Obamacare upheld: What it means now and in the future
Challenging Obamacare on constitutional grounds was never what anyone on the right wanted to rely on as a Plan A. “Repeal and replace,” the mantra of conservatives since Congress approved the health-insurance overhaul in 2010, is a high bar requiring the election of a president and congressional majorities dedicated to taking Obamacare off the books and passing more sensible reforms in its place. But persuading the Supreme Court to void the law by declaring it beyond Congress’ power to regulate interstate commerce, while sincerely believed to be correct, was always a higher bar to clear.
The irony is that we cleared the higher bar, and have nothing to show for it.
Do not confuse this for spin: Barack Obama and the Democrats won a clear policy victory today in seeing the court uphold their health law. There’s no denying that. Any other outcome would have been a debacle for them. This is the opposite of a debacle. That would be a victory.
That said, five of the court’s nine justices just agreed that compelling individuals to enter the market for a private company’s product does not fall within Congress’ power to regulate interstate commerce. This is the very idea to which then-Speaker Nancy Pelosi responded, when asked about it by a reporter two years ago, “Are you serious? Are you serious?” So, this is a remarkable moment given the last 80 years of Supreme Court jurisprudence and an important limit on federal power. In those terms, it looks like a legal win going forward for conservatives.
Unfortunately, Chief Justice John Roberts sided with the court’s four liberal justices and bought the Obama administration’s tortuous argument that the consequence for failing to comply with the mandate to buy health insurance was a “tax” — even though the president himself, during the debate about the law, repeatedly denied it was a “tax”; even though, as noted in the main dissent to the ruling, Congress rejected a version of the law that called for a “tax” as a penalty; even though Congress chose to use the word “tax” elsewhere in the law but not in reference to the penalty for failure to meet the mandate; even though the court’s majority decided it wasn’t a “tax” for purposes of the Anti-Injunction Act; and even though, again from the dissent, there are multiple instance of the federal government’s using its taxing apparatus to collect penalties that cannot possibly be considered “taxes.”
Judge for yourself whether it was judicially modest of the Roberts court to find any avenue possible to defer to the legislative branch, or judicially immodest to ignore Congress’ contradictory words and deeds in locating that avenue somewhere down a rabbit hole. No prizes for guessing where I stand.
My initial reaction to the taxing-power argument was that it pretty much offset any gain from the newly defined limit of Congress’ Commerce Clause powers. I am still not comforted by the court’s reasoning that Congress can tax someone for not buying something. And I am dismayed that Roberts not only justified this reasoning by comparing “not buying insurance” to “buying gasoline” or “earning income,” but also suggested a new tax Democrats could constitutionally try: a $50-per-household tax for not having energy-efficient windows. (Talk about getting kicked while you’re down.)
The more I think about it, however, all that is no more dismaying than knowing Congress can also decide to tax as much of a person’s income as it wants. The only thing standing in the way is the will of the people.
Which brings us to the biggest takeaway from today’s ruling. If Obamacare is to be reversed, it will have to be done by elected officials acting on the will of the people.
And that means it may not be a political victory for Obama.
It might be, of course. The prospects of re-electing Obama and/or keeping a majority in at least one chamber of Congress, and thereby keeping the law on the books, must be less daunting than trying to enact a new, similar (or even more far-reaching) health law. And while Obamacare is unpopular, there is a chance public opinion will shift in its favor now that the court has ruled. If so, that would boost Obama.
But there are other reasons it may hurt him: The intensity of Obamacare opponents will ratchet back up — remember how fired-up people were during the townhall meetings of 2009? If they have any political acumen whatsoever, Republicans will remind voters over and over again that Democrats sold the law as one thing (not a tax) only to win in court by saying something else (it’s a tax). Expect to see clips like this one and this one in GOP ads early and often.
Of course, the big question will be whether Mitt Romney is the one to capitalize on an issue like this, given his record on health reform (”Romneycare”) as governor of Massachusetts. I see two good ways for him to do it: First, frame the issue in part as an element of tax reform, and the need to get rid of a federal tax code that seeks to compel Americans to behave certain ways in exchange for one that gets government out of private individuals’ personal decisions and taxes only as much as it needs, without prejudice.
Second, to lend credibility to his promise to lead efforts to repeal Obamacare and replace it with something better, Romney should choose a running mate who can speak credibly about the issue. And in my mind, no one fits that description better than Louisiana Gov. Bobby Jindal.
