Obamacare: Know your enemy

posted at 9:15 am on March 28, 2012 by Steven Den Beste

“What is of supreme importance in war is to attack the enemy’s strategy.” — Sun Tzu

Which means you have to know what the enemy’s strategy is. So just what do Obama and the Democrats want out of the SCOTUS review of Obamacare (ACA)?

There are three basic questions that the Supreme Court is trying to decide.

1. Should they decide now, or wait? (That was argued on Monday.)
2. If they decide now, then is the individual mandate unconstitutional? (Today.)
3. If the mandate is unconstitutional, then is it severable from the rest of the law? In other words, if SCOTUS strikes down the individual mandate, does that invalidate the rest of the law? (Tomorrow.)

For Obama, the ideal outcome is 1. Now. 2. Unconstitutional. 3. It’s severable.

In other words, the mandate goes away but the rest of the law remains in force. That makes private health insurance economically unviable, and the insurance companies will all exit the business or they will go out of business. At which point the Democrats will try to implement “single payer”, a total nationalization of the entire health care industry, financed by a huge rise in taxes.

Single Payer is what they always wanted. The bill wasn’t originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.

If the mandate is struck down, then Congress will have to act. There won’t be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.

That’s why the arguments yesterday and today were feeble: Obama wants to lose the first and second questions. Tomorrow’s argument is about severability, and that’s the one to watch.

And it’s going to be interestiing, because Congress didn’t include a severability clause in the ACA, which is usually routine boilerplate. It was in there originally, but got removed before the law was passed. The Obama administration is going to argue that nonetheless it should be treated as if there was a severability clause, despite evidence of Congressional intent to the contrary.

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Tyranny.

jawkneemusic on March 28, 2012 at 9:18 AM

Short and to the point. I just learned something. Thx

tomg51 on March 28, 2012 at 9:20 AM

All going according to plan.

franciscodanconia on March 28, 2012 at 9:21 AM

Someone needs to pass this along, up the chain.

Logus on March 28, 2012 at 9:22 AM

…the Democrats will try to implement “single payer”, a total nationalization of the entire health care industry, financed by a huge rise in taxes.

Well, I guess they can always try.

There is no use getting all worked up about a single payer system. There has been an election since Obamacare was passed and the makeup of Congress has changed materially. Their moment has passed.

rogaineguy on March 28, 2012 at 9:24 AM

If Obama loses in Nov and the GOP wins the senate with a simple majority, why can we not repeal whatever remnants remain? If it passed via reconciliation then it can be repealed by the same method. I keep hearing we need 60 to repeal but I don’t understand that.

Also, if there was no political will to pass single payer with massive democrat majorities, why do you think it will be able to pass with a divided government or complete GOP control?

Uncledave on March 28, 2012 at 9:25 AM

Cripe

cmsinaz on March 28, 2012 at 9:26 AM

Cloward Piven strikes again. The mandate isn’t, and never was, the only constitutional problem. Repeal will still be necessary.

Upstreamer on March 28, 2012 at 9:26 AM

I keep hearing we need 60 to repeal but I don’t understand that.

It’s a senate rule.

rubberneck on March 28, 2012 at 9:27 AM

Mark Levine and Landmark Legal are on it.

parteagirl on March 28, 2012 at 9:27 AM

Single Payer is the Goal.

Bmore on March 28, 2012 at 9:27 AM

And it’s going to be interestiing, because Congress didn’t include a severability clause in the ACA, which is usually routine boilerplate. It was in there originally, but got removed before the law was passed. The Obama administration is going to argue that nonetheless it should be treated as if there was a severability clause, despite evidence of Congressional intent to the contrary.

This part reveals the flaw in your thinking about their strategery. If, from the very start, they wanted the outcome you contend, they would have made absolutely sure the severability clause was included. Either the outcome was never the plan or they are indeed the complete morons we all like to think they are.

stvnscott on March 28, 2012 at 9:28 AM

It’s a senate rule.

It’s a Senate rule that 50 can pass a bill through reconciliation by ignoring cloture, but it takes 60 to go in reverse? That doesn’t make sense.

Anyway, the GOP senate can change the rules.

Uncledave on March 28, 2012 at 9:29 AM

God help us.

Naturally Curly on March 28, 2012 at 9:30 AM

Interesting. Here’s more from Obama’s OWSer branch.

bloggless on March 28, 2012 at 9:31 AM

I didn’t realize any of this…or the strategy. Thank you.

KOOLAID2 on March 28, 2012 at 9:31 AM

Conspiracy theories are usually wrong.

I’ll take incompetence and arrogance as an explanation. These people believe they are right about everything because in their ivory tower world they’ve never been called on anything.

Vince on March 28, 2012 at 9:34 AM

If they forgot to include severability that would be one thing but they consciously removed it… I hope the court agrees that the whole thing lives or dies with the mandate.

And if it ends up living… we go on a hunt!

Ukiah on March 28, 2012 at 9:34 AM

They must destroy the current system before they can replace it.

That goes for insurance, capitalism, charity, religion and history.

Grunt on March 28, 2012 at 9:35 AM

No severability! Congress had language in the law to make it severable, and deliberately decided to take it out. What Congress did, the Court can not undo.

The law should be entirely set aside; get rid of it. For those who want a national role in paying for insurance, the message is: Start Over.

MTF on March 28, 2012 at 9:36 AM

I see them having that goal structure, but I see them having a major problem with getting the court to buy into the severabilty issue thanks to the fact that Congress removed the clause from the bill.

