tmccarthy0's picture

    Politics, the Kennedy Court and Health Care

    If I were a member of the Supreme Court I'd be a bit embarrassed at how easy it is to predict Supreme Court rulings knowing only a few elementary political facts.

    I expect a 5-4 ruling and I expect it to break down along political lines. It shows me this, the Supreme Court is only there to support certain ideology, making this less about the Constitution and more about what it is to hold power for more than 30 years.  This, whether the members of the court care or not this is the problem. They've become, based on Bush v. Gore merely an arbiter that always errs on the side of promoting the political ideology of one side or another. Imagine if  Brown v. Board of Education, Bolling v. Sharpe, Cooper v. Aaron, Gomillion v. Lightfoot, Griffin v. County School Board, Green v. School Board of New Kent County, Lucy v. Adams, Loving v. Virginia had been left for this court to decide, shit, we be where South Africa was in the 1980's in terms of civil rights. We'd be the largest segregated nation on earth!

    Well, let's get past the rant, let's talk about Anthony Kennedy.

    I've heard all the popular analysis about Kennedy, that he is the swing vote, etc. and so on. Well, yesterday in a little noted exchange he seemed to be telling the government lawyer the route he should take to defend the constitutionality of the law.

    In an exchange with Paul Clement (he is representing those 25 states), this went down:

    Kennedy asked Clement this: Is the government's argument this--and maybe I won't state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks. That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?

    And just a short while later:

    MR. CLEMENT: And with respect to the health insurance market that's designed to have payment in the health care market, everybody is not in the market. And that's the premise of the statute, and that's the problem Congress is trying to solve.

    And if it tried to solve it through incentives, we wouldn't be here; but, it's trying to solve it in a way that nobody has ever tried to solve an economic problem before, which is saying, you know, it would be so much more efficient if you were just in this market--

    JUSTICE KENNEDY: But they are in the market in the sense that they are creating a risk that the market must account for. 

    MR. CLEMENT: Well, Justice Kennedy, I don't think that's right, certainly in any way that distinguishes this from any other context.

    What does this mean? It almost seems like Justice Kennedy is signaling the defense the government should be making, (and why aren't they anyway??? WTF, seriously).

    And a little later this:

    MR. CARVIN: It is clear that the failure to buy health insurance doesn't affect anyone. Defaulting on your payments to your health care provider does. Congress chose, for whatever reason, not to regulate the harmful activity of defaulting on your health care provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured. 
    JUSTICE KENNEDY: I agree--I agree that that's what's happening here. 
    MR. CARVIN: Okay. 
    JUSTICE KENNEDY: And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets--stipulate two markets--the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. 
    That's my concern in the case.

    I fully expect this to be a 5-4 decision based on the politics of the Court. I have no faith that whatsoever in the non-partisanship of the court.  Sorry -- Bush v. Gore cured me of believing in the non-partisanship of the court. And I know that 75% of the country is with me on that, this is something that the Court itself should be ashamed of and it is telling that they are not.

    Oh well, we tried. Get ready for your health insurance costs to skyrocket.

    Crossposted @ TheAngriestLiberal


    Agree. I think the individual mandate will go down with this court. As with 'closing Gitmo' Obama over reached, and the Democrats in Congress did not help. They could have and should have started some optional buy-in to single payer, with a sign in period once a year, perhaps limiting numbers by age at first, say, open Medicare to 60-64 year olds first, then 55-59 year olds a few years later etc, or something incremental and optional.

    Even the New York Times is not reporting this well, see Dean Baker's slap down of a poorly done NYT article link.

    It unfortunately seems that this country will never have what others have, a real system for health care with reasonable costs and universal insurance. I note a comment at the NYT that said in BC, Canada, insurance cost for an individual is $65, a family a hundred and something a month. Another from a non-resident in Japan gets coverage for $50 a month. When we visited Australia as tourists a decade ago, an office visit for a minor illness, the entire bill, was less than our co-pay in the US, and the drugs were less than 20% the US cost.

    It will take more time, more money sucked out of our pockets by for-profit health corporations answering to Wall Street, and more years of ineffectiveness by politicians bought and sold by big money before things change for the better, if ever.

