Our Common Good


Now that President Obama has been elected to a second term, political opponents of his landmark health care reform law are beginning to concede that Obamacare is here to stay. And the general public agrees.

As a new Kaiser Family Foundation poll reports, the majority of Americans don’t support repealing Obamacare. In fact, after the presidential election, the number of Americans advocating for a full repeal of the health reform law dropped to an all-time low at just 33 percent — compared to nearly half of Americans who would rather keep the law in place:

Last week, House Speaker John Boehner (R-OH) acknowledged that Obamacare is “the law of the land,” suggesting that Republicans in Congress may finally cease their repeated attempts to repeal the law. But his office quickly walked those statements back, clarifying that Republicans remain very committed to opposing Obama’s health reform.

However, if Republican lawmakers continue to stand in opposition to Obamacare by undermining some of the health law’s key provisions, public opinion still isn’t on their side. Previous polling has shown that Americans tend to be broadly supportive of Obamacare’s individual provisions — such as allowing young adults to remain on their parents’ insurance plans, and preventing insurance companies from discriminating against Americans with pre-existing conditions — even if they remain unsure about what the entire law means for the country.

The declining support for repealing the health law is a blow to the anti-Obamacare candidates who poured over $20 million into advertisements attacking the Affordable Care Act during the 2012 election cycle. On the other hand, at least six candidates in tight races across the country won last week after advocating for the health reform law throughout their campaigns.


1) “I want to make sure we keep our Pell grant program growing. We’re also going to have our loan program, so that people are able to afford school.” As part of his budget, Paul Ryan proposed cutting Pell Grants for nearly 1 million college students. In fact, Romney’s white paper on education, “A Chance for Every Child,” suggests that he “would reverse the growth in Pell Grant funding.” It says: “A Romney Administration will refocus Pell Grant dollars on the students that need them most and place the program on a responsible long-term path that avoids future funding cliffs and last-minute funding patches.”

2) “I put out a five-point plan that gets America 12 million new jobs in four years and rising take-home pay.” The Washington Post’s in-house fact checker tore Mitt Romney’s claim that he will create 12 MILLION jobs to shreds. The Post wrote that the “‘new math’” in Romney’s plan “doesn’t add up.” In awarding the claim four Pinocchios — the most untrue possible rating, the Post expressed incredulity at the fact Romney would personally stand behind such a flawed, baseless claim.

4) “Because the president cut in half the number of licenses and permits for drilling on federal lands, and in federal waters.” There are slightly fewer permits in 2009 and 2010, from between 8,000-9,000 permits to over 5,000, and they have not been cut by half. The oil and gas industry is sitting on 7,000 approved permits to drill, where it hasn’t begun exploring or developing. Two-thirds of “acreage leased by [oil] industry lies idle” on public lands, according to the Department of the Interior.

6) “And coal, coal production is not up; coal jobs are not up.” 1,500 coal jobs have been created under Obama.

9) “The proof of whether a [energy] strategy is working or not is what the price is that you’re paying at the pump. If you’re paying less than you paid a year or two ago, why, then, the strategy is working. But you’re paying more.” Gas prices are certainly high, but oil is a global commodity, and the president has virtually no control over them. And according to the Congressional Budget Office, Romney’s proposal to increase domestic oil production would not have much impact on volatility.

10) “And I will not — I will not under any circumstances, reduce the share that’s being paid by the highest income taxpayers. And I will not, under any circumstances increase taxes on the middle-class.” As the Tax Policy Center concluded, Romney’s plan can’t both exempt middle class families from tax cuts and remain revenue neutral. “He’s promised all these things and he can’t do them all. In order for him to cover the cost of his tax cut without adding to the deficit, he’d have to find a way to raise taxes on middle income people or people making less than $200,000 a year,” the Center found.

11) “But your rate comes down and the burden also comes down on you for one more reason, and that is every middle-income taxpayer no longer will pay any tax on interest, dividends or capital gains. No tax on your savings. That makes life a lot easier.” This would actually help very few Americans. Nearly three-fourths of households that make $200,000 or less annually would get literally nothing from Romney’s tax cut, due to the simple fact that most of those households have no capital gains income. To be exact, 73.9 percent of the households upon which Romney “focused” his tax cut will see zero benefit from it.

