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Gearing Up

Players Gird for Obamacare Ruling

A Supreme Court ruling on the Affordable Care Act that goes against the government could hurt Obama—or provide a political opening. Any endorsement of the law could galvanize the GOP. Eleanor Clift on how the left and right are mobilizing for warfare.

Hope for the best and prepare for the worst. That sums up the mood as the political campaigns brace for what could be a game changer when the Supreme Court announces its ruling on the constitutionality of Obamacare.

G-20-Gipfel

Peer Grimm / AP Photo

The ruling on the president’s signature achievement, his health-care law, is expected any day now, and according to the latest Pew Research Center poll, much of the public is unlikely to be satisfied, whatever the court decides.

Most Democrats want to see the law upheld, while most Republicans want it overturned. Another widely anticipated possibility would be the justices striking down the mandate requiring individuals to have health insurance while keeping the rest of the law in place. That outcome gets mixed reviews from advocates and opponents alike, with more than half of Democrats (56 percent) unhappy with that possibility, while Republicans are split, with 43 percent liking such a decision, and 47 percent dissatisfied.

The reaction among independents, who will likely decide the presidential election, is even murkier. Half say they would be happy if the entire law were overturned, while only 35 percent would like to see the entire law upheld. As for the mandate, 44 percent would like to see it tossed out; 49 percent would be unhappy to see it go.

Judging from these numbers, whether the political advantage goes to Obama or Mitt Romney may have less to do with the actual court decision than on whichever campaign musters the savviest response. And liberals are war-gaming the situation.

Mitt Romney vows to stop Obama's health care plan "in its tracks."

“All eyes will be on the White House minutes after the opinion is announced, says Nan Aron, founder and president of the progressive Alliance for Justice, so Obama “will have to say something. If the court strikes down the legislation, will the president run against the court in the same way Romney will if it is upheld?”

Too Perfect

Obamacare Tries Too Hard

Dr. Victoria Sweet, author of the upcoming ‘God’s Hotel,’ reads the 974-page-long law, and comes away thinking it has little to do with insuring Americans.

Although the Affordable Care for Americans Act has been law for over a year, it is still controversial: almost every poll shows that 43 percent of Americans approve of it, 43 percent disapprove, and 10 percent don’t know what to think. Having just finished reading it, that’s exactly how I feel.

I’m a doctor, and for 21 years I’ve practiced medicine at a very unusual hospital. With almost 1,200 patients, Laguna Honda Hospital was originally the San Francisco Almshouse, and in a way it still is. The almshouse was how we used to take care of those who didn’t have health insurance. Every county had a free county hospital for the acutely ill, and a free county almshouse for everyone else who needed care.

Beginning in the 1950s, however, first the county almshouses and then the county hospitals were closed, for reasons of economy (as demanded from the right) and social justice (as demanded from the left), until San Francisco was just about the only county with the old system intact. Over the years I was impressed by just how good it was. True, it exemplified a two-tiered approach, but we always had some place to send people, and people always had some place to go. Which was why I wanted to understand how the ACA’s new way of taking care of the uninsured is going to work.

There is a lot to like about the act, especially its general ideas: that people should not lose their insurance when they get sick; that insurance companies should spend 85 percent of their revenue on patient care; that counties should take care of their sick poor. But as I read, I began to get cold feet.

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‘God’s Hotel’ by Victoria Sweet. 384 pp. Riverhead. $28.

The health-care law is not one law but hundreds of laws, mandating thousands of new regulations, hundreds of new reporting tools, and countless new departments, divisions, and committees. There are laws about the minority workforce and oral-prevention activities, about elder justice and buying trailers for clinics. Each of the new laws requires hundreds of supplemental pages to detail. (The final Rule for Section 3022, implementing the “Accountable Care Organization,” is 696 pages long.) And some of the best ideas are undercut in the details, so that insurance companies don’t really have to spend 85 percent of their revenue on patients. The more I read, the more the ACA struck me as a portmanteau of social-justice initiatives and compromises with the insurance and drug companies, having little to do with insuring all Americans.

