In a recent post, I suggested that Obamacare will be almost impossible to repeal through political action. History shows that it is extremely difficult to eliminate entitlements. In addition, repeal would require Republican congressional majorities and a Republican president; I doubt we will get both simultaneously for years to come. Although various state governments and conservative and libertarian activists are planning to file legal challenges to the bill, I also doubt that lawsuits alone can achieve that goal. The Supreme Court is reluctant to take on the political branches of government on major issues that are a high priority for Congress and the president. When it has done so in the past (as in the 1930s), it has usually lost.
But while neither legal nor political action is likely succeed by itself, a two-track strategy combining the two stands a better chance. Unlike most high-profile policy initiatives enacted with strong presidential and congressional support, Obamacare is generally unpopular. Polls show substantial opposition to it, with opponents outnumbering supporters by 10 to 20 points (see here and here). If majority opinion continues to oppose the bill and Republicans make big gains in November as a result, the courts might be less hesitant to strike it down. They will not face any political retribution if they strike down a bill that most of the public and a new congressional majority actually opposes. Indeed, their public standing might even increase if they did so. As co-blogger Randy Barnett puts it:
[I]f this legislation is popular, they are unlikely to strike it down. But if it is deeply unpopular, and one or both houses of Congress flip parties as a result, then the legislation is much more vulnerable. Assuming the Supreme Court follows the election returns, as “realists” claim.
We should also remember that litigation is likely to center on the bill’s mandate requiring individuals to purchase health insurance even if they prefer not to. This is one of the least popular elements of the bill, a fact that would give the courts further political cover. Eliminating the individual mandate might eventually destabilize other parts of the bill. Without the mandate, insurance companies might start lobbying for repeal of other elements of the plan (since the bill would no longer be a huge bonanza that gives them many additional customers). If the ban on excluding coverage of preexisting conditions is maintained, the elimination of the mandate would incentivize citizens to wait until they get sick to purchase insurance. It’s unlikely that such a system could persist for long.
In my view, the individual mandate is unconstitutional because it exceeds Congress’ powers under both the Commerce Clause and the Tax and Spending Clauses. I believe that courts should strike it down regardless of the political situation.
As a practical reality, however, courts are unlikely to strike down major legislation if doing so will produce a massive backlash from the other branches of government. Thus, a strong political effort is probably necessary for litigation to succeed. Such two-track efforts have a long history. For example, The NAACP coupled its litigation strategy against segregation with a longterm political effort designed to win greater support for racial equality among white voters. Brown v. Board and later decisions could never have happened without complementary political changes.
Even a successful political strategy doesn’t necessarily guarantee victory in court. The conservative majority on the Supreme Court is a narrow one (5-4), and it’s certainly possible that one or more conservative justices will refuse to strike down the individual mandate even if the political winds are favorable. And the political battle itself will be far from easy. It’s likely that voters will take a more favorable view of the Obama administration and its policies as the economy begins to improve over the next several years.
If I had to guess, I would say that Obamacare is more likely to survive than not, for reasons I summarized here. But a two-track strategy that combines litigation with political action has a much better chance of success than either taken alone.
orca says:
The cognitive dissonance set off by the American Right openly lobbying an activist court to strike down legislation they don’t care for might be too much for their less sophisticated supporters.
March 22, 2010, 7:15 pmSyd Henderson says:
I wouldn’t count on the opponents still holding that margin now that it’s been enacted. And some of that opposition is from people who wanted it to go farther than it does.
March 22, 2010, 7:17 pmSomwhat misleading says:
It’s worth noting that it’s somewhat misleading to look at polls about whether the public supports the current plan, since at least a chunk of that opposition is because current reform is not “liberal” enough. See, e.g., here.
Republicans have been favored to win back many seats in the house for a long time because of the sorry state of the economy. Thus, while I’m sure some people will argue this November that the republicans took back seats “because of health care reform,” that will be a dishonest argument, unless there is polling that actually supports such a position. See here.
March 22, 2010, 7:19 pmIlya Somin says:
I wouldn’t count on the opponents still holding that margin now that it’s been enacted. And some of that opposition is from people who wanted it to go farther than it does.
We’ll see. Enacting an unpopular bill doesn’t necessarily make it more popular. If anything, it might in the short run make it less so. As for those opposed because they wanted it to go further, presumably they felt it’s failure to go further made it worse than nothing (otherwise, they would have supported it despite its supposed flaws). If so, they might not object to its repeal, or at least not care very much if it is.
March 22, 2010, 7:20 pmMark Field says:
And here I thought that “elections have consequences” and that it’s wrong for judges to intervene in the political process.
Kerr’s Law reigns supreme.
By the way, the CNN poll you cited showed that 13% of the respondents opposed the bill because it wasn’t liberal enough. When considering the chances of Republican success in November, you need to add those in to the “favor” category, which brings it to 52%. That’s not nearly so favorable an environment for Republicans as you suggest.
In any case, I doubt the issue will play much of a role in November, except to motivate the Republican base. The economy is now and nearly always will be the chief determinant.
March 22, 2010, 7:22 pmIlya Somin says:
The cognitive dissonance set off by the American Right openly lobbying an activist court to strike down legislation they don’t care for might be too much for their less sophisticated supporters.
We’ll see. As I explained in this post, few serious commentators on “the Right” have ever claimed that the Court should simply let Congress do whatever it wants. As a practical matter, few if any conservatives (even the “less sophisticated ones”) will object to the invalidation of a law that nearly all on the right consider to be both deplorable and unconstitutional.
Speaking for myself alone, I don’t feel any “cognitive dissonance” on this, since I have long argued that the Court should take a more aggressive role in enforcing constitutional limits on federal power, and have done so with respect to both Republican and Democratic policies.
March 22, 2010, 7:25 pmbyomtov says:
I think support will increase, if only because, as I understand it, the death panels are going to be much harder on opponents of the legislation than on supporters.
March 22, 2010, 7:27 pmDavid Schwartz says:
Mark Field: There’s no way to know which way to count those who oppose the bill because it’s not liberal enough. Why would they support those who voted for a bill they oppose? It’s just as likely that they would decide that neither party is going to do what they want on health care and vote with other issues. (Remember, these are folks who think this bill, pushed by the Democrats, is a *bad* thing. Not just that it doesn’t go far enough.)
March 22, 2010, 7:28 pmcorneille1640 says:
I wonder how much the delay in implementation of the major parts of the bill will play into the political dynamic here. The bad (and good, if any) effects of the mandate won’t be felt directly by most people until c. 2014 or so, while some provisions, like the ban on pre-existing conditions for children, begin quite soon, and opponents can be labeled, disingenuously or no, as wanting to destroy the health of children.
I think the economy is the driving force here. If it improves dramatically by Novemeber (probably won’t), the Democrats will lose fewer seats; if it continues to stagnate or get worse, they will lose more….health insurance reform being only one of many reasons to vote against (or for) Democrats.
March 22, 2010, 7:37 pmCornellian says:
Could Republicans possibly turn to the courts to pursue policies they can’t get through the elected branches? Say it isn’t so.
March 22, 2010, 7:38 pmElliot says:
While it is hard to repeal entitlements, we have to remember there will be relatively few of those entitlements implemented by the 2010 and 2012 elections.
We’re dealing with potential future entitlements, not existing entitlements like we see in SS or medicare. Does history provide a guide in this case?
March 22, 2010, 7:40 pmFiftycal says:
Congress will not repeal the healthcare rationing bill until at least 2012. But what happens if 2/3rds of the state legislatures pass a Constitutional amendment and that amendment is ratified by 3/4ths of the states? I believe there are 37 states that are already going to sue to stop the bill. Anyone care to comment?