    One question will be how will a SCOTUS no vote on the mandate, and the resulting collapse of Obama's health care plan affect his re-election. It likely won't be good, although he is very good at bouncing back from setbacks, and he is getting better at meeting challenges. In effect, the current plan is a plan to preserve private insurance more than a plan to deliver affordable health care to Americans. If this does go down, both the Dems and the GOP will have to come up with a new plan, as our existing 'system' is getting too high priced, there are too many uninsured, and if premiums rise further it will get  too expensive for far too many to afford.

    I definitely don't know what the court will do.  I'm not good enough to guess outcomes based on lines of questioning.  Though, as you say, predicting justice votes has been a lot easier of late than it has been at other times in history.  From what I've read, Scalia isn't even pretending to entertain counter-arguments to his preferred position on this one.

    One problem from my perspective is that even though I don't want to see the ACA get tossed out, I'm pretty unconvinced by the argument in favor of the mandate.  The idea that the uninsured raise costs for the insured (to the extent that they are unable to pay out of pocket for services) makes sense, but I think it's something the industry pushed and maybe even exaggerated in an attempt to win what was, in the end, one of the largest subsidies to a private industry ever put on the table.

    "The uninsured are part of the market too," isn't an argument for a universal mandate, it's an argument for a public health care option, paid for through taxes.  Or, it's an argument for a totally government run system.

    I don't have a ton of sympathy for a mandate that says, "You have to buy health insurance, you don't necessarily get to pick who you buy it from and if the provider available to you is Aetna and you don't like it, tough."

    But, here's the thing... if you just drop the mandate and keep the rest of the law, including subsidies for people to buy health insurance if they can't rightly afford it, I bet the vast majority of people would still buy health insurance.  If it's affordable, people will likely want it.  Only a trivial number of people will opt out because health insurance has all sorts of benefits beyond catastrophic coverage.

    I'm guessing that the holdouts, in a system where there's premium support for those who need it, no co-pay contraceptives and that covers preventative care, that very few will choose to opt out.

    It depends upon the funding mechanism for the uninsured. Most of the uninsured cannot hope to afford even the modicum of care of Catastrophic Coverage offers let alone an insurance policy that covers basic care as described in ACA. I would be surprised if those who are economically disadvantaged, but work, will ever be able to afford this type of policy. If the mandate is struck down, the bill goes down in flames, because costs go down only through universal coverage, which is just basically creating the largest group to cover.  I don't see it.

    Today's arguments seem more promising for the mandate according to everything I am reading. But seriously... I have no idea what is going to happen here and I am not getting my hopes up, I am tired of being utterly disappointed.

    I'm with ya, TMac.  I just don't trust this court at all.  They'll spend the next decade happily knocking down any laws Obama gets through and then they'll lecture us about the dangers of judicial activism.

    no worries mate we already have a single provider this country which has the best outcomes of any other competing system. The undeniably constitutional VA. Or, take your "premium support" plus some couch change to the Medicare for All office. Paul Ryan says it's ok

    I wish everyone would listen to this little clip of the governments Lawyer: it is nothing short of completely and utterly embarrassing. Thanks Buzzfeed!



    There's just so many elements to this that it is very difficult to lay out all the identifiers that, IMO, are playing a major role in this debacle.

    I think it's simplistic for us to assert that it's solely political ideology/partisan politics that will be the deciding factor if the majority of the SCOTUS rejects this legislation.

    Too often, again IMO, we tend to take all the facets involved and blithely lump them together under the identifier of political gamesmanship.  Both sides of the aisle, no matter if conservative or liberal, do this. Easy and convenient.

    In this case, is it purely political mindset?  I don't know, because we need to break it down and really examine all parts before we 'judge' the whole to be tainted by political affiliations.   

    I'm not a legal scholar, but I do have more than the average experience and knowledge of our legal processes.  I haven't read the law (but then, who really has) nor have I read the pleadings.  

    That said, I will assert that until the 'laws' presented and acted upon by our legislative bodies continue to equate the same kind of cumbersome gobbledegook that is akin to our tax code, 99.9% of us will remain ignorant of the content and benefits/consequences of these bills.  

