Many Thanks to FOIL's Sekhar Ramakrishnan for accumulating this comprehensive coverage of the Supreme Court hearing on the Health Care Bill.
-----Forwarded Message-----
>From: Sekhar Ramakrishnan
>Sent: Apr 1, 2012 10:56 AM
>To:
>Subject: [foil] on obamacare, US not unlike Iran
>
>Back in 2000, when the US Supreme Court chose Bush to be the President
>even though he had lost, it was rationalized by the need for certainty as
>opposed to protracted court proceedings. Liberals took comfort in the
>court majority's assertion that it was a decision that would set no
>precedent. But key decisions since then have made clear that the
>rightwingers on the court are not at all bound by precedent or restraint,
>which they talk about a lot, leave aside any compassion.
>
>Against this backdrop, the so-called constitutional challenge to
>Obamacare, dismissed by even ardent rightwing legal experts as nonsense,
>has been validated by the Supreme Court's right wing during the oral
>arguments this past week. It appears very likely that key elements of
>Obamacare will be declared unconstitutional, especially the mandate that
>everyone get health insurance or pay a penalty/tax to cover the costs of
>society having to pay for healthcare of the uninsured, and perhaps even
>the expansion of Medicaid to cover 30 million working poor who cannot
>afford to buy insurance on their own (the latter on the grounds that it
>somehow infringes on states' rights, which it does by providing all the
>funds needed to help more people get health care but some state
>governments don't want to help their poor).
>
>My thought about Iran is that the situation in the US is not so different
>from what goes on Iran now and even more when Khatami was President.
>Regardless of the popular vote, the elected President could not implement
>his policies if the religious leadership disapproved. In the US now, that
>role is played by the Supreme Court, with a politicized majority appointed
>by Republican presidents.
>
>After days of handwringing, even nytimes has come to recognize the
>rightwingers on the Supreme Court for what they are and has resorted to
>pleading with Chief Justice Roberts to please, please be nice. Roberts has
>shown no sign till now that he is anything but a lapdog to Scalia's hard
>right stance. So all hopes lie with a single judge, Anthony Kennedy, whose
>demeanor was quite hostile.
>
>But I have yet to see any comparison of the rightwingers on the US Supreme
>Court to Iran's Guardian Council. It is true that Iran's set-up is
>theocratic, but the belief that, whatever be election results, its
>ideology is the only legitimate one is pervasive on the right in the US,
>going back at least to delegitimizing Clinton's presidency and reaching
>full bloom after Obama's election.
>
>In doing its best to delegitimize and to defeat Obama, the right wing of
>the Supreme Court is acting not so differently from the Guardian Council
>in Iran.
>
>Also noteworthy is that these judges don't have some consistent view on
>the constitution. If this law had been passed by Republicans, they would
>not be concerned about its constitutionality. My favorite blogger points
>out in the last item below that, if Republicans regain power in
>Washington, privatization of social security is coming, which would also
>require mandatory contributions from individuals but not to the government
>- the Supremes won't be bothered.
>
>Nor are the judges necessarily influenced by the interests of big capital.
>The healthcare industry is broadly in support of the new law because it
>rationalizes some of the chaotic aspects of the industry. But defeating
>Obama is apparently more important.
>
>http://www.nytimes.com/2012/03/30/opinion/krugman-broccoli-and-bad-faith.html
>http://www.nytimes.com/2012/04/01/opinion/sunday/the-roberts-court-defines-itself.html
>from Paul Krugman and nytimes editors,
>
>http://articles.chicagotribune.com/2011-04-17/news/ct-oped-0417-chapman-20110417_1_individual-mandate-obamacare-health-insurance
>http://www.washingtonpost.com/blogs/plum-line/post/how-did-obamacares-backers-get-it-so-wrong/2012/03/29/gIQArH5wiS_blog.html
>two with the views of Reagan Solicitor General Charles Fried, and
>
>http://nomoremister.blogspot.com/2012/03/chuck-todd-both-sides-do-it-warch-how.html
>http://nomoremister.blogspot.com/2012/03/no-supreme-court-rejection-of-mandate.html
>http://nomoremister.blogspot.com/2012/03/prediction-supremes-wont-strike-down.html
>http://nomoremister.blogspot.com/2012/03/so-are-they-all-all-honorable-men-in.html
>http://nomoremister.blogspot.com/2012/03/ezra-dont-assume-that-arc-of-health.html
>http://nomoremister.blogspot.com/2012/03/remind-me-again-how-has-being-hated.html
>http://nomoremister.blogspot.com/2012/03/i-am-shocked-shocked-hypocrisy-is-going.html
>by my favorite blogger, who repeatedly makes the point that assorted left
>fantasies of a single-payer plan or a variation on the mandate will
>neither pass Congress nor meet with any more approval from the right wing
>on the Supreme Court, contain the material below.
