Tag Archives: Obamacare

The Roberts Decision: No Switch In Time To Save Nine?

Did Chief Justice John Roberts, in a reprise of the celebrated “switch in time that saved nine”, change his vote at the last minute to uphold the Affordable Care Act?  My colleague Travis Jacobs e-mailed me early yesterday to  note an NPR report that, contrary to what some analysts were claiming based on their assessment of the written opinions in the health care case, only three days after the oral arguments last March Chief Justice Roberts had in fact voted with the four liberals judges to uphold the ACA.   That is, Roberts did not initially write an opinion to overturn the ACA only to change his mind at the last minute, as many bloggers have speculated based on how his opinion was written. Rather, from the very start, Roberts – as Chief Justice – was intent on crafting an opinion that offered something to both the liberal and conservative wings of the Court, while shielding it as much as possible from charges of partisan bias.

Shortly after Travis’ email, other news outlets chimed in with their own version of when Roberts’ made his decision. According to this CBS News story by Jan Crawford, Roberts had, initially, agreed to strike down the ACA, but he soon reconsidered and decided to uphold it, choosing to write the majority opinion himself.  That majority decision, according to Crawford, was due on June 1, which gave the dissenters until June 15 to draft a response which was written by Kennedy and Justice Scalia. In this version, then, Roberts appears to have decided relatively early to uphold ACA.

The dispute over the timing of Roberts’ decision is interesting because it reminds us that the Supreme Court is a political institution whose members often draft opinions in ways designed to attract maximum support with the goal of building a winning coalition. That is, they do not come to a decision as nine individuals, each acting independently to divine the true constitutional implications of a statute based on their own readings of the relevant case law.  Instead, they consider what their colleagues are saying, both as a means of coming to their own verdict, but also with an eye toward anticipating and shaping the final Court ruling. In this vein, it would not surprise me if all three sets of opinions – Roberts’ majority holding, and the two sets of dissents – were all crafted with an eye toward staving off defections and picking up additional votes.  Roberts, of course, with an interest in portraying the Court as above politics, wanted to avoid another 5-4 decision, while Kennedy needed a 5th vote to overturn ACA in its entirety. For her part, Ginsburg couldn’t be certain that Roberts’ vote to uphold would stand, so she wrote in the possibility that he might switch his position.

If true, how might have this sequential process of coalition building influence the wording of the justices’ opinions?  Note that Ginsburg’s dissent (all references to the justices’ opinions are from the final decision here) repeatedly addresses the Chief Justice’s arguments regarding the commerce clause, in often scathing tones.   The portions of her dissent discussing the “vegetable state” that I alluded to yesterday are particularly biting.  In contrast, as far as I can tell, Kennedy’s dissent barely mentions the Chief Justice or his arguments at all. Instead, he typically directs his response against “The government and those who support its position” and spends most of his time addressing the Solicitor General’s oral arguments, rather than Roberts’ majority opinion.  Indeed, after eviscerating the government’s claim that the mandate is covered by the interstate commerce clause, Kennedy dismisses the tax rationale that is the heart of Roberts’ defense by saying, in effect, that when passing ACA Congress called it a penalty, not a tax. Moreover, its provisions are those associated with a penalty, not a tax. As Kennedy writes, “We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classi­fied as a tax an exaction described in the legislation itself as a penalty….we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exac­tion a ‘penalty.’ Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in§5000A(b) a ‘penalty’…What counts is what the statute says, and that is entirely clear.” And later, he warns, “Impos­ing a tax through judicial legislation inverts the constitu­tional scheme, and places the power to tax in the branch of government least accountable to the citizenry.” That is, to borrow my analogy from yesterday, if it does not walk or quack – it is not a tax.

As I noted yesterday, some bloggers believe the difference in tone suggests that Roberts initially sided with Kennedy and the three conservatives, but then was persuaded late in the game to switch to uphold ACA.  Crawford suggests in her CBS times piece that Kennedy and the three conservatives decided, at some point, to stop engaging with Roberts’ argument altogether.  But as Orin Kerr warns, consistent with Travis’ comment, Roberts might have supported upholding ACA almost as soon as the oral arguments ended.  The different tones adopted by the two groups of dissenters might simply reflect the compressed time schedule under which the justices were forced to come to a decision on a very important and very complex case.  Assume that Roberts decided shortly after oral arguments to uphold the ACA.  He then worked carefully to craft an opinion designed to reach out, in part, to Kennedy in the hope of getting at least a 6-3 vote, rather than the less politically appealing 5-4 split decision. The dissenters, pressed for time to make the alternative case, begin drafting their response even before seeing Roberts’ majority opinion, which is why they direct so much of their opinion against the Solicitor General’s oral argument.  When Ginsburg finally sees Roberts’ draft, meanwhile, she can’t be sure that he will hold his ground, so she focuses all her firepower on critiquing his interstate commerce clause argument, in effect trying to win a fifth vote (perhaps from Kennedy.)

