Commentary Magazine


Topic: individual mandate

Latest Exemption Shows OCare Unraveling

Only a few months ago, the White House and Democrats scoffed when Republicans suggested that the implementation of ObamaCare be postponed in order for the government to understand exactly what it was foisting upon the country. Nothing could stop the administration’s determination to roll out the president’s signature health-care legislation on time. All liberals and some conservatives as well were convinced that once it began, the debate about its wisdom would cease as the extension of benefits would make it as universally popular as Social Security and Medicare. But though the White House is still insisting that all will come right in the end, they may be wishing they had taken the GOP’s offer. In the latest example of the problems the administration has encountered in trying to make ObamaCare work, it announced late yesterday that yet another aspect of the law will be delayed. As the New York Times reports:

Millions of people facing the cancellation of health insurance policies will be allowed to buy catastrophic coverage and will be exempt from penalties if they go without insurance next year, the White House said Thursday night.

Kathleen Sebelius, the secretary of health and human services, disclosed the sudden policy shift in a letter to Senator Mark Warner, Democrat of Virginia, and five other senators. It was another effort by President Obama to cushion the impact of the health care law and minimize political damage to himself and Democrats in Congress who adopted the law in 2010 over solid Republican opposition.

The decision is an attempt to shield Democrats from voter outrage about the impact of the law until after the 2014 midterm elections. But while beleaguered Democrats are happy of any reprieve, however belated, the decision comes too late to avoid adding to the general public impression of the rollout as a disaster that doesn’t seem to get better despite repeated White House promises that the worst is behind them. Taken as a whole, the list of exemptions and delays in the implementation of the misnamed Affordable Care Act is leaving the country asking what exactly were all the geniuses in the West Wing and the Department of Health and Human Services doing during the two years between the bill’s passage and the start of this fiasco?

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Only a few months ago, the White House and Democrats scoffed when Republicans suggested that the implementation of ObamaCare be postponed in order for the government to understand exactly what it was foisting upon the country. Nothing could stop the administration’s determination to roll out the president’s signature health-care legislation on time. All liberals and some conservatives as well were convinced that once it began, the debate about its wisdom would cease as the extension of benefits would make it as universally popular as Social Security and Medicare. But though the White House is still insisting that all will come right in the end, they may be wishing they had taken the GOP’s offer. In the latest example of the problems the administration has encountered in trying to make ObamaCare work, it announced late yesterday that yet another aspect of the law will be delayed. As the New York Times reports:

Millions of people facing the cancellation of health insurance policies will be allowed to buy catastrophic coverage and will be exempt from penalties if they go without insurance next year, the White House said Thursday night.

Kathleen Sebelius, the secretary of health and human services, disclosed the sudden policy shift in a letter to Senator Mark Warner, Democrat of Virginia, and five other senators. It was another effort by President Obama to cushion the impact of the health care law and minimize political damage to himself and Democrats in Congress who adopted the law in 2010 over solid Republican opposition.

The decision is an attempt to shield Democrats from voter outrage about the impact of the law until after the 2014 midterm elections. But while beleaguered Democrats are happy of any reprieve, however belated, the decision comes too late to avoid adding to the general public impression of the rollout as a disaster that doesn’t seem to get better despite repeated White House promises that the worst is behind them. Taken as a whole, the list of exemptions and delays in the implementation of the misnamed Affordable Care Act is leaving the country asking what exactly were all the geniuses in the West Wing and the Department of Health and Human Services doing during the two years between the bill’s passage and the start of this fiasco?

The list of ObamaCare delays is impressive. As the Times noted in the conclusion of their article about the latest one:

The move Thursday followed delays in many other parts of the health care law.

On July 2, the White House abruptly announced a one-year delay, until 2015, in a provision that requires larger employers to offer coverage to their workers or pay penalties. 

On Nov. 27, it deferred a major element of the law that would allow small businesses to buy insurance online for their employees through the federal exchange.

Earlier, in April, the administration said that the federal exchange would not offer employees of a small business the opportunity to choose from multiple health plans in 2014.

And in October 2011, the administration scrapped a long-term care insurance program created by the new law, saying it was too costly and would not work.