What will happen to our health-care system when all those new regulations and mandates come online? Because whatever else you can say about our health-care system, as a way of taking care of you when you get sick, it does an amazing job. When was the last time you saw anyone wandering the streets with an unfixed broken leg or clutching their abdomen because of appendicitis?

As I neared the end of its 902 pages, the ACA started to remind me of a patient of mine. Mrs. Ross was very tiny, very old, and quite demented, though she’d retained her manners, inquiring after my health and thanking me at the beginning, middle and end of all our talks. She was also a very good walker and went through a pair of running shoes every month. Eventually, though, she fell and broke her hip, and we had to send her to the acute hospital, where her hip was repaired and she came back to us. Except now she was comatose. Some overenthusiastic intern had decided to treat her mild hypertension, prediabetes, possible osteoporosis, likely gastroesophageal reflux disease, and high cholesterol—all at once.

HARD MEDICINE

Do Felons Get the Best Health Care?

Thanks to Justice Anthony Kennedy, California prisoners have easier access to health care than ordinary citizens. Michael Daly explains why.

Whichever way Supreme Court Justice Anthony Kennedy votes on the constitutionality of Obamacare, the people of his native state California need only get convicted of a serious crime, particularly if it involves violence, as a sure way to get adequate health care.  

California Prison Healthcare in Corcoran

Correctional officers stand watch over an inmate receiving treatment in the emergency room at California State Prison in Corcoran, Calif. (Rich Pedroncelli / AP Photo )

Those convicted of “non-non-non crimes”–non-serious, non-violent, non-sex related–are liable to get early release as a result of the Supreme Court’s 2010 ruling that the state must reduce prison overcrowding in order to provide adequate medical, mental and dental health care.

Petty thieves and the like can get freed and have no more claim to health care than an honest citizen.  

Killers, rapists, and armed robbers, on the other hand, are free of health-care worries until they make parole, if they ever do.  

The court ruled 5-4 that the absence of adequate care for prisoners violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The majority decision was written by Kennedy.

“Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care,” Kennedy said. “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” 

In an added twist, J. Clark Kelso, the overseer of California’s effort to comply with the order was a law clerk to Kennedy in the early 1980’s. He says that he gets the same question wherever he goes: “How come we’re giving felons better health care than I get?”

Got Health Care?

Obamacare’s Marketing Challenge

As the Supreme Court weighs whether to strike down the president’s health-care reform, Democrats are presented with an almost impossible problem: how to make the law palatable. Messaging experts offer ideas for Judith Grey.

However the Supreme Court rules on Obama’s Affordable Care Act in June, one thing is for certain—right now, every Democratic consultant in the country is scrambling to figure out a way to make the plan more popular.

Barack Obama

Jewel Samad, AFP / Getty Images

It’s a quintessential marketing dilemma—how do you sell something that people fundamentally aren’t crazy about?

According to a recent New York Times/CBS News poll, just 36 percent of Americans approve of the legislation. And while some of parts of the law—allowing young adults to remain on their parents’ insurance plans until the age of 26 and requiring insurance companies to cover people with pre-existing conditions—are deemed highly favorable by the public, the overall plan has a 47 percent disapproval rating.

In the early 1990s, when milk processors and dairy farmers realized that vitamin D wasn’t a compelling enough reason for people to buy milk, their advertising agency, Goodby Silverstein, advised them to focus, instead, on the cookie and then pose the question “Got milk?” It worked. Milk sales increased dramatically.

Can a similar tactic be used to sell health care? Indeed, can anything at all be done to make the plan more attractive to consumers?

According to Lawrence O’Donnell, the answer is no.

“You’ll find that it is impossible,” he said of the marketing of health-care reform. “And that is the most important thing to know about this law, this idea, and this area of thought in American politics.”

