July 2, 2012 -- I was prepared to contact my young sommelier friend Gabe to ask him what wine is suitable to drink while eating crow when I was sent a column written by Charles Krauthammer who made the case that Supreme Court Chief Justice John Roberts did not suddenly morph into a warm, fuzzy human being when he wrote the majority opinion in ruling the mandate provision of the Affordable Health Care Act was constitutional, thereby saving for the moment this monumental piece of legislation. I do not have to eat crow for the things I have said about the Chief Justice in the past. A close one.
Krauthammer, not the only pundit who saw it this way but one who expressed it the strongest, called it “the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.”
While Roberts has no intention of softening his hardliner views, as the Court is his and as Chief Justice he is sensitive to protecting its reputation for neutrality. His “finesse” allowed him to have it both ways.
If you haven’t been following it closely, if the case fell under the Commerce Clause of the Constitution—as detractors contended—it probably would be unconstitutional. Justice Antonin Scalia, using the nastiest metaphor he could think of, had said if government can force you to buy insurance it could force you to buy broccoli (horrors).
But the Administration’s lawyer likened it to a kind of “tax.” Congress has the right and power to impose a tax. Justice Roberts bought it, for whatever reason and saved the day. For Democrats anyway.
The Chief Justice wrote the prevailing opinion himself. The strongly divergent dissenting opinion was written by Justice Anthony Kennedy, the Court’s so-called “moderate.” You know how immoderate the other four conservative members are when a man like Kennedy is labeled “moderate.” He was the driving force behind Citizens United which put us on the path to oligarchy, voted against Lilly Ledbetter equal pay restitution, and equal pay for women in the workplace. His dissent went after the whole law, not just the mandate, claimed it “undermines state sovereignty” and would throw the whole thing out.
Several observers note that from the way it is written it started out as the prevailing opinion, in which case Chief Justice Roberts changed his mind late in the deliberations. Seemingly, it was a near miss.
And what would have happened if the whole Act had been thrown out, which economist Paul Krugman said would be an act of “cruelty and ruthlessness?” Where to start? 3.1 million young people would immediately be off parents insurance, cancer patients and others with pre-existing conditions would have no coverage, experts say a sudden ban would overload and jam the Medicare system for months preventing doctors to receive payments, preventing seniors from receiving needed care and raising their prescription drugs costs by billions of dollars each year. And so we can go back to the old way with no insurance on millions, tax payer money paying for the uninsured visits to the emergency room, and the insurance companies will again spend less than 80% of premiums collected on actual medical care.
Chief Justice Roberts avoided all of that … not my problem he in effect told Congress, it’s yours … for the moment, as well as the sticky problem of assessing the constitutionality of a law passed by Congress which Congress does not take very well. Roberts did not avoid cries of rage and condemnation from his fellow conservatives, however. Democrats celebrated victory, Republicans cried in outrage, finding a traitor in their midst. There could hardly be anything more contentious. Even as they deliberated there were demonstrators for both sides of the argument outside the Supreme Court building.
Minority Leader (and former Speaker of the House) Nancy Pelosi: “This decision is a victory for the American people.”
Present Speaker of the House John Boehner: “The President’s health care law is hurting our economy by driving up health costs and making it harder for small businesses to hire. Today’s ruling underscores the urgency of repealing this harmful law in its entirety.”
Senate Majority Leader Harry Reid: “I’m pleased to see the Supreme Court put the rule of law ahead of partisanship and ruled that the Affordable Care Act is constitutional.”
Senate Minority Leader McConnell: “Today’s decision makes one thing clear: Congress must act to repeal this misguided law.”
Mitt Romney: “What the court did not do on its last day in session, I will do on my first day if elected president of the United States, and that is I will act to repeal Obamacare.”
Worst comment: Rep. Mike Pence (R-IN), after he likened the Supreme Court's ruling upholding the Affordable Care Act to the September 11 terrorist attacks. He later said, “My remarks at the Republican Conference following the Supreme Court decision were thoughtless.” Thoughtless? My reaction to your remarks are not printable.
