Brad DeLong

In Which I Disagree with Josh Barro on Paul Ryan: Arithmetick Has to Be Primary: "Hey Rocky! Watch Me Pull a Rabbit Out of This Hat!" Blogging

Josh Barro says that Mitt Romney's selection of Paul Ryan isn't all bad--that Ryan "has also been willing to go out on a limb for useful but unpopular fiscal ideas". In the past thirty-five years I have seen lots of Republican "willing to go out on a limb for useful but unpopular fiscal ideas", but in each case the problem is that the limb they go out on does not add up arithmetically. They propose unpopular but useful fiscal ideas in the overall context of a plan that is best summarized as: 2+2=576.

That never works.

It did not work in 1981. It did not work in 1989. It did not work in 2001. It did not work in 2003. It did not work in 2005.

Arithmetic has to be primary. And, with Ryan, it simply isn't.

Josh Barro:

Romney-Ryan: The Bain & Co. Ticket : At first glance, Mitt Romney’s choice of Paul Ryan as his running mate pick is baffling. For months, a key component of Romney’s strategy has been policy vagueness -- avoiding specific, attackable proposals and keeping the focus on the unpopular incumbent. Now he has chosen a running mate with his own detailed, and easily attacked, fiscal plan. I can only conclude that… Romney… probably believes Ryan would help him be a more effective president…. Paul Ryan reminds me of people I know at Bain and McKinsey who thrive on… analytical teams. The other possible picks for vice president do not…/

And a major fiscal adjustment is likely to be the most important economic policy made during the next administration. Ryan is the most important Republican policymaker on fiscal policy in Washington, and he could lead the Romney administration’s efforts in the area.

The key question is, would Ryan be a good fiscal czar? The answer isn't obvious. Ryan’s brilliance, and the soundness of his fiscal plans, is vastly overrated on the right. But it’s become fashionable on the left to say he’s a charlatan, which isn’t right either.

The various incarnations of Ryan’s plans for fiscal reform suffer from a lot of the same problems as Romney’s fiscal plans: excessive vagueness and blanks left in the hard parts. For example, Ryan’s last budget had $389 billion in unspecified Medicare savings over the next decade, on top of President Barack Obama’s proposed cuts, while repealing some of Obama’s cost control mechanisms.

But Ryan has also been willing to go out on a limb for useful but unpopular fiscal ideas. One is Medicare premium support…

But here Barro needs to say: "unfortunately, Ryan's Medicare Premium Support proposal is arithmetically incoherent"--which it is.

As Peter Orszag writes:

Paul Ryan Is Thoughtful, Handsome and Misguided - Bloomberg: Ryan’s approach to health care is somewhat akin to a doctor observing that an arm is finally showing some signs of healing -- and then deciding to amputate it. Over the past several years, health-care costs have decelerated dramatically -- suggesting our broken arm may slowly be starting to heal. But rather than reinforcing that progress, Ryan would chart a drastically different course, one that would not only shift substantial risk to beneficiaries but also, according to the Congressional Budget Office, actually raise health-care costs….

I have put forward numerous proposals to reinforce [recent favorable healthcare cost growth] trends. Our proposals have three core attributes: They build on recent progress, they recognize there is no one simple solution to increase value in health care, and they emphasize the role of providers rather than insurance companies in improving that value.

Ryan, by contrast, ignores the recent progress -- which in some sense is understandable, lest he diminish the energy for his own radically different course. Ryan is enamored with one big but wrong idea: that all we need to do is reshuffle risks and health-care costs will magically decelerate. He would shift risk onto Medicare beneficiaries through his premium support proposal and onto state governments by block-granting Medicaid. Both would rely substantially on insurance companies to make them work, and neither is likely to turn out the way he says.

Let’s start with the Medicaid proposal. Under the Ryan budget, states would receive a fixed grant to run Medicaid programs, rather than sharing in the cost with the federal government. The grants would not keep pace with economic growth, let alone with projected health-care costs. Voila! Problem fixed, right? Under current law, federal Medicaid spending is projected to rise from about 2 percent of GDP today to about 4 percent by 2040. Under the Ryan budget, it is instead projected to fall from 2 percent of GDP today to about 1 percent by 2040.

