Blog on the Run: Reloaded

Thursday, August 7, 2014 8:31 pm

“With the ACA we have placed a lot of bets.”

Berkeley economist Brad DeLong offers 10 big-picture thoughts on the Affordable Care Act’s history, politics, and performance to date. It’s smart, it’s easy to understand, and, to my eye, it’s 100 percent right — even the parts where he criticizes President Obama.

Tuesday, January 7, 2014 6:31 pm

One reason among many why Mitch McConnell is probably going to hell

Today he did this:

Minority Leader Mitch McConnell (R-KY) offered on the Senate floor to extend unemployment benefits if the Obamacare individual mandate was delayed for a year. He claimed that they would “pay” for the unemployment benefits extension by killing Obamacare. The problem is that the ACA doesn’t add anything to the deficit.

In October when the CBO rescored the ACA, they found, “Those amounts do not reflect the total budgetary impact of the ACA. That legislation includes many other provisions that, on net, will reduce budget deficits. Taking the coverage provisions and other provisions together, CBO and JCT have estimated that the ACA will reduce deficits over the next 10 years and in the subsequent decade.”

McConnell was trying to eliminate something that reduces the deficit in order to pay for an extension of unemployment benefits. This is how delusional Republicans are about the ACA. They have invented their own reality on healthcare, and this includes their own version of a fiscal impact on the law that doesn’t exist.

People are losing homes and more because of long-term unemployment, and all Mitchell can do is play politics: He wants to kill a program that doesn’t add to the deficit in order to pay for some very basic help for people still out of work because (surprise!) there are still about three unemployed people for every available job.

(And where in the pluperfect hell was he when we needed to pay for the wars in Afghanistan and Iraq and borrowed every dime of those trillions instead? Did he go along with a tax increase then? Hell,  no. And so we marched off and fought two wars for the first time in U.S. history without raising taxes to help pay for it.)

This is the behavior of a sociopath, and a delusional one at that. When you create your own reality, when you successfully sell yourself a line of bullshit, the result may include nontrivial numbers of homeless, hungry, or even dead people. And anyone who willfully and intentionally engaged in that behavior, knowing what its consequences will be (and that children will be, disproportionately, among the victims), deserves to go to hell.

Thursday, December 5, 2013 5:42 pm

If you want to lay money on how well Obamacare is going to work …

… then you might want to pay attention to where insurance companies are putting their money, as insurance executive Richard Mayhew points out:

I was at physical therapy this morning.   As I did my stretches and balancing exercises for my ankle, the local generic “alt” rock radio station was being piped through the speakers and Good Morning America was on the wall television.

On the rock station, I heard a Healthcare.gov “I got covered” ad, an ad from my company advertising its Exchange product.  I heard two other competitors advertise their on and off-Exchange products.  This radio station’s typical advertising rotation is a combination of bars, strip clubs, debt consolidation agencies, cash for gold and structured settlement companies.  The normal advertising mix assumes a fairly young, male and broke listening audience.  This is a prime demographic for the subsidized Exchanges.

On Good Morning America, I saw another Healthcare.gov ad, and three ads from two other insurance companies in the area.  One was the same company on the radio, and the other was the fourth private plan advertising.  The pitch for the last one was “You need to sign up by Dec. 23 for Jan.1 coverage and even if the government website is jacked up, we can help you at 1-800-555-5544″

[That] four  insurance companies are putting their money behind the relaunch with the advertising campaign is a tell that entities with real money to lose if they guess wrong are guessing that things are working right.

But Obamacare will never work. It can’t work!

Tuesday, November 12, 2013 7:17 pm

Facts matter, so does context, ACA Part CCXXII!Q*%.

It is factually accurate to state that Obama’s claim that “most people” would be able to keep their existing health insurance coverage under Obamacare was inaccurate if you’re looking at people with individual policies. (Most people insured through their employers will, in fact, continue to be.) It is even factually accurate to say that Obama kept claiming that even after he should have known better — i.e., he lied on that point, at least for a while.

But economist Dean Baker adds some relevant context that, while not getting Obama off the hook for saying stuff he should have known to be false, also makes clear that insurers also played a role and that policy holders shouldn’t have been totally surprised:

[The Washington Post's "Fact Checker" columnist, Glenn Kessler] presents evidence showing that 48.2 percent of individual plans are in effect less than 6 months and 64.5 percent are in effect less than year. Extrapolating from this evidence on the rate at which individuals leave plans, Kessler calculates that less than 4.8 percent of the people in the individual market have a plan that would be protected by this grandfather provision. …

… while Kessler is correct that the grandfathering protects relatively few people because policies tend to be short-lived, this data also raises an issue about the pain caused by earlier than expected cancellations. Kessler’s data show that almost half of the plans will be held by people for less than six months and almost two-thirds will be held for less than a year. This means that most of the people being told that their plans are being cancelled probably would have left their plans in the first half of 2014 anyhow. While no one wants to buy insurance more than necessary, it hardly seems like a calamity if someone expected to leave their policy in March and will now have to arrange insurance through the exchange for two months.

