TAE: Naked Poll Rats Open Thread

It’s that time again! This American Election, a radio show for political junkies addicted to the horse race, is set to begin in just 45 minutes. Just click this link to listen live, or call in to (347) 324-3592 to listen live, or talk to Anthony and me. This week’s topics include:

• State of the Race
• Joe Scarborough Controversy
• Death Panels
• Labor Department, fiscal cliffs, and bribes
• Polls
• Madonna Controversy
• Anne Romney Controversy

Special guest: John W. Smart! We hope you’ll join us and share this blog post in a tweet. We’ll be asking listeners what they think is the cause of the enthusiasm gap, which has been identified in a new AP/GSK poll. As always, we discuss any topic you care about if you call in!

By the way, we’re fast approaching 1,000 members at Romney Democrats on Facebook. Can we make it by the start of the first debate? Like us to find out! This is an open thread.

#ACA: Five Health Insurance Talking Points

Cross-posted from P&L.

Let me get right to the point: We need to start developing some talking points on The Affordable Care Act (ACA). I say this because in the wake of the Supreme Court ruling, I have encountered a proliferation of Obama supporters talking up the good sides of the health care bill (extended child benefit and the elimination of pre-existing conditions among them). In addition, political operatives are busy making the progressive equivalent of the “welfare queen” talking point by calling people without health insurance “freeloaders.”

These argument will make inroads if they are not met with clear, consistent opposition. We can’t afford to let them persuade people who already have insurance (the vast majority of Americans) that this will benefit everyone. It won’t. It will hurt everyone, one way or another, whether it’s the loss of employer-provided health care, the loss of health care freedoms, or difficulty transitioning upward in terms of class. In addition to highlighting these points, we need to make arguments about what’s good about the bill, and how these features can be kept while eliminating the mandate. Don’t underestimate the power of the Rogerian argument.

I’m not talking about the kind of talking points that you can find on Twitter, or that are coming from conservatives. Bless their allied hearts, but the rhetoric tends to be a bit…shrill. This is a job particularly suited to political independents like us. Once we nail these talking points, we can deploy them to persuade anyone up for grabs, or anyone who has doubts about the effectiveness of the structure of the bill. We might even be able to help some conservatives understand the need for making such clear points, instead of relying on linguistic shorthand like ObamaTax. Our clear-headed thinking could naturally resonate in the national conversation, but only if we take the risk and start talking to people, and are willing to confront true believers when we encounter them, especially if there is a larger audience around.

With this in mind, I’ve articulated five talking points you can use to inform people about the consequences of allowing the full bill to go into effect.

Talking point #1: Keeping your kids on your health insurance plan until they are 26 is a great idea.

Start with this Rogerian argument, which is disarming, about the talking point on the most popular part of the bill.  Keeping your kids on your health insurance in this economy if you can afford it is a great idea. The talking point is simple, and one the insurers themselves made when everybody and Obama thought the Supreme Court would overturn it: insurance companies will keep this feature no matter what happens to the bill. Why? Because it vastly increases the pool of potential clients with the means to pay for it. Young people can’t normally afford insurance, and they have little incentive to buy it even if they could. That issue is partially resolved by this change. Coverage for children up to 26 years of age is not going away, even with full repeal. In fact, that age might even be increased eventually. It’s a matter of health insurance policy, not federal law.

It’s also fair to point that a lot of young people don’t have parents who can afford to keep them on their insurance plan, and plenty of parents can’t afford their own plans themselves, so ask, what happens to them?

Talking point #2: Employer-provided insurance is going away.

It’s built into the bill. According to this Kaiser flowchart, the tax penalty for businesses with 50 or more employees, but less than 200 employees, is between $2,000 and $3,000 per year, per employee, minus 30. Considering that the median cost of providing an employee health insurance  is $10,000 a year to the employer (not counting employees’ obligations, which is another $4,000), the math suggests that employers will save significant money if they just drop health insurance for all employees. The penalty increase, by the way, is a percentage indexed to the rise in insurance premiums, thus will never approach, let alone exceed the cost of the premium itself. The government’s own pamphlet (PDF) on penalties for employers does not mention any penalty at all for dropping health insurance altogether for businesses that employ more than 200 full-time workers.

So, to recap, if you’re employed by a small employer with less than 50 employees, you’re on your own. If you’re employed by a small employer with 50-200 employees, your employer will always save money by canceling your insurance. If you work for a big company with more than 200 employees, there appears to be no penalty for them dropping health insurance altogether. Don’t forget to point out that employers are unlikely to make up the gap in compensation with an increase in pay. Many people already distrust their employer, and this talking point will make sense to them as a result.

People need health care, not health care insurance

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Fareed Zakaria:

Curbing the cost of health care

Many liberals believe that the Affordable Care Act — Obamacare — is unpopular only because most Americans don’t understand it. There is some truth to this: Studies show that the core provisions of the bill are more popular than the bill itself. But there’s also a reason, rooted in reality, why many Americans worry about Obamacare — its cost.

Most Americans have health care. What they worry about is the cost of insuring 20 million to 30 million more people. Unless the meteoric rise of health-care costs is slowed, a big expansion of coverage might well remain unpopular, no matter how it is explained.