March 22, 2010, 7:40 pmMark Field says:
I agree with you that they’ll vote on other issues (that’s what I meant by my paragraph about the economy). I think, though, it’s unlikely that someone who criticizes the bill as not liberal enough will support Republican candidates. See Nate Silver’s similar analysis here.
March 22, 2010, 7:41 pmDougInSanDiego says:
It occurs to me your analysis may be missing the point, though i find it interesting.
An example: Homosexuals account for a scant 2.3% of the adult male population (Lesbians even less; see http://www.cdc.gov/nchs/data/ad/ad362.pdf” ). Yet, they seem to hold sway over much of the political process at both the federal, state and local level. I believe this is because they tend to block vote, regardless of other issues, and work hard to convince/coerce others into support.
Those opposing the Mother-Of-All-Bills have not, historically, been “together” in this way. At least at the moment this seems to be changing. I recall the town hall meetings of last summer in which angry voices abounded in spite of the scorn and ridicule heaped on them by Pelosi, Obama, et al.
If 10%, or 20%, or – God forbid! – 30 or more percent block vote, I doubt ANYTHING could withstand the numbers.
March 22, 2010, 7:42 pmDougInSanDiego says:
It just might be that the GOPers are learning the reality of the political landscape and will begin to thug fight as does their opponents. THAT would be a very ironic result of the Mother-Of-All-Bills!
Reminds me of the Prop 8 trial – and the likely appeal – and the possible overturn by the uber-liberal 9th simply so SCOTUS cannot get their collective hands on the case and implement a nationwide-Prop-8.
March 22, 2010, 7:46 pmDougInSanDiego says:
“Exempted From Obamacare: Senior Staff Who Wrote the Bill
by Ben Domenech
For as long as the political fight took over the past year, the abbreviated review process on the health care legislation currently pending on President Obama’s desk is unquestionably going to result in some surprises — as happens with any piece of mashed-up legislation — both for the congressmen who voted for it and for the American people.
One such surprise is found on page 158 of the legislation, which appears to create a carveout for senior staff members in the leadership offices and on congressional committees, essentially exempting those senior Democrat staffers who wrote the bill from being forced to purchase health care plans in the same way as other Americans.
A major story during the course of the health care debate was whether members of Congress would commit to placing themselves in the same health care exchanges as average citizens, or whether they would hang on to their government plans — that’s why leadership chose to add this portion to the bill, serving as a guarantee that members would participate in the same health plans as the people. Here’s the relevant text:
(D) MEMBERS OF CONGRESS IN THE EXCHANGE-
(i) REQUIREMENT- Notwithstanding any other provision of law, after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are–
(I) created under this Act (or an amendment made by this Act); or
(II) offered through an Exchange established under this Act (or an amendment made by this Act).
But as with a lot of legislative matters, the devil is in the details — or in this case, the definitions. As anyone who’s worked on Capitol Hill knows, the personal office staff for a member is governed by different rules than those who work on committees and in the leadership offices. It appears from the way this language is written that those staffers NOT in personal offices, such as those working and paid under the committee structure (such as those working for Chairman Henry Waxman) or those working on leadership staff (such as those working for Speaker Nancy Pelosi) would be exempt from these requirements (emphasis added).
(ii) DEFINITIONS- In this section:
(I) MEMBER OF CONGRESS- The term `Member of Congress’ means any member of the House of Representatives or the Senate.
(II) CONGRESSIONAL STAFF- The term `congressional staff’ means all full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.
According to the Congressional Research Service, this definition of staff will only apply to those staffers employed within a member’s “personal office” — meaning that it will absolutely not apply to committee staff members, and may not apply to leadership staff.
This problem was acknowledged earlier in the process — last year, Senator Grassley tried to repair it, but he was rebuffed.
As Speaker Pelosi said a few weeks ago, it’s only after this legislation is passed that we’ll truly find out what’s in it.”
http://newledger.com/2010/03/exempted-from-obamacare-senior-staff-who-wrote-the-bill/
March 22, 2010, 7:48 pmArthur Kirkland says:
Most Americans can hope that Republicans bring to a multi-front assault on health care reform the same levels of strategy, preparation and execution conservatives directed toward Iraq and Afghanistan.
(It’s probably too much, however, to expect that they will get the Public Law number wrong and attack a bridge-naming bill, or funding for an Everglades research program.)
At a more serious level, the country would be better off had Republicans helped enact health care reform (because Democrats do not possess a monopoly on insight or ideas) instead of reflexively opposing it. I hope Republicans contribute to the transition from enactment to arrangement and implementation of the new health care system.
March 22, 2010, 7:52 pmbyomtov says:
But what happens if 2/3rds of the state legislatures pass a Constitutional amendment and that amendment is ratified by 3/4ths of the states? I believe there are 37 states that are already going to sue to stop the bill. Anyone care to comment?
If that happens the amendment will become law. I don’t know if 37 states are ready to sue or not. Do you have evidence for this? And remember that having a posturing AG doesn’t mean the legislature is going to vote as you hope.
March 22, 2010, 7:55 pmMike O says:
Strongly agreed.
The Constitution is clear and concise concerning the limits on Congressional power. Political “skittishness” (I had a stronger word in mind) by the court is no excuse for not enforcing constitutional limits. Bad legislation that usurps the rights of free citizens – and virtually guarantees more of the same – is not made better because the weak-minded like it. If the constitutional limits on Congressional power are to be expanded, then let it be accomplished legitimately via constitutional amendment.
March 22, 2010, 7:56 pmDougInSanDiego says:
True. But the time when this COULD have happened was during the 8-years of Bush Jr. That was a time when war proved a significant distraction, and a time when the GOP elected to become clones of the big-government party.
I doubt “the republicans” will be able to mount such an attack – for the reasons you mentioned.
However – there are a heap of actual citizens of the country that are all abuzz. THAT might end up being a block of voters that politicians would be foolish to ignore.
March 22, 2010, 7:57 pmJust Dropping By says:
They’ve been driven to it by those damned activist legislators!
March 22, 2010, 7:58 pmorca says:
Okay, that’s about 20% of voters.
I’d say the Republicans are at their maximum support now and any move (like suddenly endorsing judicial activism) will cost them more voters than they gain.
March 22, 2010, 7:58 pmNunzio says:
Do most people think the government, any government, should be able to require its citizens to buy something they don’t want to buy?
Perhaps next we will all have to buy a Chevy Volt to make cap and trade more effective
March 22, 2010, 8:02 pmMike O says:
Actually the GOP is being directed to bring constitutional challenges to eliminate legislation that should not have been enacted in the first place. That is markedly different than the leftist habit of legislating from the bench.
March 22, 2010, 8:06 pmorca says:
Haha, yeah, right.
Just like the record number of filibusters the Republicans have tried this session aren’t really filibusters because the Republicans are against filibusters.
March 22, 2010, 8:12 pmArthur Kirkland says:
If Republican politicians and supporters lost their footing on health care reform because of their missteps concerning Iraq, it’s about time they (rather than soldiers’ families, or unfortunate Iraqi civilians, or innocent detainees) paid a price for those mistakes.
March 22, 2010, 8:13 pmPetty Like a God says:
Both sides legislate from the bench. Have you heard of the “14-Day Clause” of the Constitution? http://volokh.com/2010/02/25/does-the-constitution-have-a-14-day-clause-a-comment-on-maryland-v-shatzer/
The left is just more honest about doing it.
You may feel that legislating from the bench is ALWAYS bad. That’s a fine intellectual position to espouse.
But saying one side does it and the other side is innocent of it . . . not quite true.
