UPDATE: The decision is analyzed at Powerline today with quotes from the decision.
The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167.
Therefore, Roberts rewrote it. Nice !
Today, the Supreme Court upheld the Obamacare state exchange subsidies.
The Supreme Court has justified the contempt held for the American people by Jonathan Gruber. He was widely quoted as saying that the “stupidity of the American people “ was a feature of the Obamacare debate. This does not bother the left one whit.
Like my counterparts, I have relied heavily on Gruber’s expertise over the years and have come to know him very well. He’s served as an explainer of basic economic concepts, he’s delivered data at my request, and he’s even published articles here at the New Republic. My feelings about Gruber, in other words, are not that of a distant observer. They are, for better or worse, the views of somebody who holds him and his work in high esteem.
The New Republic is fine with him and his concepts.
It’s possible that Gruber offered informal advice along the way, particularly when it came to positions he held strongly—like his well-known and sometimes controversial preference for a strong individual mandate. Paul Starr, the Princeton sociologist and highly regarded policy expert, once called the mandate Gruber’s “baby.” He didn’t mean it charitably.
Starr is a leftist who has studied American health care since he wrote his important book, “The Social Transformation of American Medicine.” I used it in my research for my own book, “A Brief History of Disease, Science and Medicine.” I used it in writing the Economics of Medicine chapter.
Now the Supreme Court has upheld the state subsidies in spite of the clear language of the bill that became law. This decision will quickly be compared to the Court’s decision on the “penalty” case, in which the Court rewrote the law to make the “penalty” a tax.
Twenty six states sued over the law, arguing that the individual mandate, which requires people to buy health insurance or face a fine starting in 2014, was unconstitutional. Opponents cast the individual mandate as the government forcing Americans to enter a market and buy a product against their will, while the government countered that the law was actually only regulating a market that everyone is already in, since almost everyone will seek health care at some point in his or her life.
The Court decision was that the penalty was really a tax, which Congress can impose. It has again has rewritten the law, or rather Chief Justice Roberts rewrote the law. His intervention was not popular with colleagues.
“Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that “Exchange established by the State” means “Exchange established by the State or the Federal Government”? Little short of an express statutory definition could justify adopting this singular reading. Yet the only pertinent definition here provides that “State” means “each of the 50 States and the District of Columbia.” 42 U. S. C. §18024(d). Because the Secretary is neither one of the 50 States nor the District of Columbia, that definition positively contradicts the eccentric theory that an Exchange established by the Secretary has been established by the State.
I agree but the Supreme Court follows the election results, as Mr Dooley once reported.
And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
I dissent.
I agree, although the decision may solve a few problems for Republicans. First, it is apparent that the Roberts appointment resembles previous Republican Court appointments in which supposedly conservative appointees “grew” in office to adopt the policies of the left. The next Republican president needs better vetting of potential nominees.
Second, I do not believe Obamacare makes economic sense. I believe it will fail of its own weight and perhaps this decision will make that more obvious. The Obama Administration has recoiled from enforcing the Employer Mandate. What will it do now ? Hillary Clinton, the Democrat favorite for nomination, is the author of the previous iteration of this leftist takeover of health care. This decision may focus attention on her record.
There is a nice analysis at Wall Street Journal today on subsidies.
Steve Rattner, a Wall Street figure and President Obama’s former auto-bailout czar, insists in a recent New York Times op-ed that ObamaCare “is working,” by which he apparently means it’s in operation, which nobody denies. Mr. Rattner, like a lot of analysts, writes as if costs are benefits—as if millions of people lining up for something from the wallets of their fellow citizens, ipso facto, is proof of a worthwhile program.
Well, of course !
The column was written before today’s Supreme Court decision but has a few interesting points to make.
King is a threat to ObamaCare because, without subsidies, ObamaCare is nothing. It fixes no problem in our health-care system, except to subsidize more people to consume health care at taxpayer expense. Not that subsidies are always undesirable: They help some people get necessary care. But subsidies do the most good when used sparingly, because subsidies also tend to inflate prices for everyone as well as encourage inefficient consumption that doesn’t improve health and may even endanger health.
Subsidies must be countered with rationing. Rationing by price has existed for millennia but is considered immoral by the left.
Never going to happen? It will, if the GOP summons the courage to fix ObamaCare along the lines of the original, rational, “reform” that has motivated health-care thinking for four decades. A place to start would be reducing ObamaCare’s costly coverage mandates so policies would be genuinely attractive to people spending their own money; subsidies could then be trimmed back because fewer people would need subsidies to induce them to buy coverage.
