Matters Legal and Open Thread

 

"Handle with Care" - Jenny Lewis

Great cover of the Tom Petty - Traveling Wilbury's song.  I've been busy as hell, but also trying to get a little distance from the cacophony of the last few days, especially the obsessive coverage of the Supreme Court health care argument and the Trayvon Martin killing.  But somewhere in the standard blogging contract I believe that each of these subjects must be addressed and so here goes:

- I am trying to decide how much to read into the oral argument on the Affordable Care Act.  I know Jeffrey Toobin's already consigned the law to the ash heap of history, but I feel a little more hopeful.  Oral argument is often a bit of a sideshow in any Supreme Court case, a last chance for the justices to test the arguments of the parties and themselves.  A line of questioning does not necessarily foretell where a given justice may be going with the case. (Note: I do wish the Solicitor General didn't choke during the argument, which I'm pretty sure he did, although others disagree.)

Having said that, I am obviously concerned that a Court cursed with so much right wing arrogance could really overstep and strike down the most important piece of social legislation passed since the mid-1960s. 

The Affordable Care Act is not perfect.  It's a bit of a jury-rigged mess, overly complex, not easily explained, it keeps many of the worst features of American health care delivery -- for-profit insurers, an over reliance on employer-based coverage, and its roll out was designed to be painfully slow.  But let's be clear -- and I wish bloggers like Atrios would actually engage with this fact -- it was the best legislation that could be achieved given the structural impediments and enormous vested interests that stand in the way of change in the health care arena.  Tens of millions of people who are currently uninsured will receive coverage through expansions in Medicaid, subsidized insurance available through the new exchanges, and from greatly expanded community health center programs.  This is not some abstract point, it is a concrete reality that will improve peoples lives. Additionally, the law prescribes truly meaningful minimum coverages that have to be extended to the insured -- with no annual or lifetime maximums permitted, certain basic services that must be provided without cost sharing, allowing children up to age 26 to stay on parental policies, and, of course, most meaningfully, the elimination of pre-existing condition conclusions. 

Should the Court strike down the law it will show incredible contempt for the elected branches of government -- in a fashion not really seen since the early New Deal era.  In the end, such an act would bring tremendous discredit on the Court, particularly since I don't foresee any opportunity to address this issue again in a meaningful way for a period of many years, possibly decades.  A reversion to the status quo will be disastrous -- employer coverage will continue to erode, costs will continue to soar, the ranks of the uninsured will continue to swell, and problems with uncompensated care will continue to plague many hospitals.  And solutions -- even imperfect, compromised solutions -- will not be forthcoming.  The Republican Party is no longer a party interested in solutions and will act to block anything aimed at alleviating these problems.

Let's hope that the justices avoid the temptation to hubristic recklessness.  I actually think they will.

- I haven't commented on the Trayvon Martin killing because I find that criminal cases can often make those who jump to quick conclusions look foolish.  I've been a bit turned off by the degree to which MSNBC in particular has made the case a kind of 24/7 cause celebre, one which seems to shed a whole lot more heat than light.  But I must say it has been revealing in terms of bringing to the fore the barely concealed racism that animates so much of the right wing.  God the ugliness that lies just beneath the surface with these people is astonishing.  And so they turn the case into a partisan matter, one in which some poor 17-year old who had the bad sense to be black and wear a hoodie and got into some trouble at school obviously deserved to die.  Somebody's child was shot to death in highly dubious circumstances -- you'd think the gravity of that basic fact might make them all little but circumspect -- but alas, no.  

What's eating you?

Comments

[kathy a.]

for reasons i do not know, the traveling wilburys were playing in the maternity ward when my daughter was born. i'm eternally devoted. my friend's grandson was born just today! maybe we should play the music at scotus?

[low-tech cyclist]

The Wilburys were on the airwaves when my wife and I were falling in love in the fall of 1988. "Handle With Care" will always bring back memories of our first few months together.