12) “A recent study has shown the people in the middle-class will see $4,000.00 per year in higher taxes as a result of the spending and borrowing of this administration.” Romney is pointing to this study from the American Enterprise Institute. It actually found that rather than raise taxes to pay down the debt, the Obama administration’s policies — those contained directly in his budget — would reduce the share of taxes that go toward servicing the debt by $1,289.89 per taxpayer in the $100,000 to $200,000 range.

13) “Fifty-four percent of America’s workers work in businesses that are taxed as individuals. So when you bring those rates down, those small businesses are able to keep more money and hire more people.” Far less than half of the people affected by the expiration of the upper income tax cuts get any of their income at all from a small businesses. And those people could very well be receiving speaking fees or book royalties, which qualify as “small business income” but don’t have a direct impact on job creation. It’s actually hard to find a small business who think that they will be hurt if the marginal tax rate on income earned above $250,000 per year is increased.

14) “I went to a number of women’s groups and said, ‘Can you help us find folks,’ and they brought us whole binders full of women. I was proud of the fact that after I staffed my Cabinet and my senior staff, that the University of New York in Albany did a survey of all 50 states, and concluded that mine had more women in senior leadership positions than any other state in America.” Romney did not ask women groups for candidates. Instead, prior to his election, a “bipartisan group of women in Massachusetts formed MassGAP to address the problem of few women in senior leadership positions in state government.” They “put together the binder full of women qualified for all the different cabinet positions, agency heads, and authorities and commissions” and presented it to Romney after he was elected. A UMass-Boston study found that “the percentage of senior-level appointed positions held by women actually declined throughout the Romney administration, from 30.0% prior to his taking office, to 29.7% in July 2004, to 27.6% near the end of his term in November 2006.”

15) “I’m going to help women in America get good work by getting a stronger economy and by supporting women in the workforce.” Romney has been uncomfortably silent on the issue of pay equity. He has refused to say whether he’d support the Paycheck Fairness Act, a bill that would allow women to sue for equal pay, and named four of the justices who voted to roll back equal pay in that Supreme Court decision as his models for any of his appointments to the federal bench.

16) “I’d just note that I don’t believe that bureaucrats in Washington should tell someone whether they can use contraceptives or not. And I don’t believe employers should tell someone whether they could have contraceptive care of not. Every woman in America should have access to contraceptives.” But back in March, Romney expressed strong support for the so-called Blunt amendment, which that would allow employers to deny contraception coverage to women. Romney also wants to defund Planned Parenthood, where 76 percent of the patients seek low-cost birth control options. Defunding the organization would make it much harder for those women to get contraceptives.

17) “So when you say that I wanted to take the auto industry bankrupt, you actually did. And — and I think it’s important to know that that was a process that was necessary to get those companies back on their feet, so they could start hiring more people. That was precisely what I recommend and ultimately what happened.” This is false. As Buisnessweek explain: “Romney is misstating his position. He opposed any use of taxpayer dollars to bail out the automakers, advice that President George W. Bush and Obama ignored. GM and Chrysler went through managed bankruptcies after Bush, at the end of his presidency, and later Obama provided federal funds.” “Without federal funds, GM and Chyrsler would not have survived. As former Bush aide Tony Fratto explained, “It wasn’t just that there wasn’t credit available; a lot of private equity had cash, they just weren’t giving it away.”

18) “He said that by now middle-income families would have a reduction in their health insurance premiums by $2,500 a year. It’s gone up by $2,500 a year.” Premiums have increased, though at a lower rate than before. And while the Affordable Care Act’s most important cost contentment strategies have yet to be implemented, the law is already lowering costs. 16 million seniors have received preventive benefits without deductibles or co-pays and are saving at least $3.9 billion on prescription drugs. Millions of young adults now have insurance coverage and are staying on their parent’s health care plan, insurers have refunded consumers, and states have successfully rejected dramatic premium increases.

