Five Republicans who are not democrats

Leave aside for a moment the favored policies of the ten Republican presidential candidates in the prime-time debate and the seven in the second-tier happy hour debate.  While there were very few actual policy differences, at least five candidates expressed startling contempt or disregard for the core structure of U.S. government, democratic constraints on the executive, international law, or the most basic standards of evidence for assertions made in public. 

Here's a quick look at five violations of the norms of democratic government as understood in the U.S. and internationally.

1. International law banning torture is not "brain surgery." Here's neurosurgeon Ben Carson responding to a question from Megyn Kelly: "As president,....would you bring back waterboarding?"

Alright. You know, what we do in order to get the information that we need is our business, and I wouldn't necessarily be broadcasting what we're going to do.(APPLAUSE)

We've gotten into this -- this mindset of fighting politically correct wars. There is no such thing as a politically correct war. (APPLAUSE)

Last laugh for Republicans in the SCOTUS session that was

Democrats were still in their happy dance over Supreme Court decisions preserving ACA subsidies and legalizing gay marriage throughout the U.S. when, in its final orders of the year, the Court agreed to hear cases poised to gut pubic unions and affirmative action.

In Friedrichs v. California Teachers Association, ten California teachers are challenging a requirement that they pay fees to the teachers union for nonpolitical services, chiefly collective bargaining. That's the type of provision that Scott Walker killed in Wisconsin; without it, pubic sector unions wither. As Mark Joseph Stern at Slate points out, "there is virtually no chance" that the Supreme Court will rule against the teachers:

Misrepresentation of the ACA in the Supreme Court: a postscript

In April and May,  during the countdown to the Supreme Court decision on the constitutionality of the Affordable Care Act, I did everything I could to highlight the material misrepresentation of the individual mandate in oral argument by Michael Carvin, counsel to the law's opponents.  To serve his argument that the ACA forces young and healthy individuals to buy insurance far in excess of their needs, Carvin  asserted, "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance" (p. 105). That was wrong on two counts: 1) the ACA allows not only adults under 30, but older adults who can show financial hardship, to buy bare-bones catastrophic coverage offered outside the ACA's insurance exchanges; and 2) the cheapest plans on offer in the exchanges provide coverage of an actuarial value low enough to be considered "catastrophic coverage" by most experts, including the Kaiser Family Foundation.


Via Don Taylor, I learned just last week that the plaintiffs' broader claim that the ACA forced people to buy insurance in excess of their needs was misleading on yet another count. The ACA contains a little-known option for states that want to provide affordable to those ineligible for Medicaid yet poor enough that the cheapest option within the insurance exchanges may prove a financial hardship. States may opt to establish a federally-funded Basic Health Plan (BHP). A March 2011 McKinsey report summarizes:

A radical departure? Congress can tax inactivity

There is a mystery to John Roberts' opinion upholding the mandate under Congress's taxing power while ruling it an unconstitutional exercise of Congress's Commerce Clause power.  With regard to the Commerce Clause, Roberts adopted wholesale the plaintiffs' argument that it's a radical and dangerous departure for Congress to "create" commerce or "compel" inactivity.  Yet Roberts finds that Congress does have the power to tax inactivity, notwithstanding that none the precedents he cites as support for upholding the penalty for not buying insurance do tax inactivity. He is up-front about this apparent paradox:

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something (p. 41).

Conservative justices deny Congress a power that Congress doesn't want

[Reposted, with new post-mortem comments from Randy Barnett, chief architect of the case against the mandate.]

The first really substantive part of the "syllabus" or executive summary of the Supreme Court decision upholding the individual mandate and the ACA looked like Armageddon for the Administration:

2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30....

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clausewould give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.

That is a straight exposition of the plaintiffs' core argument.  Congress cannot create commerce; Congress cannot regulate inactivity; Congress cannot compel commerce. It's a miracle that Roberts turned around and upheld the mandate as an exercise of Congress's taxing power.  But hasn't this decision dealt a blow to Congress's power to regulate commerce?  Does it kick off a rollback of the series of decisions in Roosevelt's second term that expanded that power?

Probably not. Congress's right to compel purchases is a conservative worry, not a liberal one. Verrilli's core "limiting principle" was essentially that insurance is unique (because you never know when you'll need the benefits), and health insurance a singularity within that singularity (because if you lack it, your fellow citizens will ultimately foot much of the bill).  And he meant it!