>
>Sekhar
>
> NY Times March 30, 2012
>
> Broccoli and Bad Faith
>
> By PAUL KRUGMAN
>
>Nobody knows what the Supreme Court will decide with regard to the
>Affordable Care Act. But, after this week´s hearings, it seems quite
>possible that the court will strike down the "mandate" - the requirement
>that individuals purchase health insurance - and maybe the whole law.
>Removing the mandate would make the law much less workable, while striking
>down the whole thing would mean denying health coverage to 30 million or
>more Americans.
>
>Given the stakes, one might have expected all the court´s members to be
>very careful in speaking about both health care realities and legal
>precedents. In reality, however, the second day of hearings suggested that
>the justices most hostile to the law don´t understand, or choose not to
>understand, how insurance works. And the third day was, in a way, even
>worse, as antireform justices appeared to embrace any argument, no matter
>how flimsy, that they could use to kill reform.
>
>Let´s start with the already famous exchange in which Justice Antonin
>Scalia compared the purchase of health insurance to the purchase of
>broccoli, with the implication that if the government can compel you to do
>the former, it can also compel you to do the latter. That comparison
>horrified health care experts all across America because health insurance
>is nothing like broccoli.
>
>Why? When people choose not to buy broccoli, they don´t make broccoli
>unavailable to those who want it. But when people don´t buy health
>insurance until they get sick - which is what happens in the absence of a
>mandate - the resulting worsening of the risk pool makes insurance more
>expensive, and often unaffordable, for those who remain. As a result,
>unregulated health insurance basically doesn´t work, and never has.
>
>There are at least two ways to address this reality - which is, by the
>way, very much an issue involving interstate commerce, and hence a valid
>federal concern. One is to tax everyone - healthy and sick alike - and use
>the money raised to provide health coverage. That´s what Medicare and
>Medicaid do. The other is to require that everyone buy insurance, while
>aiding those for whom this is a financial hardship.
>
>Are these fundamentally different approaches? Is requiring that people pay
>a tax that finances health coverage O.K., while requiring that they
>purchase insurance is unconstitutional? It´s hard to see why - and it´s
>not just those of us without legal training who find the distinction
>strange. Here´s what Charles Fried - who was Ronald Reagan´s solicitor
>general - said in a recent interview with The Washington Post: "I´ve never
>understood why regulating by making people go buy something is somehow
>more intrusive than regulating by making them pay taxes and then giving it
>to them."
>
>Indeed, conservatives used to like the idea of required purchases as an
>alternative to taxes, which is why the idea for the mandate originally
>came not from liberals but from the ultra-conservative Heritage
>Foundation. (By the way, another pet conservative project - private
>accounts to replace Social Security - relies on, yes, mandatory
>contributions from individuals.)
>
>So has there been a real change in legal thinking here? Mr. Fried thinks
>that it´s just politics - and other discussions in the hearings strongly
>support that perception.
>
>I was struck, in particular, by the argument over whether requiring that
>state governments participate in an expansion of Medicaid - an expansion,
>by the way, for which they would foot only a small fraction of the bill -
>constituted unacceptable "coercion." One would have thought that this
>claim was self-evidently absurd. After all, states are free to opt out of
>Medicaid if they choose; Medicaid´s "coercive" power comes only from the
>fact that the federal government provides aid to states that are willing
>to follow the program´s guidelines. If you offer to give me a lot of
>money, but only if I perform certain tasks, is that servitude?
>
>Yet several of the conservative justices seemed to defend the proposition
>that a federally funded expansion of a program in which states choose to
>participate because they receive federal aid represents an abuse of power,
>merely because states have become dependent on that aid. Justice Sonia
>Sotomayor seemed boggled by this claim: "We´re going to say to the federal
>government, the bigger the problem, the less your powers are. Because once
>you give that much money, you can´t structure the program the way you
>want." And she was right: It´s a claim that makes no sense - not unless
>your goal is to kill health reform using any argument at hand.
>
>As I said, we don´t know how this will go. But it´s hard not to feel a
>sense of foreboding - and to worry that the nation´s already badly damaged
>faith in the Supreme Court´s ability to stand above politics is about to
>take another severe hit.
>
> NY Times April 1, 2012
>
> Editorial: The Roberts Court Defines Itself
>
>For anyone who still thought legal conservatives are dedicated to judicial
>restraint, the oral arguments before the Supreme Court on the health care
>case should put that idea to rest. There has been no court less restrained
>in signaling its willingness to replace law made by Congress with law made
>by justices.
>
>This should not be surprising. Republican administrations, spurred by
>conservative interest groups since the 1980s, handpicked each of the
>conservative justices to reshape or strike down law that fails to reflect
>conservative political ideology.