This was a straight “I double dog dare you” challenge to the court by Congress. They knew the bill had major Constitutionality issues, but they expected it to be popular enough that the court would feel too much heat to ever trash the entire deal.

Nathan_OH on March 28, 2012 at 9:37 AM

Stupid question: If the mandate is unconstitutional, why wouldn’t single payer be as well?

Spannerhead on March 28, 2012 at 9:38 AM

Won’t happen. As soon as taxes are not raised and the entire healthcare industry begins to implode, look for states to begin to ignore the entire law. If enough states do this, the bill is dead. This would be a good outcome as it would force a little known concept called nullification to becomes an American household word. Every American will know what it means, where it came from, that it was first used against the Fugitive Slave Act in a NE state to save a fleeing slave, and that Jefferson and Madison laid out the principles in 1778 against the Alien and Sedition Acts. Get enough states to do it and the Feds won’t be able to enforce it. Constitutional crisis? Yes, if you are a Statist, and no if you are a Federalist. This would be the outcome in my opinion if the mandate is struck but the law stands. It is high time this became common discourse in the public domain and not some obscure principle.

gmerits on March 28, 2012 at 9:38 AM

1. Should they decide now, or wait? (That was argued on Monday.)
2. If they decide now, then is the individual mandate unconstitutional? (Today.)
3. If the mandate is unconstitutional, then is it severable from the rest of the law? In other words, if SCOTUS strikes down the individual mandate, does that invalidate the rest of the law? (Tomorrow.)

For Obama, the ideal outcome is 1. Now. 2. Unconstitutional. 3. It’s severable.

I disagree. If that was correct:

1) Obama would not have argued that SCOTUS must delay proceedings until tax/penalty collections begin;

2) Obama would have to be okay with having SCOTUS b1tch-slap him shortly before the election; and

3) Congress would have simply introduced and passed the Act without the individual mandate.

HeatSeeker2011 on March 28, 2012 at 9:40 AM

Even if the mandate is upheld, is not the structure of Obamacare designed to ultimately drive private health insurance companies out of business? In that case, it would just take a little longer for the single payer goal to be achieved by the Administration if the mandate is upheld. The ultimate result is the same, so long as the entire legislation is not overturned!

RAZ on March 28, 2012 at 9:40 AM

As per our beloved leftie commenter, libfreeordie commented on yesterday’s Toobin trainwreck thread:

Finally, someone gets it. This is precisely why conservatives in the 1990s were the first to float the notion of an individual mandate. It was meant to preserve the private insurance market while Hillary went after a single payer system. Now you all can ignore the Heritage foundation literture all you want, but they were pushing for an individual mandate as early as 1988!

The true left has always been opposed to the individual mandate. It is a tax on the poor and middle class and there’s no guarantee of quality coverage. A single payer system is the only way and it is inevitable if the mandate is struck down but the rest of the bill, including requirements to cover those with pre-existing conditions remain in place.

And the problem for the right is that if the mandate is struck down and the left is motivated in the 2012 election, it would actually motivate me to work for the Democrats, then a simple “medicare for all” bill will be proposed and pushed in Congress. And there’s no way to argue that expanding the medicare age requirement to birth is unconstitutional. That is ultimately my goal.

libfreeordie on March 27, 2012 at 1:37 PM

Now, it’s true that expanding Medicare to birth may not have the votes NOW, but if this abomination stands without the mandate, Obama will have left healthcare in worse shape than it was before ObamaCare. Who’s to say where public opinion will be then?

cartooner on March 28, 2012 at 9:40 AM

there is no severability clause in the legislation. What does the rule of law turn into if the Supremes start disregarding the actual text of it for the President’s political convenience? The next person who wants to weasel out of a written contract will undoubtedly cite the verdict as precedent.

Archivarix on March 28, 2012 at 9:43 AM

Uncledave on March 28, 2012 at 9:29 AM

Here is a short (if oversimplified) answer. The exception is with budget matters. Some of those only require 50 votes.

And here is a more exhaustive (in every sense of the word) answer. My advice: stick with the short answer.

rogaineguy on March 28, 2012 at 9:43 AM

Cloward Piven strikes again. The mandate isn’t, and never was, the only constitutional problem. Repeal will still be necessary.

Upstreamer on March 28, 2012 at 9:26 AM

.
Yes.

listens2glenn on March 28, 2012 at 9:44 AM

Sorry – no sale on this one. I think this is potentially the best outcome for conservatives. With the mandate stripped out the bill collapses under its own sheer weight. However, President It’snotmyfault and Sheriff Sebelius lead the ‘Gang Who Can’t Shoot Straight’ in trying to implement it anyway. He vetoes any changes and can’t get Single Payer passed so the gang, with their guns locked in their holsters, continues to shoot themselves in the foot.

In an odd way, this may strengthen Romney’s position. He can stay with his mandates by the states is OK, but not by the feds message, now confirmed by SCOTUS and make the claim we need to elect Repubs to clean up this mess (repeal). The catch is, he needs to offer an alternative plan to obviate the spin being promoted by the Ragin’ Cajun (replace).

It is that damn catch that is, well – the catch.

NeoDawg on March 28, 2012 at 9:45 AM

This part reveals the flaw in your thinking about their strategery. If, from the very start, they wanted the outcome you contend, they would have made absolutely sure the severability clause was included. Either the outcome was never the plan or they are indeed the complete morons we all like to think they are.

stvnscott on March 28, 2012 at 9:28 AM

The idea at the time was lack of a severability protected the mandate: you couldn’t attack the unpopular mandate without harming the entire bill which they anticipated wrongly, would be popular. Not all Democrats were on board with expanding Medicare to birth, remember the Blue Dogs?

cartooner on March 28, 2012 at 9:47 AM

Nancy Pelosi had to ramrod Obamacare through the House. Does anyone, anyone think that John Boehner is willing to do that for single payer?