Calling it a Tax is a Mixed Blessing
On the one hand, it allowed it to be called constitutional; on the other hand it opens the door for all of the taxes-are-a-crime people to make claims like this, from Sarah Palin: “Obama lied to the American people. Again. He said it wasn’t a tax. Obama lies; freedom dies.” America’s sweetheart.
A tax is a tab for goods and services rendered. If all Americans are getting health care services, either from insurance programs or from taxpayer provided emergency services, then they should pay for it. That is why it differs from the broccoli comparison like this: “The Court affirmed Congress’ power to tax people if they don’t eat their broccoli,” says Senator Tom Coburn (R-OK), where the broccoli grow high as a Super-PAC lie.
Health Care Reform and the Election
At this point with all of the hue and cry one would think it will be the main issue in the presidential race. And that race is in the hands of independent voters. Studies of public opinion in Massachusetts in the period from 2006, when their similar state healthcare law was signed by then Governor Romney, are interesting and might give us a clue. More people favor both the law in general and the mandate, than not, and the favorability is growing slightly by fits and starts. Opinions are heavily on partisan lines, more Democrats like it than not, more Republicans dislike it than not. But Independents are highly in favor of it.
Here’s what Mitt Romney had to say in January 2008 about his health care law in Massachusetts when Charlie Gibson asked him, “Governor, you imposed tax penalties in Massachusetts.” Romney replied: “Yes, we said, look, if people can afford to buy it, either buy the insurance or pay your own way; don't be free-riders and pass on the cost to your health care to everybody else.” Romney must have been an Independent in those days.
Where is Romney’s Health Care Plan?
O.K., Mitt, so you get rid of it as president to start your first day of work. What happens then? You’ve made vague statements about replacing it with a more “sensible” plan. Like what? Everything in the current Act began with Republicans. Even the mandate was the brainchild of the Heritage Foundation, the most revered of all conservative think tanks. What do they do now, say we really didn’t mean it, but the next one we come up with will be the right one?
Mr. Romney, you and fellow Republicans throw out words like tax breaks (conservative solutions for every ill) and wonders of competition among insurance companies which is going to drive down costs and make policies affordable (selling health insurance policies is not like selling women’s panties where you have inventory and the faster you turn it the more money you make); what investors demand is a good MLR, Medical Loss Ratio, of policy income versus paid claims and has nothing to do with volume. There would still be millions of people with no insurance, no solution to re-existing conditions, or caps on claims, or arbitrary cancellations. The national percent of money spent on health care would continue to rise from the 18 percent or more as it is now (in 42 other countries it runs in single digits, Canada about 10) and we will continue to spend whopping sums treating the uninsured in emergency rooms. Ah, the good old days.
Ross Douthat, columnist who touts the conservative story in the New York Times, says that some Republicans actually have plans but they fear making specifics public before the general election. We are like those retail customers who get a sealed envelope inviting them to a storewide sale but won’t know what their savings are until the envelope is opened after a purchase. Elect me and be surprised.
Busy Bits of Business Here And There
Health care reform was not the only thing on the minds of Supreme Court Justices during this, the last week of this sitting season before summer vacation. In the case against Arizona immigration laws the Court affirmed the power of the federal government to set immigration policy and to pre-empt, to a large degree, state policies that can infringe on that federal power. An expert on immigration law, Michael A. Olivas, explained: “We can't have 50 different immigration policies, 50 different foreign policies.”
Rep. Luis V. Gutierrez (D-IL) made a very effective speech on the floor of the House about Arizona's SB1070 Show Me Your Papers law, which requires law enforcement members to stop anyone who just looks illegal and demand to see papers. It’s worth taking a couple of minutes to view:
The House voted to hold Attorney General Eric Holder in contempt of Congress over his testimony in their investigation of the Fast and Furious gun smuggling fiasco, the first time in history such a move has been done. It has all of the markings of political gamesmanship. The gun lobby is after Holder’s scalp and their congressional surrogates think they’ve found a way to get it. Not a pretty sight.