– By Kyle Wingfield
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512 comments Add your comment
Uh Oh
June 29th, 2012
2:08 pm
“And as your premiums rise to account for the “credit”, just keep your eyes closed as to why……”
As opposed to health-care costa and premiums over the last 30 years before Obamacare came into being, right?
Uh Oh
June 29th, 2012
2:11 pm
md
Maybe not yourself, but many on the right have spoken of doctors leaving in droves, etc.
Can you explain the fact that Mass currently have the best doctor / patient ratio in the US?
Can you explain why medical schools are seeing an increase in applications?
Those two things surely do not match some of the right wing talking points
JDW
June 29th, 2012
2:17 pm
@MD…
FactCheck.org doesn’t buy into that study. They say…
Claim: Massachusetts has done a great job covering the uninsured–True 98% coverage
Claim: The law “cost more.” –True but total cost was only 1.2% of the budget which was in line with expectations.
Claim: Premium costs increased. Mixed–For individuals costs have gone down. For small groups costs have gone by 1% to 1.5% and for large employers costs have gone up slightly faster than average US.
NOTE: the study was from 2011 and recent data shows the rate of increase in MA over the life of RomneyCare to be less than that in the US as a whole.
There’s more but net net the law seems to be working as advertised, though small business owners were hoping for more cost reductions.
JDW
June 29th, 2012
2:21 pm
@MD…”I disagree……now that they have a shiny new card, and they like the convenience of the ER, they will use it more often with even more trips to the ER:”
Maybe…if that is the trend then the law needs to be tweaked to allow ER’s to turn non-emergency cases away and route them to urgent care or local walk in facilities.
md
June 29th, 2012
2:24 pm
“As opposed to health-care costa and premiums over the last 30 years before Obamacare came into being, right?”
And the answer was to make the insurance companies bigger? Did we not learn our lesson on too big to fail??
As I said, I’d prefer a single payer but not through gov’t……I’d prefer a non-profit, gov’t doesn’t know how to manage waste when there are no ramifications for such….they run out of money they look at the tax payer as an endless supply.
a dad
June 29th, 2012
2:24 pm
This will be a double post, both here and in Bookman’s blog. While the debate over Obamacare will undoubtedly continue, and the talking heads, both informed and misinformed, will continue to spew vitriol at one another, what I found fascinating, and would direct everyone with a proclivity for, was that on page 190 of the 193-pg opinion (I swer federal judges must get a word-for-word bonus) was that is was completely obvious that the current “dissent” was, for at least some time unknown, the actual opinion before Roberts switched for whatever reason. For those libs who will undoubtedly deny this and chastise me, this is based on the fact that Scalia talks about Ginsberg in her “dissent,” and then you will see astericks and that’s when Scalia takes Roberts to task for jumping ship. The heck with the oris and cons of the law, I want to know what’s up in the backrooms of the SCOTUS such as to get John-boy to switch sides. Inquiring minds want to know.
Uh Oh
June 29th, 2012
2:28 pm
single payer would be great……. try to get that through a Repub majority House or Senate in any form
Kamchak ~ Thug from the Steppes
June 29th, 2012
2:32 pm
single payer would be great……. try to get that through a Repub majority House or Senate in any form
Obama wussed out and didn’t even try.
md
June 29th, 2012
2:34 pm
“single payer would be great……. try to get that through a Repub majority House or Senate in any form”
My non-profit single payer would be a dead end with both parties……not capitalistic enough for one side and not enough control for the other side…….so I won’t see it in my lifetime. But I know I don’t like the aca……folks can’t understand the darn doctor bills now with all the different rates and adjustments and we just up and made it bigger…….
JDW
June 29th, 2012
2:35 pm
@Ray…”Kaiser publishes mortality rates per 100,000 residents, by state at: ”
Now to really open their eyes, for the US HI is by far the best at 590 per 100K…the UK as a whole about 580.
The UK spent about 9.8% of GDP or just under $4K per person in the latest numbers…
The US 17.4% of GDP and about $8K per person…
We spent twice as much…FOR WORSE OUTCOMES
JDW
June 29th, 2012
2:36 pm
@md…”As I said, I’d prefer a single payer but not through gov’t……I’d prefer a non-profit”
Would you look at that we agree. I could go for that all day long.
md
June 29th, 2012
2:42 pm
“We spent twice as much…FOR WORSE OUTCOMES”
Apples to oranges…….the UK doesn’t allow for their citizenry to sue for malpractice of individual doctors either ( they basically have to file claims against the gov’t, as is the case with all National Health Plans) . Take that out on the cost side and we have a totally different set of numbers.