I don’t know when Roberts arrived at his decision, or whether he is, in fact, merely the latest Justice Roberts to “switch in time to save nine.”   But I am confident that he crafted his decision – as did each group of dissenters – not just on a reading of the case at hand within an understanding of the constitutional issues, but also with an eye toward building a winning coalition with very little time to spare. In this sense the Court, as an institution, is less like a legal temple housing priests in robes, and much more like the backroom in City Hall.

Did Roberts Outmaneuver The Liberal Justices?

In the world of politics, there are always two stories – what actually happened, and then what the media says happened.  We are seeing this now, in the media analysis of the Roberts Court’s ruling last Thursday regarding the individual mandate and Obamacare. Most of the major Sunday talk shows devoted much of their programs to a discussion of the ruling, and those discussions were largely dominated by two media memes.

The first is an emerging story, first broached by Paul Campos in this Salon article and also by economist Brad Delong, that Roberts was poised to strike down the mandate in its entirety, but backed down at the last minute in order to avoid the partisan repercussions that such a ruling would have sparked.  Campos writes, “It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition, not that of the losing side in the most controversial Supreme Court case in many years.”    This reasoning would also explain the blistering tone of Justice Ginsburg’s dissent in which she eviscerates Roberts’ argument that the individual mandate does not constitute interstate commerce.  Note in particular Ginsburg’s analysis, in her dissent, of the “broccoli horrible” – it could come right from the Jon Steward Daily Show in terms of its biting tone:

“Underlying THE CHIEF JUSTICE’s view that the Commerce Clause must be confined to the regulation of active participants in a commercial market is a fear that the commerce power would otherwise know no limits. As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. One could call this concern “the broccoli horrible.” Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the “hypothetical and unreal possibilit[y]” of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of heroin. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

For the reasons explained above, the minimum coverage provision is valid Commerce Clause legislation.”

What’s worse than a “nanny” state for a conservative?  A “vegetable state”!  Steamed or raw – but not deep fried!  Such a mocking tone, the argument goes, must be driven by Ginsburg’s assumption that she was on the losing side (which, to be sure, she was when it came to the interstate commerce clause.)

A second media meme, however, suggests that Roberts’ is playing a very deep and forward-looking game, and that from this perspective Thursday’s ruling was a victory for conservatives. As Charles Lane wrote in this Washington Post editorial:  “What emerged was less a legal opinion than a plan for national cohesion, on terms remarkably favorable to conservatives.”   How can a decision upholding Obamacare be favorable to conservatives?  First, because by rebranding the penalty as a “tax”, Roberts has provided a rallying point to energize the Tea Party and he has made it more difficult for Obama to run on health care reform as his signature accomplishment.  As Lane puts it, “Conservatives reproach Roberts for activism, saying he “rewrote” Obamacare. He sure did. Formerly, it embodied progressive hopes for a more active federal government and a Democratic political majority. Now, it’s truncated and facing a political battle royale in November with a big “tax” sign around its neck.”

And while much of the analysis has focused on Roberts upholding the individual mandate, the Court also limited the planned expansion of Medicaid under Obamacare.  Remember, 26 states had sued the government, arguing that Obamacare unconstitutionally coerced them to participate in the Medicaid expansion by threatening to remove all Medicaid funding for states that did not participate.  By a 7-2 margin that included liberals Stephen Breyer and Elena Kagan, the Court sides with those states by not striking the provision entirely, but by letting the states opt out without paying a penalty.  Already at least some state governors are hinting that they will do just that. As Lane summarizes, “In short, the liberals saved the plan for the blue states by letting the red ones go.”

Finally, goes this line of reasoning, in the long run, Roberts has carved out ideological maneuvering room and earned political capital which the Court can use to limit the scope of government intervention in policy areas such as Section 5 of the Voting Rights act, or race-based affirmative action.

