Free Markets, Free People

ObamaCare

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Obamacare: A System Designed to Fail

OK, we now have Obamacare. Absent a November election of Mitt Romney and Republican congressional majorities, we’ll simply have to live with it. Except, of course, we won’t, because Obamacare simply will not work. Its design practically ensures that it will meet none of the goals its proponents claim it will meet. The end result will inevitably be more people uninsured, higher costs, greater government spending, and higher debt.

If you want to see how a policy will work, then ignore all the claims made by it’s proponents—and opponents.  All that is necessary is to look closely at the incentive structures the law creates. Those incentives will tell you how people will respond to the policy.

So, let’s take a brief look at just a few of the incentives Obamacare creates.

  • First, health plans are more highly regulated. They must cover a wide range of preventative procedures, like pediatric or maternity care. This means that stand-alone catastrophic coverage will essentially be a thing of the past. This increases the cost of premiums across the board, and eliminates an entire class of individual insurance coverage.
  • At the same time, insurers are forced to cover pre-existing conditions, with premiums limited to 2.5x that of the lower-risk groups. People with chronic conditions, such as diabetes, generally incur costs far in advance of 2.5x that of healthy people—as I well know, being diabetic—and the care for the seriously ill, such as cancer patients, is far higher still. This will, again, raise the costs of premiums overall to recoup the extra costs of insuring the chronically or seriously ill.
  • Individuals who do not have have health coverage will be forced to pay what we learned this morning was a tax to the IRS instead. Rational people, then will choose not to buy insurance until their health costs + the penalty is greater than the cost of a health plan.
  • Lower income people, with a family income of less than 400% of the poverty level ($88,000 for a family of four) receive a subsidy of varying value, declining with income increases until the 400% of poverty level, at which point it drops to $5,000. At 401% of the poverty level, the subsidy ends. So at that $88,000 level, any increase of income results in the loss of $$5,000. At that point, it is uneconomic to accept any increase in income to less than $93,000, as it will result in a net loss of income, or the family will have to forego medical insurance. This will trap low-wage workers.
  • Companies with less than 50 employees that currently provide health coverage to their workers will face a broad range of new costs, mandates, regulations and coverage mandates. They will have to either require more costs to be paid by employees, or simply drop health coverage altogether and simply pay a nominal tax penalty. I suspect many companies will choose the latter, thereby forcing employees to pay for higher-cost individual plans, or forego coverage. Even worse, companies that employ fewer than 50 people have a huge incentive to ensure they never have more than 50 people on the payroll, lest they then be required to provide health insurance, and subject themselves to a much higher administrative burden.

These perverse incentives will result in higher health insurance costs, and an increase in the number of uninsured people. Additionally, the macroeconomic incentives will result in less income growth and lower employment. We will then be told that the "free market" has failed yet again, and be forced to submit to a fully government-run health care system.

Ultimately, Obamacare is nothing more than the latest in "a long train of abuses and usurpations" about which we have done nothing, and will do nothing. I mean, let’s face it, no one is going to call for a new constitutional convention, much less get together with a lusty, gusty group of fellows and head off into the hills with rifles.

But, there’s always a silver lining to every cloud. In this case, it’s that when we default on or monetize our debt and destroy the currency and economy, Obamacare will be irrelevant, as there will barely be enough money for food and shelter, much less expansive health coverage programs.

So, we got that going for us.

~
Dale Franks
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Screwed! (Update)

Apparently the entire law has been upheld with Chief Justice John Roberts joining the liberal side of the court to declare the individual mandate survives as a tax.   The political elite have once again wiped their collective rear ends with the Constitution.

You are now all destined to be required by law to purchase (via “tax”) whatever in the hell Congress decides it wants you to purchase.  And this will, of course, translate into doing whatever Congress decides you need to do (again, I’m sure the clever totalitarians among us will find some way to accomplish those things through “taxation”).

Welcome to the new “America”. 

Wait … didn’t we once revolt over unfair taxation?

UPDATE: Apparently CNN is reporting the mandate was struck down.  SCOTUS blog says:

The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.

Hmmm …

CNN just corrected their previous release and said the entire ACA had been upheld (and they wonder why they’re losing viewers?).