Furthermore one has to ask about the role of insurers in this process. Kessler’s data imply that more than three quarters of the people in the individual market signed up for their policies for the first time in the last year. Didn’t insurers tell people at the time they sold the policies that these plans would only be in effect through the end of December because they did not comply with provisions in the ACA? If the insurers did inform their clients at the time they purchased their policies then they would not be surprised to find out now that they will need new insurance. If the insurance companies did not inform clients that their plans would soon be terminated then it seems that the insurers are the main culprits in this story, not the Obama administration.

UPDATE, 11/13/13: Just a thought: Insurance companies have known for three years what the standards for policies would be under the ACA. They had plenty of time to prepare. In many cases, however, they chose to screw consumers and blame it on Obama.

Wednesday, October 30, 2013 7:57 pm

Obama lied about keeping your existing health-insurance policy … or DID he?

Actually, The Washington Post (among others) did the lying, as economist Dean Baker helpfully notes:

The Washington Post joined Republicans in hyping the fact that many individual insurance policies are being cancelled with insurers telling people that the reason is the Affordable Care Act (ACA). The second paragraph comments on this fact:

“The notices [of plan cancellation] appear to contradict President Obama’s promise that despite the changes resulting from the law, Americans can keep their health insurance if they like it.”

It would have been useful to point out that the plans that were in effect as of the passage of the ACA were grandfathered. This means that any insurers that cancel plans that were in effect prior to 2010 are being misleading if they tell their customers that the cancellation was due to the ACA. It was not a mandate of the ACA that led to the cancellation of the plan, but rather a decision of the insurer based on market conditions.

But Obama is black!

Also, if you really want to know what’s going on in the economy, just read Baker’s blog every day. It’s called Beat The Press, and that’s what it does. Pretty much the only thing he ever posts about is mistakes made by major news-media outlets in coverage of economics, and he never lacks for material, averaging about 3-4 posts per day. He also doesn’t have to go far afield for material: The major print, broadcast and cable outlets keep him supplied without his having to go beat up on a 22-year-old cub reporter in East Buttville to flesh out an item. I started reading him several years ago, and in less than a week, I arrived at the conclusion that where economics coverage is concerned, American news  media just ought to be ashamed, full stop. This matters not only in and of itself but also because the income and wealth of working people and the middle class are under siege right now by the 1%, who are counting on people’s economic ignorance to let them do what they want to do, which is rob us blind. Baker is our Thin Blue Line. Read him and support him.

Monday, October 28, 2013 7:33 pm

Why Healthcare.gov problems shouldn’t be a surprise

Clay Johnson of the Sunlight Foundation and co-founder of Blue State Digital, the firm that built and managed Obama’s online 2008 campaign, on the rollout:

Well, government doesn’t have a lot of people to choose from when they’re looking for contractors to build this stuff. And I think part of the problem is that the same people that are building drones are building websites. When government is building a website like this, they have to use a system called procurement, which is about 1,800 pages’ worth of regulation that all but ensures that the people who are building this stuff are the people with the best lawyers, not the people with the best programmers. And so, you know, you have this sort of fundamental lack of talent amongst the contractor ecosystem that’s building this stuff, that it’s bound to be bad work—that, combined with the fact that in 1996 Congress lobotomized itself by getting rid of its technology think tank, called the Technology Assessment Office. So when they’re writing bills, they don’t understand the technology that they’re requiring in their laws. This is what you get when you have a Congress that is basically brainless on technology, and government who can only pick from a few old, stodgy contractors. You’re bound to have this result. And, in fact, the standings group came out earlier this week and pointed out that over—for all procurements over $10 million, 94 percent of them fail.

We can thank the Republicans for getting rid of the Technology Assessment Office, inasmuch as they controlled both houses of Congress at the time and facts are just so darned inconvenient.

Meanwhile, adding to the site’s problems, a data center built and run by Verizon went down Sunday, halting enrollment in all 50 states. I eagerly await Darrell Issa’s subpoena of Verizon’s CEO, and/or Issa’s call for the CEO to be fired.

Sunday, October 27, 2013 9:50 pm

Oh, I’M sorry, you were worried about the DEFICIT and not whether Americans had health care?

