Obamacare and the Supreme Court

[calicoug]

From Mike Allen's Playbook e-mail today:



Wow. Discuss.

This is a distraction from the rest of the thread and can spin out of control pretty quickly.

That said...

I don't understand how Republicans can simultaneously argue he is incompetent and that he is going to reshape America to be far more liberal (which would require a lot of competence).

So far, the man has enacted the most significant overhaul to our health care sector- ever. He has had multiple huge foreign policy successes. And, while the economy isn't in good shape, we never sunk into a catastrophic depression which was a real possibility for a time- in large part due to his decisions. I think that all requires competence. Even if you disagree with what he has done.

[calicoug]

I disagree with the decision, but I will acknowledge that it is not an argument without base; it's one that a sophisticated and intelligent lawyer could take and withstand arguments to the contrary. You're not going to see conservatives decrying this opinion, like liberals still decry Bush v. Gore. If there is outrage, it will be channeled to November, all the while maintaining the integrity of the court and single-handedly undoing every argument that the Court does anything but call balls and strikes. It's an admirable performance, whether you agree with it or not.

Agreed. For something like this, the ballot box is exactly where the matter should reside, and that's precisely what Roberts said.

[All-American]

From Mike Allen's Playbook e-mail today:



Wow. Discuss.

If the Court had overruled Obamacare, then yes, our former Lecturer at law looks like a doofus. Supreme Court rulings tend to lend an aura of legitimacy to the winner. That's why I don't agree with conservative pundits who say that this is a Pyrrhic victory for Obama, or that it is better for Romney that Obamacare survived. The win will come at a cost to Obama, and the decision will preserve an important talking point in the election that swings in Romney's favor, but yesterday was, all things said, a good day for Obama.

Those who read the opinion a little more closely, however, won't miss the fact that the Court dressed down the Constitutional Law professor and dismissed his primary argument. They effectively gave Obama a decision calling him a liar and urging people to show up at the polls in November. Obama made an unprecedented power grab, and the Court didn't miss the chance to land a blow squarely in the nose, even if it did uphold the law. It's not exactly Marbury v. Madison, but it does show some pretty nifty legal finesse and political savvy.

[calicoug]

I'm beginning to come around on this being the most ecstatically misunderstood SCOTUS ruling ever. As Obamaphile Ezra Klein noted in WashPo this AM:



And by clarifying that the mandate is a tax the decision both (a) makes it possible for the Senate to overturn the ACA without getting filibustered and (b) strips Obama of his ever-dubious claim to have not raised taxes, making his political case for re-election more problematic. Survey data to this point from today from Survey USA: In CA, 45% disagree with the decision and 44% agree, in FL 50% disagree and 39% agree. The election will now be turned into a referendum on what the SCOTUS has defined as a massive new tax increase on the middle class.

The last time the left climaxed over an apparent health care win the Dems lost 60 seats in the House in the ensuing election. We will see how it unfolds but this has the makings of a major Pyrrhic victory.

The Economist comes to some of the same conclusions saying that Roberts position on the Commerce Clause amounts to "a sizable, if weird victory for the conservative and libertarian legal theorists."

http://www.economist.com/blogs/democ...t-0?fsrc=gn_ep

The article points out liberals other than Klein are beginning to see this as an uber-crafty stealth coup of a ruling. Jon Chait writing that



We'll see. Gonna be an interesting year.

I love the "stealth coup" line from conservatives. Here's to hoping we have many, many more opinions just like this one that are also "stealth coups." This is the problem with Washington and many of its followers. They are so totally blind to the mechanics of policy because they can only see things through the political lens of "who is winning in the polls right now?" They see this decision and then see that it could energize the base and that it could therefore get Romney elected (an inference piled on an inference piled on...) and conclude that such must have been the actual intention of the Court all along! It's really just a device to help Republicans!

Sure- the Court could have said exactly what it said on the Commerce Clause, and exactly what it said on Medicaid, and exactly what it said on the Necessary and Proper Clause- and ALSO held it unenforceable under the Tax Clause. But, alas, that wouldn't have been good for the politics! So Roberts really saved Republicans everywhere.

I don't care how many people spout this line or how often. It's just incomprehensible to me.

Roberts may have cared about politics, but the ones he cared about all relate to perceptions of the Court. I will guarantee this case was not decided as a means to help Romney get elected or some other form of stealth coup. But if it makes Republicans happy, let them think it.

[oxcoug]

David Brooks yesterday out here at Aspen on Obamacare's "rotten foundation" and the superiority of Romney's secret plan based on defined benefits.


http://fora.tv/2012/06/28/Todays_Sup...ys_Secret_Plan

[Moliere]

See- there you go.