19) “He keeps saying, ‘Look, I’ve created 5 million jobs.’ That’s after losing 5 million jobs. The entire record is such that the unemployment has not been reduced in this country.” Job creation is net positive since Obama took office in the middle of the worst recession since the great depression. Economists estimate that up to 3 million jobs were created by the stimulus alone.

23) “It was a terrorist attack and it took a long time for that to be told to the American people.”Obama called the Libya incident an act of “terror” the very next day. “No acts of terror will ever shake the resolve of this great nation, alter that character, or eclipse the light of the values that we stand for,” he said. “Today we mourn four more Americans who represent the very best of the United States of America. We will not waver in our commitment to see that justice is done for this terrible act. And make no mistake, justice will be done.”

24) “Consider the distance between ourselves and — and Israel, the president said that — that he was going to put daylight between us and Israel.” The Israeli Deputy Prime Minister and Defense Minister, Ehud Barak, told CNN, “President Obama is doing … more than anything that I can remember in the past [in regard to our security].”

25) “The president’s policies throughout the Middle East began with an apology tour and — and — and pursue a strategy of leading from behind, and this strategy is unraveling before our very eyes.” Obama never embarked on an “apology tour.”

26) “We, of course, don’t want to have automatic weapons, and that’s already illegal in this country to have automatic weapons.” Automatic weapons are legal in this country.

28) “What I will do as president is make sure it’s more attractive to come to America again.”Romney’s plan to move the country to a territorial tax system would let corporations do business and make profits overseas without ever being taxed on it in the U.S. This would no doubt encourage American companies to invest abroad, potentially costing the country up to 800,000 jobs.

30) “And there’s no question but that Obamacare has been an extraordinary deterrent to enterprises of all kinds hiring people.” Under the law, only companies with more than 50 employees must provide health insurance or pay a fine — that’s just 2.6 percent of businesses. If anything, expanding health care coverage to more Americans will actually create hundreds of thousands of new jobs.

31) “He said he would have by now put forward a plan to reform Medicare and Social Security, because he pointed out they’re on the road to bankruptcy.” [T]he possibility of Medicare going bankrupt is — and historically has been — greatly exaggerated. In fact, if no changes are made, Medicare would still be able to meet 88 percent of its obligations in 2085. Social Security is fully funded for another two decades and could pay 75 percent of its benefits thereafter. There is also an easy way to ensure the program’s long-term solvency without large changes or cuts to benefits.

Mitt Romney was lying off his rocker last night. He CANNOT be trusted to lead a kids’ hockey team, let alone this nation (and the world).

h/t: Igor Volsky at Think Progress


An emotional Debbie Wasserman Schultz recounted the story of how she overcame breast cancer to illustrate how Obamacare’s provisions banning insurance discrimination for pre-existing conditions will affect her. 

“In 2007, I was diagnosed with breast cancer. In 2008, right before the convention, I had one of seven surgeries that year,” she said. “I was fortunate. I had good insurance and great doctors. Today, I stand before you as a survivor! But like every breast cancer survivor, I now have a pre-existing condition.”

H/T: TPM LiveWire

Indeed, if the first night of the Democratic Convention is to be remembered for anything aside from Michelle Obama’s speech, it will probably be remembered as the night that Democrats stood up and began fighting for their health-care law.
GOP To Make 31st Attempt To Repeal Obamacare


The House Rules Committee takes up a bill Monday called the “Repeal of Obamacare Act.” And just like it says, the bill would wipe away the president’s Affordable Care Act. A vote of the full House is planned for Wednesday.

It’s the first legislative response from House Republicans after the Supreme Court upheld the law. But it is far from the first time the GOP has voted for repeal.

Over the past 18 months, the House has taken 30 floor votes to try to repeal, defund or dismantle the health care law. The first attempt came on Jan. 19, 2011 just two weeks after the GOP took control of the House.

read more

You’d think they’d give up, but it seems what they are doing is pounding on the issue hoping the other side gets sick of fighting over it.

I have a feeling this isn’t going to stop any time soon.

I’m very disappointed in the ruling. I think the chief justice had to contort logic and reason to come up with this ruling. So one man decided against the dissenting opinion, against what I, you know, thought were his — his principles and judicial jurisprudence, he decided to leave this up to the American people. So now the stakes of this election could not be higher.