In short, the argument is that Roberts was quite willing to beat a tactical retreat on this one issue in order to better position the conservative wing of the Court to win the ideological doctrinal battle in the long run.  And that explains the unusually harsh language exhibited by Ginsburg, who understood that Roberts had boxed the liberals in, and was none too happy about it.

I have two reactions to this.  First, to paint Roberts’ ruling as a victory for conservatives is to mistake the forest for the trees.   Let’s not lose sight here of the most important outcome from Thursday’s ruling: the individual mandate, and thus Obamacare, still stands, largely intact with the Medicaid exception.   Had Roberts switched his vote to side with the four other Republican-nominated justices, that would not be the case. While it is true that the liberal justices were none too happy with Roberts’ reasoning, the four other Republican-nominated justices were not exactly pleased either, as Kennedy’s dissent to Roberts’ labeling of the penalty as a tax shows. (I excerpted portions of that dissent in my previous post.)

Second, while it is true that Thursday’s ruling may give Roberts, who is only  57 years old, more room across the next two decades to reshape the direction of the court’s ideological direction, no one can be sure how that will play out.  It seems to me that if ideology alone drove Roberts’ decisions and that he was fixated on leaving the Court’s conservative mark, repealing health care would be a very good place to start.  Obamacare is, after all – as the Vice President infamously described it – a big effing deal.  It’s hard to anticipate any other ruling coming down the road that has the potential to affect so many people as did the Court’s decision regarding health care.   Given the stakes, I persist in thinking that a justice interested only in policy outcomes would have opted for a bird in the hand – repealing Obamacare – rather than playing a long game focusing on the elusive two birds in the bush.

For both these reasons, I stand by my earlier call:  Roberts’ decision is best understood institutionally, in terms of its implications for the Supreme Court’s status and independence, than attitudinally based on Robert’s ideological and policy preferences.  Put another way, if Roberts was not the Chief Justice who bears primary responsibility for protecting the Court’s institutional interests, he would have voted against the mandate.  Or so I believe.

This does not tell us when Roberts arrived at his decision.  It may very well be that it was late in the game, as he weighed the relative consequences of voting ideologically or institutionally.  Only Roberts (and perhaps his law clerks) knows for sure.  Perhaps someday some enterprising political scientist will dig through Roberts’ papers to discover the answer.  By then, of course, we will have more evidence on which to judge whether Roberts, as some are now arguing,  was playing a deep and forward-looking game – and with what degree of success.

Roberts Was Right, Institutionally Speaking

So, what explains the Supreme Court’s decision to uphold the Patient Protection and Affordable Care Act, more popularly known as Obamacare?   As most of you will recall, I thought the justices’ votes would fall largely along ideological lines, as captured by a short-hand measure – whether the justice was nominated by a Republican or Democratic president.  My back-of-the-envelope reasoning was based on more sophisticated models developed by legal scholars regarding how justices make decisions.  Based on my reading of this “attitudinal” model, I anticipated a five-to-four decision rejecting the argument that the mandate fell under the umbrella of the interstate commerce clause.  The government, in fact, cannot make you eat broccoli.  And that is precisely what happened – the Court’s Republican appointees ruled as a bloc against the Democrats to say the mandate was not permissible under the interstate commerce clause.  Here’s the key section, written by Chief Justice John Roberts, from the Supreme Court’s health are ruling:

“The individual mandate, however, does not regulate existing commercial activity. It instead compels individ­uals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Con­gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do­main to congressional authority. “

This extends a series of Supreme Court rulings dating back to the Rehnquist court in which a majority of the justices have begun to put limits on an expansive reading of the interstate commerce clause.   So far, so good for the attitudinal model.

What I did not anticipate, however, was Roberts’ then joining the four Democratic-nominated justices to uphold the mandate under Congress’ taxing power.  Granted, I’m no legal scholar, and this is a blog about the presidency, but I don’t recall too many legal experts who saw this twist coming either.  Roberts, now aligned with the four Democratic court nominees, writes:

“Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchas­ing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”

To justify this ruling and mollify conservatives, Roberts’ claims a distinction between Congress’ power to regulate interstate commerce clause and Congress’ taxing power, namely that the power to tax does not give Congress the same degree of control over individuals as does the power to regulate commerce:

“Third, although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Con­gress may regulate a particular decision under the Com­merce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individ­uals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the at­tendant consequences of being branded a criminal: depri­vation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment op­portunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.”

