A lot has been said and written about the oral arguments before the Supreme Court concerning ObamaCare. Many have claimed you can’t base much on such arguments.
Perhaps. But it seems to me that you can get an indication of the mood of the court if you consider them carefully and keep them in context.
What I’ve surmised over the past few days is the law is in deep trouble. I think, if nothing else, the oral arguments pointed out how dismally weak and poor the arguments “for” this law are.
Of course, depending on how they would like to see the court rule, each side has found ways to spin these arguments to support their hoped for result. No huge surprise there.
But I think the one thing that is clear is the court is pretty well split down the middle and along ideological lines. And, as we’ve said for some time, in reality the result will hinge on the vote of Justice Kennedy.
However, I think you have to keep in mind that it won’t be a single ruling but one which entails several votes. One on the individual mandate, one on severability and possibly, depending on how the severability vote goes, if portions or the whole bill ought to be struck down. If the whole law is struck down, of course the expanded Medicare portion discussed yesterday will go with it.
That leaves you wondering where Kennedy is in his deliberation of the case. Again, if looking at indications to be gleaned from the oral arguments, one could assume he finds it true that the individual mandate would “fundamentally change” the citizen’s relationship with government – and not to the citizen’s favor. I think it is also true that he is not satisfied that the government has successfully articulated a “limiting principle” – a critical and key point in the discussion.
Finally, I get the impression, from yesterday’s arguments, that Kennedy is leaning toward “paving over” the whole law. In other words, giving Congress a “do over” since taking the mandate out would create a law and a consequence that it is hard to argue was Congress’s original intent. What is also interesting is the developing opinion that striking down the entire law would actually be an exercise in judicial restraint, not judicial activism.
Justice Ruth Bader Ginsburg said Mr. Clement is asking the Court to conduct "a wrecking operation," before stating that "the more conservative approach would be salvage rather than throwing out everything." The Obama Administration didn’t say exactly that, but it did argue that the mandate is indispensable to its supposedly well-oiled regulatory scheme and if it is thrown out the insurance rules should be too.
But Justice Anthony Kennedy doubted Justice Ginsburg’s logic, since by taking out only the individual mandate the Court would in effect be creating a new law that Congress "did not provide for, did not consider." To wit, costs would soar without any mechanism to offset them.
"When you say judicial restraint," Justice Kennedy said, "you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite." Overturning the mandate alone, he continued, "can be argued at least to be a more extreme exercise of judicial power than to strike the whole."
This is a critical point.
I think it is clear the 4 justices traditionally identified with the liberal side of the court are fore-square for the law and will find some way to justify it’s egregious and unconstitutional over-reach. And yes, no secret, I’ve always considered the law to be that and nothing I’ve heard in oral arguments has changed that. I think Justices Thomas, Alito and Scalia are for finding the mandate unconstitutional and for killing the entire law. I think Chief Justice Roberts is against the mandate although I’m not sure it’s a foregone conclusion that he wants to kill the entire law at this point. However I think he’ll be persuaded eventually.
That would make Kennedy the guy … again. No surprise for most who’ve watched the court for the past few sessions. He often ends up as the swing guy. You may disagree with my assessment of where he is in his decision making process, but his questions and comments, at least to me, seemed to indicate he was forming a particular opinion and that opinion favored both striking down the mandate and then striking down the whole law.
Should that be the case, and given the Democrats are unlikely to have an unassailable majority in Congress anytime soon as they did when they passed this monstrosity, this is indeed “the most important case in 50 years”. That’s a “good thing” because the likelihood that a “replacement” will be passed in Congress becomes much less likely. Kennedy’s vote could save America as we know it and protect us from a law that would “fundamentally” change our relationship with government and place us in a position of involuntary servitude to a government given license to run our lives in pretty much any way it see’s fit to pursue.
This week, Michael, and Dale talk about the Trayvon Martin case, and the Supreme Court arguments on Obamacare.
The direct link to the podcast can be found here.
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.
And as with most things politicians promise, Few of the promises necessary to sell this awful program are true or being kept:
As I’ve noted any number of times, there are polls which mean nothing (such as polls this far out comparing an incumbent president and GOP nominees) and there are those what present indicators or trends that give one insight into the prevailing mood of voters or the like.
The Hill produced one of the latter this past week. Obviously a snapshot of the prevailing mood right now, it is not a poll with which the Obama campaign should be happy.
The poll indicated that 49 percent of likely voters said they expect a court ruling that is unfavorable to the Affordable Care Act, while just 29 percent think it will be upheld and 22 percent aren’t sure.