More SCOTUSblog:

The Court holds that the mandate violates the Commerce Clause, but that doesn’t matter b/c there are five votes for the mandate to be constitutional under the taxing power.

SCOTUSblog again:

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

Just marvelous.  Thanks Justice Roberts. </sarc>

SCOTUS opinion/decision here.

Me, I’m taking the rest of the day off.  As an old libertarian I mourn for the freedom we just lost.  It is another reason, in a long, long line of them, to clean that cesspool of Washington DC out.  And, frankly, perhaps it is time we contemplated bolder measures.

Sorry … but this ruling all but guarantees the twilight of a great experiment.  It lasted over 200 years, but it is definitely in its nadir now.  This only accelerates the decline.  We’ve just put ourselves in the same place as Europe, and we see who gloriously that’s going, don’t we?

Wow, just wow.

~McQ

Twitter: @McQandO

Is the fate of our liberty being decided today?

Just some random thoughts as we await the Supreme Court ruling on healthcare. 

I can’t help thinking the title is precisely what is on the line today.  Given the implications of upholding that odious law, I can’t help but feel this is indeed the most momentous decision in my lifetime.  Oh, certainly, there have been many other important ones, to be sure, but never one that had the potential, at least as I see it, to give government carte blanc to expand and intrude into my life.

I’ve said it often, liberty (freedom) equals choice.  Today’s decision will either uphold our ability to make individual choices (to include not having health insurance for whatever reason) in our lives or limit them – severely.

You know, when I was a kid I had to read the Constitution.  I didn’t find it either difficult to read or understand.  Yet since then, we’ve seen veritable oceans of words telling us what we read and the common understanding of what those words in the Constitution mean isn’t what they really mean.   And the way the Constitution is treated by our politicians is simply shameful (and that applies to both sides).

It has also been ironic to me to see the “living Constitution” crowd whine and complain that the SCOTUS may be overturning “years of precedent”.  That’s a true traditionalist argument.  In fact, though, if it does strike down the mandate, then it will be a traditionalist ruling.

I’m not sure how the left will reconcile that without their heads exploding.

I’m also convinced that even if overturned, either partially or completely, this is only the beginning of the fight to have government take over health care.  Next step?  Single payer.

In fact, there are probably many on the left who actually hope this monstrosity will be overturned so they can proceed to what has always been the extreme left’s dream – single payer, government run health care.  And, of course, Medicare provides precedence for that, doesn’t it.

So as we sit here waiting and hoping, it might behoove us to consider that even if the decision goes as we hope it will go, spiking the ball will be premature.

A ruling against the law won’t signal the end of this fight.  I’m afraid it will only signal the end of round 1 of a multi-round championship fight.

Whatever the ruling, I worry for our country.

~McQ

Twitter: @McQandO

Hints about how the Supreme Court will rule on ObamaCare?

File this under speculation, because that’s essentially what it is (but you have to do a little of it every now and then, and besides, it’s a sport when talking about pending SCOTUS decisions), but still speculation with some possibility of being accurate.

It seems, according to  Avik Roy, that June 25th is most likely the day we will learn the fate of ObamaCare from the Supreme Court.

“Setting aside the ACA cases,” he notes, “the Court essentially has twelve other decisions to hand down.” In addition, “in recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.” Worth also noting, he writes, “the Court almost never issues more than four or five opinions on the same day.”

Hence, if the court issues four or five opinions each on Monday, June 18 and Thursday, June 21, that would leave between two and four opinions for the last scheduled day for reading opinions: Monday, June 25.

And how will the ruling go?  Well, Ruth Bader Ginsberg has said previously that there are some “sharp divides” among the justices.

But, again according too Roy, Ginsberg may have also hinted she’s on the “dissenting” side, meaning that she’s on the minority side of the decision.  The basis for that claim?

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.

Or that may signal nothing at all (she may simply have been speaking academically about “dissenting opinions”).  The key, if we accept the premise that she’s on the dissenting side of this particular ruling is what that means.