    Is it because this and other laws/legislation are so poorly written, lacking clarity, that different judges interpret them so differently?  I'm thinking that plays a large part in many cases.  

    If only our legislative bodies would just KISS.


    Was politics involved in this Bill in the Congress??

    Does politics stop at Supreme Court?

    Clarity.  Simple, it's Obamacare. It would be Obamacare to the GOP if it was 1/2 page long.

    What do we get, well, what do we have now, how many even know? Twice or more the health expense of any other industrialized nation, 37th in effectiveness by standard measures of health in the population, and 40+ million with no insurance.

    It isn't gobbledegook to Wall street money, ALEC or Koch, they know exactly what they are getting from the guys they put into office. 


    I read the bill Auntie, in entirety. It is exactly the FEHBP codified as regulation for the entire country.  FEHBP, Federal Employees Health Benefits Program, the same program where I already get my health insurance.

    First and foremost is describes what is required in a basic health care plan, what services are covered in that plan, and which part of the plan doesn't require a co-pay. It also sets a dollar amount for co-pays, and regulates the health insurance industry so they can't simply refuse to pay for a service as described in the law.

    The other thing of course it does is keep some children on their parents plan until they reach the age of 26, requires the covering of pre-existing conditions, (just like FEHBP, I know I have a pre-existing auto-immune disorder, Graves Disease) and my treatments are covered and I can change insurers if I want and they must cover my pre-existing condition. It also lifts the lifetime cap on pay outs that many health insurance companies have, unless of course you are a federal employee. Some insurers capped life-time payouts at a million dollars and people with really serious problem, maybe they need a heart transplant reach those limits quickly. Yet those are the folks who need the long term care the most. Hi Dick Cheney!

    There are also complicated reporting requirements for insurance companies in this bill, they must spend 80 - 85% of premiums on health care for the participants, there was no regulatory requirement before this, and this is perhaps the most important regulatory aspect of the bill, regulating the profit margin of Insurance companies. There are electronic records requirements too which should go a long way to deliver basic care to those who have never received basic preventive care.

    There are more and I won't go into it, but it is important and yes I've read the entire bill.

    This type of regulation which is what this is, cannot be kept to 20 pages. It isn't simple to write and implement a regulatory scheme without stating what is being regulated and how it is being regulated and what the requirements are.

    (I was a baking fiend yesterday.. which is why this took me so long to think about and respond! Synch will be here today Auntie)

    Thanks tmac.  I understand it needs more than 20 pages, but 2700?  

    I'm waiting for the SCOTUS decision and the filings as to basis for rulings.  Until their ruling is published, I'm not going to assert or opine about political influence or any other rationale.  IMO, there's just to much rush to judgment (no pun) on issues which only serves to inflame and add to toxic political and societal climate.

    That said, if it's 5-4 against and if their foundation is without true legal and valid merit, then I'll be voicing my outrage louder than most.

    Of course, I support President Obama and what I know about the bill.  But, I'm just waiting for facts.  IMO, there's nothing productive or positive to be accomplished by doing otherwise. Nothing can be done by public at this point to alter the outcome.

    At the beginning of the year I received the book of rules sent every year from our health insurer, that outlines exactly what is covered, the cost reimbursement etc and it is 926 pages long not including the addendum.

    The reason it is 2700 pages long is that it also includes the expansion of Medicaid, which was a hike in the percentage over the poverty level that requires Medicaid cover the insured.

    It is more than a bill because the bill includes as described above and a funding mechanism for those who will receive subsidies. I just don't think the correct argument is the size of the bill. This is the largest social program implemented since Medicare. By it's very nature and what it covers there is no way to get around the page count.

    I'm not arguing it is or isn't the bill.  I don't know what their decisions will be, so I can't intelligently debate any rationales/reasons they cite for any ruling.

    But, there is a problem with the legislative body when majority admits they never read the whole bill before voting - It's not only this bill, but my understanding the majority of major legislative actions that this applies to  -  Like I stated, they all just need to KISS.

    The Supreme court is like fishing. You can yank on the line once the float begins to bob and take a chance of setting the hook and hauling in a fighting fish ... or ... you can set let the fish take the hook then give it all the line in needs, ever so gently pulling in the sack to slowly wear it out and have it swim to you without a fight.