>
>When Antonin Scalia and Anthony Kennedy were selected by the Reagan
>administration, the goal was to choose judges who would be eager to undo
>liberal precedents. By the time John Roberts Jr. and Samuel Alito Jr. were
>selected in the second Bush administration, judicial "restraint" was no
>longer an aim among conservatives. They were chosen because their
>professional records showed that they would advance a political ideology
>that limits government and promotes market freedoms, with less regard to
>the general welfare.
>
>There is an enormous distinction to be made between the approaches of the
>Roberts court and the Warren court, which conservatives have long railed
>against for being an activist court. For one thing, Republican-appointed
>justices who led that court, Chief Justice Earl Warren and Justice William
>Brennan Jr., were not selected to effect constitutional change as part of
>their own political agenda.
>
>During an era of major social tumult, when the public´s attitudes about
>racial equality, fairness in the workings of democracy and the dignity of
>the individual proved incompatible with old precedents, those centrists
>led the court to take new positions in carrying out democratic principles.
>Yet they were extremely mindful of the need to maintain the court´s
>legitimacy, and sought unanimity in major rulings. Cooper v. Aaron, the
>1958 landmark case that said states are bound by Supreme Court rulings,
>was unanimous. So was Katzenbach v. McClung, the 1964 case upholding the
>constitutionality of parts of the Civil Rights Act under the commerce
>clause.
>
>The four moderates on the court have a leftish bent, but they see their
>role as stewards of the law, balancing the responsibility to enforce the
>Constitution through judicial review against the duty to show deference to
>the will of the political branches. In that respect, they and the
>conservatives seem to be following entirely different rules.
>
>That difference is playing out in the health care case. Established
>precedents support broad authority for Congress to regulate national
>commerce, and the health care market is unquestionably national in scope.
>Yet to Justice Kennedy the mandate requiring most Americans to obtain
>health insurance represents "a step beyond what our cases have allowed,
>the affirmative duty to act, to go into commerce." To Justice Stephen
>Breyer, it´s clear that "if there are substantial effects on interstate
>commerce, Congress can act."
>
>Likewise, Justice Scalia´s willingness to delve into health care politics
>seems utterly alien to his moderate colleagues. On the question of what
>would happen if the mandate were struck down, Justice Scalia launched into
>a senatorial vote count: "You can´t repeal the rest of the act because
>you´re not going to get 60 votes in the Senate to repeal the rest."
>Justice Breyer, by contrast, said firmly: "I would stay out of politics.
>That´s for Congress; not us."
>
>If the conservatives decide that they can sidestep the Constitution to
>negate Congress´s choices on crucial national policies, the court´s
>legitimacy - and the millions of Americans who don´t have insurance - will
>pay a very heavy price. Chief Justice Roberts has the opportunity to avoid
>this disastrous outcome by forging even a narrow ruling to uphold the
>mandate and the rest of the law. A split court striking down the act will
>be declaring itself virtually unfettered by the law. And if that happens
>along party lines, with five Republican-appointed justices supporting the
>challenge led by 26 Republican governors, the court will mark itself as
>driven by politics.
>
>http://articles.chicagotribune.com/2011-04-17/news/ct-oped-0417-chapman-201
>10417_1_individual-mandate-obamacare-health-insurance
>
> A conservative defense of ObamaCare
>
>A Reaganite scholar expounds on its constitutionality
>
> April 17, 2011
>
> By Steve Chapman
>
>Opponents of President Barack Obama's health care program lost the
>legislative battle, but they have high hopes of stopping it yet. That
>could be accomplished by defeating Obama in 2012 and electing a Republican
>Congress. Or it could be done sooner, without an election, by the U.S.
>Supreme Court.
>
>But one eminent conservative legal scholar says: Dream on. Harvard law
>professor Charles Fried, who was solicitor general under President Ronald
>Reagan, believes the constitutional argument against ObamaCare is so weak
>that even the Roberts court will reject it.
>
>The legal challenges argue that ObamaCare rests on an unconstitutional
>provision: the requirement that every individual either buy health
>insurance or pay a fine. The chief proponent of this theory is Georgetown
>University law professor Randy Barnett, who says the mandate goes beyond
>Congress' power to regulate interstate commerce.
>
>"Never in this nation's history has the commerce power been used to
>require a person who does nothing to engage in economic activity," writes
>Barnett. "Therefore, no decision of the Supreme Court has ever upheld such
>a claim of power."
>
>The argument gained new credence when two different federal judges ruled
>the mandate unconstitutional (though two others disagreed). In January,
>District Judge Roger Vinson concluded, "If Congress can penalize a passive
>individual for failing to engage in commerce, the enumeration of powers in
>the Constitution would have been in vain."