Read this and weep, you freakin’ sociopaths:

The Affordable Care Act is already working: Intense price competition among health plans in the marketplaces for individuals has lowered premiums below projected levels. As a result of these lower premiums, the federal government will save about $190 billion over the next 10 years, according to our estimates. These savings will boost the health law’s amount of deficit reduction by 174 percent and represent about 40 percent of the health care savings proposed by the National Commission on Fiscal Responsibility and Reform—commonly known as the Simpson-Bowles commission—in 2010.

Moreover, we estimate that lower premiums will lower the number of uninsured even further, by an additional 700,000 people, even as the number of individuals who receive tax credits will decline because insurance is more affordable.

In short, the Affordable Care Act is working even better than expected, producing more coverage for much less money.

And just because you’re evil and you suck, you should also read the whole damn report, while I make an adult beverage out of vodka and your bitter, bitter tears.

Friday, October 25, 2013 7:21 pm

But Obamacare will kill small businesses!

Not so much, says New Yorker business/economics writer James Surowiecki:

[T]he overwhelming majority of American businesses—ninety-six per cent—have fewer than fifty employees. The employer mandate doesn’t touch them. And more than ninety per cent of the companies above that threshold already offer health insurance. Only three per cent are in the zone (between forty and seventy-five employees) where the threshold will be an issue. Even if these firms get more cautious about hiring—and there’s little evidence that they will—the impact on the economy would be small.

Meanwhile, the likely benefits of Obamacare for small businesses are enormous. To begin with, it’ll make it easier for people to start their own companies—which has always been a risky proposition in the U.S., because you couldn’t be sure of finding affordable health insurance. As John Arensmeyer, who heads the advocacy group Small Business Majority, and is himself a former small-business owner, told me, “In the U.S., we pride ourselves on our entrepreneurial spirit, but we’ve had this bizarre disincentive in the system that’s kept people from starting new businesses.” Purely for the sake of health insurance, people stay in jobs they aren’t suited to—a phenomenon that economists call “job lock.” “With the new law, job lock goes away,” Arensmeyer said. “Anyone who wants to start a business can do so independent of the health-care costs.” Studies show that people who are freed from job lock (for instance, when they start qualifying for Medicare) are more likely to undertake something entrepreneurial, and one recent study projects that Obamacare could enable 1.5 million people to become self-employed.

Even more important, Obamacare will help small businesses with health-care costs, which have long been a source of anxiety. The fact that most Americans get their insurance through work is a historical accident: during the Second World War, wages were frozen, so companies began offering health insurance instead. After the war, attempts to create universal heath care were stymied by conservatives and doctors, and Congress gave corporations tax incentives to keep providing insurance. The system has worked well enough for big employers, since large workforces make possible the pooling of risk that any healthy insurance market requires. But small businesses often face so-called “experience rating”: a business with a lot of women or older workers faces high premiums, and even a single employee who runs up medical costs can be a disaster. A business that Arensmeyer represents recently saw premiums skyrocket because one employee has a child with diabetes. Insurance costs small companies as much as eighteen per cent more than it does large companies; worse, it’s also a crapshoot. Arensmeyer said, “Companies live in fear that if one or two employees get sick their whole cost structure will radically change.” No wonder that fewer than half the companies with under fifty employees insure their employees, and that half of uninsured workers work for small businesses or are self-employed. In fact, a full quarter of small-business owners are uninsured, too.

Obamacare changes all this. It provides tax credits to smaller businesses that want to insure their employees. And it requires “community rating” for small businesses, just as it does for individuals, sharply restricting insurers’ ability to charge a company more because it has employees with higher health costs. And small-business exchanges will in effect allow companies to pool their risks to get better rates. “You’re really taking the benefits that big companies enjoy, and letting small businesses tap into that,” Arensmeyer said. This may lower costs, and it will insure that small businesses can hire the best person for a job rather than worry about health issues.

The U.S. likes to think of itself as friendly to small businesses. But, as a 2009 study by the economists John Schmitt and Nathan Lane documented, our small-business sector is among the smallest in the developed world, and has one of the lowest rates of self-employment. One reason is that we’ve never had anything like national health insurance. In a saner world, changing this would be a reform that the “party of small business” would celebrate.

But we don’t live in a saner world, now, do we?

 

Monday, September 30, 2013 7:46 pm

Oh, yes, he did: Sen. Angus King calls Obamacare opposition “tantamount to murder.”

I’m not the world’s biggest fan of Sen. Angus King, the Maine Independent who caucuses with the Democrats. But he has one quality that I do not: He is treated as a Very Serious Person by the mainstream media. And here’s what this Very Serious Person has to say:

Tuesday begins a 6-month race to enroll as many uninsured people as possible in the Affordable Care Act’s insurance exchanges. For the markets to be effective, they need millions of customers, and for elderly participants not to vastly outnumber younger ones.

