The Weekly Tendown June 24-30 2012(HealthcareDown)

Sunday, July 1, 2012

Dear Internet:

That's uncharitable; Fox wasn't alone in getting the health care decision wrong, but it's a fun screenshot and, given that I just got off a plane like a second and a half ago, nuance isn't really part of my worldview.

133 was here. This is Tendown 134.

1. Jack Balkin Got It Right
I've referenced before that Balkinization is my favorite of the law professor blogs; a month ago in the Atlantic, Jack Balkin got right the grounds on which health care would be upheld.

Throughout the constitutional debate over the Affordable Care Act, most observers have assumed that the key question would be whether the individual mandate is a proper exercise of Congress's powers to regulate interstate commerce. But there has always been a second argument, largely neglected -- Congress has the power to pass the individual mandate as a tax. And that argument offers an easy way to uphold the Affordable Care Act without delving into the metaphysics of broccoli.

In fact, the individual mandate is a tax. The mandate is an amendment to the Internal Revenue Code, and it is calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger. Starting in 2014, it will be collected on your form 1040 just like your other taxes.

2. So, That Buys Him The Right to Contextualize the Decision

Some have called Roberts' opinion statesmanlike, putting aside personal ideology to apply the law. Others have called it clever, handing conservatives an ideological victory while giving Democrats a policy result they like. My own view is that the Court as a whole performed the traditional function of federal judges in our constitutional system. The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward.

What does the decision mean in terms of constitutional doctrine? Much will depend on who wins the next several presidential elections. If the Republicans dominate American politics in the decades to come, Roberts' opinion will seem much more conservative than it does now, precisely because Roberts will be assisted by a series of new conservative Supreme Court appointments. They will remake the Constitution in their own image. If the Democrats continue to hold the presidency, the Supreme Court may regain a liberal majority for the first time since the late 1960s, and the Constitution will look appreciably different. But whoever wins, health care reform is here to stay. The social contract in America has forever changed. That is the lasting legacy of President Obama's efforts, and the lasting legacy of the Supreme Court's decision.

3. A Clear Eyed Analysis of the Decision's Impact on the Commerce Clause
From the Boston Review

PK: Five justices thought that the individual mandate can’t be sustained as an exercise of the commerce power. The chief justice wrote that in an opinion for himself, and then in a rare joint opinion—usually an opinion has one justice’s name on it and others might join it or not—written by Justices Kennedy, Scalia, Alito and Thomas, those five justices all thought that the individual mandate can’t be sustained as regulation of commerce because it regulates what they view as inactivity, and the commerce clause only permits Congress to regulate commercial activity that is already in existence. And that is, I think, a major decision on the commerce clause. It has no effect in this particular case, because in this case the chief justice peeled away from that to sustain the act on taxing-power grounds. But it suggests that there are five justices who really do want to impose some limits on the commerce power, and, in a separate dissent, Justice Thomas repeated his belief that we should go back to the nineteenth-century version of commerce.
DJ: How much does that worry you, as someone who thought that the commerce clause permitted the act?
PK: In the short term, it doesn’t worry me terribly, because most of the stuff that Congress regulates is quite different, in the sense that they’re regulating either commercial actors or people who are involved in a commodity that is being bought and sold commercially. In the longer run, it suggests that the court is hostile—and the joint dissent is quite hostile—to the idea that the commerce clause is intended to be a major source of governmental power for dealing with a pervasive social problem.

4. A Reasonable Concern About Medicaid
From the Nation.

The Affordable Care Act didn’t survive entirely as passed—somewhat lost amidst the intense focus on the individual mandate was a ruling that part of the law’s Medicaid expansion was unconstitutional. The Supreme Court’s modification of the law probably won’t have a fundamental, long-term impact, but does make it easier for rogue Republican governors to exempt their states from participating in the expansion—and could cost millions of low-income, uninsured Americans a chance at government health care. 

 But would even the most right wing Republican governor turn his back on the federal funds that would flow for health care?

“We’re not going to implement Obamacare in Florida. We’re not going to expand Medicaid,” Scott told Fox News host Greta Van Susteren on Friday night. “We’re not going to do the exchange. Because what this does is raise the cost of health care for all Floridians. It just doesn’t work.”

5. Scotusblog
CNN and Fox got the health care ruling wrong.  Who got it right?

Scotusblog.  Here is its post ruling Symposium.

Here's Lawrence Tribe:  Progressive and pragmatic Americans alike have fought for decades — actually, for over a century — to extend health care to all of our country’s citizens, and at last, we are on the cusp of victory, and without compromising any of our nation’s deep constitutional commitments. I recall the moment in 2010 when it appeared all hope was lost—Democrats lost their sixtieth vote in the Senate, and the blame game for defeat had already begun.  But strategic thinking and a passionate commitment to reform gave Democrats under the bold leadership of President Obama the resolve to push the law through. Today, the Chief Justice took an equally bold step and did more than save the law—he saved an institution.

Here's Erwin Chemerinsky: Since 1937, no major federal social welfare law has been declared unconstitutional as exceeding the scope of Congress’s authority. From the late 19th century until 1936, the Supreme Court struck down many progressive federal laws – such as a prohibition of child labor and a requirement for a minimum wage – as being beyond the scope of federal power.  But that changed dramatically in 1937, with the Supreme Court proclaiming the need for deference to congressional power in providing social programs and regulating the economy.
If the Supreme Court had taken the approach urged by the four dissenters and invalidated the entire Act, it would have been something that had not been seen since the Supreme Court struck down key pieces of the New Deal in the 1930s.
 6. But That's Not Funny.
And I know you want the funny.
7. And Here's Jean Schmidt..
...acting like she just misheard the OJ Simpson verdict.
8. And Here's the Drudge Report..
...blaming the ruling on epilepsy medication.
9. And Twitter.

Right-wing author and columnist David Limbaugh

Media Research Center VP of Business and Culture Dan Gainor

Fox News Radio reporter Todd Starnes editor Ben Shapiro

Fox News contributor Sarah Palin

Right-wing author and blogger Matt Vadum

Right-wing talk radio host and Fox regular Neal Boortz

10. About Time
That's all for this time.  I'll be back next time...if there's a next time...
Your pal,

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