Somehow I doubt folks here would like the idea of not being able to sue at will………
Jefferson
June 29th, 2012
2:43 pm
Things have to be broken, before they can be fixed.
Jefferson
June 29th, 2012
2:44 pm
Enough with the crying, lets fish.
md
June 29th, 2012
2:45 pm
“Would you look at that we agree. I could go for that all day long.”
I bet a lot of folks would…..but then the monster in the room (gov’t) no longer represents the people, “they” wouldn’t like the idea of having to give up control……….power is a hard thing to let go of.
md
June 29th, 2012
2:48 pm
“Enough with the crying, lets fish.”
Only if they are biting……otherwise, I’d prefer to be in the water vs stare at it.
jose
June 29th, 2012
2:50 pm
This law will not increase access to healthcare. By beating up insurors and forcing americans to buy insurance, it will expand insurance coverage. But it does absolutley nothing about cost…obesity and tobacco-related illness are the biggest cost drivers and they continue unabated…and does not increase access…the nation is hundreds of thousands of health care professionals short of need today and that deficit increases by 2020. Just having an insurance card does not mean you have a doctor. In fact, demand, and therefore wait times, will grow so high that anyone with a spare dollar or two will have to consider joining a “concierge practice” and be willing to pay a higher fee upfront for guaranteed access. I am in the health care industry and ALL major health systems, including those in Atlanta, already plans in place ready to go.
DawgDad
June 29th, 2012
2:53 pm
“Fact-EVERYONE will need healthcare in their lives. To avoid bankruptcy from said healthcare, everyone will need insurance coverage.”
You should spend some time seriously contemplating HOW WE GOT HERE (i.e., how our forefathers managed to survive and raise future generations without Obamacare). To believe your solution is the ONLY solution is — quite arrogant and dismissive. It is very easy to forsee the severe negative impact a commerce clause ruling to uphold would have had on health care innovation, cost, access, and quality. The only difference now, really, is Federal Government can’t technically compel us to buy something at the point of a gun, but they can compel us at the point of a gun to pay a tax for not buying something. And yes, they can tax us for not eating brocolli.
DawgDad
June 29th, 2012
2:58 pm
jose: You’re on the right track. Health Care service is ultimately headed for the Black Market, like illegal drugs.
Ray
June 29th, 2012
3:03 pm
JDW,
Thank you for sharing your knowledge.
I demand to see Cheesy Grits Birth Certificate- Long Form Please
June 29th, 2012
3:14 pm
Thanks, Democrats.
Your welcome.
Enjoy the better health, longer life span etc that all the other countries in the world with Universal Healthcare enjoy.
JustJimmyOnTheFive
June 29th, 2012
3:38 pm
“Enjoy the better health, longer life span etc that all the other countries in the world with Universal Healthcare enjoy.”
Now, see? You get a great joke today. Ask England, that worthless 1984 country how their ‘healthcare’ is doing. I see liberals NOT paying 98% income tax, and that’s simply not fair. Liberals should be able to live on 2% of what they earn.
Furious Styles
June 29th, 2012
3:54 pm
Looks like A LOT of people need to read the Constitution and UNDERSTAND it.
Just saying..
June 29th, 2012
4:05 pm
Count me among the many who’ve been surprised by the gracious response of those on the minority side of yesterday’s Supreme Court ruling…
saywhat?
June 29th, 2012
4:06 pm
My what a tasty appetizer this was for November, when the Republican wailing and gnashing of teeth will be even louder, and even more amusing.
Tom(Independent-Viet Vet-USAF)
June 29th, 2012
4:24 pm
Looks like all Democrats including Obama will now try to win elections in Nov with the albatross around their neck stating we support the largest TAX INCREASE in the history of this country!! This will be very interesting.
alligator loafers
June 29th, 2012
4:25 pm
Trojan horse that the uneducated do not understand. Medicaid restaints kill the expansion plans. 23 new taxes implemented in 2014 opens the door for further SCOTUS intervention. Message to voters is in the lower middle income tax increases right around the corner.
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2012
4:34 pm
By this time of the thread, kookman would have 13,678 comments and an average IQ of close to ZERO.