Ed Kilgore had an "if it's struck down, what then?" post the other day, and he quoted Carville and Robert Reich who both thought it was a great opportunity - Carville thought it would be a great political issue, and Reich thought it would open the door for Medicare for all. My reply was succinct:

I'd rather have even the jerry-rigged system of near-universal health insurance that is the ACA, than have a great campaign issue if it's struck down.

Much as I'd like Medicare for all, we're not going to be able to get that through the next Congress. Our system of employer-based health insurance is falling apart. We desperately need something to pick up the pieces, and Obamacare is the only candidate on the horizon.

A lot of people will be in a world of hurt if the Supreme Court strikes it down. That's the only thing that should matter to us. Screw the politics.

[Sir Charles]

l-t c,

Jesus, Reich is nuts if he thinks that. The Republicans don't even want Medicare for those who have been getting it. There is zero chance of getting a single payer system through Congress for at least a decade.

And this notion that having an issue is actually better than taking care of people is morally bankrupt, the fantasy of people who think that politics is a game.

[Joe S]

I have to agree. The ACA is, in my opinion, a nonideal bill. But it's also the best bill possible given our current Democratic Party and racially polarized electorate.

What Reich doesn't get is that many people with health insurance think any expansion of covered persons will lead to a loss of services. The insured are on the leaky, overcrowded lifeboat. They don't want the uninsured to get on and sink the whole thing. I don't know of a good way to convince these people otherwise. I don't know how to pass a bill in the face of these assumptions. We have a fairly ruthless system that keeps everybody scared and in a zero sum game. I don't see anything new on the horizon for at least a decade at the federal level. We may be able to get something at the state level in the blue states (like Masscare).

It looks like we're in that period between 1888 and 1932- where progressivism arose and was defeated by an oligarchy with just enough electoral support to maintain power in our cumbersome system. In this case, older Whites maintain just enough power to poison the well for our young (not just in healthcare, but in education, university education, carbon pollution). I'm just really gloomy right now. I think we're looking at a new Lochner era-- which is sad for somebody who studies regulation and its beneficial effects.

[oddjob]

White Supremacist Hacks Trayvon Martin’s Email Account, Leaks Messages Online

This is about an attempt to prove Martin was the scary black kid in a hoodie he "must have been" (because all black male teens in hoodies are definitionally scary).

Hat tip, Ta-Nehisi Coates.

[Paula B]

A little day dreaming:
From what I read Monday in the NYT, I'm heartened to see that some states are planning to enact their own universal health insurance programs, similar to the one in Massachusetts, if the ruling goes to the right. I predict, if ACA fails, a handful of states will enact their own plans. As a result, those economies will flourish over subsequent years, while the usual states-rights places (SC, for one) continue their downward spiral into oblivion. My only hope is that, at the same time, those obstinate states show their stripes by refusing federal assistance to help them out of the economic and humanitarian messes they create. SC already refuses federal funds for some programs.
Just as the size of the pool of insured is important for the viability of the ACA, it will be the same for individual states that want to continue business as usual. They'll get their freedom from the mandate, but at a price. The country will be divided by a new marker---red/blue, north/south and universally insured/laissez faire. (Not sure I can use that term in this context, but you know what I mean.) The blue, north (and insured) states are already ahead of the game economically, and that divide will deepen once there is no promise of ACA. I predict when the pools shrink for insurers in the laissez faire states, insurance prices will go up and the numbers of insured will go down. IF a state doesn't have enough major employers (like military bases and Wal-Mart corp hqtrs) to hold it up by insuring large numbers of employees, its economy will collapse under the weight of high insurance costs and a shortage of people willing to stay there.
Remember how some people on welfare moved around from state to state to get the best benefits they could find? Minnesota and Wisconsin attracted people from all over for that reason. It will be the same for health care benefits, which are worth thousands of dollars to families. The big businesses left behind won't be able to afford insurance costs, so many will stop offering health care as a benefit, especially if the state doesn't require it. Down, down, down the drain. So long Palmetto State, so long Oklahoma, so long Arkansas.
The migration of skilled workers to insured states will remind us of the 1930, when Okies moved half way across the country for any kind of work they could get in the Promised Land of California.