Republican alternatives to Obamacare, such as Rep. Paul Ryan’s plan, don’t bother with expanding coverage, which is a mistake because they leave in place a broken insurance model in which people can freeload. But most do have a strategy to control costs — get consumers to pay for more of their health care. The basic idea is intuitively appealing. Markets produce efficiencies; they presumably would do the same thing in health care.

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People aren’t “freeloading”, they are opting out. If you are young and healthy and only see the doctor for annual check-ups and occasional minor injuries and illnesses, paying $1000 month for health insurance is a bad bet. Whether we privatize or socialize the cost of health care we still need to control it.

We spend twice as much (or more) per capita on health care as other industrialized nations. ObamacareTax does nothing to address that disparity. The problem isn’t that health care is inaccessible, it’s that it’s unaffordable.

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Busted

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Gateway Pundit:

Democrats told us Obamacare was not a tax.
Then they argued in front of the Supreme Court that it was a tax.
Now they want to tell us again that Obamacare is not a tax.

Jack Lew, the Obama White House Chief of Staff, was trying to persuade Chris Wallace on FOX News Sunday that Obamacare was not a tax. But it didn’t work out so well for Lew when Wallace played audio of the Obama lawyer arguing that Obamacare was a tax in front of the Supreme Court.

Lew was stunned after being caught in the lie.

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Obamacare = ObamacareTax

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Poll Dancing

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Gallup:

Americans Issue Split Decision on Healthcare Ruling

Americans are sharply divided over Thursday’s Supreme Court decision on the 2010 healthcare law, with 46% agreeing and 46% disagreeing with the high court’s ruling that the law is constitutional. Democrats widely hail the ruling, most Republicans pan it, and independents are closely divided.

[...]

When asked what they want Congress to do now that the high court has upheld the 2010 law, 31% say they would repeal the law entirely and 21% would keep the law in place but repeal parts of it. A quarter of Americans swing in the other direction, saying they would like Congress to pass legislation to expand the government’s role in healthcare beyond what the current law does. Thirteen percent want to keep the law in place and do nothing further.

Views on this question are highly partisan, with 65% of Democrats coming down on the side of maintaining, if not expanding, the law, and 85% of Republicans coming down on the side of repealing it, either in whole or in part. Independents are more evenly divided, with 40% in favor of keeping or expanding the law and 49% in favor of repealing all or part of it.

[...]

Four in five Americans tell Gallup they will take candidates’ views on healthcare reform into account to at least some degree when voting for major political offices this fall. This includes 21% who say they will vote only for a candidate who shares their views on healthcare reform and 59% who say healthcare will be just one of many important factors they will consider when voting. A relatively small 12% say healthcare reform will not be a major factor in their vote.

[...]

Nearly two-thirds of Americans see politics as having a heavy hand in the ruling, possibly reflecting a knee-jerk belief among Americans that politics is always a factor. Alternatively, it could specifically reflect the fact that eight of the nine justices voted in politically predictable ways. Or it could reflect a belief on the part of some Americans that Chief Justice John Roberts’ decision to side with the four liberal justices may have been influenced by the substantial political implications of the case.

In any event, 64% of Americans say politics played too great a role in the court’s decision, while 29% disagree. The vast majority of those who disagree with the decision, 84%, believe politics played too great a role, but so do nearly half of those who agree with the decision, 47%.

Accordingly, 80% of Republicans believe politics played too big a role, compared with 67% of independents and 47% of Democrats.

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But wait! There’s more!

ObamaTax: It’s on.

Holy sh!t! Did you ever think you’d live to see the day that a Democratic politician would say this?

“Don’t believe the hype that the other side is selling,” Massachusetts Gov. Deval Patrick told reporters on a conference call.

“This is a penalty,” Patrick said. “It’s about dealing with the freeloaders.”

Bolding mine. So now those of us who can’t afford health insurance are “free-loaders.” Which makes welfare recipients what? More of this please, because this is a debate we desperately need to have. If I were Romney, I’d have an ad airing around this quote tomorrow.

This is an open thread.

Comments of the Day: On Taxes, American History, and Power Sharing

Via the ever-brilliant Angie:

The collective mind-losing isn’t exclusive to the left blogosphere; it’s on the right as well. Forget about people on the right talking about the SCOTUS & CJ Roberts *after* the ObamacareTAX decision exactly the same way the left was talking about the Court & Roberts *before* the decision (although really, *they* should think about that for a minute) because after my awakening on May 31, 2008 I am completely aware of the vast hypocrisy on both sides (which is why I’m staying registered I and using whichever side will further my purposes). Forget that.

But for the love of God this hysteria about the Court “giving Congress unlimited taxing power” has got to stop. For all practical purposes the only real limit to Congress’ taxing power, with the exception of the income tax until 1913 (more on that below) has always been us – we the people. We don’t like it when the government raises taxes too high? We vote them out. That is how it has always been – hell, that is what the Boston Tea Party, one of the catalysts for us to go to war with the King of England(!), was about – taxes! More specifically, the imposition of burdensome taxes without any kind of recourse available to us, or “No taxation without representation!” That’s a *tad* bit of an oversimplification of the reasoning underlying the American Revolution (there was a lot of other tyrannical stuff Old King George was doing). Nonetheless, the “tyranny” is not in the tax – the tyranny is in the people having no recourse against those who impose the tax. And you would think – at minimum — that people who call themselves the TEA Party (yes, a synonym for Taxed Enough Already but also a nod to the Boston Tea Party) would know that. Alas, they do not.

