Spinning A Loss For Health Care Reform

[Kathianne]

I really can't summarize this, but it's gold:

http://reason.com/blog/2012/06/27/obamacarians-pregame-rationalizations-do


<script type="text/javascript" src="http://reason.com/media/js/jcarousellite_1.0.1.min.js"></script><!-- google_ad_section_start --> Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More! (http://reason.com/blog/2012/06/27/obamacarians-pregame-rationalizations-do) Tim Cavanaugh (http://reason.com/people/tim-cavanaugh/all) | June 27, 2012

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I spent about 45 minutes reading. If you are interested in 'before the verdict reading...'

[Kathianne]

Another good read before the ruling:

http://www.volokh.com/2012/06/27/final-thoughts-on-the-eve-of-the-individual-mandate-decision/

If you are unfamiliar with Volokh Conspiracy, it's probably my favorite legal blog. Great legal mineds, (many from U of C, natch. ;) ) I think you'll see some of what I mean if you read this post and at least some of the links.

Final Thoughts on the Eve of the Individual Mandate Decision (http://www.volokh.com/2012/06/27/final-thoughts-on-the-eve-of-the-individual-mandate-decision/) Ilya Somin (http://www.volokh.com/author/ilya/) • June 27, 2012 5:05 pm


Over the last year, I have written an academic article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1960641), several amicus briefs (http://www.wlf.org/upload/litigation/briefs/11-398bsacWashingtonLegalFoundation.pdf), and countless blog posts and op eds about the individual mandate case. Whether I said anything useful or not is for others to judge. But, as a constitutional federalism scholar and one who had long argued for the need to enforce constraints on the scope of federal power, I felt I could not simply sit out what will surely be one of the most important federalism cases of my lifetime.


If the Court ends up striking down the mandate (which I continue to believe is a 50-50 proposition), it will be because the federal government failed to come up with a good explanation of how the law can be upheld without giving Congress nearly unlimited power to impose other mandates (http://www.scotusblog.com/2011/08/will-the-supreme-court-give-congress-an-unlimited-mandate-for-mandates/). Although both sides in the litigation have come up with numerous interesting points, I continue to think that this is the central issue, and the biggest flaw in the federal government’s position.


I would like to thank Eugene Volokh for inviting me to join the Volokh Conspiracy, without which I might not have been able to be involved in this debate to anything like the same extent. I would also like to thank the Washington Legal Foundation, several members of Congress (at the lower court level), and many of my academic colleagues (including several of my co-bloggers) for giving me the opportunity to represent them by writing amicus briefs on their behalf, including one at the Supreme Court level (http://www.wlf.org/upload/litigation/briefs/11-398bsacWashingtonLegalFoundation.pdf). It was a great honor to be your advocate in this important case.


Many have commented on the role of the Volokh Conspiracy in promoting the viability of this challenge.

Co-blogger Randy Barnett deserves great credit for developing several of the most important arguments underlying the challenge, and especially for his December 2009 paper (http://www.heritage.org/Research/LegalIssues/lm0049.cfm) with Todd Gaziano and Nathaniel Stewart, which gave an excellent and very influential early explanation of why the individual mandate was unconstitutional, and how it was not authorized by previous precedent. Co-bloggers Jonathan Adler, David Kopel, and David Bernstein also played an important role in developing legal arguments and participating in the resulting public debate.


In my view, the VC was just one of many factors (http://volokh.com/2012/03/28/creditingblaming-the-vc-for-the-possible-defeat-of-the-individual-mandate/)that made this challenge more viable than the mandate’s defenders initially expected. Perhaps our most important role was in challenging the oft-made claim that there was an expert consensus in favor of the constitutionality of the mandate (http://volokh.com/2009/12/23/the-myth-of-an-expert-consensus-on-the-constitutionality-of-an-individual-mandate/). This helped undermine the emerging narrative that this case was a frivolous no-brainer that only people ignorant of constitutional law could support. But it is important to add that we were not the only legal academics who helped develop the case against the mandate, and discredit the myth of a consensus. Non-VCers who made important contributions include Steve Calabresi (Northwestern), Richard Epstein (NYU), Gary Lawson (BU), Steve Presser (Northwestern), Steve Willis (Florida), and others whom I apologize for omitting.