Which means Kyle is the winner!
md
June 29th, 2012
4:34 pm
Just so folks are clear what is NOT a tax (sarc)
“Summary of tax increases:
Broaden Medicare tax base for high-income taxpayers: $210.2 billion
Annual fee on health insurance providers: $60 billion
40% excise tax on health coverage in excess of $10,200/$27,500: $32 billion
Impose annual fee on manufacturers and importers of branded drugs: $27 billion
Impose 2.3% excise tax on manufacturers and importers of certain medical devices: $20 billion
Raise 7.5% Adjusted Gross Income floor on medical expenses deduction to 10%: $15.2 billion
Limit contributions to flexible spending arrangements in cafeteria plans to $2,500: $13 billion
All other revenue sources: $14.9 billion”
And hopefully folks know that any fee in the above summary is paid by them, NOT the entity collecting/paying the tax……..for example, that 60 billion fee on providers means YOU pay a higher premium.
Pizzaman
June 29th, 2012
4:51 pm
Sure looks like the market likes the Affordable Health Care Act!
Rightwing Troll
June 29th, 2012
4:58 pm
Please do expand on the “replace” portion of the wingnut “goal”… regale us all with the super dooper, double secret, competing plan that was so awesome they couldn’t tell us about it, that the wingnuts have had up their sleeve this whole time… It’s time for the big reveal… sock it to us baby, let’s have it, I’m ready and waiting to hear…
Uh Oh
June 29th, 2012
4:59 pm
“By this time of the thread, kookman would have 13,678 comments and an average IQ of close to ZERO.”
Yes because when you times one con or more that equals ZERO, .
I will make it easy for you get ZERO
Rightwing Troll
June 29th, 2012
5:00 pm
Wait… whaddya mean you don’t ACTUALLY have a plan in mind… because you were too busy preparing your end zone dance for when the ACA got struck down… I don’t understand… so, it’s just been repeal & ____ all along??!?
Rightwing Troll
June 29th, 2012
5:02 pm
Soooo I guess America is diddled yet again by the wingnuts…
captguitarman
June 29th, 2012
5:09 pm
Regarding the Constitution, it was a very good news – very bad news day, at first blush. Finally, the commerce clause, originally created to control economic squabbles between the states, but used time and again to expand central federal power as a national economy evolved, has been reigned in. The bad news is at the highest judicial and irreversable level, SCOTUS took it upon itself to create a tax where no tax was legislated.
No tax was legislated because the Dem/Libs knew that pinning Obamacare on a new tax (probably the biggest tax increase in our history) was a complete non-starter, and the bill would never get out of Congress alive. So, great pains were taken by the Congress and the Prez not to present this as a tax bill — and on the strenght of that, Obamacare was passed by a paper thin margin.
So, in addition to legislating a new tax from the bench (which would not pass constituitonal muster in a higher appeals court – if therer was one), the whol legislative – democratic process was subverted by the court. Why? Some say that Roberts is super sensitive to criticism of SCOTUS and did everything he could to find a way to uphold the law, wishing to avoid the bad mouthing SOTUS took after the 2002 election of George Bush. Who knows? If so, that is very disappointing, from the standpoint that politics, steadily eating away at SCOTUS since Warren/Burger courts, have now become paramount in SCOTUS decision making. Note here to Dem/Libs — I realize that in your specially enlightened an delusional world, that there were no political decisions made by courts with liberal majorities, and since Obamacare was upheld, this was not a poltical decision. Only the conservative judges “align” themselves while the liberal judges always independently seek truth justice and the American way with no ideological bias.
Pub/Cons knowing absolutely that the commerce clause could not be used to justify Obamacare, were justifiably very confident (especially since Nancy Pelosi was certain it would be upheld on that basis) that the court would kill it all, or remove the mandate and send it back to Congress to figure to find a way to make it work. No one expected the newly minted tax law curve ball from Roberts. The ultimate effect is actually bad news/bad news. The law is upheld even though it could not fly on the strength of the commerce clause, but the end effect is that it did. And worse, a chief justice of SCOTUS just created a tax law from the bench. I don’t know what Roberts was thinking when he weighed the effect that completely unconstitutional judicial action would have on the image of his court vs. over ruling Obamacare on the clearly supportable fact that the commerce clause does not support it — and then taking the heat from the Dem/Libs on a “political” decision. I do know that what he did was completely unconstitutional and a subversion of the legislative – politicla process, and can only hope the Pub/Cons can take the Presidency and Senate and amend or replace the law with something lawful.
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2012
5:18 pm
Yes because when you times one con or more that equals ZERO, .