I actually saw posts comparing the ObamaTAX with the Income Tax needing to be done by Amendment as some kind of convoluted rationale that Congress’ power to tax is “limited.” This is doubly sad as it comes from people who claim to want to “preserve and respect” the Constitution. Maybe they should try reading it because one of the few limits on Congress’ taxing power in the original Constitution was on the Income Tax (Art. I, sec. 9) or “direct tax.” And in 1913 when we the people agreed to the imposition of the Income Tax, our representatives had to do it via an Amendment (16th) with a 2/3 majority because unlike in the book Animal Farm, we don’t just erase changes in the law. The Income Tax via the 16th Amendment is not applicable to the ObamaTAX.

But, you say, the Court gave Congress the power to tax us not doing something – that is new! Um, no it isn’t. The government does that all the time – we just don’t call them taxes. Ever not pay your income taxes on April 15th? You get hit with a tax – it’s called a penalty, but it’s a tax – a sum of money levied by the government for its support or for specific facilities or services. And we the people are OK with that tax because the majority of us feel “Hey, if I have to pay my income taxes on April 15th, so should you and if you don’t you should have to pay more.”

But you say, that isn’t the same – failing to do something you are legally required to do isn’t the same as not buying something – the government can’t tax us for not buying something. Again, wrong. Congress does it all the time – in an ingenious way – and it’s called a tax credit. Congress decides that people who buy solar panels or energy star appliances are eligible for a tax credit, which in effect is letting them pay less taxes for buying a product than their tax rate requires and penalizing those who don’t buy the product. We the people are OK with that because we don’t view it that way – we view it as “The people getting taking credits are just keeping more of their own money and hey, those who don’t buy the solar panels/energy star appliances are only paying at the rate they would anyway.” But, in effect, some are paying less taxes & some are paying more based on whether they buy products deemed “good” by the government. I don’t point this out because I disagree with tax credits – I think they can properly be seen as “incentives” rather than “taxes.” I point this out to put the lie to the argument that the government has never “penalized” us for “not buying things.” It has & it does.

And, of course, there is the tongue in cheek line from Eric Erickson on redstate.com saying “the upside is we can now tax the hell out of abortion” that some are running with to try to say the Court somehow expanded the Congress’ taxing power. Well, I hate to break it to you, but Congress *could* already be “taxing the hell” out of abortion or anything else – they already tax the hell out of alcohol & cigarettes, so-called “sin taxes.” They do it because we the people are OK with those taxes – we say “Hey, those things aren’t good for you anyway and no one is going to starve if they can’t afford cigarettes and alcohol, the way they would if they couldn’t afford bread & milk.” And, it is no coincidence that as the public’s view has become more & more “anti-smoking” that the taxes on cigarettes have steadily increased. The *only* thing stopping Congress from taxing (to use Erickson’s example) abortion is the fear of backlash from we the people! That is the only thing that ever stops Congress from taxing the hell out of *anything!*

And that is why Obama insisted that the mandate was not a tax – a sum of money collected by the government for its support or specific facilities or services. He didn’t want to sell it as a tax; the Dems didn’t want to sell it as a tax; no one wanted to sell it as a tax because they knew we the people wouldn’t buy it. No, they wanted to make us think of it as a “penalty” like the kind imposed when you don’t pay your income taxes by April 15th with a little bit of the “sin tax” rationale mixed in (“Having insurance is “good” for you! You will be ‘healthier” with preventative care!” even though there is no evidence that having insurance or wellness care keeps you from getting sick, but that’s another discussion) — and if they could have sold it as a tax credit, they would have! But no matter how many times Obama denies it when George Stephanopoulos reads the definition that is exactly what the mandate is – a tax. And our recourse if we don’t like the tax –as it has always been – is to vote out those who taxed us by misrepresentation.