>
>Fried, who made an unexpected endorsement of Obama in 2008, disagrees -
>and says he is the norm among his ideological kindred in the academy. "I
>have not met any scholars who teach constitutional law and are members of
>The Federalist Society who think it's unconstitutional," he told me by
>phone, referring to the libertarian-conservative legal group.
>
>His case is simple: Health insurance is commerce. Congress has the power
>to regulate commerce. Because it has that power, it may also select the
>means to achieve its goals. The individual mandate is a permissible way to
>advance the purpose of expanding access to health care.
>
>His interpretation, says Fried, "goes back to John Marshall," a delegate
>to the Constitutional Convention and the most important chief justice in
>Supreme Court history. It was Marshall who definitively explained
>Congress' right "to make all laws which shall be necessary and proper for
>carrying into execution" its specified powers.
>
>"It must have been the intention of those who gave these powers to insure,
>so far as human prudence could insure, their beneficial execution," he
>wrote in 1819. "This could not be done by confiding the choice of means to
>such narrow limits as not to leave it in the power of Congress to adopt
>any which might be appropriate, and which were conducive to the end."
>
>In this case, the mandate serves a central function. If you compel
>insurance companies to accept all applicants, you create an incentive for
>consumers to go uncovered until they get sick, which would either bankrupt
>insurers or inflate premiums astronomically. Requiring coverage solves
>that problem by maximizing the size of the insurance pool.
>
>It also eliminates the burden of "free" care that hospitals must provide
>to "emergency" patients who lack insurance. If taxpayers may be forced to
>pay for such treatment, the thinking goes, those patients may be forced to
>get coverage.
>
>Fried is not persuaded by the argument that, though the government may
>regulate activity, regulating inactivity - the failure to buy medical
>insurance - is an unprecedented violation of personal liberty. Mere
>novelty, he says, is not disqualifying.
>
>Nor do the Constitution's guarantees of personal liberty necessarily
>protect an individual's right not to do something. In 1905, the U.S.
>Supreme Court unanimously ruled that the state of Massachusetts could fine
>anyone who refused to get a smallpox vaccination - a far more intrusive
>and intimate command than buying insurance.
>
>Besides regarding the mandate as constitutional, Fried sees no defensible
>way that most of the conservative justices could rule otherwise. Only
>Clarence Thomas, he says, has written opinions that can support such a
>narrow interpretation of the commerce clause.
>
>It may seem like an amazing twist that the same law professor who argues
>so prominently against the constitutionality of the mandate, Barnett, is a
>former student of Fried's at Harvard Law. The Cambridge professor thinks
>there is no real irony. "I taught Randy Barnett torts," Fried says.
>
>Constitutional law? That he learned somewhere else.
>
>Steve Chapman is a member of the Tribune's editorial board and blogs at
>chicagotribune.com/chapman
>
>schapman@tribune.com
>
>http://www.washingtonpost.com/blogs/plum-line/post/how-did-obamacares-backe
>rs-get-it-so-wrong/2012/03/29/gIQArH5wiS_blog.html
>
> Posted at 11:10 AM ET, 03/29/2012
>
> How did legal observers and Obamacare backers
> get it so wrong?
>
> By Greg Sargent
>
>I didn´t mention this yesterday, but in his interview with me about the
>limiting principle, former Reagan Solicitor General Charles Fried was
>scaldingly critical of the willingness of the conservative bloc of Supreme
>Court justices to traffic in some of the most well-worn Tea Party tropes
>about Obamacare.
>
>"I was appalled to see that at least a couple of them were repeating the
>most tendentious of the Tea Party type arguments," Fried said. "I even
>heard about broccoli. The whole broccoli argument is beneath contempt. To
>hear it come from the bench was depressing."
>
>Which raises a question: How did so many commentators predicting this
>would be a slam dunk for the Obama administration get it so wrong?
>
>Many people have blamed Obama Solicitor General Donald Verrilli´s poor
>defense of the law for the sudden jeopardy Obamacare finds itself in, and
>there´s no denying he was unprepared to answer questions that we´ve known
>for months would be central to the case.
>
>But there´s another explanation for the botched prediction: Simply put,
>legal observers of all stripes, and Obamacare´s proponents, including
>those in the administration, badly misjudged, and were too overconfident
>about, the tone, attitude and approach that the court´s conservative bloc,
>particularly Justice Scalia, would take towards the administration´s
>arguments.
>
>Keep in mind: Many observers, Obama officials included, spent weeks
>treating Scalia like a potential swing vote on the case. Lawyers defending
>the law wrote some of their briefs and opinions with an eye towards
>persuading Scalia. They consciously invoked Scalia´s own words from a 2005
>opinion affirming Congress´s power to control local medical marijuana in
>hopes it signaled he might be open to the administration´s defense of the
>individual mandate.