Outside the academy, enormous credit goes to David Rivkin (http://www.volokh.com/2012/06/26/david-rivkin-opposing-the-mandate-before-it-was-cool/) for developing the core idea of the case against the mandate as far back as 1993. Until recently, I was not fully aware of his important role. I hope that he will get more of the recognition he deserves.


Considerable credit is also due to many of our adversaries in this debate, such as Jack Balkin, Brian Galle, Mark Hall, and Neil Siegel, among others. Their insightful efforts to develop the case in favor of the mandate helped us to develop a better case against it. As John Stuart Mill put it (http://www.goodreads.com/quotes/show/66643):



He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion… Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them…he must know them in their most plausible and persuasive form.


Mill’s point certainly applies here.


Finally, whatever the outcome, I hope that the mandate case and the resulting public debate have stimulated greater awareness of the need for enforcement of limits on the scope of federal power. Legal scholars and other experts have long debated the issue. But this case, I believe, has increased awareness among interested laypeople. Experts have an important role to play in constitutional debates. But ultimately the Constitution is too important to leave to them alone.


UPDATE: In the initial version of this post, I accidentally omitted Nathaniel Stewart, one of the coauthors, with Randy Barnett and Todd Gaziano, of the important December 2009 Heritage Foundation paper on the constitutional flaws with the mandate. I apologize for the error, which I have now corrected.




**Side note: The Randy Barnett mentioned several times here, is the same one involved in that list of 'most corrupt states' from a day or so ago.

[Kathianne]

Here's an article that gives me pause. I really like Megan McCardle, I'm shocked it appears she's severed with The Atlantic. This scares me, it makes some salient reading of the tea leaves:

http://www.thedailybeast.com/articles/2012/06/27/waiting-for-the-supremes.html


<header> <hgroup> Waiting for the Supremes It’s not the end of American Democracy, or even the end of federal health care programs. </hgroup> by Megan McArdle (http://www.thedailybeast.com/contributors/megan-mcardle.html) | <time class="timestamp" datetime="2012-06-28T02:00:00.000Z" pubdate="pubdate"> June 27, 2012 10:00 PM EDT </time> </header>

For the last five months, I’ve been on leave from blogging. Whatever the financial and emotional strains, I’m terrifically grateful to have missed the back and forth over what the Supreme Court is going to do on health care. Thus, I have not had to churn out approximately one squillion blog posts on how We Don’t Really Know What the Supreme Court is Going to Rule, or What It Will Mean for American Democracy if the Supreme Court Overturns ObamaCare, or Why People Who Disagree With Me About the Constitutionality of the Mandate Are Traitorous Sacks of Pig Vomit Who are Destroying Our Country, and My Sleep.


To be honest, however, I have not been able to resist reading all those posts on other blogs. So just ahead of the tape, here goes with my condensed thoughts on the matter:


1) We don’t really know what the Supreme Court is going to rule tomorrow. We can stare deep, deep into the tea leaves—the side that does badly at oral argument usually loses! Scalia and Alito issued angry dissents (http://www.latimes.com/news/nationworld/nation/la-na-scalia-20120627,0,128821.story) on Monday and were they maybe angry about... losing the health care decision?


But I treat these prognostications the way I treated those of the nice lady at the Wyoming State Fair who told me that I’d be rich and have eight children: a fun way to pass the time, but ultimately pointless.


I have no idea what’s going to happen tomorrow. I am trying hard not to worry about it.


2) What it will Mean for American Democracy if the mandate is overturned is... very little. A lot of progressives are going to be really mad. They’re going to be mad in almost exactly the same way that a lot of conservatives are mad about Roe v. Wade... which is, I must point out, exactly the reason that conservative politicians have worked so hard to appoint conservative justices. Those progressives did not seem to think that American Democracy had been destroyed because some unelected justices had overturned duly enacted laws in 1973. For that matter, they didn’t seem to think so when the Supremes did it on Monday, in a ruling announcing that states couldn’t mandate the death penalty for juveniles.