And one other point — while I myself was shocked that Roberts would – in effect – rewrite the statute to get this result, I’m sick of people acting like the Court has never done something like this before. Mark Levin called the decision “lawless” (granted, I only saw the quote, I don’t listen to Levin, so that could be out of context), but bullshit on that. The SCOTUS is the highest court in the land – their decision *is* the law, whether you agree with it or not – in cannot, by definition, be “lawless.” Now, it certainly can be a case of the Court doing something it really had no legal basis to do, but again — not the first time! Brown v. Board of Education – the case that ended segregation in public schools – do you know the legal basis for the Court’s holding? Yeah, there is none. Heck, the “science” relied on by the Court about the beneficial effects of integrated class rooms didn’t have any real foundation. But most people are OK with that decision & don’t say that decision was “lawless” because we like it. Which kind of brings me back to the point I said I was going to “forget about” – people on the right after the decision sounding just like those on the left before the decision. But I will say these two things: (1) It was a genius move by Roberts because I couldn’t imagine him being able to uphold ObamaTAX without violating his judicial philosophy on the expansion of the Commerce Clause – he did *exactly* that, not only slapping ObamaTAX hard on the unconstitutional attempt to expand the power of the government via the Commerce Clause –he did it getting the liberal justices to *agree with him!* The flack after Citizens United the Court was getting? GONE. Obama’s ability to run as a “victim” against the Court who “stopped all the wonderful things Obama tried to do? GONE. As Eric Erickson put it: We’re all playing poker. Roberts is playing chess. (2) The decision is done — it’s the law– whining about it doesn’t change a damn thing. Roberts threw those who don’t like it a real slow, brightly colored ball to hit if we don’t like it: vote those who passed it out. And that, in my final lesson in civics for the day, is exactly how it has always worked if we don’t like a decision by the SCOTUS – get our elected representatives to legislatively “overrule” it.

Also, from our highly-esteemed WMCB:

Repeal Obamacare

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Election day is November 6th.

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BREAKING NEWS – OBAMACARE RULED CONSTITUTIONAL

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The U.S. Supreme Court ruled that the insurance mandate in the Affordable Care Act is constitutional.

Today is the big day!

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Shortly after 10 am Eastern time today the fate of Obamacare will be announced.

I’m gonna go out on a limb and predict that SCOTUS will strike down the mandate as unconstitutional. That’s a death sentence even if they don’t throw out the rest of the Affordable Care Act.

I freely admit that I may be guilty of wishful thinking. I think Obamacare is a bad program and Congress needs to start over and do it right. Either way it will not be good for Obama.

There are a lot of opinions flying around about this topic, but like I said a long time ago there are only five opinions that count. Those five opinions belong to whoever makes up the majority of the Supreme Court decision.

Supreme Court justices serve as long as they want to. They can’t be fired, and though technically they can be impeached as a practical matter they are untouchable. We can’t even cut their pay.

They are literally a law unto themselves. They make their own rules and follow or ignore those rules as they please. They aren’t bound by precedent, and they have on more than one occasion reversed earlier rulings. The rules of ethics don’t apply to them.

They choose what cases they will hear and ignore the rest.

But they are, by far, the smallest branch of our federal government. They have no means of enforcing their rulings. Besides themselves they have only some clerks and administrative staff, as well as some bailiffs to protect them and keep order.

So why do we listen to them?

Tradition. Because the system works, mostly. Because nobody has come up with a better way.

Thomas Paine said, “In America the law is king.” Those nine black-robed justices are the king’s high priests. Or, as the late Justice Robert H. Jackson once said, “We are not final because we are infallible, but we are infallible only because we are final.“

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Ezra Klein is an idiot

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Ezra Klein:

How Republicans made it possible for the Supreme Court to rule against the mandate

But permission structures aren’t just for elections. Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the Commerce Clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act.

The first step was, perhaps, the hardest: The Republican Party had to take an official and unanimous stand against the wisdom and constitutionality of the individual mandate. Typically, it’s not that difficult for the opposition party to oppose the least popular element in the majority party’s largest initiative. But the individual mandate was a policy idea Republicans had thought of in the late-1980s and supported for two decades. They had, in effect, to convince every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty.

[...]

When this campaign began, it was unthinkable that the Supreme Court would indulge it, even if some on the Supreme Court were sympathetic to its aims. “There is a less than one-per-cent chance that the courts will invalidate the individual mandate,” Kerr said at the time. Today, it’s entirely thinkable that the Supreme Court will indulge it, and that means that the members of the Supreme Court, who care deeply about protecting their institution’s legitimacy, are free to rule in whichever direction they want. We’ll find out what direction that is on Thursday.

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Unthinkable? Ezra really needs to get out more. There were a lot of people (myself included) who thought the Obamacare mandate was unconstitutional right from the start.

This kinda pisses me off because Ezra is impugning my profession. I actually have a lot of respect for judges. SCOTUS may be a lot of things but they generally aren’t political. Ideologues, yes, political no.

I’m not saying I always agree with their decisions, because I don’t. Right now we have four SCOTUS justices that are very conservative and another that is moderately conservative. That’s no secret. But how come no one ever questions the integrity of the four “liberal” justices?

What lawyers want from judges more than anything else is consistency. In a given set of circumstances you want to know what the judge will do. That way you can make plans and give good advice.

Right now the only inconsistent SCOTUS justice is Anthony Kennedy. He is usually the swing vote in every 5/4 decision.

US v. Lopez, 514 U.S. 549 (1995) was the first SCOTUS decision since the New Deal to set limits to congressional power under the Commerce Clause of the Constitution. Kennedy, Scalia and Thomas were all part of the majority in that decision.

If SCOTUS strikes down all or part of Obamacare it will be because they decided it was in excess of the Commerce Clause. If SCOTUS upholds the individual mandate it will extend congressional power farther than ever before. Either way, it will have nothing to do with any “campaigns.”

BTW – John W. Smart stole this post from me and posted it first.

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Fool me once, won’t get fooled again

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David “Spoony” Atkins:

No one is going to save you fools, again

Here we go again.

We now know that the Obama Administration traded away the public option in order to gain support from the hospital industry for the Affordable Care Act. And we know that it traded away, among other things, the importation of cheaper drugs to PhRMA in order to secure their support for the bill.

Some of these details were known long ago, of course. Good policy was scuttled in order to secure industry support. The question is why it was done, and whether it could have been done any other way.

[...]

The Affordable Care Act barely squeaked through with a minimum number of votes as it was. Had either PhRMA or the hospital industry come out against the bill to the tune of hundreds of millions of dollars in ads against those who considered voting for it, it would never have had a prayer of passing. The blessing of PhRMA and the hospitals was a necessary condition for the passage of any bill, which is part of why single-payer was never on the table in the first place.

Replacing Barack Obama with a “stronger progressive” won’t solve this problem, because the problem lies with the system, not with the person in the Oval Office.

The power to defeat PhRMA and the hospitals won’t come from the top down. It will come in two ways: 1) from the bottom up via progressives rolling them over state by state; and more importantly 2) through campaign finance reform that prevents them from threatening the careers of every politician in Washington if they don’t get their way.

[...]

What we do about that is up to us. It’s not entirely clear what the strategies for success will be, but the strategies for failure are obvious: waiting for a progressive savior who will never come because the structures of politics no longer allow it, and assuming that decentralized and disorganized angry people power will magically bring about change.

It’s going to be a long, hard slog. And it’s going to take organizing on a variety of fronts, chief among them campaign finance reform, that don’t seem to immediately impact the problem. But if one wants to cure a disease, it’s important to treat the underlying problems, not just the symptoms. But no one is going to save us from this morass but ourselves.

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Been there, done that, Dave.

We organized. We saw the value of the internet and formed online communities. We blogged, we donated, some of us went to Yearly Kos/Netroots. Then one day a small clique of online activists decided they were smarter than everyone else and that democracy was too inefficient to accomplish their goals. They decided that Obama was The One, and that those evil Clintons and their low-information supporters needed to be purged from the Democratic party.

You were one of those online activists, Dave. So was your blog-mate Digby. We were the people you screwed over.

So fuck off, Dave.

Cordially,

The Klown

p.s. You guys sold us out during the heath care reform debate too – you decided that single payer wasn’t doable so you put all your effort into the public option – just like Obama told you to do. He fucked you over the same way you fucked us over.

With a track record like yours, I’d be too embarrassed to be giving anyone advice. Especially to the people who were right all along.

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Obamacare sucks

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The Atlantic:

If Obamacare Is Overturned, Can Democrats Recover?

There’s a reason liberals are freaking out about the Supreme Court this week.

If part or all of the health care reform law is thrown out, a central goal of the progressive project will have been dealt a possibly fatal setback. The dream of universal health care — pursued for decades, frustrated again and again — that seemed finally to have come to fruition in 2010 will have been derailed before it could even be fully implemented. For liberals and their allies, it will be a crushing blow from which there is no easily foreseeable recovery.

“It would be a particularly bitter pill to swallow to get [health care reform] all the way through the legislative process and, because of the partisan leanings of five people who happen to be justices of the Supreme Court, not get universal health care,” said Neera Tanden, president of the Center for American Progress and a former Obama administration adviser who helped see the bill through Congress.

[...]

Opponents of the law agree: This is universal health care’s Waterloo.

“This was their one big shot. They certainly thought so. They pulled out all the stops,” said Douglas Holtz-Eakin, a conservative economist and president of the American Action Forum, which has filed court briefs in opposition to the health care law. Already, he said, the law was on shaky ground. “The vast public rejection of the law, its broad unpopularity, the fact that so many Republicans were elected on it in 2010, the fact that so many states are rejecting it — really, it wasn’t looking strong,” he said.

Through all that, liberals took solace in the fact that at least the legislation was on the books, moving inexorably toward implementation; eventually, they were convinced, Americans would grow used to the new system, come to depend on it, and become unable to imagine life without it.

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I really love the idea that Obamacare is the realization of liberal dreams. Liberals wanted single payer. But my favorite part is the idea that people would learn to love it. That was what my step-father said about broccoli.

Forget the legal arguments. Obamacare is the most unpopular legislation ever enacted, and it hasn’t even taken effect yet. Even its supporters wanted something better. If it is upheld it will be an albatross around Democratic necks for a generation. Democrats should be grateful if SCOTUS saves them from themselves.

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Judicial review under attack

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King Barack’s loyalists are threatening one of the last roadblocks to the absolute right of POTUS. Earlier in his reign they were advising that He should ignore Congress and act as He pleased. Now they are trying to undermine the independence of the Supreme Court.

Jonathan Cohn at The New Republic:

Obamacare Is On Trial. So Is the Supreme Court.

Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act.

Now something else is at stake, too: The legitimacy of the Supreme Court.

Nobody knows how the justices will rule. And nobody can know, not even the justices themselves. On Friday morning, perhaps by the time you read this, they will meet privately to take their first vote. More often than not, this first vote determines the final verdict. But there are exceptions and Anthony Kennedy, on whose decision the outcome presumably depends, has a reputation for long deliberation and changes of heart—particularly in major cases like this one.