Ok- I'll describe why they are functionally the same thing.

First, let's break down the mortgage deduction. If you are someone who itemizes your taxes, and you have a qualifying mortgage, you can deduct from your income (thereby reducing your tax liability) all or a portion of that mortgage amount. Easy enough. Now, let's simplify it even more for comparison purposes. We can all agree that the mortgage deduction could just as easily be a flat amount- say, the greater of $800 or 2% of your AGI. That's not what they actually did but again- let's keep the comparison simple. Let's assume further that when the mortgage deduction was enacted, it was enacted at the same moment with an overall across the board $800 tax increase. In this scenario, what do you have? You have a tax on everyone and a tax deduction only available to those who have a qualifying mortgage. Conversely stated, you have a penalty for failure to obtain a mortgage.

So, what are the differences from the mandate? Essentially that Congress did not enact an across the board tax increase equal to the mortgage deduction amount and they instituted a different formula for determining the amount of the deduction (based on the size of the mortgage taken).

If you are deciding the mandate case on the tax power of Congress (as the Court did), do those two factors above make any difference at all? Of course not- because they are totally ancillary issues. Functionally, the mandate and the mortgage deduction operate the same. In both cases, you are incentivized (whether by a "penalty" or by an inability to obtain a deduction) to adopt specific behavior. Encouraging desired behavior is one of the two clear purposes of Congress' tax powers (the other being the raising of revenue).

You are having to make a lot of assumptions to get to the point they are both economically similar. Were taxes raised by the exact amount of the deduction given to homeowners back when the mortgage interest deduction was given? I doubt it.

I'm not saying one tax is right and the other is wrong, I think they are both constitutional, but I also think they are economically different.

[calicoug]

You are having to make a lot of assumptions to get to the point they are both economically similar. Were taxes raised by the exact amount of the deduction given to homeowners back when the mortgage interest deduction was given? I doubt it.

I'm not saying one tax is right and the other is wrong, I think they are both constitutional, but I also think they are economically different.

No. The assumptions are in there to make the comparison clearer. Whether or not the assumptions actually are correct isn't particularly relevant for the actual comparison.

If Congress raised taxes a day before it enacted the deduction, would that make a difference (same thing, just timing issue). What if they raised them a month before? A year before? 10 years before? What if they never raised them? It's totally irrelevant.

Economically, your incentive should be the same, and that is all the government is legislating. The mortgage deduction, much like the mandate, has nothing to do with raising tax revenue.

[calicoug]

By the way, did anyone notice Ari Fleischer yesterday tweeting that it's too bad Harriet Miers wasn't the one ruling on the opinion? A clear shot to all conservatives who scuttled her nomination because she wasn't conservative enough.

[Color Me Badd Fan]

By the way, did anyone notice Ari Fleischer yesterday tweeting that it's too bad Harriet Miers wasn't the one ruling on the opinion? A clear shot to all conservatives who scuttled her nomination because she wasn't conservative enough.

John Roberts was nominated after the Harriet Miers uproar? That's news to me and I'm sure that's news to John Roberts and Sam Alito.

[Color Me Badd Fan]

I love the "stealth coup" line from conservatives. Here's to hoping we have many, many more opinions just like this one that are also "stealth coups." This is the problem with Washington and many of its followers. They are so totally blind to the mechanics of policy because they can only see things through the political lens of "who is winning in the polls right now?" They see this decision and then see that it could energize the base and that it could therefore get Romney elected (an inference piled on an inference piled on...) and conclude that such must have been the actual intention of the Court all along! It's really just a device to help Republicans!

Sure- the Court could have said exactly what it said on the Commerce Clause, and exactly what it said on Medicaid, and exactly what it said on the Necessary and Proper Clause- and ALSO held it unenforceable under the Tax Clause. But, alas, that wouldn't have been good for the politics! So Roberts really saved Republicans everywhere.

I don't care how many people spout this line or how often. It's just incomprehensible to me.

Roberts may have cared about politics, but the ones he cared about all relate to perceptions of the Court. I will guarantee this case was not decided as a means to help Romney get elected or some other form of stealth coup. But if it makes Republicans happy, let them think it.

Roberts made it pretty clear that he wasn't passing judgment on the merits of the law and whether it was good policy; in fact, I think he implied that it wasn't good legislation.

There were people before all this that were saying that the Court upholding this law would help Romney more than if they overturned it. I'm not one who believes that, because overturning the law would have made the entire Obama presidency seem like an utter waste to nearly everyone which is worse than his presidency seeming pernicious to only some because Obamacare remains.

