Our Common Good

Whether it is an actual plan or not, don’t give it to them.  Swing State, Red State, Blue State - VOTE.

President Obama stands to lose as many as 340,000 votes as a result of Hurricane Sandy, not enough to affect the outcome in heavily Democratic Northeastern states, but something that could make a difference in the popular vote if the results of Tuesday’s presidential race are as close as polls indicate, a First Read analysis finds.

“Sandy has the potential to reduce Obama’s national popular vote share by depressing turnout in highly Democratic areas along the Eastern Seaboard,” Dr. Michael McDonald of George Mason University, who studies turnout, told First Read. “The storm is unlikely to change the Electoral College outcome, as Obama is heavily favored to win the affected states. A turnout drop could be the difference in a close national election, and thus could shape the political discourse over important policy issues in a possible Obama second term.

It is more than just winning.  It will be the conversation about whether he was given a ‘mandate’ to enact the policies he campaigned on.  With a Republican obstructionist majority in the house, that will make a difference.

So no matter what state you are in, swing state or not, your vote matters.

Like the Affordable Care Act, Romney’s Massachusetts law relies on adequate federal funding to provide subsidies, and an individual mandate — to pull younger, healthier people into the insurance risk pool and hold premiums down. Romney’s promised reforms as President — specifically his support for deep cuts to Medicaid and his call to allow individuals to purchase insurance across state lines — threaten that foundation.

“If Romney block grants Medicaid, the question with our Commonwealth Care system is just the money question. Would he give us the money we need to make that work?” says Jonathan Gruber, an MIT health care expert who helped design the Massachusetts law.”[For] the rest of our market, it essentially would unravel what the mandate would do. We’d be back to where we were before the mandate.”

Unlike the ACA, the Massachusetts law has two separate markets — one for people living under 300 percent of the poverty level and thus qualify for insurance subsidies; one for people above that threshold.

The subsidized pool is called Commonwealth Care. For that market to work, Massachusetts relies on the federal government, via Medicaid, to cover half the cost of the generous subsidies it provides to lower income individuals. If Romney were to block grant Medicaid and cut its spending as dramatically as he’s signaled he would, Massachusetts would slowly lose those dollars.

“[I[n the long run we would lose the federal money that makes this program possible,” Gruber said. “Remember that the feds pay for half of our program. It isn’t clear if the state would be willing to pay 100% of the costs if the feds pull this funding.”

Within 48 hours, Romney flip-flopped on the mandate: now it’s a tax, not a penalty
A couple of days ago I posted that on Monday, the Romney campaign was in agreement with the President that the health care mandate was a penalty and not a tax. I also said:“Of course this opinion can (and probably will) change at any minute, so prepare to shake the Etch-A-Sketch.”
It took an entire 48 hours, as Raw Story reports: “Presumptive Republican presidential nominee Mitt Romney on Wednesday reversed his campaign’s position that mandates to buy health care are a “penalty” and not a “tax,” telling CBS News that “the majority of the [Supreme Court] has said it is a tax, and therefore it is a tax.” “They have spoken,” he said. “There’s no way around that.” Romney’s new position is the exact opposite of what the campaign was saying on Monday.”
Raw Story also helpfully points out one important difference between Romneycare and Obamacare:


Within 48 hours, Romney flip-flopped on the mandate: now it’s a tax, not a penalty

A couple of days ago I posted that on Monday, the Romney campaign was in agreement with the President that the health care mandate was a penalty and not a tax. I also said:“Of course this opinion can (and probably will) change at any minute, so prepare to shake the Etch-A-Sketch.”

It took an entire 48 hours, as Raw Story reports“Presumptive Republican presidential nominee Mitt Romney on Wednesday reversed his campaign’s position that mandates to buy health care are a “penalty” and not a “tax,” telling CBS News that “the majority of the [Supreme Court] has said it is a tax, and therefore it is a tax.” “They have spoken,” he said. “There’s no way around that.” Romney’s new position is the exact opposite of what the campaign was saying on Monday.”