Each of these moves, if taken in isolation, might be defended as the exception to the rule of a smooth rollout. But taken together, it’s difficult to avoid the conclusion that what we are witnessing is the slow-motion unraveling of a hubristic and complicated big government plan whose consequences weren’t fully thought out by an administration whose sole focus was putting it in place before it could be stopped by Republicans.

But the problem here is more than just a matter of perceptions, though the decision not to mention the move during a press briefing yesterday and then to reveal it later in what was obviously an end-of-week news dump shows the administration knows all too well how badly they are losing the battle to brand their plan as anything but a costly failure. By waiting until only days before the deadline for consumers to purchase insurance without facing a fine, the government burned those who previously purchased more costly and often unwanted plans. It also is a slap at insurance companies that were forced to cancel the plans that millions of Americans preferred as a result of the ObamaCare fiat.

While the belated move will help some, it also makes it a given that, as Republicans have predicted for months, the number of Americans who lost their coverage as a result of ObamaCare will far exceed the number of those who signed up for the ACA via the government or the state exchanges. It now is highly unlikely that there will be anything like the number of people in the program that will be needed to make the plan work. Without vast numbers of younger, healthy people or former individual insurance consumers in the exchanges, there won’t be enough in it to pay for the elderly, poor, or those with pre-existing conditions that the plan was designed to help. That means that those who have been sucked into it will likely face far higher costs than the already expensive plans and exorbitant deductibles than even the government was planning to provide:

Insurers, already struggling with problems caused by the chaotic debut of the federal insurance exchange in October, expressed surprise and dismay.

“This latest rule change could cause significant instability in the marketplace and lead to further confusion and disruption for consumers,” said Karen M. Ignagni, the president of America’s Health Insurance Plans, a trade group.

Another insurance executive said that insurers had not expected a significant number of people over 30 to enroll in catastrophic plans, so their costs were not factored into the premiums.

Moreover, the executive said, the exemptions undermine the requirement for people to have coverage. That requirement, often called an individual mandate, is needed to guarantee that insurers attract young healthy people to help offset the costs of covering older Americans who require more medical care, insurers say.

Democrats continue to insist that once the bumps are smoothed out opposition will cease. But as we continue to learn, the problem with ObamaCare isn’t just a website that crashes or the lies that the president and his supporters were forced to tell Americans about the impact of the plan before it was passed. It’s that the scheme itself, which imposes government dictates on the private sector, simply wasn’t properly thought out before it was drafted or implemented. Had the president been honest and told the American people that it was a redistributionist plan that would hurt as many, if not more citizens than it helped, it would never have passed even on a straight party line vote.

More such announcements as the one handed down yesterday won’t convince the public that ObamaCare wasn’t a liberal nightmare that should never have been tried. Republicans will be asked, as they should, how they can deal with the problem of the uninsured or those with pre-existing conditions. But Democrats up for reelection anywhere but in the most blue of districts and states will continue to distance themselves from a bill that is now synonymous with incompetence. As the number of ObamaCare losers continues to grow while the ranks of those who have joined it continue to fall below expectations, the prospect of having to face the voters next year must chill the president’s party.

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Dump Sebelius to Save ObamaCare?

Health and Human Services Secretary Kathleen Sebelius has finally offered to testify before Congress next week. If she does, the grilling by the House Energy and Commerce Committee about the ObamaCare rollout will not be pretty. It’s far from clear that Sebelius will be able to supply satisfactory answers to questions about why this major expansion of government power was unveiled with an inadequate website and a system designed to crash. As Politico notes, we don’t even know if Sebelius, let alone President Obama, knows what’s wrong with it, how or when it can be fixed, how much it will cost, or why there was no backup plan prepared. As I noted last week, there are good political reasons for thinking the president is not inclined to fire Sebelius. But whether he likes it or not, she looks to be the only figure in the administration who can be called to account for the failure. And as more information starts to dribble out to answer these questions, a dynamic in which she is set up to be the sacrifice to the Washington volcano may be inevitable.