But how will this change reduce total Medicaid spending by anything like 75 percent of projected expenses? One explanation is that states will turn to insurance companies to help manage more of their beneficiaries. That is unlikely to produce anything like the necessary savings. And if it doesn’t, states will find themselves ever more on the hook for the difference. Ryan provides no explanation for how state governments, already facing threatening fiscal gaps, will be able to handle the growing gap…. [Ryan's] whole Medicaid proposal appears as a massive magic asterisk rather than a bold idea.

What about Medicare? Under the Ryan budget, after some time, the government would issue payments that would allow new Medicare beneficiaries to purchase insurance from private firms. The payments would not keep pace with currently projected health-care spending (notice a theme here?), and as a result would appear to reduce costs for the federal government…. CBO’s analysis, not surprisingly, confirms that federal expenditures under the Ryan Medicare plan would be reduced sharply…. But CBO also analyzed a more relevant question: What would happen to total health-care costs, including the extra costs for the beneficiaries as the federal share was reduced? Total costs are what matters, since simply shifting costs around without altering the total does not accomplish much. According to CBO, Ryan’s plan would… increase the total [of health-care costs], because more cost-sharing for consumers doesn’t do that much to constrain spending and because private plans have higher administrative costs and less negotiating leverage than the federal Medicare program.

You read that right: According to CBO, the Ryan Medicare plan would increase health-care spending. In 2030, total health- care spending for the typical beneficiary would be more than 40 percent higher under the Ryan plan than under existing Medicare.

Again, I like Paul Ryan. But that doesn’t mean his Medicare and Medicaid ideas make any sense. They’d shift too much risk to individuals and states at a time when we’re finally making solid progress in slowing health-care costs, and the rhetoric surrounding them claims savings that are never going to materialize. That makes Ryan’s proposals problematic, unnecessary and misleading.

The big problem, I think, is that budget policy has to be policy: your changes in proposed spending levels have to be created by changes in what the government does and how the government does it. Ryan, by contrast, thinks budget policy is made by having somebody on Capitol Hill decree that a line on a graph will have a different slope.

We have seen Republican politicians do this a lot over the past thirty five years--the infamous pioneer of this was, of course, David Stockman, back in 1981.

That trick didn't work then. That trick is very unlikely to work now. That trick never works.

Paul Ryan Says Alice Rivlin Would Like His Medicare Plan. Alice Rivlin Disagrees

Jonathan Cohn:

Paul Ryan Says Alice Rivlin Would Like His Medicare Plan. Alice Rivlin Disagrees: When Paul Ryan introduced his proposal for converting Medicare into a system of “premium support,” he reminded everybody that it closely resembled another Medicare proposal—one he’d developed with Alice Rivlin, the Brooking scholar and former Clinton Administration advisor. “Alice Rivlin is a great, proud Democrat,” Ryan said. “This path to prosperity builds upon those Ryan-Rivlin plans that we put in here.”…

Rivlin says she cannot support the new Ryan plan for two key reasons—and she has spent the last 24 hours telling anybody who would listen about them…. Rivlin… wouldn’t force people into private insurance. The new Ryan plan would.

The other key difference is the money. In a premium support system, the value of the voucher grows by some fixed formula. Ryan-Rivlin set that formula at GDP+1…. But the voucher in the new Ryan plan would increase in value even more slowly than the voucher in Ryan-Rivlin. Instead of rising at GDP+1, it would rise at inflation….

“In the Ryan version, he has lowered the rate of growth and I don’t think that’s defensible,” Rivlin said. “It pushed too much of the cost onto the beneficiaries.” As Ezra Klein observed, “it’s totally unrealistic. … either those savings aren’t real or we’re assuming America is going to abandon seniors and the disabled in a way that has no recent precedent.”…

Ezra just posted a full interview with Rivlin, in which she not only reiterates her rejection of the new Ryan plan but explains why she supports, as an alternative on health care, the Affordable Care Act:

...there’s a great deal in the Affordable Care Act in terms of research, pilot programs, alternative payment structures, alternative delivery systems, research on the effectiveness of treatments, that is needed. That’s why we need to keep the Affordable Care Act and strengthen the parts that hopefully give us more cost-effective care in the future. If you just control the federal spending without changing the delivery system, you just get cost shifting.

Ezra Klein: The Democrats have a plan for controlling health-care costs. Paul Ryan doesn’t

That is all.

Mitt Romney Spokesperson Andrea Saul Endorses the ACA's Individual Mandate!

Igor Volsky

ThinkProgress:

Mitt Romney spokesperson Andrea Saul appeared on Fox News Wednesday morning to criticize a controversial Priorities USA ad, which implies that the former Bain Capital executive is to blame for a woman’s death after her husband was laid off by the company….

