The Mandate is No Big Deal. Defeating it Would Have Been

I keep reading that requiring us to do something, as opposed to requiring us to not do something, is a new step, and conservatives are sounding alarms all over the internet that freedom died as a result of the Supreme Court upholding the health care mandate, and that we’ve crossed a line into government mandated oblivion. But the health care mandate is not the first mandate. Several months ago the story of George Washington’s gun mandate was making the rounds. Other examples are in a discussion about the draft, posted by Greg Sargent, and in a post in Daily Kos about a railway case, which quotes NLRB v. Jones & Laughlin Steel (1937):

The decree which we affirmed in that case required the railway company to treat with the representative chosen by the employees and also to refrain from entering into collective labor agreements with any one other than their true representative as ascertained in accordance with the provisions of the act.

In other words, the railway company was required to do something, and face penalties for not doing it.

With all of the power that the federal government already has, much gained with the support of right wing ideologues, the idea that this power to enforce a mandate represents a bold new step seems petty and hypocritical. The court didn’t grant any new power, it affirmed power that already exists and refused to carve out a special exception. It should have affirmed this power under the commerce clause, as argued by the administration. As a Kos commenter noted, referencing Gonzales v. Raich:

Growing pot on your patio to smoke yourself is clearly interstate commerce, but a central issue facing any effort to reform a sector that occupies 18% of our economy, well that’s just going too far.

But instead, the Supreme Court affirmed the power as falling under the power to tax. Either way, the power was there.

If freedom died, it died long before the Affordable Care Act. It was dead on or before 1942, when Roscoe Filburn was told that he couldn’t grow his own wheat for his own use because doing so interfered with interstate commerce. So don’t blame Obama.

Abuses of eminent domain and laws against personal use of home-grown medicine are examples of overreaching government that I’m all for rolling back, along with all of the Monsanto and factory-meat friendly laws which make it almost impossible for a small farmer to legally sell his product. But I don’t want to go back to the days before equal rights, national fire codes, child labor laws and environmental protection.

Unlike eminent domain abuses, invasive drug laws, and overregulation of home-made produce and meat, the Affordable Care Act won’t prevent us from doing things that we’re free to do. There are plenty of examples of over-regulation and abuses of federal power. But we didn’t suddenly become unfree last Thursday and we didn’t cross a line into new territory.

There are plenty of ways for Americans to become freer. Allowing health care companies to keep increasing the cost of health care isn’t one of them.

Reasonably be Characterized

My wife and I raise animals for meat. We occasionally grow fond of a certain animal and decide not to eat it. That animal can “Reasonably be Characterized” as a pet, because certain rules of pets apply to it. But other rules don’t apply, and therefore we don’t consider it a pet. And I’m not a big liar when I tell you that it isn’t.
Sow and Piglets

Talking About Impeachment

Assuming Justice Scalia’s new opinion about Wickard vs Filburn is what it appears to be, which is a convenient lie to explain why he is more loyal to ideology than to his own constitutional interpretations, then he should be impeached. He won’t be, of course, but as Nathan Newman points out

Talking about impeachment, however, is a way to label this right-wing Court majority as the partisan tool of corporate right-wing interests that it has become.

That the constitutional question about the health care mandate is nothing but a partisan, political, attack on the President is belied by the fact that ideologues who are leading the attack once supported such a mandate. That Justice Scalia plans to go along with the ruse appears to be indicated by timely reversal of opinion about a Supreme Court case which he once supported.

We can’t read Scalia’s mind to determine if he’s shaping his beliefs to support an agenda, but we can look at the evidence. While agreeing with Wickard vs. Filburn should coincide with support for the Affordable Care Act, proclaiming Wickard a mistake isn’t necessarily preparation for declaring ACA unconstitutional. And if Scalia ends up supporting ACA, it would be pretty strong evidence that his change of heart about Wickard was genuine.

But if Justice Scalia votes down ACA, despite his previous opinion which lays groundwork for supporting it, than it would appear that he is willing to flip on his beliefs in order to support political goals. That would not be good behavior for a Supreme Court justice, and would be reason to bring up the conversation about impeachment.

Talking about impeachment now will likely have no immediate effect, but it may reduce political influence on the Court in the future.

The President’s Warning

It’s been almost a week and I keep reading about the president’s unprecedented warning to the Supreme Court.