Representative Paul Ryan (R-WI) on Chief Justice John Roberts and the Supreme Court ruling on the Affordable Care Act. (via ABC News)

Translation: I’m very disappointed that Chief Justice Roberts did not act as the extension of the Republican Party I believed him to be. Judicial independence, what’s that?  (via kileyrae)


DCCC- Bumper Sticker: Chip in $1 and we’ll send you one: http://dccc.org/I-Love-Obamacare



DCCC- Bumper Sticker: Chip in $1 and we’ll send you one: http://dccc.org/I-Love-Obamacare



As the Supreme Court readies to announce their decision on the individual mandate portion of the health reform, it has emerged that the largest health care lobbying group in the country spent a total of $102.4 million in just 15 months to prevent Obamacare from becoming law in the first place.

In 2009 alone, America’s Health Insurance Plans (AHIP) pumped $86.2 million into a conservative lobbying group, the US Chamber of Commerce, to combat President Obama’s health care reform plan. But with the added months of 2010 prior to the ACA’s March passage, AHIP piled on an additional $16 million to be used against the bill.

That staggering total, which the National Journal’s Influence Alley uncovered today, was not out in the open — rather, the funds were transferred through a secretive process and listed only by the organization as ‘advocacy’ spending

read more


A new report by an independent government auditor concludes that implementing President Obama’s health care law as intended will make a significant dent in the long-term debt forecast.

The report comes as Supreme Court justices weigh striking some of “Obamacare’s” central provisions — and perhaps the law in its entirety — and as the Republican Party remains committed to repealing the law if it seizes control of government in November.

“[I]f the Patient Protection and Affordable Care Act (PPACA) is implemented as intended it would have a major effect on the [fiscal] gap but would not eliminate it,” the Government Accountability Office wrote in a Monday report — a conclusion in line with its own past research and similar research conducted by other government and non-government analysts.

GAO doesn’t isolate PPACA’s stand-alone contribution to long-term budget consolidation. But it does conclude that if key cost-control measures in the law, and other automatic cuts to Medicare spending baked into current law, are ignored, or overridden by Congress, the implications for the national debt are vast.

If “Obamacare” is implemented as intended, and other measures, such as automatic payment cuts to Medicare physicians, take effect, “spending on Medicare and Medicaid grows from 5 percent of GDP in 2010 to over 7 percent by 2030.”

By contrast, if Congress overrides those provisions, “[s]pending on health care grows much more rapidly under this more pessimistic set of assumptions,” according to the report. “Absent changes to these programs, spending on Medicare and Medicaid under the Alternative simulation grows to over 8 percent of GDP by 2030.”

Congress has consistently passed temporary legislation to prevent Medicare doctors from experiencing a pay cut baked into current law. But the current patch expires on Jan. 1 — along with the Bush tax cuts and the payroll tax holiday — just as other automatic cuts to Medicare are set to take effect as a penalty for the Super Committee’s failure to pass deficit-cutting legislation.

The confluence of these fiscal triggers suggests lawmakers will be forced to act quickly after the election to put the country’s budget on a more sustainable path. But if Republicans win big in November and move ahead with their plan to repeal the health care law, they’ll only make matters worse.


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)


From the New England Journal of Medicine, Einer Elhauge expands on the history of mandates in America:

[I]n 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.

Jon Green notes that Politifact dug deeper into Elhauge’s claim, and found more details:

There was no roll call for the House and Senate bills requiring health care for seamen. But on the proposal mandating the purchase of a musket, firelock or rifle as part of the larger bill to establish a uniform militia, 10 of the 14 framers whose votes were recorded endorsed the measure.

Once again, here you have Congress regulating inactivity by mandating someone to enter the stream of Commerce by purchasing something they might not have voluntarily done on their own.  As I’ve said before, whether the mandate is wise is a subject of legitimate and debatable inquiry.  Whether it is constitutional is another matter entirely.  From a purely constitutional standpoint, the Randy Barnett “inactivity” limiting principle is not only incoherent, but ahistorical.


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!