Thursday
Jun282012
ObamaCare
President Obama comments on the Court's ruling:
Lyle Denniston from the SCOTUSblog liveblog: "Essentially, a majority of the Court has accepted the Administration's backup argument that, as Roberts put it, 'the mandate can be regarded as establishing a condition -- not owning health insurance -- that triggers a tax -- the required payment to IRS.' Actually, this was the Administration's second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.... The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition.... For all of those who second-guessed the Solicitor General's defense of ACA, it might be worth noting that the tax defense of the mandate was, indeed, an argument that the government lawyer did advance."
Prof. Adam Winkler on SCOTUSblog: "With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there."
Bryce Covert of Forbes: "Women in particular should pop the champagne and celebrate.... They can rest assured that the Supreme Court won't get in the way of their insurance coverage, which should mean more accessible and affordable care."
Ed O'Keefe of the Washington Post: "Now that the health-care law has been largely upheld by the Supreme Court, the GOP-controlled House plans to vote to repeal it -- again."
CNN & Fox "News" Scoop Everybody. However ...
Screenshot via Washington Post.
Screenshot via Washington Post.
A Few Words from Right Wing World
Just because a couple people on the Supreme Court declare something to be 'constitutional' does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right. -- Sen. Rand Paul (RTP-Ky.) via SCOTUSblog
Obama lied to the American people. Again. He said it wasn't a tax. Obama lies; freedom dies. -- Former Half-Gov. Sarah Palin (R-Alaska)
Pre-Decision:
Linda Greenhouse restates her prediction the Court will uphold the act. One bit of evidence she gleaned from the decisions released Monday was from Chief Justice Roberts' dissent in Miller v. Alabama:, where the majority "barred mandatory sentences of life without parole for those convicted of committing murder before the age of 18."
Noting that the federal government and most states have such sentencing laws on their books, the chief justice criticized the court's majority for having failed to 'display our usual respect for elected officials.' Courts 'must presume an Act of Congress is constitutional' barring some obvious reason it isn't, he said, citing a 19th-century precedent for that proposition. And quoting the 1976 Supreme Court decision that reauthorized capital punishment, he said there was a 'heavy burden' on 'those who would attack the judgment of the representatives of the people.' The court heard argument in the life-without-parole case during the same March sitting in which it heard the Affordable Care Act case -- which at its core comes down to the authority of judges to substitute their views on matters of economic policy for those of the people's elected representatives.
... CW Update: Linda Greenhouse is a rock star! See today's News Ledes.
Wall Street Journal: "The Supreme Court will decide the fate of President Barack Obama's health-care law Thursday morning."
News Ledes
These are the ledes related to the Court's decision. For other news ledes, see the June 28 Commentariat:
New York Times: "The Supreme Court on Thursday largely let stand President Obama's health care overhaul, in a mixed ruling that Court observers were rushing to analyze. he decision was a striking victory for the president and Congressional Democrats, with a majority of the court, including the conservative chief justice, John G. Roberts Jr., affirming the central legislative pillar of Mr. Obama's term. Many observers called the case the most significant before the court since at least the 2000 Bush v. Gore ruling, which decided a presidential election."
SCOTUSblog will liveblog the Supreme Court proceedings beginning at 8:45 am ET. The Court will issue opinions beginning at 10 am ET. The liveblog will be on their home page, which is here. In the event that crashes or you can't get on because it is overloaded, there is a backup page at this address that will also carry the liveblog. All updates below via SCOTUSblog:
... "In Alvarez, the Ninth Circuit is affirmed. Per Kennedy. His opinion is for a plurality. The statute violates the First Amendment. Breyer and Kagan concur and conclude that the Act as presently drafted fails First Amendment scrutiny. Alito, Scalia, and Thomas dissent. So the upshot is that this version of the Stolen Valor Act is unconstitutional, but Congress may be able to do a new law." The opinion is here (pdf).
... ** The individual mandate survives as a tax. Chief Justice Roberts joins the left of the Court. The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read. Chief Justice Roberts' vote saved the ACA." (CW: and saves the reputation of the Court.)
... "The money quote from the section on the mandate: 'Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.'"
... "The key comment on salvaging the Medicaid expansion is this (from Roberts): 'Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.'" (p. 55)
... "To readers of the Roberts opinion, a caution: It is the opinion of the Court through the top of p. 44; the balance is labeled as, and is, Roberts speaking for himself."
... "The Court holds that the mandate violates the Commerce Clause, but that doesn't matter b/c there are five votes for the mandate to be constitutional under the taxing power. Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn't. Her opinion on Commerce does not control.... Justice Ginsburg would uphold Medicaid just as Congress wrote it. That, too, is not controlling.
... Kennedy is reading from the dissent. Kennedy: 'In our view, the entire Act before us is invalid in its entirety.'" CW: Huh, not "the decider."
... "In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding."
... The opinion is here.
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Reader Comments (21)
Roberts will save his party from being the goat for a terrible failure of medical care, and the inevitable result of a single payer system. As a radical, conservative but knowledgeable, he knows a lose, lose, when he sees one.
I hope I am wrong. The road to a single payer system may start here.
