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
Kamchak ~ Thug from the Steppes
June 29th, 2012
11:32 am
….which I think is a much better approach than cramming one party’s idea of utopia down the country’s throat.
I have found that those who complain the most about having something crammed down their throat are the same ones who will swallow anything.
Chafoxy
June 29th, 2012
11:33 am
“…no one fits that description better than Louisiana Gov. Bobby Jindal.”
A lot of people would disagree with that. Gov. Jindal showed himself to be a novice lightweight with that embarrassing response to the State of the Union speech he delivered a couple of years ago.
md
June 29th, 2012
11:34 am
SBinF ,
Except the ruling also changed the dynamics of the entire situation……now, the aca IS a tax and spend entitlement program…….and will be portrayed as such for the coming months.
Second, by clarifying that it is a tax bill, the bill can now be overturned in the future with a simple majority vote……the filibuster taken out of play.
Third……the commerce clause now has a precedent governing it for any and all future courts.
Fourth…..since the commerce clause has been neutered, all future bills of this nature will have to be passed as a “tax” bill……..and politicians don’t get re-elected too well when they raise taxes.
Quite a bit different than just passing the aca bill………..
And let’s not forget that the dems get to once again wear the placard of the “tax and spend” party, there is no way to deny that now……they are in their underwear on this one.
md
June 29th, 2012
11:36 am
“I have found that those who complain the most about having something crammed down their throat are the same ones who will swallow anything.”
Probably know that from experience…. huh?
Have anything of substance to add to the discussion or prefer the petty one liners??
Uh Oh
June 29th, 2012
11:37 am
md
As we get closer to the election, make sure you post the polls showing all of Obama’s lack of popularity via the electoral college projections and popular vote polls
Can’t wait…
How bout you?
Kamchak ~ Thug from the Steppes
June 29th, 2012
11:38 am
Probably know that from experience…. huh?
The smoking gun is the mushroom cloud.
How’s that for a “petty one liner”?
md
June 29th, 2012
11:48 am
“How’s that for a “petty one liner”?”
If that’s what floats your boat….go for it.
getalife
June 29th, 2012
11:49 am
After Europe gets their act together after failed austerity, the economy is back on track.
Thank you President Obama for saving the global economic w collapse.
If w was a man, he would tell you cons to respect the President but he is not man enough.
md
June 29th, 2012
11:50 am
uh oh…..polls really mean next to nothing…..I believe many thought the SC would kill the aca too, right?
The only thing that will matter will be the results………
Halftrack
June 29th, 2012
11:52 am
This ruling is a landmine. How are the unemployed or even welfare receipients gonna buy insurance. They don’t have any money now. One can tax for failure to not have insurance but collection is going to be a massive job. The implementation of Obummercare is unsustainable. Death panels are back. What does the tax for not having insurance go for; if it was collectible from the poor and unemployed. If there are no Doctors available, etc. having a pre-existing condition and insurance coverage won’t matter much as far as saving lives. We now know Obama lied and Freedom died.
Hillbilly D
June 29th, 2012
11:53 am
Case in point you have a home mortgage deduction if and only if you have a home mortgage – if you rent you are penalized (you don’t get the home mortgage deduction) which depending on your tax bracket could be a quite sizable penalty.
I built my house over a period of years, paying as I went and doing nearly all the work myself. So I never got the deduction. Of course, I also only paid for the house once, rather than paying 2-4 times like you do if you take a “low interest” mortgage. The bankers sure have got people hoodwinked on home loans.
Kamchak ~ Thug from the Steppes
June 29th, 2012
11:57 am
If that’s what floats your boat….go for it.
The smoking gun is the mushroom cloud definitely didn’t “float my boat” ……. but it’s painfully obvious that some people swallowed it …….. hook, line and sinker.
Just sayin’.
Vote justice Roberts out of the supreme court in Noveber
June 29th, 2012
12:00 pm
Time 2 take R counrty back form the libtards!
St Simons - we're on Island time, mon
June 29th, 2012
12:01 pm
the GOP secret gun-walking plan “Slow and Silly Us” is not getting
near as much attention. obvious conservative media bias
Kamchak ~ Thug from the Steppes
June 29th, 2012
12:02 pm
Vote justice Roberts out of the supreme court in Noveber[sic]
There’s your sign.
JD
June 29th, 2012
12:04 pm
Can anyone tell me what the GOP health care plan is for Romney’s “Repeal and Replace” promise? If they have nothing, say so and quit trying to fool people. I am neither an Obama supporter nor a Romney supporter, but something needs to be done about health care and nothing will be perfect with the people we have in office putting together a workable plan.