>
>This now looks like a terrible misjudgment. During oral arguments this
>week, Scalia invoked the broccoli argument to question the goverment´s
>case. He mocked the government´s position with a reference to the
>"cornhusker kickback," even though that´s not in the law. As Fried notes,
>this language is straight out of the Tea Party guerrilla manual that was
>written during the battle to prevent Obamacare from becoming law in the
>first place.
>
>All of which is to say that the law's proponents were badly caught off
>guard by the depth of the conservative bloc´s apparent hostility towards
>the law and its willingness to embrace the hard right´s arguments against
>its constitutionality. They didn´t anticipate that this could shape up as
>an ideological death struggle over the heart and soul of the Obama
>presidency, which, as E.J. Dionne notes today, is exactly what it has
>become.
>
>http://nomoremister.blogspot.com/2012/03/chuck-todd-both-sides-do-it-warch-
>how.html
>
> Steve M. Wednesday, March 28, 2012
>
> CHUCK TODD: BOTH SIDES DO IT!
>
>Warch how Chuck Todd and his First Read crew at NBC News distribute blame
>for Supreme Court partisanship (emphasis added):
>
>> Yesterday's oral arguments at the Supreme Court raised the
>> distinct possibility that the individual mandate -- and
>> perhaps the entire health-care law -- could be decided by
>> another controversial 5-4 decision. Such an outcome,
>> especially after other 5-4 decisions like Bush vs. Gore and
>> Citizens United, would have two potential consequences. One,
>> it would feed the perception that the U.S. Supreme Court is
>> as partisan as Congress and increasing parts of the media;
>> in other words, these nine justices (either trained at
>> liberal law schools or members of the conservative
>> Federalist Society) are essentially political actors wearing
>> black robes....
>
>Oh, I see -- despite the fact that this is a Court on which nothing
>significant and left-leaning can possibly survive by more than a 5-4 vote,
>any non-right-leaning vote inevitably appears to be the result of a
>liberal plot. Never mind the fact that the conventional wisdom before
>yesterday was that the law was obviously constitutional, based on
>precedent that people on the right as well as the left had acknowledged.
>Never mind the fact that Reagan solicitor general Charles Fried and
>veteran Republican hack Laurence Silberman have endorsed the health care
>law, Silberman from the bench -- a vote to uphold will seem to be an act
>of naked partisanship, according to Todd and his crew, because these
>conspirators were all "trained at liberal law schools." (Love the
>sinister, McCarthyite sound of that word "trained," by the way.)
>
>The groundwork is being laid, incidentally, for the discrediting of any
>decision that emerges from a Supreme Court with an Obama second-term
>appointee who tips the Court's ideological balance. It won't matter that
>we've been living for decades with a Supreme Court that has had most of
>its judges appointed by Republican presidents; if, in a few years, that's
>no longer the case, any close decisions won't really deserve to count, as
>far as people like Todd are concerned.
>
>Oh, and then there's this:
>
>> And two and most importantly, a 5-4 decision would satisfy
>> no one. If the court strikes down the mandate and the
>> health-care law by that narrow margin, liberals and
>> Democrats would blame it on the conservative justices. If
>> the mandate and law are upheld by a 5-4 decision,
>> conservatives would point their fingers at the liberals and
>> the unpredictable "mushy" swing justice, Anthony Kennedy.
>> That's the problem with a split decision: The losers would
>> feel like they lost on a political technicality, not because
>> there was a legal consensus.
>
>You know what? A 5-4 decision the right's way will absolutely satisfy
>right-wingers -- they were pretty well satisfied when their presidential
>candidate lost the popular vote by half a million and won Florida through
>skulduggery, intimidation, voter caging, ballot ineptitude, and,
>ultimately, a partisan Supreme Court decision, so why would they be
>dissatisfied with this? And, really, I can't blame them -- I'd take a 5-4
>call Obama's way. I'm envious of the right, however -- the right's media
>will proclaim that a 5-4 ruling is a historic victory over tyranny, while,
>if there's a 5-4 ruling our way, the "liberal media" will respond with the
>likes of ... this.
>
>http://nomoremister.blogspot.com/2012/03/no-supreme-court-rejection-of-mand
>ate.html
>
> Steve M. Wednesday, March 28, 2012
>
> NO, A SUPREME COURT REJECTION OF
> THE MANDATE WON'T LEAD TO SINGLE PAYER
>
>A lot of liberals -- see, for instance, Josh Marshall -- think the
>appropriate response to a Supreme Court rejection of the individual
>mandate would be for progressives to pursue single-payer health care.
>Jonathan Bernstein and Jamelle Bouie think that's silly, because, in their
>view, if this Court can find a heretofore unexpected rationale for
>invalidating the Obama health care law, the Court will find a way to
>invalidate single payer as well.