SUPREME OPPOSITION

Obama’s Righteous Court Fight

He’s supposed to have an opinion about the Constitution and the Supreme Court. Why this president needs to speak out more—just like FDR and Reagan did.

Alexander Hamilton, in The Federalist Papers, described the judiciary as “the least dangerous” branch of government. It is also, apparently, the “most delicate.”  

Obama and the Supreme Court Justices

It is not only acceptable, but essential, for presidents to tell us what they think about the role of judges and the meaning of the Constitution, writes Jeff Shesol (Pete Souza / The White House)

If you thought the justices of the Supreme Court, in their marble fortress, were pretty well-protected from what politicians, even presidents, say about them, you were wrong. We know this because President Obama’s comments this week about judicial restraint (he is for it) got a lot of commentators, across the political spectrum, upset on the court’s behalf.  

Obama’s words, few and mild though they were, are being described as an “assault,” an “unprecedented” attack. Harvard Law School’s Laurence Tribe, a supporter of the president, worries that Obama is fueling “public cynicism.” Rush Limbaugh (not a supporter) called Obama a “thug” for “threatening” the court. Other conservatives have accused Obama of launching a “judicial witch hunt,” as if he had stepped up to the podium with pitchfork in hand, whispering strange tales of animals that grew deformed after contact with Justice Samuel Alito. We have heard this line of attack before: in 2010, when Obama, in his State of the Union address, had the audacity to mention the Citizens United ruling in the presence of the people who decided the case. Then, he was criticized for speaking up after the opinion had been issued, when the gentlemanly thing to do was just to accept the result. Now, he is being rebuked for addressing the issue in advance.   

The right’s indignation, plainly, has less to do with solicitude for the justices than with hostility toward the president and his purposes. It reflects a determination to shut or shout down the president any time he dares speak of the court. Conservatives have long dominated the national discussion about the courts and Constitution and do not intend to yield the floor. It is therefore encouraging that Obama has refused to back down. At a press luncheon Tuesday, he again expressed his confidence that the justices will “abide by well-established” precedents.

Let’s hope Obama has more to say on the subject—whatever the court decides on the Affordable Care Act. It is not only acceptable, but essential, for presidents to tell us what they think about the role of judges and the meaning of the Constitution. Presidents don’t get the last word, but they must get their say. And historically, they have.

Despite conservatives’ claims that they “can’t recall anything like this,” Obama is not breaking new ground. Franklin Roosevelt’s battle with the court over the fate of the New Deal is only the most well-known example: in 1935 after a unanimous Supreme Court struck down the National Industrial Recovery Act—the centerpiece of the New Deal’s economic policy—FDR dissected the court’s opinion for nearly an hour and a half in an Oval Office press conference. “The big issue is this,” he told reporters.  “Does this decision mean that the United States government has no control over any national economic problem?” Yes, he continued, that was just what it meant, adding that the court had created “a perfectly ridiculous and impossible situation”—one he tried to remedy, two years later, with his plan to pack the court.  

The president has other problems on top of the SCOTUS. Van Jones on how he has to re-energize his base for the 2012 election.

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Supreme Court TV?

The Supreme Court is being urged again to televise its proceedings. But after Donald Verrilli’s flameout this week, you won’t be seeing SC-TV anytime soon, writes Nick Summers.

You might think there’s only one way things could have gone worse for Solicitor General Donald Verrilli, the man who stammered and struggled and otherwise blew his oral defense of the Affordable Care Act before the Supreme Court this week.

Supreme Court Health Care

This artist rendering shows Solicitor General Donald B. Verrilli, Jr. speaking in front of the Supreme Court Justice in Washington, Monday, March 26, 2012, as the court began three days of arguments on the health care law signed by President Barack Obama. Justices seated, from left are, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy Ruth Bader Ginsburg, Samuel Alito and Elena Kagan. (Dana Verkouteren / AP Photo)

It could have been on camera.

“Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom,” a reporter for Mother Jones wrote shortly after, “because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.”

For decades, the Supreme Court has refused to televise its proceedings, arguing that video cameras would be distracting, encourage grandstanding by justices, and allow snippets of argument to be taken out of context by a voracious news media. Microphones are regarded with only slightly less suspicion. Live radio broadcasts are forbidden, and audio recordings are released at the end of each week. (Until 2010, they were released only at the end of each term.) When Chief Justice John Roberts authorizes their same-day release—as he did this week, for the historic Obamacare case—it is considered a major concession.

As the Justices see it, what happened to Verrilli this week is a preview of what might occur if they relax their rules. A BuzzFeed compilation of his every cough and stumble has been viewed more than 80,000 times, and the Republican National Committee turned the excruciating audio into an attack ad. (It turned out to be partially doctored.)

To the Justices, this “will illustrate how misused any kind of media of the court’s proceedings can be, and will probably reinforce the idea that video would be even worse,” says Washington attorney Kevin Russell, who has appeared before the high court seven times.

But Russell says that in the case of the stammering Solicitor General, video might actually have helped. Russell was in the courtroom for Verrilli’s performance, and says that his first stumble—which in the audio recording sounds like an awkward sip of water before he has barely gotten any words out—looked unremarkable in person. “I was there—if you’d had the video, it would have been much more understandable,” Russell says. “It was just a frog in his throat. If you’d have been able to see that, it would have been much harder to lampoon him in the way that so many people did. In fact, you would have had a more accurate record of what happened in the courtroom.”

From Justice Kennedy’s stance on the mandate to Solicitor General Verrilli’s questionable performance, experts weigh in on how the Supremes may rule on the health-care law.

Over the three days of argument devoted to the health-care law, the Supreme Court held the attention of Americans as it has not for more than a decade, sparking protests, debate, and prophetic huffings and puffings from pundits of all political stripes.

One of those prophesies appeared on this site two years ago, when Adam Winkler, a law professor at UCLA, predicted that the court was likely to give a hostile reception to the Affordable Care Act. Unlike many others, that prediction was borne out this week, as the court expressed much more skepticism over the health-care law than many observers expected. And yet oral arguments can be deceptively important; justices have said that they matter only 10–15 percent of the time.

However the court rules on the constitutionality of the Affordable Care Act, it will have a dramatic effect on American life, affecting how people receive their health care as well as the extent of the federal government’s power.

The decision, likely to come down in June, will also fall right in the middle of a contentious presidential election, and both parties have braced themselves for ramifications that are still unclear.

The Daily Beast queried seven law and public-policy experts on where they think the justices are likely to land.

Abbe Gluck
Professor, Columbia University Law School
New York, N.Y.

aca-expert-abbe-gluck

Anti-Injunction Act: “Reading the tea leaves of the court is always a dangerous endeavor. However, after following the arguments, my prediction is, first, that the court won’t let the jurisdictional issue—the Anti-Injunction Act question—stop it from deciding the merits. It was clear that a majority of justices wanted the case to go forward and that they were going to find a way to let that happen.”

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Best Reads on Obamacare

A lot of people are spilling a lot of words on the three days of arguments at the Supreme Court over the health-care law. The Daily Beast pulls together some of the best commentary.

After three days of oral arguments before the Supreme Court on the constitutionality of the Affordable Care Act, there will now be months of suspense and agonizing over whether this signature provision of the Obama administration will survive. In the meantime, The Daily Beast gathers some of the best commentary on the arguments and the look ahead from across the political spectrum.

Adam Serwer, Mother Jones
March 29, 2012

E.J. Dionne, The Washington Post
March 29, 2012

Peter Wehner, Commentary Magazine
March 28, 2012

CHEAT SHEET

10 Obamacare Questions Answered

Is the Supreme Court going to end Obamacare? Why is health-care reform so unpopular? And how does Obamacare affect most Americans? MIT economist Jonathan Gruber, an architect of both Mitt Romney’s and Obama’s bills, breaks down what’s at stake as the justices debate one of the most important cases before the court in decades.