March 22, 2010, 8:16 pmChrisIowa says:
The Constitutional provision is for 2/3 of the states to petition for a Constitutional Convention, not to pass a particular amendment. If 2/3 of the States petition for a Constitutional Convention, the Congress is supposed to call the Convention, setting forth those messy details about how many delegates, when they meet, and how they are chosen. The Congress can also decline to call for such a convention if they are willing to put up with the political heat.
The states do not have a mechanism to call for a particular amendment except through the elected representatives in Congress.
March 22, 2010, 8:18 pmMike S. says:
I am not in favor of the bill; the Democrats surprised me by doing something had had previously thought impossible, namely, how to make our health care system even worse. Nonetheless, I have to say that the Republicans will have to change their tone quickly to get my support in November. Their response strikes me as almost completely unhinged. It is one thing to point out that the bill raises demand without increasing supply or imposing any regulations that cut costs (just the opposite, it imposes regulations that add costs), and so is likely to add to the inflation of medical prices that is wrecking the economy and bankrupting government at all levels. It is another thing entirely to be calling this the beginning of Stalinist tyranny. You can’t say things like that an expect to be taken seriously.
March 22, 2010, 8:20 pmscattergood says:
One thing to remember about repealing an ‘entitlement’ is that for SS and Medicare the Repbulicans took 10-15 years to retake Congress and thus these policies had become active parts of the government and society. If however the Republicans retake parts of Congress in 2010 and 2012, before major parts of Obamacare comes into force, I think we are facing a very different situation.
This will be especially true if we the economy doesn’t improve over that timeframe, as the argument will be both political and economic.
March 22, 2010, 8:23 pmPetty Like a God says:
My two cents: There are plenty of people out there who are philosophically opposed to the expansion of government as will take place under this bill.
At the same time, people like entitlements. If this bill lowers the quality of life of your average American, and the lowering can be clearly tied to the bill, people won’t like the bill.
But if bill raises the quality of life of Joe Six Pack . . . he’ll be able to overlook whatever philosophical opposition he may have had to it.
As a distinct but related comment: Imagine a politician campaigning on a platform of Do Away With Medicare. It’d be political suicide.
March 22, 2010, 8:24 pmDougInSanDiego says:
OK
Perhaps you are suggesting we have them drawn and quartered?
March 22, 2010, 8:25 pmMike O says:
“Democrats have successfully filibustered 10 of the 45 circuit court nominations by President Bush that have made it to the Senate floor. That’s more than 20 percent. It is a campaign that has been as unprecedented as it has been outrageous.”
http://www.washingtontimes.com/news/2004/dec/28/20041228-090340-4897r/
Hypocrisy by the Democrats is just as unbecoming as that from Republicans. I’m neither. I’m a conservative/independent. You can continue to view this as my team/your team and Americans will continue to pay for such foolishness while the politicians continue to profit.
March 22, 2010, 8:26 pmDougInSanDiego says:
Sounds reasonable.
Some pure conjecture:
If anyone experiences a betterment in their quality of life from this Mother-Of-All-Bills, it is likely to be those in lesser income brackets. These folks tend to be captives of the Democrats.
If that’s true, no one opposed to the MOAB will ‘become’ happy because of it. That would imply that opposition would not decrease.
March 22, 2010, 8:29 pmorca says:
…who just happens to vote straight ticket Republican every single election.
I guess the problem with Republican hypocrisy (like on judicial activism and filibusters) is that you take it away and they don’t really stand for anything else these days.
March 22, 2010, 8:30 pmMike O says:
If a government mandate to purchase a product from a private company under threat of incarceration is not tyranny, what is?
Would you rather wait until the precedent has been set to throw off the chains? What will you say if the Federal government dictates that all drivers must purchase from Government Motors?
Just how many of your liberties must be usurped before you take action?
March 22, 2010, 8:32 pmorca says:
It’s just another tax.
March 22, 2010, 8:39 pmMike O says:
I assume you have my voting record? That is a completely foolish thing to say when you have absolutely no evidence to back your assertion.
Just so I understand correctly, in your estimation hypocrisy is fine as long as you personally agree with the party position? If so, you are completely intellectually dishonest and blinded by your partisanship. That is the type of attitude that has doomed this country.
March 22, 2010, 8:40 pmMike O says:
It most assuredly is NOT a tax and the legislation specifically avoids the term “tax”. They cannot use the term “tax” because it to do so would render the act unconstitutional. Capitation taxes must be uniform and applied in proportion to state population.
There are articles available on Volokh that make this clear if you choose to investigate further.
March 22, 2010, 8:45 pmorca says:
Nope, just that it makes a poor core belief for the Republicans.
The same applies to their nihilistic obstructionism
Hey, if you don’t want to pay the tax, buy health insurance. If you can’t afford it the Dems will help you out.
March 22, 2010, 8:55 pmbyomtov says:
ChrisIowa,
Thanks. I stand corrected.
March 22, 2010, 8:56 pmpc says:
I’m being forced to pay for endless wars in the Middle East. That’s the sort of thing you mean, right?
March 22, 2010, 8:59 pmR. Nebblesworth says:
History shows that it is extremely difficult to eliminate entitlements.
Especially in cases where the entitlements are for the insurance and finance industries, like with the health care bill.
March 22, 2010, 9:01 pmBlue says:
Dan Rostenkowski agrees! It’s almost impossible to repeal entitlements!
March 22, 2010, 9:02 pmCalderon says:
Eliminating the individual mandate might eventually destabilize other parts of the bill. Without the mandate, insurance companies might start lobbying for repeal of other elements of the plan (since the bill would no longer be a huge bonanza that gives them many additional customers).
Under current jurisprudence, the individual mandate is the only part of the bill where a constitutional challenge has a more than negligible chance of succeeding. But even if that provision is struck down I doubt it will have any positive effect from a libertarian viewpoint. Contrary to the beliefs of some progressives, corporations really don’t own Congress. Enough members of Congress will get more traction from opposing insurance companies than giving in that repeal of most of the health care reform elements will not be possible (the Medicare limits and various other parts, like the eventual tax on high cost insurance plans, likely will be junked, but that won’t change the substantive law). Killing the mandate likely will lead to even higher insurance costs, which will just bring the (probably already inevitable) single-payer plan that much closer.
There’s maybe a 20% chance of repealing the reform act in 2012 if there is a Republican president and Republican majorities in both houses. After that, we’re going to be waiting until the US’s entitlement costs and debt overwhelm the tax base and lead to a truly severe financial crisis. In short, libertarians lost again; there’s not much we can do (except choose leisure over production if your income is around $250,000). I’m just hoping the current Democrats go all the way and provide similar subsidies for food, housing, and clothing so I can drop out of the workforce and have others use their abilities to meet my needs.
March 22, 2010, 9:04 pmDunstan says:
Mike O.: “If a government mandate to purchase a product from a private company under threat of incarceration is not tyranny, what is?”
I trust you’ve been waging a long resistance movement against those tyrannical state governments that insist you have automobile insurance.
March 22, 2010, 9:06 pmDougInSanDiego says:
Come on, Dunstan. That specious argument has been debunked so many times …..
In case you were in the Hot Tub Time Machine and missed it:
You are NOT required to drive and thus are NOT required to buy auto insurance.
While it’s true that you are NOT required to live and thus need not buy health insurance, most people would not see this as the same thing.
March 22, 2010, 9:21 pmleo marvin says:
There must be a better way to say that. :)
This is one of my favorite far-fetched refrains, that Republicans are genteel statesman who get run roughshod over by bullying Democrats.
And this is another, that they have a consistent ideological objection to judicial restraint, which just happens not to apply to laws they don’t like.