That must await a new president who might sign real reform.
So, the Supreme Court enters a world where words mean whatever is convenient – differing in time, place, audience. Great. Today it means. . . , never mind yesterday. Perry emphasizes accessibility – so does Cruz. A lot of good government money will be when there are no doctors, no solvent pharmaceutical or medical device companies, no marketplace. We’ve seen the difference between non-accessibility and accessibility here – and saw which works. Not to mention the obvious fact the government will no longer have money. Some see a silver cloud – but every day this system lives its octopus arms entangle themselves in our lives.
The solution is to repeal the legislation and replace it with a well thought out market based approach. That will require a GOP win in the presidential election. People will get what they vote for.
If my fellow citizens want to go to Hell I will help them. It’s my job.
O.W. Holmes Jr.
A terrible legal decision but a great political one. And frankly, I’d rather have the question thrown back to the people than Boehner.
1. Any of you, who are still of the opinion that the Supreme Court can or will protect the American people from the Federal government, needs to rethink your opinion.
2. This very dark cloud has a silver lining. A reversal would have required* Boehner and McConnell to do something. They would have caved in to the Democrats and made things worse.
*not required as in judicially ordered. But, the media hysteria would have been unstoppable, and the Lord assuredly knows that those two cannot resist the media.
“The solution is to repeal the legislation and replace it with a well thought out market based approach.”
I disagree. I think the solution is to pass a new law that creates real, underwriter-based catastrophic insurance plus health savings accounts, which may still be law, I’m not sure. Leave Obamacare as is but make it optional. The dependent class will choose it and then it can be transformed later to block grants. The real health insurance will attract those who want such an option. Repealing the employer mandate should accomplish what we need.
Medicare is another problem but I support the French approach for that.
Of course, we need a Republican president to sign such legislation and a Senate that can pass it in spite of the Democrats. The present situation might be more helpful in that regard than a mad scramble to replace an overturned Obamacare.
Today’s decision cements Jeb Bush as the Republican nominee and eventual 2016 loser. It’s locked in, people. There was very little reason to vote for Republicans before this decision – now there is none. Honestly, do the people in previous comments really think that the current Republican leadership will do anything in 2016 except continue on the path they have already set out on?
Fiona: you lost me. How does this help Jeb Bush?
I just have had parallel experiences with the best medical system in America and the worst system. By the best of course I mean our system of Veterinary care and the worst is Medicare. One of our dogs (elderly) had a splenectomy followed by another surgery to correct a post surgery stomach torsion. For reasons involving overnight and weekend support we had four first rate vets on this. I received followup calls from each vet personally checking in on our dogs recovery. These were not just good will but focused inquiries to make sure things were not awry. Appointments were available almost on request, modern equipment including ultrasound and other imaging was available and costs were provided upfront and were reasonable. Much like medicine was in the 1970’s for humans.
My mother in her 80s has a variety of issues and we had to run the gauntlet of PA/NRPN substitutes for M.D.s to get her a competent diagnosis for a period of delirium. The M.D. was competent and well intentioned but is walled off from the patients by guidelines, rules, helpers and low government reimbursement. NO FOLLOWUP CALLS AT ALL regarding her welfare or progress. This will only get worse. Until we divorce insurance from cost control by restoring a major medical/HSA type model to our medical system, the patient will continue to be pushed off on the US version of Red Chinese barefoot doctors.
“we had to run the gauntlet of PA/NRPN substitutes for M.D.s”: well, that’s only fair; I mean, that’s what Senators and Presidents have to do, isn’t it?
The present regime continues its glidepath to oblivion.
Obamcare won’t work, and can’t work. The Supreme Court can’t change that, any more than it can rule reality unconstitutional.
No doubt it can try, but it won’t succeed.
Math doesn’t care about feelings, wishes, wannabes, or hopes.
Math rules. The present government doesn’t have the revenue, or the potential to obtain the revenue, to maintain the current welfare state.
Obamacare and its myriad pages of rules won’t change that.
It will just bring the end closer.
Here is an anecdote I posted over at Althouse on the Obamacare thread.
“Have you been to a doctor’s office lately?
The American Clusterf*** Act has brought little but chaos.”
It is interesting. My wife and I are both in Medicare and I was hospitalized briefly about two years ago. I didn’t think I needed it but the internist I go to now wanted me to go in and I did. Trying to be a good patient.
My wife was hospitalized last week for a chronic lung problem that requires IV antibiotics. The pulmonary guy, who I’ve known for 30 years, told us to go to the ER and he would send orders. We did that a week ago Monday and waited two hours among all the illegals and nothing happened. I said, “Why can’t you just admit her ?” He said, “The days of direct admit are gone forever.” Then he said, “Well go over to admitting and we will see what happens.”