Single payer doesn’t have a single prayer. Stop obsessing about it. This post is not worthy of being promoted from the greenroom.

rogaineguy on March 28, 2012 at 9:47 AM

Barack Obama, domestic enemy of the Consititution of the United States – nothing less.

This issue is not about health care, it is about destroying the ability for the people to limit their governement to the confines of the Consititution – the plain and simple words written on the pages two hundred odd years ago, not the bull**** that has eroded the true meaning of the document like so much water scoring at a bridge footing.

This man and his followers are indeed living out the creed set forth in “The Weight of the Poor”.

In so doing, he is committing treason against us.

It is plain to see if you take the whole of the subject in context – Barack Obama, Sr., Stanley Ann Dunham, Frank Marshall Davis, Columbia, Harvard Law, Community Organizing, Bill Ayers, Dreams of My Father, State Senate race, U.S. Senate race, Mr. Doodad Pro, Spread the wealth around a little, Fundamentally Transform the United States…

My fingers are cramping up, but you get the idea.

We are under attack just a surely as if an enemy army were disembarking upon our shores.

turfmann on March 28, 2012 at 9:48 AM

Cloward Piven strikes again. The mandate isn’t, and never was, the only constitutional problem. Repeal will still be necessary.

Upstreamer on March 28, 2012 at 9:26 AM

Yep, because the mandate is severable. However, once that is done, I don’t think you’ll have a repeal problem.

BTW. I wonder how many people believe that Obamacare is just Medicare for everyone and don’t understand the law at all.

Vince on March 28, 2012 at 9:48 AM

Yes, they want single payer.

The left hates the mandate almost as much as the right but for different reasons. The left hates it because it keeps the insurance industry in business until they can figure another way to kill it.

WisRich on March 28, 2012 at 9:49 AM

I disagree. If that was correct:

1) Obama would not have argued that SCOTUS must delay proceedings until tax/penalty collections begin;

HeatSeeker2011 on March 28, 2012 at 9:40 AM

Fed’s attorney didn’t argue that. SCOTUS appointed a third party attorney to argue that the Anti-Injunction Act applied because none of the parties argued that it did.

Lost in Jersey on March 28, 2012 at 9:49 AM

They must destroy the current system before they can replace it.

That goes for insurance, capitalism, charity, religion and history.

Grunt on March 28, 2012 at 9:35 AM

Bingo!

cartooner on March 28, 2012 at 9:49 AM

I feel like the kid at the end of SHANE:

“STEVEN! COME BACK!!”

Steve Den Beste (and Glenn Reynolds) were the two guys most responsible for launching me, and I still go back to the USS CLUELESS archives now and then to remember just how damned brilliant this man is.

Bill Whittle on March 28, 2012 at 9:50 AM

Today they are arguing that expanding medicaid at the state level is going to place an unsustainable burden on states. States collect taxes if the affordable care act goes into effect, the taxes collected by each state will be consumed by expanded medicaid program, mandated by the federal government under this POS bill.

But it’s the second argument the court will hear about the Affordable Care Act that could potentially have the most far-reaching consequences. At issue is whether the health law’s expansion of the Medicaid program for the poor unfairly forces the states to participate.

Dr Evil on March 28, 2012 at 9:50 AM

As a general rule of thumb, if ever there is a question over whether a political decision has been made out of malicious scheming or incompetence it’s probably incompetence.

jhffmn on March 28, 2012 at 9:50 AM

The exception is with budget matters. Some of those only require 50 votes.

I understand reconciliation applies to budget matters. Obamacare was passed under reconciliation. Thus, Obamacare has been deemed by the Senate as a budget matter. It then follows that it can be repealed that way.

To argue otherwise seems absurd. Perhaps there’s some arcane rule that makes the reconciliation process a one-way valve, but if so then the GOP should replace that with a two-way valve.

Uncledave on March 28, 2012 at 9:52 AM

Learning a lot as we go, and this is no exception.
My widdle brain wonders some very simple things, too, such as …
has the IRS already hired all of those folks necessary to collect the payments/fines ?
How much of that monstrous bureaucracy is already set in place ?
Should this be overturned in its entirety, will those be jobs lost ?

Simple, I know, but these dumb things pop up in my head from time to time.

pambi on March 28, 2012 at 9:52 AM

In other words, the mandate goes away but the rest of the law remains in force. That makes private health insurance economically unviable, and the insurance companies will all exit the business or they will go out of business. At which point the Democrats will try to implement “single payer”, a total nationalization of the entire health care industry, financed by a huge rise in taxes.

Without the mandate, there isn’t enough money to pay for the rest of ObamaCare, which doesn’t go into effect until 2014 anyway. Democrats cannot implement “single payer” or raise taxes on their own, since they don’t control the House, where all revenue-raising measures must originate.

The “rest of the bill” cannot be “saved” by a single-payer system in the current Congress, since the Republican House will never raise enough taxes, and the Democrat Senate won’t vote to repeal, and Obama would veto any repeal attempt. But it would turn health care into a huge campaign issue, with majorities of voters supporting repeal, and Republicans could use the issue to recapture the Senate.