March 22, 2010, 9:23 pmSteve says:
One thing to remember about repealing an ‘entitlement’ is that for SS and Medicare the Repbulicans took 10–15 years to retake Congress and thus these policies had become active parts of the government and society.
The interesting causality is that one of the reasons the Republicans took so long to retake Congress is that they thought it was a good idea to campaign against Social Security and Medicare.
March 22, 2010, 9:25 pmElliot says:
“This is one of my favorite far-fetched refrains, that Republicans are genteel statesman who get run roughshod over by bullying Democrats.”
I have no illusions anyone is genteel, but I do think we can see different tactics adopted by different groups. Mass marches and demonstrations have not typically been associated with republican and conservative causes.
Perhaps some of the hostility to Tea Parties on the part of the media and democrats is confusion over how to deal with new tactics being employed by people who rarely used them in the past.
March 22, 2010, 9:48 pmorca says:
IIRC, the first two things that will happen under the Health Care bill are:
1. Seniors will get a $250 drug rebate.
2. Kids will be able to stay on their parents insurance until they’re 26.
The Republicans are going to make a lot of new friends opposing them…
March 22, 2010, 9:51 pmMike O says:
Even attempting to make that comparison reveals your lack of critical thinking skills. Tell me, can I avoid having to purchase auto insurance?
March 22, 2010, 10:13 pmMike O says:
They said it would eventually bankrupt the country. Were they wrong in this assertion?
March 22, 2010, 10:24 pmEl Cid says:
I’m not going to say that *nobody* out there will be angry that they are forced to buy insurance. And no doubt many people oppose the concept on the philosophical level. But given that most people, quite rationally, want health insurance, and that the gvt will spend buckets of money subsidizing premiums for people who can’t afford them, I’m just not seeing where the popular outrage against the individual mandate will come from. The number of people who feel victimized by having to get insurance has to be quite small. Certainly much smaller than the number of people who will be thanking God that they can finally afford health insurance for their family.
March 22, 2010, 10:24 pmEl Cid says:
To expand on my point, consider Ilya’s comparison to the efforts to overturn segregation. A substantial minority of the American public (ie, African Americans) were personally victimized by segregation laws. Compare that to the vanishingly small minority of people who will feel personally victimized by the personal mandate. And even if those people are in a position where they can’t afford subsidized premiums for health insurance, will they demand the repeal of the mandate… or increased premiums?
March 22, 2010, 10:29 pmDesiderius says:
El Cid,
“Certainly much smaller than the number of people who will be thanking God that they can finally afford health insurance for their family.”
Affordability has not exactly been the Massachusetts experience.
March 22, 2010, 10:39 pmEl Cid says:
Desiderius,
Massachussetts may not have done a spectacular job with cost controls, but I wouldn’t exactly characterize it as a hotbed of opposition to insurance reform. The last poll I saw had something like 7 in 10 people approving of Romneycare, and only 1 in 10 saying that they want to repeal it. I guess my overall point regarding national health insurance reform is that the number of people who don’t have health insurance AND don’t want even subsidized health insurance will probably be pretty small. Could I be wrong about this? Sure. But ask yourself–is health insurance something that many people really *don’t* want? Admittedly, this has nothing to do with the philosophical libertarian case against the bill. But it has a lot to do with the level of public opposition to it.
March 22, 2010, 10:57 pmDesiderius says:
El Cid,
I think generally there is a mismatch between what people want and what is possible, and that people have a general sense of that reality, even while we’re fuzzy on the specifics, which of course gives pollsters lots of play to reach the results they seek. I’d like to see universal catastrophic, but I don’t think we’ll get there as long as folks like yourself are convinced that universal comprehensive is the way to go.
I’m frankly befuddled as to how we reached this point, given the experience of the 20th Century, but perhaps America needs to burn its own hand before learning that the government monopoly stove is indeed hot.
As for popularity, witch-burning was popular too. What is popular now is not necessarily what will be popular down the road, and that change is driven by those who spend more time looking critically at what is popular, and less extolling their own popularity. Yes, Republicans are currently making just that mistake. Are you sure you’d like to join them?
March 22, 2010, 11:12 pmAnonsters says:
As one of those who didn’t support it up until the last few days because I didn’t think it went far enough, I can say that you’re wrong about this.
March 22, 2010, 11:15 pmrpt says:
37 Republican AG’s?
March 22, 2010, 11:18 pmAnonsters says:
Really?
Your Constitution must have the prolixity of a legal code.
March 22, 2010, 11:19 pmrpt says:
Yes.
March 22, 2010, 11:20 pmAnonsters says:
And, um, the bill specifically provides that failure to pay the tax may not be punished by incarceration.
But you already know that, having studied the bill as carefully as you clearly have…
March 22, 2010, 11:24 pmMike O says:
I feel victimized NOT necessarily by the mandate to purchase something that I already have, but by the expansion of government powers into my personal decisions. What happens in the future when government decides you need to purchase an item that you DON’T already have?
Additionally, you stated that the government will spend “buckets of money” for subsidies. Who will be filling those buckets? Is Nancy Pelosi going to have a bake sale? No, that cost will be shifted onto taxpayers. Premiums will also increase for those of us who have insurance to offset the increased costs to the insurance companies. Why should I be ecstatic that I will now have to support myself and others?
There is nothing but increased costs for those of us who have already taken care of ourselves. It amazes me that so many people are unable to do simple math. Government has a horrible track record when it comes to efficiency and cost control. Can you provide a single example of an efficient government program that has lowered costs?
Some prescient quotes…
“When the people find that they can vote themselves money, that will herald the end of the republic.” – Benjamin Franklin
“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.” – James Madison
March 22, 2010, 11:26 pmrpt says:
I think you’re right here. If you liked the clip of the alleged Howard Dean rant, you’ll love John Boehner’s “Hell no, you can’t” meltdown in the House.
March 22, 2010, 11:27 pmDougInSanDiego says:
Sorry! How about: “Homosexuals account for a MERE 2.3% ………”?
Hmmmmmmm. I’m confused here. Are you saying the GOP has an ACORN-like organization we simply have not heard about, employs SEIU thugs replete with wooden batons to “stand guard” at the entrance to polling places, creates new rules to permit the passage of Bills that would not be passable under any existing Parlimentary rules, engages in 8-year campaigns of personal destruction against opposing Presidents (hint: Obama is not yet an 8-year President), etc etc etc.
I was not aware that the GOP was more than a Watergate-type offender in this regard.
March 22, 2010, 11:30 pmDavid Sucher says:
You folks are good. (Sarcasm.)
First conservatives make it impossible to do anything except make all health care via insurance companies.
Then you complain that health care is a requirement via insurance companies.
Slick.
And sick.
And to think I almost used to think of myself as a conservative. Gives me the creeps.
March 22, 2010, 11:34 pmAnonsters says:
See here.
March 22, 2010, 11:35 pmSteve says:
“When the people find that they can vote themselves money, that will herald the end of the republic.” — Benjamin Franklin
There are never any new fake quotes on the Internet, only the same old ones.
March 23, 2010, 12:00 amAnonsters says:
“Steve spoils all the fun.” — George Washington
March 23, 2010, 12:07 amDesiderius says:
“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.” — James Madison
Alas, that was the Rubicon we crossed in the wake of Hoover. Same problems as Bills of Attainder. Unlikely that genie fits back inside the bottle, so we’ll have to make the best of it.
March 23, 2010, 12:10 amMike McDougal says:
That’s referring to quotes like this:
March 23, 2010, 12:14 amrpt says:
There have been 37 “requests”, probably bills introduced by Republican lawmakers.
March 23, 2010, 12:25 amMike O says:
Where is the proof that it’s fake?