I wish I could be the tiniest bit sanguine regarding today's announcement from the Politburo...er, Supreme Court.
I'm afraid I am more inclined to view the shameful and unprecedented politicization of this court more along the lines of E.J. Dionne than Linda Greenhouse, although I wish this wasn't the case. Even though Dionne's piece today focuses on the firebranding of the Dark Lord, I have little confidence that Little Johnny Roberts cares a whit about history or precedence or whether or not millions of Americans have access to preventive health care (or the more immediate issue that there is, in fact, NO constitutional problem with the ACA).
He has always been a political animal, starting as a charter member of Reagan's "government is the problem" school. He might seem less hateful than Scalia, Thomas, and (as Marie rightly calls him) the loathsome Alito, but he is every bit as ideological and committed to a world view of conservatism victorious. Plus, if one admits Jim Fallows' long view on this court as ensuring, through a series of cases that have overturned decades, even a century of settled law in order to better achieve that goal, then there is no rational reason for believing that Roberts would be the one whipping out the crucifix to ward off his vampire dwarfs.
No, as much as I would love to believe that at long last some shred of decency and light of legal sanity might invade the crepuscular high court, I am afraid the headlines today will be more along the lines of that famous NY Daily News headline of the 70s:
Court to American People:
Drop Dead.
And do it quickly.
I hope I'm wrong.
Marie,
Thanks for posting the SCOTUS liveblog link. Don't know if I'll actually be at my desk for the big moment but I'll just watching all the Q&A right now is pretty entertaining.
Apparently the Vegas odds on the dwarfs flat out overturning the thing dropped yesterday from 80% to 69%. Whatever that means. But Vegas bookies are sharp. They rarely lose money. If the 'smart' money is on overturning they could make a bundle if that doesn't happen.
But if it does, we all lose.
@Akhilleus, et al. I followed the SCOTUSblog liveblog Monday & had the teevee on. SCOTUSblog, not surprisingly, was up with developments at least 10 minutes before CNN & MSNBC, & the SCOTUSblog spot analyses were more accurate -- again, no surprise.
Marie,
It's much more chatty and informal than I might have expected. A nice surprise. They're closing in on 170,000 on the blog right now. Maybe that's why they're not answering any of my questions, like "which kinds of small animals did Sam Alito enjoy flaying as young boy?" and "How many seats in the chamber can Thomas reserve for his teabagger supporters?"
OMG! They upheld it.
Linda Greenhouse can read those tea leaves!
Carlyle,
You were right on the money about Roberts, and I, I am extremely happy to say, was dead wrong.
I know the large print giveth and the small print taketh away, but right now, (10:37 EDT), according to the SCOTUS blog moderators, the ACA is constitutional and has been upheld. The commerce clause cannot be invoked but...blah, blah, blah.
Marie will fill you in on the rest.
Big sigh of relief.
Okay, one more then I'll shut up.
I guess Don Verrilli didn't do such a bad job after all. Everyone pegged smooth talking Paul Clement as the winner and still champeen after the arguments but it looks like he was just preaching to the choir. Verrilli was never going to sway Kennedy, Alito, Scalia or Thomas. But they both needed to convince Roberts, apparently. Verrilli did. Clement didn't. Whatever the backstory, he looks pretty damn good today.
I certainly agree that Roberts saved the reputation of the court, for today anyway. On the long view, I'd look for Roberts and Scalia's lapdogs to redouble their efforts to marginalize the majority of US citizens while hiding behind the cover of this moment of seeming equanimity.
Remember, unarmed peasants are a much better class of patsy to impose government by fiat. But we must realize that the 1% the Supremes represent need the tax revenues of the 99% to retain the forward movement of the ponzi scheme of modern American capitalism. I believe this recognition that the 1% needs the revenues of the 99% is part of the unwritten code of the "nobility" that graduate from the Ivy league.
Today's decision is an acknowledgement by the 1% that 10% plus of disposable income going to the health insurance rackets is bad for even their own stability in the 1%.
And some more good news which will become buried because of the other BIG News of the day:
"A federal court decision on Tuesday upholding the Environmental Protection Agency’s landmark rulings to control greenhouse gases was a decisive victory for the Obama administration and a devastating blow to polluters. It vindicated the administration’s strategy of controlling emissions through regulation and showed good sense at a time when both the agency and the science of global warming are under relentless Congressional attack." Story in the Time's Op/ed pages today.
I'd love to hear how you-all do on my Op Quiz.
Marie
Akhlleus,
I , too, thought of Verilli this morning. I'm so happy for him - happier still for all of us....and of course for the President, who has been patient and persistent throughout.
And you're right - Linda Greenhouse can really read 'em!
So much for Vegas and InTrade, though.
A little brag here (: I made several (small) bets that Roberts would vote with the minority, because he would define healthcare as a "business and commerce" issue. Also, he cannot afford to have healthcare rejection define "HIS" court and thereby dominate his legacy. He may not be a good justice, but he is a smart pol!
Wish I had bet more, but I was not very sure of myself. Oh well, I can go out to a good restaurant and have a fine dinner. My husband can come, but we will have to "go dutch."
