The SCOTUS hearings
Democrats so far have focused on the risk that Amy Coney Barrett poses to the Affordable Care Act. This is completely understandable as electioneering. The ACA was one of their best issues in 2018, and it will be again this year. But . . .
By focusing narrowly on the ACA, the Democrats are missing an opportunity to educate the public more broadly on the role of the Court and the danger posed by a highly conservative and partisan set of Justices. The Court is a threat to all of the Democrats top legislative priorities and to voting and election reform. In addition, the ACA challenge the Justices will hear in November is probably not going to succeed, in part because it is extraordinarily weak, and in part because preserving the ACA will defuse any momentum for a political challenge to the conservative majority on the Court, and the Justices know this.
” the ACA challenge the Justices will hear in November is probably not going to succeed”
Your prophecy has been noted.
Yes, the ACA suit before the Court in November is just short of bonkers. All of the Justices have to know that if they kill the ACA over this suit, Biden would be forced to expand the Court.
They’ll wait their time.
Even if the rightwing judicial activists on the Court decide to rule against ACA, one would not need to pack the Court in order to write a new and even more progressive health care law. Now if the Court decided to go right wing judicial activist in 2021 – then the case to pack the Court would be crystal clear. One step at a time.
“The Court is a threat to all of the Democrats top legislative priorities and to voting and election reform.”
The John Lewis Voting Rights Act is consistent with the Constitution – at least my copy which has section 2 to the 15th Amendment (never mind that Scalia never read this version). If Congress finally passes this law and President Biden signed it – any Court that tried to declare it unConstitutional would need to be disbanded/
Pgl,
None of what you are saying makes a whole lot of sense. Why pass a new more progressive healthcare law that you know will be killed by this Court? Why pass the John Lewis Voting Rights Act that you know ill be killed by this Court?
Enlarging the Court will be mandatory for the successful implementation of any progressive legislature.
This is a Court that decided money is speech and there is no racism in the US. And this group is worse than the group that made those decisions.
I don’t think the ACA case is quite as weak as some believe. There has been a lot of talk about the importance of precedent (Roe, but not Heller and not Citizens United, typically). The first ACA case found the law constitutional as an exercise of the Congress’ power to tax. The non-severability of the act is repeatedly referred to in the Congressional record and in the act itself I believe. The three-legged stool and all that. The individual mandate penalty is gone now. I admit that I lost track of what happened to the employer mandate for 50 and up employees….is it still in place? I know it was delayed. As a practical matter it is no longer a three-legged stool. I think the case will fail as the Court is very likely to defer to Congress’ partial repeal as de facto acknowledgement that the provisions of the act really are severable, since the option to repeal the entire act was available to them. It is probably a loser, but it is not a crazy case based on how the original holding was explained.
The idea that the ACA cannot be separated from the mandate being zeroed out is bonkers.
Give it a thought, and think what Congress intended the law to be. Hint: It was not based on the mandate. Obviously, it did not rely on the mandate.
It is called severability.
Part of the problem is that judicial nominees have been given tacit consent to lie during their confirmation hearings. ACB said, under oath, that no one asked her how she would vote on any issue. That might or might not be true. Her statement is either objectively true or objectively false. The Democrats should gently remind her that sitting on the SCOTUS would not shield her from a perjury charge if a witness should happen to come forward in the future that contradicts her sworn claim. If these hearings are to be meaningful in the future, then Congress needs to make an example of nominees who lie without fear of consequences. As the old saying goes, the hangman has a way of concentrating the mind.
2sbs,
Strong point.
Right now I would guess that broad coverage is more at risk than pre-existing conditions. Advances in medical knowledge work against classic insurance solutions to healthcare funding. To pick an age of 27 years-old (when access to a parent’s policy expires), the risk of schizophrenia is way better understood than the risk of many forms of cardiac disease or cancers. So you could expect a pretty normal market for insurance that covered cardiac disease and cancers, but a really terrible one for schizophrenia. Autism is even “worse”, since it is rare for anyone past 8 to be diagnosed with autism if they have had anything like competent pediatric care. But the actual treatable maladies associated with autism can code out a lot of different ways that can get them covered in a broad pool. Not so much with schizophrenia since the diagnosis is pretty clear and non-controversial. If you don’t have it or some pretty clear symptoms of it by early 20’s you are really very unlikely to ever experience it in your life. In a freer market, it won’t be that your schizophrenia coverage is void because of pre-existing schizophrenia, but that it is not covered. Yes, the 50 year-old runs a tiny risk of having real bad luck, but saves lots of dollars every year to run that risk.
Eric,
If the ACA is killed pre existing conditions will result in largely increased premiums for those with them.
There is no question of that at all.
True
The severability issue I do not think is bonkers. You will find a lot in the Congressional record during the consideration of the ACA that broad coverage, community issue and mandatory purchase were inextricably linked. Recall how one of the major Democratic candidates in the 2008 primaries was vehemently criticized for not supporting mandates….help me remember which one that was. And conceptually these really are linked. The country is fortunate that so much of the population has employer coverage or medicare or other public health insurance, since if the exchange market had evolved as many desired with firms directing their employees there, then there would probably be a much higher percentage of “invincibles” pulling all their money out of the market. But I agree that Congress put an end to it by doing a partial and not full repeal. Still it is a very good idea to have the Supreme Court make this final ruling as it is essentially a tension between their own holding in Sebelius and this partial repeal that should be clarified.