SAUL: To that point, you know, if people had been in Massachusetts under Governor Romney’s health care plan, they would have had health care. There are a lot of people losing their jobs and their health care in President Obama’s economy.

Mitt Romney Calls for the U.S. to Copy israel's Big-Government Single-Payer Health System

Mitt Romney:

Do you realize what health care spending is as a percentage of the G.D.P. in Israel? Eight percent. You spend eight percent of G.D.P. on health care. You’re a pretty healthy nation. We spend 18 percent of our G.D.P. on health care, 10 percentage points more. That gap, that 10 percent cost, compare that with the size of our military — our military which is 4 percent, 4 percent. Our gap with Israel is 10 points of G.D.P. We have to find ways — not just to provide health care to more people, but to find ways to fund and manage our health care costs.

Sarah Kliff::

Israel… requir[es] all residents to carry insurance and capping revenue for various parts of the country’s health care system. Israel created a national health care system in 1995, largely funded through payroll and general tax revenue. The government provides all citizens with health insurance: They get to pick from one of four competing, nonprofit plans. Those insurance plans have to accept all customers—including people with pre-existing conditions—and provide residents with a broad set of government-mandated benefits…. Israel’s health care costs have hovered around 8 percent of its gross domestic product for over two decades…. Israel’s lower health care spending does not look to sacrifice the quality of care. It has made more improvements than the United States on numerous quality metrics, and the country continues to have a higher life expectancy….

The national government exerts direct operational control over a large proportion of total health care expenditures, through a range of mechanisms, including caps on hospital revenue and national contracts with salaried physicians. The Ministry of Finance has been able to persuade the national government to agree to relatively small increases in the health care budget because the system has performed well, with a very high level of public satisfaction.

The Israeli Ministry of Finance controls about 40 percent of Israel’s health care expenditures through those payments to the four insurance plans. The  ministry decides how much it will pay the health plans for each Israeli citizen they enroll, making adjustments for how old a person is and how high their health care costs are expected to be. It’s then up to the health insurance plan to figure out how to provide coverage within that set budget. If they spend too much—have a patient who is constantly in the hospital, for example—they will find themselves in the red. It’s that set budget—a capitated budget, in health policy terms—that seems to be crucial to the Israeli health care system’s success in cost control.

The Tribute to Britain's National Health Service...

…at the opening of the Olympic Games in London.

Ann Marie has posted the video at:

http://marciarille.com/2012/07/britains-national-health-service-at-the-olympics.html

Rory Staunton: Toxic Shock Syndrome Awareness and Education

Medical error: Official Website: Toxic Shock Syndrome Awareness and Education

I Am, Like Aaron Carroll, Annoyed at Zombie Health Care Ideas...

…and Tyler Cowen is annoyed because Aaron Carroll does not engage his main conclusions but rather picks on the little bitty "facts" he published in thee New York Times.

Aaron explains. I call this for Aaron, 6-0, 6-0, 6-0:

Tyler Cowen on me on Medicaid Wars talks about his belief that Americans will someday vote to rebel against Medicaid… says Republicans might try to take it apart… [proposes how to] alter the Medicaid expansion… [calls for] a subsidized and mandated catastrophic plan with a free market for everything else. None of that is “wrong”; it’s opinion. That’s not what annoyed me, so I didn’t write about it…. I welcomed the above.

What bothered me were [Tyler's] little snippets of information along the way….

1. I read in Cowen’s piece the idea that single payer systems lead to longer lines. I dispute this. Doctor shortages and an underfunded systems lead to wait times. We always point to Canada, but their wait times (overblown) are because they keep the budget down. You can have a single payer system and no wait time problem (see Medicare)…. [A]ny increase in patient coverage without increasing the doctor supply will potentially lead to longer wait times. It doesn’t matter if the coverage comes from Medicaid, Medicare, or private insurance.

2. I read in Cowen’s piece the idea that Medicaid has never been popular…. Does he mean Republican governors don’t like it? I agree. Does he mean there will be a political battle over it? Sure. But those are not traditional meanings of “unpopular”…. Ezra Klein says… "A recent Kaiser tracking poll found that 88 percent of Americans wanted either no reduction or small reductions in Medicare funding. At 83 percent, Medicaid was close on its heels." I don’t see that as “unpopular”….