[oddjob]

A Supreme Court ruling against President Obama’s landmark health care law could prompt challenges to the Massachusetts law that inspired it, according to legal specialists and activists following the case....

[Paula B]

Yeah, OJ, I saw that but am not too worried. The Mass plan is popular and relatively successful, as you know, and I don't think Massachusetts voters respond to same hot buttons pushed on voters in the south and west. I just did our taxes and see our insurance premiums remained at the 2010 level in 2011. That's a good sign.

[low-tech cyclist]

Paula - if the Supremes strike down the Federal mandate, I don't see how an essentially identical state mandate survives a challenge.

It's hard to see now they strike down the mandate without striking down the Commerce Clause as its reach has been interpreted for the past 75 years or so. Maybe Kennedy will get cold feet about doing this. But the rest of them would damned sure like to, and they might be able to convince Kennedy to go along.

Similarly with Congress' use of its spending authority to get the states to alter their policies. They're seriously toying with deciding it's not OK for Congress to pass laws saying to the states, "we'll give you money if you do X."

The radicalism of both of these measures should be beyond contemplation. But the conservative majority on the Court is at the very least contemplating these decisions.

People used to talk about the "Rule of Five" - that is, the law meant whatever five Supreme Court Justices said it meant. But we all knew that applied only to situations where the law wasn't already settled.

Not with this Court. The conservative bloc doesn't give a shit about stare decisis. It increasingly looks like they'll make whatever decisions they damned well feel like making, so long as they can persuade Anthony Kennedy to go along.

Scary times.

[Sir Charles]

The states do not operate under the same theoretical limits under which the federal government operates. I do not think a challenge in Massachusetts would likely be successful for that reason.

[oddjob]

What about if SCOTUS decides the reason the federal law must be struck down is because it's an unconstitutional restriction of an individual citizen's liberty?

[low-tech cyclist]

Blog post title, via Fred (Slacktivist) Clark: "If Trayvon Martin Were a Fetus, Christians Would Be a Whole Lot More Upset." The blogger was obviously talking about the evangelicals and whatnot, but with that caveat, it's sure hard to disagree.

And a great cartoon about the innate recursiveness of Stand Your Ground.

[oddjob]

Supreme Court May Be Most Conservative in Modern History

Hat tip, Sully.

[Sir Charles]

oddjob,

I think the challenge has to be understood not in terms of an individual liberty right, but in a constitutional constraint on the federal government, i.e. how broad is the power under the commerce clause.

States impose insurance requirements in a host of settings, states regulate business hours, including in the old days requiring stores to be closed, etc. I don't think there is a comparable constraint here.

[Davis X. Machina]

What about if SCOTUS decides the reason the federal law must be struck down is because it's an unconstitutional restriction of an individual citizen's liberty?

Federal action bad. State action good.

Hell, Thomas thinks that the Establishment Clause ties the hands of the federal government alone, and if Mississippi wants to make the Southern Baptist the official state-supported church, that's just peachy if no Washington $$ are involved...

[Phil Perspective]

But let's be clear -- and I wish bloggers like Atrios would actually engage with this fact -- it was the best legislation that could be achieved given the structural impediments and enormous vested interests that stand in the way of change in the health care arena.

I don't believe this for a second. Remember what the first mistake of the new Obama Presidency was? They had an email list of how many millions? And did what with it for the first two years?

[kathy a.]

agree with SC, that the challenges are looking for a constitutional constraint on the power of the feds. the states challenging the law are definitely not looking to restrict their own powers. and, i do not think the court will touch an individual liberty justification with a 10 foot pole, because that way lies total anarchy.

meanwhile, in open thread, a a story from the abortion wars.

[oddjob]

Hell, Thomas thinks that the Establishment Clause ties the hands of the federal government alone, and if Mississippi wants to make the Southern Baptist the official state-supported church, that's just peachy if no Washington $$ are involved.

