After the Supremes Rule on PPACA

Juan Williams is reporting that the Obama administration is prepared for a full scale political assault on the Supreme Court if they lose rulings on PPACA, aka Obamacare. This would be more of the same from a President who refuses to recognize the limits of power in a constitutional government. What is often forgotten is that there are two major issues before the court. The first, of course, is the constitutionality of the individual mandate. The second is the fed's massive expansion of medicaid at the expense of the states. David Oedel of the National Law Journal (H/T Ilya Somin and The Volokh Conspiracy):

The ACA, though, puts an unusually heavy federal clamp on state “partners” in Medicaid. If any rogue state were to fail to extend free health care to large portions of the lower-middle class, as ordered under the ACA, it could lose all its federal funding for Medicaid for the poor. That funding is by far the largest federal outlay to any state, and is critical to states being able to care for the poor.

Justice Stephen Breyer unexpectedly suggested at oral argument that a decision by the secretary of Health and Human Services to strip any noncompliant state of all Medicaid funding would be unreasonable, and just cause for litigation…

[Chief Justice] Roberts… interjected, “[S]o long as the Federal government has that power [to strip all funding], it seems to be a significant intrusion on the sovereign interests of the State,” even if the states may have experienced and accepted such intrusions before.

If the Medicaid mandate is overturned, this will make the law more complex to implement because those who would have gone on to Medicaid will probably have to go on to the exchanges, but may not be able to afford it. Much has been written about the need for an individual mandate to make the system work, but I will succinctly recap. The individual mandate is necessary so that insurers have a healthy population to offset the costs of insuring those with pre-existing conditions.

Williams also points out that the a ruling against the law will put pressure on Republicans to say what their own plan would look like. The ugliness of the status quo will surely provide the pressure. However, I think that Romney, specifically, not Republican in general, will be the one's facing the pressure. Obama has already tipped his hand. He will assault the court and make the case that we need him to pick new justices so that the federal government can build the Hoover Dam of health care (more like Rube Goldberg, but he is prone to rhetorical flights.) Team Romney will be in an awkward position, given their man's previous efforts in Massachusetts.

This is not a time to over-think the problem. What's popular about the Obamacare bill? Covering pre-existing conditions and expanding coverage. What's unpopular? Everything else. Romney should say that the government will provide assistance to help those who have trouble affording health care coverage, but they will have to pay in some themselves to show they are serious; ditto for those with pre-existing conditions. He could throw in as much of John Mackey's plan as he likes as well, but he doesn't need to say much more to have a better plan than Obama's Pelosi's (we need to read the bill) and Reed's. Such a plan wouldn't cost much and would also give the lie to the idea that Romney is some kind of right wing nut.

The nation's health care insurance system is like a carpenter's nail that's going into wood at a bad angle. PPACA is the decision that a sledgehammer is the right tool to remedy the situation. The right answer is to start over; and use the power of the free market.

My concern about Team Romney is that their excellent offensive against Obama is blinding them to opportunities to put forward solid policy proposals in advance of the predictable news cycle. Maybe they are ready, and we just don't know it.

Finally and fervently, I am hoping for the entire law to get the boot, which it deserves. Not doing so will set bad precedents that will take two decades from which to recover.

David Axelrod Sent Me this Stupid Email

David Axelrod sent me this email touting the purported benefits of Obamacare. The hashtag #IlikeObamacare has been an epic fail on Twitter as well, but I wanted to highlight how weak the case is for this pork laden, lobbyist written epic fail of a legislative effort.

B. --

I like Obamacare.

I'm proud of it -- and you should be, too.

Here's why: Because it works.

So if you're with me, say it: "I like Obamacare."

Obamacare means never having to worry about getting sick and running up against a lifetime cap on insurance coverage. It gives parents the comfort of knowing their kids can stay on their insurance until they're 26, and that a "pre-existing condition" like an ear infection will never compromise their child's coverage.

It's about ending the practice of letting insurance companies charge women 50 percent more -- just because they're women.

And Obamacare can save seniors hundreds of dollars a year on prescription drugs -- and gives them access to preventive care that is saving their lives.

President Obama never lost sight of the fact that this reform is about people. People like his own mother, who spent the last years of her life fighting cancer -- and fighting with insurance companies, too.

That shouldn't happen. And because of Obamacare, it can't.

So next time you hear someone railing against Obamacare, remember what they're actually saying they want to take away.

And, today, stand with me in saying, "Hell yeah, I'm for Obamacare":

http://my.barackobama.com/I-Like-Obamacare

Thanks,

David

P.S. -- Side note: Can you imagine if the opposition called Social Security "Roosevelt Security"? Or if Medicare was "LBJ-Care"? Seriously, have these guys ever heard of the long view?

The "long view?" That's exactly why we call it Obamacare, because we intend to fight until it is repealed and the label indicates the temporary nature of the bill. Let's take down some other aspects of his arguments.

It works? Rising premiums, people losing their coverage, cost curve bending upwards, adding to the deficit and trampling freedom of conscience. No I don't like Obamacare, but I like the snarky use of the #IlikeObamacare hashtag at Twitchy.

Lifetime cap on insurance coverage? In a truly free market, the public would have the right to make choices about the type of coverage needed. In fact, if we didn't tie health insurance to employment, and freed the marketplace, all sorts of innovative products might spring up.

Pre-existing conditions? This is the item that most resonates with Americans. But it is a red herring. The reason that pre-existing conditions are a problem is that health insurance is not portable. It ties people to their jobs and limits labor mobility. However, as part of a real health insurance reform package, the right to buy portability would overcome this problem. People could get started on their health insurance at birth, funded by their parents, and keep the insurance their whole lives. Wrecking the entire health care system over this one issue is a cover for stealth imposition of a socialist agenda by controlling this portion of the economy.