Raw Story also helpfully points out one important difference between Romneycare and Obamacare:


Health Care: Tax vs. Penalty


From Ezra Klein:

Here, via the Kaiser Family Foundation, is how the individual mandate works if we call it a tax: “Those without coverage pay a tax penalty of the greater of $695 per year up to a maximum of three times that amount ($2,085) per family or 2.5% of household income…Exemptions will be granted for financial hardship, religious objections, American Indians, those without coverage for less than three months, undocumented immigrants, incarcerated individuals, those for whom the lowest cost plan option exceeds 8% of an individual’s income, and those with incomes below the tax filing threshold.”

And here is how the individual mandate works if we call it a penalty: “Those without coverage pay a tax penalty of the greater of $695 per year up to a maximum of three times that amount ($2,085) per family or 2.5% of household income…Exemptions will be granted for financial hardship, religious objections, American Indians, those without coverage for less than three months, undocumented immigrants, incarcerated individuals, those for whom the lowest cost plan option exceeds 8% of an individual’s income, and those with incomes below the tax filing threshold.”

As you might have noticed, there’s no difference between the description of the mandate in those two paragraphs. That’s not because I’ve made some disastrous copy-and-paste error. It’s because the individual mandate works the exact same way whether you call it a tax or a penalty.

Politically, it isn’t going to matter if you call it a tax or a penalty because the populace doesn’t like either one of those things. Of course, politicians don’t like to use the word “tax” when they’re trying to get elected … but there’s nothing inherently problematic about a goverment taxing the citizenry, penalizing them for behavior the government wants to curtail, or rewarding them for behavior the government wants to encourage.


Any day now the Supreme Court will issue its opinion on the constitutionality of the Accountable Care Act, which even the White House now calls Obamacare.

Most high-court observers think it will strike down the individual mandate in the Act that requires almost everyone to buy health insurance, as violating the Commerce Clause of the Constitution — but will leave the rest of the new healthcare law intact.


This opens the way to a political bargain. Insurers might be let off the hook, for example, only if they support allowing every American, including those with pre-existing conditions, to choose Medicare, or something very much like Medicare. In effect, what was known during the debate over the bill as the “public option.”

So in striking down the least popular part of Obamacare - the individual mandate - the Court will inevitably bring into question one of its most popular parts - coverage of pre-existing conditions. And in so doing, open alternative ways to maintain that coverage - including ideas, like the public option, that were rejected in favor of the mandate.

It should open the door to single-payer - Expanded and Improved Medicare for All.

One under-reported theme this week was the gulf between all those lower court decisions upholding the act and the reception the statute received from the Court’s conservatives. If the law is as patently unconstitutional as some of the justices painted it to be, then why wasn’t it routed at the lower court levels? Why did conservative judges like 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush, endorse it? The dozens of lower court judges who considered the law a valid exercise of Congressional power are just as smart as the justices, aren’t they? And they are supposed to be following existing precedent, aren’t they? It’s the Supreme Court that’s the outlier here.

Andrew Cohen.  Not that I pretend that Andrew Cohen reads my blog, but I’d offer the same comments that I made earlier with respect to the Supreme Court’s approach to oral argument.  Tough questions at oral argument don’t necessarily mean that a justice is going to vote against a law; sometimes they pepper litigants with tough questions because they want the litigants to help the justices themselves respond to foreseeable objections when they go to write their opinion.  As frustrating as it can be to hear Scalia flippantly conjure up nightmares of  ’broccoli bondage,’  it’s certainly conceivable that he was going down that road with an ulterior motive.

I do, however, take Cohen’s point with regard to the lower circuits.  Though I think that merely speaks more to the idea that the Supreme Court is as much a political institution as it is a legal institution.  The only way judges get on the Supreme Court is by being hand-picked by a politician for the job.  There’s plenty of extremely competent jurists of diverse political and legal philosophies who are qualified to sit on the High Court.  But the people who make the cut are selected with certain policy goals in mind, and not simply because they’re qualified judges.