On economic issues, 62 percent of voters say Obama’s policies will increase the debt, while 25 percent think they will cut it, and by a 48-percent-to-38-percent margin, voters believe those policies will increase joblessness rather than put people back to work.
On energy, 58 percent say Obama’s policies will result in gasoline prices increasing, while just 20 percent expect them to cut prices — and by a 46-percent-to-36-percent margin, voters believe they will cause the United States to become even more dependent on foreign oil.
Now as far as I’m concerned, those are the three issues that are likely to (or should) dominate the election once a GOP nominee is decided on. If they’re not, and the GOP allows the Democrats to frame the campaign on issues other than those, they stand a good chance of losing.
Regardless of the outcome in the Supreme Court, ObamaCare remains very unpopular with a majority of the population. The economy is one of those issues that is personal. Despite media hype, voters judge the state of the economy on a personal level. The “official unemployment number” can be made to look rosy, but in fact real people who are still unemployed or underemployed know who they are. They are the real number and they’re not going to be happy with the state of the economy.
Finally, the energy tap-dance that the administration is doing is obviously failing. Obama is failing miserably passing off the blame about gas prices if 58% are saying his “policies” are the problem. True or not, perception is the rule. Oh, and, frankly, it’s true. See for yourself.
When you have consistent polls that say a vast majority of voters are unhappy with a president’s signature piece of legislation, that’s a place you focus your campaign. When you have two important issues – the economy and energy – where significant majorities are down on the incumbent for his policies, you hammer that unmercifully.
This poll is an indicator of the issues the GOP should build its campaign around. These points should be pushed relentlessly.
Porn, contraception and other wedge issues should be avoided. Sorry, but they’re net losers and true distractions. They let the left frame the discussion and trust me, that’s where they’re going to take it every time.
Oh, as an aside, if you’re interested in what a useless poll looks like, check this one out. Justices appointed to lifetime positions are hardly worried about “popularity”. In fact, that’s the primary reason for such appointments. While the poll may indicate public dissatisfaction with some rulings, it may also simply indicate a partisan divide. But for the most part, it is irrelevant.
Remember when Nancy Pelosi, Harry Reid, the Democratic Congress and Barack Obama all told us that the cost of ObamaCare would only be $900 billion? And because of that, Obama said it “saved” us money. He also said that if it had been more than that, he wouldn’t have signed it.
Well, as the critics rightly pointed out, it was always more than that. It was just hidden from view, because of the way Democrats structured the law to hide most expenditures for a few years. That way, the CBO, who was charged with scoring it, would score it below a trillion dollars because the CBO, by law, can only score a law within a 10 year window.
Democrats employed many accounting tricks when they were pushing through the national health care legislation, the most egregious of which was to delay full implementation of the law until 2014, so it would appear cheaper under the CBO’s standard ten-year budget window and, at least on paper, meet Obama’s pledge that the legislation would cost "around $900 billion over 10 years." When the final CBO score came out before passage, critics noted that the true 10 year cost would be far higher than advertised once projections accounted for full implementation.
Today, the CBO released new projections from 2013 extending through 2022, and the results are as critics expected: the ten-year cost of the law’s core provisions to expand health insurance coverage has now ballooned to $1.76 trillion. That’s because we now have estimates for Obamacare’s first nine years of full implementation, rather than the mere six when it was signed into law. Only next year will we get a true ten-year cost estimate, if the law isn’t overturned by the Supreme Court or repealed by then. Given that in 2022, the last year available, the gross cost of the coverage expansions are $265 billion, we’re likely looking at about $2 trillion over the first decade, or more than double what Obama advertised.
“More than double”. We were flat lied too. We’re now stuck with another outrageously expensive entitlement program we can’t afford barring repeal or judicial overturn.
And yet, after the most deceitful, least transparent and most abusive legislative process I’ve ever seen used, you’re going to be asked to trust this guy with another 4 years at the helm.
In another “temperature of the electorate” poll, USA Today/Gallup have a swing state poll out that points to an issue that remains an advantage for Republicans: the repeal of ObamaCare.
The poll sampled the opinions of 1,137 likely voters in 12 swing states, states critical to a win in the upcoming election. The subject was ObamaCare:
In a USA TODAY/Gallup Poll of the nation’s dozen top battleground states, a clear majority of registered voters call the bill’s passage "a bad thing" and support its repeal if a Republican wins the White House in November. Two years after he signed the Patient Protection and Affordable Care Act— and as the Supreme Court prepares to hear arguments about its constitutionality next month — the president has failed to convince most Americans that it was the right thing to do.