Roy mentions that the divide may not be associated with killing the mandate – there may be more than 5-4 agreement on that subject (he suggests it is almost a given that Kennedy will join the conservatives on the court to kill the mandate).   The divide may be with what to do with the law if the mandate is killed:

The key question is: how much of the rest of the law should be struck down along with it?

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

As far as I’m concerned, I’d like to see the entire law struck down.  However, I’m now wondering whether or not that will play out. 

Roy also mentions Antonin Scalia’s recent book and asserts that it hints that Scalia is on the side of dumping the mandate and the law in its entirety.  He wonders if Scalia, given his writing about the scale of the Commerce Clauses expansion and Scalia’s unhappiness with that, has chosen ObamaCare as the case he’s chosen for judicial pushback. 

So, again, based on this speculation, one might surmise that the court has found the individual mandate to be unconstitutional, but is struggling with how much or how little of the law to strike down.

Of course, the individual mandate is the heart and soul of the bill.   It is the payment mechanism that undergirds the entire ponzi scheme program.   No mandate, no money, no expanded risk pool, not much of anything if it goes.

So perhaps even if the court leaves much of ObamaCare standing, it will end up being a Pyrrhic victory for its supporters as the law will then be unsustainable as it exists (minus the mandate).

I guess we’ll see on or around the 25th.

~McQ

Twitter: @McQandO

Perhaps Romney ought to talk about what he stands to inherit from Obama

It would seem that would be a fairly potent means of campaigning and keeping the issues most important to the forefront.  It might take care of this.

Look, one of the reasons we’re going through this “I killed bin Laden” self-congratulatory orgy right now is a day spend doing the bin Laden back pat is a day not spent on having to discuss this awful economy.

It wouldn’t be hard to compile a list of problems a new president would “inherit” from Obama.  That was (and still is) an Obama strategy – blame Bush.  It may be time for Romney to begin to blame Obama:

-For 8.2% unemployment

-For doubling the debt

-For anemic GDP growth

-For large increases in major regulations

-For ObamaCare

-For green energy boondoggles based in crony capitalism and a nonexistent energy policy

-For increasing dependency on government

-For the first credit downgrade in US history

And, that’s just a short list.

I like the “inherit” scheme.  It’s a good way to frame the debate and put the Obama campaign on the defensive.  If and when the Romney campaign and certain elements of the GOP can stop shooting themselves in the foot over gay spokespersons that is.

~McQ

Twitter: @McQandO

The GOP has a chance to take the White House if it can discipline itself to stay on message

Pew Research as a survey out today that is one taken after Romney became the presumptive nominee for the GOP.  It compares its numbers to a survey taken while the GOP’s nomination was still contested.

Pew entitles it’s piece about the survey, “With Voters Focused on Economy, Obama Lead Narrows”.  It subs it with “Social Issues Rank As Lowest Priorities”.

Hello out there GOP – are you reading this?  There’s your campaign.  What to stress.  What to avoid.

Any chance they’ll actually figure that out?

I mean so far we’ve talked about sluts, contraception, race, wars on women, stay at home moms, even about dogs riding on roofs (well at least the Romney’s didn’t eat the dog).

We’ve been distracted by the outrage of the week – Rush Limbaugh, Hillary Rosen, Ted Nugent, Bill Maher, etc. 

That’s the left’s game plan, for heaven sake – Obama has a dismal, in fact awful economic record.  Horrible.

And yet the GOP is walking into every distraction trap the left sets like they haven’t a clue.

As I’ve been saying for months, once the nomination is settled, regardless of who the nominee is, and the focus begins to turn on Obama and his record, there will begin a shift in voter preference that should (note the word) carry the GOP nominee to the White House -  if the GOP plays its cards right.

Should.

Here’s what I mean:

Obama’s lead over Romney has narrowed since last month, when he had a 12-point advantage, though it is comparable to margins from earlier this year. While Obama’s advantage has declined since March, there is little to suggest a specific problem or campaign event as having a critical effect.

While there have been debates over issues related to gender, the rise and fall in Obama’s support has largely crossed gender lines, with a fairly consistent gender gap over time. For example, since March, Obama’s support among both men and women has slipped five percentage points.