Obama would also have the problem of defending a law struck down as unconstitutional. Too bad that the alternative is Romney, who promised repeal but signed something similar in Massachusetts…

Steve Z on March 28, 2012 at 9:52 AM

This is probably more of a “workable alternative option” for Team Obama than a carefully crafted plan, since to get the option requires being able to foretell the mindset of the malable Justice Anthony Kennedy. Even with Verrilli’s faltering effort on Tuesday and Kennedy’s initial hostile line of questioning, we still have no idea where he’s going to come down on the mandate — for Obama to have a goal of actually killing it off, they would have to have at least one of the liberal Supreme Court justices in the bag to the point that they would be willing to side with the conservatives just in case Kennedy sides with them.

A 6-3 ruling against the mandate would generate a little surprise; a 5-4 with Bryer or one of the the three Democratic ladies (Kagan!) voting with Roberts, Scalia, Thomas and Alito would be a high court WTF moment. The more likely scenario for Tuesday’s foul-up is the legal version of the Pauline Kael phenomenon — stuck in the liberal hot-house of Washington D.C., New York and Boston, those opining on the chances of the mandate being struck down, including those in the Justice Department, were lazy about their preparation either because they had convinced themselves that their argument was either unassailable, or they bought their own spin that conservatives on the court are loathe to repeal any of Congress’ major decisions because they oppose an activist court (a trite assumption that works for the left, because it means activist liberal judges can overturn a conservative Congress, but the opposite situation can never occur).

That doesn’t mean they can’t make chicken salad out of chicken poop if the serviceability section is found by the Court to be defacto a part of Obamacare, even if it’s not specifically stated. But given the hubris and ego of this administration, overconfidence leading to incompetence is the most likely explanation as to why Verrilli was so taken aback by the fact he actually received tough questioning from even some of the liberal justices.

jon1979 on March 28, 2012 at 9:52 AM

Yep, because the mandate is severable. However, once that is done, I don’t think you’ll have a repeal problem.

BTW. I wonder how many people believe that Obamacare is just Medicare for everyone and don’t understand the law at all.

Vince on March 28, 2012 at 9:48 AM

Oops! I meant if the mandate is severable. I don’t think the court will rule that way.

Vince on March 28, 2012 at 9:53 AM

Any tears on the left today regarding the bad day at court yesterday are crocodile tears.

If the arguments today on severability seem to lean towards tossing out the whole thing?

Instead of tears, you’ll see rage.

WisRich on March 28, 2012 at 9:53 AM

Bill Whittle on March 28, 2012 at 9:50 AM

I love your firewall series among others. My favorite is still your defense of Palin. Thank you for your work.

Grunt on March 28, 2012 at 9:54 AM

there is no severability clause in the legislation. What does the rule of law turn into if the Supremes start disregarding the actual text of it for the President’s political convenience? The next person who wants to weasel out of a written contract will undoubtedly cite the verdict as precedent.

Archivarix on March 28, 2012 at 9:43 AM

There is already precedent for severing provisions even absent a specific severability clause. If you read Vinson’s decision in Florida and some of the commentary on that, I believe it cites some examples. I don’t recall what they are at the moment, but I definitely know it’s been done before. Vinson applied the tests in those cases pretty comprehensively and found that he could not sever the mandate.

Lost in Jersey on March 28, 2012 at 9:55 AM

This is from the school of thought that Obama and his cronies are geniuses and subtly manipulating everything behind the scenes. Yes, they purposely wanted the Senate version of the law passed because they knew that Scott Brown would be elected to the Senate and so the toxic legislation would be enacted, with the Single Payer Trojan Horse. And now they are working their magic at the Supreme Court, purposely stumbling in their arguments. Which means that today there will a stunning turnaround in the oral arguments for severability.

If you want to know why the Republican Party is called the stupid party, it’s because some in the party attribute genius to the even-stupider party, the Democrats.

Obama and his cronies are a bunch of incompetent fools that pass idiotic legislation and strut around like they are God’s gift to humanity. Yes, the media will sing their praises, no matter what stupidity they unleash. But why do people on our side sit in awe over the work of a bunch of dummies?

EMD on March 28, 2012 at 9:56 AM

The only possible reason for leaving out the severability clause is that they WANT the entire bill to be thrown out on a “technicality.”

That way everybody wins. (“Everybody,” of course, meaning the government.) The Supreme Court gets to throw its weight around. Congress gets to re-do the bill, collecting another even bigger round of graft from lobbyists this time. Obama — who stands above such mundane details — gets to wag his finger at a government that can never hope to satisfy its king.

If you want to know what liberals are up to, listen to their propaganda. They’re already starting a “grand compromise” meme of throwing this intentionally flawed bill out, and just expanding Medicare to everyone. Even the timing is perfect; Republicans in Congress will have to take a stance against an already-popular program during an election year.

logis on March 28, 2012 at 9:56 AM

That’s why the arguments yesterday and today were feeble: Obama wants to lose the first and second questions. Tomorrow’s argument is about severability, and that’s the one to watch.

Not entirely, there is another argument that SCOTUS is going to hear today. This argument is important it’s a 10th Amendment argument.

But as large as the program is, Medicaid today in most states is still not available to people simply because they are poor. They have to be poor and something else — such as a child, a pregnant woman or older than 65. Under the health law, however, that would no longer be the case.

“Medicaid changes from a program that covers certain categories of low-income individuals to a program available for health coverage for all individuals,” Rowland says.