Thanks for the reminder. I'm not sure I understand correctly, but my understanding is that at the time the Constitution was adopted this was more or less the understanding of those who adopted it, and if so I'm not surprised Thomas thinks that way. I suspect back then there were Puritan citizens of Massachusetts who would have been quite happy with Thomas' jurisprudence.

[oddjob]

because that way lies total anarchy

I hadn't considered that, but I see your point.

[scott]

I agree with Phil. I think you can debate whether or not the direction the administration went in was a defensible choice, and I certainly agree with SC that there were many obstacles to be overcome. But I don't think it does any of us any good to just concede that what they came up with was the best in the best of all possible worlds. We're talking about a plan the Heritage Foundation came up with not that many years ago! So let's not just roll over and concede that it's not even worth thinking about anything better and nothing better is even possible. That said, what was done accomplishes many useful things, and I don't subscribe to the view that taking away all of those things with nothing tangible in its place is a good exchange.

[Sir Charles]

Phil and Scott,

Sorry guys, you are just wrong here. The best bill you were going to get was the one that could garner the support of Senators Nelson, Landrieu, Bayh, Lieberman, and Lincoln, among others. There is no way in the world that you were going to get them to back something that was going to be a single payer or largely public plan, I don't care how long your email list was.

This is not the way Washington works. If you had the concerted opposition of insurers, the pharmaceutical industry, and hospitals (often the largest employers in many municipalities), you were not going to get a left wing plan -- hell you weren't going to get any plan. Ask Bill Clinton and all of those who preceded him.

You couldn't even get the public option through the House -- even with Pelosi's leadership -- because hospitals were vehemently opposed to having a broadening of Medicare like payments for their services. See Paul Starr's book on this point. A lot of good liberals bailed on the public option in the face of this opposition and Pelosi could not assure its passage.

[Joe S]

Scott, if this bill gets overturned, nothing better is going to be possible for many, many years. 2010 allowed a redistricting along very favorable lines for Republicans in most swing states. My guess is that the HOuse will be tight as a tick with the Republicans in the majority for a good long time-- especially when used alongside vote suppression mechanisms.

[Phil Perspective]

Joe S:
Rove thought that at one time, and it didn't turn out so well. What stops any state from pulling a DeLay-era Texas?

[Phil Perspective]

Sir Charles:
The point was that they didn't even try. The other thing, as some have pointed out, is that it appears that the Obama White House thought way too late that the GOP could be bargained with. And anyway, what did it get HolyJoe, Ben Nelson and Blanche Lincoln? Did voting for a corporate giveaway of a health insurance bill get them a pass from the GOP? As I've stated before, I know he wasn't willing to play hardball with those Senators you named. And that's a problem. That the best we could do is a 20 year old Heritage Foundation solution is a testament to what crappy state this country is in.

[KN]

Treyvon Martin - if this case had occured here in Brasil
it would already be settled. It is very much an eye for an eye kind of thing. And the statute of limitation on murder is like 24 hours. Justice? Not so much, but at least clarity. If that had happened here the perp would be dead by now.

As to ACA - it is just another example of the "we make our own reality" cult spewing nonsense. Private health insurance is a travesty. However, in my opinion whatever the SCOTUS decides will be contrived around the idea of how to most injure Obama. They have utterly no concern for the consequences oftheir actions other than to further the agenda of the domionist goals.So I think the odds are very good they will strike down the entire law.
That is the ideal outcome for the health insurance industry.

The entire issue depends solely on what the insureres want.They are conflicted over the greedy desire toenroll 50 milion more clients with huckster policies that cover almost nothing. But that carries with it negation of some of their key profit centers, pre-existing conditions, annual and life time caps, high deductibles,
everything thing they can think of to fuck over their clients and enrich themselves.

Just look at the implementation of the ACA and realize that the whole package was ultimately designed by lobbyists. The Patriot act is far more destructive of liberty, but it has never been challenged.

Welcome to life in upside down world.

