Welcome Josh Blackman (JoshBlackman.com) (Twitter) and Host Ilya Shapiro (Senior Fellow In Constitutional Studies, Cato Institute) (Twitter)

Unprecedented: The Constitutional Challenge to Obamacare

An Unprecedented Narrative of an Unforgettable Case

In 2012, the U.S. Supreme Court became the center of the political world. In a dramatic and unexpected 5–4 decision, Chief Justice John Roberts voted to save the Affordable Care Act, commonly known as Obamacare. Josh Blackman’s magisterial Unprecedented tells the inside story of how this constitutional challenge raced across all three branches of government and narrowly avoided a collision between the Supreme Court and President Obama.

The book offers unrivaled inside access to the key decision makers in Washington, based on interviews with over 100 of the people who lived this journey—including the academics who began the challenge, the lawyers who litigated the case at all levels, and the Obama administration attorneys who defended the law. It reads like a political thriller, providing the definitive account of how the Supreme Court almost struck down the president’s “unprecedented” law. It also explains what this decision means for the future of the Constitution, the limits on federal power, and the Supreme Court.

Unprecedented is not a legal book, in the sense that it’s not a “treatise” by which to teach law students about health care law or even the jurisprudence surrounding the Commerce Clause, Congress’s constitutional power to regulate interstate commerce. There’s plenty of doctrinal explanation, to be sure, tracing the development of modern federal authority to regulate the economy. But fundamentally this book is a story about a lawsuit and how a group of legal activists, intellectuals, and practitioners conceived and executed a stunning attack on the Obama administration’s signature legislative achievement.

As with Thurgood Marshall and the legal heroes of the civil rights era, Georgetown professor Randy Barnett (who wrote the book’s foreword) and other scholars developed theories that snowballed into judicial victories that could not be ignored by the national media and political classes. What had appeared at first to be “off the wall” libertarian thought experiments moved “on the wall” as they were picked up by the attorneys generals of Virginia and Florida and operationalized by leading appellate advocates like Paul Clement and Michael Carvin. On the other side, Neal Katyal and then Don Verrilli pressed the government’s defense, ultimately losing their central arguments but salvaging Obamacare.

At this point I should mention that I was no neutral observer of this tale. The Cato Institute, the libertarian think tank where I hang my hat, played a central role in supporting the Obamacare challenge. I personally filed ten amicus briefs (four in the Supreme Court) and coordinated many others, wrote dozens of articles and blogposts, and engaged in more than 100 debates and other public events on the subject. I definitely had a dog in this fight!

And yet I too was gobsmacked as I sat in the courtroom the morning of June 28, 2012, and heard the chief justice hand the government a bottom-line victory while not expanding federal regulatory authority. What had I (and everyone else) missed? The possibility that the case would be decided based on something other than competing legal theories. That is, eight justices decided NFIB v. Sebelius on the law—four finding that the Constitution limits federal power, four that constitutional structure must yield to “Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy”—and one had other concerns on his mind.

We won’t know for some time, if ever, what exactly caused John Roberts to do what he did. Unprecedented doesn’t provide that answer—sorry to disappoint you—but it does give us a great sense of the personal, political, and other atmospheric factors swirling around the Supreme Court justices as they considered this case.

Josh Blackman, a good friend with whom I’ve co-authored several law review articles and op-eds, has done a tremendous job in compiling, synthesizing, and explaining all that we can possibly know about this subject. NFIB v. Sebelius is truly the case of a generation—and Unprecedented is the definitive book on that case.

 

Ilya Shapiro (@ishapiro) is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. You can read here his take on the NFIB v. Sebelius ruling, in an article entitled “Like Eastwood Talking to a Chair: The Good, the Bad, and the Ugly of the Obamacare Ruling.”

[As a courtesy to our guests, please keep comments to the book and be respectful of dissenting opinions.  Please take other conversations to a previous thread. - bev]

213 Responses to “FDL Book Salon Welcomes Josh Blackman, Unprecedented: The Constitutional Challenge to Obamacare”

BevW October 6th, 2013 at 1:48 pm

Josh, Ilya, Welcome to the Lake.

Ilya, Thank you for Hosting today’s Book Salon.

For our new readers/commenters:

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Josh Blackman October 6th, 2013 at 1:49 pm
In response to BevW @ 1

Thanks so much Bev. I’m looking forward to it!

dakine01 October 6th, 2013 at 2:00 pm

Good afternoon Josh and Ilya and welcome to Firedoglake this afternoon.

Josh, I have not read your book but am struck by the irony of your book compared to this opinion piece in today’s WaPo0 from Gerard Magliocca, a Con Law professor at Indiana about how the ACA is not “settled law.” Do you or Ilya either one care to respond?

Ilya Shapiro October 6th, 2013 at 2:02 pm

Welcome everyone! I haven’t read that op-ed but will do so as we wait for Josh to answer the question. ;-)

Ready October 6th, 2013 at 2:02 pm

The Obamacare judgement by the Supreme Court was simple:
keep the part that helps the corporations and gut the part that helps the people.

Anyone could have seen this decision coming as the Roberts’ Court has never sided with the people over the corporations or the people over the government.

Josh Blackman October 6th, 2013 at 2:04 pm
In response to dakine01 @ 3

Hi Dakine01,

Thanks for the warm welcome. I read Gerard’s piece, and chatted with him about it. I’m not sure what the irony would be. The Affordable Care Act (which I will henceforth refer to as Obamacare for simplicity’s sake) has been mired in political infighting since its inception in 2009. The fact that the Supreme Court upheld the law may have settled its constitutionality, but that does not mean the law is settled among the American people. For almost four years, half of Americans have opposed this law. I think Gerard’s point is well-taken that the law may be law, but not settled.

Josh Blackman October 6th, 2013 at 2:05 pm
In response to Ready @ 5

Matt Ylgesias made a similar point about how the Roberts Court ruling that allowed states to opt-out of the Medicaid expansion hurt most the poor people. http://www.slate.com/blogs/moneybox/2013/10/03/john_roberts_medicaid_non_expansion_millions_will_lose_out_on_health_insurance.html Of course that part of the holding was also joined by Justice Breyer and Kagan

Ilya Shapiro October 6th, 2013 at 2:06 pm

I also think there’s a difference between a particular doctrine or constitutional understanding being “settled” and the status of a particular piece of legislation. It’s almost a misnomer to discuss whether Obamacare is settled or not; regardless of NFIB v Sebelius, there will be future court cases, amendments, etc.

BevW October 6th, 2013 at 2:08 pm

Josh, how long have you been following, researching Obamacare? Is that why you wrote the book?

Ilya Shapiro October 6th, 2013 at 2:09 pm

Josh, why don’t you begin by telling us what prompted you to write the book and describing your research process. Because you were clerking when the litigation began, you were in the unique position of not being able to comment publicly even if you wanted to. Did that (frustration?) play into your desire to write the book?

Josh Blackman October 6th, 2013 at 2:10 pm
In response to BevW @ 9

I began following the challenge to Obamacare before it even began. In November 2009, a month before the ACA cleared the Senate, I was present at the conversation at the Mayflower Hotel in Washington, D.C. that kickstarted the legal challenge to the law. It was an offhand chat with several interesting laws, but it spurred one of the greatest constitutional challenges of our generation. So I’ve been following it for quite some time. I wrote the book because I witnessed, from a close vantage point, all the twists and turns of this great story.

Ready October 6th, 2013 at 2:11 pm

The people of American have been “waiting” since before Obama’s election for a health care system that works.

Now, 5 years after Obama’s campaign promises we are about to actually experience the long awaited Obamacare.

Only it will be nothing like was promised and people aren’t going to really get health care.

People are going to be very, very angry.

And demand something else.

Josh Blackman October 6th, 2013 at 2:11 pm
In response to Ilya Shapiro @ 10

Thanks Ilya. I commented below to Bev how I learned of the challenged. But you are right. From 2009-2012, I was a law clerk for a federal judge. Even though I was in close contact with many of the key players in the case, and followed the case closely, I could not publicly write about it. But I was able to document the story internally, throughout, with the goal of perhaps writing an article or two about it. Soon, that article ballooned into a Kindle single book, which became a 360-page book!