(via letterstomycountry)

I’m sure you’re getting a ton of comments from lawyers, and I don’t want to add to that deluge except for two short points:

1. You’re right to point out that the argument sounded like a Federalist Society meeting. Of
two hours of argument, less than 10 minutes was spent on controlling precedent. And well over 90 minutes was spent on the parade of horribles that Congress might be able to legislate if it can impose a health care mandate. But, ultimately, I think that is unlikely to lead to the law’s demise, because:

2. The only problem that Chief Justice Roberts and Justice Kennedy expressed with the mandate is the lack of limiting principle on Congress’s ability to mandate the purchase of privately-made/issued products. If that’s really the concern of each Justice, and it sure seemed that it was, neither man is lacking in the self-regard and intellect necessary to craft such a limiting principle. And that’s where my money remains. The Government didn’t make their jobs easier, but it’s one thing to fault the Government for failing to articulate a limiting principle and quite another to overturn momentous legislation on that basis. Because to do the latter is to say that the Justices can’t craft such a principle either. Here’s betting both can, and Roberts will.


In light of the Supreme Court arguments going on right now to determine the fate of Obamacare, I wanted to rehash my thoughts on why the individual mandate is constitutional, edited slightly for clarity.  Keep in mind that these are intensely abbreviated remarks, intended only to get the general ideas across for general consumption.

The following [came mostly from] from an e-mail exchange with a couple colleagues of mine which occurred on the heels of news that the Sixth Circuit has upheld the constitutionality of the Individual Mandate in the PPACA.  My colleagues’ concern rests on two factors: a) the Commerce Clause becomes meaningless if Congress can regulate inactivity as well as activity, and b) if Congress can force you to buy health insurance, they can theoretically force you to buy anything.

I address these concerns herein:

Interstate Commerce

1. To start, it’s hard to argue, as a practical matter, that an industry which takes up 1/6 of our economy does not qualify as “interstate commerce” within the meaning of the Commerce Clause.  There are probably trillions of transactions that take place across state lines involving both health insurance and healthcare delivery every year.  We’re not talking about a situation like that in Gonzalez v. Raich involving criminalized Cannabis which never crossed state lines.  There is clearly Interstate Commerce going on here.  With that being said, I think we can all agree that the right to “regulate” interstate commerce shouldn’t mean “whatever the hell Congress want to do.”  The question is what exactly the first continental Congress meant by the word “regulate,”  which leads me to:

Intentions Of The Founders

2. I draw your attention to “An Act For The Relief Of Sick And Disabled Seamen, 1798.

Not a decade after the ink dried on the Constitution, Congress passed, and John Adams signed, a law which mandated that privately employed sailors be required to purchase health insurance.  The bill was structured such that the cost of insurance could be deducted from a sailor’s salary by their employer.  But in essence, the nature of the coercion was the same: A Congress and White House populated by most of the original Founding Fathers passed a law that mandated a certain class of private citizens to purchase health insurance.  The fact that the men who wrote the Commerce Clause felt this legislation was compatible with the Clause itself suggests that they did not see the sort of conflict with the Commerce Clause that has been raised by critics of the Individual Mandate.  The form of the 1798 mandate was different, but the nature of the coercion was the same.  The government was forcing private citizens to purchase a product that in many cases, they would not have purchased voluntarily.  Which brings me to:

The Nature of State Coercion: Mandates vs. Tax-for-services

3.  If the Mandate is unconstitutional, then I don’t see how, philosophically speaking, Medicare, Medicaid, Social Security, or really any tax at all is Constitutional.  A mandate to purchase goods on the open market is a less coercive than a tax paid in return for a service.  That’s because tax-for-service arrangements affect two spheres of freedom, while mandates only affect one.

When the government mandates you to buy something, it only affects one sphere of freedom: they are removing your freedom to choose *not* to buy it, but they are not removing the freedom to choose *where* to buy it.  You still have choice among providers of that service in the free market. 

But when the government taxes you in return for a service, they are removing two spheres of freedom: the freedom to decide *not* to purchase that service, and also the freedom to decide *from where* to purchase that service (i.e. you have to get it from the government).  Because taxation-for-service restricts both these freedoms, taxation-for-service is a more coercive exercise of state power than simply mandating you to purchase something in the free market. 

This logic affects a whole host of government programs that are currently well-established, and have withstood constitutional scrutiny.  Social Security doesn’t give you a choice of Financial Managers: you are compelled to use the government as the manager of your SS retirement money, vis-a-vis the Social Security Trust Fund.  Nor does  Medicare or Medicaid give you a choice of insurers.*  Being insured by Medicare means being insured by the government; take it or leave it.  The Individual Mandate, on the other hand, leaves this choice to the individual.