Kamchak ~ Thug from the Steppes
June 29th, 2012
12:05 pm
Death panels are back.
Based on the false presupposition that they ever left.
We now know Obama lied and Freedom died.
Channeling Sarah Palin now, are we?
Tea Party Meber
June 29th, 2012
12:05 pm
Kamchak ~ Thug from the Steppes
June 29th, 2012
12:02 pm
Vote justice Roberts out of the supreme court in Noveber[sic]
There’s your sign.
Grate idea!!
Kamchak ~ Thug from the Steppes
June 29th, 2012
12:10 pm
Grate idea!!
The reign in Spain falls mainly on the plane.
Gm
June 29th, 2012
12:12 pm
Amazing, the right nut jobs were in office 8 years destroyed America, these scum Rush Limbaugh followers can not name one main achievement :
Please idiots of the right vote for Willard maybe he can send more of your jobs overseas, what a bunch of morons”””””””””’
Gm
June 29th, 2012
12:17 pm
Amazing how the hypocrites on the right loved the surpreme court when they ruled for Bush in 2000, now they are taking shots at the courts, what a bunch of disgraceful cry babby Americans””””””
a dad
June 29th, 2012
12:29 pm
Kyle – you colleague Jim galloway had it right, in that this was passed as a “tax” rather than under the ICC. Taxes only take 51 votes to repeal instead of the usual 60 for ICC. Pretty doggone smart by the CJ.
saywhat?
June 29th, 2012
12:36 pm
Now that the court has upheld the ACA, Americans will FINALLY be able to look at the ACA, after the 2012 elections,outside the fog of controversy, to see whats REALLY in it, rather than be bombarded with lies by those in opposition.
Finn McCool (The System isn't Broken; It's Fixed)
June 29th, 2012
12:38 pm
Like an English lord unfettered from the Magna Carta, nobody had the authority to tell a Southern gentleman what to do with resources under his control. In this model, that’s what liberty is. If you don’t have the freedom to rape, beat, torture, kill, enslave, or exploit your underlings (including your wife and children) with impunity — or abuse the land, or enforce rules on others that you will never have to answer to yourself — then you can’t really call yourself a free man.
When a Southern conservative talks about “losing his liberty,” the loss of this absolute domination over the people and property under his control — and, worse, the loss of status and the resulting risk of being held accountable for laws that he was once exempt from — is what he’s really talking about. In this view, freedom is a zero-sum game. Anything that gives more freedom and rights to lower-status people can’t help but put serious limits on the freedom of the upper classes to use those people as they please. It cannot be any other way. So they find Yankee-style rights expansions absolutely intolerable, to the point where they’re willing to fight and die to preserve their divine right to rule.
http://www.alternet.org/visions/156071/conservative_southern_values_revived:_how_a_brutal_strain_of_american_aristocrats_have_come_to_rule_america_?page=2
md
June 29th, 2012
12:44 pm
aca….happy? – 26 year olds
Not so happy….their parents and 27 year olds………
Gm
June 29th, 2012
12:49 pm
8 years and counting when will we hear the rep health care plan? has any one heard Gordon Gekko (Willard) plan?
Gov. Jindal refuse to carry out Obama care, yet his state has millions who have no coverage, he no doubt will ask the Fed for more money to fund his state, along with Colorado to fight fires, this is the type of hypocrites that represent the retards on the right””””
independent thinker
June 29th, 2012
12:59 pm
“”"An estimated $1.3 billion will be doled out to individuals and small businesses under a clause in the Affordable Care Act,” according to Business Insider.
The Obamacare rebate checks are part of a provision in the health care law that requires insurance companies to use 80 percent of collected premiums on medical services. If they don’t, they have to send rebates to policyholders for the difference.
In other words, the profits of private insurance companies are limited by Obamacare, which is why Republicans beholden to insurance and drug company lobbyists have generated so much negative spin against the health insurance law.”"”"”
http://www.indybay.org/newsitems/2012/06/29/18716552.php
Yeah lets keep pushing that Repub. talking point that Obamacare raises everyone’s taxes (except the rich of course) while the checks role in around August and September. Kind of like the frat boy president giving free Medicare drugs to the elderly so he could get reelected. Only that one was not funded by any source.
md
June 29th, 2012
1:04 pm
“Yeah lets keep pushing that Repub. talking point that Obamacare raises everyone’s taxes (except the rich of course) while the checks role in around August and September.”