3. I read in Cowen’s piece the idea that docs don’t accept Medicaid…. There’s a doctor shortage in the US, period. Lots of doctors aren’t taking new patients, period. Medicaid isn’t the worst offender here. Moreover, this issue is all about reimbursement. Medicaid gives too little. It doesn’t make me an ACA “apologist” to note that the law tries to fix that. It might work.

4. I read at the end of Cowen’s piece a preference for a more free market system on top of catastrophic insurance. I see no evidence for why that would be superior on cost control…. I see it as trying to move in the opposite direction of nearly every other country, and they are cheaper, universal, and often just as good.

Bottom line… memes like these… are the equivalent of “all insurance companies are evil” and “the pharmaceutical companies just want to make money and screw you”…. [T]hese [are] “zombie ideas”. I think we could make our arguments without resorting to them. I wish everyone (including Cowen) would stop using them and stick to facts.

Tyler Cowen Annoys Aaron Carroll

Aaron Carroll writes: Let’s try to stick to the real world when we talk about Medicaid.

Tyler Cowen annoys him in five ways:

1. claim[ing] that we can’t “afford” more government intervention or, god-forbid, single-payer. That kind of statement willfully ignores the fact that every country that has MORE government intervention spends LESS.

2. claim[ing] that an expansion of government insurance leads to lines and waiting when lots of countries have universal access and less of a wait-time problem than we do. Moreover, almost no one makes this argument when we expand private insurance, only government.

3. blanket claim[ing] that doctors won’t accept Medicaid. Such statements often ignore the fact that the majority of Medicaid beneficiaries are children and pregnant women. We don’t need all types of doctors to accept Medicaid patients in equal numbers. They also ignore the fact that lots of doctors won’t accept new patients with Medicare or private insurance, either.

4. claim[ing] government programs are “unpopular”. Like Medicare? I don’t think so. Is there any evidence that Medicaid is unpopular? I’d like to see it. Personally, I think that the fact that (a) all 50 states have bought in over time and (b) the Supreme Court just ruled that threatening to take it away is “coercive” speaks to the opposite. Additionally, polling shows the opposite of what Tyler (and lots of others) suggest.

5. blanket acceptance of the awesomeness of the free market in health care, when there is no phenomenal evidence of its success. And again, those countries with less free market are cheaper, universal, and often just as good. So why are we always trying to run away from them?

Look, I get that people may not like the political implications of those systems. They may not like the governments that produce them. They may not like the lack of choice inherent in such systems. They may not like the potential limitations within them for making money, and therefore for innovation. But we need to stop making stuff up.

In What Sense Did the Individual Mandate Survive John Roberts?

You know, I think Chief Justice John Roberts could have avoided nearly all of the bile being hurled at him by the more wild-eyed denizens of the right-wing deep:

Randy Barnett: John Roberts’ Travesty, Point by Point: In my view, the decision did lasting damage to Chief Justice Roberts’ public reputation. This seems to be the defining moment of his Chief Justice-ship, at least for years to come.  It is hard to imagine Republican politicians citing John Roberts as the type of justice they favor nominating in the future (as many did up until now). Whether or not the decision does lasting damage to the Constitution and the Court, however, itself will depend on how the political process responds…

had he made a very minor change in the way he wrote up his opinion.

If, instead of writing:

the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one…

he had instead, written:

the mandate is a legal command to buy insurance that is neither necessary nor proper to the regulation of commerce among the several states. But we are not done. §5000A(b) imposes an addition to the income tax on Americans, an addition to the income tax waived for those who provide evidence that they are covered by health insurance. The question is whether this tax provision §5000A(b)--itself clearly within the congressional power to tax incomes from whatever source derived--must fall with the mandate, or whether this tax provision can be severed and allowed to stand. Were the sole purpose of §5000A(b) to merely enforce the unconstitutional mandate, it would be unseverable and would fall. But §5000A(b) has another purpose: to raise revenue to pay the cost of the expansions of health-care coverage. Since Congress clearly has the power to amend the income tax code to include §5000A(b), that portion of the Affordable Care Act can and indeed must be severed, and stands…

Would Randy Barnett and company be so exercised? Would they then be ranting about how John Roberts

did lasting damage to [his] public reputation… the defining moment of his Chief Justice-ship… [threat of] lasting damage to the Constitution and the Court…

if Roberts had just said that §5000A(b) has two purposes--to enforce the (unconstitutional) mandate and to raise revenue--and that even though it falls under the first it stands under the second?

