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."
At the heart of the apocalyptic health-care rhetoric is the individual mandate—that not long ago was a conservative idea.
This is it, showdown at the Supreme Court corral—or Three Days That Could End America, as one conservative website put it.
At the heart of the apocalyptic rhetoric is the individual mandate—that not long ago was considered a conservative idea.
John Avlon on the right’s health-care flip-flop.
“Nobody was saying that it was creeping socialism or unconstitutional at the time. A lot of conservatives were for it,” former GOP senator Bob Bennett told me yesterday, looking back to the 1993 fight against “Hillarycare.”
The roadmap for what was then the signature Republican approach to health-care reform was provided by the once quintessentially Reaganaut think tank, the Heritage Foundation, which now denounces “the cancer of Obamacare.” The offending document was written in 1989, at the dawn of the first Bush presidency, and its rationale for the individual mandate was as follows:
“There is an implicit contract between households in society, based on the notion that health insurance is not like other forms of insurance protection. If a young man wrecks his Porsche and does not have the foresight to obtain insurance, we may commiserate but society feels no obligation to repair his car. Healthcare is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services – even if that means more prudent citizens end up paying the tab … A mandate on individuals recognizes this implicit contract.”
This is, of course, almost precisely the argument made by both the Obama administration and Governor Romney when he was preparing his signature legislative accomplishment in Massachusetts. Namely, that we have a hole in the social contract, where a lack of individual responsibility causes great financial costs for society as a whole in the realm of health care, which everyone will need at some point in their lives. The solution, reiterated several times by Heritage in policy papers leading up to the fight over Hillarycare, was to put an end to fiscally irresponsible freeloaders by advancing the principle of individual responsibility. By comparison, the Clinton health plan’s imposition of a requirement for employers to provide health insurance purchased through HMOs seemed positively socialistic.
In another time, President Obama’s adoption of a Republican policy to pass health-care reform could have been characterized as classic Clintonian triangulation, an extension of the dynamic that enabled a Southern Democrat like Lyndon Johnson to pass civil-rights legislation or Nixon to go to China.
Conservatives love to say Obama has robbed us of our liberty. But can they name a single freedom that the administration has curtailed? Michael Tomasky poses a challenge.
Behind the challenges to the Affordable Care Act (ACA) being heard at the Supreme Court this week is the idea that Barack Obama wants to take away your freedoms (as Mitt Romney himself asserted today). I’ve long since stopped counting the number of ridiculous things said about Obama, but this might be the ridiculousest of them all. At least the Kenyan rumors have some basis in reality, however threadbare it is, since his father was indeed Kenyan and he does have a funny name, for an American president. But this "freedom" business is simply paranoid and delusional. I defy anyone to name for me a specific and precise freedom that Obama has taken away from the American people. You can’t. When they’re not just invented out of whole cloth by multi-millionaire propagandists, all such laments are based on ignorance about what freedom actually means and an equal ignorance about how our system of government works.
Protesters demonstrating against the Affordable Care Act outside the Supreme Court on Monday, as the court begins hearing arguments against the law's constitutionality (Jacquelyn Martin / AP Photo)
Back in March 2010, Megyn Kelly was on Fox talking up a CNN poll showing that 54 percent of people thought the government could pose a threat to their rights. This clinched it, she said. But Alan Colmes came on and actually asked her: Okay, Megyn, what freedoms, exactly, have disappeared under President Obama? She didn’t answer, and of course she didn’t answer because there is no answer. People are “worried,” she said, that “the federal government is going to step in, take over, and they’re not going to be able to see their [health-care] coverage.” It just got lamer from there.
I wouldn’t doubt that there are assorted people here and there who may have been, say, adversely affected by a wetlands determination or some other bureaucratic decision. And of course there are American citizens who have been detained—and worse—in the war on terror. They tend to be of Arab descent, and something tells me these Americans aren’t the ones Kelly or those protesting the Affordable Care Act outside the Supreme Court building have in mind. Outside of those examples, though, the idea that anyone is losing freedoms in this country is foolishness.
Obama has done no harm to civil liberties or the Bill of Rights (except in the category mentioned above). He’s made no move of any sort to curtail the Second Amendment. Wayne LaPierre and his people at the NRA are always warning that it’s only a matter of time; a second Obama term will “break the back of the Second Amendment,” La Pierre said not long ago. That’s how he keeps the checks coming in. Of course there is no evidence for this claim. Just the murky (not to say insane) idea that a black liberal loves criminals and wants law-abiding white people not to be able to defend themselves.
As I read through a few web pages and blogs detailing alleged Obama-driven assaults on freedom, it becomes clear that many of these people don’t really have the faintest idea of what freedom in a Democratic society even means. Here, for example, is a Republican congressional hopeful in Missouri, who thinks Obama, along with his own opponent Russ Carnahan, want to take away “the ultimate freedom, to find your salvation, to get your salvation, and to find Christ for me and you, and I think that’s one of the things we have to be very, very aware of that the Obama administration and Congressman Carnahan are doing to us.”