Copied from Real Clear Politics, here’s what the president said in response to a question about health care and the Supreme Court:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important — because I watched some of the commentary last week — to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that’s already in place has already given 2.5 million young people health care that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don’t have to worry about their children not being able to get health care because they can’t be prevented from getting health care as a consequence of a preexisting condition. That’s part of this law.

Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that’s just the part that’s already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.

And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

I’ve read this a few times but I keep missing the big warning.

Of course a warning can be implied, like a boss telling an employee, “I’m confident you’re not going to use the company car for personal business”. But unlike the boss and his employee, Obama can’t fire the Supreme Court. He can’t get Congress to fire them and can’t get the American People to fire them. There is nobody in the world with better job security than a Supreme Court justice, and few who are as unaccountable for their decisions.

So I can’t figure out what hundreds of Right wing politicians, reporters, pundits, and bloggers have in their heads whey they accuse President Obama of “warning” or “trying to intimidate” the Supreme Court.

The president’s words are not unprecedented either. As the Daily Beast aptly points out:

In words echoed by Obama this week, Reagan reminded Americans that “in our democracy, it is the elected representatives of the people, not unelected judges, who make laws.” And Reagan warned what would happen if justices ignored that civics lesson: “If that happens,” he said, “the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.”

In those quotes, President Reagan was not referring to a specific ruling, but those words were still as much a description of the president’s expectations as Obama’s were.

President Obama did, by the way, correct his mistake about the precedence of the Supreme Court overturning congressional law, and explained that he was referring to laws concerning the commerce clause. Without that modification, the suggestion was absurd.

But despite that slip, there’s nothing unprecedented about a president stating how he expects the Supreme Court should act. His words were mild compared to some of those before him, and all this nonsense about the president’s warning is another dishonest effort to invent nefarious meanings hidden behind the president’s actual words.

Reason: Yes, Mitt Romney Flip-Flopped on the Mandate

Reason.com makes a strong case that Mitt Romney did, in fact, advocate for health care reforms on a federal level. Mitt Romney Central disputes that claim, citing a 2009 Newsweek Op-Ed in which Mr. Romney wrote:

Center reforms at the state level. Open the door to state plans designed to meet the various needs of their citizens. Before imposing a one-size-fits-all federal program, let the states serve as “the laboratories of democracy.”

But after reading the back and fourth between Mitt Romney Central and those who accuse Mitt Romney of flip-flopping, I’ve concluded that while Mr. Romney would allow more flexibility to the states in administering the program, on top of it all would be a federal policy which either rewards citizens for purchasing insurance or penalizes them for not doing so. Even in the rebuttal on Romney Central, Ben Collins quotes Mitt Romney:

For the uninsured who can afford insurance but expect to be given free care at the hospital, require them to either pay for their own care or buy insurance; if they do neither, they would forgo the tax credit or lose a deduction. No more “free riders.”

and states:

What Romney is saying is that those who don’t purchase health insurance lose the opportunity to gain a “tax credit” or “deduction.”

Romney is not advocating a “mandate” of the type Obama used where people are fined for not purchasing insurance, and Romney is certainly not advocating a FEDERAL mandate of any kind

My problems with Mr. Collins’s argument are that it’s a false distinction between causing those who don’t purchase health insurance to “loose an opportunity to gain a ‘tax credit'” and penalizing them with a fine, it’s a dishonest use of semantics to call financial incentives to coerce people to purchase health insurance something other than a “mandate”, and imposing such a mandate is a use of congressional power even if administering that imposition is delegated to the states.

Even NRO’s Andrew McCarthy, a kinder, gentler hatemonger who usually writes about why Muslims can never be trusted, delved into this issue and admitted that “health-care extortion, by the way, is not Obama’s doing”. He only accuses President Obama of “fast-forwarding to the next logical steps.”

But the health care mandate is not a “fast forward”. It’s what’s required in order to make health care accessible to all Americans, other than a single payer system.

Trolling about Health Care at NRO

Trolling at the NRO is frustrating because it takes so long for comments to appear. On the other hand, I should admit that I was wrong In an earlier post when I suggested that my comments would be replied to by excessively nasty and low-class remarks.

Charles Krauthammer wrote a post about the Affordable Care Act in which he begins re-telling the easily and repeatedly debunked lie about the 1.76 trillion cost estimate from the CBO. Then he gives the old slippery slope warning, suggesting that if the Supreme Court approves Obamacare, there won’t be any limits on federal power. Finally, he writes about Catholic organizations being forced to pay for contraception, which they’re not actually being forced to do, as an unprecedented denial of religious freedom, when actually it’s tame compared to oppression that the Supreme Court has approved of in the past.