[low-tech cyclist]

At this point, we can argue all night and into the next day about whether Obama could have gotten a better health insurance bill through Congress. I, too, wish he'd tried, and I certainly wish he hadn't wasted most of the summer and a good chunk of the fall being conned by the Gang of Six (remember them?).

But that's all water under the bridge. Right now, where we are is that if Obamacare is struck down, the earliest time there's even a prayer of passing anything half as good (let alone better) would be 2017, and that's only if we run the table in the 2016 Senate races.

It's what we've got, and if Anthony Kennedy gets cold feet about killing it, we've got a chance to build on it and make it better over the years.

If it's implemented in 2014, maybe in a year or two after that, some Congresscritter will ask the CBO to score universal Medicare against the ACA, and it'll probably look about as good, if not better. And eventually we might get a push to cut out the insurance middleman, but that'll be quite a fight, because as SC points out, the insurance industry's money is gonna be on the other side. But if there's no Obamacare, there's no guarantee that we'll see another good try at it for a generation or more.

[Sir Charles]

Phil,

I'm sorry but these myths of presidential persuasiveness need to die -- sooner rather than later. Ezra Klein did a pretty good job of demolishing them a few months ago. But let's look at this from the clear-eyed persepctive of most politicians, who though they may be venial are seldom fools. Obama lost Nebraska in 2008 by 15 points -- Nelson won in 2006 by 27 points; Obama lost in Louisiana by 19 points, Landrieu won in 2008 by 6; Obama lost in Arkansas by 20 points! Blanche Lincoln had won by 11 in 2004, but already could feel the electorate slipping away from her by 2008; Obama won Indiana by 29,000 votes, while Evan Bayh, the most popular politician in the state, had won by 24 point in 2004.

In what world did Obama have any leverage vis a vis these senators? There was not a one that he could be helpful to in an electoral sense; all he could really be was a net negative -- and this was before he even began governing, which most times will erode rather than enhance your popularity.

Lieberman, of course, is sui generis. But having endorsed John McCain and being pretty much of a dead man walking by 2009, what leverage did Obama have over him? Lieberman's a petulant asshole, but he sure isn't stupid about political power. Moreover, Lieberman had powerful home state incentives to resist any attempts to broaden the public role in health care -- insurance is a huge business in Connecticut. Any senator from Connecituct is likely to want to curry favor with the industry, just as New Yorkers do with Wall Street.

No one has ever been able to deomnstrate to me in even the most implausible fashion how Obama could have leaned on these folks in a way that would have made them do his bidding.

l-t c,

Like you, I do join in in the critique of the Administration in 2009 was in allowing the Gang of Six to hijack the process for months and the feeble notion of getting a bipartisan bill. Time should have been viewed as of the essence and bipartisanship an illusion when it came to a bill of this magnitude.

This was a costly blunder.

I think allowing the legislative branch to take the lead on the bill was correct though, as the demise of Clinton's health bill in 1993 showed.

The loss of ACA would be a huge blow -- and I see no hope in 2017. Even if Obama gets re-elected, the off year elections at the six year mark in a presidential term are usually not very good.

[Joe S]

Phil, I don't see any chance of a Democratic Party doing what Delay did in Texas. The only state where that might happen is Vermont- and they only have one representative.

I think you keep assuming the Democrats are like the Republicans- they're not. The Democrats are a coalition of Liberals and fairly probusiness moderates. And not just the politicians. White Democrats outside of urban enclaves and college towns are often pretty conservative. Democrats have to win those votes, and they have to be cognizant of the moderate wing of the party. that means that Democrats can't act with the boldness of Republicans who are a unified party of very conservative people and straight up reactionaries.

I don't much like Evan Bayh, but he was able to win Indiana. That meant winning in places where Democrats aren't very liberal. As the country gets less White, Democrats might be able to get bolder (like in California). But that's a decade or two off. As it is, the Republicans can generally be quite bold, but the Democrats can't.

[Sir Charles]

KN,

The last thing we need to do here is invite more frontier justice. The absurdity of our overly-armed populace is already pretty overwhelming.