The president’s combative stance in his White House speech yesterday on the subject shows that although he professes to be angry about the situation, he’s still more inclined to vent his spleen at opponents of his signature health-care plan than at those screwing up its implementation. His position remains that the problems are mere “glitches” rather than systemic or connected to the inherent challenge of placing a portion of American health care in the hands of federal bureaucrats. This is a president who has always been reluctant to fire subordinates, no matter how incompetent they may be. Nor has he ever shown much interest in holding himself accountable for their mistakes. Thus the decision to focus on selling the wonders of ObamaCare rather than to investigate its flaws is very much in character. But once the scene shifts from the Rose Garden to a congressional hearing room, the president may find that he will rapidly lose control of this story. That will mean the White House will go back into the same scandal damage control mode that was employed with varying success when applied to the administration’s Benghazi, IRS, and spying scandals earlier this year. Unless his tech surge achieves a miraculous recovery of the faltering system, that may mean the end of Sebelius or a delay in the bill’s individual mandate, or both.

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Health and Human Services Secretary Kathleen Sebelius has finally offered to testify before Congress next week. If she does, the grilling by the House Energy and Commerce Committee about the ObamaCare rollout will not be pretty. It’s far from clear that Sebelius will be able to supply satisfactory answers to questions about why this major expansion of government power was unveiled with an inadequate website and a system designed to crash. As Politico notes, we don’t even know if Sebelius, let alone President Obama, knows what’s wrong with it, how or when it can be fixed, how much it will cost, or why there was no backup plan prepared. As I noted last week, there are good political reasons for thinking the president is not inclined to fire Sebelius. But whether he likes it or not, she looks to be the only figure in the administration who can be called to account for the failure. And as more information starts to dribble out to answer these questions, a dynamic in which she is set up to be the sacrifice to the Washington volcano may be inevitable.

The president’s combative stance in his White House speech yesterday on the subject shows that although he professes to be angry about the situation, he’s still more inclined to vent his spleen at opponents of his signature health-care plan than at those screwing up its implementation. His position remains that the problems are mere “glitches” rather than systemic or connected to the inherent challenge of placing a portion of American health care in the hands of federal bureaucrats. This is a president who has always been reluctant to fire subordinates, no matter how incompetent they may be. Nor has he ever shown much interest in holding himself accountable for their mistakes. Thus the decision to focus on selling the wonders of ObamaCare rather than to investigate its flaws is very much in character. But once the scene shifts from the Rose Garden to a congressional hearing room, the president may find that he will rapidly lose control of this story. That will mean the White House will go back into the same scandal damage control mode that was employed with varying success when applied to the administration’s Benghazi, IRS, and spying scandals earlier this year. Unless his tech surge achieves a miraculous recovery of the faltering system, that may mean the end of Sebelius or a delay in the bill’s individual mandate, or both.

The president insists that ObamaCare is working and it is just the “long checkout line” via the website that is problematic. But once Sebelius is put on the hot seat, that narrative may no longer be viable. Incompetence isn’t illegal, but it is a damning indictment of an administration whose main purpose is to expand the reach of the federal government. As with the raft of scandals that plagued the president earlier in the year (and from which the mainstream media eager to please the White House has happily moved on), if the best defense that can be put forward for misbehavior or failure is incompetence, that undermines the basic rationale of the Democrats’ efforts to entrust a big chunk of the national economy to government.

While the president was short on answers to the questions the country is asking about the problem, Sebelius won’t be able to get away with the same arrogant stance once she’s hauled in front of the various congressional committees that will want a share of the publicity. Democrats are talking as if all it will take is a few geeks pressing some buttons and the problems will be fixed. But it’s likely that the solution will be a lot more complicated and lot more time-consuming than they hope. As the weeks drag on without tangible improvements, the president may come to the conclusion that the only way to buy some more time for the program that is so close to his heart is to throw Sebelius under the bus. Though Republicans would be certain to turn the process of confirming a replacement into a nightmare, it might turn out to be a better option than stonewalling the issue. This president may believe the only acceptable scapegoats are Republicans, but Sebelius’s resignation may be on his desk long before he waves the white flag on implementing the individual mandate.