All individuals, that is, with incomes under 133 percent of the federal poverty line. This year that’s $14,856. According to the Congressional Budget Office, that will add about 17 million new people — mostly adults without children — to Medicaid’s 60 million or so enrollees by the year 2016.

Currently, states share the cost of Medicaid with the federal government. Wealthier states pay half; poorer states pay a smaller share. But the federal government recognized that states are strapped for cash these days. So most of the new cost — all of it at first; 90 percent eventually — is being paid by the federal government.

But that’s not stopping states from claiming that this expansion amounts to unconstitutional arm-twisting. That’s because if they don’t follow through with the new changes, they have to pull out of Medicaid altogether — or so they claim.

The whole point of Obamacare is to overwhelm the system which results in single payer, and universal health care. It’s as if the progressive left are trying to insert a Trojan horse into the United States Constitution.

Dr Evil on March 28, 2012 at 9:59 AM

But it’s the second argument the court will hear about the Affordable Care Act that could potentially have the most far-reaching consequences. At issue is whether the health law’s expansion of the Medicaid program for the poor unfairly forces the states to participate.

Dr Evil on March 28, 2012 at 9:50 AM

I had forgotten about the medicaid arguments that are forthcoming.

Vince on March 28, 2012 at 9:59 AM

even a wise latina knows the whole bill is unconstitutional

SDarchitect on March 28, 2012 at 10:01 AM

The idea at the time was lack of a severability protected the mandate: you couldn’t attack the unpopular mandate without harming the entire bill which they anticipated wrongly, would be popular.

cartooner on March 28, 2012 at 9:47 AM

I have to agree with this. It makes the most sense as to why severability was removed.

Lost in Jersey on March 28, 2012 at 10:04 AM

Hi, Bill, good to see you lurking here.

For those that asked, it would take 60 in the Senate to enforce a repeal, because Obama would veto, and the 60 is necessary to override.

Pelosi pushed this pile of dog droppings as a cohesive unit, specifically eschewing the severability clause, with the direct intent of forcing the SCOTUS to have an all-or-nothing choice to make, and assuming that the justices would then cave in to preference for not wishing to appear to legislate through their decision.

Landmark Legal has already made these arguments, essentially that SCOTUS must abide by then-Speaker Pelosi’s legislative intent, and treat the entire Act as a whole in their Constitutionality conclusion. If that perspective holds up, Obamacare is doomed. If the left’s backpedal argument for severability is considered reasonable, now that they have lost the first and likely second issue, it slows down the entire process, keeps the system uncertain of how to proceed, and will have negative economic impacts during the next two years.

Hopefully, it will also have the unintended consequence of turning many more citizens into anti-Obama voters in November.

Freelancer on March 28, 2012 at 10:06 AM

IIRC they consciously took the severability clause out because Joe Lieberman was going to hold up the whole deal. Then they thought they could fix it in the conference committee after the Senate Vote. Unfortunately for the Democrats, Scott Brown got elected and they could not fix it in the conference committee and re-add it back in. If wording at all in the law changed they would have had to have had another Senate vote and they would not have the filibuster proof majority that they had when they passed it on Christmas eve.

txmomof6 on March 28, 2012 at 10:07 AM

Granted this is true.

Time and again we’ve seen this administration’s guile; outmaneuvering our contemporary guards. The Tea Party is green and the RNC is clueless.

How then might this evil plot best be thwarted and by who?

Quetzal on March 28, 2012 at 10:08 AM

I am just not buying this argument at all. While it might be calculated now in the White House that there is a potential political silver lining to tje SCOTUS striking down the individual mandate, it is way overestimating the cleverness of the Democrats to suggest they did this on purpose to make single payer the only alternative.

The mandate was added to the bill for one reason, and one reason only: to bribe the insurance companies to support the bill. Democrats feared above all another $100 million “Harry and Louise” ad campaign that would sink Obamacare the way Hillarycare was sunk in 1993.

Democrats scoffed at the notion thatthe mandate was unconstitutional. They remain stunned that it was immediately challenged in court, they have been even more stunned that a Court of Appeals has actaully found that it is unconstitutional. The last thing they wanted was to have this bill re-litigated in the court of public opinion in an election year!

There’s an easy solution if the mandate is truck but the rest of the bill isn’t: repeal the rest of the bill! Or at least repeal the coverage mandates and the one-size-fits-all “basic” policy requirement. Let the insurance companies contiue to price based on risk. Fix the system by allowing health insurance sales across state lines, repealing the employer tax deduction for health insurance, enacting a tax credit for individual catastrophic policies, etc. Take some of the Obamacare funding and give it to the states to use to redesign thweir owen health care and insurance markets.

There is simply no popular support for single payer in the U.S. Even Vermont was barely able to pass a bill for it and it is already having massive problmes trtying to implement it and pay for it.

rockmom on March 28, 2012 at 10:09 AM

I don’t know. I just don’t think the Dems are the Jedi masters you think they are.

magicbeans on March 28, 2012 at 10:10 AM

Yeah, sorry Steven, but your article assumes that Pelosi is clever enough to think several steps ahead to plan all of this, and I’m just not buying that.

spinach.chin on March 28, 2012 at 10:11 AM

For those that asked, it would take 60 in the Senate to enforce a repeal, because Obama would veto, and the 60 is necessary to override.

What I have been asking is why would it take 60 to repeal it after the election if Obama loses and the GOP wins the Senate with a simple majority?

If Obamacare was a budget matter that qualified for reconciliation, then why can in not be repealed that way?

Uncledave on March 28, 2012 at 10:11 AM

I posted yesterday, that I thought Obama would choose to ignore any outcome with the individual mandate and enter a fuzzy world in denial that anything has happened.

