The Enemy of My Enemy is Not My Friend, or John Roberts Plays the Long Game
It was only last week when liberal pundits were more alert. Well, some of them weren’t—after all, we’re talking about people identified as “liberal” by those who consider Ross Douthat and David Brooks to be mainstream. What some of them knew about Arizona, all of them appear to have forgotten about PPACA. The Supreme Court decision last week invalidated three points of severe state overreach; even Anthony Kennedy couldn’t imagine that “you will carry your papers at all times” was reasonable. But they left in place a fourth issue—collateral paper-checking for another reason—until it could go into effect. After all, if it really was all about security, the police will act completely appropriately. And if they do not, there will be a case that will reach the Supreme Court after the law is in effect and further revision will be possible.
Steve Benen (h/t Erik Loomis) appears to have gotten it correct: John Roberts took one look at the company he was keeping—and maybe spoke with a few hospital administrators—and flipped sides. Or, to quote Benen:
And yet, as of this morning, four justices — Alito, Kennedy, Scalia, and Thomas — insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.
To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks
What abides is that Roberts also knows that he will probably get a better case from which to dismantle “Obamacare.” It didn’t especially take contortion to call the penalty a tax. There is only one Federal enforcement mechanism—and the States were not required to put any penalties of their own in place, though it seems likely some will do so—and the agent of that enforcement is the Internal Revenue Service. (This is, btw, one of the places where ObamaCare most clearly resembles RomneyCare—down to the penalty being too low to, in itself, convince people to buy insurance.) For Roberts, it’s a small step to saying that it is enforced and administered in the same manner as a tax, and therefore it may be called a tax. Voila; he doesn’t have to declare that we have returned to the 19th Century. He has those votes when he wants them: when the “tax” is administered “unfairly.”
But the first time anyone will have to pay the penalty tax for not being insured will be some time in late 2014 or early 2015, when 2014 Federal Income Tax forms are filed.
As with Arizona last week, there is a difference between “the benefit of the doubt” and “giving them enough rope with which to hang themselves.”
John Roberts had a choice today: he could vote with business interests, entrepreneurs, and hospitals who want to be able to make a reasonable estimate of their costs over the next several years—or he could overturn PPACA and with it establish his Court as the one that completely destroyed the possibilities of business certainty (or even labor cost control) and a dependable macroeconomy (since the minority opinion, as Benen notes above, also strongly suggests the Federal government should not have the power of taxation).
As the man who literally Wrote the Book on Constitutional Law, Laurence Tribe (h/t Blue Texan) noted, John Roberts “saved an institution”—the Supreme Court itself—today. But anyone who believes he also preserved national health care instead of giving it enough rope to hang itself is fooling themselves.
I would say it is not only the long game though. When you are predictably on one side, it may be satisfying to say what you believe, feel, and want, but to really have an impact you have to be the swing vote, to be seen to be the swing vote, and to be able to negotiate with both sides to persuade them to your own and to obtain the maximum concessions from either side and steer the decision as you see best. Roberts took that step and may be well on the way to make it his court.
“the penalty being too low to, in itself, convince people to buy insurance”
I really wonder about this. People *hate* having to pay for something and get nothing. It triggers the “it’s not fair” gene. So the prospect of having to pay $100 for nothing could be a strong incentive to buy something for $500 or $1,000 (some of which you figure you’ll get back in reimbursements/medical payments), something you’d basically like to have but maybe wouldn’t have bought without the forced choice.
We have pretty good data from Kahneman et al on a lot of these human behavioral effects. I doesn’t seem like I ever see it incorporated in economic models or projections.
“the penalty being too low to, in itself, convince people to buy insurance”
I really wonder about this. People *hate* having to pay for something and get nothing. It triggers the “it’s not fair” gene. So the prospect of having to pay $100 for nothing could be a strong incentive to buy something for $500 or $1,000 (some of which you figure you’ll get back in reimbursements/medical payments), something you’d basically like to have but maybe wouldn’t have bought without the forced choice.
We have pretty good data from Kahneman et al on a lot of these human behavioral effects. I doesn’t seem like I ever see it incorporated in economic models or projections.
“the penalty being too low to, in itself, convince people to buy insurance”
I really wonder about this. People *hate* having to pay for something and get nothing. It triggers the “it’s not fair” gene. So the prospect of having to pay $100 for nothing could be a strong incentive to buy something for $500 or $1,000 (some of which you figure you’ll get back in reimbursements/medical payments), something you’d basically like to have but maybe wouldn’t have bought without the forced choice.
We have pretty good data from Kahneman et al on a lot of these human behavioral effects. I doesn’t seem like I ever see it incorporated in economic models or projections.
It didn’t especially take contortion to call the penalty a tax.
Actually… it did. A tax is a tax –the government takes a slice out of your pay, or adds a % to a transaction, which it then spends on something presumably useful, such as Medicare-for-all truly “universal” coverage. A mandate requiring you to spend your own money to buy a private insurance policy from Uncle Rocko’s “exchange” (without any competition across state lines of course), is quite another thing, regardless of how many right-wing justices defected to appease the corporate overlords.
I suspect Roberts swung the vote because the real powers-behind-the-throne were terrified that the threat of single payer was credible. And terrified of what single payer would do to their profit margins. I guess it was Roberts’ turn to “take one for the team”.
Justice Roberts was chosen to be the “Fall Guy”. The reality is that the Republicans were pissed that Obama was able to pass their Heritage Foundation plan. Nobody likes getting beaten with their own stick. Expect the few decent protections in the plan to be whittled away in bipartisan “compromise” in the coming years.
Ken:
Roberts is not stupid and he is able to see beyond the present rulling(s) by SCOTUS. I do not see him him in a later role in determining the ACA or Medicais/Medicare’s fate; but, there is something else afoot which my cohort Bev may be missing. Perhaps something larger which will set up a greater venue for setting enterprise lose from legal restraints.
It didn’t especially take contortion to call the penalty a tax.
I agree with HARM. First in government’s right to tax is inviolate, now everything is a tax. It’s ok for the government to make you eat broccoli or pay a fine, because it’s a tax. Ridiculous? Maybe. But realize that most American citizens DO NOT WANT OBAMACARE now, and it is being shoved down their throat too.
The libs know that Obamacare is a Rube Goldberg contraption certain to fail. You can tell by the way it was designed: Obama just told Congress to come up with something, anything, under a few broad parameters, and I’ll sign it. This is a system designed to produce failure, and the antidote to this failure will be more government involvement.
So the ACA is just a pit stop on the road to single payor. But before you celebrate getting health care that someone else pays for, remember that once the government pays, they are justified in controlling every aspect of your life as it impacts their cost. It’s already started with all the diet advice “Let’s Move” (TM).
So, yeah, as Biden says, this is a Big F*ucking Deal. I’m not buying the “its really a victory in disguise” crap. It’s a defeat for liberty.
It would seem for all that opt out of buying health insurance, would by default be under a new IRS scrutiny. Many having flown under the radar of tax collection for years. The spector of a tax audit may be a greater incentive to get coverage