Also: if the Individual Mandate is ruled unconstitutional, but Social Security and Medicare are left intact, what does that mean?  Why couldn’t the government then accomplish the exact same thing as the Individual Mandate by simply taxing people and purchasing private insurance on their behalf?  Surely this would be a more coercive exercise of authority than forcing people to buy insurance without a government middleman.  But the legal theory upon which opposition to the mandate rests permits this to occur, if aimed only at the “stream of commerce,” and not Congress’s power to tax and provide services therefor.

In short: Telling me I have to buy something is one thing.  Telling I have to buy something AND that I can only buy it from one source (i.e. the government) is another thing entirely.  The mandate falls into the first category.  Taxation-for-services (i.e. medicare, social security, etc) falls into the second.

So at this point, the obvious question is: “if the government can force me to buy health insurance, then what can’t the government force me to buy?”  I think you can respond to to this by asking another question in return: what services can’t the state levy a tax for in order to provide as a service to the public?  If the government can force you to give them money out of your paycheck, to pay for something they provide to you whether you want it or not, it hardly makes sense that they can’t accomplish the same result by giving the taxpayer the freedom to choose their own service provider through a mandate.  Taxation-and-spending forces you to buy from the government and no one else.  Mandates, on the other hand, allow you the freedom to select a merchant of your own choosing.  The former is, by definition, a more coercive and intrusive exercise of government power than the latter.  

What follows from this?  If the mandate is unconstitutional, then the 16th Amendment literally rests on nothing more robust than the paper it was written on.  It is essentially a meaningless proclamation that grants the government no real authority, or alternatively, an authority that rests on a flippant, absurd contradiction.

Either the mandate is constitutional, or taxation itself rests on a legal philosophical absurdity: namely, that governments can tax and provide services in return (thus restricting both what you buy and who you buy it from); but not, alternatively, simply mandate a purchase (thus restricting what to buy, but not who to buy it from).  If that is the case, then we live in a strange country indeed.

*Medicare Advantage notwithstanding!


Ruth Marcus makes a strong point:

The most com­pelling sen­tences in the Obama ad­min­is­tra­tion’s brief de­fend­ing the con­sti­tu­tion­al­ity of the health-care law come early on. “As a class,” the brief ad­vises on Page 7, “the unin­sured con­sumed $116 bil­lion of health-care ser­vices in 2008.” On the next page, the brief dri­ves the point home: “In 2008, peo­ple with­out in­sur­ance did not pay for 63 per­cent of their health-care costs.” Those fig­ures amount to a pow­er­ful refu­ta­tion of the ar­gu­ment that the in­di­vid­ual man­date — the re­quire­ment that in­di­vid­u­als ob­tain in­sur­ance or pay a penalty — ex­ceeds the gov­ern­ment’s au­thor­ity to reg­u­late in­ter­state com­merce. To me, $116 bil­lion seems like a whole lot of com­merce.


Remember kids: “Obamacare,” before it was “Romneycare,” was known as the “Health Equity and Access Reform Today Act of 1993” and was written by the Republican Party. Republicans were for the individual mandate before they were against it.


Last week, two appellate judges in Atlanta — one appointed by President Bill Clinton and one by George H.W. Bush – held the Constitution doesn’t allow the federal government to require individuals to buy health insurance.

The so-called “individual mandate” is a cornerstone of the Affordable Care Act, President Obama’s 2010 health care reform law, scheduled to go into effect in 2014.

The whole idea of the law is to pool heath risks. Only if everyone buys insurance can insurers afford to cover people with preexisting conditions, or pay the costs of catastrophic diseases.

The issue is now destined for the Supreme Court (another appellate court has upheld the law’s constitutionality) where the prognosis isn’t good. The Court’s Republican-appointed majority has not exactly distinguished itself by its progressive views.  

 Chalk up another example of how the GOP has outwitted and outflanked the President and the Democrats.

Remember the health-care debate? Congressional Republicans refused to consider a single-payer system that would automatically pool risks. They wouldn’t even consider giving people the option of buying into it.

The President and the Democrats caved, as they have on almost everything. They came up with a compromise that kept health care in the hands of private insurance companies. The only way to spread the risk in such a system would be to require everyone to buy insurance.