In his reply brief, Verrilli identified democratic accountability as the ultimate limiting principle that would confine the purchase mandate to health insurance:

To what extent did SCOTUS inhibit Congress's power to regulate commerce?

Yesterday, I suggested that the Supreme Court's finding that the individual mandate exceeded Congress's Commerce Clause powers did not in fact crimp Congress's ability to regulate commerce in any significant way, since Congress has no desire to impose any more purchase mandates. Donald Verrilli stressed in his reply brief that health insurance is a unique case, pointing out that states, which have an unquestioned power to impose purchase mandates, don't do it. Justice Ginsburg made the same point in exquisite detail in her dissent with regard to the Commerce Clause.

In today's Times, however, Neal Katyal, who served as acting Solicitor General after Obama appointed Elena Kagan to the Supreme Court and who argued the ACA case at the appellate level, makes a compelling case that the decision did limit the federal government's power and expand the Court's propensity to legislate from the bench in significant ways. Chief among them was in its invalidation of Congress's power to enforce its expanded Medicaid mandate:

My last best shot in defense of the ACA

[repost] I have a piece up at The Atlantic updating my case that the enemies of the ACA misrepresented the individual mandate in the Supreme Court, that the cadre of oppressed citizens they conjured up is a phantom, and that the law's creators worked under a self-imposed "limiting principle," doing their utmost to minimize the financial burden imposed by the mandate.

Below, a few posts that flesh various parts of the argument compressed in the Atlantic piece.  A full index of my posts on the ACA in the Supreme Court, along with outside sources relevant to my argument, is here.

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)

Three possible surprise rulings on the Affordable Care Act (6/15)
Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)  
The ACA offers catastrophic coverage: the AP notices  (4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)  

And, for the record, the 3/28 post by a healthcare attorney who picked up the plaintiffs' core card trick more or less in real time during oral argument: Ragbatz on the catastrophic coverage options in the ACA. 

The conservative justices shake the Etch-a-Sketch -- twice

For supporters of the Affordable Care Act, the tea leaves after oral argument in the Supreme Court were bad enough. In recent days, though, worse omens have deepened the gloom, as the conservative justices have shown signs of clearing the conceptual decks  for a strike-down of the individual mandate at least.  Perhaps implicitly acknowledging that recent legal precedents suggest that the mandate is constitutional, they have indicated a new willingness to cast aside the judicial principle of stare decisis -- let the decision stand. In fact, in the past week, two justices have signaled a willingness not to let their own decisions stand.  And both those decisions have a bearing on the mandate's constitutionality.

First up is Scalia, who is soon to release a new book that has been reviewed by the New York Times. TPM's Sahil Kapur highlights the relevant section:

What about state-imposed individual mandates?

If the Supreme Court strikes down the individual mandate but leaves the rest of the ACA intact, one fact to keep in mind is that states maintain the right to impose such a mandate.  Backhandedly, even the plaintiffs acknowledged as much. The state respondents' brief makes much of a distinction between regulating commerce and "creating" it by requiring individuals to purchase something, asserting that Congress does not have the right to "compel individuals to engage in commerce." But the states do have that power:

The power to force individuals to engage in commercial transactions against their will was the kind of they reserved to state governments more directly accountable to the people (p. 17).*

Massachusetts, ICYMI, has exercised that power.  No one has challenged it.  And Mitt Romney has been insisting for two years that each state should have the power to find its own healthcare solution.

Smart messaging, with a large dollop of denial, from Aetna's Bertolini

The health insurance industry has sensed and seized -- or created -- a PR opportunity amid the mounting tension in the runup to the Supreme Court's decision on the constitutionality of the Affordable Care Act. First, UnitedHealth announced that it would continue to allow parents to cover adult children up to age 26, a requirement of the law, regardless of whether that part of the law was struck, and adhere to other ACA mandates, such as providing preventive services without copay and forgoing lifetime coverage caps. Aetna and others made similar announcements. Mark Bertolini, CEO of Aetna, has been particularly out front, giving interviews to the Wall Street Journal and Washington Post emphasizing Aetna's innovation in improving healthcare delivery and reducing costs.