She was admitted but the nurse on the floor said, “Dr ____ will be in trouble for doing this.”
This doc has been on the staff for 30 years and apparently is not allowed to send someone for admission. They must be screened by the ER docs who are on a hospital contract, with criteria not disclosed, to decide who gets admitted. This is the hospital whose staff I joined in 1972. I would not go there now.
The hospitals were eager for Obamacare and they have consolidated as vertical monopolies buying up doctor’s practices and they now have iron control of doctors’ lives. It’s interesting to see how this is playing out.
I finally got her home Tuesday night. She wanted to go to an infusion center to get her IV antibiotics and stay home otherwise but they could not figure out how to do that. She went in yesterday for her first treatment; the IV is in her arm and all she needs is to be hooked up for an hour. The people at the “day surgery” center, which is all they have, argued with her that she had to be admitted for this. She finally convinced them to do what they were supposed to do.
She was an ICU nurse and I was a surgeon there for years. I pity the non-medical person who tries to negotiate the maze.
I’m hoping she will be well enough for Greece. She had a good infectious disease guy when she lived in the Palm Springs area but nobody we trust here in Orange County. The ID guy in the desert is black and foreign born and excellent. We are trying to find him as he has left the desert and moved his practice.
Soon, even Medicare patients will need to consider cash practice to get anyone to pay attention to them. A friend of mine paid cash for his total hip last year. The orthopod is in Santa Monica and takes no insurance or Medicare.
What do you suppose they have on Roberts? Was Hastert a warning?
I was told to get an ultrasound scan. The doctor who prescribed it is (for now) in independent practice and suggested two alternative service providers. The first place is run by the big local hospital group. They quoted me $900 out of pocket and wouldn’t even tell me the price until the business day before the scan, when their “we need to confirm your insurance” person called me. I cancelled and called the other place, which is independent. They quoted $150 cash, and ended up charging me $88 when they learned I have insurance. I doubt the quality of the scans was different at either place. A while later a relative of mine was told by his doc, whose practice is owned by the big hospital group, to have a similar scan. When we tried to arrange it at the affiliated hospital we couldn’t get a firm price quote, because (they told us) it was possible that some of the radiologists in the group the hospital contracted with were not part of my relative’s insurance network. So we went to the other scan place and got better service.
The big hospital group wants you to think they are warm and cuddly, but dealing with them nowadays is like negotiating a loan with a car dealer. This is, increasingly, the way things are going. I look forward to finding more medical service providers who deal in cash but so far I haven’t found many.
Can anyone explain to me why any state should spend money on a state exchange? What is the benefit from taking on all that expense?
Not Fiona, but I agree with her. As I see it, right now the activist base of the Republican party, the ones who carry it through elections, are disgusted. They will not be there in the Primaries, which means the DIABLO’s will get their wish and Jeb! as the candidate. And they will not be there in the General Election, assuming it happens. Which means either Hillary, or Obama III will be president.
The Supreme Court today threw away the rule of law and the Social Contract. And in Chinese terms, they threw away the Mandate of Heaven too.
Subotai Bahadur
>As I see it, right now the activist base of the Republican party, the ones who carry it through elections, are disgusted. They will not be there in the Primaries,<
no they will be there but they won't make the mistake of 2012. their candidates for potus will be 1-5 candidates quickly going to 1.
I don’t see the connection between this fiasco and the presidential race. If anything it makes the presidency a more important office.
I see the probably outcome as two parallel systems with cash and insurance/Obamacare as the choices. The UK has private insurance operating in parallel with the NHS. France has a serious problem with British expatriates who sign up for the French system without ever having paid in with premiums. I think we will have such a system for a while and allowing private catastrophic insurance again would solve a lot of problems.
When the walls finally crumble, which will certainly happen when brick after brick is removed for political expediency, as in this case, and far too many others, the very same little statist darlings who are now applauding and gloating will be screaming in desperate terror for the rule of law to save them, and it will be gone.
Thomas More had it exactly right.
What the darlings fail to comprehend is that there any number of ordinary people in this country who would be totally, unrepentantly pleased to put them and all their darling friends right up against the nearest wall and end them. Without the slightest bit of hesitation, or too much worry about due process or any other legal nicety.
What fascinates me is trying to figure out what they think will save them when the very fly-over people they obviously believe are barely a step up from Neanderthals finally have enough and prove them right.