But Sebelius’s danger doesn’t scare the president nearly as much as the prospect that computer technology—his ace in the hole in two presidential campaigns—will be the undoing of his most cherished accomplishment. Make no mistake, if the tech surge doesn’t provide almost immediate relief as the January deadline looms closer, the president knows he will also have no choice but to push back the enforcement of the individual mandate. How ironic would it be if a bad computer system were to force the president to do what he vowed never to concede to Republicans? We’re still a long way from that point. But if it does happen, don’t bet on Sebelius still being around in office to see it.

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The Last Chance to Stop Obamacare

With only a little more than six weeks to go before the election, most consumers of political journalism have long since given up hoping major media outlets will write about anything but the horse race element of the story. The strategies, the gaffes, the attacks and, most of all the polls, are the main elements of coverage, as well as the topics for those of us who provide analysis. But every once in a while, we get a piece that reminds us of what all the shouting is actually about. Politico’s story published yesterday titled “Obamacare foes fear GOP losses,” is one such article. The headline may be fairly accused of stating the obvious but the story reminds the reader that the election this year is about something more than the egos of the politicians or their campaign gurus: if the Republicans don’t sweep Congress and the White House, the country will be irrevocably changed by the survival of the president’s signature health care legislation.

Obamacare isn’t the only important issue for voters to consider in November. Spending, taxes, the national debt and the related issue of entitlement reform are all crucial. So, too, are the foreign policy challenges that face the next president, a list that includes the deadly nuclear threat from Iran. But on no other issue is the choice so stark. It is, for example, theoretically possible that either Barack Obama or Mitt Romney will do what must be done to halt the debt crisis or to stop Iran. It is also possible that neither will do so. But there is no doubt that unless the GOP secures the presidency and majorities in both the upper and lower chambers of Congress, Obamacare will not be repealed. By the next midterm election, it will be too late to prevent the full implementation of the health care bill. Once that happens, dismantling the infrastructure of the new federal bureaucracy and entitlement will be beyond the capacity of even future conservative majorities. 2012 is simply the last chance to prevent the transformation of the nation’s health care and the massive expansion of government power. If that doesn’t concentrate the minds of an American people that polls tell us overwhelming favor repeal, nothing will.

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With only a little more than six weeks to go before the election, most consumers of political journalism have long since given up hoping major media outlets will write about anything but the horse race element of the story. The strategies, the gaffes, the attacks and, most of all the polls, are the main elements of coverage, as well as the topics for those of us who provide analysis. But every once in a while, we get a piece that reminds us of what all the shouting is actually about. Politico’s story published yesterday titled “Obamacare foes fear GOP losses,” is one such article. The headline may be fairly accused of stating the obvious but the story reminds the reader that the election this year is about something more than the egos of the politicians or their campaign gurus: if the Republicans don’t sweep Congress and the White House, the country will be irrevocably changed by the survival of the president’s signature health care legislation.

Obamacare isn’t the only important issue for voters to consider in November. Spending, taxes, the national debt and the related issue of entitlement reform are all crucial. So, too, are the foreign policy challenges that face the next president, a list that includes the deadly nuclear threat from Iran. But on no other issue is the choice so stark. It is, for example, theoretically possible that either Barack Obama or Mitt Romney will do what must be done to halt the debt crisis or to stop Iran. It is also possible that neither will do so. But there is no doubt that unless the GOP secures the presidency and majorities in both the upper and lower chambers of Congress, Obamacare will not be repealed. By the next midterm election, it will be too late to prevent the full implementation of the health care bill. Once that happens, dismantling the infrastructure of the new federal bureaucracy and entitlement will be beyond the capacity of even future conservative majorities. 2012 is simply the last chance to prevent the transformation of the nation’s health care and the massive expansion of government power. If that doesn’t concentrate the minds of an American people that polls tell us overwhelming favor repeal, nothing will.

Opponents say they will never stop fighting the bill. But after the unprincipled and cowardly reversal of Chief Justice John Roberts that enabled the administration to fend off a challenge to Obamacare’s constitutionality, the only plausible option is repeal. Attempts to nip at the edges of the problem via funding cuts would make implementation more cumbersome but it would not stop it. It is simply a fact that once the federal insurance exchanges are put in place and all the other elements of the new infrastructure of American health care have been established, including the personal mandate that will require individuals to purchase insurance, dismantling all of that will be impossible. The quality and the nature of health care in this country will be fundamentally altered for the worse.