There's some disingenuity in Bertolini's message as it's evolved over the past two weeks, however. Yesterday he told WonkBlog's Sarah Kliff that the Supreme Court decision doesn't matter, that Aetna and the industry will continue with innovation regardless of the decision, and that a deficit reduction deal is more important than the ACA.  That's backwards. If the ACA's new rules for health insurers and array of cost-cutting incentives for healthcare providers and insurers are left in place, they will likely have a bigger long-term impact on government spending than any tax-and-spending deal the Congress strikes. Bertolini's own boasts about Aetna's recent accomplishments and strategy indicate as much, though he's now working to unmoor their origin and continued impetus from the ACA.  Check out the denial in his exchange with Kliff:

The morality tale that may sink the ACA, cont.

I have a piece up at The Atlantic updating my case that the enemies of the ACA misrepresented the individual mandate in the Supreme Court, that the cadre of oppressed citizens they conjured up is a phantom, and that the law's creators worked under a self-imposed "limiting principle," doing their utmost to minimize the financial burden imposed by the mandate.

Below, a few posts that flesh various parts of the argument compressed in the Atlantic piece.  A full index of my posts on the ACA in the Supreme Court, along with outside sources relevant to my argument, is here.

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)

Three possible surprise rulings on the Affordable Care Act (6/15)
Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)  
The ACA offers catastrophic coverage: the AP notices  (4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)  

And, for the record, the 3/28 post by a healthcare attorney who picked up the plaintiffs' core card trick more or less in real time during oral argument: Ragbatz on the catastrophic coverage options in the ACA.  

Someone talk me down

I am so freaked out by the weakening global economy, the Republicans' ballyhooed Supreme Court-enabled  3-1 spending advantage, and the pending ACA decision by same Bushified court, I feel like Ingrid Bergman as the Germans march on Paris. Really, it feels as if the forces of reaction are gaining critical mass. They've sandbagged the economy, sabotaged the ACA, packed the court, and won the right to saturate elections with money.

Once again, I am reminded of Francis Fukuyama's demonstration that in other eras, state sovereigns have found means for a few centuries to check the ability of elites to entrench their advantages, only to have the elites eventually find ways to breach the defenses. The question is whether the current disproportionate accretion of wealth and power to the 1% will once again prove cyclical, as in the wake of the 1929 crash, or this time become permanent.

The billionaire barbarians are at the gates.

Ask whom the mandate tolls

Einer Elhauge, the legal scholar who dug up the health insurance mandates imposed on ship-owners, sailors and militiamen by U.S. Congresses and presidents in the 1790s, and economist Kevin Caves have placed the "individual mandate" in the Affordable Care Act in an arresting new frame:

Ronald Coase won the Nobel Prize in Economics for showing that social costs are symmetrical. In The Problem of Social Cost, Coase invoked the example of a farmer whose crops are trampled by the neighboring rancher's cattle. Before Coase, it would have been common to view the rancher as the culprit responsible for imposing costs on the blameless farmer. Coase pointed out that no matter which way the legal rights were allocated, one was imposing costs on the other. If the law forces the rancher to keep his cattle fenced in, the farming imposes fence-building costs on the rancher. If the law gives the rancher the right to let his cattle roam free, then the farmer bears the social cost....

A catastrophic error: The misrepresentation of the ACA's individual mandate in the Supreme Court

[I am reposting this at intervals.  Justice Kennedy: come in for some cookies and tea?] For those who've noted that, contra the 3/27 oral arguments in the Supreme Court on the constitutionality of the individual mandate in the Affordable Care Act, the ACA does in fact offer various catastrophic coverage options, an index of coverage of this issue, here and elsewhere:

Michael Carvin misrepresented the mandate in oral argument (4/12) 

Attention SG Verrilli and Justices Kennedy, Roberts: A plea for one more pleading (4/29)
Kaiser weighs in: the ACA offers catastrophic coverage to all comers (4/27)
Patient cost-sharing under the Affordable Care Act (Kaiser Family Foundation. 4/27)
Another limiting principle for mandate: states can opt out (4/23)
Jonathan Cohn tells the justices: the ACA has catastrophic coverage options (4/20)
Will the justices make a catastrophic error? (Jonathan Cohn, 4/19)
The ACA offers catastrophic coverage: the AP notices  (4/10)
Supreme Court misunderstanding on health overhaul? (AP's Ricardo Alonso-Salvidar, 4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization, 4/2)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)
Was Verrilli just the wrong man for the job? Part I (Ragbatz Tumblr, courtesy of Anon below, 3/28)

A Catastrophic Error: The Misrepresentation of the ACA's Individual Mandate in the Supreme Court

For those who've noted that, contra the 3/27 oral arguments in the Supreme Court on the constitutionality of the individual mandate in the Affordable Care Act, the ACA does in fact offer various catastrophic coverage options, an index of coverage of this issue, here and elsewhere. The first, out of sequence, is the most comprehensive statement of the plaintiffs' misrepresentation of the mandate. The rest are in chronological order, by category.