SNOPES? Please.
Additionally, I see that you didn’t dispute the quote from Madison, the “Father of the Constitution”. That is a more direct refutation of welfare spending anyway and more powerful due to the speaker. So, one quote may be fake, but the founders still never intended for the phrase “General Welfare” to interpreted as it has been, the political cowardice of the court notwithstanding.
March 23, 2010, 12:41 amMike O says:
Which automatically invalidates them? The Democrats were elected to be dictators for life after all. The people had their chance in November 2008, so now anything goes.
March 23, 2010, 12:43 amrpt says:
No, it just means we have to see what happens.
March 23, 2010, 12:46 amMike O says:
Apologies. I obviously misunderstood the intent.
March 23, 2010, 12:47 amChristopher Cooke says:
I find this post ironic because Ilya, who writes about how ignorant voters are on most topics, is relying on the “unpopularity” of the healthcare bill, as measured by polling data, when the individual parts of the bill, when polled separately, are popular (as is the public option). In short, I think it is too soon to say if the bill once enacted will remain unpopular, especially when no “death panels” are assembled to kill off grandma and the sky otherwise does not fall and the sun keeps rising each day, i.e., when the shrill discourse fades and the mundane reality that Congress enacted a bill that doesn’t change that much for most people who already have insurance becomes clear, and people get used to some of the legal protections in the bill protecting everyone from certain insurance company practices —such as protecting against discrimination based on pre-existing conditions (which takes effect this year, for children), banning lifetime caps and policy rescissions–are implemented.
March 23, 2010, 1:13 amorca says:
Super majorities are very hard to come by…
March 23, 2010, 1:27 amSteve says:
Where is the proof that it’s fake?
“Truthiness is next to godliness.” –Mike O
PS: The Madison quote isn’t exactly fictional, but it’s not exactly a quote of his, either.
March 23, 2010, 1:44 amPaul says:
A question:
Does the individual mandate apply to children ie why wouldn’t a parent purchase their own insurance and not carry insurance on kids – then just purchase kids insurance when needed.
I ask this for a simple reason – I expect the result of this legislation – in a practical sense will be this. Insurance is currently purchased primarily through employers. This legislation rejected any approach that would change this. There are now penalties for businesses not providing insurance for their employees. There is no penalty for not providing it for spouses/dependants. Most companies pay not only a portion of their employees insurance but also a portion of their employees spouses and dependants. I expect this to change. I expect companies to offset their increased costs under this bill by reducing their contribution toward spouses and dependants. This will start at larger companies and move toward the smaller. Employees will still have the option of paying for their dependants directly – it’ll just cost more. Without a preexisting condition exclusion their will be no reason not to do it this way. At some point the government will realize this problem and just pay for all coverage for children directly (how can one not be in favor of universal medical care for children)
March 23, 2010, 6:45 amStephen Lathrop says:
Orca, think that one over. That amounts to a Principled Republicans hypothesis. How likely is that? No more likely than a Principled Democrats hypothesis, I’d say.
March 23, 2010, 6:46 amStephen Lathrop says:
Interesting. Can you say more on that?
March 23, 2010, 7:06 amleo marvin says:
No, I’m saying Republicans have their own equally ignoble history of sleazy, often criminal political antics. If you’ve made it to adulthood with your eyes open, no examples should be necessary for you to know that’s true.
March 23, 2010, 7:29 amCaptain Fantastic says:
While I reluctantly agree with the conclusion, it is important to point out that the combination of political action and litigation is mutually supportive. While some see the election as being so far into the distance that voter anxiety will simmer down by November, the ongoing litigation and political action will keep disgruntled voter enthusiasm high with an interest of throwing the bums out.
March 23, 2010, 7:47 amJeffN says:
Complain about activist courts until you need them.
March 23, 2010, 7:54 amnoahp says:
“Discrimination based on pre-existing conditions”.
March 23, 2010, 7:57 amI mean like dude everybody is against discrimination, right?
So Aetna or whoever goes to the state insurance commission and says “we have seen the error of our ways so we are now going to offer health insurance to whoever walks in the door…the only the question we are going to ask is age so we can give younger people a 50% break since costs are dramatically lower”. The commissioners ask how are are you going to price it? “Duh…hadn’t thought about it but Obama said we were evil for all these years and besides it’s the right thing to do”.
RINO in Name Only says:
I’m not sure how striking down flagrantly unconstitutional legislation counts as “activist”.
March 23, 2010, 8:02 amnoahp says:
“Oh and we are also going to eliminate limts on future medical cost payouts forever and guarantee against premium increases if you become ill. We have the full backing of Mother Theresa and Berie Madoff”.
March 23, 2010, 8:13 amdas says:
when will we be able to vote for chief justice? predictions?
March 23, 2010, 8:29 amSDN says:
Oh, please, please let them be that stupid. And trust me, liberals will be much less fond of “disparate impact” than they have been in the past when it is used to prove that’s happening.
March 23, 2010, 8:35 amHoward Beale says:
What I find absolutely fascinating about the comments here is how few folks focus on the only fact that really seems to matter to me: the cost.
In the end it really doesn’t matter what I or anyone else wants or don’t want in terms of health care and the government’s role therein if we can’t afford it, and I have yet to encounter a sentient being with even a modest understanding of economics who honestly believes we can afford yet another massive entitlement program. National bankruptcy was looming before health care reform; it just moved a few years closer.
So from where I sit it’s really not about Democrats or Republicans or their respective ideologies, as both parties have proven themselves wholly incapable of grasping this concept.
March 23, 2010, 8:52 amJohn says:
It is amazing how either disingenuous or downright dense liberals are. Conservatives have never claimed the Courts should never strike down legislative actions. Of course courts should strike down unconstitutional laws. Everyone agrees on that. The issue at stake is what constitutes an unconstitutional law. What makes an activist judge is not his willingness to strike down an unconstitutional law. All judges have that duty. What makes an activist judge is his willingness to invent excuses by implication and intellectual contortion to strike down laws as unconstitutional. To claim that any striking down of a law as unconstitutional is being an “activist judge” is just pathetic. Can any liberal out there make a cogent argument anymore?
March 23, 2010, 8:57 amBuckyDent says:
The real question is, how will the legal profession fare under fascism? Will the race quotas and political connection-requirements counter-balance the need for more drones? Are you all happy with the world you’ve created? I hope not.
March 23, 2010, 8:58 amJohn says:
“No, I’m saying Republicans have their own equally ignoble history of sleazy, often criminal political antics. If you’ve made it to adulthood with your eyes open, no examples should be necessary for you to know that’s true.”
Of course you can give no examples of any of that history. You just know it is true. And because you just know Republicans have done horrible things in the past (and even though can’t quite list what those things actually were), it is okay for your team to go to any lengths. Yes, “they did it to” is quite the legal, moral and political argument. For liberals it always goes back to the playground.
March 23, 2010, 9:00 amLeo D says:
Posit a): There are four strongly conservative members of the Supreme Court
March 23, 2010, 9:05 amPosit b): These same members of the Supreme Court are known strict constructionists, or strong adherents of ‘original intent’.
If a and b are true that suggests that at least 4 members of the SC will opt to allow a hearing on the constitutionality of mandatory health care insurance purchase by companies and/or private citizens.
That all five remaining members of the court would be willing to allow a bill with language as clearly beyond a strict reading of the commerce clause as this bill, on account of public opinion, flies in the face of the Kelo decision on public takings, and the most recent overturn of McCain-Feingold limits on corporate contributions.
Both decisions were and are quite unpopular (the ‘liberal’ Kelo decision 80% unpopular by one poll, the ‘conservative’ McCain Feingold decision 60%).