Once freedom is lost to governments, recovering those rights is always an uphill climb. The erosion of personal liberty under the Obamacare regime will be great. Along with the intrusion of the government into health care policy that is the inevitable result of the legislation, the mandate to impose payment for services like abortion and contraception will change the definition of religious freedom in the United States for the worse. Liberty of conscience to refuse to pay for things that violate the religious precepts of believers will be severely restricted. Once lost, these rights may never be recovered.

Cynics are fond of saying that while the political class has much to gain and lose on Election Day, the public has little stake in the outcome. There is often a kernel of truth in this observation, but not in 2012. Obamacare means this time the life and the rights of every American will be changed by the results.

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Has the ObamaCare Ruling Given Us the Scott Brown Presidential Campaign?

When Scott Brown ran to fill the Massachusetts Senate seat vacated by Ted Kennedy, he had one overarching theme: he would cast what was then thought to be the deciding vote against ObamaCare. For all the liberal spin about his opponent running a clumsy campaign, the Senate election was the clearest referendum on ObamaCare yet. And in a liberal state, the Republican won the seat by winning the argument (or deploying the winning argument) against ObamaCare.

When the Senate Democrats used a procedural maneuver to get around the vote, Brown’s victory seemed to have been in vain. But now its value comes roaring back to Republicans–as a potential model for the presidential campaign of Mitt Romney. Now that the Supreme Court has ruled that the individual mandate may stand as a massive tax increase, Romney will deploy what was always going to be the strategy in this case: the claim that he is the last thing standing between ObamaCare and the people.

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When Scott Brown ran to fill the Massachusetts Senate seat vacated by Ted Kennedy, he had one overarching theme: he would cast what was then thought to be the deciding vote against ObamaCare. For all the liberal spin about his opponent running a clumsy campaign, the Senate election was the clearest referendum on ObamaCare yet. And in a liberal state, the Republican won the seat by winning the argument (or deploying the winning argument) against ObamaCare.

When the Senate Democrats used a procedural maneuver to get around the vote, Brown’s victory seemed to have been in vain. But now its value comes roaring back to Republicans–as a potential model for the presidential campaign of Mitt Romney. Now that the Supreme Court has ruled that the individual mandate may stand as a massive tax increase, Romney will deploy what was always going to be the strategy in this case: the claim that he is the last thing standing between ObamaCare and the people.

If Romney loses the election in November, it is doubtful the GOP would still gain enough seats in the Senate to overturn the health care reform law. And in either case, it is unlikely the GOP could take enough seats in the Senate to overturn an Obama veto. Only an election that produces a President Romney would carry with it the means to overturn the law. ObamaCare was unpopular enough for a Republican to win Kennedy’s seat in Massachusetts, and it remains deeply unpopular. Now that the Supreme Court has ruled the law’s funding mechanism to be a massive nationwide tax increase, it’s possible the law may become even less popular.

That makes Romney’s argument, in theory, stronger than Brown’s was, at least in two ways: the country is far more conservative than Massachusetts, and the law’s tax increase is so politically radioactive that it never would have passed in the first place had it been described honestly as such from the beginning. Romney may not be able to authentically recreate the style of Brown’s campaign by driving around in a pickup truck, but he may otherwise have found his blueprint.

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Killing Obamacare Could Help the President

Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.

For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.

On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.

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Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.

For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.

On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.

Yet, the death of Obamacare would lift a vast amount of uncertainty from the marketplace, and uncertainty, even more than bad news, depresses markets. As Betsy McCaughey pointed out recently in IBD, the requirement that employers with 50 or more employees provide a specified level of health insurance beginning in 2014 or pay a $2000 fine per employee will greatly increase labor costs, by an average of $1.79 an hour for each employee. That would be the biggest government-mandated labor cost hike in American history. This has made employers reluctant to hire, as their future labor costs are to a significant degree currently unknown. And those firms with nearly 50 employees have been very reluctant indeed to cross that threshold, for fear of becoming subject to the mandate.

With that uncertainty suddenly removed, there could be an immediate marked increase in hiring, leading to a fall in the unemployment rate. That would be a Godsend to the Obama campaign.