That’s good. With the result apparently in doubt—smart money still says the chances of the full law surviving are about 50-50—Kennedy should think long and hard about how he wants the Court to rule. So should Chief Justice John Roberts, who appeared more skeptical of the government’s case during oral arguments but nevertheless indicated that he, like Kennedy, understood the government’s premise—that health care was a special market, perhaps requiring special intervention.

If that concern is not enough to sway the chief justice, than perhaps his frequently professed concern for the court’s respectability will.

Even now, I have trouble wrapping my mind around what I saw in the courtroom this week and what a majority of the justices may be contemplating. Kennedy’s second question, the one that so unnerved supports of the law, was whether the government had “a heavy burden of justification to show authorization under the Constitution.” But the heavy burden in this case is on the justices threatening to strike down health care reform. They have not met it.

Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key repsects, they were different from a potential ruling against the Affordable Care Act.

Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities—in these cases, state legislators who’d passed laws enforcing segregation and prohibiting abortion. The justices’ authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.

Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four—a bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.

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That’s an interesting idea – requiring super-majority or unanimous decisions before the Supreme Court can rule that something is unconstitutional. Cohn is not alone – the Obot meme of the weak seems to be that SCOTUS is risking its own legitimacy if it dares to declare Obamacare to be unconstitutional.

The Judiciary branch is supposed to be an independent and co-equal branch of government. For good or ill, many SCOTUS decisions through history have been nakedly political. Nonetheless, we consider SCOTUS to be the final arbiter and court of last resort. In the words of the late Justice Robert H. Jackson, “We are not final because we are infallible, but we are infallible only because we are final.“

The issue as to whether Obamacare is constitutional is not frivolous.

Marbury v. Madison (my emphasis):

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

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Those of you who stayed awake in civic class may recall that Marbury v. Madison is that case that established to concept of judicial review in American jurisprudence. There is a reason that federal judges and justices are appointed for life (subject to impeachment) – to remove them from the effects of politics. What King Obama and his minions are trying to do is apply political pressure to the court.

Back in 2000 I was stunned and dismayed by the Supreme Court’s ruling in Bush v. Gore. But at the same time I took pride in the way my country reacted. We peacefully but unhappily accepted the ruling and moved on. How many nations would have seen bloody riots or even civil war in the same situation?

The Supreme Court slowed down but did not stop the New Deal and the Civil Rights Movement. Even now the Democrats are just one vote shy of a 5-4 majority. Do we really want to change a system that has worked so well for so long just for Obamacare?

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So, about that war on women…

If you thought the contraception debate was about expanding or protecting women’s existing right to reproductive health care, think again. If you were waiting for the other shoe to fall, congratulations. You are not blinded by your own bias and can see clearly and painfully exactly how much the left, especially the new Democratic constituencies attracted under Obama, care about the signature women’s issue according to left-centered feminists. Which is to say they do not care at all. Women, you have served your purpose, and it is time for reassignment back under the bus. Contraception coverage, decided and issued just over a month ago, is already up for review:

Taking a conciliatory tone and asking for a wide range of public comment, the Obama administration announced this afternoon new accommodations on a controversial mandate requiring contraceptive coverage in health care plans.

Coming after a month of continued opposition from the U.S. bishops to the mandate, which was first revised in early February to exempt certain religious organizations, today’s announced changes from the Department of Health and Human Services make a number of concessions, including allowing religious organizations that self-insure to be made exempt.

Note that they are asking for public comment. It would be irresponsible for organizations such as NOW, Emily’s List, and NARAL to remain silent on this. I expect to see a big fundraising push to raise awareness about this issue. There’s a war on women, for goodness sakes! And women must fight the good fight! I’m waiting for it. I’m just sure it’s going to happen…

But wait. There’s more!

About that new student rule, which Sandra Fluke fought so hard for, and for which she suffered so much indignity, may not be as permanent as she would like, or as immediate. The proposal suggests ways that universities can easily skirt the rules. It’s so nice of the Obama administration to publish the loopholes at taxpayer expense so that these universities don’t have to pay lawyers to figure it out themselves. Obots are right that Obama is like Jesus in one sense: The lord giveth and he taketh away.

News of the changes also came as a separate ruling on student health insurance coverage was announced by the Department of Health and Human Services this afternoon. Under that ruling, health care plans for students would be treated like those of employees of colleges and universities — meaning the colleges will have to provide contraceptive services to students without co-pay.

Religiously affiliated colleges and universities, however, would be shielded from this ruling, according to a statement from the HHS.

“In the same way that religious colleges and universities will not have to pay, arrange or refer for contraceptive coverage for their employees, they will not have to do so for their students who will get such coverage directly and separately from their insurer,” the statement said.