You sort of have to root through the story to get an idea of the depth of the swing state voter’s resistance to the law, but it is significant:
Voters in swing states stand overwhelmingly on one side of the debate: Three of four voters, including a majority of Democrats and of liberals, say the law is unconstitutional.
Many try to paint this result as one of poor messaging on the part of the Obama Administration and Democrats. Of course that’s a favorite fallback position – its not the message, it’s how it has been delivered.
In fact, it is the message. The message is “we can mandate whatever we wish and your only choice is to do what you’re told to do.”
Americans, in general, naturally resist such a power grab. And that’s what you see in this poll.
Opposition to the law is eroding Obama’s support among the middle-of-the-road voters both nominees will court this fall. Among independents, 35% say the law makes them less likely to support Obama, more than double the 16% who say it makes them more likely.
The intensity of feeling among potential swing voters also favors opponents. Among independents who lean to the GOP, 54% say they are much less likely to support Obama as a result. Among independents who lean to the Democrats, 18% say they are much more likely to support him.
As we’ve noted any number of times, such as last night’s podcast, it is the “middle of the road” or “independents” are the key to victory. And they find the law very objectionable. It is also an issue likely to motivate these voters (see note about the “intensity of feeling”).
As we noted in last nights podcast, while the GOP is seen to be thrashing about right now, once a nominee is settled upon and the focus turns on Obama and his record, it is issues like this that the GOP must use to defeat him. It resonates (here’s a recent national poll on the subject). If they let the Democrats or the media set the agenda and deflect or redirect the debate to issues of no real importance in this election, but issues which are likely to hurt them among moderate voters, then they stand a chance to lose. If they allow that to happen, shame on them.
Obama finally has a record, and it is not a good one. ObamaCare and its repeal should be front and center of any issue oriented GOP campaign. It is a winner for them.
Or, as I recommend in my previous post, how do you make issues such as contraception relevant to the economy and point out its real cost?
Well, don’t forget, at base it is another government mandate. It is government deciding what private employers and insurers will cover and how they’ll cover it. It is obviously not “free” as they claim, but another in a long line of redistribution schemes cloaked in “good intentions” and the “common good”.
It is, in fact, just another straw on the back of the private insurance camel, the addition of which this administration hopes will eventually break its back and allow government to take over that role.
Having directed all insurance companies to provide it at “no cost” to their insured and falsely claiming to the public that they’re getting something for nothing, the administration takes a step toward that goal.
One major feature of the ACA [ObamaCare] is to put so many mandates on private insurance plans (abortion pills and contraception being just a couple of them) that it becomes increasingly difficult for employers to afford private health benefits for their employees.
As more and more employers have to dump private insurance, the idea is that people will demand a government replacement plan. Lurking in the back of the ACA is the public option, which will spring to life once enough people have lost their private insurance. (This can very well happen even if the Supreme Court declares the individual mandate unconstitutional.) Once it is activated, the public option will enroll more and more Americans until it effectively wipes private options off the table.
Socialized health care through the back door.
Precisely. There is more than one way to skin a cat. And that’s what is evident here. This is an alternative cat-skinning method.
The White House argues the new plan will save money for the health system.
"Covering contraception is cost neutral since it saves money by keeping women healthy and preventing spending on other health services," the White House said in a fact sheet.
"For example, there was no increase in premiums when contraception was added to the Federal Employees Health Benefit System and required of non-religious employers in Hawaii. One study found that covering contraception saved employees $97 per year, per employee."
But it isn’t cost neutral at all. And whatever an employee “saves” on the one hand, goes away plus some to cover the expense, because here’s reality:
[I]nsurers say there’s nothing "free" about preventing unwarranted pregnancies. They say the mandate also covers costly surgical sterilization procedures, and that in any case even the pill has up-front costs.
"Saying it’s revenue-neutral doesn’t mean it’s free and that you’re not paying for it," an industry source told The Hill.
Doctors still have to be paid to prescribe the pill, drugmakers and pharmacists have to be paid to provide it – and all that money has to come from insurance premiums, not future hypothetical savings, the source said.
And all of that cost is going to be paid for by those employees who are “saving” money in higher premiums – especially those 50 somethings who are no longer in the child bearing years and ‘saving’ nothing but paying for it anyway. By the way one of the ways to lower insurance cost is to do away with government mandates and let the insured choose what coverage they’d like to pay for. But government will have none of that. That would actually remove straws from the camel’s back.