With the chattering classes collectively holding their breaths, the decision could come Monday. (Actually, I’m betting against Monday. At the penultimate sitting of the Court in June, the chief justice usually announces that the next sitting will be its last before the Court recesses for the summer. Chief Justice Roberts did not make such an announcement last Thursday, and so Monday probably won’t be the last decision day this term. The biggest decision of the year—in this case, the biggest decision in decades—is almost always announced on the last day of the term.)

But if it does come Monday and you want to get the news first, log onto scotusblog.com at ten o’clock tomorrow morning. They’ll be liveblogging the decisions being handed down at that time. The health care opinion is likely to be written by the most senior justice in the majority and so will be among the last to be announced, as decisions are read beginning with those written by the most junior justice. If Chief Justice Roberts is in the majority—which most likely means all or part of the law will be struck down—it will be announced last.

For what it’s worth, the Intrade odds as of Sunday morning are at 78.2 percent that the individual mandate will be thrown out, better than 3-to-1 and up sharply in the last few weeks.

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Reading Tea Leaves on ObamaCare

We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

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We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

That’s pretty interesting, if Roy’s third-hand sources are correct. If the Court hasn’t decided how to rule on this question, we could be waiting longer than just another week or two. The consensus among journalists and others closely following this seems to be that the ruling will come next Monday, or possibly later next week if the Court needs additional time. But there’s no deadline, and the Court can pretty much do what it wants when it comes to timing.

Roy also notes an interesting development from Justice Scalia, who released a book this week clarifying his position on a decision related to the Commerce Clause:

Wickard, [Scalia] writes, “expanded the Commerce Clause beyond all reason” by opining that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.” …

The bottom line is that if Scalia thinks Wickard was wrongly decided, he’s almost certain to vote to overturn the mandate. This isn’t a surprise based on his commentary at oral argument, but it may shed light into the thinking of Justices Alito and Roberts, who are thought to share Scalia’s precedent-oriented approach to dealing with the Commerce Clause.

After Scalia’s tough questioning during the health care arguments, it seemed highly likely that he would side against the individual mandate. But Obama administration attorneys were reportedly speculating prior to that that Scalia could be a swing vote to uphold the mandate based on his previous opinions related to the Commerce Clause. Scalia may be attempting to reconcile this in his latest book.

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Is Economic Freedom Still Imaginable?

The nation will be holding its political breath this week when the U.S. Supreme Court spends three days hearing arguments about the constitutionality of ObamaCare. Though the issue is split into three parts, the main event will be on Tuesday, as the question of whether the Commerce clause of the Constitution can be interpreted in such a manner as to allow the government to require Americans to engage in commerce rather than to merely regulate it is debated.

For most liberals, including President Obama and the Democratic majority in Congress that rammed this law down the throats of an unwilling people two years ago, the notion that there are any such limits on the power of the federal government is laughable. To be fair to them, they do have much of the history of 20th century American politics on their side. During the last century, Washington’s power has expanded to the point where there is almost nothing that can be imagined that can’t be justified by the Commerce clause. That’s why this case is so important. Barring an electoral revolution this November in which Republicans sweep both Houses of Congress and the White House, we will have lost our last chance to preserve our freedom.

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The nation will be holding its political breath this week when the U.S. Supreme Court spends three days hearing arguments about the constitutionality of ObamaCare. Though the issue is split into three parts, the main event will be on Tuesday, as the question of whether the Commerce clause of the Constitution can be interpreted in such a manner as to allow the government to require Americans to engage in commerce rather than to merely regulate it is debated.

For most liberals, including President Obama and the Democratic majority in Congress that rammed this law down the throats of an unwilling people two years ago, the notion that there are any such limits on the power of the federal government is laughable. To be fair to them, they do have much of the history of 20th century American politics on their side. During the last century, Washington’s power has expanded to the point where there is almost nothing that can be imagined that can’t be justified by the Commerce clause. That’s why this case is so important. Barring an electoral revolution this November in which Republicans sweep both Houses of Congress and the White House, we will have lost our last chance to preserve our freedom.