At the heart of the matter is the Executive Privilege President Obama took in order to keep some documents private, giving conservatives a great chance to take a shot at the President. The best view of this was that of The Daily Show with Jon Stewart, which covers it quite well with clips of former vice president Dick Cheney and former President George Bush extolling the virtues of executive privileged. Here is the clip:
And one clip from the Colbert Report:
The Supreme Court rendered a decision this week on a case of the little guy against the big guy, not their usual pattern, except this time the big guy was the federal government and not a big corporation The justices ruled Chantell and Mike Sackett can appeal a compliance order that said wetlands on their residential lot were improperly filled with rocks and dirt. A building permit was then revoked.
“We have a bill that will boost this economy,” said Sen. Barbara Boxer (D-CA), a sponsor of a bill on highway jobs and student loans. Had the bill not passed, student loan interest rates would have doubled the next day. Brinksmanship, and we don’t mean the company that hauls money around. It preserves jobs on transportation projects from coast to coast, just over $100 billion to be spent on highway, mass transit, and other transportation programs over the next two years. It’s a wonder they had time to pass this bill since they were so wrapped up in holding Holder in contempt.
Sticking It To The Middle Class Again?
“The health care law provides a significant tax cut averaging about $4,000 for more than 18 million middle class people and families—a tax cut Republicans in Washington are vowing to repeal.” That is from David Plouffe, senior advisor to President Obama. “President Obama has cut taxes by $3,600 for the typical middle class family. Republican plans will raise taxes on middle class families to give millionaires and billionaires a $250,000 tax cut.” He calls it sticking it to the middle class again.
How Now Thou Dow?
This week: Dow Jones industrial average gained 2.2 percent, or about 277 points, to 12,880.09. The Standard & Poor’s 500-stock index rose 2.5 percent to 1,362.16 and the Nasdaq composite index jumped 3 percent to 2,935.05. Dow rose 5.4 percent for the year to date, while the S&P. was up 8.3 percent and the Nasdaq gained 12.66 percent. This is great for them that’s got it, due apparently to signs the Euro Zone nations might start cooperating with each other. They need a playground monitor.
“But it’s too early to say Europe’s saved”, said Charles Diebel, head of market strategy at Lloyds Banking in London. Germany’s willingness to meet its European partners halfway gets the credit. France is having some success persuading others to ease up a bit on austerity. Yet they have a socialist president. What is the world coming to?
Answers To Questions You Never Thought To Ask
Q. How does Mitt Romney expect to halt unwanted immigration in the long run?
A. With an economic policy bound to turn the U.S. into another Mexico with a ruling class of extreme wealth lording it over a vast population at or just above the poverty level so there would be no reason for people to cross the border if, when they got there, it was just like home.
Q. Why does John Boehner seem eager to use the debt ceiling conflict to bring the government to a screeching halt?
A. Boehner wants to take Newt Gingrich’s place as the man who has done more damage to the country than any other Speaker of the House in history.
Q. What is the real reason Republican legislatures in many states are firing so many teachers?
A. To dumb down the general population so we can develop our own native-born work force work force to do those nasty menial tasks (when you send a kid to high school to learn algebra, chemistry, English literature, and the like they are reluctant to dig ditches for sewer lines, pick beans, or pour asphalt).
Q. Why does Paul Ryan think it is arrogant for needy people to ask for Food Stamps?
A. He was influenced early in life by Charles Dickens’ “Oliver Twist” and got the notion it is ungrateful for anyone to ask for food as Oliver did from the authorities in charge of the orphanage.
Q. Why are multi-billionaires casino mogul Sheldon Adelson and the Koch Brothers donating so many millions to political candidates?
A. To relieve the boredom for having so much money you don’t know what to do with it, they came up with their own variation of Texas Hold-‘em; the one who buys the most candidates for public office gets to choose who will be their President (I’ll see your two Texas legislators and raise you an Ohio senator).
Q. Why doesn’t Supreme Court Justice Anthony Scalia carry a cross like any other Catholic?
A. He doesn’t have room for it as long as he is carrying that stalk of broccoli.