I’d be very curious to learn what Fluke’s opinion is of this specific issue, and the other reproductive health proposal (both linked in the article above) overall. If she or anyone else participating in the debate on the pro-contraception side can support this, it does raise some questions. Most notably: So, it’s okay (to segregate medical care by gender) if you’re a Democrat? I wonder if it will even be an issue, if any self-labelled feminist of the progressive/liberal persuasion will comment on it at all. I’m guessing not if the last three years are any indication. I mean, who cares if Obama’s health care plan segregates women’s reproductive health care, or if it rolls back EEOC rulings that have stood for 12+ years? He’s the coolest m*therf*cking feminist president evah!

Cross-posted from P&L.

Sexism & Subtext in the Fluke-Limbaugh Incident

Cross-posted by request.

Talking about the events surrounding Sandra Fluke’s experiences on Capitol Hill and Rush Limbaugh’s subsequent disparaging comments and complete mangling of the issues is difficult, indeed. It seems that the original issues–women’s reproductive health and the segregation of it, as well as religious liberty–have been all but forgotten as familiar tribes have lined up along their well-trod trenches. The arguments now are about which side is waging more war against the women of the other side. At least we’re getting close to some truth-telling, finally, but I doubt it will do any good. Feminism, progress for women, women’s rights, whatever name you call it by, is now just another set of boxing gloves with which to beat up the other side. Each side is unshakable, unwilling to accept the critiques of their own side while perfectly willing to hurl critiques at the other side, displaying what might in other words be called hypocrisy.

The problem with this is that there can be no consensus, even as both sides seem to be agreeing that calling women sexually charged names and digging into their personal lives to find discrediting information that is wholly unrelated to the issue(s) at hand is a terrible, sexist thing to do, that it’s meant to be intimidating. Meanwhile, the discussion has been happening at the most publicized levels by a group of largely male reporters and commentators, some of whom are themselves guilty of similar disparaging comments and acts. When you look at news aggregator sites like Memeorandum over the last several days, it’s not the articles the women are writing that are populating the top half of the page. And this line of stories has dominated for going on five days now. With the all around intractability of the political classes and their respective bases, can any good come from continuing to rehash it?

I don’t know. There may be something to be said for repeatability, something Cynthia Ruccia has been writing about lately. Maybe if both sides keep screaming at each other, if the likes of Rush Limbaugh keep calling women sluts while the likes of Jerry Brown keeps calling women whores, and we keep being forced into conversations about it, something will change. I’m a bit skeptical, if only because I know how insidious and manipulative the discourse over women’s rights and progress has been for decades. I have been an advocate of the emerging feminism on the right, largely because I believe the battle for women’s progress will necessarily involve women from all walks of life, and because I think that many conservative women model feminist ideals very well, balancing family and jobs, and political duties and activism, and that’s practical and valuable. I also think it has expanded the dialogue about what feminism should mean, specifically to include economic and national security issues, and that strengthens feminism. We can’t keep complaining forever that we are treated with respect to our biology if we continue to frame our progress solely on the basis of biology. But I don’t want a conservative brand of feminism to mirror what’s happened with the close-minded thinking and abusive/coercive verbal style of so many feminists and their orgs on the left (see Malkin’s article for a run-down of examples). And that is, quite frankly, what appears to be happening.

A slew of recent articles by conservative women or those who are sympathetic to conservative women have pointed out the gross hypocrisy of the outrage from a left that created and marketed products like “Bros before Hoes” and “Sarah Palin is a C*nt” t-shirts in 2008, as well as specific and recent examples of controversial comments made by some of the premier cultural contributors on the left, including old stand-bys like Bill Maher, Keith Olbermann, and Chris Matthews, as well as the acknowledged leadership of left-feminism such as Gloria Steinem, Patricia Ireland, and Naomi Wolf. And this is all good and well and worth pointing out, but where is the compassion? Why does only Malkin’s article start out with an acknowledgement that what Limbaugh said was wrong, which she promptly takes back by calling Fluke a “femme-a-gogue.” The points would be better made if the articles started out with the argument that, yes, it’s sexist to use verbiage and rhetoric like Rush Limbaugh did, and that’s WHY these examples should resonate with the folks on the left who do care about progress for women. And the lack of denunciation leaves one with a sick feeling that this may be a defense of Rush, instead of an indictment of our commonly accepted sexist discourse.

The left has not been any better.

Another misogynist Republican

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Oh, wait – she’s a Democrat:

I Wouldn’t Have Voted for Obamacare If I’d Known About HHS Regulation

Former Democratic congresswoman Kathy Dahlkemper, a Catholic from Erie, Pennsylvania, cast a crucial vote in favor of Obamacare in 2010. She lost her seat that November in part because of her controversial support of Obamacare. But Dahlkemper said recently that she would have never voted for the health care bill had she known that the Department of Health and Human Services would require all private insurers, including Catholic charities and hospitals, to provide free coverage of contraception, sterilization procedures, and the “week-after” pill “ella” that can induce early abortions.

“I would have never voted for the final version of the bill if I expected the Obama Administration to force Catholic hospitals and Catholic Colleges and Universities to pay for contraception,” Dahlkemper said in a press release sent out by Democrats for Life in November. “We worked hard to prevent abortion funding in health care and to include clear conscience protections for those with moral objections to abortion and contraceptive devices that cause abortion. I trust that the President will honor the commitment he made to those of us who supported final passage.”