As with so many contemporary political debates, the two sides have been talking past each other with opponents of the law discussing the principle of individual liberty and the fear of government compulsion and the proponents merely sticking to what they see as the undeniable benefits of the law and viewing the arguments on the other side as if they were a colonial remonstrance against the Stamp Act. Never was that made clearer than in an opinion piece published in the New York Times last week by Linda Greenhouse, the paper’s longtime Supreme Court reporter.

Greenhouse summed up the liberal response to challenges to the constitutionality of the individual mandate by merely dismissing them. She acknowledges that “half the public” believes the law is unconstitutional because they think the government ought not to have so much power. But while she concedes that this is “rhetorically powerful,” she contends it is “simply wrong.” She thinks so little of the idea that we dare not give Washington such unlimited authority that she more or less laughs it off as no more than a quaint notion of a long passed era. So lacking in respect for this notion, she merely laughs it off, asserting, “There’s just no there there.”

While she attempts to “unpack” all the arguments against the mandate’s constitutionality, she hones in on one idea, that of it being “unprecedented.” And it is on that ground, she makes her fight, asserting that all good things that come from the federal government such as Social Security, Medicare and a host of other congressional acts that are intended to do great good were once “unprecedented.” Her point is that Congress and the Courts have already gone so far in enlarging the scope of government power, why should anyone be bothered by a law that forces people to buy insurance and penalizes them if they don’t?

Why indeed? If we already have a federal leviathan that can do most anything, what’s the problem with stretching the Commerce clause one more bit to allow this latest good thing that will come from Washington? Seen in that light, it’s little wonder that Greenhouse and other commentators think the conservative fussing about liberty is just “rhetoric.”

That is why the Court’s decision is so important. After going so far, it can be argued that there is no way back, but it has an opportunity in this case to stand, as William F. Buckley once described the role of the National Review as to, “stand[s] athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.”

In this case, the Supreme Court has a historic opportunity to assess the drift of liberal governance and to finally yell stop after a century of nodding its acquiescence. If it doesn’t, then we will all understand, as liberals already seem to, that there is no limit to government power. The spirit of liberal fascism that Greenhouse reflects, in which there is no imaginable way our understanding of law can be recast to one in which the government can’t do anything it likes is what the Court will really be voting on here. That’s why this case is a potential turning point in our history. It is that sobering thought should put a halt to ObamaCare.

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Health Insurance Mandate Now, Forced Loans Tomorrow?

The five and a half hours of oral argument before the Supreme Court this week are probably the most anticipated since the final days of the Watergate scandal. Barring a major unanticipated event, it will utterly dominate this week’s news out of Washington. Indeed people have been camped out since Friday in order to get one of the very few seats available to the public. (For those not inclined to sit on the street for three days to hear it directly, audiotapes of the arguments will be available each afternoon). A good summary of the cases and the players can be found here.

In 1974, as the nation hung on every word, the Court heard arguments in United States v. Nixon on July 8th, 1974, and on July 24th delivered its unanimous verdict (8-0, Justice Rehnquist, later Chief Justice, having recused himself because he had worked in the Nixon Justice Department). The verdict, denying the president’s power to assert executive privilege over tapes relevant to the case, doomed the Nixon presidency and led to Nixon’s resignation on August 9th. For those of us old enough to be around in those days, now nearly forty years ago, it was the great constitutional drama of our lives. (You can hear the oral arguments and the delivery of the decision here.)

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The five and a half hours of oral argument before the Supreme Court this week are probably the most anticipated since the final days of the Watergate scandal. Barring a major unanticipated event, it will utterly dominate this week’s news out of Washington. Indeed people have been camped out since Friday in order to get one of the very few seats available to the public. (For those not inclined to sit on the street for three days to hear it directly, audiotapes of the arguments will be available each afternoon). A good summary of the cases and the players can be found here.

In 1974, as the nation hung on every word, the Court heard arguments in United States v. Nixon on July 8th, 1974, and on July 24th delivered its unanimous verdict (8-0, Justice Rehnquist, later Chief Justice, having recused himself because he had worked in the Nixon Justice Department). The verdict, denying the president’s power to assert executive privilege over tapes relevant to the case, doomed the Nixon presidency and led to Nixon’s resignation on August 9th. For those of us old enough to be around in those days, now nearly forty years ago, it was the great constitutional drama of our lives. (You can hear the oral arguments and the delivery of the decision here.)