Watt4Bob October 6th, 2013 at 2:11 pm
In response to Ready @ 5

Anyone could have seen this decision coming as the Roberts’ Court has never sided with the people over the corporations or the people over the government.

I’m with you Ready, I wasn’t surprised a bit, because the ACA is, at heart a corporatist give-away, and John Roberts is nothing if not a corporatist.

As for the issue of law, settled or not, we’ve obviously entered the t-bagger twilight-zone where all bets are off if the T-baggers don’t like it, or if their bosses have designated it a target.

Ilya Shapiro October 6th, 2013 at 2:12 pm
In response to Josh Blackman @ 11

I arrived at that Mayflower conversation a little after it began. I remember looking over at Randy Barnett to see what his reaction would be and, as Josh details in his book, he hadn’t really thought about it.

Josh Blackman October 6th, 2013 at 2:12 pm
In response to Ready @ 12

Ready, you are exactly right. No one was happy with Obamacare. Liberals wanted single-payer, or something close to it. Conservatives didn’t like it (even though they invented the individual mandate years earlier). We are now stuck with a health care law that no one really wanted.

bmaz October 6th, 2013 at 2:13 pm

Josh, I think you had much of your work well underway when the Supremes ruled. How prepared were you for the, um, interesting way Roberts issued the decision?

Ilya Shapiro October 6th, 2013 at 2:14 pm

Josh, what are some of the surprising things you discovered in researching the book — or at least things that you completely missed during the pendency of litigation?

Josh Blackman October 6th, 2013 at 2:14 pm
In response to bmaz @ 17

Hi bmaz,

It’s funny. On decision day, I gave my agent two possible proposals to send out to publishers. One where a 5-4 opinion upheld the law, one where a 5-4 opinion struck the law down. Within 2 minutes of realizing what happened, I sent a frantic email to my publisher telling him to *hold the presses.* I had to totally rewrite much of the ending of the book. But in a purely selfish way, the Chief’s unprecedented opinion made the book that much better. Even if it drove everyone nuts

Josh Blackman October 6th, 2013 at 2:17 pm
In response to Ilya Shapiro @ 18

Hi Ilya,

I should add for our readers that we are very fortunate to have Ilya here. He was the key orchestrator of all of the amicus briefs challenging the ACA, and travelled across the country to speak at 100+ events about the law.

What surprised me the most was the government’s side of the case. Throughout the litigation we always knew what the challengers thought, namely because they would speak into any mic provided (see Ilya).

But the government’s side was quiet. What amazed me, after numerous interviews with Senior DOJ lawyers, is how they approached the case. Much of the conventional wisdom here was simply wrong. The Solicitor General, who was roundly criticized for being unprepared, stuck to his strategy very well. Some of the strategy didn’t pan out, but in the end, his taxing power argument won the day. This was something most people (myself included) did not appreciate at the time.

Ready October 6th, 2013 at 2:18 pm

What I find interesting is now the Right Wing propaganda machine which has spent years tearing down Obamacare is now freaking out that it’s failure is going to lead to Single Payer.

Truth is the Right loves Obamacare they just couldn’t let their base know that. (because it is an extortion racket for their beloved corporations).

If you listen to them frequently like I do, you will be hearing this come up.

Soon they will be spending much of their energy vilifying Single Payer calling it Socialized Medicine, etc.

That is the last thing the elite want Americans to have.

Ilya Shapiro October 6th, 2013 at 2:19 pm

As several commenters have now pointed out, I do think we have a law that nobody wanted and that no Congress would’ve approved. The incomplete Medicaid expansion is part of that, as are the patchwork exchanges. I’m on the record being heavily critical of John Roberts’s split-the-baby “unicorn tax” solution to the litigation, and there’s great irony to a “minimalist” justice who wanted to defer to the political process actually legislating from the bench to create a heretofore unrecognizable law.

Josh Blackman October 6th, 2013 at 2:19 pm
In response to Ready @ 21

The individual mandate was, for two decades, a leading idea on the right to lower health care costs. There is a big hypocrisy on the right of those who backed it, then went against it.

Josh Blackman October 6th, 2013 at 2:21 pm

BTW, if anyone is kind enough to buy a copy of the book, I hope you can leave a comment on Amazon. http://www.amazon.com/gp/product/1610393287/ref=as_li_tf_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=1610393287&linkCode=as2&tag=joshblaccom-20 Much appreciated

Josh Blackman October 6th, 2013 at 2:21 pm
In response to Ilya Shapiro @ 15

That’s exactly right. Randy Barnett, the “intellectual godfather” of the challenge, hadn’t given the case much thought in November 2009.

Ilya Shapiro October 6th, 2013 at 2:27 pm
In response to Josh Blackman @ 25

I too was mostly thinking about McDonald v Chicago at the time — the 2009-2010 case that extended the right to keep and bear arms to the states — as was Barnett, given the important revival of the Privileges or Immunities Clause that was possible in that case. Randy, Cato, and the progressive Constitutional Accountability Center were in agreement in their theory of that case.

Josh and I, meanwhile, were finishing up a long article called Keeping Pandora’s Box Sealed: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503583

cassiodorus October 6th, 2013 at 2:28 pm
In response to Josh Blackman @ 23

How can an individual mandate be a “tax”?

Ilya Shapiro October 6th, 2013 at 2:29 pm

Josh, you recently published an op-ed about how the current budget impasse/government shutdown originated with Obamacare: http://dailycaller.com/2013/10/04/obamacares-four-year-government-shutdown/

Could you briefly explain your point? Do you think there can be a solution to the current impasse not involving an amendment to or delay in the healthcare law?

Josh Blackman October 6th, 2013 at 2:29 pm

Perhaps one topic that will gin up some discussion is how the current budget shutdown began with Obamacare in 2009. I argue in this recent editorial that the seeds of our shutdown were planted with the decision to pass Obamacare on a straight party-line vote years earlier. http://dailycaller.com/2013/10/04/obamacares-four-year-government-shutdown/

Josh Blackman October 6th, 2013 at 2:30 pm
In response to Ilya Shapiro @ 28

Jinx

Josh Blackman October 6th, 2013 at 2:30 pm
In response to cassiodorus @ 27

There was no individual mandate. Or that’s what Chief Justice Roberts wrote. Instead, he construed the ACA (rewrote it really) as taxing people who choose not to have health insurance. Surreal I know.

Watt4Bob October 6th, 2013 at 2:31 pm

When are we going to quit making believe that we haven’t been had?

We are not witnessing a mysterious process, we’re witnessing the quite understandable outcome of two parties completely sold-out to corporate interests, and betraying the interests of We the People in the process.

It’s as straight forward a story as can be told, if one is willing to face the fact that some our favorite myths are baloney.

Tweeder October 6th, 2013 at 2:31 pm
In response to cassiodorus @ 27

And, a “tax” (the mandated policies, that is, not the noncompliance “penalty”) paid not to the Treasury but to private corporations.

Josh Blackman October 6th, 2013 at 2:32 pm
In response to Ilya Shapiro @ 28

In 2009, the President made the decision to pass the Affordable Care Act with a straight 60-vote party-line vote in the Senate. In the House, nearly 34 democrats voted against the law (many that voted for it were not re-elected). There was no room for debate with the final passage. I argued in the editorial that the impasse we have now began long ago.

Ilya Shapiro October 6th, 2013 at 2:34 pm

Perhaps the funniest thing about the mandate-to-tax transmogrification is that the most basic definition of a tax is a measure to raise revenue for the public fisc. If the “unicorn tax” works as intended — meaning everyone, especially all those healthy young people buys insurance — the amount of revenue raised is zero. Really, really bizarre.

bmaz October 6th, 2013 at 2:34 pm
In response to Josh Blackman @ 19

Heh, that is kind of what I thought. I too had two basic versions of a post mostly ready to go, and then…..what the heck did they do? I laughed at people who said the the case would be decided on the Anti Injunction Act. It wasn’t, but never saw how Roberts could get to where he did in light of that. So I was blindsided. Still a little perplexed.

Ready October 6th, 2013 at 2:35 pm

If McCain had won, and he and the Republicans had done Obamacare it would all be fine to them.

The elite have intentionally, and, in my opinion, irrecoverably divided this country.
And we are being destroyed by it.