    Note what Scalia said ...

    " ... the individual mandate may be necessary to carry out the Affordable Care Act, but it is not proper because it violated the sovereignty of the States ... ".

    He just gave Obama's team the best reason to sway the court in their favor.

    It's because the so called "sovereignty of the States" health care is in such shambles. For example, when I turned 50, my private health insurance I was paying for out of my pocket jumped from $250 a month to over $900. I protested with the state insurance commissioner and was shocked at what I was told.

    Seems in order for a State to get health insurance in their state, insurance agencies have a set of rules the State must agree too. Basically, rates are determined by the possible number of people willing to subscribe for health care; low populations drives the basic cost up simply because there are fewer people in the "pool".

    Second, are the pre-existing conditions. Here the State is at the mercy of the insurer simply because someone with a pre-existing condition will absorb more services than someone without; that eats into the profit the insurer is expecting to harvest.

    Third, old age; this is where I fell in. Once a person reaches 50, all the abuses they've put their bodies thru begin to emerge. The person may have been the picture of health, but once they reach the magic age, their body can't keep up and begins to fail at keeping the body functioning as it once did. And those costs too eat at the profits the insurer is expecting.

    So the insurer become a modern day King Solomom over the people in the State. For those who are in good health and require little if any care receive the blessing of the insurer while those who have failing health or have reached an age where one's life endeavors begin to show are cast aside for the betterment of the society as a whole. To ask to be given the same blessings as those who are healthy requires one to pay a price far greater.

    Yet Obama's team dropped the ball to Scalia's line of questioning. How can the federal government be violating a State's sovereignty if the State itself either isn't exercising that sovereignty or they haven't the political muscle to force the insurer to terms that are in the best interests of the citizens of the State?

    The federal government is the bully pulpit in the discussion and can be used to force insurers to deal more fairly with States. That in itself isn't overriding a State's sovereignty ... it enhances it and that should have been the answer given to Scalia ... which it wasn't.

    When you reach 65 Ryan will give you an $8K voucher, which won't even cover your bill at 50, and the ability to shop for health care insurance on the 'free' market when you need it.

    Somebody said selling private health insurance is as practical as selling ship insurance, where all ships were absolutely certain to sink.

    I will cheerfully take the 8k if they will let me spend it at the VA and keep the change.  Trouble is, they keep turning me away on account of not being a veteran.  If they changed that, the 8k would be just fine.


    Speaking as a draft dodger. hahahahahahahah

    Is not the 8k a track event in Yugoslavia?

    Oh yeah, there aint any Yugoslavia any more!

    Never mind!

    I was all set to dodge, and was fixin to haul my 1A ass across the Northern Border, when the nice man reached into the bingo basket and pulled me a 315 or 20, sumpin like that.

    It's true that pharmacological issues have obscured much of the memory I laid down in the 60's (ed note:and the other decades...?) but  I remember that on TV.

    I'm a vet and Bu$h whacked me back in 2004 by raising the minimum requirements for vets to enter the plan. Obama was suppose to have corrected it, however, I'm no longer in the US so I can't re-apply ... VA medical is only good within the US borders.

    Word is out on the streets if Obamacare goes the way of the do-do, insurers are going to tighten down the hatchets and concentrate only on business group plans leaving those of us who can't get group heath care because employer's either can't afford it or has moved to part-time employees to avoid providing the benefit, out in the cold ... premiums outrageously high to purposefully discourage people from inquiring.

    ObamaCare was a day late and a dollar short from the get go and the Republicans made sure there were enough gotchas in it to make it susceptible to court challenges on just a whim.

    Obama needs to pull back, re-group and try again, this time making sure they tie up the loose ends so the Republicans can't unravel it later in court.

    It's an attitude that seems to permeate this country. A belief that one is entitled to get whatever they can for little or nothing and it's the mantra of the right wing.  So they have no problem with insurance companies.

    Lie, cheat and steal to get the all mighty dollar and far too many people on both sides are too OK with it. Me first and the devil take the hind most.