Independent voters remain up for grabs. In the current survey, 48% favor Romney while 42% back Obama. A month ago, it was 47% Obama, 44% Romney.

If anyone would not expect an incumbent president to have some sort of  lead at this point, I’d say you don’t know much about American politics.

That said, as you can see by the change in a month, the lead is at best tentative, soft and narrowing. 

But … there is still a way to absolutely screw up this chance at making Obama a one-term president and, unfortunately, I wouldn’t be surprised to see the GOP manage that.

That is, to concentrate on the wrong issues.  They have a track-record of snatching defeat from the jaws of victory doing exactly that.

I’ll make it as simple as possible.

Limit the main issues of the GOP campaign to three themes: the economy, jobs and the debt.  Talk about how to improve the first two and reduce the third.  Talk about getting the hell out of the way while giving business the green light to lead us out of this economic morass.  Declare the war on fossil fuel to be over.   Talk about exploiting our natural resources and the jobs that will bring.  Put confidence back in the business sector that expansion and hiring will be enabled and supported, not killed with more and more regulation.  Talk about repealing ObamaCare and draconian regulations.  Talk about bringing America back.

Once the incumbent has given his concession speech, talk about whatever else tickles your fancy then. But discipline yourself until then.  Until then narrow the focus and be relentlessly on message.  Refuse the distraction traps.  Just flat refuse them.

Do that and the GOP has a shot.  The numbers will continue to improve.

Fall into the distraction traps and kiss victory goodbye.  If the other side is allowed to frame the campaign and establish the narrative and avoid examining Obama’s record,  the GOP loses.

We’ll see which course they choose.

~McQ

Twitter: @McQandO

In praise of lazy Harry Reid

Okay, yes, it’s a bit of a sarcastic title, but in a sense I mean it:

For those who need proof that the Senate was a do-nothing chamber in 2011 beyond the constant partisan bickering and failure to pass a federal budget, there is now hard evidence that it was among the laziest in 20 years.

In her latest report, Secretary of the Senate Nancy Erickson revealed a slew of data that put the first session of the 112th Senate at the bottom of Senates since 1992 in legislative productivity, an especially damning finding considering that it wasn’t an election year when congressional action is usually lower.

For example, while the Democratically-controlled Senate was in session for 170 days, it spent an average of just 6.5 hours in session on those days, the second lowest since 1992. Only 2008 logged a lower average of 5.4 hours a day, and that’s when action was put off because several senators were running for president, among them Hillary Clinton, Barack Obama and John McCain.

On the passage of public laws, arguably its most important job, the Senate notched just 90, the second lowest in 20 years, and it passed a total of 402 measures, also the second lowest. And as the president has been complaining about, the chamber confirmed a 20-year low of 19,815 judicial and other nominations.

Frankly, I think Congress should be a part-time job.  That was the way it was designed at the founding.  Come in, do the work necessary – you know, such as pass a budget? – and then go back to your real job.

So, in reality, I’m not against a Senate that doesn’t do much.  Unfortunately, we have an activist president who is more than happy to use the Senate’s laziness as a pretext for issuing executive orders and accomplishing his agenda via executive agencies with no accountability to the people.

And, it appears, Harry Reid is fine with that – not that anyone should be particularly surprised by that.

It is the only way Reid can apparently assist the President in doing what he wants to do.  You know, provide an excuse.  “We can’t wait on Congress”, something that is only a problem since the GOP took the House one assumes.  Of course somehow even lazy Harry Reid managed to at least rouse himself long enough to pass that abomination we know as ObamaCare. 

Once that was done, he went back into tax-payer subsidized hibernation.

But with Reid, how do you tell?

~McQ

Twitter: @McQandO

Young physicians pessimistic about US health care system under ObamaCare

We already have a physician shortage in this country.  And with the passage of ObamaCare, it is likely to get worse.  

According to a survey, young physicians (below the age of 40) are pessimistic about the future due to the increased “involvement of government” that ObamaCare promises.

An overview of young physicians in the survey revealed:

- The typical younger physician in this survey is 37 years of age and is an employee of a medical group; with the largest single segment being employees of small groups (6 or fewer physicians):  58% are employees of medical groups, and almost half of those (48%) are with the smaller groups.  In contrast, 26% are with mid-sized groups (with 7 to 12 physicians), and 26%
are with larger groups (13-plus physicians).