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Where do I start? Her naivete in trusting Obama? The idea that religions can impose their views on standards of medical care? (Imagine if we let the Christian Scientists do that.)

Or the fact that all pro-lifers aren’t GOPers and/or men?

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Prognosticatin’

"I see an asshat taking the oath of office . . ."

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So what’s gonna happen next November and beyond?

First, let’s talk about what’s NOT gonna happen.

The Democrats are not going to regain control of the House. The math just isn’t there. They might pick up a few seats, but not nearly enough to regain control. They are currently down 50 seats (242-192) which means they would need to pick up 26 seats. Unless things change there just aren’t that many in play.

Secondly, let’s talk about what is almost certain to happen:

The Republicans will take control of the Senate. They only need a net gain of four seats, and the Democrats have to defend 23 seats to the Republican’s 10. Even worse, several of the current Democratic seats were part of the 2006 tidal wave that put the Democrats in power. Those seats normally trend GOP and the Republicans only need to get half of them back.

Now here’s what might happen:

Obama might win reelection.

I’m not saying he will. In fact, he really shouldn’t have a chance. But he does. Let’s assume for a moment he succeeds.

Obama is not going to morph into a progressive hero. He wasn’t one before when the Democrats controlled both the House and Senate, and there is no reason to think he’ll change now. He’ll be a lame duck facing a GOP-controlled Congress. They’ll pass what they want, and the only question is how much of it he’ll veto.

My guess will be not much.

Obamacare will start taking effect. If you think it’s unpopular now, just wait. This will be one area where Obama will use his veto pen – he won’t allow the GOP to repeal his signature achievement. This won’t help the Democrats in 2014 and 2016.

Other than that we’ll basically see four more years of the same old, same old. Even if the economy improves it will be unlikely that the voters will be willing to give the Democrats four more years in the Oval Office in 2016.

Next chance will be 2020, more likely 2024.

Obama could lose.

This is more likely, no matter who the GOP nominee is.

Right now I would have to say that the most likely nominees are Mitt Romney and Newt Gingrich. Gingrich is more likely to win the nomination, but Romney is more likely to beat Obama.

Regardless of which Republican is the nominee, if they win you can expect a full-out effort to repeal Obamacare, “reform” Social Security and Medicare, and a lesser effort to make cuts in government spending.

This is actually the best long-term outcome for the Democrats liberals and progressives.

When Reagan ran for president he promised to cut taxes and spending. Once he took office one of the first things he did was cut taxes. But when he tried to cut spending he ran into a buzz saw.

Every piece of government spending has a constituency. There is only so much “waste, fraud and abuse” that can be cut. The really big-ticket spending programs are taboo.

Military spending? Military retirees? Old people? Children?

If anyone tries to do anything more than tinker with Social Security and Medicare they’ll find out (like Ronnie did) why it’s called “the third rail of American politics.”

Anything the Republicans do to cut spending will anger lots of voters, including a big chunk of their own base. Everybody wants government spending cut, except for their own programs. Remember the Tea Partiers with signs that said “Government hands off my Medicare?”

Here’s the bad news:

Things have to get worse before they’ll get better. Remember when the Republicans controlled Washington. That was only a few years ago. They had Congress and the White House, plus a majority of the Supreme Court.

The voters were so impressed they voted the Democrats back into power in 2006-2008. But the Democrats blew it. Seriously, it was like they were determined to sabotage themselves. They didn’t try to end the wars in Iraq and Afghanistan. They didn’t investigate Bush-Cheney lawbreaking. They shoved Hillary aside for an empty-suit puppet of Wall Street.

If the Republicans take full control next year, things will get worse. Actually, they’re gonna get worse either way. But if the Republicans are in charge they’ll get all the blame.

The question is, when the Democrats get another chance, will they choke again?

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Two years too late

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Occupy Protesters Interrupt Chamber Of Commerce Health Care Event

Protesters disrupted a U.S. Chamber of Commerce event on health care today, interrupting speaker Scott Serota, the CEO of Blue Cross & Blue Shield. Chanting “we are the 99 percent,” the protesters stood at the luncheon event and used a “human microphone” technique to read a statement about how the “the one percent in the health care industry” is only interested in profit “at the expense of human suffering and preventable death.” The protesters decried the influence that the health insurance industry wielded in the debate over the Affordable Care Act, and called for “Medicare for all” or a “single payer health system.”

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Wrong forum, wrong date. They should have been protesting in Washington a couple years ago.

Meanwhile:

Supreme Court to Hear Case Challenging Health Law

The Supreme Court on Monday agreed to hear a challenge to the 2010 health care overhaul law, President Obama’s signature legislative achievement. The development set the stage for oral arguments by March and a decision in late June, in the midst of the 2012 presidential campaign.

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I’m not going to make any predictions on the outcome, but whichever way it goes will be bad for Obama.

If Obamacare is upheld, it will remind people about the most unpopular piece of legislation since . . . uh, . . . forever. Even Prohibition was popular when it first passed.

On the other hand, if it is struck down it will be a stinging defeat for Obama’s signature policy achievement.

That’s why Obamanation is praying that Mitt Romney is the GOP nominee.

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