This is just gobbledygook. What this man doesn’t like is Obama’s posture toward the state and religion. But there is no freedom issue here. Neither is there a freedom issue with regard to the Catholic Church and the recent controversy over contraception. First of all, no church has to change a single thing about the way it operates. And Catholic hospitals will not, under the new rule, have to provide contraceptive coverage—they will just be required, if they refuse to provide such coverage, to tell enrollees how they can acquire it through other means. In fact, now that I think about it, the only people who can make any claims that their freedoms are being impinged by the Obama administration are the non-Catholic women hired by Catholic hospitals who might now have trouble getting free contraceptive coverage. Them, plus the women inquiring about abortion in the states where they will now be made to listen to fetal heartbeats and so on, laws that very clearly are attempts to coerce women into not availing themselves of an existing legal right. But that isn’t being done by Obama.
The silliness of the freedom argument against Obama really comes down to this: The ACA was a law, made within our political processes, according to the rules and norms of same. Obama isn’t the king. He didn’t decree this law. Congress negotiated it and passed it. If people don’t want such laws, they need to elect Congresspeople that won’t make them. This, incidentally, is the answer to an oft-bruited rhetorical question, “What’s to prevent the government from making a law requiring that everyone eat broccoli?” One answer is: nothing, at least in theory. If a future Congress wants to make such a law, it can do so and see what happens in the courts. Which means that the real answer is—politics. If you don’t want a law mandating the eating of broccoli, work to elect people to Congress who won’t pass such laws. The folks on the pro-broccoli side will work to do the opposite, and the side that does a better job will win. That’s the democratic process. Majority rule. “Freedom” has nothing to do with it.
As the Supreme Court considers Obama’s healthcare plan, MIT economist Jonathan Gruber defends the individual mandate as the most sensible, cost-effective, and just approach to fixing health care in this country. Join him for a live chat Wednesday, March 28th at 1 p.m.
Last week marked the second anniversary of the most important piece of social policy legislation of the past 50 years: the Affordable Care Act (ACA). Yet even as the second anniversary passes, the fight over this legislation continues, whether in Congress, in public opinion, or in the Supreme Court, which will decide this week on the constitutionality of one of the centerpieces of the ACA: the individual requirement to purchase insurance or “mandate.” Much of this debate has been driven by both the complicated nature of the ACA and the deliberate misinformation from opponents of the legislation. To make this issue clearer to the general public, I have written a graphic novel that describes what is wrong with our U.S. health-care system and how the ACA will address those problems. I hope that this format “illustrates” these important issues in a way that makes them compelling to those interested in understanding the ACA—in particular in terms of critical issues like the individual mandate.
Most Americans get their health insurance from their employer or the government, through its Medicare and Medicaid plans. For those Americans, insurance works reasonably well: premiums are rising faster than we would like, but otherwise individuals are generally well insured against any medical catastrophe that might befall them. Not so for those individuals who have to rely on insurance purchased on their own in the “non-group” market. These individuals face a market where coverage is expensive and unreliable–which can lead to medical bankruptcy if individuals get an expensive illness. While it is fortunate that most Americans don’t have to face this market, it also results in a lack of appreciation for the important law that will fix these problems: the Affordable Care Act (ACA).
In my book I introduce the fictional character, Carlos, who has non-group insurance—and has a heart attack. Carlos is in real trouble. He will typically pay a very large share of his medical bill—or the whole thing if this heart attack reflects a pre-existing condition. His insurer may pay these bills, but it is likely to simply drop Carlos before he gets sick again. It turns out that individuals like Carlos don’t have insurance in any meaningful sense.
And it is not just individuals like Carlos who face this ugly market: anyone who might lose their job, or have an employer that stops offering insurance, can find themselves facing this nightmare. I show this happening to Anthony, who has good employer-provided insurance but loses that coverage and has to face the awful non-group insurance market as a result. This is a real threat to many with employer-provided insurance: the share of employees covered by employer-sponsored insurance has declined by more than 10% over the past decade.
How can we fix this problem? A number of well-meaning states tried to do so in the mid-1990s. They passed regulations that outlawed discriminatory practices by insurers, like pre-existing conditions exclusions and charging sicker individuals higher prices. The result was a disaster. Insurers were afraid that if they had to charge everyone the same price, but that individuals could wait until they were sick to buy insurance, that this would become a money-losing business. So some insurers exited the markets, while the ones that stayed charged very high prices to offset this “adverse selection.” Non-group insurance markets in these states were not saved, but rather largely destroyed. For example, in my home state of Massachusetts, by 2006 a non-group policy for a single individual cost $8,000 per year, twice the cost of an employer policy for an individual.