It is therefore important for the court not to leave the conclusion as fuzzy, because the Affordable Care Act spends money everyday implementing something nebulous and expensive, regulating our insurance companies, and telling them not to pass the costs on to the policy holders. And they may continue to spend that money unless there is a demand to cease and desist from the people.

The attorneys general of the various states will have to press the cause in public if they win. No severability, if the mandate goes they do not have to comply…but they must make an effort other than non compliance to declare the strings of the Affordable Care act dead for the whole country.

Obama will try to say that Sebelius always had the power to write administrative law, and that it was only a coincidence that she has done this under the Affordable care act.

They will dig in.

Fleuries on March 28, 2012 at 10:12 AM

We do need people like Levin working on this, because you won’t be able to rely on anyone to enforce the lack of a law. There probably is a problem with the money to fund the creation of the Affordable Care act, being a budget item in the reconcilliation. Mrs. Bachman couldn’t get at it.

We need the Republican Leadership to make sure that two years of Sebelius rules are reversed back to 2009. Free us from the cost of adding “no copays” to our policy, and make sure the health insurance companies reverse the charges. The administration will dawdle on the un doing.

What I would really like to see is those we can be confident in like Levin, devising the schemes and not telegraphing them to the media and the White House so they can dodge and parry ahead of time.

If the mandate is determined to be unconstitutional, the reaction from our side needs to be well thought out, severe, and steadfast. Otherwise we will be hearing that republicans want women to die, children to die, want to ban contraception, and don’t want you to have medicare to count on in your old age.

And yes, they always wanted public option single payer, because they just set the rules and charge you a tax, and you have no say about that. This 2000 page bill would make a Messy single payer…who is the payer? no one in the house or senate voted for that. The slate has to be cleared. The Obama administration will not lift a finger to clear the effects, they like everything they have written so far.

Fleuries on March 28, 2012 at 10:13 AM

The Obama administration is going to argue that nonetheless it should be treated as if there was a severability clause, despite evidence of Congressional intent to the contrary.

Seems our beloved legal scholar missed the lecture about ‘what was written was what was intended’.

It should ALL be thrown out.

GarandFan on March 28, 2012 at 10:14 AM

Er, there’s that little detail of getting single payer through Congress. They weren’t even close to doing that in 2009 with big Dem majorities. How’s it going to happen now, with far less support and majorities gone?

I’m very pessimistic about government spending, but I’m not delusionally paranoid.

Bat Chain Puller on March 28, 2012 at 10:14 AM

Er, there’s that little detail of getting single payer through Congress. They weren’t even close to doing that in 2009 with big Dem majorities. How’s it going to happen now, with far less support and majorities gone?

I’m very pessimistic about government spending, but I’m not delusionally paranoid.

Bat Chain Puller on March 28, 2012 at 10:14 AM

You should be very concerned about it. Medicare, Medicaid, and SSdi are going to be grown to the point that we have a defacto single payer system.
Because who hates old people, the poor, or the disabled?

Nathan_OH on March 28, 2012 at 10:25 AM

Question from SCOTUS for tomorrow;

- Has legislation of this magnitude ever, in history, NOT contained a severability clause, then had a major construct severed, that construct being central to the case for that legislation (bothe evidenced by statement from Congress and the President), and the remainder of that legislation survived?

Simple answer. No. The legislation is holistic and without severability. If a portion of that law is found unconstitutional without such accommodations, then the legislation, en masse, is unconstitutional.

It’s not only intuitive, but academic.

Marcus Traianus on March 28, 2012 at 10:31 AM

To all those who look at the possibility of single payer and think “it’s never going to happen,” remember how many times you thought that before we got to this point?

gryphon202 on March 28, 2012 at 10:46 AM

LOL.. Just heard the WH declares full confidence in the gov’t attorney , despite criticisms over yesterday.
Just thought that was a giggle.

pambi on March 28, 2012 at 11:03 AM

Beste gives Odumbo way too much credit. Sometimes, there really is no other shooter on the grassy knoll. He forgets that polls show that single payer is even more (way more) unpopular than Obamacare. If the mandate goes down but the rest is upheld, the more likely outcome is that the argument for repeal will get much stronger. Dems fearing reelection will be quite reluctant to go into early retirement by suppoting a completely toxic policy like single payer. Beste is way off on this one.

guitarman67 on March 28, 2012 at 11:05 AM

To all those who look at the possibility of single payer and think “it’s never going to happen,” remember how many times you thought that before we got to this point?

gryphon202 on March 28, 2012 at 10:46 AM

If that happens it’s game over.

A National Socialist Healthcare system is just a nanny state dressed up in the legitimacy of a white lab coat.

It’s the state ‘taking care’ of enough of the population to keep the socialist-Left in power – until the economy collapses.

“The natural progress of things is for liberty to yield, and government to gain ground.” Thomas Jefferson

Chip on March 28, 2012 at 11:12 AM

Stupid question: If the mandate is unconstitutional, why wouldn’t single payer be as well?

Spannerhead on March 28, 2012 at 9:38 AM

Because, as single-payer, it would be a TAX… congress can tax but they can’t mandate citizens buy something.

I think this view is a stretch. No way congress, now, would pass single-pay.

stenwin77 on March 28, 2012 at 11:14 AM

If the individual mandate is severed, the GOP House should pass a repeal immediately. If the DEM Senate won’t pass it, they are advocating financial Armageddon for the health insurance industry, or on-record as advocating nationalized health care. Big Campaign Issue for November. If they pass the repeal and Obama vetoes it, same deal.
Stick the repeal down their throat like the Dems stuck Obamacare down ours.