I will leave it to legal scholars to parse the relative impact of the power to regulate commerce versus the power to tax.  But the practical implications of Roberts’ ruling are the same: the mandate survives and the health care law is essentially intact.  (To be sure, the Court also struck down, by a 7-2 margin, with justices Elena Kagan and Stephen Breyer joining the Republican voting bloc, the Medicaid extension portion of Obamacare.  The majority ruled that the federal government could not take away all of a state’s Medicaid money if the state does not agree to the Medicaid extensions mandated by Obamacare.   Practically speaking, I’m not sure what effect this will have, since it is hard to believe states will turn down federal monies, but it does strike another blow, legally speaking, for federalism.)

So, the question becomes: what motivated Roberts to side with the four Democratic justices and uphold the mandate?  One answer, of course, is that he buys his own argument that the penalty provision of the mandate is really a tax, and thus perfectly permissible under the Constitution.  Never mind that when enacting the law Congress did not call it a tax and that the Obama administration, for the most part, studiously avoided using that term. Roberts ruled, essentially, that if it walks and quacks like a tax, it is a tax.

The problem I have with this argument is that the other Republican justices did not accept Roberts’ reasoning; they argue, in their dissent, that it is a penalty, not a tax, and that the two are not the same.  Note that the dissenters include Justice Kennedy who, according to the attitudinal model, would typically vote similarly to Roberts.  But not this time. In their dissent, the Republican justices write:

“The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Cov­erage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.”

What, then, explains Roberts’ ruling, if not the attitudinal model?  As I tweeted yesterday, I think the answer lies in his position as Chief Justice.  Roberts, in my view, was thinking institutionally when he decided to uphold the mandate.  That is, he was careful in making his ruling to protect the Court’s autonomy and future power prospects.  As Chief Justice he has greater stake than his colleagues in maintaining the Court’s reputation for impartiality. In this sense, Roberts was motivated by the same sentiments that guided John Marshall in the celebrated Marbury v. Madison case: the need to protect the Court’s institutional interests.  Remember, the power of the Court rests on the degree to which other actors, and the public view its decisions as legitimate – that is, not motivated by purely partisan reasoning. By upholding the mandate, and thus leaving Obamacare reasonably intact, Roberts protected the Court’s institutional interests. It is also the case, however, that once we dig beneath the obvious implications of this ruling – that Obamacare survives – there is much in the ruling that conservatives can like, beginning with the limits on the extension of Medicaid.  In terms of legal doctrine, Roberts’ reasoning appears, at least in theory, to reduce the scope of Congress’ use of the interstate commerce clause and spending power as a means of enacting social welfare measures, although the practical implications of this can be debated.  And, of course, by labeling the penalty a “tax”, Roberts has handed the Republicans a political sword which they can use in their effort to repeal the bill, and to attack Obama in the general election campaign.  So this was not an unalloyed victory for the President or his party.   On the whole, however, it certainly was better for them than the alternative: striking the bill down in its entirety.

The broader lesson, and one that I did not fully appreciate in thinking about how the Court would rule, is that justices are free to vote their beliefs as long as they are not subject to conflicting constraints.  In this case, I think Roberts’ role as Chief Justice, and his desire to keep the Court from appear overtly partisan, overruled his ideological preference, which was to strike the mandate down in its entirety.  In so doing, however, he has better positioned the Court’s conservative majority to pursue its ideological preferences in future cases.

3:17 p.m. Charles Krauthammer makes essentially the same argument in this op ed piece. (Thanks to George Altshuler for the link to Krauthammer’s piece.)

 

How Will The Supreme Court Rule Regarding Obamacare?

How should the Supreme Court decide regarding the constitutionality of Obamacare?

I have no idea.  But even if I did, my opinion wouldn’t be worth much. After all, I’m a presidency scholar and this is a blog about presidential power, broadly defined.  But I’m confident that I understand how they will decide the case – and it’s not likely to have much to do with the wording of the Constitution, or related case law for that matter.