If five members were found to opine in direct opposition to the public will, how much easier will it be to vote with the public in something arguably as cut and dry as even liberals in 1994 agreed was too much an extension of the Commerce Clause.
Why even an ACLU liberal like Ruth Ginsberg who once publicly said she believed society’s primary purpose for legal abortion was to control the population of society’s ‘undesirable’ people, might vote with conservatives.
TPPatriot says:
I’m a common citizen. I believe liberals destroyed the rule of law and circumvented moral values to get this legislation passed. Obama lied to get elected, and now lies to “sell” his programs. Obama’s lies are no more acceptable to us than “lies” liberals claim that Bush made.
Most posting here exhibit arrogance of the common man amplified by prejudice of them. I detect “the end justifies the means” in many posts. If YOU think it’s right, it MUST be right.
No wonder common folk have a great a dislike of lawyers – it’s a response to the contempt lawyers have of them.
Little has been written here about financial consequences of the new legislation. Amtrak, Post Office, Social Security, Medicare, Medicaid should give us pause.
I don’t think anyone wrote about freedom.
Liberals use taxpayer money to fund their favorite causes and give financial payback to their constituents (SEIU, UAW anyone?).
The common person has had enough. You may not care about freedom and financial and personal responsibility, but we do. We will work to defeat liberalism in the coming elections.
Thank you DougInSanDiego for your insight.
March 23, 2010, 9:07 amJohn says:
This legislation is absolutely going to destroy the middle class. The problem is that the penalties for not buying insurance are less than the cost of insurance. Since the insurance companies can no longer deny treatment for pre-existing conditions, many people are going to chose to pay the fine and just buy insurance if they get sick. This effect will be compounded by community ratings. Community ratings will make it more expensive for young healthy people to buy insurance and more attractive for them to pay the fine. So the insurance pool is going to get older and sicker and premiums are going to get higher as a result.
Now there are certain people in the world who are risk averse and can’t really afford to forgo insurance for even a short period. These people tend to be middle class and upper middle class families with children. People with children are going to be loath to just drop insurance and pay the fine like young singles will. So they are going to be stuck holding the bag paying higher and higher premiums as the insurance pools get older and sicker. Worse still, if they make over 100K a year, they will not get any subsidies from the government. This bill is going to absolutely obliterate middle class families making over 100K a year.
That is why this bill is not like Social Security and Medicare. And that is why it will only get less popular with time. Social Security and Medicare are middle class entitlements. The middle class will defend those programs to the death because they feel like those are the only programs keeping them from having to take care of their parents. Obamacare is not a middle class entitlement. It is a flat out middle class theft. And the middle class and elderly is where the political power and the votes are. Passing this thing with no bi-partisan cover was political suicide.
March 23, 2010, 9:12 amPaul says:
It’s not cognitive dissonance if the strike down is based on what the Constitution actually says. It’s also notably not legislation by judicial fiat, but the striking down of an unconstitutional bit of legislation. Conservatives view this as the role of the Supreme Court. Liberals view the Court’s role as active reinterpretation of the Constitution to remake the world as they think it should be, despite what the Constitution actually says.
Nice try at a sound bite. Fail.
March 23, 2010, 9:20 amnoahp says:
Actually I don’t believe Republicans have ever filibustered a judicial nominee.
Plus, all the talk of Republican filibusters is a stinky red herring. Anybody with more than passing familiarity with senate rules knows that the threat of a filibuster is.always lurking. Always.
What was sort of unusual for most of the past 14 months is that the Democrats had a filibuster proof majority if they stood together so the wrangling since they decided against bipartisanship. Note that Bush had to seek bipartisanship hence much of what he did accomplish was detested by conservatives. Even the the Bush tax cuts of ’03 went thru with greater than 60 votes altho it would have been filibutered othwise. Democrats always neglect to mention the Clinton tax increase of ’93 was passed via reconciliation with Gore casting the deciding vote.
March 23, 2010, 9:25 amnoahp says:
Will someone please explain why the maneuver of substituting the Senate health care for a previously passed House bill thereby supposedly satisfying the requirement that revenue bills originate in the House is not an unconstitutional evasion. Can we at least agree it’s sleazy?
March 23, 2010, 9:47 amSCOTUSblog » Tuesday round-up says:
[...] all pundits believe that the plan should survive judicial review, though. At The Volokh Conspiracy, Ilya Somin asserts that the bill should not pass constitutional muster and opines that “a [...]
March 23, 2010, 10:16 ambartman says:
Do most people think the government, any government, should be able to require its citizens to buy something they don’t want to buy?
The government makes me buy a chunk of a giant military machine very much against my will. the government forces me to give money to Egypt and Israel and hundreds of other countries. The government forces me to purchase scoial security and medicare. The government forces me to buy car insurance. The government forces me to buy unemployment insurance.
See, that boat sailed a loooong time ago.
March 23, 2010, 10:22 amscattergood says:
And this is why it may be that things are different this time. Republicans campaigning against Obamacare will do far better than Republicans campaigning for Obamacare.
March 23, 2010, 10:42 amTommy says:
This story seems to be overlooking the rights of the states to use Article 5 of our Constitution, whereas the states can amend the Constitution and deem this bill unconstitutional. All we need are 2/3 (34) states to get on board and 3/4 (38) states to ratify the amendment. Each state gets 1 vote – so such states NY, CA, & FL don’t get to tip the scales toward the liberal/socialist side since the majority of the country isn’t in favor of this legislation.
March 23, 2010, 11:01 amTerry says:
Try the first Supreme Court nomination ever filibustered — Abe Fortas.
March 23, 2010, 11:12 amDyspeptic Curmudgeon says:
ChrisIowa,
Not *quite* correct:
Article V
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,….
*SHALL* call a convention. Since a convention is not a ‘carved in stone’ thing, I surmise that it could well be possible to get 34 states to vote in favour of calling a convention.
March 23, 2010, 11:17 amChrisIowa says:
The States cannot propose a specific amendment. They can only petition Congress to call a constitutional convention. So once you get 2/3 of the States to call for a convention, you also have to get Half of Congress to at least acquiesce to the constitutional convention. The convention will then write the amendment(s).
The effort required makes this more a route towards a major revision rather than a single amendment, but it may be needed to regain control of the Federal government.
March 23, 2010, 11:21 amnoahp says:
Abe Fortas? I believe there is some dispute about holding up the vote on a corrupt politician who subsequently resigned should be counted as a filibuster but I’m a little fuzzy on the details. And wasn’t the ‘filibuster’ bipartisan?
March 23, 2010, 11:39 amnoahp says:
Ah yes he was an associate Justice who by machinations by LBJ was placed on the Court. Was nominated Chief Justice by LBJ when Warren retired. Was ‘filibustered’ by a bipartisan group of 45 out of 98. Nomination withdrwan and he later resigned because of unethical and/or illegal acceptance of a ‘gift’. Wikipedia.
Evil Republicans!
March 23, 2010, 11:57 amChristopher Cooke says:
Noah:
the bill that the House passed originated in the House, was amended by the Senate, and now has passed the House. That is why it is called HR3509 (I forget the exact number). So, there is no origination problem here.
To answer this comment:
It would be activist because, under existing Supreme Court precedent and interpretations of the Commerce Clause and Congress’ taxing authority, the HCR should be upheld. Even Randy Barnett, Jonathan Adler, et al agree with this view. They simply think the Supreme Court precedent is wrong.
While there are many possible definitions, I think that we should be able to agree that an “activist” court is one that (1) strikes down laws passed by Congress and (2) that are plainly constitutional under existing precedent. This is not a criticism of “activism” just a proposed working definition.