Of course there are other free market approaches that would most likely be effective if government would allow them:
[P]arents who let their children become obese by feeding them irresponsibly should bear the financial cost of the extra health care that their children will require. This can, again, be done if private insurance companies are allowed to operate on the terms of free markets. Just like a smoker should have to pay a higher health insurance premium than a non-smoker, private insurance companies should be allowed to charge higher premiums of a family that eats themselves obese than of a family that eats responsibly and attends to their own health.
Find obesity to be a national problem? What’s the most effective way to fight it? Mandates and complicated and expensive government programs that only address the problem generally? Or making the obese pay for the consequences of their irresponsible behavior?
I know, how horribly anti-American – making people take responsibility for their actions (something the GOP claims to believe in) and pay their own costs. In the new America, apparently everyone has to pay, no one is held accountable and by the way, it “will be cheaper in the long run” if government does it.
The latter is the eternal promise of nanny government rarely if ever having come to fruition.
But, back to the title and the point – now if some want to add “and it’s against my religion”, fine, wonderful, great. That’s added impetus on top of the economic one to reject Obama’s argument. But it shouldn’t be the primary argument. Instead it should be an argument that voters add themselves among themselves. The broad economic argument about the real cost, not to mention the ideological argument against the growing social welfare state are extraordinarily powerful and appealing. If others want to add their own arguments in addition to this, fine and dandy.
That’s how you do it.
The editors of the Washington Examiner consider the probable effects of the new CAFE standards (being imposed by the EPA now instead of NHTSA) and ask a pertinent question:
Getting from the current 35 mpg CAFE standard to 54.5 can be achieved by such expedients as making air conditioning systems work more efficiently. We have a bridge in Brooklyn to sell to anybody who thinks that’s even remotely realistic. There is one primary method of increasing fuel economy — weight reduction. That in turn means automakers will have to use much more exotic materials, including especially the petroleum-processing byproduct known as “plastic.” But using more plastic will make it much more difficult to satisfy current federal safety standards. The bottom-line will be much more expensive vehicles and dramatically fewer kinds of vehicles.
Total costs, as calculated by the EPA, will exceed $157 billion, making this by far the most expensive CAFE rule ever. For comparison, the previous rule in 2010 cost $51 billion, according to the EPA. But the EPA doesn’t include this fact in its calculation: Annual U.S. car sales are 14-16 million units, yet over time, this rule will remove the equivalent of half a year’s worth of buyers. Will that be when the EPA takes a cue from Obamacare and issues an individual mandate that we all must buy Chevy Volts?
I’m just curious, for those who support the individual mandate dictated by Obamacare, what is the argument that such an electric car mandate isn’t possible? If the federal government can force us to purchase insurance from the companies it allows to offer the product based on the idea that health care is a national issue, how is promoting cleaner air and more energy security not the same thing? Indeed, it would seem that the arguments are even stronger for forcing everyone to buy electric cars if furthering the “common good” is the only real restriction on federal power.
So what is the difference from a legal, constitutional standpoint? Is there one?
As we stand by and wait for the ObamaCare law to take effect, enthusiasm within the medical profession seems to be waning (even more) as that time nears:
In late December, a survey of 501 physicians was released by the Deloitte Center for Health Solutions research group, whose parent company serves clients in the health care industry. Nearly half (48%) expected health reform to hurt their incomes this year, while 73% said it would not reduce costs.
Though this isn’t a scientific survey, and other such surveys have and will show physicians’ support for the Affordable Care Act, the early glimpse of the law’s potential impact will likely lead to economic pain for doctors and a diminished system for their patients. Indeed, the Deloitte survey found that 69% of the physicians are "pessimistic about the future of medicine" because of the law.
It may not be scientific, but it certainly seems indicative of attitudes in the medical profession. I mentioned one example of what was shaping this sort of an opinion in an earlier post.
Here’s another little factoid one might find interesting that tells a bit of a story too:
An online survey in September by the Jackson & Coker physician recruitment firm — based on 1,611 doctors who chose to respond — reflected that the majority of doctors don’t believe that the AMA represents their views. The primary reason: the AMA’s support of the legislation. Just 13% of those surveyed backed the Affordable Care Act.
As you recall, the American Medical Association came out in favor of the law.
There’s an unintended consequence from all of this (some would argue it’s intended):
The Association of American Medical Colleges estimates that the USA will be 160,000 physicians short by 2025 (when all patients would be insured under ObamaCare), and this is without even considering those doctors who will limit their practice to insured patients because of decreasing reimbursements or who retire early when faced with increasing costs with little return.