In its final day of hearings on Obamacare on Wednesday, the Supreme Court examined the consequences of ruling the health-care legislation unconstitutional. MIT economist Jonathan Gruber, an architect of both Mitt Romney and Obama's bills, and the author of Health Care Reform: What It Is, Why It’s Necessary, How It Works, joined The Daily Beast for a live chat on Wednesday. How are the Supreme Court arguments going? How will the law affect ordinary Americans? Will it be struck down? Here are some of the best questions our readers posed.

US Health care

Veronica Rios, left, has her blood pressure taken by medical assistant Elizabeth Garza, center, as Rios’s husband, Miguel Tamayo, and their daughter Paula look on at right, at the Country Doctor Community Clinic in Seattle, Feb. 4, 2011 (Ted S. Warren / AP Photo)

1. What are your thoughts on how the arguments are going at Supreme Court?
Going into the hearings I was very confident. Now I am less so. Almost all experts have said this was a very clear legal call in favor of the mandate, but the conservative justices appear to be taking a very libertarian stand in their questioning. I still think it will pass muster, but 5–4 at best.

2. Was Romneycare ever challenged by the state’s courts?
There was never even serious consideration of a legal challenge—because, as most legal experts have said about the national case, there really are no substantive grounds to challenge the mandate.

3. What are the major differences between Romney’s and Obama’s plans?
They are the same bleeping bill! More seriously, the core of the ACA [Affordable Care Act] is exactly the same as what we did here in Massachusetts, which I like to call a “three-legged stool”: end discrimination in insurance markets, mandate insurance coverage, and subsidize that coverage for the poor. The federal law is then more ambitious because, unlike in Mass., it takes on cost control.

4. Can you explain what the government health plan will cost the individual if he/she makes $20K, 50K, 100K, 200K, or is a millionaire?
Roughly speaking, most folks won’t be affected. The winners will be those who are low income or in poor health. The losers will be those few individuals who are in excellent health and non-poor, who might see their prices in the non–group market go up; and the very wealthiest, who will pay a new Medicare tax. But, for most Americans, you won’t really see a difference.

5. What are out-of-work Americans, who can only (barely) afford rent, food, and a car payment (or they’re lucky), supposed to do when they are sick and need to see a doctor multiple times?
The bottom line is that the ACA approach is one where we redistribute toward those in need, but within a budget-conscious approach that makes individuals who can afford care pay for it. Basically, those who are below the average income in the U.S. either get free public insurance (if they are very poor) or get tax credits to offset the cost of private insurance, so that no one has to pay more than 9.5 percent of income for quality insurance. There is a mandate to buy, but that mandate has an affordability exemption so that no one is mandated if they have to pay more than 8 percent of income.

6. Why is health care so expensive in the U.S.? Does illegal immigration cause this?
Illegal immigration has very little to do with it—most illegal immigrants use little health care. It is so expensive because (a) we pay higher prices for medical goods and services than the rest of the world, and (b) we treat patients much too intensively, wasting spending that doesn’t improve health.

YIKES

Health-Care Costs Spike Again

Health-Care Costs Spike Again Justin Sullivan / Getty Images

$20,000 for a family of four per year.

Supreme Court justices, take a gander at this. The average health-care costs for a family of four will top $20,000 in 2012, according to an independent research group—a 7 percent increase from 2011. It’s the fifth year in a row that health-care costs have increased between 7 percent and 8 percent, part of an overall health-care cost increase that has seen these expenses double since 2002, when the average family of four only paid $9,235. Employers still shoulder the burden of health-care costs, but employees have been paying a larger portion of these costs every year, analysts said.

Read it at CNN

THEN WHAT?

Justices Question Health-Care Options

Justices Question Health-Care Options Chip Somodevilla / Getty Images

If individual mandate is struck down.