- These physicians are markedly pessimistic regarding the future of the U.S. healthcare system, with the “new healthcare legislation” ranking as a strong #1 reason for the pessimism.  Many voice considerable cynicism with (what several call) “government’ involvement.”

- Financial-related considerations play a key role in the choice of practice/ arrangement.  Most cite “income/cash flow” and “employment security” as factors influencing their current arrangement.  And among the 27% who changed (or considered changing) their practice/arrangement in the past year, the leading reason given related to “financial issues.”

- The vast majority express satisfaction with their current practice /arrangement (with 35% saying they are “highly satisfied,” and another 45% saying they are “somewhat satisfied”); and most expect to stay with the current practice/ arrangement for 8 years or more.  Many (39%) aspire to some form of ownership position in the future (as either sole owner or partner).

There’s a reason for the marked pessimism.  They’ve already had to deal with government involvement at the level it now exists and their experience with doing so gives them no confidence that further involvement will lead to any sort of improvement.  Quite the contrary they apparently feel it will lead to a degradation in the quality of medicine practiced and an increase in the bureaucratic meddling they’ll have to endure.

Note the satisfaction index with the current system (80% highly or somewhat satisfied).  And note also the fact that many aspire to some form of ownership position in the future.  I’d put forth a guess that the 39% so aspiring see such a dream as threatened by further government involvement.

As to their pessimism about ObamaCare, the survey says:

These young physicians exhibit considerable pessimism regarding the future of the U.S. healthcare system:

-  When it comes to the Affordable Care Act, 49% believe the impact on their practice will be negative, vs. only 23% who believe it will be positive.  Among the three practice-types, the Primary Care physicians exhibited somewhat less pessimism vs. the other two segments:  They were a bit more likely to be “positive” or “neutral,” a bit less likely to be negative. 

-  And well over half (57%) are pessimistic about the future of the U.S. healthcare system (with over 30% saying they’re “highly pessimistic”).  In contrast, only 4% are “highly optimistic,” and 18% who are “somewhat optimistic”.  When asked (open-ended) reasons for their pessimism, responses covered a wide spectrum of negatives – with the “new healthcare legislation” leading the way.  Indeed, as one peruses the responses to the question, the cynicism voiced by so many – with most of it directed at “government” – stands out.

Of course it does.  And some of their specific comments tell you why:

“Government controlled healthcare will be the downfall.  Anyone who has worked in government environment such as VA would know this – ask any vet who receives their care through VA how good the system is!”

“The current administration is only concerned with money and maintaining their power and socialism.”

“Government regulation has too many strings attached.  (It) has not been well thought out.  (It) will bankrupt the country.  (We are) pushing toward socialist medicine.”

“I do not feel optimistic because of all the increased regulatory burdens on physicians.  There will be an increased shortage of physicians to provide primary care and decreased access to care.”

“The very reasons why people come to the U.S. to obtain care (research, quality, availability, cutting edge, good physicians, etc) is being taken away one at a time.  The changes that are being made are not made with the patient in mind, but with the ‘bottom line’ economically in mind.  Not once is the patient mentioned in all these changes.”

“I think the government is destroying healthcare.”

If you read the survey, you’ll find that even the more “optimistic” comments certainly are only relatively optimistic in comparison to the above.

The comment about the reasons people come to the US is the most telling of the group.  It pretty well describes what critics of the law have been saying since its passage.  You can’t have the best medical care available if the focus is cutting cost.  It’s a lie.  And pretending that you can do both is the biggest lie of all.  That’s precisely the snake oil sales job that has been used to justify the law.  But poll after poll has said the American people have rejected the sales job. 

It should also be clear that most young physicians have as well.  They are not optimistic about the future of US health care.

And if they’re not optimistic, why in the world should patients who will suffer through it hold any optimism either?

~McQ

Twitter: @McQandO

Observations: The QandO Podcast for 01 Apr 12

This week, Michael, and Dale talk about the Supreme Court arguments on Obamacare.