Socratease on March 28, 2012 at 11:18 AM

Know your enemy.

I’ve known it for greater than three years.

freedomfirst on March 28, 2012 at 11:23 AM

It’s the state ‘taking care’ of enough of the population to keep the socialist-Left in power – until the economy collapses.

The way our economy is going, that won’t take long. A lot of older workers would retire rather than pay the huge increase in taxes single payer would require. With millions less workers and more health care consumers on top of our national and private debt, the end would probably come within a decade of implementation.

Socratease on March 28, 2012 at 11:28 AM

So, in other words, this was the plan all along.

Bitter Clinger on March 28, 2012 at 11:32 AM

Clever, thank you, I learned something as well.

However, I don’t see how Congress is anymore susceptible to swallowing single-payer now than they were pre-2010 elections.

FerdtheMoonCat on March 28, 2012 at 11:34 AM

txmomof6 on March 28, 2012 at 10:07 AM

good information, sort of blows the diabolic tactic meme I’d say

DanMan on March 28, 2012 at 11:36 AM

If there’s no severability clause, how can anyone say that the mandate is severable? Verelli stuttering that we meant it to be in there but the cat ate it won’t stand. If it does, then we are officially in something more than a soft tyranny.

1) Ignore the Constitution

2) Ignore written laws

3) ???

4) Profit!!!!

Rixon on March 28, 2012 at 11:36 AM

Update from Scotus Blog on today’s arguments.

First Update

Paul Clement is finished. The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail, that is the government’s position. The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.

Second Update

We are roughly two-thirds of the way through the severability argument. The government’s lawyer was finishing up when I left the building. So far it is hard to see where this one is going. Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.

But Ed Kneedler also faced skeptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)

WisRich on March 28, 2012 at 11:37 AM

Bill Whittle on March 28, 2012 at 9:50 AM

Agreed, Bill. While I disagree with his analysis on this particular matter, SdB will always have high priority access to my reading time. After all, he was one of the analysts who had a particularly prominent role in my migration from port to starboard (and, BTW, you applied no small force on that yoke, yourself…so. thanks for that).

Noocyte on March 28, 2012 at 11:44 AM

Steven thinks Single Payer is the fallback position for Dems, but that is wrong.

The people have watched Nero’s party goof off, pass payoff after payoff for bundlers and big givers (think the Stimulus, for unions, and Solyndra) while capping off the Obama term with this piece of unworkable, unconstitutional BS.

And, now, we’re supposed to sign off on single payer? Not going to happen– even Democrats will vote against that political Love Canal. Congress (as ideologically devoted as the Marxocrats may be) will not willingly commit seppuku over this thing.

The future is murky, but it won’t include more of this crapola.

MTF on March 28, 2012 at 11:49 AM

If you want to know what liberals are up to, listen to their propaganda. They’re already starting a “grand compromise” meme of throwing this intentionally flawed bill out, and just expanding Medicare to everyone. Even the timing is perfect; Republicans in Congress will have to take a stance against an already-popular program during an election year.

logis on March 28, 2012 at 9:56 AM

What has always confused me…from the very beginnings of this discussion was why do we have to sink the entire republic in order to insure the several million uninsured inhabitants? We never even got a straight answer about how many were intentionally self-insured.

It’s a grand assumption that this must be done. I don’t agree. I also keep hearing these arguments about the taxpayer bearing the cost of all these uninsured/unpaid medical bills. Are all unpaid medical bills paid for by the taxpayer? Last I checked, many providers are private or state and local entities…not federal.

Maybe I have a very uninformed opinion, but this all reeks. Including the repeal and replace. Replace nothing!

freedomfirst on March 28, 2012 at 11:52 AM

Well, I thought this was an excellent post by Den Beste, but it appears there are many commenters here who still don’t understand it.

1) The Democrats wanted severability for precisely this reason. They wanted the individual mandate struck down so the insurance companies would be destroyed and the people would demand single payer out of desperation. It was talked about back then. It was our victory against Obamacare when they couldn’t make it severable.

Obama just couldn’t get everything he wanted.

2) Clearly, if the GOP takes the House, Senate and the Presidency, Obamacare can be repealed. There strategy is based on the assumption Obama will be reelected and can use the veto pen to stop any alternative to single payer from becoming law.

3) If Obama is President and the individual mandate is severed yet Obamacare stands and the insurance companies are being destroyed, Obama will have nothing to lose by standing in the doorway with his veto pen saying, “The Obstructionist Republican Congress won’t send me something I can sign.”

That is how the MSM will play it. That is how the MSM is planning to play it.

If you don’t think the crisis will be sufficient to stir up the masses to support single payer, think about what it will feel like when your insurance company closes down and you can’t get insurance anywhere else.

Those of you who think this is too complicated for the Democrats to have planned simply do not understand the Democrat leadership is not actually stupid. They are deranged. This is precisely the kind of thing they are good at.

fadetogray on March 28, 2012 at 12:05 PM

The lawyers need to hammer the point that the only objective of Obamacare was to ram this down the population’s throat. They wanted to pass this so quickly that they didn’t even read it. So, it should come down to contract law whereas it’s up to each party to understand the documents before signing them.
The President enforces his partisan crusade of “predatory lending” by signing documents that he hasn’t read and then blaming someone else for putting them in that position.

djaymick on March 28, 2012 at 12:21 PM

It isn’t that they overlooked the severability clause, or that they accidentally forgot to put it in. They removed it. That’s a very deliberate act. Clearly Congress–controlled by the Democrats as it was at the time–did not intend this bill to be severable. On what grounds would SCOTUS subvert the will of Congress on this issue?