March 23, 2010, 11:59 amChristopher Cooke says:
The constitutional amendment route won’t work unless public opposition grows to vastly above the 49 to 50 percent level it was at last week because the Republicans don’t control 3/4 of the state legislatures.
March 23, 2010, 12:03 pmnoahp says:
Excuse me. Bipartisan 43 voted against cloture on Fortas’ nomination. Bipartisan 45 voted for cloture. They voted then the nomination was withdrawn…pre-arranged kabuki
Wholesale substitution just in order to obtain an HR# for a bill is sleazy in my book YMMV.
March 23, 2010, 12:11 pmChrisIowa says:
There is nothing other than political heat to enforce that “shall.” So if either house of the Congress does not want to call a Convention and is willing to take the political heat, there is nothing to make the Congress call the Convention.
March 23, 2010, 12:25 pmTommy says:
That’s not true … Article V was amended from it’s original draft on the basis of the argument made by George Mason that “”[It] would be improper to require the consent of the National Legislature, because they may abuse their power, and refuse their consent on that very account. No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive.” So the text of Article V should be interpreted as the states legislatures having the right to call their own convention to propose amendments without the consent of the Federal government as follows:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, OR, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;”
March 23, 2010, 12:27 pmJoe says:
We should also remember that litigation is likely to center on the bill’s mandate requiring individuals to purchase health insurance even if they prefer not to.
Right. Though one might not know it from much media coverage, it will be years before not having insurance will cost you anything. The first year the cost will be a $95 tax. Then, a $695 tax. The tax will go toward protecting the overall system, one which will provide benefits to many you know and care about that already have insurance and will protect you if (knock on wood) you ever need it. This includes Medicaid coverage.
[the fact it will take around five years for the tax to go into practice suggests that even those for a public option have time to work to change the system, perhaps after the 2012 elections, if the time is right]
And, even if you don’t pay, the government is denied two major means of going after you. Again, some of the rhetoric suggests people are not aware of these things. I second those above the debate the value of poll data here as well, as an aside.
Most people already have insurance. Many of the rest understand the idea of paying taxes to protect various things that Congress has power over. I realize you don’t think they do. But, even then, the uninsured by choice (the law also helps some here by subsidizing — cutting down the class further) will often support the end as benign. Finally, many realize that being taxed to do these things but getting a deduction for having insurance is no more a “mandate” than the various other tax breaks we get mean that we are “mandated” to do the things behind such tax breaks.
I in fact think “mandate” is a dubious term. More so “Obamacare,” when the Senate (with some sort of House fix added) passed this legislation — you know by Art. I — and in fact if it was up to Obama, they might have did less to get the votes. That is, if we look pass spin and look at what the law and reality shows.
March 23, 2010, 12:35 pmJoe says:
Wholesale substitution just in order to obtain an HR# for a bill is sleazy in my book YMMV.
did the House start the process knowing that a wholesale substitution would be in place?
I think not. The idea probably was that they would have a 60 vote majority and that reconciliation of the two bills would not be as limited in scope given the narrower scope allowed under the majority rules process in place for the reconciliation fix pending now. News accounts suggest Obama worked under the assumption of 60 votes; the Scott Brown election and various delays before then required the House to accept less.
And, even if the House assumed a wholesale substitution, it still is under the assumption that their reconciliation fix will also be voted upon, so some important parts of its bill remain. Not that working inside the rules and accepting the Senate version by necessity seems that “sleazy” to me.
March 23, 2010, 12:43 pmgrog says:
Can anyone explain to me how a SCOTUS challenge might function?
It seems to me that Scalia’s concurrence on Raich is a major stumbling block. He tried to save a sliver in his quiver for use against the CC, but the problem is that sliver was that regulation of noneconomic intrastate activities had to relate to congress’ ability to regulate interstate economic activity.
I’m not saying he can’t conjure a way to say growing dope at home for your own use counts because it might at some future time be sold, but regulating not buying insurance for pretty clearly interstate problems in insurance (free-rider issues, adverse selection) is. I wonder if he can do it with a straight face though. And remember, he was the “swing” the 7-2 judgement turned on there.
You need two more that dislike hypothetical non-hippies with healthcare more than they dislike non-hypothetical hippies with pot.
And in re: polling data, it is only one, but see this.
March 23, 2010, 3:12 pminterested Aussie says:
It may not be my business to comment, and I have been following this closely. The enacted legislation is nothing like we have in Australia (and it is also very deficient). Also, in Australia we have compulsory voting, but USA does not have compulsory voting. This factor will make the November cycle elections very interesting. The people most motivated to vote will probably be those who are very upset over the passing of such intrusive legislation.
I think that it would be wrong to place Jane Hamsher and her people at Firedoglake amongst those who would continue to support the Democrats, even though their motivation is that the legislation did not go far enough. If anything I think that this is the group that is most likely to stay home and not vote. They are the ones less likely to vote for Opposition parties and do not feel inclined to vote for the incumbent. I would not be adding that 13% to those who favour what has been passed. I would put them in the undecided category.
Another group that will be less motivated to vote will be the youngest group – the ones who did not really know the Presidential candidates in the first place, the ones who had white guilt or were pc in their thinking in that they thought it was cool to vote for a person’s skin colour rather than looking at who he is, and what he really advocates.
However, the most motivated group of people will be Independents and what are now former Democrat people. In the past few months these people have been feeling incensed over what has been taking place. Many of them campaigned for Hillary Clinton, and then they went on to campaign for McCain/Palin. This is the group that has the most motivation to vote in November.
Note: I have not mentioned the group that normally vote Republican. This group is still very unsettled and there is some division due to the influence of Ron Paul. The Libertarian Party are continuing their attempt to take over the Republican Party, suggesting candidates that could be equally as harmful to the welfare of the USA as the present members of the Congress. A lot will depend upon the motivation of this group come November. If they think there are too many RINOs as candidates, they will stay home on their butts and allow the same creepy Congress critters retain control of Congress.
March 23, 2010, 7:24 pminterested Aussie says:
The Bill passed in the House of Representatives did not originate in the House of Representatives. The Senate did not pass the House of Representatives Bill, instead they passed their own Reid version.
You are simply wrong on your facts.
March 23, 2010, 7:45 pmSara says:
Aussie, Sorry the Senate in fact amended a house tax bill, thats why it was an “HR” bill. Also, I don’t know about your country, although I have had fun there, but to predict turnout now for November, in our country, is a fools errand.
March 23, 2010, 8:06 pmDesiderius says:
Sara,
“Aussie, Sorry the Senate in fact amended a house tax bill, thats why it was an “HR” bill.”
They completely struck the language of the original bill. More contempt. But hey – you’re right on the letter. Grats!
“Also, I don’t know about your country, although I have had fun there, but to predict turnout now for November, in our country, is a fools errand.”
She’s less foolish than most. The one thing I think she misses is the extent to which Americans (primarily affluent older Americans who make up the lion’s share of internet commenters) still think we are so affluent/dominant a country that we can afford to play tribal games instead of focusing together on the common wealth of the nation. By together I mean dehumanization is right out. I refer to the comments here in the aftermath of the bill’s passing as exhibit A.
March 23, 2010, 8:20 pmSara says:
Desi: You seem sad. I’m sorry but we are an affluent country. I am not sure what dehumanizing you refer to but, I am afraid that is a very old political tradition. (You should see some of the 19th century fliers.)
March 23, 2010, 9:08 pmThe Arena Panic! | World of Warcraft Ninja Secrets says:
[...] The Volokh Conspiracy » Blog Archive » Legal Action and Political … [...]