In its final day of hearings on Obamacare, the Supreme Court examined the consequences of ruling the health-care legislation unconstitutional. Justice Antonin Scalia considered the political realities, saying that Washington’s “legislative inertia” would make a moot point of the law if the justices took the “heart out of the statute.” Other Justices said that a broad ruling that struck down the whole law was a political task for which the court is not suited. Also, a salvage job would be hard work. “You really want us to go through these 2,700 pages?” Scalia asked a White House lawyer.

Read it at The New York Times

Unfair

Lay Off the Solicitor General!

The government’s chief advocate got hammered for his defense of Obamacare before the Supreme Court. Former Solicitor General Charles Fried on what his critics got wrong.

Among the hardest roles to play in Tuesday’s made-for-radio drama was that of solicitor general. In most Supreme Court cases, which are not followed by all the media or inspire rallies in the Supreme Court plaza, the solicitor general is treated with great deference by the justices not because of his title but because he is trusted to give on behalf of the government a sober, accurate, measured presentation that is scrupulously fair to the other side of the argument and insists on stating the strengths and weaknesses of his own case. 

That is what I am sure Solicitor General Donald Verrilli expected to do when he walked into the courtroom; he expected to do his job, which is to defend the constitutionality of an act of Congress (whatever he may thinks of it personally).

What he encountered instead was a barrage of hyperbolic, hostile rhetoric redolent of Tea Party–inspired slogans (we even had the broccoli canard) masquerading as questions, which are supposed to clarify the presentation and probe for weaknesses. I know some were disappointed by Verrilli’s performance. What did they expect? He did his job and he did it very well.

What Verrilli did not do is “rise” to the level of angry declamation coming at him from the other side of the bench. Nor would it have helped his case if he had. You know the old adage: Never argue with a cop—he’s got the gun and the power of arrest. It might have produced some more drama for the audio feed, but that would not have had an effect on the final outcome. He was not trying not to get voted off the island in this episode.

I thought Verrilli would prevail, but that is because he has the law and precedents on his side. After yesterdays argument (or was it a shootout?), I am no longer so confident.

Obama US South Korea Nuclear Summit

President Barack Obama speaks at Hankuk University in Seoul, South Korea, Monday, March, 26, 2012. (Pablo Martinez Monsivais / AP Photo)

Disaster

Did Liberals Screw Obamacare?

Liberals love to talk about health care as a right. But the individual mandate can’t be defended in those terms. Which is one big reason it might be headed for defeat.

In my previous column, I briefly discussed John Stuart Mill and the harm principle as a way for Democrats and liberals to justify the idea of the individual mandate. Then we watched Solicitor General Donald Verrilli turn himself into the Bill Buckner of American politics by never being able to answer the most basic and easily anticipated question from the conservative justices, otherwise known as the broccoli question. It’s also otherwise known as “the limiting principle”—that is, Scalia and his comrades wanted to know, over and over, what principle limits this kind of governmental intrusion to health insurance and prevents the government from expanding it into other areas in the future? So I return to Mill today, because the more I think about it, the harm principle is the limiting principle. That Verrilli didn’t use this—and that liberals haven’t been saying this since 2009—says something very dismaying about contemporary liberalism.

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A protester at a news conference at the Capitol building in October of last year (Mark Wilson / Getty Images)

On Tuesday I paraphrased the harm principle, but here it is in Mill’s words: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Get that. The only purpose. That is, our natural wills guide us toward being left alone, not being part of community. And that’s just fine—until our actions harm others. Then, governmental power is justified.

I can think of no situation that fits this better than the individual mandate, and what is called in the health-care biz the “free-rider” problem. This is the problem that arises from people who don’t have insurance getting into a situation in which they need (and consume) health care, can’t or don’t pay for it, and the rest of us (insured people) picking up the tab. Remember, since the 1980s, hospitals can’t turn people away. That means everyone has access to care, so everyone is in the system—yes, simply by virtue of living and breathing, as the Tea Partiers like to say in griping about alleged federal overreach.