But I certainly understand the argument because now it's not simply a matter of the House keeping Obama in check, now we have to get rid of this horrific legislation because it will do tremendous damage to our health care system. You can explain things away about not caring what the polls say -- but they've been pretty clear and the 2010 midterms were very clear, not clear enough for someone like you to get the message though and the same can said for Obama.

Without the Supreme Court case, Obamacare may have faded somewhat into the background. Maybe you can explain to everyone here that if Obamacare was such a great piece of legislation, then why is it largely not implemented until after the 2012 election? These guys thought they could shove this legislation in despite the popular will against it, it would fade in everyone's minds and Obama would cruise to reelection based on the fantastic economy borne of Obama's "great bang for the buck" stimulus. Because of the Supreme Court case, that scab has been ripped off and people are pissed off like it's 2010 again. It also turns out that food stamps and dropping bags of money onto spendthrift state and local governments doesn't exactly breed economic expansion (please explain your great bang for the buck side of things, we're all ears).

Anyway, if it is 2010 again, then Obama is toast. If Scott freaking Brown can win Ted Kennedy's old Senate seat as a result to Massachusetts not wanting Obamacare, then I'm having a hard time seeing how Roberts calling this thing a tax two years later and thereby reopening this wound is going to do anything but hurt Obama in places like Ohio and Florida which aren't exactly Massachusetts. This decision was going to be a negative for Obama regardless of result -- despite my diatribe here I still believe overturning it would have been worse for him, but actually happened and the law being labeled as a tax isn't exactly political manna from heaven for Obama.

[LA Ute]

If the Court had overruled Obamacare, then yes, our former Lecturer at law looks like a doofus. Supreme Court rulings tend to lend an aura of legitimacy to the winner. That's why I don't agree with conservative pundits who say that this is a Pyrrhic victory for Obama, or that it is better for Romney that Obamacare survived. The win will come at a cost to Obama, and the decision will preserve an important talking point in the election that swings in Romney's favor, but yesterday was, all things said, a good day for Obama.

No question. I think Allen's a bit over the top, though, when he says "The attack on Obama that has tested best with focus groups - incompetent, in over his head - is now in tatters." Weakened a bit, maybe, but in tatters?

[All-American]

No question. I think Allen's a bit over the top, though, when he says "The attack on Obama that has tested best with focus groups - incompetent, in over his head - is now in tatters." Weakened a bit, maybe, but in tatters?

Certainly not. The Roberts opinion affirmed that there is a great deal of stupid policy that the Constitution will tolerate.

[All-American]

Richard Epstein does not approve of the opinion.

http://www.nytimes.com/2012/06/29/op...nion.html?_r=1

[oxcoug]

I love the "stealth coup" line from conservatives.

Yeah, sorry bro - it's not coming solely or even primarily from conservatives. Two of the most prominent advocates of the line of thought that Roberts was laying the foundation for the long game are noted liberals Jon Chait and Ezra Klein.

[Pelado]

Decades of academic studies of the question of driving insurance coverage with penalties and incentives have found that a mandate crafted this way would have a significantly smaller effect than a mandate that was structured as a legal requirement with a penalty. (The Congressional Budget Office discussed some of that literature in this paper from 2010.) The basic reason appears to be that a lot of compliance with legal requirements is driven by people’s inclination to do what they are required to do by law, quite apart from the cost of breaking the law. When the imperative to buy insurance is instead presented as a choice between two options, more people will be likely to choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage). If Obamacare is not repealed by 2014, the behavioral economics of insurance decisions suggests, today’s Court opinion sets up the Obamacare system for an insurance death spiral — less expressly than an outright striking of the mandate while leaving the rest of the law intact, of course, but pretty expressly.

Second, the Medicaid portion of the decision is very important, and (to me) rather surprising. The Court essentially ruled that the Medicaid expansion in Obamacare is optional for the states. Obamacare as originally written would have required states to participate in the huge expansion of the (unreformed, and very badly designed) program, and states that did not participate would have lost all of their federal Medicaid dollars. That expansion accounted for about half of the overall reduction in the uninsured scored by CBO. The Court now says that states choosing not to participate in the expansion must be able to remain in essentially today’s Medicaid program — they would not get the new federal money that Obamacare allocates for the expansion, but they would not lose the funding arrangements they have with Congress now. Here again, the Court simply rewrites a portion of the law to answer a constitutional objection rather than ruling that portion unconstitutional.

http://www.nationalreview.com/articl...val-levin?pg=2