>
>But I don't think we're ever going to find out whether that's true, at
>least not for decades. Why? This is why:
>
>> In U.S., Fear of Big Government at Near-Record Level
>>
>> Americans' concerns about the threat of big government
>> continue to dwarf those about big business and big labor,
>> and by an even larger margin now than in March 2009. The 64%
>> of Americans who say big government will be the biggest
>> threat to the country is just one percentage point shy of
>> the record high, while the 26% who say big business is down
>> from the 32% recorded during the recession....
>
>Notice the trend. We always fear "big government" the most.
>
>We're Americans. We love the government programs we've grown accustomed to
>-- Social Security, Medicare, Medicaid, unemployment insurance, and so on
>-- but we hate government. And we have no idea that that makes no sense.
>
>The corpocracy and the right-wiong noise machine are hell-bent on keeping
>us this way (and would love to get us to reject even the government
>programs we like). Meanwhile, Democratic politicians won't make an
>affirmative case for government, and often don't work very hard
>(especially at the state and local level) to make sure government programs
>work well.
>
>And I wouldn't count on future support for large government programs like
>single payer, either. Think about it: Who's the one politician now
>generating excitement among Americans under thirty? Ron Paul.
>
>We have to make average Americans believe government is the solution in
>this case, and we have to fight vested interests to the death. In theory,
>it could be done. In practice, I don't believe it's possible anytime soon.
>If you disagree, start working on changing ordinary Americans' minds about
>government now. It's the necessary first step.
>
>http://nomoremister.blogspot.com/2012/03/prediction-supremes-wont-strike-do
>wn.html
>
> Steve M. Thursday, March 29, 2012
>
> PREDICTION: THE SUPREMES WON'T STRIKE DOWN
> THE WHOLE HEALTH CARE LAW BECAUSE
> THE RIGHT'S PLUTOCRAT OVERLORDS DON'T WANT THEM TO
>
>I'm reading the New York Times article about the likely political fallout
>from the Supreme Court's health care decision, and, well, this doesn't
>make any sense to me:
>
>> If the Supreme Court strikes down the health care law,
>> Republicans hope to make it a prominent element of their
>> effort to deny him a second term.
>>
>> "It would be a tremendous validation," Gov. Bob McDonnell of
>> Virginia, a Republican, said in an interview. "A victory in
>> court would say that a trend toward big government solutions
>> out of Washington has a limit and the biggest accomplishment
>> of the Obama administration is unconstitutional."
>
>Really? I think that would take the issue completely off the table for the
>GOP as a base motivator -- which would be tremendously harmful to the
>chances of Mitt Romney and all the down-ballot Republicans. They party has
>got base voters worked up to the point that they're not only furious about
>the health care law, they're convinced that it's the heart and soul of
>everything that's evil about the Obama administration. If crazy-base
>voters see total victory in the Supreme Court, aren't they going to let
>their guard down a bit? Won't they be less motivated to vote GOP, thus
>risking not only an Obama reelection but gains for Democrats in the Senate
>and House?
>
>Of course, I don't think the GOP's overlords need to worry about that,
>because three days of oral arguments seem to have teed this up about as
>well as possible for the GOP -- my hunch is that there'll be the obvious
>four votes to overturn the whole law, plus a fifth (Kennedy) to get rid of
>the individual mandate but leave part of the law standing. And I think
>that's what we'll get: the law left gutted and bleeding, accompanied by
>the clear message -- in the heat of a presidential campaign -- that the
>movement-conservative bloc on the Court could have overturned the law if
>it'd had ONE MORE VOTE WINK WINK WINK....
>
>Now, needless to say, Romney is a less-than-ideal guy to take this handoff
>from the Supremes. I don't think this will be enough to get him elected,
>because people don't like him. But if you're a Koch brother, and Romney is
>looking as if he'll have negative coattails as it is, do you really want
>to depress turnout even more?
>
>I could be reading this wrong -- maybe the overlords want total victory
>whenever it appears to be within their grasp, regardless of the long-term
>consequences. But I think they may recognize that a gutted law is as
>effectively dead as an overturned law -- except it's undead, which means
>the Obama administration and congressional Democrats will hope to salvage
>what they can from it.
>
>And the effort to do that will keep the wingnut voter base angry
>indefinitely, which would make this a base motivator for years to come.
>Health care reform could be like abortion or gun control: the right gets
>more out of not achieving total victory than it would out of winning
>altogether. There's always a new way to restrict abortion or broaden
>access to guns. The enemy always needs to be defeated. So I think the
>Supremes will just completely neuter the law, after which GOP pols will
>declare that it's still an existential threat to freedom!