    Where the term welfare has been distorted from it's true meaning of the good fortune, health, happiness, prosperity, etc., of a person, group, or organization; well-being. To handouts to the undeserving.

    Where compassion and comfort have become dirty words.


    This says it right here. From Sam Smith.

    The commerce clause of the Constitution - which has been steadily replacing the Bill of Rights in the minds of the faux intellectuals of America - could easily mean absolutely anything after the Supreme Court decides the Obamacare case.

    As lawyers have taken over American politics, documents such as the Constitution are no longer considered moral and political declarations, but rather just another scroll down list of legal requirements for which your only right is to click, "I agree" in order to use America.

    And because lawyers these days largely work for corporations, we no longer live in a democracy, a culture, a land, but in a market. Thus everything is decided relative to the market.

    Hence this from the Wall Street Journal:

    Justice Kennedy, however, later seemed to sympathize with the government's argument that everyone is involved in health-care commerce because at any time they might need medical care. He said uninsured young people are "very close to affecting the rates of insurance and the costs of providing medical care," suggesting they too are engaged in commerce.

    So you no longer have to be participating in interstate commerce, you just have to might be at some point in order to be "very close to affecting" the market and thus covered by the commerce clause.

    In other words, the government will be able to tell you how to have sex, because, after all, you might have to purchase a condom.

    This is what happens when lawyers replace philosophers, priests, writers, teachers and politicians in the interstate commerce of thought and

    Yes compassion and comfort have become dirty words, you are so right C. Hey Synch should be here today! We need to all get together and chat sometime soon. laugh

    I've read a bit where people opposing ObamaCare state they're against other people freeloading off the system. They claim to be in perfect health and it makes them angry their premiums are higher than they should be because other people who aren't as health as they are become a drag on the pool of insuree's which raises premiums across the board.  What's missing from the argument is insurance is a risk pool.

    Not everyone will be in perfect health. Younger people have little to no health problems whereas older adults are starting to wear out their bodies and require more health care services. The lack of need for services by one group serves to finance the needs of the other. Later on, those young adults will themselves be in need of more services than their premiums cover ... what goes around comes around.

    Another point missing too is longevity in the pool. I've been covered by medical insurance, 10 years active duty military, then corporate employee health care since I was 18. Even though I have participated in paying into the pool thru payroll deduction and employer contributions I can't carry that to another insurer. In other words it's not like interest in a bank account ... once you move your money out, you can't take the interest earned - you loose it.

    What's really missing from the entire health care debate is the personal contributions carry no interest over the long run because of profits. Even though I'm at that age where the body begins to breakdown due to wear and tear over the years, I have made my contributions into the system so if I need more services than what my premiums pay for, I already paid in advance to cover those extra costs.

    I've read a bit where people opposing ObamaCare state they're against other people freeloading off the system.

    Interesting thing though is that those who scream the loudest about free loading are the same ones who like to game the system so they can free load off of it.

    Look Mac there are serious Constitutional and Justitutional issues here!

    How best might we help the nation better bow down to corporate interests. (Federal Papers # 321)

    How best might we insure that there will be created an Aristocratic Class, free from inheritance taxes and free to keep the children in the running? (Federal Papers # 212)

    How best might we insure that those who rape our land in order to deny the landowners any chance of reprise? (Federal Papers # 123)

    How best might we insure that the powerful keep down the will of the masses in order to keep order in the NEW AGE? (Federal Papers # 24)

    How best might we keep the mighty mighty and yet pretend to kow tow to the many? (Federal Papers # 21)

    How best might we increase the riches of the rich and deny as much as we can from the poor? (Federal Papers # 412)

    How might we best keep the lowly worker from having any access to the means of production? (Federal Papers # 113)

    How might we keep the Republic by keeping the voter from having anything to do with the Republic? (Federal Papers # 110)

    How might we keep the corporation from being attacked by the ignorant voter? (Federal Papers # 68)

    How might we keep the common person from seeking the reins of power? (Federal Papers # 62)

    How might we deny democracy from those rotten no good Dems? (Federal Papers # 407)

    That's all I got right now!

    But be sure, the repub Supremes have much more to tell us!