I know their self regard, and self deception, is limitless, but even delusional people can understand that you run away from a fire, not deeper into it.
I have to disagree about Jeb, whom I loath, although I agree that he was picked to be the candidate to go up against Hillary.
I suspect the antipathy towards the GOP establishment is such that he will have a very hard time winning the nomination. I recall the lurching of the GOP electorate the last time, when support surged from one no-hope candidate to another, as the voters attempted to avoid the grim fate of having Mitt Romney as the nominee.
Based upon that, my guess- or I admit perhaps just my hope- is that the GOP field will quickly shrink as the party coalesces around a single non-Jeb option.
Time will tell…
Sorry to have lagged getting back – but Subotai Bahadur has very succinctly explained my point – with the addendum that the DIABLOS have selected JEB! to lose, so we might as well go along with them and encourage any acceptable candidates to run as some other party. There is simply no possibility that the D’s will allow ANY non leftist to assume the presidency, now that it has been redefined as Dear Leader. Subotai has been warning us since 2012 that elections are unacceptable when the wrong result is likely.
During the middle ages laws were “the ancient customs of the land” and they were enforced based on how well these customs were remembered. Sadly a little money or torture could clarify legal memories in unexpected ways. Kings were called “law finders” rather than “law givers”.
The ancient laws and customs became easier to obey once the ancient customs got written down.
The Supreme Courts has decided that written laws are not nearly as accurate as Obama’s memory. Obama is the Law Finder whose nose locates pleasing laws.
Quod principi placuit legis habet vigorem is the maxim handed down by the emperor Justinian to the Emperor Obama
Enumerated powers?
I think The Housing decision yesterday is far more damaging than the Obamacare decision.
This one can be reversed by Congress.
The gay marriage decision is going to long lasting consequences for the culture and I’m working on a blog post about what those might be.
The housing decision is disaster. From Alito’s dissent:
No one wants to live in a rat’s nest. Yet in Gallagher v. Magner, 619 F. 3d 823 (2010), a case that we agreed to review several Terms ago, the Eighth Circuit held that the Fair Housing Act (or FHA) could
be used to attack St. Paul, Minnesota’s efforts to combat “rodent infestation” and other violations of the city’s housing code. The court agreed that there was no basis to “infer discriminatory intent” on the part of St. Paul.
Even so, it concluded that the city’s “aggressive enforcement of the Housing Code” was actionable
because making landlords respond to “rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat, inoperable smoke detectors, broken or missing doors,” and the like increased the price of rent. Since minorities were statistically more likely to fall into “the bottom bracket for household adjusted median family income,” they were disproportionately affected by those rent increases, i.e., there was a “disparate impact.” Id., at 834.
The decision did not require “evidence of discrimination” but merely statistical evidence of different outcomes.
No matter what the Department decides, one of these respondents will be able to bring a disparate-impact case. And if the Department opts to compromise by dividing the credits, both respondents might be able to sue. Congress surely did not mean to put local governments in such a position.
Kennedy even agreed with Alioto’s dissent !
The limitations on disparate-impact liability discussed here are also necessary to protect potential defendants against abusive disparate-impact claims. If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income
individuals, then the FHA would have undermined its own purpose as well as the free-market system.
The decision requires that.
Fiona: I take it thqat your position is that the results of next years elections are predetermined. I guess I shouldn’t waste my money and time on politics. I should be buying canned food, ammo and precious metal coins.
Mike K,
Don’t worry. I’m sure the solution will be to FORCE developers to build nice shiny new habitation for those saintly, worthy low income folks and minorities, much like the Obama regime has a plan to force every city and locality in the country to conform to a set mix of ethnicity and income level, because diversity.
I occasionally wonder when someone is going to sue to stop this sort of nonsense under the Thirteenth Amendment, arguing that the endless and bottomless requirements of people who are NOT defined as minorities or poor to work and labor to provide for those who are is de facto involuntary servitude.
Of course, based upon recent history, this would obviously be laughed out of court.
Forgive me if that sounds harsh, but I am at least as fed up with endless nonsense of the regime as Veryretired, and I’m thoroughly weary of the relentless gunpoint charity forced on me by the government, based on the idea that I owe a living to those beloved by the left.
I do not- and a million decrees by the Supreme Court won’t convince me otherwise.
}}} Medicare is another problem but I support the French approach for that.
“RUN AWAY!!!!”???
Just trying this out:
Democrats are Communists and Republicans are Incompetents
How about:
Democrats are Communists and Republicans are incompetent Communist wanna-be’s.
The White House wants your doctor to teach you about global warming
You have to at least give them credit for multi-tasking.