>
>http://nomoremister.blogspot.com/2012/03/so-are-they-all-all-honorable-men-
>in.html
>
> Steve M. Thursday, March 29, 2012
>
> SO ARE THEY ALL, ALL HONORABLE MEN
>
>In response to Greg Sargent's post "How Did Legal Observers and Obamacare
>Backers Get It So Wrong?," Digby writes:
>
>> ...my current belief is that the administration's overriding
>> problem is exactly what it seems to be --- they constantly
>> overestimate their own abilities and underestimate the
>> opposition's.
>>
>> ... it's about believing your own hype instead of believing
>> your eyes.
>
>That's not it. The main problem is that everyone in the Beltway believes
>that extremism of the kind practiced on the Supreme Court this week, or as
>practiced on the streets by teabaggers in the first two years of the Obama
>presidency and in the House ever since, is a marginal phenomenon -- our
>friends and acquaintances can't possibly be that extremist. No matter how
>much wingnuttery we get from important actors at the heart of the
>Republican Party and the GOP establishment, it's always believed that
>reason will prevail and that extremism will be pushed to the fringes. Even
>now, people believe that the 2012 elections will "settle" our current
>conflicts one way or another.
>
>They'll "settle" those conflicts only if Republicans win everything,
>because in that case they're just going to burn everything down. If
>Democrats retain the White House and emerge with control of one or both
>houses of Congress, the Republicans will just keep opening cans of
>gasoline and lighting matches, while Democrats struggle to put out the
>flames. Dems will probably keep the place from burning down, but only
>barely. Even then, nothing will be allowed to be improved.
>
>And yet Beltway insiders will still say that the insanity is coming just
>from a few crazies at the fringe. They'll change their story and tell us
>that everything will surely settle down after 2014 or 2016. That won't be
>true either, unless Republicans sideline the Democrats and light the
>bonfires.
>
>http://nomoremister.blogspot.com/2012/03/ezra-dont-assume-that-arc-of-healt
>h.html
>
> Steve M. Friday, March 30, 2012
>
> EZRA, DON'T ASSUME THAT THE ARC OF THE
> HEALTH CARE UNIVERSE BENDS TOWARD JUSTICE
>
>Ezra Klein is one of those Beltway insiders who think that if the Supreme
>Court overturns the Obama health care law, single payer could well be what
>replaces it. That prospect doesn't fill him with joy, because he thinks it
>will happen slowly if it does happen, and a lot of people will remain
>uninsured before we get to the Promised Land. But he thinks it's quite
>reasonable to expect that we'll get to the Promised Land someday:
>
>> If the individual mandate is overturned, it will essentially
>> wipe out the only plausible path to a sustainable private
>> health-care system and single payer will be the eventual
>> result. So: Yippee?
>>
>> Not in my view. I think that path would look something like
>> this: With health-care reform either repealed or overturned,
>> both Democrats and Republicans shy away from proposing any
>> big changes to the health-care system for the next decade or
>> so. But with continued increases in the cost of health
>> insurance and a steady erosion in employer-based coverage,
>> Democrats begin dipping their toes in the water with a
>> strategy based around incremental expansions of Medicare,
>> Medicaid, and the Children's Health Insurance Program. They
>> move these policies through budget reconciliation, where
>> they can be passed with 51 votes in the Senate, and, over
>> time, this leads to more and more Americans being covered
>> through public insurance. Eventually, we end up with
>> something close to a single-payer system, as a majority of
>> Americans -- and particularly a majority of Americans who
>> have significant health risks -- are covered by the
>> government.
>
>He loses me early. Why does he assume that Republicans will "shy away from
>proposing any big changes to the health-care system for the next decade or
>so"? When have Republicans shied away from seizing any issue and trying to
>drive the public's sense of what's "reasonable" on that issue as far to
>the right as possible?
>
>And I guess Ezra's not defining the right's health care wish list -- which
>is focused primary on "tort reform" and buying insurance across state
>lines, as well as turning Medicare into a Ryan-esque nightmare -- as a set
>of "big changes." I think these changes would be huge. (Read Steve Benen,
>in particular, on why the purchase-across-state-lines provision would be
>awful.) And I think Republicans will eagerly try to sell this package --
>or possibly just ram it down our throats -- as soon as they seize the
>White House and both houses of Congress.
>
>If they don't get control of the government for a while, they'll just keep
>telling us about the wonderfulness of their "reforms" and assure us that
>they add up to FREEDOM!!!1! They'll also say that our proposals -- yes,
>even the small, incremental ones Ezra talks about -- add up to
>full-throttle socialism and fascism and dictatorship and tyranny.
>
>If Obamacare is overturned and Democrats manage to poke their heads out of
>their mole hole in a few years and take baby steps toward expanding
>Medicare or S-CHIP, Republicans will declare even that to be a "government
>takeover" of health care -- and if Democrats respond with their usual
>wonktastic, bloodless talking points, Republicans will win the day again.