It’s in this context that well-heeled conservative groups are appealing to uninsured young people to remain uninsured — part of a backdoor effort to undermine the structural integrity of the health care law.

Their efforts have attracted the attention of one senator who recounts how being insured saved his life when he was a young adult, and who has since then watched others die due to lack of coverage. And he doesn’t mince words with those who’d take risks with other people’s health security.

“That’s a scandal — those people are guilty of murder in my opinion,” Sen. Angus King, a Maine Independent who caucuses with Democrats, told me in a Friday interview. “Some of those people they persuade are going to end up dying because they don’t have health insurance. For people who do that to other people in the name of some obscure political ideology is one of the grossest violations of our humanity I can think of. This absolutely drives me crazy.”

Murder. Yeah, I’ve gone there before, but now a Very Serious Person has gone there, too.

I do not think for one second that this will change the behavior of the Crazy Caucus. But it might change the  worldviews of a few of the reporters in the mainstream media who are so convinced that “both sides do it” and that this fight is merely a “political stalemate.” It is unprecedented in postbellum American history, it is being caused by one faction of one party (and not by both parties equally), and, given what we know about the connection between lack of health insurance and premature death, roughly 10,000 American lives per year hang in the balance. For comparison, King notes, the events of 9/11 killed only 3,000 people but sparked a far more expensive and long-lasting response.

Journalists have let Obamacare opponents off the moral hook as well as the political one (it was approved by Congress, signed by the President, upheld in almost its entirety by the Supreme Court, and effectively ratified in 2012 by the re-election of the president and most of the Democratic congresscritters who supported it). It’s time journalists started asking the hard moral questions, too.

 

Wednesday, April 4, 2012 8:22 pm

Just Die Already, Washington Post, Ruth Marcus ahistoricity edition

In the place, time and culture in which I was reared, it was considered rude to draw attention to the fact that members of the fairer sex might have had the unmitigated gall to have survived on the planet in excess of four decades. Indeed, acknowledging the passage of three decades since a gentlewoman’s birth was permitted only on the occasion of her 30th birthday, whereupon she was then presumed to be 29 for the remainder of her days.

I’m so over that now.

I am 52 years old. Ruth Marcus of the Washington Post is, I believe it is fair to say, older than I am, which point I mention to highlight the fact that in both her recent criticism of President Obama for criticizing the Supreme Court and, in the same piece, her defense of that court — in whose recent oral arguments on the Affordable Care Act one could effortlessly find some of the most mendacious arguments in recent American jurisprudence — this one-time finalist for the Pulitzer Prize demonstrates that she is a contextual liar, a lousy reporter, an incipient dementia patient or just batshit insane and, in any of those cases, unfit to hold her current job, because even during her adult lifetime, other presidents have said much worse things about the courts.

First, here is what President Obama said during a news conference:

Ultimately, I’m 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’ve 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.

Marcus called the president’s remarks “rather unsettling” and added:

… Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”

Of course, acts of Congress are entitled to judicial deference and a presumption of constitutionality.  The decision to declare a statute unconstitutional, Justice Oliver Wendell Holmes wrote in 1927, is “the gravest and most delicate duty that this court is called on to perform.”

But the president went too far in asserting that it “would be an unprecedented, extraordinary step” for the court to overturn “a law that was passed by a strong majority of a democratically elected Congress.”  That’s what courts have done since Marbury v. Madison.  The size of the congressional majority is of no constitutional significance. We give the ultimate authority to decide constitutional questions to “a group of unelected people” precisely to insulate them from public opinion.

I actually agree with her in principle, and if this discussion were only about principle, her column would be unremarkable. But it isn’t only about principle, as any halfway conscious follower of the Supreme Court must know, because Obama’s remarks were not delivered in a vacuum.

A former constitutional law professor himself, he appears aware, as Marcus does not, that the conservative wing of the current court has abandoned its longstanding pretense that its rulings were based not on rightist ideology so much as on wanting to avoid “judicial activism” — making law from the bench rather than soberly assessing the constitutionality of congressional legislation and overturning it only when it violated the Constitution.

Now, that group — John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito, with Anthony Kennedy and on-again, off-again member — is behaving as if the authority to decide major constitutional questions even at the expense of overturning legislation is not Holmes’s “grave and delicate duty” so much as it is Archimedes’s lever to move the world — back to a place and time in which the wealthy and corporations called the shots, a time both economically inefficient and thoroughly un-American.