BTW, here is a little sampling from Driftglass on David Brooks this AM!
Nigel E. Richardson:
"They say you've never really read a David Brooks column until you've done so while Thomas Friedman is feeding you truffles."
Kate,
Glad you won your bet. Enjoy your dinner.
Well the media frenzy on the right is in full swing. A friend called a while ago to tell me that that paragon of journalistic integrity, Oxycontin Limbaugh, is floating a story that he "heard" claiming that left wing radicals have dug up a juicy scandal that they used to blackmail that nice Johnny Roberts. This is the sort of made up bullshit the right specializes in. "Oh, I heard someone say that....Obama is controlled by aliens" next thing you know it's repeated on Fox and by Drudge and after a while the reporting on something completely fabricated becomes a story in itself and by the next news cycle Ross Douthat in the NYT spouts that word is going around that liberals threatened to out John Roberts as a closet transvestite if he didn't vote their way. The scoundrels!!
Cue video comments from the usual suspects.
But it's nice to see the right do their apoplexy thing. They've had so much practice at it.
The sad thing is that this nod for the ACA pretty much rules out anything remotely like a single payer plan for at least the next generation. By then the right will have whittled the ACA down to the size of an acorn. Oh wait! did someone say ACORN??!!
@Akhilleus. I dreamed I saw John Roberts in my Maidenform bra. I knew all along he was into cross-dressing. Thanks for authoritatively confirming it.
In Right Wing World, there is only one righteous view of the world, and when things go awry, then some malevolent outside force must be responsible: aliens, "the devil made them do it," a vast conspiracy, a scandalous indiscretion -- anything except the idea that whatever occurred happened within an accepted societal norm that does not conform to right wing dogma.
"Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so." (Rand Paul)
Um, yeah Mr. Paul, I think it does.
Earlier in the day on another blog, a commenter made the statement that they believed Scalia's tirade regarding the Arizona law may have been a tantrum in advance of the health care ruling not going his way. Conceivable, I guess.
But John Roberts ruling in favor of the health care law may be posturing to shine a better light on future happenings in his court. Little fanfare accompanied the Montana ruling because of the big noise about Arizona, but really which is worse for the country? Health care was probably inevitable, and he knew he could look a little less agenda driven if he backed it--he also has enough mouths in Right Wing World to wreak havoc without costing him deeper scrutiny regarding his and the courts' actions.
With this new "atta boy," it seems to me that a little of the heat is off and he will be quite comfortable continuing to nibble away at the money and corporate rulings until we all wake up one day and learn we have to pay obeisance to the plutocrats that own us.
Sad for us but a great day for health care in America--I just hope it's the appetizer to the main course--single payer!
Jacquelyn
P.S. Thank you to Ms. Burns and all the wonderful, intelligent people who share their thoughts here at Reality Chex. Your carefully considered insights are eagerly anticipated each day!
@cakers
That stuck in my craw too. It's an annoying habit Dear Son and constitutional scholar Rand has. Actually Ron and Rand are folk heroes. Carrying on the songs of the sirens John C. Calhoun and Roger Taney. Those screeds would have been been relegated to the dust bin of history were it not for the likes of people like the Goldwater's and the Paul's.
Did I mention that Dear Son is is a registered ophthalmologist by the BO. Guess who is President and director? One Rand Paul: http://abcnews.go.com/blogs/politics/2010/06/rand-paul-boardcertified-ophthalmologist-but-which-board/
"Extremism in the defense of liberty is no vice!"
Hypocrites one and all. States rights! Except when there is federal money to be had or some other state interferes with their business interests, Liberty! and Happiness!" but only for those that can afford it.
I swear these people are like spoiled children. Can we ever show them the error's of their way, or do we have to drag them along kicking and screaming every inch?
Friends. I'm not smart enough to present the argument, but I'm pretty damn sure this "win" comes with a lot of very bad baggage. The fact that the Commerce Clause did not prevail is very bad news and may be a set up for a long game cleverly played by Roberts. I don't have the links, but Turley commenters (lotsa lawyers who often disagree with Turley who thought the mandate should be struck down) have a bunch of them and they think it looks bad.
I hope Kate already had a wonderful dinner before I showed up...
@Haley
Others most certainly have more sophisticated interpretations than myself, but from what I gather it was a very nuanced decision by Roberts. Say what you will about the man but he played this for all it was worth. He pulled the court's reputation back from the brink while simultaneously erecting a bulwark against expansion of federal power through the commerce clause. And...by defining the mandate as a tax..he handed his conservative allies a powerful talking point. All the while blunting the criticism of the court as partisan hacks. He was backed into a corner and had to deliver if he didn't want his legacy to be worse than CU and Montana. It was brilliant nuance on his part.That said, I have a hard time admiring brilliance in service of the self.
Dave, You're absolutely right, but I'd use a more loaded word than "nuanced". Here's a link to an interesting Slate article:
http://www.slate.com/articles/news_and_politics/scocca/2012/06/roberts_health_care_opinion_commerce_clause_the_real_reason_the_chief_justice_upheld_obamacare_.html