For those of you living under a rock, the Supreme Court has just concluded the third and final day of hearings regarding the constitutionality of the Patient Protection and Affordable Care Act – more popularly known as Obamacare – the controversial health care reform legislation passed by a Democratically-controlled Congress and signed into law by Obama in March, 2010. On Monday, the Court’s deliberations centered on whether the suit against Obamacare brought on behalf of attorney-generals and governors from 26 states was justiciable at this time.  (The key issue here is whether the fine for not buying health insurance as mandated under Obamacare is a “tax” or a penalty.  If the former, an argument can be made that the case cannot yet be heard, since no one has actually paid that tax penalty, and won’t until 2014 at the earliest.  However, neither the law’s proponents nor opponents want to delay a Supreme Court decision under this reasoning, and the justices seemed skeptical that the case should not be heard.)  Yesterday the Court heard arguments regarding the constitutionality of the individual mandate – the provision in the law that says everyone must have health insurance, or pay a financial penalty.   Today’s hearing centered on the issue of severability – whether all of Obamacare must fall if the mandate is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership.

In listening to these hearings,  and reading the abundant commentary, it becomes quite clear that the Constitution or related case law isn’t going to be the determining factors in whether a majority of the Court finds Obamacare constitutional or not.  To be certain, when rendering their verdict, the justices will undoubtedly reference the Constitution as well as previous court cases such as Gonzales v. Raich and Wickard v. Filburn and U.S. v. Comstock. That is, they will ground their opinion explicitly in the meanings they attach to constitutional phrases, such as “necessary and proper” and “interstate commerce.”  And they will buttress their interpretation of these ambiguous phrases by citing these and other court cases.

But if the issues were as clear cut as both opponents and supporters of Obamacare would have us believe, the case probably wouldn’t be before the Supreme Court today.  In truth, as if often the situation with controversial legal cases, there are merits on both sides of the argument.   That’s why the 11th Circuit Court of Appeals (which voted 2-1 to overturn the mandate) and three district federal courts (two of which upheld Obamacare while a third did not) rendered different and not wholly reconcilable legal opinions on the matter. (And I’m sure I’m missing other court opinions on the matter, but you get my point – judges and other legal experts are divided!)

If a reading of the Constitution and legal precedent is not decisive, then how will the nine Supreme Court justices go about deciding the case?  By relying on their own political preferences and attitudes against the backdrop of public opinion.  And, as a political institution, that’s how the Court should arrive at this decision.  Whenever I make this argument, I understand that the legal purists among you recoil in horror, in the belief that politics should play no role in Supreme Court proceedings. Instead, you want the justices to behave like priests in robes, ruling ex cathedra from their legal temple without concern for partisanship or personal preference.

Dream on teen queen!  That view is wholly unrealistic and not even desirable.  For starters, justices are selected through an openly partisan process based in part on their political views; studies show that Democratic presidents overwhelmingly nominate Democratic judges, and Republicans opt for Republican ones.  They do so, presumably, in the belief that judges who share their partisan affiliation will vote in the “correct” way.  (That doesn’t mean they always get it right, of course! See David Souter.) Moreover, because the Court’s power rests primarily on the perceived legitimacy of its rulings, it can’t help but pay attention to public opinion.  This is not to say the Court merely reads the latest polls and rules accordingly.  But it does care about prevailing public sentiments, and most studies suggest that Supreme Court rulings and public opinion are rarely too far out of synch.  This should not surprise us – remember, justices come of age, politically speaking, under the same circumstances that shape the political views of many of their generational cohort. For all these factors, then, we shouldn’t be surprised that when trying to parse the meaning of ambiguous constitutional phrases, such as “necessary and proper”  or “interstate commerce” as applied to complex and novel issues like health care spending and insurance mandates that justices will fall back on their own broad ideological leanings.   How else can they be expected to reach a verdict?

Consider one of the key issues at the heart of this case: whether Obamacare creates a form of commerce and then forces individuals to buy a product, or whether it simply regulates a health care market in which everyone will, sooner or later, participate.  Where one comes down on this, I suspect, turns in large part on one’s broader ideological views regarding the role of government in the economy and in one’s private life.