I wrote a reply, but it probably won’t appear until tonight or tomorrow.

The 1.76 trillion figure is part of a calculation that has been taken out of context from a report (pdf) in which it’s very clearly not being used as a final estimate. One conservative lied about it and it spread through the internet at an amazing clip. Mr. Krauthammer undercut his usual low standards by repeating a lie that not only has been debunked by multiple organizations, is pretty easy for anyone to debunk on their own. The report isn’t too hard to read. The report actually says, on the first page, that the CBO’s new estimate is lower than previous estimates for the same period of time. But when not using the same time period, which is what happens each year when the CBO produces it’s ten-year projections, the cost will rise as more of the ACA is implemented. This is a well known fact but Mr. Krauthammer sounds the alarm as if he’s just uncovered a secret plot. But 1.76 trillion is false even with the new, increased estimate.

The health care mandate is in keeping with current powers of the federal government. A commenter on National Review suggested that if Obamacare passes then everyone over 18 should be mandated to purchase a gun. I don’t know if the commenter is aware that a similar mandate was passed during the presidency of George Washington. Washington’s mandate was never challenged in the Supreme Court but 1942, the Supreme Court ruled that the federal government can use the commerce clause to put limits on wheat production even if the production is for private use. More recently, the court overrode state law by outlawing marijuana for medicinal purposes, and Justice Antonin Scalia supported the power of the commerce clause in that case. Charles Krauthammer wants to know, if the mandate passes, is there anything the commerce clause doesn’t allow the federal government to do? George Washington’s mandate was never challenged and the two cases I just mentioned are far more overreaching than the health care mandate, so whatever the federal government can and can’t do now, it won’t change with approval of the health care mandate.

The recent accommodation for Catholic institutions means that those institutions will not directly pay for contraception. If it’s unconstitutional for Catholic organizations to be forced to pay indirectly for something they don’t believe in, than all taxes are unconstitutional because they may be used indirectly to pay for things that citizens don’t agree with, such as war, subsidies for farms which produce pork, and even Medicare, since some people don’t believe in medicine.

Mr. Krauthammer writes,

Today, it’s the Catholic Church whose free-exercise powers are under assault from this cascade of diktats sanctioned by — indeed required by — Obamacare. Tomorrow it will be the turn of other institutions of civil society that dare stand between unfettered state and atomized citizen.

But the federal government has a long history of trampling over religious beliefs when doing so supports a national agenda. One good example, also supported by conservative Justice Scalia, is the religious use of controlled substances, which the Supreme Court has determined can be disallowed. Mr. Krauthammer has access to high level archival databases. Surely has access to wikipedia.

Conservatives, including Mitt Romney, New Gingrich, and the leadership of the Heritage Foundation all supported the individual mandate before defeating the mandate became something that could used to damage the Democratic party. That’s another inconvenient fact that Mr. Krauthammer has to ignore in order to paint Democrats as Socialists for their support of Obamacare.

A nobody like I can be forgiven for acting like a passive element and mindlessly repeating lies that are bouncing around the internet. Someone with Mr. Krauthammer’s resources should know better.

Precedent vs Ideology will be important in the Health Care Decision

From TPM:

Since [ the new deal era ], the high court has overwhelmingly supported congressional authority to make economic regulations — from the 1942 Wickard v. Filburn case, which upheld laws restricting wheat production for personal consumption, to the 2005 Gonzalez v. Raich ruling, which decreed (with the help of Scalia and Kennedy) that Congress may override state laws permitting medical marijuana patients to grow cannabis for personal use. The administration will argue that both laws reflected broad exercises of Congress’s power on the scale of mandating insurance coverage.

But..

Despite the favorable precedents, progressives have a nagging fear that the five Republican-appointed justices will hand down a partisan decision on the scale of Bush v. Gore, to deliver a blow to President Obama. After that unprecedented 2000 ruling, some liberals take little comfort in scholars’ view that political pressure doesn’t usually carry the day in the chamber, that the high court’s longstanding tendency is to make gradual, not radical, shifts in jurisprudence on core Constitutional questions.

A Supreme Court decision in favor of the health care mandate would reflect a century of precedent. A decision against it would reflect the same philosophy that resulted in the 2000 decision to stop Florida from recounting its own votes, which is that federal power over states’ rights can only be used to enforce conservative ideology.

US Supreme Court