With millions and million of Americans with no jobs the two sides have done NOTHING for 5 years now since the financial crash.

China is barreling forward with 8,000 miles of high speed rail and billions being poured into alternative energy and we are fighting over the incandescent light bulb.

Josh Blackman October 6th, 2013 at 2:35 pm
In response to Watt4Bob @ 32

The insurance industry loved the idea of an individual mandate. People have to now buy their products! I tell one story where the head of the insurance lobby goes to Chicago, and tells candidate Obama that without a mandate, they won’t back his health care law. Ultimately, they didn’t back him anyway.

Tweeder October 6th, 2013 at 2:35 pm
In response to Josh Blackman @ 34

Well,this is sometimes referred to as “majority rule.”

dakine01 October 6th, 2013 at 2:37 pm
In response to Josh Blackman @ 29

I argue in this recent editorial that the seeds of our shutdown were planted with the decision to pass Obamacare on a straight party-line vote years earlier.

Given Mitch McConnell’s expressed desire to have Obama be a one term president (too bad) and the unprecedented filibuster of everything, how could it be any other way? The Rs in both houses of Congress have made no excuses for trying to do everything they can to sabotage Dem legislation, no matter the affect on the country as a whole…

Josh Blackman October 6th, 2013 at 2:38 pm
In response to Ilya Shapiro @ 35

And it is only a tax in make-believe land.

bmaz October 6th, 2013 at 2:38 pm

Some of this discussion may be technical for some readers here. Let me ask a more basic question – Obamacare is back in the news again in a big way these days. Being as intimately familiar with the comprehensive litigation as bout Ilya and Josh are, can the two of you discuss how the litigation, and rulings, may impact the defunding issue discussion and issue of how states participate?

bmaz October 6th, 2013 at 2:39 pm
In response to Josh Blackman @ 41

Exactly!

Josh Blackman October 6th, 2013 at 2:39 pm
In response to bmaz @ 36

The government, and lawyers who argued the case, were very worried about it. One challenger lawyer told me that if the Chief bought the government’s AIA-argument, it was home free to rule it as a tax.

Josh Blackman October 6th, 2013 at 2:41 pm
In response to Tweeder @ 39

We aren’t talking about renaming a post office. In the past century, every big piece of legislation (social security act, civil rights act, etc.) was passed with a big bipartisan majority. This was the only law passed on such a party-line basis. Having 50% of the country oppose a law is not the way to transform a healthcare system.

Tweeder October 6th, 2013 at 2:42 pm
In response to Ready @ 37

“The elite have intentionally, and, in my opinion, irrecoverably divided this country.
And we are being destroyed by it.

With millions and million of Americans with no jobs the two sides have done NOTHING for 5 years now since the financial crash.”
__

Even in a negative-sum game there can be winners, if the game is large enough.

Josh Blackman October 6th, 2013 at 2:43 pm
In response to dakine01 @ 40

This is a good point, and I talk about McConnell’s position in the book. Obama was able to accomplish other priorities in his first term–Dodd Frank, the bail out, TARP, etc. But, by investing so much energy in a law that the American people, and not just the Republicans opposed, he burned much of his capital. Even Joe Biden said they would need 70+ votes in Congress to do this. The President did not listen.

Ready October 6th, 2013 at 2:45 pm
In response to Josh Blackman @ 45

The past century is over.

In the 21st century our government is now owned lock, stock and barrel by the elite.

The velvet glove has come off. And they don’t believe the people of American need to live middle class lives anymore when there are 7 billion people who will work for slave wages.

Tweeder October 6th, 2013 at 2:45 pm
In response to Josh Blackman @ 45

So, given the (largely racist) animus against this President, I guess he should simply have conceded defeat and scrubbed the effort. The prior status quo would have by now been much better?

Ilya Shapiro October 6th, 2013 at 2:46 pm
In response to bmaz @ 42

The defunding battle is a function of the Supreme Court’s not abrogating a deeply unpopular law when it had the chance — as well as the American people, in their infinite wisdom, electing two completely irreconcilable philosophies of government simultaneously.

This dynamic also plays out at the state level. John Roberts’s rewriting the Medicaid expansion to make it optional (rather than upholding it or striking it down altogether) not only shifted the political debate to the states but essentially guaranteed that that aspect of Obamacare would fail.

Tweeder October 6th, 2013 at 2:46 pm
In response to Ready @ 48

Indeed.

Josh Blackman October 6th, 2013 at 2:47 pm
In response to Tweeder @ 49

Many in the President’s cabinet pleaded with him not to do this his first term, and to focus on more pressing matters (the economy, immigration, etc.).
Edit: That should be first year, not first term.

Tweeder October 6th, 2013 at 2:47 pm
In response to Ilya Shapiro @ 50

“as well as the American people, in their infinite wisdom, electing two completely irreconcilable philosophies of government simultaneously.”
__

The Jonathan Chait argument.

Ready October 6th, 2013 at 2:47 pm
In response to Josh Blackman @ 47

Instead of wasting 2 years after the financial collapse “ramming” Obamacare down the country’s throat (Tea Bag words) Obama should have been putting millions of people back to work and keeping millions of people in their homes.

Tweeder October 6th, 2013 at 2:48 pm
In response to Josh Blackman @ 52

Yes, I concede that.

GlenJo October 6th, 2013 at 2:49 pm
In response to Watt4Bob @ 14

I also agree with ready. As a cynic, I didn’t even bother paying attention to the legal arguments, this would be a decision to favor the corporations at the expense of the American public. The legal details would be window dressing.

Given all that, I will still probably read the book.

Josh Blackman October 6th, 2013 at 2:49 pm
In response to Ready @ 54

By dedicating so much energy to Obamacare in his first pivotal year, he lost the opportunity to do many other things. I suspect even though his second term is only halfway over, this law will continue to suck out much of the oxygen going forward.

dakine01 October 6th, 2013 at 2:49 pm
In response to Josh Blackman @ 47

But don’t they lose a bit of credibility by opposing everything? They have and still are opposing Dodd-Frank (the only Rs voting for it were Snowe, Brown, and Collins). The bail out and TARP were mostly on Bush’s watch.

Seriously, wouldn’t the Rs have a tad more credibility if they weren’t reflexively opposing every issue coming from the Dems these days? (Note: I am one of those who wanted a Single Payer system and thought the Public Option was (barely) an acceptable compromise for the stated goal of lowering costs and improving healthcare for the US across the board)

Ilya Shapiro October 6th, 2013 at 2:50 pm

Let’s turn this discussion back to the actual book — I wasn’t lying in my opening post in saying that Josh’s work isn’t about the substance of the law but about process. Josh, why did this case galvanize a nation? Surely it wasn’t just because it was about healthcare, which represents 17-20% of our economy.

Josh Blackman October 6th, 2013 at 2:50 pm
In response to GlenJo @ 56

Thanks for reading :) And if you like, I do summarize a lot of the legal arguments, many of which are closely woven together with the Administration’s policy positions (no surprise here).

Josh Blackman October 6th, 2013 at 2:51 pm
In response to dakine01 @ 58

You’re probably right. A major failing of the GOP has been a knee-jerk reaction to oppose stuff, and not propose their own alternatives. It’s remarkable that for the 3rd straight election, gutting Obamacare will be a key issue.

Tweeder October 6th, 2013 at 2:51 pm
In response to Ready @ 54

But all of those foreclosed homes have made for some great hedge fund bulk buys at distressed prices.

Ready October 6th, 2013 at 2:53 pm
In response to dakine01 @ 58

I haven’t read your book but my question is: do you address the complete capture of our government by the elite?

Tweeder October 6th, 2013 at 2:53 pm
In response to Ilya Shapiro @ 59

Maybe, uh, Presidentin’ While Black?

Josh Blackman October 6th, 2013 at 2:54 pm
In response to Ready @ 63

That is not a topic I discuss is much depth, but several elements of that debate are present in the way that the government finally meandered towards the individual mandate.

CTuttle October 6th, 2013 at 2:55 pm
In response to Josh Blackman @ 41

Aloha, Josh and Ilya, mahalo for the book and being here at the Lake…!

And it is only a tax in make-believe land.

So how will the IRS handle the ‘penalty’ phase…?