Which is what the two appellate judges in Atlanta objected to. The Constitution, in their view, doesn’t allow the federal government to compel citizens to buy something. “Congress may regulate commercial actors,” they wrote. “But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

Most Americans seem to agree. According to polls, 60 percent of the public opposes the individual mandate. Many on the right believe it a threat to individual liberty. Many on the left object to being required to buy something from a private company.

Had the President and the Democrats stuck to their guns during the health-care debate and insisted on Medicare for all, or at least a public option, they wouldn’t now be facing the possible unraveling of the new health care law.

After all, Social Security and Medicare – the nation’s two most popular safety nets – require every working American to “buy” them. The purchase happens automatically in the form of a deduction from everyone’s paychecks. 

 But because Social Security and Medicare are government programs they don’t feel like mandatory purchases. They feel more like tax payments, which is what they are – payroll taxes.

There’s no question payroll taxes are constitutional, because there’s no doubt that the federal government can tax people in order to finance particular public benefits.

Nor do Americans mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new healthcare law.

Requiring citizens to buy something from a private company is entirely different. If Congress can require citizens to buy health insurance from the private sector, reasoned the two appellate judges in Atlanta, what’s to stop it from requiring citizens to buy anything else? If the law were to stand, “a future Congress similarly would be able to articulate a unique problem … compelling Americans to purchase a certain product from a private company.”

Other federal judges in district courts — one in Virginia and another in Florida — have struck down the law on similar grounds. They said the federal government has no more constitutional authority requiring citizens to buy insurance than requiring them to buy broccoli or asparagus. (The Florida judge referred to broccoli; the Virginia judge to asparagus.)

Social Security and Medicare aren’t broccoli or asparagus. They’re as American as hot dogs and apple pie.

The Republican strategy should now be clear: Privatize anything that might otherwise be a public program financed by tax dollars. Then argue in the courts that any mandatory purchase of it is unconstitutional, and rally the public against the requirement. 

 Remember this next time you hear the GOP touting Paul Ryan’s plan for turning Medicare into vouchers for seniors to buy private health insurance.

So what do Obama and the Democrats do if the individual mandate in the new healthcare law gets struck down by the Supreme Court?

Immediately propose what they should have proposed in the beginning — universal health care based on Medicare for all, financed by payroll taxes.

Rep. Dave Camp (R-Mich.), chairman of the powerful House Ways and Means Committee, acknowledged Thursday that Republican plans to repeal President Barack Obama’s signature health care law were “dead.” Instead, Camp predicted, the GOP would turn its focus to overturning the most controversial portion of that legislation: the mandate requiring individuals to buy insurance.

In a footnote, Judge Kessler wrote: “To put it less analytically, and less charitably, those who choose — and Plaintiffs have made such a deliberate choice — not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.”

By playing the “free ride” card, and by suggesting that those who do not purchase health insurance are making irresponsible choices that eventually harm others, Judge Kessler is reminding her readers that the dense legal issues involved in all of these cases have as their backdrop the nation’s colossal health-care mess. The quote is a very pointed and unusual expression of official frustration (no wonder it’s in a footnote) and it speaks not to the lawyers and the judges who will ultimately determine the fate of the new law, or to the politicians who created it in the first place, but to all the Americans out there who refuse to buy health insurance in the name of federalism and the 10th Amendment.

Then, later in her ruling, as if her initial point were not clear enough, Judge Kessler wrote: “It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not ‘acting,’ especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.”

Here we have a direct shot across the bow of the good ship Vinson, as in U.S. District Judge Roger Vinson, the Reagan appointee who last month tossed out the health-care law in its entirety. At the time, Judge Vinson wrote (PDF): “If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power.’ and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended” (citations omitted).

These judges obviously read one another’s rulings. The language of Judge Kessler’s ruling tells me that she thought what Judge Vinson wrote last month was hooey. We’ll see who’s right in the end.

Expanded Medicare for All (Single Payer) would have been so much easier - as well as less expensive.  Eventually, the profit motive will need to be removed from basic health insurance.


A third federal judge upheld President Obama’s health-care overhaul on Tuesday, tossing out a challenge of the law’s mandate that all Americans hold insurance. The judge, on the D.C. circuit, becomes the third Democrat-appointed jurist to uphold the controversial law; two Republican-appointed…