So, if I am right, what does this suggest regarding how the Court will rule?   I’ll let others peer into the tea leaves of the justices’ questioning, or parse the implications of previous court rulings.   For me, the best evidence is the previous lower court rulings on this case.  If I’m counting correctly, with two exceptions every federal justice appointed by a Republican president has ruled against some aspect of Obamacare, while – with one exception – every justice appointed by a Democratic president has voted in its favor.  This follows on the heels of the congressional vote that saw every Republican vote against the health care bill.  Why should this change in the Supreme Court?  I don’t think it will.  My guess is the four Democratically-nominated justices –  Breyer, Ginsburg, Sotomayor and Kagan – will vote to uphold Obamacare.  The Republican-nominated ones – Scalia, Kennedy, Thomas, Alito and Roberts will vote against the mandate, although I suspect at least some of them will allow the rest of the law to remain in place even without a mandate.  If I am wrong about any of these votes, it is probably Kennedy’s – his questions on Day 2 seemed to suggest he was willing to accept the government’s argument that health care is a distinctly different type of commerce, one in which an individual’s decision not to buy insurance clearly impacts the financial standing of the insurance holders.  I should be clear – I base this prediction not on any deep knowledge of the relevant constitutional law, or after reading the transcripts or listening to the audio of the oral arguments.  So don’t bet the retirement fund on what I write.

What if I am correct and the Court rules against the mandate by a 5-4 vote? Dahlia Lithwick argues at Slate.com that if a closely divided Court does rule in such a blatantly partisan manner, it risks further undermining its legitimacy which was already damaged due to its decisions in Bush v. Gore and more recently with the Citizens United case.  Lithwick notes that “The court likes to pretend it’s completely above public opinion, inured to the momentary zigs and zags of the polls. But most of us know that nothing could be further from the truth.” Citing a Bloomberg News national poll showing that 75 percent of Americans expect the Supreme Court’s decision regarding Obamacare to be influenced by the justices’ personal politics, Lithwick warns that  “To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—prove that 75 percent correct, and erode further the public esteem for the court.”

The problem with Lithwick’s reasoning is that polling consistently shows that a plurality of Americans opposes Obamacare.  To be sure, some of that opposition is rooted in the belief among liberals that the legislation doesn’t go far enough, and the degree of opposition depends in part on survey question wording.  But it is safe to say that at no point since the legislation passed Congress has it received majority support. Much of that animosity  centers on the individual mandate whose coercive nature – while perhaps economically necessary to make Obamacare feasible – cuts against the grain of many Americans’ deep-seated cultural aversion to what they perceive as government infringement on individual freedom.  So it’s not clear to me that a closely-divided 5-4 decision against Obamacare will do much to impact public opinion toward the Court.

Keep in mind that public approval of the Court has declined a bit recently, but that decline is due to increasing dissatisfaction – but for different reasons – from liberals and conservatives.

About a third of Democrats generally feel the court is too conservative, while half of Republicans hold the opposite view. Independents come down in between although a slight plurality think the court is too liberal as opposed to too conservative.  Most independents, however, think the Court’s ideology is about right.

Given this preexisting partisan divide, it seems that barring a unanimous decision, how the Court rules regarding Obamacare is likely to be viewed by members of one party as primarily a partisan-driven decision.  Those in the other party will view it as correctly decided.  However, it is certainly plausible that many independents who are not sure where to come down on the issue will back the court, no matter what it decides. Put another way, when it comes to Obamacare, at least some of the public may be closely divided, but not necessarily deeply divided.

Looking ahead, the Court is likely to render its decision sometime this summer, near the end of its current session.  That will be just as the nominating process is winding down (I think!) but before the general election heats up.  No matter how the Court rules, Obamacare is likely to be an important issue in the presidential election, just as it was in the 2010 midterms.  But it’s hard to see how the Court’s verdict can make an already divisive issue even more polarizing.

“You Lie!”: Assessing Claims About Obamacare’s Cost

Three days ago the Congressional Budget Office (CBO)  released its latest 10-year projection for the cost of the Obama administration’s Affordable Care Act (ACA), prompting a flurry of  “I told you so’s” from Republican Party leaders, conservative bloggers and other critics of Obamacare. That’s because the CBO report estimated  ACA’s 10-year cost to be $1.76 trillion, or nearly double what President Obama indicated in his September, 2009 nationwide address to a joint session of Congress . (You remember that speech – it’s the one during which Representative Joe Wilson called out “You lie!”)  In making the case for his health plan to Congress, Obama stated: “Now, add it all up, and the plan I’m proposing will cost around $900 billion over 10 years — less than we have spent on the Iraq and Afghanistan wars, and less than the tax cuts for the wealthiest few Americans that Congress passed at the beginning of the previous administration. Now, most of these costs will be paid for with money already being spent — but spent badly — in the existing health care system.  The plan will not add to our deficit.”   In fact, the CBO estimated at the time that the health care plan – which they eventually priced at $940 billion over a 10-year period – would not only not increase the deficit – it would actually reduce it.