I will make it easy for you get ZERO
Insanity does not work for me.
You’re gonna have to do better, just sayin…
md
June 29th, 2012
5:18 pm
cap….don’t be too hasty with that opinion…..the Obama admin actually filed it as a “tax” in their brief to the SC court, so Roberts didn’t just manufacture it…….but, as a tax it now may be overturned by congress with a simple majority……history pretty much shows we have a tendency to flip back and forth between parties as we tire of each, so I although this bill currently stands I would expect it to be repealed and replaced at some point in the future……Roberts left it up to the voters to make the ultimate decision.
Uh Oh
June 29th, 2012
5:24 pm
Keep crying I report
Heck, there are more cons at Bookman’s than you have cons and libs here……………
Wish Kyle would have put up some Holder info, you guys needed a pick me up after that sledge hammer came down yesterday
Are you one that was KICKED out because you loved to call names, etc or did you have you always blogged here more?
It is funny to read the posts of the one’s who were booted cry about Jay…….. the talk is big AFTER they were forced to walk
have a great weekend, you hear
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2012
5:27 pm
blah, blah, blah, blah
please tax me more
June 29th, 2012
5:29 pm
Finn McCool (The System isn’t Broken; It’s Fixed) June 28th, 2012 4:28 pm
“…. Sick people would be expenses for insurance companies while healthy people would be income for insurance companies..”
Excellent, clear, concise analysis in plain language for all to understand how the insurance market works. Now it is time for a BMI Tax. Congress writes a law requiring everyone get their Body Mass Index measured. If your BMI is 50% over the guidelines already established by DHHS then you pay a fine. The obese have a known poor health history due to poor choices – diabetes, heart disease, and other negative consequences and this adds to the cost of the entire health system. So they should pay more. After all, President Obama is all about making things “fair” for everyone. If you fail to comply then the Federal Government will force you to purchase weight loss services. Per the SCOTUS ruling, Congress CAN force you to buy something or you have to pay a penalty.
Uh Oh
June 29th, 2012
5:29 pm
your non answer was better than if you came and and said it
bwhahahahahahaha
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2012
5:31 pm
zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz
My goodness, where has all the intelligence gone?
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2012
5:38 pm
If Ginsburg’s side won the case, why is she so angry? Because on the central constitutional question at issue, Roberts in fact issued the legal left a powerful rebuke.
Even the ate up old hag freako understands what happened yesterday, while the bimbozo nation babbles on in “victory.”
Enjoy the misunderstood sanctimonioun before it squishes you, bimbettes.
Uh Oh
June 29th, 2012
5:44 pm
have a tissue or ten
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2012
5:45 pm
The mandate is now a revenue provision. Therefore, it is germane and not subject to a Senate parliamentary point of order to strike it from a repeal bill. The Senate’s filibuster process that would require a supermajority of 60 Senate votes to approve repeal is now irrelevant.
No funding, duh.
We won.
I demand to see Cheesy Grits Birth Certificate- Long Form Please
June 29th, 2012
5:49 pm
Stocks soaring, Holder not to be prosecuted, Obama’s poll numbers rising,
Obamacare now the law of the land for good.
You know what Fox news calls that ….
a slow news day.
Uh Oh
June 29th, 2012
5:53 pm
I report
Give it you and your spin to keep things positive
Many conservative commentators, writers and pundits were all boo hooing yesterday and today………. kicking the dog, make up curse words…….. yet you think the “right” or whomever has won something based on the Obamacare decision
seriously, go to REDSTATE.com, they have some articles that would be right up your alley in terms of how they view the decision……..
Funny to me, but it is about what you are thinking
I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...
June 29th, 2012
5:58 pm
Turd Blossom- I do not need pundits to think for me, like you do.
You’re welcome to write down all of what I say, although I’m sure you’ll need help with the spelling.
Check back with me in November and beyond, stooge.
md
June 29th, 2012
5:58 pm
“Holder not to be prosecuted”
I think you have some faulty info…..may want to re-visit that one.
Uh Oh
June 29th, 2012
5:59 pm
Boehner scheduled his Holder vote to coincide with what many thought was a slam-dunk to rule Obamacare unconstitutional……
Heck, Obama even went up in the polls from yesterday not down
http://www.realclearpolitics.com/epolls/2012/president/us/general_election_romney_vs_obama-1171.html
The early 4th fireworks was going to have the right all giddy and jumping for joy……. even with the Holder vote best they could muster was firing off a few cap guns