EMichael, you are right but of the two issues – pre-existing conditions and broad coverage, I would expect that pre-existing conditions would fare better in the future if ACA goes down. Everyone says they are in favor of protecting it and although some probably are faking it, I think the energy is there to include it in go-forward plans. But I do not sense that things like schizophrenia command quite the same level of insistence and will be at greater risk of just letting “the market” find an equilibrium. This would leave health issues that have pretty clear risk markers early in life at great peril. I can well imagine that your prior skin cancer will not prevent you from getting a policy, but the policy might have no coverage of schizophrenia (or major caps on diseases with early life confirmation).
“Everyone says”?
Show me a piece of GOP legislation that includes pre-existing conditions.
Otoh, the mandate was a piece of one of the foundations, not a foundation. The fact that there has been no negative effect on the ACA without it shows it is easily severable.
This is simply a bs GOP ploy from BS GOP Judges that even this Court will not be sucked into believing. They know if the Dems hit the trifecta, or when they do, the Court will be expanded beyond their belief. They will do everything they can for that not to happen.
Whitehouse on dark money and nominations
Ken,
Yeah, that was frightening. Upset he did not ask her one question, that being, “Were you a member of the Federalist Society?”
Klobuchar is making her look exactly like the Scalia trained stooge she is. Not that it matters.
I do not think the ACA will go down but if it does I expect that there would be a decision with an order effective +6 months or a year to enact other law if the Congress wanted to. At that time I believe that pre-existing conditions would fare better than broad coverage. So long as ACA is law there is no need to new legislation and this lawsuit is not a Congressional action. Congress has no reason to introduce any new law at this time.
I have thought that the “rebellion” against ACA would either die away or lead to a solution of higher involvement of public funding in healthcare. The critics are mostly motivated by a real and substantial increase in pricing for ACA insurance products from products they were satisfied with pre-ACA. One of my sisters for example paid out an added $4000/year for insurance coverage that had no incremental value for her or her husband. They understandably hated that. Yet the medical loss did not decrease really for insurers…they were using that extra $4000 to pay out valid claims at the same rate as the under prior pricing. That was driven mainly by community issue and broad coverage requirements. Community issue (pre-existing conditions) is quite popular. Broad coverage is more of a question mark. Nonetheless, how does Congress deliver lower pricing while not jettisoning all the incremental claims volume? By adding public dollars.
Barrett was a member of the Federalist Society from 2005 to 2006 and from 2014 to 2017. She is a member of the American Law Institute.
Homeowner’s insurance will have no “value,” much less incremental value, in any year it is not used — which is most years one hopes. That’s what insurance is.
You can’t say the ACA insurance had no incremental value unless the old insurance had all the provisions required in the ACA — in particular, no annual or lifetime caps. If one of them had contracted cancer, they would have found it had a whole lot of incremental value
Yes
EMichael – let’s assume you are right about my comments. I trust you read “If Congress finally passes this law and President Biden signed it – any Court that tried to declare it unConstitutional would need to be disbanded”.
Get rid of the Federalist Six anyway we can and pack the Court too. Of course we could go the FDR route making this threat and watching the Federalist Six decide to be reasonable for their own survival.
“ACB said, under oath, that no one asked her how she would vote on any issue. That might or might not be true. Her statement is either objectively true or objectively false.”
No her statement is clearly false. Senator Whitehouse laid the foundation for why it must be false. She has talked to people in the Federalist Society about all of these matters, which is why they pushed her to be the GOP choice.
Urban, when the President tells you that you can keep your plan if you like it and you like your plan and then later demands that you buy one with a lot more coverage that you specifically did not buy under the plan you liked, and charge you $4K more for it you darn sure are going to say it has no incremental value. Why didn’t Obama insist that the law specifically let people keep those plans? Because he was intent on shoving it straight up the wazoo of people like my sister, that’s why. He need the $4000 to spread it around. And there is a social solidarity argument in favor of that. But he did not make that argument, but rather decided to treat millions of Americans with huge disdain by lying to them in an outrageous manner. Gruber laid it out clearly that not describing this accurately was an intentional tactic to help get it passed.
Eric:
Thank you for saying something stupid along the same rhetoric Republicans have claimed since the PPACA was passed.
a HHS press release spelled out the numbers: “roughly 42 million people insured through small businesses . . . along with “17 million who are covered in the individual health insurance market.”
and here: Obama first made that pledge in 2008, while debating John McCain. The context is crucial: Obama was addressing “the majority” of Americans (roughly 66% ) who worked for large companies that paid 75% to 80% of their premiums –not the minority who purchased their own insurance in the individual marketplace (5%), nor the 17% who were insured by small business owners.
“So here’s what my plan does. If you have health insurance, then you don’t have to do anything. If you’ve got health insurance through your employer, you can keep your health insurance, keep your choice of doctor, keep your plan.” http://angrybearblog.strategydemo.com/2014/02/why-are-so-many-americans-confused-about-obamacare-how-a-video-produced-by-cbs-washington-bureau-misled-millions-part-1.html#sthash.YsfxPHFN.dpuf You really need to read this guy as he is credible. Any questions as to who said what?
Since I have written on the PPACA many times and have been asked to write on it elsewhere, I think I know it better than most people.
If your insurance plan changed after the PPACA came into being, the insurance plan would have to align itself with all the other points the PPACA had designed into healthcare plans such as you had to be insured whether you had pre-existing conditions or not and you could not be penalized because of such. The only people who treated you with great disdain were Republicans politicians as they lied to you.
Some Senators should ask the good Judge, again, and again, whether she believes in science.
Ken:
Ask specific science related questions and the the do you believe.