Roe was, one might add, a ruling far more sweeping than even striking down all of PPACA would be. Roe put a thorny social question mostly out of reach of the legislative process. The most the Supreme Court will do tomorrow is say “you can’t do a government health care program this particular way”, while leaving our many existing federal health care programs 100% intact.


Though I am pro-choice, I am not a fan of Roe, which I think was legally dubious and tactically unwise. But democracies are complicated things. No matter how much it feels like it to you, democracy doesn’t wither and die because the Supreme Court won’t let politicians enact some laws you like. It didn’t in 1973 and it won’t now.


Particularly ridiculous are the dark insinuations of popular revolt against an activist court which one hears from some corners. A small number of politically active progressives may lose some trust in the court, but overall, it’s not going to have much effect on American public opinion, because a majority of Americans think that the mandate, at least, is unconstitutional. In fact, a majority of Americans who support the health care law (http://www.gallup.com/poll/152969/americans-divided-repeal-2010-healthcare-law.aspx) think it’s unconstitutional.


Personally, I suspect that progressives will stop attacking the court pretty soon. I have been much amused watching people try to simultaneously defend the fruits of Franklin Delano Roosevelt’s outrageous court-bullying, while also indignantly claiming that it would be abusive, infamous, fundamentally illegitimate and also, downright mean, for conservative justices to even think about overturning long-standing precedent. Suddenly, the internet is full of Latter Day Originalists who think that the constitution was handed down by God on stone tablets—in January 1936.


Since the argument that justices aren’t allowed to overturn laws passed by the legislature, or that they aren’t allowed to overturn long-standing precedent, or that 5-4 decisions aren’t legitimate, would undercut a vast body of laws liberals love—from Miranda to Roe to Boumediene—I tend to think they’ll give up on this line fairly quickly. Especially since going on the attack means spending even more valuable pre-election airspace saying “Hey, voters! Remember that health care law that we passed even though you hated it? The one you still don’t like? Well, I just wanted to remind you that it was also unconstitutional, according to the Supreme Court!”


On the other hand, I consistently underestimate both the hypocrisy, and the political stupidity, of politicians and political activists.


3) As to to the traitorous sacks of pig vomit... what about Bush v. Gore, I hear you cry? Did it not allow the justices to appoint a president who appointed their successors?


You need a really long string of counterfactuals to get there. First, the recounts that the Supreme Court stopped would have gone for Bush (http://articles.latimes.com/2001/nov/12/news/mn-3240), as a media consortium that actually tallied them up found. And second, Bush didn’t appoint anyone in his first term.


So you need a scenario in which the Supreme Court lets the counts go forward, but only in the specific way that would have delivered the election for Gore.


(This method—statewide recount including overvotes—that neither Bush nor Gore was asking for. As far as I know, the best supporters of this theory have been able to get is local officials saying that they would have been open to doing the recounts that way—not that they would have. With no one requesting such a recount, I’m dubious.)


Not only that, it has to be a scenario in which Al Gore did two terms in office—not necessarily all that likely, as people tend to get sick of a party that’s held the presidency for twelve years.


I certainly understand if you didn’t like Bush v. Gore. The problem is, Republicans would not have liked it if an all-Democratic Florida Supreme Court had been allowed, in their view, to put its thumb on the scales for Gore. Since we didn’t have a set of Spock-like aliens without political and ideological sympathies to whom we could refer the question, someone was going to be very, very unhappy. But again, this is well short of a coup (http://www.economist.com/blogs/democracyinamerica/2012/06/partisan-discontent), and there’s little evidence that it has much eroded either American democracy, or the public trust. Opinions on the rightness of Bush v. Gore are still about 100% correlated with one’s partisan preferences, except for the vast majority of people who have forgotten all about it. As Adam Smith noted, there’s a lot of ruin in a nation.


You know who’s doing the most damage to American Democracy right now? People arguing that we can’t have real American democracy unless the Supreme Court agrees with me.