And as your premiums rise to account for the “credit”, just keep your eyes closed as to why………
md
June 29th, 2012
1:07 pm
For those that think they are getting a deal with the aca, simple question…Did your credit card rates go up after passage of the credit card bill?
Of course they did you silly people……somebody has to pay for the changes.
JDW
June 29th, 2012
1:16 pm
@MD…”And as your premiums rise to account for the “credit”, just keep your eyes closed as to why”
I think you are missing the point, the rates cannot be any higher than the 80/20 ratio. 80% of every dollar goes to care and 20% to everything else. The companies that are in the postion of rebating must lower thier rates to bring them in line.
JDW
June 29th, 2012
1:20 pm
@MD…I’ll say this for you, you are still here giving it your best…don’t see any of your normal compatriots or our host for that matter…did Kyle take the day off?
It’s a good one to sit by the pool have a beer and contemplate life…thank God for ipads!
md
June 29th, 2012
1:25 pm
JDW…not missing the point at all…..it’s like a circular firing squad……it’s the 80% that will forever change. And that is what the minions never seem to realize…..it’s a big circle with their wallet as the kitty. As long as folks get some back on the 20% end, they tend to forget about the 80% end……
So the circle is completed by the payer……sure, one got 20% back, but that 20% jsut comes from them in the first place…..the insurer will never be the one making up the difference.
hence my point about the credit card bill…….sure, the banks can no longer charge over a certain amount on their bad borrowers……which means they get the money from the good ones……which is why everybody’s rates went up when interest rates in general have been low.
Lil' Barry Bailout (Revised Downward)
June 29th, 2012
1:27 pm
When do costs start coming down? Before or after the IPAB starts rationing health care?
My guess is “neither”.
Thanks, Democrats.
JDW
June 29th, 2012
1:30 pm
@MD…unless you know of some dynamic that is going to increase provider costs, you got it backwards. What will happen is the pool will increase further spreading the risk. The 80/20 rule will keep SG&A plus returns in check. While I don’t think the combination will result in a meaningful decrease, $1.8 billion in rebates on $700 billion in premium isn’t much, it will slow the rate of increase in rates somewhat.
md
June 29th, 2012
1:31 pm
JDW……some days I just have more time to waste than others…..plus I’m usually busy on other pages. It passes the time some days and I get a kick out of it. It helps stimulate whats left of my brain cells, those I didn’t kill during my experimentation days……..
And I do appreciate those such as yourself that can disagree without getting ugly about it.
md
June 29th, 2012
1:32 pm
“unless you know of some dynamic that is going to increase provider costs, you got it backwards.”
How about millions more users going to the doctor much more frequently because now they don’t have to worry about paying for anything…………
clanmack
June 29th, 2012
1:32 pm
RE: the Commerce Clause argument against the ACA: Fact-EVERYONE will need healthcare in their lives. To avoid bankruptcy from said healthcare, everyone will need insurance coverage. In today’s America, without the provisions of the ACA concerning pre-existing conditions and cancellation due to expensive, bankruptcy causing illness or injury, 40% of people applying for cannot get an individual policy today. It is not like broccoli-everyone doesn’t need to buy broccoli but everyone can buy broccoli. If you can’t get something you need that is essentially interstate commerce, then, given the economic trickle down dynamics, the Commerce Clause does cover healthcare. The requirement to cover everyone who applies focuses on the insurance companies. The mandate for the individual citizen to purchase or for companies to provide insurance to employees is a cost containment issue on something that is covered by the Commerce Clause. It is not hard to figure this out.
JDW
June 29th, 2012
1:33 pm
@md…”JDW……some days I just have more time to waste than others…..plus I’m usually busy on other pages. It passes the time some days and I get a kick out of it. It helps stimulate whats left of my brain cells, those I didn’t kill during my experimentation days……..
And I do appreciate those such as yourself that can disagree without getting ugly about it.”
Thanks, I do for the same reasons, though I think I do put too much time into it. I do try not to get ugly but there are some that can bring it out and I appreciate you not being one of them.
md
June 29th, 2012
1:35 pm
The same dynamic that raised our credit card rates…….since the penalty for irresponsibility has been reduced, the responsible ones must now pick up the difference as the irresponsible remain that way..
md
June 29th, 2012
1:40 pm
clanmack……no longer matters as the SC court says it is a tax and not commerce……
“It is not like broccoli-everyone doesn’t need to buy broccoli but everyone can buy broccoli. If you can’t get something you need that is essentially interstate commerce, then, given the economic trickle down dynamics, the Commerce Clause does cover healthcare.”