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)
A postscript about the ACA's Basic Health Plan option for states (8/13)
What about state-imposed individual mandates? (6/24)

Three possible surprise rulings on the Affordable Care Act (6/15)

Late pleadings for the ACA (5/31)

The bogus economic basis of the case against the mandate (5/29)

Ask whom the mandate tolls (5/23)

Don Taylor envisions a distant healthcare compromise; might Kennedy impose something like it next month? (5/16)

Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)

A plea for one more pleading (4/29)
Kaiser weighs in: the ACA offers catastrophic coverage to all comers (4/27

Another 'limiting principle' to the individual mandate: states can opt out (4/23)
Jonathan Cohn tells the justices: the ACA has catastrophic coverage options (4/20)
Michael Carvin misrepresented the mandate in oral argument (4/12)
The ACA offers catastrophic coverage: the AP notices  (4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)

On the mandate more broadly
The individual mandate is a piece of Cake (4/25)
Verrilli's limiting principles (4/24)
If only Verrilli had said (A, B, C) (3/31)
Verrilli, slapped silly, recovers willy-nilly (3/28)
External links
The morality tale that could sink the ACA (xpostfactoid in the Atlantic, 6/22)
Patient cost-sharing under the Affordable Care Act (Kaiser Family Foundation. 4/27)
Will the justices make a catastrophic error? (Jonathan Cohn, 4/19)
Policy ignorance at the Supreme Court (Steve Benen, Maddow blog, 4/16)
Supreme Court misunderstanding on health overhaul? (AP's Ricardo Alonso-Salvidar, 4/10)
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization, 4/2) 
Ragbatz on the catastrophic coverage options in the ACA - a healthcare attorney picks up the plaintiff's con in real time ( 3/28)

CC Justices Kennedy, Roberts: A healthcare attorney details the catastrophic coverage options in the ACA

Re my monthlong quest (begun 3/31) to highlight the catastrophic coverage options in the Affordable Care Act that the plaintiffs labored successfully to obfuscate: a healthcare attorney, keeper of the tumblr Ragbatz, apparently picked this dynamic up in real time as news emerged from the 3/27 oral arguments and wrote on 3/28:

Imagine answering Scalia’s yammering that the mandate should have been limited to catastrophic plans, with the short answer that, in essence, it was limited to catastrophic plans.  The Affordable Care Act requires insurers participating in an exchange to offer a “Bronze” level of coverage that has a higher deductible than “Silver” and “Gold” offerings.  The levels of the deductibles are determined by an actuarial formula; for 2014, a leading actuarial company has projected that the deductible in “Bronze” category would be $6,350.  Those healthy but cash-strapped youngsters Scalia is worried about are, under Obamacare, free to choose to a Bronze plan and thus to self-insure below that level.

Furthermore, community rating under the ACA permits age-related premium rates.  The youngest cohort can expect to pay a third of the amount charged to the pre-Medicare cohort.

If you were a Supreme Court justice...

Joan Biskupic, on of Reuters' Supreme Court reporters, has a circumspect article about how vain it is to speculate about how the Court will rule on the constitutionality of the Affordable Care Act.

Of course, salted into the nutritious helping of info about the Court's august procedures for guarding confidentiality are two bits of well-sourced speculation, one on each side.  The second set me off on a thought experiment. Here it is:

Tom Goldstein, a Washington lawyer and founder of the website SCOTUSblog, said he briefly thought he was observing a sign when he argued a case before the nine justices on April 16 - their first day back after the late March healthcare hearing. When the justices ascended the bench, Goldstein thought the four liberals seemed in particularly fine moods.