The direct link to the podcast can be found here.

Observations

As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here. For podcasts from 2005 to 2010, they can be accessed through the RSS Archive Feed.

The liberal shock at the collapse of ObamaCare’s “Constitutional” arguments

I think it is felt, whether true or not at this point since we really don’t know, that ObamaCare is in real trouble.  You can see it everywhere with the NY Time opining that overturning it would be judicial activism and the various and sundry liberal blogs bleating out the same refrain.  They’re shocked.  They’re stunned.  They’ve decided they have to somehow characterize this as they tried to do Bush v. Gore, as a form of judicial malfeasance.

But as Don Surber points out, the arguments against the law aren’t new even if the left tried to wave them off and pretend they were weak.

And so, as John Podhoretz argues:

I diagnose the shock at the powerful Constitutional arguments advanced against Obama’s health-care plan as another example of the self-defeating parochialism of American liberals, who are continually surprised that conservative ideas and conservative arguments are formidable and can only be bested if they are taken seriously: “the strength of the conservative arguments only came as a surprise to [Jeffrey] Toobin, [Linda] Greenhouse and others because they evidently spent two years putting their fingers in their ears and singing, ‘La la la, I’m not listening’ whenever the conservative argument was being advanced.”

Its really not “conservative” ideas we’re talking about here (honestly, they’ve gone along with plenty of laws which shred the Constitution), but instead fundamental ideals on which the country was founded.  They were certainly advanced by conservatives in this case.  They are powerful ideas and I agree with Podhoretz, that liberals just waved them off.  They could not conceive of a law filled to the brim with good intentions (no matter how abysmal its execution or horrendous its cost) could be found as anything but Constitutional.

I can only suggest that their earlier takeover of the public education system left them in a civics class knowledge deficit about what the Constitutions says.  Must have happened about the time they decided schools had the job of indoctrinating youth about sex education and the like.

So as the law’s date with SCOTUS approached the left was supremely confident:

Twenty-six states and the National Federation of Independent Business challenged the constitutionality of President Obama’s signature piece of domestic legislation, the Patient Protection and Affordable Care Act. The sophistries on which the Obamaphiles relied to defend their health care power grab were perhaps best summarized by Slate legal columnist Dahlia Lithwick: “That the law is constitutional is best illustrated by the fact that — until recently — the Obama administration expended almost no energy defending it.”

That lack of energy came back to haunt them Tuesday when Solicitor General Donald Verrilli turned in a stammering, barely coherent performance worthy of the public defender in My Cousin Vinny as he struggled to articulate a constitutional defense of Obamacare. The arguments went only slight better for Verrilli yesterday. The administration seemed ill prepared to answer even basic, predictable questions about the law’s constitutional basis.

Absolutely correct.  Verrilli was awful and that is acknowledged by both sides (it was like he was arguing for something he just really didn’t believe in at times). 

Jennifer Rubin’s take:

It’s not surprising that liberals, most of whom have not read or shown interest in the arguments of the challengers, were stunned to learn that there really is a constitutional difference between taxing and regulating and between inducing one into commerce and regulating commerce that already exists. It is this failure to understand, let alone imagine that constitutional text has meaning and there are actual limitations on federal power, that explains the stunned reaction of the liberal elite. Like puppies smacked on the nose by a rolled-up copy of the Constitution, they are flabbergasted.

Greg Sargent seems to understand the point:

But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.

But as usual, tries to make it personal and political instead of acknowledging the power of the arguments against the law:

All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.

Or in other words, sticking up for the foundational principles underlying the US Constitution is now a “hard right” thing.  Any possibility they’ll continue to be “shocked” in the future?

They will if they repeat the “arrogant, dismissive and ill-prepared” tactic in the future.

Again, we don’t know how this will actually end and have to be careful about reading too much into the oral arguments, but that said it is hard not to note how poorly those arguments went for the administration and at least realize that after arrogantly ramming the bill through the Democratic controlled Congress and waving it around triumphantly in the face of those who opposed it, its at least an enjoyable bit of schadenfreude going on right now, isn’t it?

~McQ

Twitter: @McQandO

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