Joe,

And the number of self-identified liberals is about half the number of conservatives. Now one can quibble about these self-identifying labels. People are a lot more liberal in practce than in survey, but there is a whole lot of coalition building we have to do to get to 50 plus 1, while conservatives start with a pretty robust base.

I think there will be a significant shift as demographics and generations change, but it will take at least a decade before this is fully felt I think.

[nancy]

Awhile back [2/10/12 thread] we discussed the legacy of Maggie Gallagher and the National Organization for Marriage. Well, this is their latest grubby and grasping effort. As the Scouts say, "Be prepared."

h/t Wickersham's Conscience.

[Sir Charles]

nancy,

The NOM strategy is indicative of true moral bankruptcy -- absolutely shameless.

[KN]

SC - You appear to have ignored my context, I was talking about how it works in Brazil. That is kind of where the US is heading. I don't think it is the right direction to be going in, but how many times can you push someone before the push back?

Ironically, the health care system here is vastly superior to what we have in the US, anyone can buy private insurance if they want to, but virtually no one does because they don't need it.

Think for a minute about the relationship between these two issues. In the US there are now these fancy pants laws saying stand your ground is the new standard for self-defence. Basically, if you claim you felt threatened, you can kill anyone you want. The law won't touch you. Here, you can infer there is something like the same attitude but if you do kill someone, you had better vanish because everyone knows the law will not necessarily bring justice, hence they impose it themselves and get away with it for the same reason - yes it leads to a skein of vendettas. What is utterly cynical and perverse about the stand your ground laws in the US is that they are designed to get people to buy more guns. Great.

Same is true of health care. The only thing that matters to for profit insurers is profit. They love the mandate
because it will increase their profits since a fair sized fraction of the uninsured are so because they are healthy. They would of course be overjoyed if the whole package gets tossed. BAU. And they are not alone at all. Big banks love the old insurance model. Some poor sap gets a badass disease and is driven into bankruptcy by medical bills, the banks get to take away his home at a huge profit.

Make no mistake, Brazil is not paradise and I do not claim that it is, but it is different, and the differences tend to emphasize all the wrongs on both sides of the issues. There is a reason George Zimmerman is in hiding. He knows that by his own rules, people are going to be gunning for him. Where is the government?

Treading water in a bathtub.

[Sir Charles]

KN,

It is always amazing to see that a country like Brazil, which despite its recent progress grapples with pretty immense levels of poverty, can decide to provide people with universal coverage while the wealthiest country in the world somehow cannot.

I do think Zimmerman will probably be indicted. But only because of the public furor and the fact that the feds came in to look over everybody's shoulder in Florida.

[KN]

It is pretty simple really, the only way to hold down the cost of health care is to impose a massive single payer system. You still have to fight fraud, but it is easier to do so. I would not say that health care here is state of the art, it isn't but it is only a couple of years behind the US in most respects. There are other issues as well, but by and large they have it sorted out so that the system works for everybody whether you have any money or not.

There is extreme poverty here and an abundance of it. Both in the urban realm and in the bush, that will probably never change. It is important, however, to note that that poverty has been decreasing slightly year by year, whereas, lately in the US the trend has been the opposite. I find that telling.

Yep, wake up america, racism still exists! How anybody could have missed that fact in the last 3-4 years is just astounding. That is another contrast that I can draw against Brazil. I don't pretend to understand the undercurrents to the least degree, I am a cultural ignoramus in most respects, but the fact is, you can go to clubs in Rio where blacks and whites and reds and yellows mix, mingle, tie up and wander off in droves. I don't think there is much racist related crime either, most crime is motivated by more pragmatic things, like money. Vigilante justice is not organized, it is individual. You might say biblical, an eye for an eye.

In a sense that means if you don't fuck with anybody else, they are unlikely to fuck with you. Somehow I don't think that is quite so true anymore in the US.

Don't get me started on the wider issues here. IMO the police department should be indicted on federal charges of conspiracy to violate civil rights.

It will never happen.