But here’s the problem. Millions of people in this system don’t pay insurance premiums. They are bringing direct and obvious harm to the many more millions who do pay premiums. They make our premiums higher. When they get in a car wreck or have a stroke, they’re amassing medical bills that they can’t possibly pay. The rest of us pay for them.

And that is why the harm principle applies here. The government, under Mill’s definition, has the right and duty to step in to prevent harm to others—by making the free-riders pay. It’s exactly a Millian case of harm to others. And just as it explains why the mandate is valid in this case, it also explains why this kind of government action is limited to health care and can’t be extended to the purchase of broccoli or Chevy Volts or funeral plans or whatever else the conservative justices came up with Tuesday. If you don’t eat broccoli, you cause me no harm. Some would say, well, you increase your odds of colon cancer if you don’t eat broccoli, you might harm me if you don’t have insurance, but that’s speculative and very indirect and frankly pedantic. I can’t seriously claim injury based on your diet. Or whether you drive a Chevy or a Volvo. Or whether you are buried or cremated. These are not systems in which we’re all participants, either paying or nonpaying. Following Mill’s harm principle ensures that this kind of governmental activity is limited to cases in which person or Group A’s action directly harms person or Group B. That limits this to health care, answers the broccoli question, and shuts down that entire line of attack.

Now let’s return to Verrilli. He had weeks to get ready for Tuesday, the most important day of his professional life. I am told that he is a very smart man and prepared very thoroughly. So it’s not that he’s stupid that he didn’t think of this line of argument. And maybe he thought of it and rejected it for some reason that isn’t occurring to me, because I think it’s pretty airtight. It’s certainly better than anything he came up with at the crucial moment.

But then I thought: this isn’t just Verrilli. I’ve read a few hundred thousand words about health care since 2009, and I haven’t read many liberals making this kind of argument. I don’t want to say never, which might be inaccurate. But in general terms, liberals think of and write about health care as a right.

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Don’t Blame Donald Verrilli!

The solicitor general had a tough time defending the health-care law Tuesday, but the government didn’t do him any favors in the months before the Supreme showdown, writes Einer Elhauge.

As the Supreme Court hears a final day of arguments over the health-care law, there is widespread agreement that in Tuesday’s marquee matchup, U.S. Solicitor General Donald Verrilli—tasked with defending the law—had a rough go of it. But Verrilli is one of the most gifted advocates of his generation. So what happened?

Solicitor General Donald B. Verrilli Jr.

Verrilli was handcuffed in part by the adminstration's failure to frame the debate favorably in advance of the Supreme Court hearings. (Haraz N. Ghanbari / AP Photo)

To answer this it’s helpful to consult one of the oldest battle treatises still in print. In The Art of War, Sun Tzu defined a fundamental tenet of battle strategy: never fight on the terrain that favors your enemy. The health-care law’s challengers decided to frame this case as being about an unprecedented effort by the government to force the purchase of a product (in this case, health care). If that’s what they thought the best framing was, you can be sure it was not the best framing for the government. And yet the government inexplicably offered no alternative framing in the months leading up to this week’s showdown.

In fact, the challengers’ claim is completely false. In 1790, the very first Congress (which included 20 framers of the Constitution, in case Justices Thomas and Scalia are counting), enacted a law requiring shipowners to buy medical insurance for seamen. The law was signed by another notable framer: President George Washington. Congress followed this with a 1792 law requiring all able-bodied citizens to buy a firearm, and a 1798 law requiring seamen to buy hospital insurance for themselves. Today, there are a host of affirmative federal duties to buy things. For example, federal law requires corporations to hire independent auditors, and requires unions to buy insurance bonds in case their officers engage in fraud. The list goes on.

In all these cases (other than the firearms case), one could say the federal duty was imposed on persons who are already engaged in some commerce. But that is also true of everyone subject to the health-insurance mandate, because all of us buy or sell something. And yet in each case, Congress required people to enter into commerce in a different market than the one in which they voluntarily operate, which is precisely what the health-care law’s challengers claim makes this mandate “unprecedented.”