He caught himself thinking - only fleetingly - that their good spirits might have meant a majority had voted to uphold the law. "But," added Goldstein, "it flashed through my mind just as quickly that what I saw meant nothing."

Four justices, one mood. That set me thinking about the degree to which actual legal arguments are likely to have an effect. So then I thought: suppose I were one of the nine -- with my existing political propensities. Before I'd read any of the case pleadings, how open would I be to persuasion by the plaintiffs?

Michael Carvin misrepresented the mandate in oral argument

Arguing before the Supreme Court on March 27 that the individual mandate in the Affordable Care Act forces people to buy more health insurance coverage than they need -- an argument that Alito, Roberts and Scalia also voiced -- plaintiff's counsel Michael Carvin asserted,  "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance"  (p. 105).

I've noted that someone should have stressed to the justices that the ACA does allow those under 30 to purchase purely catastrophic coverage. The AP has weighed in with a story citing insurance experts who assert that the "bronze" plans offered in the insurance exchanges are skimpy enough to reasonably be dubbed catastrophic coverage. Randy Barnett, a prime mover of the case against the ACA, rebutted that claim today, as did Carvin himself in the AP story.

In a way it's a perverse argument. Why should defenders of the law have to argue that the ACA allows people to buy coverage crummy enough not to be construed as an undue infringement on personal liberty? Be that as it may, I want to return to one point noted in passing in my original post.

While the assertion that the ACA offers "catastrophic" coverage to those who want the bare minimum depends on your definition of 'catastrophic,'Carvin's assertion that "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance" is simply not true.

The point is technical but telling. Carvin was exaggerating the extent to which the law requires Americans to buy more coverage than they might conceivably individually need, or think they need. 

Marty Lederman concurs: individual mandate could be trimmed not killed

On March 31, I put up a post (updated 4/2) arguing that a highly germane provision of the Affordable Care Act went unmentioned during the Supreme Court grilling of Verrilli: the option for adults under 30 and others showing financial hardship to buy catastrophic coverage only, rather than a bronze, silver or gold plan on the exchanges. That was germane because Alito, Roberts and Scalia all asserted that not everyone in the market needs the range of services that policies offered in the insurance exchanges are required to cover -- implying that the young and healthy were being treated as "golden geese," as plaintiff's attorney Paul Clement later claimed, being tapped to finance coverage for the older and sicker.

Given the concern that the government's intrusion be as limited as possible, I wondered "whether the catastrophic care option for those under 30  does not suggest a way out: it could be extended. Could the judges rule that the mandate can extend to catastrophic care only -- in effect, legislating from the bench?  I am pleased to note that Marty Lederman at Balkinization, former deputy assistant attorney general in the Obama administration's OLC, has raised the same possibility.

Verrilli, slapped silly, recovers willy-nilly

I read rather than listened to the Supreme Court pleadings on the individual mandate yesterday, so I missed all the cues of body language and tone. Maybe that's why  I think that Solicitor General Verrilli is getting something of a bad rap in the lethal post-mortems.  (I'll also cop to being biased in favor of those under attack.)

To a degree, I suspect that critics are projecting their own discomfort and shock at the apparent intense hostility to the mandate expressed by Scalia, Roberts and Alito at the outset onto Verrilli, concluding that he buckled under the pressure of hostile questioning. Maybe he did look and sound ill at ease -- the play's the thing, not the script. But if  he did not answer this point or that point at the particular moment when one critic or another thought appropriate, it was in large part because he was repeatedly interrupted.  Ironically, some of the interventions by Ginsburg and Breyer may have diverted him an early answer to the core question: what was his "limiting principle, " a line the federal federal government could not cross while exercising its power to regulate interstate commerce.

By my count, Verrilli was interrupted 44 times in 50 pages of testimony.  Plaintiff's counsel Paul Clement, who was more fluent, was interrupted just 12 times in 24 pages. Clement's co-counsel Michael Carvin was interrupted at a rate similar to Verrilli -- 25 times in 27 pages. But the intensity in the two halves of the proceeding was reversed:  the liberal justices got in the groove of defending the mandate near the end of the proceeding, while Verrilli was buzz-sawed most intensely at the outset -- 16 times in the 15 pages following his opening statement. 

It therefore took him a while to spit out the core points. But he did get them out. The fractured early focus was the basis of much criticism -- for example, Noah Feldman's: