Tag Archives: health care

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.)

OK, OK, Enough Already! I’ll Post Something On Health Care

Nothing has happened in the ensuring three months to change my view, expressed in my original post on the Supreme Court’s health care hearings last March, that that the best predictor of how the Court will rule today is how the lower courts’ have broken down on this case. That means Republican appointees will vote against the individual mandate, and Democratic ones will support it. This is not because Supreme Court justices view cases through a purely partisan lens, but because their legal perspective can’t help but be shaped by the same factors that influenced their partisan outlook. In closely contested legal cases that turn on interpretations of ambiguous words, such as how to define “interstate commerce”, I don’t see a better decision rule.

This is a much guess as anything, of course, but I think it is a reasonable guess given the evidence. For what it is worth, I think a decision to strike down the mandate, but only the mandate, is consistent with public opinion. Thus, this recent Pew Research Center poll shows that a plurality of the public disapproves of the health care law in total..

This split has remained relatively consistent since Court’s public hearings on the case last March. Most notably, the public’s views break down along partisan lines, particularly when it comes to the individual mandate.

This is why I think the electoral implications of today’s decision are likely to be overblown by the media. Yes, both camps will try to frame the ruling in a way that bolster’s their candidate’s chances heading into November, but as the poll suggests, they will be mostly preaching to their respective choirs. And while independents are, according to Pew, largely against the mandate, there is some evidence that opinion among this group is more closely divided regarding other components of the law.

Keep in mind as well that surveys consistently show that the economy and jobs are viewed as more pressing concerns by most voters, and that 70% or more of adults surveyed are satisfied with their current health care coverage. So while I have no doubt that today’s decision is going to generate a torrent of media coverage, we should be careful not to be too swayed by the inevitable partisan spin that will inform much of what is said in the next several days. Yes, in a close election, one can cite any number of factors as being potentially deciding, but in weighting those factors, health care comes in far below economic concerns.

If the Court renders its ruling on a narrow 5-4 basis, as I’m guessing it will, we will also hear about much damage this will do to the Court’s public standing. Again, we need to keep this in perspective; public opinion toward the Court, while remaining generally favorable, has nonetheless fluctuated quite a bit in recent years. I don’t anticipate that a split decision will inflict any lasting damage on the Court any more than its foray in 2000 into election year politics did – and that was viewed as a far more partisan decision.

Finally, the Court ruling today is not the final word on health care reform particularly if it renders a narrow ruling against the mandate, but does not throw out the rest of the law.

So, for now, sit back, grab your morning beverage of choice, and enjoy the fireworks. Assuming the twitter feed doesn’t collapse, the SCOTUS twitter feed should have the decision almost as soon as it is announced.

10:19 No sooner did I send this than the Court decision came down – but not after CNN misreported the initial results. In any case, it appears that mandate was upheld under the Congress’ taxing power and not as interstate commerce. In effect, the Court stepped in and made the argument that the Obama administration should have made. Interestingly, the Court broke down almost exactly as you might have thought – with the one exception of Roberts, who sided with the majority. So, the attitudinal model of court decisionmaking gets a pretty big boost here, predicting 8 of the nine justices. But in the end, it was that 9th that proved decisive.

Now, let the media overreaction begin!

10:29 Ok, I give up. Again. Now some media outlets are saying that the practical effect of the decision is to undercut the mandate because people who refuse to pay the “tax” will not be penalized by their refusal. I think I am going to step back and let legal experts actually read the ruling before trying to assess its meaning.

Here’s the actual opinion by the Supreme Court, fresh from the printing press.

Not surprisingly, there is a LOT of spin going on right now, on both sides – almost all of which is overstating, in my view, the political impact of this decision. Let’s read the opinion, let the political dust settle, and see where things really stand in 24 hours. For now, and not surprisingly, everyone on every side sees a silver lining. Conservatives think the Court just limited Congress’ use of the commerce clause, and strengthened federalism, consistent with recent trends in the Court’s decisions. Liberals are happy the mandate stands, albeit as an illustration of Congress’ taxing power. Romney is happy to see the ruling take health care off the table, so the election can now be about the economy, where he runs stronger. Obama is happy the mandate, and thus health care, survived pretty much intact (although the Medicaid restrictions still need to play out). Roberts is happy because he managed to side with both the conservatives and liberals in one decision. Even political scientists are happy because the justices ruled pretty much along the lines that their partisan affiliation would have one predict – indeed, on the interstate commerce clause, they ruled exactly as one might predict.

Only CNN is unhappy, because they blew the initial call.

VPR, Health Care, and Viewer Mail: Did Obama Make A Mistake?

I’ll be back on Vermont Public Radio this Monday as a guest on Jane Lindholm’s Vermont Edition program. We’ll be discussing Obama’s first year in office. You can email questions to VPR in advance – as I recall, some of the best questions and phone calls during my last visit came from regular contributors to this blog, so I encourage you to participate again. The program begins at noon – send your questions in advance to: vermontedition@vpr.net

(As always, I’ll be playing our word game contest in which I try to incorporate three words chosen by a random word generator into my answers, just to keep the vast VPR audience on edge. Monday’s words will be: “accord”, “smoking” and “perpetual.”)

A good chunk of that discussion will undoubtedly focus on health care. In anticipation of that topic, I want to answer some excellent questions several of you asked regarding health care and Obama’s first year in general, and to pose one of my own. Health care is in the news again today thanks in part to this New York Times article in which Rahm Emanuel appears to indicate that passing health care has dropped down on the list of Obama’s legislative priorities. Emanuel’s comments are not surprising; those of you participating in the live blogging of the State of the Union will recall that I thought Obama clearly signaled that he no longer was willing to expend time or political capital in getting the current health care legislation through Congress.

In reading through the various blogs after the speech, I detected what I saw as a stubborn resistance among progressives to read the writing on the wall indicating that health care reform is dead, at least in the short term; more than one blogger insisted that Obama had stated in his speech his renewed commitment to pass the health care legislation now in play on the Hill. In their defense, he did renew his support for health care reform, at least in the abstract, by saying, “Here’s what I ask Congress, though: Don’t walk away from reform. Not now. Not when we are so close. Let us find a way to come together and finish the job for the American people.” And, as Chris A. argued in his comments on the election night blog, there may be good political reasons to pass the Senate bill. Chris suggests that Democrats in the House who voted for health care will pay a bigger political cost with voters in November if they appear to reverse themselves by not supporting health care reform, and that the best way to get legislation passed is for House Democrats to support the Senate bill. That may be true for most of those Representatives who supported health care, but I believe the aftershocks from Brown’s election, as interpreted through the media, changed enough votes in the House to make this strategy politically untenable. Simply put, I don’t believe there’s enough political support in Congress to pass health care legislation in either chamber in its current form.

The placement of Obama’s “support” for health care near the end of his speech, against the backdrop of the political calendar that shows midterms just around the corner, clearly told me that Obama had come to the same conclusion, and that he preferred to put further health care debate on the back burner. Emanuel’s comments add further credence to that supposition, as did Obama’s remarks during his open debate yesterday with Republican leaders. In that meeting Obama made no effort to provide a roadmap for ending the deadlock on health care and admitted that some of the closed-door dealmaking that led to passage of the House and Senate bills was “messy”.

With the midterms now less than a year away, time is working against those who support passing health care legislation. This raises the question: was pursuing health care reform a mistake? Yesterday, retiring Democratic Senator Byron Dorgan, now freed from the constraints of running for reelection, said it was; Obama, he argued, would have been better off focusing on the economy during his first year. Hindsight is 20/20 of course. But I said from the beginning of Obama’s election that he was unlikely to get Congress to pass sweeping health care reform, and that instead his best strategy was to lower expectations and focus on more modest changes, such as insurance reform and cost control within the context of the current fee-for-service, third-party payer health care system. My reasoning had less to do with the specter of Republican obstructionism and more to do with the inevitable drop in public support as health care moves from an abstract promise of “reform” to the specific legislative compromises that must inevitably be made to get reform legislation through Congress. Remember, in the end the public doesn’t consider health care legislation in a vacuum – they compare it to the status quo. For much of the public, the uncertainties associated with the reform proposals, particular on the cost side, outweigh their misgivings toward the current health care system.

I’m working on a longer post that examines why health care reform did not pass despite Democratic majorities in both chambers, but let me end this post by asking: Is Dorgan right? Did Obama make a mistake in signing on to health care reform? Or was the mistake perhaps in the tactics he used in trying to get Congress, and the public on board?

These are the questions I’ll try to address on Monday’s VPR show but I’m eager to hear your talking points beforehand.

In Defense of the Senate Filibuster, Take Two

Several posts ago I defended the existence of the Senate filibuster, which has come under fire from liberals because of its impact on the health care debate. My argument rested on three points:

1. That the increased use of the filibuster during the last half-century reflects not just the growth in partisan polarization in Congress, but also the lowered cost of threatening to filibuster. Senators are much more willing to simply invoke cloture to forestall a threatened filibuster, which means filibustering a bill is a less time consuming process than it once was. This concern with efficiency is a function of the increased desire by Senators to leave Washington, DC in order to do constituency work in their home state. So, we shouldn’t conclude that because filibusters and cloture are used more frequently today that the Senate is more susceptible to gridlock than it was 50 years ago. In fact, according to some political scientists, such as David Mayhew, legislative productivity has not decreased in this time. The Senate is no more prone to gridlock today than before.

2. That – as currently constituted – the Senate could today easily modify or eliminate the filibuster if a majority of 51 Senators wanted to. In other words, it is within Democrats’ power right now to end the filibuster, and there is nothing Republicans could do to stop them.

3. That Democrat senators do not eliminate the filibuster because it is one mechanism that protects regional and state interests. In short, it is an instrument of federalism, and an important safeguard for protecting one’s constituents, whether one is Republican or Democrat.

Judging by your email responses, many (most?) of you remain unconvinced. Several of you emailed articles by Ezra Klein, Paul Krugman and Tom Geoghegan, all of whom criticize the filibuster as a symbol of a broken Senate. And while it is true that their objections to the filibuster are largely rooted in the health care debate (and that none of them seemed to be objecting that much when Democrats were using the filibuster to block George W. Bush’s judicial nominees!), that doesn’t mean their arguments are without merit. As Emerson said, a foolish consistency is the hobgoblin of little minds.

At the risk of revealing my tiny cognitive capacity, however, let me revisit the argument on behalf of the filibuster by extending my earlier comments. Critics argue that the filibuster is antimajoritarian; that is, it allows a minority of Senators to block proposals supported by large majorities. So, in the case of health care reform, we have a Democrat President who ran successfully on a promise to reform health care, and who was voted into office along with Democrat majorities in both the Senate and House, in part to fulfill this promise. A majority of the public, when polled, supported health care reform. And yet the ability of this majority party to fulfill a basic campaign promise is blocked by a minority of Republicans. This cannot be what the Framers intended when they established a representative democracy. As Bob Johnson quite cogently argues in an email to me, the reason we replaced the Articles of Confederation with the Constitution originally was to prevent individual states from blocking efforts to address national problems.

At first glance this looks like a persuasive argument. But let’s think about it in the context of health care and the current Congress. The mistake that opponents of the filibuster often make is to equate the sentiments of a majority of Senators with the views of a majority of the public. But we can see why they are not necessarily equivalent. Recall that the current Congress is the most polarized since the Civil War; as the figure below shows, there’s not much of a moderate middle, and no overlap between the two parties, ideologically speaking. (Blue lines signify Democrats, solid red are the Republicans. The X [bottom] axis measures ideology based on voting, and ranges from extreme liberal on the Left to extreme conservatie on the Right. The Y [left-hand] axis is the number of members of Congress falling within each space on the ideological continuum.)

polarization 110 Congress How did Congress get so polarized? One reason is that increasingly candidates must win a party primary in order to run in the general election. (Prior to the 1960’s party leaders often determined who would run on the party ticket.) Primaries, however, tend to attract a smaller number of voters who are not representative of the electorate at large; instead, they are often single-issue voters drawn from a party’s more extreme wings. For example, remember the 2006 Democratic primary in Connecticut in which antiwar activist Ned Lamont beat Joe Lieberman, largely on the strength of Lamont’s antiwar views? As this chart shows, Lamont won with the support of less than 6% of the voting age population in Connecticut.

connecticut 2006 Had Lieberman dropped out rather than run as an independent, Lamont likely would have beaten the Republican candidate – one of a wave of Democrats elected into office in 2006 and 2008. Instead Lieberman ran in the general election and soundly beat Lamont, based in large part on support from more moderate voters (and not a few Republicans). Lamont’s case is unusual only in that Lieberman did not give up after losing the primary. Changes in how candidates are nominated increasingly mean that voters are forced to choose between two relatively extreme candidates in the general election, neither of whom – as we saw with Lamont – necessarily represents the policy views of the majority of constituents.

The result is a Congress in which neither party is necessarily very representative of the more moderate electorate. To see this graphically, imagine a bell curve distribution of voters based on ideology, with the most moderate middle in the center under the highest portion of the curve, signifying the greatest number of people. Now superimpose that on the Congressional polarization chart and you’ll get a sense of what I am arguing – Congress is least representative in the very middle.

Or, consider polling regarding health care. Americans support the idea of health care reform in the abstract. But, as happened in 1993, when asked to sign on to particular legislation, with all the tradeoffs reform inevitably entails, support for healthcare drops. We see this in the following table:

Indeed, the latest Pew survey suggests that health care reform is not even in the top five of issues of concern to Americans. And yet the health care legislation remains the focus of debate for members of Congress and policy activists on both sides, with Obama vowing to get some type of health care legislation passed.

You see my point. A majority of the Senate may favor the current health care bill – maybe even a near supermajority of 59 members. But that is not always the equivalent of the majority of the electorate because the moderate middle of voters is not always proportionally represented in the Senate.

So, why is this a defense of the filibuster? Recall that in 2005, Senate Democrats, although in the minority, used the filibuster to prevent George W. Bush’s judicial nominees from coming to a vote. Harry Reid defended the practice, arguing that Bush’s nominees were not in the political mainstream. Today, Republicans threaten to filibuster the Democratic health legislation, arguing that it goes too far Left and does not have the support of a majority of the public. Both sides may be right. That is, the majority party in the Senate in both instances may in fact have been pushing policy views, or nominees with judicial views, that were out of step with mainstream public opinion.

I do not disagree that the filibuster can be used by a minority of Senators to thwart the will of the majority of the Senate – a majority that represents the majority of voters. We saw that during the civil rights debates when a minority bloc of southern Senators prevented passage of civil rights legislation that most Americans supported. But what Geoghegan, Klein and Krugman ignore in their zeal to see health care legislation pass is that the filibuster can also be used to protect the moderate majority against more extremist policies too. As the Senate becomes increasingly polarized – it is now the most polarized since the Civil War – this latter function of the filibuster is, I argue, increasingly important.

In short, rather than serving only a strictly antimajoritarian purpose, the filibuster serves an additional crucial purpose in the modern Senate: it protects the majority interest by preventing either wing of the two parties from imposing its own more extremist views. Equally important, the increased use of the filibuster, and cloture votes, does not seem to have slowed legislative productivity, at least according to some political scientists. Important laws are still passed. We tend to lose sight of this in the current focus on the inability to pass health care legislation. Health care legislation may be stuck not because of minority opposition so much as due to flagging popular support.

For some of you, of course, catering to the views of the moderate middle is no virtue. I’m not necessarily defending a moderate perspective. I am arguing, however, that the usual case against the filibuster – that it is an antimajoritarian tool that prevents the Senate from fulfilling the will of the people – is not always true. Sometimes it protects the will of the people.

That’s the defense of the filibuster. Let the critics respond!

I’ll be on later tonight, live blogging the State of the Union address. Feel free to join in with commentary (“You Lie!”)