Josh Blackman October 6th, 2013 at 2:56 pm
In response to Ilya Shapiro @ 59

I think this law galvanized American because it touch a special nerve. The notion that the government can compel people to buy a product they don’t want–broccoli or health insurance–represent an unprecedented expansion in the state’s power. This sentiment triggered widespread opposition, which enabled the challenge to go from nothing to almost-victory at the SUpreme Court

Tweeder October 6th, 2013 at 2:57 pm
In response to CTuttle @ 66

Limited to not refunding any refunds owed, up to the amount of the penalty imposed.

Ready October 6th, 2013 at 2:57 pm
In response to Josh Blackman @ 65

It was astounding to watch the whole health care bill debate unfold.
Nothing that the people wanted was even remotely on the table.
It was unbelievable.
I knew way before the law was passed we had been screwed royally.

Josh Blackman October 6th, 2013 at 2:58 pm
In response to CTuttle @ 66

Starting Jan 1, 2014, those who do not have a certain type of insurance will have to pay a “penalty” on their tax returns. Alas, as I discuss in the book, the penalty is not high enough to work. Even fully phased in, for most people, it will be much cheaper to just pay the penalty than to be stuck with expensive insurance they would not otherwise want.

Tweeder October 6th, 2013 at 2:58 pm
In response to Josh Blackman @ 67

I don’t want those seat belts in my car. They wrinkle my suit.

Ilya Shapiro October 6th, 2013 at 2:58 pm
In response to Tweeder @ 64

IMHO if you think opposition to Obama is driven by racism rather than ideology, you’re completely missing the major developments in U.S. politics in the last decade. We have very serious ideological divisions in this country, which are exacerbated in Congress due to gerrymandering — so, for example, it was the Democrats who voted _against_ Obamacare who tended to lose in the 2010 election (because they represented swing districts).

Josh Blackman October 6th, 2013 at 2:59 pm
In response to Ready @ 69

That’s right. The legislative process was a debacle. And the version of the law we have now was never meant to be the final version. It was only a draft, with tons of bugs. But due to Scott Brown’s election, the President could not send it back to the Senate, so the House signed off on an unfinished version.

Tammany Tiger October 6th, 2013 at 3:00 pm

Josh, could you explain one aspect of the Court’s decision–namely, Congress’s spending power and Medicaid expansion?

And a follow-up: Do you think that the Court will look more closely into future Congresses using the spending power to accomplish something outside the realm of their enumerated powers?

Tweeder October 6th, 2013 at 3:00 pm
In response to Josh Blackman @ 70

While that is all true, you would still be uninsured. Better not get seriously injured or ill.

Ready October 6th, 2013 at 3:01 pm

Read this article about how Obamacare really works. If you aren’t sick you will be.

http://paulcraigroberts.org/2013/02/03/obamacare-a-primer/

Josh Blackman October 6th, 2013 at 3:02 pm
In response to Tweeder @ 75

Not necessarily. Now, because insurers can’t discriminate against those with pre-existing conditions, people who get sick can buy insurance when they need it (subject to enrollment periods).

CTuttle October 6th, 2013 at 3:02 pm
In response to Tweeder @ 68

So they can’t ‘garnish’ wages/bank accounts…?

Ilya Shapiro October 6th, 2013 at 3:02 pm
In response to CTuttle @ 66

More ominously, let’s say you owe $1,000 in income tax and $1,000 in Obamacare tax. You pay in $1,000, thinking you’ve paid you’re income taxes. The IRS treats that as your Obamacare payment, so as far as they’re concerned, you still owe $1,000 income tax. There are, of course, very serious consequences to not paying your income taxes. Accordingly, there can be very serious consequences to not paying your Obamacare tax as well.

Josh Blackman October 6th, 2013 at 3:03 pm
In response to Tammany Tiger @ 74

This was a sleeper issuer. The Court said that states could not be forced to join the Medicaid expansion because that would be coercion. In other words, the federal government could not withhold *all* Medicaid money if a state would not take the new medicaid money under Obamacare. I don’t know if there are any other cases that could trigger this coercion doctrine, but you can be sure the federal government will be leery int he future about using this power.

Tweeder October 6th, 2013 at 3:03 pm
In response to Ilya Shapiro @ 72

How does that square with comment 34?

Tweeder October 6th, 2013 at 3:04 pm
In response to CTuttle @ 78

Nope.

Ready October 6th, 2013 at 3:04 pm

What a disaster this has all been. And now corporations are cutting people to part time and giving no health insurance.

I predict that in 5 years 90% of corporations in America will have jettisoned employee coverage.

Only a very few very profitable corporations are going to keep it to attract top people.

Josh Blackman October 6th, 2013 at 3:06 pm
In response to Ready @ 83

That is one of the biggest perverse outcomes of Obamacare. The business mandate is causing terrible market distortions. Even ACA supporters like Ezra Klein back eliminating the business mandate.

Ready October 6th, 2013 at 3:06 pm
In response to Josh Blackman @ 77

Correct me if I’m wrong but there is NO CAP on what you have to pay under this law.

So if 30% of the bill is yours, (and hospital bills can run into the hundreds of thousands) most Americans are still going to go bankrupt.

Ilya Shapiro October 6th, 2013 at 3:07 pm
In response to Tweeder @ 81

The Democrats lost lots of seats in 2010, but one of the great ironies is that those who least supported President Obama’s agenda were more likely to lose because they also, all other things being equal, were in more competitive districts. (That’s not a novel dynamic; moderates tend to represent swing districts — though of course tis gets shaken up with redistricting every 10 years.)

GlenJo October 6th, 2013 at 3:07 pm
In response to Josh Blackman @ 60

Honestly, I will read the book more to understand the people and the process than the legal arguments.

Tweeder October 6th, 2013 at 3:07 pm
In response to Ready @ 83

And, all those Bronze, Silver, Gold, and Platinum people will be buying HIX policies using after-tax dollars.

Ready October 6th, 2013 at 3:07 pm
In response to Josh Blackman @ 77

Correct me if I’m wrong but there is NO CAP on what you have to pay under this law.

So if 30% of the bill is yours, (and hospital bills can run into the hundreds of thousands) most Americans are still going to go bankrupt if they get cancer or need heart surgery.

Josh Blackman October 6th, 2013 at 3:07 pm
In response to Ready @ 85

I’m not positive about the caps, but the ACA will not do nearly enough to make healthcare affordable. The premiums may be lower, but the insurance companies will make up their losses by increasing the costs of out-of-pocket payments

Tammany Tiger October 6th, 2013 at 3:08 pm
In response to Josh Blackman @ 80

About 30 years ago, Congress requires states to raise their drinking age to 21 or else lose (I believe) 10 percent of their highway construction funds. The Supreme Court upheld the law, 7-2, with O’Connor and Brennan dissenting.

Even at 10 percent, the law was coercive enough to persuade every state–even states like Louisiana, where it was lower than 21 for years–to comply.

Josh Blackman October 6th, 2013 at 3:09 pm
In response to GlenJo @ 87

Thanks. For the book, I conducted interviews with over one hundred of the people who lived this journey—including the academics who began the challenge, the attorneys who litigated the case at all levels, and Obama administration attorneys who successfully defended the law. You’ll learn all about fascinating people in “this town.”

Watt4Bob October 6th, 2013 at 3:09 pm
In response to Ilya Shapiro @ 50

… as well as the American people, in their infinite wisdom, electing two completely irreconcilable philosophies of government simultaneously.

Absolute nonsense.

The American people have been bamboozled into believing that the two parties have philosophical underpinnings that exist in opposition, when in fact the two parties find themselves acting in unison most of the time, all opposition is ‘make-believe’, ‘for-the-cameras’ and intended to reinforce the illusion of deeply-held convictions where there are none.

We are being asked to believe that the two-party system we have now is substantialy the same as the one that existed in the 1950′s or 60′s and that could not be farther from the truth.

What has really happened, is that the American people, in their infinite wisdom, continue to elect either democratic or republican candidates, mindlessly ignoring the fact that neither party, or their endorsed candidates stand for anything more complicated than acruing money and power.

Ready October 6th, 2013 at 3:10 pm
In response to Tammany Tiger @ 91

Right, but Roberts took out the “coercion” part of the law.