And this trend is not new, not anything that could have sneaked up on Marcus; Jeffrey Rosen identified the trend five years ago in The New Yorker. After last week’s oral arguments on the health-care law, Jonathan Chait comments:

What made Rosen’s piece so shocking was that, for decades, judicial activism had been primarily associated with the left — liberal judges handed down broad readings of laws to expand rights, enraging conservatives who believed they were taking upon themselves decisions better left to democratic channels. Their complaints were not wholly unfounded — even if you support, say, abortion rights, as I do, the notion that the Constitution requires the right to an abortion is quite a stretch of judicial activism. The whole conservative legal and political movement had come to orient itself around opposition to judicial activism, which actually remains the term Republican politicians use to disparage liberal judges.

The only thing Rosen truly failed to anticipate in his piece was how quickly Republican judges would pivot from impassioned defenses of judicial restraint to judicial activism when the opportunity arose to deploy it in their party’s behalf. In the piece, he described Antonin Scalia as a fierce opponent of this movement. Scalia, wrote Rosen, “was not in favor of striking down laws in the name of ambiguous and contestable economic rights.” At one point Scalia attacked the movement to read economic rights into the Constitution as a “threat to constitutional democracy.”

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators.

The blogger NYCSouthpaw explains exactly how Scalia, in particular, has flip-flopped dramatically in a relatively short time. In the 2005 case Gonzalez v. Raich, Scalia wrote in a concurring opinion that a 1937 case, National Labor Relations Board v. Jones & Lauglin Steel Corp., gave Congress the right not only to regulate interstate commerce but also to regulate things that, while not commerce themselves, could substantially affect interstate commerce. The court in that case found that Congress had the power to do so under the “necessary and proper clause” of the Constitution, which basically holds that Congress can do anything not otherwise banned by the Constitution if it is a “necessary and proper” way to carry out constitutionally permitted responsibilities.

Scalia made that argument in support of prosecuting a guy in California who was growing marijuana in his own back yard for his own personal use, so as you can see, he took a very broad view then of what Congress can do to regulate “interstate commerce.” Writes NYCSouthpaw:

So, two things to note that Scalia says [in his Raich concurrence]:

  1. Activities that substantially affect interstate commerce are not, themselves, commerce.
  2. A 1937 labor rights case, NLRB v. Jones & Laughlin Steel Corp., permits the regulation of activities that have a substantial effect on interstate commerce (i.e. not commerce).

Now look back up at Scalia’s exchange with [Solicitor General Donald] Verrilli [during health-care act oral arguments].  That 1937 case, Jones & Laughlin, is the very one that Verrilli is referring to.  Verrilli uses Jones & Laughlin to try to persuade Scalia that the Supreme Court often extends Commerce Clause authority to new areas that have a substantial effect on interstate commerce (in that case, unions, in this case, health care).

But Scalia shuts him down, saying that “there was no doubt” that “what was being regulated” in Jones & Laughlin “was commerce.”  That’s the flip flop.

For a good recent example of the court’s situational jurisprudence, one need look no further than Citizens United — not only for the substance of the ruling, which not only continued but expanded the conflation of speech with purchased audience begun by the court in 1976 in Buckley v. Valeo, but also for the unseemly and actually unprecedented way in which the court practically begged other parties to bring challenges to the law as it then stood. Normally, the Supreme Court lets cases  “ripen” — letting real litigation involving real people work its way through trial courts and appeal courts in the ordinary course of time. As Henry Aaron, senior economics fellow at the Brookings Institute, points out, the argument that the act’s requirement to buy health insurance constitutes a “tax” normally couldn’t even have been litigated, let alone gotten to the Supreme Court, until someone had first actually been made to pay for insurance. And that requirement doesn’t take effect until 2015. (Granted, the ACA cases appear to have been heard on a somewhat accelerated schedule once appeals courts ruled, but only because proponents, opponents and the justices alike all saw benefit, for various reasons, resolving the contradictions among the appeals rulings quickly. And it is hard to argue that the American people, many of whose lives will be dramatically affected by the outcome either way, were harmed by that acceleration.)

Marcus, with her Harvard Law degree and her years of covering the Supreme Court for The Washington Post and her near-Pulitzer-worthy status, either is unaware of this context of conservative justices’ recent behavior, or she is deliberately ignoring it.

She also appears historically unaware — almost a capital offense among students of Supreme Court jurisprudence — that Obama is far from the first president to gripe about unelected justices. That griping has continued without surcease at least since Marbury v. Madison 200 years ago, a case of which Marcus, at least, claims to be aware. But Marcus, like many denizens of what blogger Digby likes to call The Village — the Washington government/media establishment that vigorously defends any encroachment on the privileges of wealth and power, leaning Republican although it’s frequently less a matter of partisanship than of differences with those who are Not Our Kind, Dear — criticizes Obama’s recognition of reality without the slightest hint of acknowledgment that far worse has gone before. Consider this remark from then-presidential candidate Ronald Reagan in 1980:

The former California governor, campaigning in Birmingham, Ala., Thursday, blasted the court’s most recent abortion ruling as “an abuse of power as bad as the transgression of Watergate and bribery on Capitol Hill.”