I will obviously be disappointed if the law is upheld. This is slightly ironic because I’m probably uninsurable in the private market—insurers don’t like hearing the words “autoimmune disease”—and so the odds are that I, personally would be better off if the Supreme Court votes to uphold. I spent years being uninsured with an autoimmune disease (a relatively benign one, thank God), and I’d rather not do it again.


But whatever my personal benefit, I think that my country would be worse off. Two years after it passed, I’m still fairly well convinced that ObamaCare is a vast Rube Goldberg contraption that will undercut health care innovation while making the government’s finances much more parlous (http://www.theatlantic.com/business/archive/2010/10/which-party-is-better-on-the-deficit/65439/). So far, the law has produced a lot of nasty fiscal surprises (http://www.theatlantic.com/business/archive/2011/10/an-unclass-y-act/246820/) as various revenue-raising components turned out to be completely unworkable. The only “upside surprise” I can think of is the unsurprising revelation that if you force insurers to cover children up to the age of 26, more people under the age of 26 will have health insurance, at some increase in premium costs. It’s hard to support such an obviously damaged program even though there’s some chance I will personally benefit from it.



But if the Supreme Court votes to uphold, America will still be here. Flowers will still bloom, people will still fall in love, and yes, Americans will still wend their ways to the polls to select the tallest, best-looking, best-pandering politicians to lead them. It’s less than ideal, of course. But what isn’t?

[Kathianne]

We can all hope this will be my last post until the ruling or at least a reply, no promises:

http://www.volokh.com/2012/06/27/win-or-lose-my-thanks/


Win or Lose, My Thanks (http://www.volokh.com/2012/06/27/win-or-lose-my-thanks/) Randy Barnett (http://www.volokh.com/author/randy/) • June 27, 2012 9:55 am




On the eve of the historic Supreme Court decision on the constitutionality of the individual insurance mandate, I don’t know what the outcome will be any more than anyone else. I have never made a prediction and won’t start now. From the beginning, I always insisted that the challenge was serious, but also an uphill climb. I never dismissed the case for the constitutionality of the ACA as frivolous. I usually ended my set speeches by saying that the smart money is always on the Supreme Court upholding an act of Congress. Intrade (http://www.intrade.com/v4/markets/contract/?contractId=745353)notwithstanding (71.5% this morning), I suppose I still think that’s right.


I said before the oral argument that, if I knew the outcome of the case when the argument was over (as I thought I did in Raich), it would mean we lost. If we had won, I would not know it. At the end of the ACA argument, I was in the latter position. As when I was a trial lawyer, I felt very good about the way our case went in, but you never can be sure what a jury will do. I will never forget the feeling in the pit of my stomach every time a jury filed into the box to announce its verdict. I will have that same feeling at 10am tomorrow morning. Big time.


Tomorrow, the “highest court in the land” returns its verdict. Today, I want to say thanks to my cobloggers for the significant contributions they have made to this historic challenge. (I think it is OK to use “historic” twice in this post.) Ilya Somin, Jonathan Adler, and Dave Kopel made vital contributions to the substance of the arguments and, with David Bernstein, responded skillfully to the manifold criticisms that were launched against our challenge. Win or lose, this blog was instrumental in developing the arguments that earned us 6 hours of oral argument spread over 3 days. Those who credit the Volokh Conspiracy with responsibility for the viability of this challenge are right to do so, but it is nothing nefarious. Just free speech. So thanks Eugene for creating this forum and inviting me in.

...


Finally, with apologies to all those I could not single out by name, I wish to thank to our loyal readers for patiently returning to the scene of the Conspiracy. It is the quality of our readers that making writing for this blog worthwhile. Without our readers, there would be no Conspiracy, so you all have made an important contribution to this case.


Win or lose.
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[red states rule]

and how will Obama's Re-Election team in the liberal media handle a loss? Will they cover the USSC decision the same way when the Court ruled against the Bush administration?



http://newsbusters.org/sites/default/files/ObamaCarevsTerrorism.JPG