suggest the following thread:
http://jonathanturley.org/2011/07/16/what-makes-a-good-law-what-makes-a-bad-law-2/
Warning, with over 2,100 comments it can take a while to load. Although it was not the intention of the article, the thread is a depressing if educational glimpse into the mind of the profit worshiping Objectivism that passes for conservatism with many Americans these days. It’s a shameful display of bald faced apologetics for greed and selfishness that may actually make you miss William F. Buckley. Now if you’ll pardon me, the meds from the oral surgery I had to pay for out of pocket this morning are starting to kick in. I’m going to find a comfy chair and watch a Marx Brothers movie. After all, I don’t believe in Bron’s incredibly distorted definitions of freedom and liberty so I must be a Marxist.
@leejcarol: Bron thinks anybody that doesn’t want gun-totin’ anarchy doesn’t want to be “free” or “responsible for themselves.” If you do not want to let corporations run wild and do anything they want to anybody they want, then Bron thinks “you don’t like freedom,” because by his definition of freedom, the rich and powerful are “free” to oppress you in any way they want, including blackmailing you into a lifetime of poverty to medically save your life, because, you see, you are “free” to just bleed out on the side of the road and die instead, or you were “free” to just let that operable cancer metastasize and kill you.
I have been on medicare for many years, never have they refused care although my supplemental has. In fact once on Medicare my supp was supposed to notify me that they would be supplemental and I would have to choose a new olan with them. I never knew this and they kept me on my plan, which poayed as secondary although I was paying for a primary plan. It was over a decade before someone at BC/BS finally said to me “Oh, you’re not allowed (their word) to be on that plan because of medicare. They never bothered to worry about the thousands of dollars they made form me by my overpaying. Reining in the insurance companies greed, priceless idea.
Bron said: “I have learned, by reading this blog, there are very many people who do not want to be responsible for themselves and who do not like freedom nor want to be free. It has been an eye opener.”
I do not know if you are referring to the commenters or to the posts.
If the former, i do not know what blog you are reading. If the latter, it certainly is an eye opener as to what is happening to this country.
As I sit here drinking my magnum of wine with a srew off cap, I was thinking about this sad state of affairs this assshat really is. Some call him president, some call him a man, some used to call him senator. Hell, if he were growed up in Harlem many would be his kidz, but they wouldn’t know he was theyre dad. That is real confuse on fathers day. They sayes, whose your daddy? And these kidz look stoned, they don’t know what a daddy is.
It takes a real man to be a daddy and a better person to be president. Maybe Ron Paul could did sumething.
Pourch Monkey,
You are clearly an ignorant bigot. BTW, how’s thatmarriage to your sister working out? Lay off the crank, it’s bad for your teeth.
@Bron: can understand being screwed over because someone wants to make a buck.
I can’t! I have made many a buck, and I haven’t screwed anybody over in the process, because I trade value for value with willing participants.
Screwing somebody to make a buck is morally a crime. That is precisely the crime to be prevented, insurance companies defrauding people and lying to them and leaving them screwed just to make a buck.
I can understand and accept the concept of a limited budget, the idea that spending a million dollars to keep me alive might ultimately cost the lives of ten others, and both cannot be done. But the decisions should be fairly balancing my years of life against the years of life for others, not my years of life against the size of somebody’s investment portfolio.
The yield to be maximized is years of life and health, not dollars.
Obamacare and the child labor cases
Andrew Koppelman
It took decades for Congress to address the problem. When, at long last, federal legislation was passed, some people raised constitutional objections, but few took them seriously. The objections required the Supreme Court to adopt unheard-of constitutional theories, hamstringing well-established powers on the basis of hysterical fears about a tyrannical federal government. Even the law’s opponents were surprised when the Court took those objections very seriously. Some warned that the Court was overreaching, and that its intervention would seriously hurt large numbers of innocent people, but the Court thought it was more important to rein in Congress.
You might assume I’m talking about health care reform. I’m not. I’m talking about child labor—and a 1918 decision by the Supreme Court that history has not looked kindly upon.
The parallels between the child labor issue and the health care issue are remarkable.
The rest of this post is at The New Republic website, here.
Posted 7:23 AM by Andrew Koppelman [link]
@Bron: how is that not going to become politicized?
It hasn’t been, the Constitution and the courts, including the Supreme Court, prevent discrimination based on creed (political party is one kind of creed, or belief system), race, color, gender, age, etc.
Politicization is prevented by law (like the Civil Rights Act) and the Constitution. If you do not think the law, courts and regulations are enough, then you should not believe that contracts will be enforced either, in which case you do not have a free market, you have anarchy and rule by force of arms.
As it is, Medicare does not discriminate, and does not consider a patient’s politics, religion, race or gender in its determination of what will be covered by Medicare and what will not. So you have a real world example of this no-profit approach working just fine for many decades.
The only “politicization” of Medicare is the desire to destroy it, cut its budget, restrict its care options, and so on. That is all external to Medicare, its patient care decisions are not politicized in the least.