Into this chasm stepped the hero of our story, Governor Mitt Romney, and his plan for health-care reform in Massachusetts. He realized that the solution to this problem was to ensure broad participation insurance markets by both the healthy and the sick. So he imposed an individual mandate, a requirement on Massachusetts residents to purchase insurance coverage. But he also realized that it would be both inhumane and impolitic to mandate that individuals purchase insurance they could not afford. For this reason he also provided for subsidies for individuals living below three times the federal poverty line to make insurance affordable. This “three-legged stool”—banning discrimination in insurance markets, mandating that individuals purchase insurance, and providing low-income subsidies for insurance purchase—became the basis for both our reform in Massachusetts and for the Affordable Care Act (ACA).
To have all your questions answered about health-care reform in this country, the fate of Obama’s health plan, and the individual mandate, join us at 1 p.m. EDT on Wednesday, March 28, for a live chat with MIT economist Jonathan Gruber.
What do the Supreme Court hearings of President Obama’s health-care act mean? Questions about the individual mandate? What is the true cost of health-care reform in this country? Join MIT economist Jonathan Gruber at 1 p.m. EDT on Wednesday, March 28, for a live chat.
This is the first in our continuing series about the big issues of the day with authors from Farrar, Straus and Giroux. To learn more about the series and the writers, please click here.
Dr. Jonathan Gruber is a professor of economics at the Massachusetts Institute of Technology and director of the health-care program at the National Bureau of Economic Research. He was a key architect of Massachusetts's ambitious health-reform effort and consulted extensively with the Obama administration and Congress during the development of the Affordable Care Act. He is the author of “Health Care Reform: What It Is, Why It's Necessary, How It Works,” illustrated by Nathan Schreiber.
Of the dozens of briefs for and against the health-care law, two—by opposing groups of economists—are getting special attention. Einer Elhauge takes a closer look at the arguments.
Starting Monday, the Supreme Court will hear a grueling six hours of oral argument on the defining case of this term, and one of the most prominent in decades: whether the Affordable Care Act’s requirement that everyone buy health insurance—known as the health-care mandate—is constitutional. The case has provoked an unprecedented 136 briefs for and against its constitutionality. Of all these, the two that everyone seems to be talking about are the opposing briefs by two groups of economists. When big-name economists collide, how can we sort out which are right?
On March 26, the Supreme Court will begin hearing oral arguments about the health-care mandate. (Haraz N. Ghanbari / AP Photos)
The premise of the overall constitutional challenge is that the federal government cannot regulate “commercial inactivity.” In other words, Congress may be able to regulate our commercial conduct, but it can’t force us to engage in commerce, such as by making us buy ordinary products like broccoli or GM cars or, for that matter, health insurance. In fact, this premise is flawed. No constitutional text, history, or precedent has ever indicated that Congress could not regulate commercial inactivity. To the contrary, there are plenty of examples, going back to the very first Congress, where Congress has required us to engage in commercial activity—including making us buy health insurance.
But rather than debating this premise, the economists’ briefs focus on the alternative defense that being uninsured actually involves commercial activity, not inactivity. The economists who support the mandate argue that none of us can control whether we will get sick and need health care next year. Thus, uninsured people generally cannot avoid being “commercially active” in health-care markets. They are, rather, a set of individuals who hope to be commercially inactive but predictably will actually be active. Indeed, 57 percent of the uninsured used medical services in 2007, and all but a few do so within five years.
Therefore, these economists argue, deciding to be uninsured is not “inactivity,” but rather a commercial decision to self-insure the expected costs of unavoidable commercial activity. In other words—you’re going to have to see the doctor eventually, so who pays? Because the uninsured often cannot afford the treatments they need, health-care providers will incur the resulting costs, either out of decency or legal duty, and then pass those costs on to taxpayers and the insured. Indeed, nearly two thirds of the costs of treating the uninsured are paid by others, with the total incurred by providers estimated by Congress to be $43 billion in 2008.
In contrast, if we decide we don’t want to buy broccoli or a GM car next year, we are in full control of that decision. So, we can be inactive in ordinary markets in a way we cannot be for health care, where illness thrusts activity upon us.
So what about the economists who oppose the mandate?
They argue that the amount of cost-shifting caused by the uninsured is smaller than Congress’s $43 billion figure. Many of their objections are economically powerful, but legally their effort falls flat because even they concede that the shifted costs are at least $12.8 billion, and the court has upheld federal laws based on far more trivial effects on interstate commerce. Moreover, in the end, the numbers don’t matter: No one disputes that Congress may regulate commercial activity regardless of whether it imposes costs on others. So even if uninsured people cost us nothing, they are still “active” in the health-care markets, and the opposing brief does not really deny this (even though it quibbles about the precise extent to which that activity is unavoidable).
After months of waiting, Obamacare has been upheld by the Supreme Court. The Daily Beast reviews the legal circus.
An insider’s guide to the Supreme Court’s dramatic ruling upholding the Affordable Care Act. By Jesse Wegman.
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.
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.
Birth control without copays starts in August.
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.
Fox News’s reaction to SCOTUS’s ruling took a notably somber tone. Watch its anchors’ descent into gloom.
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.
Scalia and Ginsburg go to the opera together and more Supreme Court trivia.