Of course the reason to mention that perhaps the consequences are intended is to point out that this still isn’t the single payer system that those who passed the legislation preferred.
So one has to wonder, how does an ideologue take the lemon of ObamaCare and make it into the socialist lemonade of a government run single-payer system. Well what exists in the form of ObamaCare is certainly a good step one, isn’t it?
It will be so unsatisfactory that one supposes there will be a terrible outcry. With fewer health care workers, care will get worse, not better (to my knowledge the population of the country is still expanding, not contracting). That’s a simple fact that is irrefutable.
Depending on who is in power in DC, government will present itself as the savior to this awful “market failure”. And the usual suspects will dutifully echo and expand on how the market has again let us all down. The result of this will be the final elimination of private insurance as an option for most and the expansion of government control in the guise of the left’s much desired single-payer system
Of course, to make that work, the conscription of all health care workers as government employees.
That scenario isn’t as far fetched as some would like to believe or contend. Obviously, the court fight that’s going on right now will have some say in how or if the scenario develops that way. However, assuming the law is upheld for the sake of argument, and having observed the way the political world works for decades, I think the scenario is quite plausible.
And of course, single payer will be a disaster. Why? Because as Medicare continually proves, bureaucrats think they know more than doctors and certainly more than patients.
There is widespread support, in Congress and among economists, for the broad ideal that Medicare would save money if it paid for better outcomes instead of more procedures. But 20 years of trying to shift the program in that direction have yielded little to no progress, CBO said Wednesday.
CBO analyzed six programs designed to improve care coordination for patients with chronic diseases. They either made no difference or were actually more expensive than the traditional payment system.
That’s because, as noted in the link I cited earlier to the previous post, the bureaucrats refuse to revise their system of payment based on what would best serve the patient. And it isn’t a far stretch to believe the same system would be extant in any single-payer plan. Politicians and economists come and go, but bureaucracies live forever.
So the bomb sits out there ticking away. If it is allowed to explode, it will destroy health care as we know it today and most likely impose an even more debilitated form of Medicare on all. Yes, most seniors say they like Medicare – do they have a choice? Would they like to see an even less capable form of it exist? Just ask them.
In the meantime remember – Freedom equals choice. Whenever choices are limited so is your liberty. When government gets in the business of limiting your choices it is no longer in the business of ensuring your liberty. And limiting your choices in all sorts of areas, to include health care, is exactly the business our government is in today.
Another, in a long line of reasons, to retire the current occupant of the White House in November.
ObamaCare, as mentioned in a previous post, gets its Constitutional review by the Supreme Court today. CATO’s Ilya Shapiro lays out the agenda:
This morning, as expected, the Supreme Court agreed to take up Obamacare. What was unexpected — and unprecedented in modern times — is that it set aside five-and-a-half hours for the argument. Here are the issues the Court will decide:
- Whether Congress has the power to enact the individual mandate. – 2 hours
- Whether the challenge to the individual mandate is barred by the Anti-Injunction Act. – 1 hour
- Whether and to what extent the individual mandate, if unconstitutional, is severable from the rest of the Act. – 90 minutes
- Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour
Those are critical questions. They tend to define in four points, how threatened our rights are by this awful legislation. Forget what it is about, consider to what level it intrudes and what, if found Constitutional, it portends.
If found Constitutional, you can take the actual Constitution, the one that no fair reading gives an inkling of support to such nonsense as ObamaCare, and cut it up for toilet paper. It will be, officially, dead.
A decision that supports those 4 points (or even some of them) means the end of federalism and the final establishment of an all powerful national government which can (and will) run your life just about any way it wishes. If it has the power to enact a mandate such as that called for in ObamaCare, it can mandate just about anything it wishes. And, if the new conditions on all federal Medicaid funding stand, the states have no grounds to resist or refuse other federal intrusion.
In any event, the Supreme Court has now set the stage for the most significant case since Roe v. Wade. Indeed, this litigation implicates the future of the Republic as Roe never did. On both the individual-mandate and Medicaid-coercion issues, the Court will decide whether the Constitution’s structure — federalism and enumeration of powers — is judicially enforceable or whether Congress is the sole judge of its own authority. In other words, do we have a government of laws or men?
If you’re devoted to freedom and liberty and opposed to intrusive and coercive government, you know how you want this to come out.
And it isn’t to the advantage of ObamaCare.