>OK, maybe Democrats will learn how to message the next time around, but
>their learning curve has been slow to nonexistent over the past few
>decades, so I'm not holding my breath.
>
>You'll say I'm forgetting one thing -- public anger. Won't the public
>demand a solution?
>
>Well, I'm 53 years old, and the last time I remember Heartland America
>sustaining a sense of outrage on an economic issue until progressive
>change happened was ... um, frankly, I can't remember that ever happening
>in my lifetime.
>
>Heartland Americans have lost so much in the past few decades -- unions,
>defined-benefit pensions, good salaries -- and they've never fought back.
>The only fight they've mounted is against progressivism. The right has
>them permanently angry at us.
>
>Don't like the gloom in this post? Then go out and find a way to get
>heartlanders angry at the right people for a change. Then maybe the arc of
>health care will bend toward justice.
>
>http://nomoremister.blogspot.com/2012/03/remind-me-again-how-has-being-hate
>d.html
>
> Steve M. Friday, March 30, 2012
>
> REMIND ME AGAIN: HOW HAS BEING HATED
> HURT ALL THOSE OTHER POWERFUL INSTITUTIONS?
>
>I'm really getting tired of this lament:
>
>> Before this week, the well-being of tens of millions of
>> Americans was at stake in the lawsuits challenging the
>> Affordable Care Act.
>>
>> Now something else is at stake, too: The legitimacy of the
>> Supreme Court....
>>
>> Virtually everybody agrees that a vote to strike down the
>> Affordable Care Act would be five to four -- a bare
>> majority. And it would be a bare partisan majority, with the
>> five Republican appointees overruling the four Democratic
>> appointees. The decision would appear nakedly partisan and
>> utterly devoid of principle. Appearances would not be
>> deceiving....
>
>The words are Jonathan Cohn's, and they appear under the heading "If the
>Supreme Court Strikes Down the Affordable Care Act, the Conservative
>Justices Will Do Lasting Damage to the Institution's Legitimacy."
>
>Which would matter a lot, I suppose, if we lived in a society where the
>key players in hated institutions actually suffered as a result of the
>hate. But we don't.
>
>Try to think of a despised American institution. Did I hear you say
>"Congress"? Excellent choice: according to the Real Clear Politics
>averages, Congress's job approval rating is 12.4% and its disapproval
>rating is 80.8%. It wasn't much better around Election Day in 2010 --
>fewer than 20% of Americans approved of Congress's job performance.
>
>So how did that translate at the polls? Well, 85% of House members and 84%
>of Senate members were reelected in 2010. That's down from previous years,
>but it's still sky-high.
>
>Gallup's "Confidence in Institutions" survey shows dreadful numbers for
>banks, and for big business in general. Notice those guys suffering? The
>Wall Streeters whine as if they're suffering, but mostly what they say
>when they whine is, in effect, "We want all the money and respect!"
>
>That's pretty much what we may hear from the Supremes, or at least from
>the chief justice. Cohn mentions John Roberts's "frequently professed
>concern for the court's respectability." But he seems to be oblivious to
>the fact that he's lost that already. (As I've noted before, a recent
>Bloomberg poll showed that 75% of Americans expect the Court to issue a
>health care ruling based on political concerns.) The actual rulings show
>no signs of circumspection -- Roberts apparently wants your respect in
>spite of those rulings.
>
>Until we Americans start actually finding ways to hurt powerful people we
>despise, it's going to continue to be good to be the hated king.
>
>http://nomoremister.blogspot.com/2012/03/i-am-shocked-shocked-hypocrisy-is-
>going.html
>
> Steve M. Friday, March 30, 2012
>
> I AM SHOCKED -- SHOCKED! HYPOCRISY IS GOING ON HERE!
>
>Let me add something to a point Paul Krugman makes today about the
>individual mandate, which we learned to our surprise this week was the
>most unconstitutional thing ever:
>
>> Indeed, conservatives used to like the idea of required
>> purchases as an alternative to taxes, which is why the idea
>> for the mandate originally came not from liberals but from
>> the ultra-conservative Heritage Foundation. (By the way,
>> another pet conservative project -- private accounts to
>> replace Social Security -- relies on, yes, mandatory
>> contributions from individuals.)
>
>Please, insider pundits, pols, and legal observers, do me a favor:
>
>When the Federalist Society types on the Supreme Court are addressing the
>question of the constitutionality of forcing people to purchase private
>Social Security accounts, sometime after that's enacted into law in the
>Romney or Christie or Rubio administration, and they do a 180, overturn
>the precedent they're establishing right now, and decide that, yes, it is
>constitutional in this case ... please, try not to be shocked again.
>
>_______________________________________________
>Foil-l mailing list
>Foil-l@insaf.net
>http://insaf.net/mailman/listinfo/foil-l_insaf.net
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