Josh Blackman October 6th, 2013 at 3:10 pm
In response to Tammany Tiger @ 91

You are talking about South Dakota v. Dole. That’s the closest the Court has come to finding a violation of the spending power. In NFIB, 7 justices said that the federal government went beyond the threshold identified in Dole.

Josh Blackman October 6th, 2013 at 3:11 pm
In response to Ready @ 94

Two different things. There’s coercion for the mandate, and coercion for the Medicaid spending. Roberts, along with 7 justices, found coercion for the latter.

Tammany Tiger October 6th, 2013 at 3:11 pm

On this board, I’m fond of calling the ACA the “Rube Goldberg Act,” mainly because the only provision of it most voters understood was the individual mandate.

In all my years of following politics (and I started doing so in the late 1960s), I’ve never seen a more incompetent job of advocacy than by White House and Capitol Hill Democrats regarding the ACA.

Tweeder October 6th, 2013 at 3:11 pm
In response to Josh Blackman @ 90

That’s the “benefit shock” part of the HIX surprises awaiting policy shoppers.

Peterr October 6th, 2013 at 3:11 pm
In response to Josh Blackman @ 84

Except that this “Obamacare is increasing part-time employment” meme isn’t backed up by the data (emphasis added below):

During the past two recessions part-time employment clearly increased, while such employment was either flat or falling after the end of the recessions. (Note that the official end date of a recession is the point at which the economy stops getting worse. It does not mean the economy has recovered yet, and the current economy clearly has not.)

In the case of the more recent recession, there are ups and downs after the end of the recession (June 2009) and the passage of health care reform (March 2010, shown in the chart), but the general drift is clearly down. Some point to the slight increase of the past six months, but there have been similar increases and decreases before and after the passage of health care reform. There is nothing noteworthy about the most recent uptick.

Under the Affordable Care Act, employers will be required to provide insurance to workers who work for more than 30 hours a week. This mandate does not take effect for another year. There is no reason why anticipation of it should increase part-time employment in the meantime. And at any rate, such employment has been falling before and after the passage of Obamacare.

Click through for that very illuminating chart of the data referred to in the quote above.

Ready October 6th, 2013 at 3:12 pm
In response to Josh Blackman @ 96

That’s what I meant. The states get their money any how without the expansion.

Josh Blackman October 6th, 2013 at 3:12 pm
In response to Tammany Tiger @ 97

It’s striking how poorly the President has sold the ACA. he had 60 votes in Congress, a huge lead in the House, and a tremendous popular mandate. And he couldn’t make a majority of the American people support his law!

Watt4Bob October 6th, 2013 at 3:13 pm
In response to Tweeder @ 75

You know, it’s really not sporting of you to insist on discussing reality.

Josh Blackman October 6th, 2013 at 3:13 pm
In response to Peterr @ 99

The administration has also unilaterally delayed the business mandate for a year (well, it won’t be enforced), so it will be hard to see for some time the implications of this decision.

Tweeder October 6th, 2013 at 3:13 pm
In response to Tammany Tiger @ 97

I call it “AHIPcare.” Or, “HeritageFoundationCare.”

Josh Blackman October 6th, 2013 at 3:14 pm
In response to Tweeder @ 104

HeritageCare works. Though, as early as 1991, Ilya’s employer, the Cato Institute, opposed Heritage’s mandate on constitutional grounds.

Ready October 6th, 2013 at 3:14 pm
In response to Josh Blackman @ 101

Selling a turd sandwich is hard work.

Ilya Shapiro October 6th, 2013 at 3:14 pm
In response to Josh Blackman @ 101

And this is a president who’s supposedly a master rhetorician!

Tweeder October 6th, 2013 at 3:14 pm
In response to Watt4Bob @ 102

My Bad. ;)

bmaz October 6th, 2013 at 3:15 pm

Don’t know if you hit this in the book or not (mine has not come yet), but one of the sections that has always bothered me is the one as to rescissions. Specifically 2712:

SEC. 2712. PROHIBITION ON RESCISSIONS.

A group health plan and a health insurance issuer offering group or individual health insurance coverage shall not rescind such plan or coverage with respect to an enrollee once the enrollee is covered under such plan or coverage involved, except that this section shall not apply to a covered individual who has performed an act or practice that constitutes fraud or makes an intentional misrepresentation of material fact as prohibited by the terms of the plan or coverage. Such plan or coverage may not be cancelled except with prior notice to the enrollee, and only as permitted under section 2702(c) or 2742(b).

Now I have litigated policy coverage on attempted rescissions before, and they most often involved strained, if not functionally spurious, claims of “fraud” and/or “misrepresentation” by the policy holder. Far from prohibiting rescission, it looks to me like Obamacare has ingrained and regularized the practice.

And, of course, one of the biggest brags of the Administration and ACA supporters is elimination of the practice by carriers. Any thoughts on this pretty important area?

GlenJo October 6th, 2013 at 3:15 pm
In response to Josh Blackman @ 92

Has Justice Roberts spoken out about the decision in public?

Ilya Shapiro October 6th, 2013 at 3:16 pm

Josh, if you were counsel to the challengers, is there anything you would’ve done differently?

And same question for if you’d been a government lawyer.

Ready October 6th, 2013 at 3:17 pm
In response to bmaz @ 109

My understanding is that anything you leave off your lengthy medical history they are all going to make you sign is going to be called fraud.

Therefore, they don’t have to pay for it.

Josh Blackman October 6th, 2013 at 3:17 pm
In response to GlenJo @ 110

Nope. A few days after the case was decided, he left the country for a summer abroad session in Malta. He said he was retreating to his “impregnable island fortress.”

Josh Blackman October 6th, 2013 at 3:17 pm
In response to bmaz @ 109

I have no idea :) The book doesn’t go too far into the weeds of the law. Though, suffice to say, a lot of these issues will be kicking around in litigation for many years to come.

Ready October 6th, 2013 at 3:18 pm
In response to Josh Blackman @ 113

I thought he vacationed in Maine. I guess that was just to brown nose Bush the Younger and he’s “moved on”.

Josh Blackman October 6th, 2013 at 3:19 pm
In response to Ilya Shapiro @ 111

I don’t know that the challengers could have done much differently. Perhaps Paul Clement could’ve spent more time rebutting the government’s saving construction during oral argument, but he had a lot to handle with the commerce/Necessary and Proper clause argument.

The government probably shouldn’t have waived the Anti-Injunction Act in the lower courts but they were stuck there.

The government *should* have been able to tell the Court that no state was at risk of losing 100% of their Medicaid funding. That would have given them a victory there. But because the government could not make that representation, they lost that issue.

GlenJo October 6th, 2013 at 3:19 pm
In response to Ready @ 112

How would an average person even attempt to push back if coverage is denied?

Tweeder October 6th, 2013 at 3:19 pm
In response to Josh Blackman @ 114

Litigation. That’s what we do best. 5% of the world’s population, 25% of its prisoners, and 50% of the lawyers.

Ready October 6th, 2013 at 3:20 pm
In response to GlenJo @ 117

That’s right. Who’s going to enforce them paying?

Want the answer? NO ONE.

That’s why I’m calling it an extortion racket here and now.

Josh Blackman October 6th, 2013 at 3:20 pm
In response to Ready @ 115

The Justices spend a week or two abroad teaching at various law school summer programs. Roberts was in Malta that year. Students from my school (South Texas College of Law) were there, and said he looked very relaxed

GlenJo October 6th, 2013 at 3:21 pm
In response to Josh Blackman @ 113

Well, at least THAT was an honest opinion.

Tammany Tiger October 6th, 2013 at 3:23 pm
In response to Josh Blackman @ 113

He wanted to spend his nights in Malta?

Sorry, couldn’t resist.

Ready October 6th, 2013 at 3:23 pm
In response to Josh Blackman @ 120

We have to presume the lives of the tools of the criminal elite are quite pleasant. Indeed we can be sure they are handsomely rewarded for selling the rest of the country out.

Josh Blackman October 6th, 2013 at 3:24 pm
In response to Ready @ 123

The Justices make about $10-15k for this summer class, plus travel costs.

bmaz October 6th, 2013 at 3:25 pm
In response to Josh Blackman @ 114

Heh, all I know is it looks like it has codified the same crap I have fought for decades!

Tweeder October 6th, 2013 at 3:25 pm
In response to Josh Blackman @ 124

I’m sure they have great health insurance too, ongoing.

Ready October 6th, 2013 at 3:26 pm
In response to Josh Blackman @ 124

Oh, so low compared to what a former general can make teaching one class at a public college.

Josh Blackman October 6th, 2013 at 3:26 pm
In response to bmaz @ 125

Yeah but now it’s new. And affordable! So you should care.

perris October 6th, 2013 at 3:26 pm

late to the thread, don’t know if this has been mentioned but many we here at the lake thought the mandate was unconstitutional unless it included a public option

now to shoot the mesenger;

The Cato Institute, the libertarian think tank where I hang my hat, played a central role in supporting the Obamacare challenge.

there is no such thing as an “economic libertarian”, that’s nothing but a marketing scheme, a market cannot regulate itself, it’s impossible, the fact that you rely on “a sanctity of contract” relies on regulations, the fact that you rely on ownership=regulations, the fact that you rely on a court system =regulations

whenever a “libertarian” claims they “want the market to regulate itself” what they really mean is this;

“we love the regulations that help us gather profit, we hate the regulations that force us into paying our bills”

now back reading the comments and back to the show

Josh Blackman October 6th, 2013 at 3:26 pm
In response to Tweeder @ 126

Of course. They are not on the Obamacare exchanges. This was a huge point of controversy with members of congress being put on the exchanges

Josh Blackman October 6th, 2013 at 3:26 pm
In response to Ready @ 127

Ilya worked for a certain General in a past life.

Tweeder October 6th, 2013 at 3:27 pm
In response to perris @ 129

Love it.

Ready October 6th, 2013 at 3:28 pm
In response to Josh Blackman @ 131

Oops.

perris October 6th, 2013 at 3:29 pm

Ready, you are exactly right. No one was happy with Obamacare. Liberals wanted single-payer, or something close to it. Conservatives didn’t like it,

we never expected single payer but it should have been the starting point, we could live with a mandate as long as it provided a public option

many of us would also like regulated competition across state lines

bmaz October 6th, 2013 at 3:32 pm

One of my favorite hobby horses in the ACA litigation is Elena Kagan. How she claimed to be walled off from the various litigations while she was Solicitor General, but was not really in the specific, not to mention she drove in general the office making the litigation decisions.

What are your thoughts on Kagan’s refusal to recuse, and how do you think that shaped the outcome?

Josh Blackman October 6th, 2013 at 3:32 pm
In response to perris @ 134

Private options would not exist for long aside a public option. The government can always undercut the private options on price. This spurred much of the opposition to the public option, and resulted in its demise.

Ready October 6th, 2013 at 3:32 pm
In response to perris @ 134

When the collapse of Obamacare happens the Republicans have their plan all ready to go.

Competition across state lines.
Health saving accounts.
And the greatest idea ever:
Shopping around for the best prices.

Ilya Shapiro October 6th, 2013 at 3:32 pm
In response to perris @ 129

I’m a classical liberal, not an anarchist, so yes I (and my Cato colleagues) believe we should have public law, courts, etc. And we’re pro-market, indeed, not pro-business. Take a look at the cases/issues where the U.S. Chamber of Commerce disagrees with the National Federation of Independent Business. Enabling rent-seeking and corporate subsidies are not parts of the libertarian agenda.

perris October 6th, 2013 at 3:33 pm
In response to Tweeder @ 132

thanks, tiz absolutely true, a market without regulations is called exactly what libertarian ism means, which is anarchy.

there is not a sane person alive who believes a government is not supposed to keep pathological corporations from pouring bronchitis into my kids air and dumping their cancer into my mothers water

and there is not a sane person alive who believes “the market” could possibly regulate itself from doing that

in fact, in a true democracy, the laws we right IS the “market deciding”

Josh Blackman October 6th, 2013 at 3:34 pm
In response to bmaz @ 135

Kagan is fascinating. My research suggests she totally walled herself off from the case, and had no reason to recuse. The much more important question is *why* did she wall herself off. You can see some of my thoughts here: http://joshblackman.com/blog/2013/09/08/the-question-no-one-asked-at-justice-kagans-confirmation-hearing-why-did-she-wall-herself-off-from-the-obamacare-litigation/

Ready October 6th, 2013 at 3:34 pm
In response to Ilya Shapiro @ 138

But yet, correct me if I’m wrong. You don’t want a strong government.

perris October 6th, 2013 at 3:34 pm
In response to Josh Blackman @ 136

not true at all

there are plenty of private options in the public sector, my dad had both health insurance and the veterans insurance, he also had medicare in addition to his private plan

in fact, the public option would force the private sector into having to actually compete

Tweeder October 6th, 2013 at 3:35 pm

And, all of it with the cardinal driver of Margin — opacity.

Tammany Tiger October 6th, 2013 at 3:36 pm
In response to Ready @ 137

You forgot tort “reform.” Incompetent doctors and butcher-shop hospitals will be given the equivalent of governmental immunity if the Republicans get their way.

Ready October 6th, 2013 at 3:37 pm
In response to Tammany Tiger @ 144

I did. Didn’t I?

dakine01 October 6th, 2013 at 3:37 pm
In response to Josh Blackman @ 136

Shouldn’t that be the goal? To get For Profit insurance out of the picture? It is the for profit that is at least a significant reason why “health care” costs in the US are so much higher (with worse over all results) than in the rest of the “developed” world.

As was also noted during those debates, we already have death Panels – they are the current insurance companies

Tweeder October 6th, 2013 at 3:37 pm
In response to perris @ 139

Yeah, Bill Black 101. Gresham’s Dynamic and all that.

Tammany Tiger October 6th, 2013 at 3:38 pm
In response to Ready @ 145

It’s easy to forget, since most states and the Federal Rules of Evidence have already erected high barriers to malpractice suits.

Josh Blackman October 6th, 2013 at 3:38 pm
In response to perris @ 142

Currently public options are limited to specific groups of people–veterans, civil servants, people without means, seniors, etc. This public option would be available for everyone. Most private options would not be able to compete on price with the government because the government does not have to make a profit (you may see this as a good thing). Eventually, private providers would drop out. We are already seeing this with companies like Aetna and Cigna not participant in certain exchanges because not enough profits are to be had. This will continue.

DWBartoo October 6th, 2013 at 3:38 pm
In response to Josh Blackman @ 130

Josh, this is a most informative Book Salon and very much appreciated.

Now, looking forward, as we are constantly urged to do, do you imagine that the rather significant unhappiness with this act will change over time, or will the reality of its failures and the truth of its purpose, described by FDL’s Jon Walker in this way, “If the incredible complexity at least provided some real advantages that might be understandable. Instead the ACA was made needlessly complex so it could purposely leave in place an inferior system that allows the health care sector to continue to rip off Americans” simply come to be common wisdom?

I think that a most apt description and one very widely endorsed among most everyone whom I know who has invested any time in investigating and considering this “signature legislation”.

Since the truth of that, and Obama’s deceit in “selling” this unhappy thing, is well known, how might opinion be changed? Or, will experience with the thing itself merely harden the disgust?

DW

perris October 6th, 2013 at 3:38 pm
In response to Ilya Shapiro @ 138

I’m a classical liberal, not an anarchist, so yes I (and my Cato colleagues) believe we should have public law, courts, etc. And we’re pro-market, indeed, not pro-business. Take a look at the cases/issues where the U.S. Chamber of Commerce disagrees with the National Federation of Independent Business. Enabling rent-seeking and corporate subsidies are not parts of the libertarian agenda.

most liberals are pro market, however a market cannot regulate itself, there is no such thing as a “free market” nor can there be

I am glad you recognize as a libertarian you do in fact love some regulations and not others

but that is my point

for instance, had you really not wanted to seek corporate subsidies you would never ever EVAH loby for or appky for a tax deduction, the very concept is a subsidy

so tell me one cato intitutee who doesn’t loby for or apply for tax deductions

Josh Blackman October 6th, 2013 at 3:38 pm
In response to dakine01 @ 146

That’s right. The public option would eliminate private options, in due time.