The CBO cost estimates were a crucial factor in the health care debate because the projected decrease in the budget deficit provided political cover to ACA’s supporters.  With the latest 10-year CBO projections, however, ACA’s critics are crying foul, arguing that the public fell victim to a Democratic bait-and-switch scheme.  However, as liberal bloggers and other defenders of ACA were quick to point out (see here and here and here), the most recent CBO report did not suddenly change costs projections or any of the previous assumptions on which it based its estimated 10-year cost of Obamacare. That’s because the latest 10-year projection, which by law the CBO must produce every year, includes both additional costs but also more revenue – both a function of adjusting figures based on ACA’s implementation date. Remember, ACA doesn’t begin to be fully implemented until 2014, when provisions expanding Medicare eligibility for the poor and the insurance subsidies for middle-income people kick in.  Additional provisions, such as the tax on high-end insurance plans, don’t start until 2018.

The point is that the initial cost estimate Obama used in his 2009 speech was based on several years in which ACA wasn’t really in effect. The latest CBO estimate includes more years under actual ACA coverage, so the costs appear to be going up.  But so are projected revenues.  In fact, under the latest CBO projection, it is estimated that 10-year impact of ACA will reduce the budget deficit more than previously estimated.  As the (much maligned) Fox News accurately reports, “As expensive as it is, the CBO predicts the law will actually reduce the deficit because it increases the income from a range of tax increases and penalties on individuals, employers and insurance companies — by $81 billion more than last year’s projection.” To ACA’s supporters, then, conservative critics either failed to read the text of the CBO report, or they are deliberately misrepresenting its findings.

Projections that ACA will actually reduce the budget deficit are not likely to mollify its conservative critics who point out that the CBO also estimates that in total some 4 million people will lose employer-sponsored health coverage – a figure that belies Obama’s claim that ACA would not affect people’s existing health care coverage.  ACA’s defenders point out, however, that this number is less than 2% of those who currently have employer-based coverage.

And so the debate goes on. In assessing the competing claims, here’s what I think you need to keep in mind: efforts to estimate the likely cost of ACA a decade out are little more than educated guesses.  No one really knows what impact ACA will have on the budget deficit that far in advance.  To begin, given the current court challenge (the Supreme Court will hear challenges to ACA this month), no one can be sure which ACA provisions, if any, will still be in place a decade from now.  But even if ACA survives the legal challenge, there are far too many unknowns to have any faith in a 10-year projection based on estimates of costs and revenues.

Consider the CBO’s 10-year government budget estimates more generally.  Under the current law, the CBO is required to estimate government spending and revenues over a 10-year period, and its “non-partisan” projections are closely watched by government policymakers as well as those in the private sector. Independent analyses show, however, that the CBO’s 10-year budget projections aren’t very reliable.  This isn’t because CBO analysts lack expertise, or that they are somehow biased. It is because they are tasked with an impossible job. For starters, the CBO is required to assume that existing laws governing government spending and revenue aren’t going to change over the projected timeline.  That’s almost never the case.  But even if it were, other economic variables, including changes in GDP, inflation and even demographic factors are almost impossible to accurately anticipate.  Forget 10-year estimates – studies show that the CBO’s one-year budget projections aren’t much more precise than simply assuming that next year’s economic numbers will mimic this year’s.  As evidence, consider the following graph showing actual and projected CBO budget figures across a 10-year period:

As you can see, the CBO projections completely missed the coming housing collapse and the accompanying economic recession, not to mention spending on two wars – as did everyone else!  We should be skeptical, then, when we hear pundits evaluate ACA based on its estimated budgetary impact a decade from now.  Unlike Joe Wilson, I’m not accusing anyone of lying. But typically judgments about ACA say more about the pundit’s own ideological leanings than they do about any certainty about what ACA’s actual economic impact is likely to be, particularly that far ahead. This is not to say that the CBO projections are wrong – in fact, they may be the best projections available – but they are projections made with a great deal of uncertainty.  The truth, I think, is that there are simply too many moving parts and too many unknowns to be confident in predicting how ACA is going to play out.  But that won’t stop both sides from trying.