Yeah, because engaging realitically with the practical ramifications of a law is just like felony bribery, burglary, tax evasion and obstruction of justice. (Also, isn’t it quaint how Republicans a generation ago acknowledged that Watergate really was a crime rather than a liberal media coup? But I digress.)

(UPDATE, 4/6: And how could I forget this not-so-golden not-so-oldie from Newt Gingrich, which Marcus appears to have let go by without comment, let alone criticism? Newt Gingrich pledged not only to “abolish whole courts to be rid of judges whose decisions he feels are out of step with the country” — which is constitutional, but only if Congress legislates it and the president signs off or allows the bill to become law without his signature; Congress also can, of course, impeach federal judges individually and remove them from office without affecting the existence of the judgeships themselves  — but also to “send federal law enforcement authorities to arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings,” which is unconstitutional on its face.)

That’s bad enough. But then consider Marcus’s expert’s summary of what the justices actually did during oral arguments:

I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok.  Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question.  For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.

Contrast that analysis with this one from Amy Davidson of The New Yorker. Granted, Ms. Davidson has never come within sniffing distance of a Pulitzer Prize that I know of, but unlike Marcus, she appears actually to have been present at the arguments and/or read the transcripts:

Here’s where a person could lose just a little bit of patience with the Supreme Court: in the midst of an exchange with Deputy Solicitor Edwin Kneedler, Justice Antonin Scalia saw an obstacle he didn’t like:

JUSTICE SCALIA: You really want us to go through these 2,700 pages?

(Laughter.)

JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?

(Laughter.)

JUSTICE SCALIA: Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?

The twenty-seven hundred pages make up the text of the Patients Protection and Affordable Care Act. Put aside, for the moment, the matter of the mandate and “severability” and “community ratings” and all the rest. If the Justices—or their clerks—need to read through a law to figure out whether it’s constitutional, it shouldn’t matter whether the law is twenty-seven pages or twenty-seven thousand (those numbers are divisible by nine, so they can split them up). Perhaps that’s a civilian’s view, and that’s not how things work in the Court these days. … But it’s a good bet that there are many, many Americans whose chronic illnesses or health crises have generated far more than twenty-seven hundred pieces of paper, from doctors and hospitals and labs and insurers and, in too many cases, ultimately from collection agencies. Even if you’re covered, the broken state of the health-care system has meant hard work, and hardship, for millions of people.

One might be inclined to give Scalia the benefit of the doubt on a bad joke here, if not for the fact that, as Davidson’s colleague Ryan Lizza noted, he actually didn’t know what was in the bill:

2. Justice Antonin Scalia: “All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that’s the consequence. That would mean that if we struck down nothing in this legislation but the—what do you call it, the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.) When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can’t be right.” (N.B.: The so-called Cornhusker kickback was repealed by Congress only days after the Affordable Care Act was signed into law.)

Sadly, that wasn’t the only example.  I know no more about insurance than any other insurance agent’s son, but it was clear even to me that the conservative justices either didn’t know or were pretending now to know how insurance works. Put simply, and this has been the case since the English began colonizing North America, it is a mechanism for spreading risk. But don’t take my word for it; Aaron at Brookings, linked above, discusses it in pretty simple language:

Several of the justices, notably Scalia and Alito, responded to the externalities argument by saying that every economic transaction creates similar externalities. “If I don’t buy a Volt, I raise the price of Volts,” said Scalia. Alito said much the same thing. So did Paul Clement’s brief for the plaintiffs.

This response was and is bad economics. It is true that every commodity is produced along what economists call a “cost curve”—raising output may lower average or marginal unit costs by spreading overhead or achieving economies of scale, but it may also raise costs by forcing up the cost of inputs or incurring diseconomies of scale. None of this occasions concerns about fairness or free-loading or, to use the economist’s term, “externalities.” But the cost shifting that occurs when uninsured patients fail to pay their bills does; it causes one group—the insured—to have to pay part of the cost of services others use.

Perhaps the most glaring instance of the failure to appreciate what an externality really is came from Justice Alito who at one point challenged the solicitor general by positing that the cost of all of the care currently used by those who are uninsured is less than would be the cost of the insurance they would be forced to carry. That being the case, Alito asked, how can one say that the uninsured are shifting costs to the insured? This query is painfully detached from an understanding of what an externality really is, how insurance works, or what the impact of insurance would be on service use.