Ilya Shapiro October 6th, 2013 at 3:38 pm
In response to Ready @ 141

The things that government should be doing, it should be doing strongly/well/transparently/without corruption. There aren’t many of those things but policing the rules of the game is certainly central. So, for example, of course businesses — whether in corporate form or otherwise (I never understood the activist Left’s obsession with legal forms) — shouldn’t be polluting because that’s both tortious conduct and violates property rights.

bmaz October 6th, 2013 at 3:38 pm
In response to Josh Blackman @ 140

Pretty stunning that she started doing so BEFORE the thing even passed out of Congress OR there was even an opening on the Supreme Court though, no?

Almost seems “unprecedented”.

Josh Blackman October 6th, 2013 at 3:40 pm
In response to DWBartoo @ 150

Hi DW,
Thanks for the kind words. With 150+ comments so far, this has been a great discussion!

I don’t see this law gaining in popularity. For so long, half of America has been committed to this law’s defeat. And the other half has been, at best, ambivalent about a law that didn’t really go far enough (omitting a public option or single payer). I’m not optimistic.

perris October 6th, 2013 at 3:40 pm
In response to Josh Blackman @ 149

you make my point josh

did private schools go out of business when the public option became available?

did the auto industry go out of business because of busses?

of course not, nor would the insurance industry

Ready October 6th, 2013 at 3:40 pm
In response to dakine01 @ 146

When you have billion dollar health insurance CEOs, then yes, it should be the goal to get them out of the picture.

Also, least we forget, the highest paid CEOS in the U.S. today are not on Wall Street but in the pharma industry.

And what would TV broadcasters do without the billions spent on pharma advertising?

“Ask your doctor…”

Josh Blackman October 6th, 2013 at 3:41 pm
In response to bmaz @ 154

It is stunning. She had her eyes set on the Supreme Court since she was in high school. She is pictured in her HS yearbook wearing a robe, with a Felix Frankfurter quotation.

Ilya Shapiro October 6th, 2013 at 3:42 pm
In response to DWBartoo @ 150

Yes, our health care system is so frustrating — forgetting even Obamacare’s additions — combining the socialism with crony capitalism. I left Canada in part to get away from its healthcare system, but it would _great_ to try an actual market.

Josh Blackman October 6th, 2013 at 3:42 pm
In response to perris @ 156

But private schools can charge whatever they want to maintain a certain level of quality. Private insurers are now limited what they can charge. Price controls will make the marginal difference much less.

bmaz October 6th, 2013 at 3:43 pm
In response to Josh Blackman @ 158

Jeebus, I never heard that before.

perris October 6th, 2013 at 3:43 pm
In response to Josh Blackman @ 155

I don’t see this law gaining in popularity. For so long, half of America has been committed to this law’s defeat. And the other half has been, at best, ambivalent about a law that didn’t really go far enough (omitting a public option or single payer). I’m not optimistic.

I am not for the law as it stands however half the country is NOT for the law’s defeat, it’s for “obama care’s” defeat

when people are given the choice between the actual law or no law, (without using the pejorative “obamacare”) the majority is for the law

I am sure you knew that though

Ready October 6th, 2013 at 3:43 pm
In response to Josh Blackman @ 158

Some of us just know our “calling”. I guess.

perris October 6th, 2013 at 3:45 pm
In response to Josh Blackman @ 160

if there were a public option I would have no issue at all with insurance companies charging whatever they want

if that’s the only thing you have against a public option then we are in total agreement

Tweeder October 6th, 2013 at 3:45 pm
In response to perris @ 162

A recent poll of GOP voters showed that “ObamaCare” was far less popular than “The Affordable Care Act.”

bmaz October 6th, 2013 at 3:45 pm

Without delving into the Commerce Clause implications issue, what do both of you think will be the long term implications of the litigation and decision on future cases and law, whether in healthcare area o, maybe more importantly, overall?

Josh Blackman October 6th, 2013 at 3:46 pm
In response to bmaz @ 161

See, that’s why you have to read the book. Lot’s of good stuff. See http://www.huffingtonpost.com/2010/05/10/elena-kagan-but-one-speci_n_570732.html

DWBartoo October 6th, 2013 at 3:46 pm
In response to Josh Blackman @ 158

Somehow, Josh, that is not a very encouraging picture you paint of Kagan.

Do you consider that she will “grow” in the job, or will she be a relatively lesser light, for she seems, and historically, has appeared rather unwilling to really step up to the heavy lifting.

DW

Watt4Bob October 6th, 2013 at 3:47 pm
In response to perris @ 129

You won’t make much traction in this ‘discussion’ unless you agree to abide the ‘rule’ which is, as always, that you must ‘understand’ the ACA was the deeply flawed outcome of a viscious battle between two parties who hold “two completely irreconcilable philosophies of government”.

(see @50)

… as opposed to an obvious and gigantic scam, the product of kabuki theatre, and the tiresome game of revolving villians played by our elected representatives all of whom make a great show of being guided by deeply held principles, but have no principles whatever.

…or maybe bmaz is right, and this ‘discussion’ is just too ‘technical’ for me. (@ 42)

Josh Blackman October 6th, 2013 at 3:48 pm
In response to perris @ 162

Yes, Jimmy Kimmel had a great bit about this the other night. http://www.hulu.com/watch/539715 Again, the President has done a terrible job messaging this law. In fact, he has said he is proud of the term Obamacare http://www.hulu.com/watch/539715

Josh Blackman October 6th, 2013 at 3:49 pm
In response to DWBartoo @ 168

We can question her character because of her decision not to involve herself with this case as Solicitor General. But, since she has been on the Court, I have been really, really impressed with her writing and questions from the bench. Of course, she joined Roberts in finding the Medicaid expansion unconstitutional. Or did her vote, along with Breyer, temper that position?

Ready October 6th, 2013 at 3:50 pm
In response to Watt4Bob @ 169

I’m with you. Kabuki theater all the way.

The audience was the American serfs who believed all along they would actually get health care.

The American serfs are going to be very, very angry at the deception.

perris October 6th, 2013 at 3:51 pm
In response to Watt4Bob @ 169

I agree it was a scam, it is a corporate law, written by the industry themselves, (with the help of the cato institute) and the corporate judges were going to pass it

it happened to fall on roberts lap but it could have been alitos or scalaria, it was going to be someone if not robers

Ilya Shapiro October 6th, 2013 at 3:51 pm
In response to bmaz @ 166

Randy Barnett and I (and many others) have written how NFIB v Sebelius, regardless of its effect on healthcare or the economy, is a big win for the originalist/libertarian perspective on constitutional interpretation. The Court made clear that:

(1) the government can’t force people to buy something as a regulation of interstate commerce;
(2) a law can be necessary but not proper; and
(3) the federal government can’t coerce states by conditioning a huge amount of existing funding on the adoption of new regulations that transform the underlying program.

Each of those is a pretty big deal, and the third — which came from the Medicaid-expansion part of the case — will likely have the longest “legs” in terms of affecting future regulatory schemes.

Tweeder October 6th, 2013 at 3:51 pm
In response to Josh Blackman @ 170

“President has done a terrible job messaging this law.”
__

He was largely AWOL while it was in the congressional oven too. So, to the Republicans, it’s still a “Bill.”

BevW October 6th, 2013 at 3:51 pm

As we come to the last minutes of this great Book Salon discussion, any last thoughts?

Josh, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book.

Ilya, Thank you very much for Hosting this great Book Salon.

Everyone, if you would like more information:

Josh’s website and book and Twitter

Ilya’s website and Twitter

Thanks all, Have a great week. If you would like to contact the FDL Book Salon: FiredoglakeBookSalon@gmail.com

Ready October 6th, 2013 at 3:52 pm
In response to Tweeder @ 175

An unfunded bill at that.

perris October 6th, 2013 at 3:52 pm
In response to Josh Blackman @ 170

so then you knew the majority is not against the law, why did you post otherwise as if a fact?

perris October 6th, 2013 at 3:52 pm

stirred up the soup more then my share and have to go, g’night all

Tammany Tiger October 6th, 2013 at 3:52 pm
In response to Josh Blackman @ 158

Of all the Justices to quote, she chose perhaps the most turgid writer in the history of the Court. A classmate of mine, after wading through a Frankfurter opinion (I think his concurrence in a blue laws case), described his writing as “a disease.”