    For your obvious and incandescent display of Real American patriotism, I hereby submit your name for the initial issuance of an authentic Justice Scalia Government Broccoli Coupon. It may be good for one broccoli, it is also good as barter for health care, Medicare, Medicaid, VA are canceled, for the status of any private policy check the small print on the broccoli stalk.

    I was so sure nobody read this. hahahaha

    In my old age, I have come to love broccoli! hahaahaha

    I dunno, I add some cheese and I relish it as much as I hated it decades ago.

    Besides, my feet and hands no longer swell!

    And coupons!

    Hell, if i can save a buck...what the hell?


    I hate these people. hahahahah

    I love broccoli too Dick!

    If hospitals are mandated to treat people with out means to pay for it and cannot turn anyone away because of a past supreme court ruling. Then don't that already puts everyone in the market because of that mandate. Since the high court has already mandated emergancy health care is to be given to everyone should they not mandate everyone contribute to pay for it? GOP needs to be careful about what they wish for. A win for them on this could mean a backlash in November. The idiots didn't see the backlash coming from women and OWS. This country has a large population that wants healthcare insurance and is tired of doing without.

    I agree with this momoe. In particular I think you are correct about the backlash against Republicans if the court oversteps once again. But I don't think the conservatives on the court give shit about anything except making America a libertarian/right wing country.  It's depressing.

    I would hope that at least one of those guys would step out of their KochStupor and step up for  Americans, be the Earl Warren we need, but I can't see it with these guys at all.  I don't  see a conservative who will be willing to step out of the ideological bubble and think about the country and the people who make up the country.


    You are correct that the odds would favor a 5-4 split finding at least that the individual mandate is unconstitutional.  If that is what happens it confirms the absolute folly of the notion that it matters not who sits in the Oval Office in 2013 and going forward.  I know it's fun for some to claim that Judge Sotomayor, for example, is just another corporate stooge, but that kind of bald charge is easy to make and nothing more.

    The fact is that Judge Sotomayor is going to vote for the constitutionality of the HCA.  And that is not just significant with respect to the critical issue of health care reform.  More significantly, this case could turn the notion of federal social welfare program into a relic of bygone days.  This is a battle over the meaning of interstate commerce, the constitutional underpinning of the New Deal and myriad federal social programs since the 1930s.  The battle over the meaning of interstate commerce  is a battle that progressive Americans finally won on the eve of WWII.  Seventy years later, the same battle is being waged again.  

    It sure as heck does matter who sits on the Supreme Court.  And, accordingly, it matters who is nominating those who sit on that Court.

    Thanks Bruce, and I agree with everything you wrote. It does matter who sits in the oval office, it matters greatly. Like you, I wish more people would realize this when they don't vote, and when they say it doesn't matter.

    And it appears Justice Sotomayer asked some of the most pointed questions during the hearings, unlike Scalia who is obsessed with whether or not the government can force you to eat broccoli. Ugh...

    Wendell Potter (former top CIGNA executive):

    “They (big insurance) don’t want the bill - quite honestly - to be overturned or repealed. They want the bill to go forward with the individual mandate intact. But what they want to do is to get people to vote out the Democrats who voted for the bill so that they’ll have more friends in Congress to strip out the consumer protections.”

    He also predicts the implosion of our health care 'system', similar to the Wall Street mortgage swindle, drain the system of as much cash as you can, then let it collapse and let government pick up the pieces:

    Potter says for-profit health insurers are killing health health care and their unsustainable system will implode within a few years. That’s the view he got from the CIGNA corporate ladder.

    Wow, interesting NCD. Kind of depressing though isn't it.

    It is so true however. Of course, corporations #1 mission is to make profits, what else could one expect from them, doing what's best for the nation? Fat chance of that.

    After reading Wendell's take, I am almost hoping the law goes down.  If Potter is right, the opportunity to game the 'regulation' $ystem, and buy off agencies and politicians, with everyone having to sign up for private insurance is huge.

    Ditto on the thanks for the link!

    I rarely check TPMCafe anymore but I just thought to do so right now and found:

    Reed Hundt explaining to his old classmate Sam Alito that "It's not that complicated"

    AA, thanks for that, very very interesting piece. Thanks for the link.

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