Charging women more? Free markets and transparency are the answer. Preventive care for seniors? How was this prevented under the previous system? Since Medicare was an existing program, why wouldn't changes to medicare have sufficed to fix any such problem? Again why wreck the entire nation's health insurance market, when a single reform to a single program would have sufficed.

Finally, with regards to the insurance companies, they are no different from any other business. Bad business practices are corrected by competition, sometimes by lawsuit for breach of contract and sometime by regulation. Obamacare did not solve this problem, in fact, it will probably make it worse, because of the nightmare thicket of regulations that will make it harder to understand actual standards of coverage. Contract law is a much more straightforward way to enforce standards of coverage. Further, because many people have little choice in who their insurance provider is, because it is tied to their job, competition on service, which drives auto insurance, isn't present in the health insurance market.

Obamacare is still not popular, and no amount of cheerleading will change the fact that it was a bad bill. I hope the Supreme Court will overturn it. The individual mandate is an unacceptable extension of the Commerce Clause. Further, the individual mandate is both legally and practically non-severable from the bill. We'll see what happens. I thought the court would go the other on Kelo vs New London, which ranks with Dred Scott and Plessy v Ferguson for horrible decisions, so what do I know?

Tough Times for the tea party

We should admit that the present political situation is a difficult one for the tea party movement. Achievement of some measure of power does that to any popular movement. We are now in a difficult situation where mere protest and indignation against the train of abuses is an insufficient rallying cry to our cause. We expected to propose real solutions, since we are perceived as having some power in the seat of government and, inevitably, concrete solutions will have elements that are objectionable to some constituencies. This also saps popularity.

Some additional elements have made our situation even more difficult. First, the occupy movement, despite its problems, has captured significant attention. It has focused on some of our issues, like crony capitalism, but overall has had such a diffuse focus that a discussion of actual issues has been avoided. Its narrative is filled with stories of the suffering of art history majors who are only qualified to wait tables, but have huge student loans.

Second, despite our fondest hopes, no natural Presidential candidate has emerged who embodies tea party hopes. We seem to be waiting for Reagan's heir, and so far she has not emerged. It would be good to remember that Reagan's first brush with fame came in 1964 with his nominating speech for Barry Goldwater, followed by two terms as governor of California, where he did some liberal things, a failed bid for the Presidency in 1976 before becoming President. We are reduced to arguing which candidate is least objectionable and writing attack pieces about the various Republican potential successors to Barack Obama. (I am guilty as well.)

Third, there are the dangers of the Supreme Court ruling on Obamacare*, which I discussed yesterday.

Finally, our insistence on changing the direction of the federal government has made us vulnerable to charges of obstructionism. The super-committee will likely fail and the tea party might get some of the fall out.

My answer to all of this is, tough. To quote some famous Americans whom we hope to emulate:

"These are the times that try men's souls: The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of his country; but he that stands by it now, deserves the love and thanks of man and woman."

Who said that reversing a century of effort by progressives was going to be easy or accomplished in two years. Keeping a focus on our principles is the only path to long term success. We know what works. We see the blue states sputtering with high taxes and business exiting. We see quasi-socialist stimulus policies failing to end the recession. We see Obamacare failing to deliver on any of its promises of lower insurance rates, keeping your insurance, or helping the economy.

We will make tactical changes to respond to circumstances. The occupiers have focused the attention of the nation on crony capitalism, to some extent. The tea party should be reminding the whole public that we were protesting the wall street bailouts and corporate welfare from the beginning. This is an example of a tactical shift that stays true to one's principles.

Further, we should be developing a strong bench. Keeping an eye on local races to develop a new generation of office holders who genuinely believe in limited government is important, but not exciting work. Finally, we must continue to change the climate so that even bad men are persuaded to do the right thing, because it is politically profitable.

Reagan wasn't elected to the Presidency until 1980, but he made this speech in 1964. Think about the difference between him and Barack Obama, who made a well received speech at the Democratic convention in 2004 and was then elected in 2008, with little of the experience that Reagan developed. Which man will have the more lasting positive legacy for the nation and his party?




*In yesterday's comments, liberal friend Calivancouver thinks the next round of health care reform will result in single payer. I disagree and liberated my comment here.

Too much to debate why I think single payer will bankrupt those countries who are trying it. Consider this. The best parts of the medical industry from both reports and personal experience are vision correction and cosmetic surgery. There are no waits, prices keep declining, and quality keeps improving. They also have in common that most consumers pay their own way with no insurance or government involvement. The free market is achieving the purported goals of government health care, declining price and increasing quality. Yet we seem loathe to try for more free market solutions with any other part of health care.

Obamacare Before the Court

I am a little nervous about Obamacare being decided by the courts before the election. The individual mandate is unconstitutional, there are some learned lawyers on my side. But I am troubled that this may be decided by the court for a number of reasons.

1. It might go the wrong way, establishing a horrible precedent for decades. It would expand Congress' power under the interstate commerce clause beyond all recognition. Even breathing could be regulated.
2. It might go the right way, but energize the Democratic base to push for a changed majority on the Court, giving Obama just enough support to get re-elected.
3. It might go the right way, but only the individual mandate gets struck down and the Supremes give a pass on the whole severability issue. This would leave a very poorly written law mostly intact with its attendant drag on the economy, but take some of the air out of attempts to repeal.
4. It takes the issue out of play for the November election. The eventual nominee will be able to hammer the President over the sausage making involved in this legislation.
5. It takes the issue out of play for the November election. I believe issues of such national importance are best decided by the voters.
   

There is a possibility that the justices could put off a final ruling until after the election, but that seems unlikely.

Best outcome? From David Kopel.

The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”

Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.