(Indeed, the challengers relied on a distinction between the markets for health care and health insurance that is far thinner than the one between the markets for, say, shipping and health insurance.)

It would have been much better had Verrilli raised these precedents—especially the ones involving the framers—when he was confronted with the claim that Congress has never required anyone to purchase anything before. But one can see why he might have chosen the more cautious route, since citing the precedents would have required him to squarely admit that “Yes, Virginia (and Florida), there is a government power to make us buy broccoli.”

Nevertheless, his failure to cite them left Justice Anthony Kennedy under the false premise that, as he put it, the mandate to buy insurance “changes the relationship of the federal government to the individual in the very fundamental way.” That’s just not true, and yet he relied on that premise to say that the government thus has “a heavy burden of justification” in defending the law.

SUPREME COURT

Kennedy Gets Tough on Obamacare

Kennedy Gets Tough on Obamacare Tom Williams, CQ Roll Call / Getty Images

Cites “heavy burden” for government.

The writing may be on the wall for Obamacare. After a second day of tense Supreme Court hearings, SCOTUS scholar and CNN legal expert Jeffrey Toobin called the proceedings a “train wreck” for the administration and predicted the law will be struck down. Justice Anthony Kennedy, a crucial swing vote, sparred with lawyers defending the reform’s individual mandate, saying the government has a “heavy burden of justification” to prove that it can require citizens to purchase a service. He also said it would change the government's role in a “very fundamental way."

Read it at Politico

The Decision

After months of waiting, Obamacare has been upheld by the Supreme Court. The Daily Beast reviews the legal circus.

Cheat Sheet

Health Care 101

Inside the Obamacare Ruling

Inside the Obamacare Ruling

An insider’s guide to the Supreme Court’s dramatic ruling upholding the Affordable Care Act. By Jesse Wegman.

Who Was Ready for the SCOTUS Decision? The Fox News Crew

Cable TV anchors might have made serious gaffes reporting the wrong healthcare decision, but not everyone was scratching their heads. Newsweek & The Daily Beast's Lloyd Grove reports from the Supreme Court that the Fox technical crew were ready—after setting up their equipment in the middle of lawn sprinklers.

Impact

Experts Sound Off

The Supreme Court Ruling on Obamacare: 16 Experts Weigh in

The Supreme Court Ruling on Obamacare: 16 Experts Weigh in

It’s the end of liberty! It’s the beginning of freedom! Either way you slice it, the court’s ruling on Thursday was momentous.

Hidden Benefits

Good News for Women?

Planned Parenthood: Ruling ‘Profound’

Planned Parenthood: Ruling ‘Profound’

Birth control without copays starts in August.

Word Cloud

Readers React

What a Relief!

What a Relief!

Minutes after the Supreme Court announced that Obamacare was upheld, we asked our Facebook readers to give their reactions in one word. Here are the results.

Video

Watch This!

Fox News Mourns Obamacare Ruling

Fox News Mourns Obamacare Ruling

Fox News’s reaction to SCOTUS’s ruling took a notably somber tone. Watch its anchors’ descent into gloom.

Cable's Crappy Health Care Coverage

You know that kid in your class who always talks but never actually does the reading? Well, today, that was CNN and Fox News. In a rush to beat their opponents to report the Supreme Court’s health care decision, both cable networks broadcast the wrong information—and then had to awkwardly retract their statements.

  1. NewsBeast Goes Live: Highlights from the Obamacare Webcast Play

    NewsBeast Goes Live: Highlights from the Obamacare Webcast

  2. Obama: 'Decision Was A Victory' Play

    Obama: 'Decision Was A Victory'

  3. Romney Praises His Own Individual Mandate Play

    Romney Praises His Own Individual Mandate

Trivia

Who Knew?

11 Wacky Supreme Court Facts

11 Wacky Supreme Court Facts

Scalia and Ginsburg go to the opera together and more Supreme Court trivia.