Dee2008 on March 28, 2012 at 12:35 PM

Congress didn’t include a severability clause in the ACA, which is usually routine boilerplate. It was in there originally, but got removed before the law was passed. The Obama administration is going to argue that nonetheless it should be treated as if there was a severability clause, despite evidence of Congressional intent to the contrary.

By the same token, I’m going to treat the law as if there was a “citizens can urinate in Pelosi’s office” clause, despite evidence of Congressional intent to the contrary.

Dexter_Alarius on March 28, 2012 at 12:53 PM

That makes private health insurance economically unviable, and the insurance companies will all exit the business or they will go out of business.

Seems like the justices have thought about that issue, after listening to today’s hearing.

PattyJ on March 28, 2012 at 1:09 PM

Er, there’s that little detail of getting single payer through Congress. They weren’t even close to doing that in 2009 with big Dem majorities. How’s it going to happen now, with far less support and majorities gone?

I’m very pessimistic about government spending, but I’m not delusionally paranoid.

Bat Chain Puller on March 28, 2012 at 10:14 AM

They will get it through because the Republicans will pass it for them. To whit:

3) If Obama is President and the individual mandate is severed yet Obamacare stands and the insurance companies are being destroyed, Obama will have nothing to lose by standing in the doorway with his veto pen saying, “The Obstructionist Republican Congress won’t send me something I can sign.”

That is how the MSM will play it. That is how the MSM is planning to play it.

fadetogray on March 28, 2012 at 12:05 PM

The Republicans will tell the conservative base that single payer must be passed “temporarily” because we have a genuine health crisis caused by the collapse of the insurance companies. Any protest from the base will be drowned out by the roar of the Establishment/Romney supporters and liberals calling us “extremists” the same way they did during the initial Obamacare repeal attempts and the debt ceiling battles.

Don’t think for a MINUTE that Boehner won’t give Obama exactly what he wants if this scenario develops.

If Obama loses in Nov and the GOP wins the senate with a simple majority, why can we not repeal whatever remnants remain? If it passed via reconciliation then it can be repealed by the same method. I keep hearing we need 60 to repeal but I don’t understand that.

Uncledave on March 28, 2012 at 9:25 AM

You assume the GOP wants it repealed and is willing to use reconciliation to get it. I am highly dubious McConnell is willing to do this.

Doomberg on March 28, 2012 at 1:14 PM

Bill Whittle on March 28, 2012 at 9:50 AM

Complete props, sir. You are indeed the man. And Mr. Den Beste, a most excellent and insightful post, though this is my first encounter of your work. Freedom rocks, and so do you guys.

wolfsDad on March 28, 2012 at 1:15 PM

The dims problem is that obama left this all to pelosi and reid to figure out. Obama’s mistake was letting them.

Obama isn’t the genius he thinks he is, but pelosi and reid are just plain progressive socialists who happen to be as stupid as swamp mud.

Just look at some of the completely idiotic things they say in trying to stir up their small, unintelligent socialist progressive base. It’s amazing.

The libs who stand behind the curtain pulling the strings are so pissed off that this current set of progressive socialists have screwed up their long term plans they’re spitting blood…..but they have their own premium health care plans to address that…..

….and they probably all smoke dope to alleviate the side effects.

I wish evolution would hurry up and clean this gene pool.

Wolfmoon on March 28, 2012 at 1:23 PM

The rest of the law may stay if the individual mandate goes way, but that’s like a three legged stool having lost one of its legs.

The other two legs are (a) a requirement that insurers provide certain types of coverages to all comers, including those with pre-existing conditions, to remain in business, and (b) that businesses, some of which do no interstate commerce, contract with said insurers to offer these coverages.

I’ve read that a lot of businesses are abandoning their corporate healthcare plans rather than deal with the increased prices Obamacare is causing. I doubt Government contractors will do this, but I’m betting it’s going to be the optimal path for companies not doing business with the Government.

As for the insurers, I’m sure they will warm up their lawsuit (using a “takings” argument) to forestall their increased liability due to the two-legged stool. And if they don’t, they’ll either raise their rates to cover their risk, or cease business.

And then we may well have a healthcare system like we had in the 1950′s, where the patient paid the doctors and labs directly by check. That may be the best solution, because the current one shields the patient completely from responsibility for their own healthcare costs, leaving the doctors and the insurance companies to duke it out.

unclesmrgol on March 28, 2012 at 2:30 PM

Maybe this point has been made already, but, to its minimal credit, the administration is NOT arguing that the individual mandate can falls alone – the government’s position is that the guaranteed issue provision and minimum coverage provisions would have to fall with it.

The Supreme Court had to appoint an amicus to argue the holding of the court below – that the individual mandate was completely severable.

Pumaman on March 28, 2012 at 5:15 PM

1: They weren’t any better today on severability than they were on the IM.

2: The SG argued that community rating and must issue had to go if the IM went. Without those two, the insurance companies won’t be shoved into a death spiral.

3: The HHS regulations forcing Catholic schools and hospitals to provide contraception are going to be promulgated while the Supremes are voting and writing opinions. Great way to make the case that the whole thing needs to die.

Obama is not going to get what he wants.

Greg Q on March 28, 2012 at 6:54 PM