Commentary Magazine


Topic: Medicaid Services actuary

How the Court Made a Bad Bill Worse

In yesterday’s Wall Street Journal, Georgetown law professor Randy Barnett provided a concise summary of the “saving construction” Chief Justice Roberts used to uphold the Obamacare statute. By changing the requirement to buy insurance into an option to pay a penalty, and by making the Medicaid mandate on the states optional as well, the Chief Justice created a revised law he could then deem constitutional. As Prof. Barnett wrote:

By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”

So what was saved — in the cause of judicial restraint — was a statute judicially re-written, materially different from the one Congress wrote. No one knows if Congress would have passed the rewritten statute in the first place, had it been presented in the form that emerged from the Chief Justice’s opinion: the number of uninsured people covered, the financial cost of the law, and the likely impact on health care are all different from the law Congress enacted. Moreover, in the process, the Chief Justice endorsed a new shared responsibility payment power for Congress that we may see again in the future.

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In yesterday’s Wall Street Journal, Georgetown law professor Randy Barnett provided a concise summary of the “saving construction” Chief Justice Roberts used to uphold the Obamacare statute. By changing the requirement to buy insurance into an option to pay a penalty, and by making the Medicaid mandate on the states optional as well, the Chief Justice created a revised law he could then deem constitutional. As Prof. Barnett wrote:

By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”

So what was saved — in the cause of judicial restraint — was a statute judicially re-written, materially different from the one Congress wrote. No one knows if Congress would have passed the rewritten statute in the first place, had it been presented in the form that emerged from the Chief Justice’s opinion: the number of uninsured people covered, the financial cost of the law, and the likely impact on health care are all different from the law Congress enacted. Moreover, in the process, the Chief Justice endorsed a new shared responsibility payment power for Congress that we may see again in the future.

In the current issue of Commentary, Tevi Troy in “The ObamaCare Debacle Deepens” demonstrates that:

Quite simply, the Roberts opinion took a bad bill and made it worse. If ObamaCare continues to exist in the form Roberts has devised, with much of the mechanism for funding its requirements stripped out, the consequences for the country and for our health-care system may be even more disastrous than they would have been had the problematic law simply been allowed to stand as it was.

But at least the Chief Justice preserved the reputation of the Court from criticism for judicial activism — what a former University of Chicago law school lecturer alleged would have been “an unprecedented, extraordinary step” if it were to “somehow overturn a duly constituted and passed law.”

The fear of such criticism may have been exaggerated: the same week that the Court upheld Obamacare, it overturned a total of 32 out of 33 state and federal statutes — every one of them a duly constituted and passed law. The Court’s reputation apparently suffered no significant damage from enforcing the Constitution in those cases, and in retrospect if might have been better, as Tevi Troy’s essential article shows, if the Court had applied the Constitution to the 33rd as well.

 

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Flotsam and Jetsam

Robert Reich doesn’t like ReidCare: “If you think the federal employee benefit plan is an answer to this, think again. Its premiums increased nearly 9 percent this year. And if you think an expanded Medicare is the answer, you’re smoking medical marijuana. The Senate bill allows an independent commission to hold back Medicare costs only if Medicare spending is rising faster than total health spending. So if health spending is soaring because private insurers have no incentive to control it, we’re all out of luck. Medicare explodes as well.”

Others don’t like it either. The Centers for Medicare and Medicaid Services actuary say it will increase health-care spending by $234B. And Sen. Bill Nelson says its a “non-starter.”

Ten senators write a letter complaining to Harry Reid about the deal, which doesn’t seem like it’s a deal at all.

Rasmussen tells us that Harry Reid trails all GOP challengers: “For now at least, his championing of the president’s health care plan appears to raise further red flags for the Democratic incumbent. Fifty-four percent (54%) of Nevada voters oppose the plan, while 44% favor it.”

Maybe that is Obama’s problem too: “Excluding the Rasmussen and Gallup overnight tracking polls, there have been seven major national surveys released this week. President Obama has recorded an all-time low job approval rating in six of the seven.”

Not good: “The last person to know that Sen. Max Baucus wanted a divorce may have been his wife of 25 years. It appears that Wanda Baucus was in the dark even as a member of Baucus’s staff — Melodee Hanes, the woman who is now his live-in girlfriend — was plotting out the senator’s life without a wife.” And it turns out Hanes got a political appointment at the Justice Department. Maybe it is time for him to go. “Say what you want about Republicans, but they have a much better sense than their opponents of when it’s time to grab one of their own and throw him off the sled to the wolves running behind.”

Makes you wonder what Chris Dodd was thinking when he asked for his help: “Vice President Joe Biden said Friday that Sen. Chris Dodd (D-Conn.) is ‘getting the living hell beat out of him, the living bejesus beat out of him.'”

An inconvenient poll: In the latest Ipos Public Affairs poll, 52 percent of adults think global warming isn’t happening or is happening mostly because of natural patterns while only 43 percent think it is due to human activity.

A very smart move Republicans should support: “U.S. President Barack Obama told lawmakers in private talks this week that he supported moving forward on stalled free trade deals with Colombia, Panama, and South Korea.”

If you loved Orin Hatch’s Chanukah tune, just wait until we get to Purim. No, really, he’s thinking about it.

Robert Reich doesn’t like ReidCare: “If you think the federal employee benefit plan is an answer to this, think again. Its premiums increased nearly 9 percent this year. And if you think an expanded Medicare is the answer, you’re smoking medical marijuana. The Senate bill allows an independent commission to hold back Medicare costs only if Medicare spending is rising faster than total health spending. So if health spending is soaring because private insurers have no incentive to control it, we’re all out of luck. Medicare explodes as well.”

Others don’t like it either. The Centers for Medicare and Medicaid Services actuary say it will increase health-care spending by $234B. And Sen. Bill Nelson says its a “non-starter.”

Ten senators write a letter complaining to Harry Reid about the deal, which doesn’t seem like it’s a deal at all.

Rasmussen tells us that Harry Reid trails all GOP challengers: “For now at least, his championing of the president’s health care plan appears to raise further red flags for the Democratic incumbent. Fifty-four percent (54%) of Nevada voters oppose the plan, while 44% favor it.”

Maybe that is Obama’s problem too: “Excluding the Rasmussen and Gallup overnight tracking polls, there have been seven major national surveys released this week. President Obama has recorded an all-time low job approval rating in six of the seven.”

Not good: “The last person to know that Sen. Max Baucus wanted a divorce may have been his wife of 25 years. It appears that Wanda Baucus was in the dark even as a member of Baucus’s staff — Melodee Hanes, the woman who is now his live-in girlfriend — was plotting out the senator’s life without a wife.” And it turns out Hanes got a political appointment at the Justice Department. Maybe it is time for him to go. “Say what you want about Republicans, but they have a much better sense than their opponents of when it’s time to grab one of their own and throw him off the sled to the wolves running behind.”

Makes you wonder what Chris Dodd was thinking when he asked for his help: “Vice President Joe Biden said Friday that Sen. Chris Dodd (D-Conn.) is ‘getting the living hell beat out of him, the living bejesus beat out of him.'”

An inconvenient poll: In the latest Ipos Public Affairs poll, 52 percent of adults think global warming isn’t happening or is happening mostly because of natural patterns while only 43 percent think it is due to human activity.

A very smart move Republicans should support: “U.S. President Barack Obama told lawmakers in private talks this week that he supported moving forward on stalled free trade deals with Colombia, Panama, and South Korea.”

If you loved Orin Hatch’s Chanukah tune, just wait until we get to Purim. No, really, he’s thinking about it.

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