Sunday, June 24, 2012

Last Chance to Comment Before the Supreme Court Rules

So, the Supreme Court has put off its decision on Obamacare until the last possible minute.  That last minute is Monday, June 25, so tomorrow we will learn their ruling.  Before they get it in, I will make a few last minute comments.

I, like so many others, was much struck by Ezra Klein's article on the subject.  He begins by setting forth the ways in which the mandate-and-subsidy system was a Republican idea.  It was first proposed by the Heritage Foundation in 1989.  When Bill Clinton's proposal failed, the Republicans proposed a mandate-and-subsidy system as an alternative, with 18 Republican co-sponsors in the Senate.  From 2004 through 2008, proposals for a mandate-and-subsidy had considerable bipartisan support.  Mitt Romney held such a system up in Massachusetts as a proud achievement.

Klein speculates that if Clinton had endorsed the mandate system then, it might have passed.  My own guess is no, Clinton's touch would have had deadly to a proposal then as Obama's is now.  That is because of the phenomenon the article goes on to discuss, of tribal politics.  Ultimately, most people care less about the substantive content of a proposal than whether it comes from Team Us or Team Them.

On the other hand, I am inclined to agree with Kevin Drum.  Republicans have knocked down one Democratic plan for universal health care after another and done nothing to advance the goal when in power.  This is because they do not agree with the goal.  They do not agree that ensuring access to healthcare for everyone (or perhaps for anyone) is a legitimate government function.  And to the extent that it might be a legitimate government function, it certainly is not legitimate for the federal government.  But at the same time, Republicans have never actually come out and said so.  Invariably, they pretend that there might be an acceptable way to ensure healthcare for all, it just isn't what the Democrats are proposing.  I can only assume that Republicans have never come right out and stated their opposition to any government attempt to make healthcare available to all is that they believe such a position would not be popular.  But they are getting closer to expressing such a view now than ever before.

To continue with Klein, he quotes a most disturbing account of how the mandate came to be widely seen as unconstitutional, quoting the libertarian legal scholar Orin Kerr:
Orin Kerr says that, in the two years since he gave the individual mandate only a one-per-cent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”
Jack Balkin, a Yale law professor, agrees. “Once Republican politicians say this is unconstitutional, it gets repeated endlessly in the partisan media that’s friendly to the Republican Party”—Fox News, conservative talk radio, and the like—“and, because this is now the Republican Party’s position, the mainstream media needs to repeatedly explain the claims to their readers. That further moves the arguments from off the wall to on the wall, because, if you’re reading articles in the Times describing the case against the mandate, you assume this is a live controversy.”
In other words, Fox News is now arbiter of what is and is not constitutional!  It is bad enough that in today's hyper-polarized atmosphere, legislation is impossible unless the same party controls not only the Presidency, the Senate and the House, but a 60-member super-majority in the Senate.  Now it appears that any major initiative by Democrats is impossible even if they have the triple crown because the Supreme Court (legitimized in its actions by Fox and abetted by the MSM) will declare it unconstitutional.

At the same time, the Supreme Court recognizes political limits and is unlikely to take action that is too unpopular.  All of which goes to reinforce the point I made at the time the legislation was passed.  I did not foresee a constitutional challenge to the mandate, let alone such a challenge being successful.  (The rule up till then had been that Congress could pass laws directly over individuals, but could not "commandeer" states).  But I did foresee that the Republicans would make blocking implementation a key issue in the 2012 election.  I therefore thought it was a huge mistake not to have the benefits vest until 2014.  Or, as I put it at the time:

Consider what the 2012 election could sound like. Republicans will warn that if the Democrats win, healthcare reforms will vest next year lead to the end of liberty as we know it, complete government takeover of healthcare, Communist tyranny, death panels, euthanasia of seniors, T-4,Soviet tanks in the streets, cats and dogs living together, etc. Democrats will warn that if Republican win they will block health care reform from vesting and you won't get all those benefits we promised you back in 2009. It isn't hard to see which is the stronger argument.

By contrast, if the exchanges are actually up and running in 2012, it will be extremely difficult for Republicans to convince anyone that liberty has ended, death panels are murdering seniors, Soviet tanks are occupying the country, cats and dogs are living together, etc. Instead, Democrats will tell people that Republicans want to take away their health insurance. It will be a tad bid awkward for Republicans to tell people who have purchased policies with government subsidies that their doing so has ended liberty as we know it, and that if we don't take away their insurance, the country will degenerate into a Communist tyranny. 

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