Kevin Outterson, a Boston University law professor who co-directs the No. 2 health-law education program in the country, is even blunter:

On Tuesday, several Republican Justices and the Solicitor General displayed remarkably limited understanding of the nature of health insurance risk pools. If a healthy person stays out of the pool, the average costs for those left in the pool are higher. That’s not true for underwritten insurance products (such as life or auto).

So at least several of the justices didn’t understand the very nature of the industry upon which they were being asked to rule.

That’s bad enough. What worse, and has been widely remarked upon, is that not only were the justices ignorant of the industry, they were ignoring decades of settled law with respect to what Congress can and cannot do under the Constitution’s grant of power to regulate interstate commerce, spouting discredited right-wing talking points during the oral arguments and in general behaving so ignorantly that even Charles Fried, the notably liberal (that’d be irony) solicitor general during President Reagan’s second term, felt obliged to call the court out on both its tea-party talking points and its lack of principle in this Q&A, which Marcus might even have read, inasmuch as it was published by The Washington Post:

Ezra Klein: Tuesday’s arguments seemed to focus on the question of a “limiting principle.” So is there a limiting principle here?

Charles Fried: First of all, the limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.

Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.

Here’s another thing Marshall said. To regulate is “to make the rule for.” Does this make a rule for commerce? Yes!

EK: The Court seemed to see it as considerably more complicated than that.

CF: There’s all this stuff that got in there about creating commerce in order to regulate it. … But quite apart from that, what is the commerce? The commerce is not the health insurance market. The commerce is the health-care market, as [current solicitor general Donald] Verrilli said a million times. And it’s very hard to deny that.

There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts [i.e., extreme libertarians; link added -- Lex] of the world, and I was astonished to hear it coming out of the mouths of the people on that bench.

And yet Marcus and her Post editors seem to think that this behavior, called out far and wide by conservative and liberal legal experts alike, constitutes “wrestling with a legitimate, even difficult, constitutional question.”

You know, it’s one thing for a fascist, racist, lying demagogue like Rush Limbaugh to call the president a thug (a word which, these days, tends to have unmistakably racist connotations) for daring to draw attention to this pattern of behavior on the part of the nation’s highest court. It’s quite another for someone who is supposed to be one of the most capable and credentialed observers of that court to write a column so contextually lacking as to constitute a major — indeed, fatal — distortion in order to make an invalid point.

But that’s what passes for journalism today at The Washington Post, which is why Marcus needs to find another line of work and the Post needs to go ahead and die.

UPDATE: And James Fallows catches the AP going all Politifact on us. Sheesh.

Thursday, March 29, 2012 12:25 am

Is it too late for John Cole to file an amicus brief with the Supremes?

 

Because he has a good point:

I just discovered what it ["the broccoli mandate"] is, and it distresses me to no end that our wingnuts are actively trying to make us dumber. Of course no one is going to be mandated to buy broccoli, you wankers. But you know what I am mandated to buy because of the actions of a bunch of midwestern conservative pols? Corn. There is a live, actual corn mandate. Every time I go to the gas station to buy gas, I am forced, against my will, to buy corn products.

So you know where you jackasses can stick that broccoli…

I also don’t see the Supremes objecting to the fact that I have to pay for wars I don’t support.

Oh, and while we’re on the subject, Antonin Scalia stumbled onto something very interesting with his point about legislative inertia. And, by interesting, I mean, “damning.”

Scalia, remember, is a guy with a long track record of claiming that congressional gridlock is a feature, not a bug. Now, however, in today’s “severability” argument — that is, what, if anything, else should the Supremes do if they find the Affordable Care Act’s requirement to buy health insurance unconstitutional: toss out that part only and leave the rest to Congress, or toss the whole thing and order Congress to start fresh?

A couple of points:

First, I was listening to this on the car radio, but it sounded to me as if Scalia was arguing that the court should toss the whole enchilada because Congress, which he believes should, can’t. If that’s in fact what he meant, it’s an interesting 180-degree switch from his view up until now that it ought to be hard to get Congress to do things.

Second, it’s interesting in that he appears to be arguing that the Congress isn’t just inertial, it’s dysfunctional. Given that the reasons for that are well-known and objectively attributable in the main to one and only one party, Scalia’s party, it’s kind of damning in terms of how it characterizes congressional Republicans.

Third, he appears to be making the case, then, that separation of powers means nothing if that separation leads to an outcome he doesn’t want (or, technically, fails to lead to an outcome he desires). This is the apotheosis of judicial activism, which, of course, we have been roundly assured that conservatives such as Scalia oppose. Relatedly, given the fact that the GOP has no alternative — not even an unworkable one; they literally have nothing — to the Affordable Care Act, I eagerly await Scalia’s leaping in to craft health-care law from the bench once the ACA is struck down, 30-million-plus currently insured Americans get kicked back off the rolls and all hell breaks loose. Ahem.