And actually, it is like broccoli since the SC ruled long ago that no one could be turned away from hospitals due to the inability to pay…….
But broccoli is just around the corner anyway……..I’ll ask again to anybody that thinks we aren’t already on that road…why the tax on cigarettes and tanning beds?
The Fresh Prince of Bill Ayers
June 29th, 2012
1:41 pm
Lil’ Barry Bailout (Revised Downward)
June 29th, 2012
10:55 am
And the idea is a simple one: freeloaders…And this bill changes that how exactly?
——-
By making the freeloaders pay a fine as low as $95 per year, and then continuing to freeload.
The payments escalate substantially in 2016, especially if you have a family to over 2000 bucks!
md
June 29th, 2012
1:41 pm
“I do try not to get ugly”
Like everything else we do, getting ugly is a choice………..
JDW
June 29th, 2012
1:41 pm
@md…”How about millions more users going to the doctor much more frequently because now they don’t have to worry about paying for anything…………”
Concievable but for now I think we have more supply than demand. However, were that to flip you could see some price pressure. The other thing I would hope to see is more consistant pricing from insurer to insurer. If you look at the actual bills it can be large. Medicare may pay $150 for a proceedure that Blue Cross pays $225 on and the doctor would charge you $400.
I actually just had one of those, a nasal endoscopy. The doc charged me $477, Blue Cross paid $240.81 and Medicare would have paid $138. Based on the proceedure I think Medicare would have overpaid.
David Granger
June 29th, 2012
1:43 pm
I have to admit, it does seem a bit strange…even by SCOTUS standards…to rule that the federal government cannot force us to participate in interestate commerce or else be subject to a fine, but it CAN force us to participate in interstate commerce or else be subject to a tax.
A couple of points:
Because it’s a “tax”…and because the White House has granted a lot of waivers to various groups and organizations…people can sue on the grounds of unequal treatment. Certain groups can be granted waivers from some types of taxes…but only with legislative approval. And none of the groups who have been granted waivers…unions, primarily…have had those waivers approved in accordance with tax law.
And since it’s a “tax” issue, then it only requires a majority vote in the Senate. So if the Republicans do manage to take back the senate, then a Democrat couldn’t block a revocation vote by filibuster.
md
June 29th, 2012
1:44 pm
“By making the freeloaders pay a fine as low as $95 per year, and then continuing to freeload.”
Actually, the bill provides subsidies for those making under a certain amount……so if one is a true freeloader, they are now on the gravy train and there is no penalty……….
JDW
June 29th, 2012
1:46 pm
@md…”so if one is a true freeloader, they are now on the gravy train and there is no penalty”
But its a cheaper gravy train for us…today all they have to do is walk in the Emergency Room…no cost.
md
June 29th, 2012
1:55 pm
“Concievable but for now I think we have more supply than demand. ”
You might want to look at the numbers coming out of MA now that their program has been in effect for awhile……just about everything went UP and they are struggling to get costs under control…..and we just did it on a much bigger scale…………
http://www.beaconhill.org/BHIStudies/HCR-2011/BHIMassHealthCareReform2011-0627.pdf
md
June 29th, 2012
2:00 pm
“But its a cheaper gravy train for us…today all they have to do is walk in the Emergency Room…no cost.”
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:
http://healthblog.ncpa.org/hospital-er-visits-up-since-mass-health-reform-enacted/
Ray
June 29th, 2012
2:02 pm
These red state governors who have decided not to implement the health care bill have the worst mortality rates in the nation and significantly so (see link below for the state ratings).
It should come as no surprise that those states which acted responsibly, and enacted health care bills on their own have amongst the best mortality ratings in the nation (Like Massachusetts, New York, Hawaii, California).
Kaiser publishes mortality rates per 100,000 residents, by state at: http://www.statehealthfacts.org/comparemaptable.jsp?ind=58&cat=2
Look for yourself, but here at a few of the ratings per state: HI-590, CA-660, NY-676, MA-705; OK-931, NC-825, LA-922, KY-902, GA-831
Governor Deal doesn’t have to wait until the next election to do things to save lives in this state. It is immoral for him to sit on his hands to make political points, while Georgians needlessly die. It should be a crime.
md
June 29th, 2012
2:08 pm
JDW…..and if one would notice, after 5 years of passage, MA is in the process of passing legislation that puts spending limits in place……..I’ll say that again……spending limits.
Which means long term, somebody either takes a pay cut, loses a job or gets less care…..no other way to describe it.