The present cases don’t quite rise to that level, but they are crucial nonetheless. The American political landscape will be deeply affected by the Court’s rulings on this issue. Assuming the whole issue doesn’t run afoul of the Anti-Injunction Act, the subject of Monday’s argument, the crux of the matter is whether Congress, pursuant to its power (Article I, section 8)  to regulate commerce “among the several states,” can mandate that individuals enter into a contract with health insurance providers. This will be the argument heard on Tuesday. (Wednesday’s argument will deal with the severability issue, whether a judgment against the mandate would invalidate the whole law, or just that part of it. As a practical matter, the loss of the mandate would probably make the rest of the law unworkable.)

The mandate, forcing individuals to participate in commerce, is a breathtaking enlargement of federal power under the commerce clause. If Congress can mandate this under the commerce clause, what can’t it mandate? Can we be required to buy certain types of automobiles (about the only way the Chevy Volt, it seems, can be a commercial success)?

Or how about this for a scenario. Treasury securities circulate in interstate commerce, being bought and sold by the millions every workday. So, could Congress mandate that individuals purchase treasury bonds, bills, and notes, perhaps requiring that a certain portion of 401(k)s and IRA’s be invested in treasuries? That, of course, would be tantamount to a “forced loan.”  The Romans used that technique to help finance the Punic Wars. But when King Charles I tried it early in his reign it led directly to the Petition of Right of 1628, one of the fundamental documents that make up the British Constitution and deeply influenced our own. Indeed the Third, Fifth, Sixth and Seventh Amendments of the Bill of Rights derive directly from it. The U. S. Constitution does not, however, expressly forbid forced loans.

Argentina did this a couple of years ago, forcing citizens to convert the securities in their retirement accounts into government bonds.  The Chicago way has been bad enough the last three years, the Buenos Aires way would be a lot worse.

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Majority Want SCOTUS to Scrap Mandate

The Supreme Court will hear arguments on President Obama’s health care law next week, and still an overwhelming majority of Americans say that the court should either scrap the mandate or the entire law:

This ABC News/Washington Post poll finds that Americans oppose the law overall by 52-41 percent. And 67 percent believe the high court should either ditch the law or at least the portion that requires nearly all Americans to have coverage.

The high court opens hearings on the law’s constitutionality a week from today.

The law has never earned majority support in ABC/Post polls – and this update, produced for ABC by Langer Research Associates, finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law lately; just 19 percent say the buzz has been positive. Even among its supporters, 53 percent are hearing more negatives than positives. Among opponents this soars to 88 percent.

As Chris Cillizza reports, Americans are set in their opinions on ObamaCare, which may be the big reason why Obama rarely talks about it in the context of his reelection.

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The Supreme Court will hear arguments on President Obama’s health care law next week, and still an overwhelming majority of Americans say that the court should either scrap the mandate or the entire law:

This ABC News/Washington Post poll finds that Americans oppose the law overall by 52-41 percent. And 67 percent believe the high court should either ditch the law or at least the portion that requires nearly all Americans to have coverage.

The high court opens hearings on the law’s constitutionality a week from today.

The law has never earned majority support in ABC/Post polls – and this update, produced for ABC by Langer Research Associates, finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law lately; just 19 percent say the buzz has been positive. Even among its supporters, 53 percent are hearing more negatives than positives. Among opponents this soars to 88 percent.

As Chris Cillizza reports, Americans are set in their opinions on ObamaCare, which may be the big reason why Obama rarely talks about it in the context of his reelection.

Since the law was passed, opposition has remained near the low 50s, while support has remained near the low 40s. And of course the opposition climbs higher when you specifically ask about the individual mandate.

What’s interesting is that while Obama’s most significant legislative achievement provides him with little-to-no political advantage on the campaign trail, Republicans will be able to benefit from it no matter how the Supreme Court rules. If the Court deems the law, or parts of the law, unconstitutional, then the GOP will have that as a bludgeon. And even if the Court upholds the law in its current form, there’s still widespread public opposition to the mandate. The only way to get rid of it at that point would be to replace Obama with a Republican, which would be an added incentive to vote GOP.

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