March 23, 2010, 10:09 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by kulak76: Ilya Somin @ Volokh:”Legal Action & Political Action as a Two-Track Strategy for Opposing Obamacare” Very important! http://is.gd/aUk5d #hcr…
March 23, 2010, 10:13 pmBuzzrd64 says:
I think it’s time the “several states” (38 to be exact) create an amendment to the Constitution striking down this law. States are the ones that are going to be bankrupted by this bill. State politicians can either raise taxes on their citizens or amend the Constitution. Which would you do it you were a state politician? Obamacare just passes the tax buck to the states, they aren’t going to be very happy with this. Especially the bankrupt blue states.
March 23, 2010, 10:41 pmDesiderius says:
Sara,
“Desi: You seem sad. I’m sorry but we are an affluent country. I am not sure what dehumanizing you refer to but, I am afraid that is a very old political tradition. (You should see some of the 19th century fliers.)”
I’m of a melancholic humor, it is true, but there is much presently to be melancholic about. No doubt the country in which you live is remarkably affluent – you’ve benefited from the sacrifices of those that came before you, and created great things with it. What you (and forgive me if my assumption of your age is mistaken) seem to lack is the capacity to make similar sacrifices for those following after.
I see the most promising generation of my lifetime emerging into a country that is not affluent for them. I see them not afforded the opportunities you enjoyed, and I see Boomers scrambling for the lifeboats, leaving this new generation to drown. Heaping another unfunded mandate onto them, the benefits of which will go largely to those same Boomers, especially as they age, seems utter madness.
Enjoy your cream-filled donut hole!
March 24, 2010, 12:10 amDavid Sucher says:
You folks are funny.
Look, I am a true-blue Democrat.
And I agree with you – if Obamacare doesn’t work, let’s change it or amend it or whatever.
But we don’t know whether it will work or not. Can’t you grasp that? It’s preposterous that you should be talking about a practical political issue unless you see how the results turn out.
It may well be — and there my friend is a scare for you — that Obamacare may help the Democrats a very very long tenure.
March 24, 2010, 1:15 amleo marvin says:
We disagree on whether it’s a good thing. Time will tell. But other than the donut hole fix, which is a relatively small part of the bill, and largely offset by other reductions in medicare, how are boomers anything but among the lesser beneficiaries?
March 24, 2010, 1:23 amWes says:
Opportunities are created far, far more than they are given, your likelihood of success is directly related to your understanding of that. If you are waiting for someone to provide an opportunity for you, your failure is no one else’s fault.
March 24, 2010, 4:37 amJohn D says:
That’s true of the entire Obama/Liberal Democrat agenda.
California here we come.
March 24, 2010, 7:08 amAxl says:
Can you be forced to enter into a contract under threat of fines?
March 24, 2010, 9:25 ammaryanna says:
Wes,
“Opportunities are created far, far more than they are given, your likelihood of success is directly related to your understanding of that. If you are waiting for someone to provide an opportunity for you, your failure is no one else’s fault.”
It’s not my opportunities I’m talking about, Einstein. BTW, this is spoken like a true conservative, which is fine, if that’s how you self-identify.
March 24, 2010, 10:13 amdesiderius says:
leo marvin: We disagree on whether it’s a good thing. Time will tell. But other than the donut hole fix, which is a relatively small part of the bill, and largely offset by other reductions in medicare, how are boomers anything but among the lesser beneficiaries?
You can’t be serious. Who’s most likely to hit those lifetime benefit caps that have now been lifted? More likely to have pre-existing conditions? To have 25-year-old “kids” living at home? Who will have to pay the ensuing jacked up premiums?
This bill is like outlawing Walmart in the expectation that everyone will now magically enjoy Whole Foods instead. What it really reminds me of is the BMW rich parents give as a graduation present in an attempt to make up for the guilt brought on by years of neglect.
Except in this case, the kid gets the payment too, and the loan is $500B upside down.
March 24, 2010, 10:22 amSara says:
Desi:
Hard times can actually be good for people, depending on what they do with it. Remember what the “Greatest Generation” came out of? Undoubtedly, in the 1930s many people felt it was the end of the road for America. If this generation is as talented as you feel they are, they will bloom in an age of austerity.
March 24, 2010, 10:42 amSteve in Houston says:
I have just spent an hour or so reading the 132 posted comments discussing Ilya Somin’s comments about attempts to overturn the just passed Health Care bill. I agree with her and believe that the Health Care bill is here to stay. But what amazes me is that in absolutely none of the comments was any mention made of the cost of the legislation. Creating an additional government agency with potentially thousands of new employees, and adding thousands of employees to existing agencies is going to cost… cost a lot. And the only question to be asked is where will the money come from, and we all know the answer to that — you and me. Already this country cannot compete on the world market for manufactured goods because labor cost are too high, we import oil because it is too expensive to drill for it here, what happens next? What else can we aford to give up or loose.
March 24, 2010, 10:59 amThere is a quote from one of the founding fathers and I have to paraphrase here –The only thing wrong with democracy is that sooner or later the people will learn that they can vote themselves a raise–. And that is exactly what we have done, now can we afford ourselves.
apetra says:
Striking down an individual mandate as judicial *activism*?
Oh pleeeeese.
There’s nothing at all conservative, judicially or otherwise, about abiding Congress’ wholesale abrogation of the constitutional framework of limited government.
March 24, 2010, 12:38 pmDesiderius says:
“The virtue of prosperity, is temperance; the virtue of adversity, is fortitude; which in morals is the more heroical virtue. Prosperity is the blessing of the Old Testament; adversity is the blessing of the New; which carrieth the greater benediction, and the clearer revelation of God’s favor. Yet even in the Old Testament, if you listen to David’s harp, you shall hear as many hearse-like airs as carols; and the pencil of the Holy Ghost hath labored more in describing the afflictions of Job, than the felicities of Solomon. Prosperity is not without many fears and distastes; and adversity is not without comforts and hopes. We see in needle-works and embroideries, it is more pleasing to have a lively work, upon a sad and solemn ground, than to have a dark and melancholy work, upon a lightsome ground: judge therefore of the pleasure of the heart, by the pleasure of the eye. Certainly virtue is like precious odors, most fragrant when they are incensed, or crushed: for prosperity doth best discover vice, but adversity doth best discover virtue.”
- Bacon, Of Adversity
March 24, 2010, 3:05 pmleo marvin says:
And yet I am.
I wasn’t aware Medicare had lifetime benefit caps.
I wasn’t aware Medicare refused coverage for pre-existing conditions.
I wasn’t aware Medicare covered children living at home.
The point is the greatest beneficiaries will be in the private insurance market, not on Medicare, and the first wave of boomers is hitting 65 right now.
I know lots of boomers, and none of them ever got or gave a BMW as a graduation gift. I don’t doubt such people exist. I also assume incest happens in the Ozarks. That doesn’t make either of those a usefully revealing caricature. That you think HCR supporters are motivated by generational self-interest is uncharacteristically cynical. I don’t have to point out the analogous beliefs about conservative economic policies, and how helpful they are. You’re more aware than most are of the fallacy of defining people by their marginal political differences. The same goes for generations, except I suspect the marginal differences are even smaller.
March 24, 2010, 6:22 pmDesiderius says:
LM,
(a) Medicare is bankrupt. The rising generation won’t see a dime.
(b) This Bill spreads the rot to everyone, the most relevant being those Boomers who haven’t hit 65 yet.
If your generation could read a freaking balance sheet or look at the direction of transfer payments for once in your lives, I wouldn’t be so cynical.
Hey look, the system seems to be rigged in our favor, wonder how that happened!
Demography.
March 28, 2010, 10:03 am