Josh Blackman October 6th, 2013 at 3:53 pm
In response to Tammany Tiger @ 180

There’s a joke that Frankfurter would always talk at conference for exactly fifty minutes, because that is how long a Harvard Law School lecture was.

Tammany Tiger October 6th, 2013 at 3:54 pm

Josh and Ilya, thanks for coming today. It was time well spent.

GlenJo October 6th, 2013 at 3:54 pm
In response to DWBartoo @ 150

Yes, it will be interesting to see public opinion in a couple of years. Not sure where that’s going to go, but American health care sucks and given five or so years of Obamacare, they will be still dealing with the basic fact that American health care still sucks. It’s not like there’s been a healthcare miracle in Massachusetts where Romney implemented his own form of Obamacare.

As far as the government showdown on Obamacare, I’m not sure it was smart for the right to pick the one thing Obama may go to the mat on for their showdown unless they’re going to take a run at SS and Medicare. Why bother? They can get him to roll over on anything else, and Obamacare is about 50/50 for becoming the legacy that no one would want.

Tweeder October 6th, 2013 at 3:54 pm
In response to perris @ 173

Last week at Health 2.0 2013 in Santa Clara, medical economist JD Kleinke called the ACA “a radical expansion of the status quo.”

Josh Blackman October 6th, 2013 at 3:55 pm
In response to Tammany Tiger @ 182

Thanks so much. This was fun!

Josh Blackman October 6th, 2013 at 3:55 pm
In response to GlenJo @ 183

I think that’s about right. It had problems before, and it will have new problems in the future.

Tweeder October 6th, 2013 at 3:55 pm

Yeah, thanks to the authors.

Josh Blackman October 6th, 2013 at 3:56 pm
In response to Tweeder @ 184

I like that!

Josh Blackman October 6th, 2013 at 3:56 pm
In response to Tweeder @ 187

Oh, Ilya is not an author. Just me. But Ilya has several lines in the index (as I’m sure he will point out).

bmaz October 6th, 2013 at 3:57 pm
In response to Watt4Bob @ 169

Naw, I didn’t say or mean that.

Ready October 6th, 2013 at 3:57 pm

Thanks Josh.

“a radical expansion of the status quo.”
So true. Collaspe of the health care system is not far off.

I know the elite don’t have a clue but all those people sitting way up top soon will have nothing to sit on.

DWBartoo October 6th, 2013 at 3:57 pm
In response to Josh Blackman @ 171

Do you think, Josh, that Kagan will stake out a position that will lead to directly contending with Roberts, to “balance”, as it were, the ideological shift to the right we have witnessed for quite some time, or will she be a more of a “centrist”?

DW

Josh Blackman October 6th, 2013 at 3:57 pm
In response to Ready @ 191

Thanks!

Ilya Shapiro October 6th, 2013 at 3:58 pm

Thanks very much, everyone. I’ll also make a shameless plug for the work of my colleague Michael Cannon, http://www.cato.org/people/michael-cannon. The GOP may not be doing a good job of producing or communicating what it would replace Obamacare with, but Cato has thought long and hard about what a better system would look like. (But not me – I’m a simple constitutional lawyer. :-)

bmaz October 6th, 2013 at 3:58 pm
In response to Ilya Shapiro @ 174

Yes, kind of agree as to the Medicaid ruling import.

DWBartoo October 6th, 2013 at 3:59 pm
In response to Tweeder @ 184

That is superb, Tweeder.

DW

Josh Blackman October 6th, 2013 at 3:59 pm

Thanks everyone! Please tell your friends to get a copy too http://www.amazon.com/gp/product/1610393287/ref=as_li_tf_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=1610393287&linkCode=as2&tag=joshblaccom-20

The book is a great read, and has gotten great reviews so far.

Ilya Shapiro October 6th, 2013 at 4:01 pm
In response to Josh Blackman @ 189

Indeed, it’s the first book in which I have two lines in the “Washington read.”

bmaz October 6th, 2013 at 4:01 pm

Thank you for joining us here Ilya and Josh.

DWBartoo October 6th, 2013 at 4:02 pm

Although the Salon is officially over, if it should continue for awhile, I imagine no one would mind.

In any case, it has been superb and my heartfelt thanks to Josh, Ilya, and Bev … and to all who comment, here, so wonderfully well.

DW

bmaz October 6th, 2013 at 4:02 pm
In response to Ilya Shapiro @ 199

You SURE that wasn’t Ilya Somin??

Josh Blackman October 6th, 2013 at 4:03 pm
In response to bmaz @ 200

Thanks bmaz for helping to make this happen!

Josh Blackman October 6th, 2013 at 4:03 pm
In response to DWBartoo @ 201

Thanks so much, it was a blast!

Watt4Bob October 6th, 2013 at 4:03 pm
In response to perris @ 173

And all the litigation surrounding the ‘scam’ is nothing but lawyers making money on either side of the issue, just like Wall $treet making money either way the ‘market’ goes.

We’re being asked to believe that the deep-thinkers of the Cato institute can both write the law, and oppose it before the Supremes, all on priciples, of course too ‘technical’ for us the ‘great un-washed’ to properly comprehend.

bmaz October 6th, 2013 at 4:04 pm
In response to Josh Blackman @ 206

Oh, I agree completely! Kind of why I tagged that on at the end….

Ilya Shapiro October 6th, 2013 at 4:07 pm
In response to Watt4Bob @ 205

Cato was always opposed to the individual mandate. Don’t confuse us with Heritage.

CTuttle October 6th, 2013 at 4:08 pm
In response to Josh Blackman @ 198

Mahalo Nui Loa, Josh, Ilya, Bev, and Commenters, for another excellent Book Salon…! *g*

DWBartoo October 6th, 2013 at 4:12 pm
In response to Josh Blackman @ 203

I just knew bmaz was involved, so I extend my appreciation (which he always has, if not necessarily enjoys) to him as well.

;~DW

RevBev October 6th, 2013 at 5:54 pm
In response to DWBartoo @ 192

Tune in again next week…

Watt4Bob October 6th, 2013 at 7:34 pm
In response to bmaz @ 190

Some of this discussion may be technical for some readers here.

So then, what exactly did you mean by this?

Let me explain how I took it;

This whole ‘fight’ over the ACA has been incredibly interesting if you’ll only take the time to acquaint yourselves with the various corporate interests, the players on both sides of the isle, and the various tactics employed by each to pass, or prevent the bill from becoming law.

It’s been a historic moment in the history of our government, coming as it does at the height of a crisis based in an unprecedented partisan divide that is threatening to tear our country apart.

The monumental complexity, and difficulty of crafting this legislation, together with the vehemence with which it has been opposed, has resulted in mistakes that leave it flawed and apparently doomed to failure.

The argument reached the level of the Supreme Court, and resulted in the engagement of hundreds of the country’s best legal minds, working for all of the biggest think tanks representing every philosophical stripe and flavor.

All of this has been immensely interesting and especially to those of us trained in the legal profession.

Everyone was waiting with baited breath to hear on what grounds the Supreme Court would declare that the ACA un-constitutional, when, low and behold, they not only upheld the law, but Chief Justice John Roberts not only cast the tie-breaking vote, but supplied the special sauce that perfected the recipe and aren’t we all so surprised!

W4B

That whole story is a lot of bullsh*t.

There was no real fight, our congress critters just delivered what was demanded of them by the Health Insurance industry, and short-circuited any real chance that We the People had of getting meaningful healthcare reform.

We got the shaft, there is nothing interesting about getting f*cked in this manner.

There isn’t a single point in your whole ‘inside-baseball’ portrayal that rises to the level of real political drama that you try so hard to pedal.

The whole story boils down to ‘Heads we win, tails you lose’.

There is no fodder in this tale to justify the fraudulent books and faux analysis, just the vaporous trails of empty promises and lies.

Watt4Bob October 6th, 2013 at 7:47 pm
In response to Ilya Shapiro @ 208

Sorry, you’re right, my bad.

However that mistake doesn’t change my basic observation that the Cato Institute did not contribute to a lively and spirited debate so much as add to the chaos that was meant to, and indeed did provide cover to our legislators while they birthed the Health Insurance Industry Protection Act.

An act crafted by the industry and previously championed by the same Republicans who now profess their opposition because those are the rules of the rotating villian game.

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