An awful lot of really smart legal scholars, even some who worked in the Bush 43 administration, predicted that the court would uphold the Affordable Care Act, individual mandate and all, and now many of them are horrified to find out that this case might not be decided on the facts and the law after all. In point of fact, the scales fell from my eyes more than a decade ago, with Bush v. Gore. I figured that any court that could issue that ruling might well find public sodomizing of kittens constitutional as long as a GOP solicitor general argued for it, and Scalia’s questions and tone in this week’s oral arguments on the health-care law seem to bear that out.

Well, OK, that’s not exactly what I said seven months ago, but it’s close:

So this puppy is headed to the Supreme Court, where a ruling against the mandate would be both the overturning of 70 years of case law and not all that surprising, given the predilection the Roberts Court has shown for legislating from the bench. … But were I forced at gunpoint to make [a] prediction, I’d call for no worse than a 5-4 majority to uphold. The bottom line is that Justice Kennedy hasn’t gone crazy. Yet.

Kennedy’s sanity isn’t as much of a lock now as it was in August.

 

Tuesday, March 27, 2012 8:09 pm

Where has Louie Gohmert been?

Say what you will about the constitutionality, or lack thereof, of the Affordable Care Act’s requirement that people buy health insurance, most people on both sides have been arguing strictly on the basis of whether or not they think Congress has the constitutional power to impose such a requirement under the authority granted by the Constitution for Congress to regulate interstate commerce (the so-called “commerce clause” you hear about). As I understand commerce-clause law — and, say it with me, kids, I Am Not a Lawyer — the Congress probably does, but that’s neither here nor there for the purposes of this post. What’s important is that up until now, the arguments I’ve heard all around the subject have tended to bear directly on that question.

Up until now. Because now, here’s Rep. Louie Gohmert, who is giving Oklahoma Sen. James Inhofe a run for the title of Dumbest Sitting Congresscritter, conjuring up a really, well, interesting slippery-slope argument:

It ought to scare liberals to come run and join conservatives, because what it means is when this president’s out of the White House and you get a conservative in there, if this president has the authority under ObamaCare … to trample on religious rights, then some redneck president’s got the right to say, “You know what, there’s some practices that go on in your house that cost people too much money and healthcare, so we’re going to have the right to rule over those as well. “

Yeah, he’s right. It would be awful if that happened. And it’s interesting that he explicitly concedes that it’s “redneck” right-wing government makes unconstitutional, un-American personal intrusion more likely and not Big Gummint Liberals.

Sunday, March 25, 2012 4:21 pm

Quote of the day, Affordable Care Act edition

Filed under: We're so screwed — Lex @ 4:21 pm
Tags: , ,

From commenter Barry Friedman at Charlie Pierce’s blog:

Twelve milliseconds before ACA was passed, there wasn’t a rube in this country who actually liked his or her insurance company; twelve seconds after the Supreme Court strikes down the law, the rubes will remember why.

Monday, August 15, 2011 7:31 pm

Affordable Care Act: SCOTUS, here we come

Five federal district courts have had the opportunity to address the constitutionality of the Affordable Care Act’s requirement that people buy health insurance. Three courts have ruled that it is constitutional, while two have ruled that it is not.

At the appeals level, a 6th Circuit panel has ruled in favor of constitutionality. Last week, a three-judge panel of the 11th Circuit ruled against it. What’s interesting, however, is that while the district judges have ruled along partisan lines, the appellate rulings have been more mixed, as Steven Benen observes: On the 6th Circuit, Bush 43 appointee Jeffrey Sutton voted to uphold the law, while on the 11th, a Clinton appointee, Frank Hull, voted with the majority against the mandate. (Reagan appointee Stanley Marcus dissents furiously, just to keep things interesting.)

So this puppy is headed to the Supreme Court, where a ruling against the mandate would be both the overturning of 70 years of case law and not all that surprising, given the predilection the Roberts Court has shown for legislating from the bench.

UPDATE: Fred points me to this dispatch by former Anthony Kennedy clerk Orin Kerr at SCOTUSblog, who boldly predicts the mandate eventually will be upheld, if the current Court personnel decide the case, by a vote of anywhere from 6-3 to 8-1, with only Clarence Thomas a lock against the constitutionality of the mandate. I think Kerr overestimates Roberts’s philosophical consistency, but were I forced at gunpoint to make the same prediction, I’d call for no worse than a 5-4 majority to uphold. The bottom line is that Justice Kennedy hasn’t gone crazy. Yet.

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