Very Rough Transcript: UC Berkeley July 2, 2012 SCOTUS ACA Decision Panel

Corrections from anybody listening to the panel most welcome...

John Ellwood: Welcome everybody, welcome to our session on the Supreme Court ruling on the Affordable Care Act, or if you don’t like that "ObamaCare"…

Brad DeLong: RomneyCare!

John Ellwood: We are fair and balanced here at Berkeley.

Last and first, this session is sponsored by the Goldman School of Public Policy, which is footing the bill, and I thank my gracious dean; by the Robert Wood Johnson Post-Doctoral Program in Healthcare; and by the Berkeley Law School at Boalt Hall, which has kindly given us this room.

Last Thursday, obviously, the Supreme Court released its opinion on the Affordable Care Act. In my view, the decision represents another step in the what I would call the 100-year struggle between those I see on the left to provide as close to universal access to healthcare as possible, to control the costs of healthcare, and to improve the quality of healthcare. The purpose of today’s event is to begin a conversation about the case, and to continue the conversation on these issues: access, cost, and quality.

To me, the case is fascinating because it involves everything--it certainly involves major issues of constitutional law, which we’ll get to; it involves major issues in the economics of healthcare, and the incentives thereof; it involves major issues in the implementation of the complex law that is trying to change a major part of America, over 15% of the economy; and it is all about politics. I’m a political scientist by training--so the last, obviously, is where you start: it is a political event.

We put together a panel of experts who could speak on each of these points and issues. Our goal today is to begin the discussion. Each panelist will speak--hopefully for less than 10 minutes--and then we will open it for questions, discussion among the panel, or between the panel and you folks.

Jonathan Bernstein Tells Us Why America's Bright Future Depends on the Rapid Elimination of Today's Republican Party as an Electoral Force

Jonathan Bernstein:

A plain blog about politics: Believe What You're Saying: [A] really excellent Jackie Calmes story in Saturday's NYT about the continuing farce that is the GOP position on Medicare. Perhaps because the Times gave it a bland headline ("Delicate Pivot as Republicans Blast Rivals on Medicare Cuts") instead of something more accurate, such as "Republicans Are Shockingly Hypocritical, Irresponsible, and Flat-Out Full of Crap on Medicare Cuts." To review:

1. Medicare cuts were the main specific complaint about health care reform that Republicans used in the 2010 campaign, and are still using today. At least in GOP ads, medicare cuts were probably a more common attack than general complaints about "liberty" or even the mandate. Opposing the ACA Medicare cuts was what Republicans ran on in 2010, and are running on today.

2. Republicans support the cuts that they ran, and are running, against. Soon after arriving in Washington, that Tea Party class of 2011 voted for the Ryan budget which contained the very Medicare cuts they campaigned against.

3. While also voting to repeal Obamacare, and thus eliminate the significant benefits for Medicare recipients in the ACA, including closing the donut hole and free preventative measures.

4. And while supporting the Ryan plan to transform Medicare into a new program that would certainly cut benefits far more than would be the case under the ACA.

5. All of which doesn't even account for absolute Republican opposition to the long-term cost-cutting measures in ACA (such as the IPAB) -- while at the same time Republicans also have been bashing Barack Obama and the Democrats for not being willing to do "entitlement reform."

Calmes does a first-rate job of telling that story…. [T]he plain fact that Republicans actually support the Medicare cuts they've been running ads against for the last four years is, well, astonishing. And that's without the rest of this whole sequence (which includes, of course, the fraud of "repeal and replace" as well).

Video: SCOTUS ACA Health Care Decision Panel: U.C. Berkeley: July 2, 2012 10 AM

From left to right: John Ellwood, Jesse Choper, Steve Shortell, Brad DeLong, Ann O'Leary, and Ann Marie Marciarille:

SCOTUS Rules, Cal Responds: UC Berkeley Experts Assess Impacts of the Supreme Court’s Landmark Decision on the Affordable Care Act - UCTV - University of California Television: UC Berkeley convenes panel of experts to analyze the impacts of the Supreme Court's decision to uphold the Affordable Care Act, or "Obamacare." Professors of law, economics, and public health look at what the decision means for future health reform, constitutional law, medical care, health insurance, public policy and politics. (#24120)

John Ellwood: 00:55
Jesse Choper: 15:00
Steve Shortell: 30:30
Brad DeLong: 45:50
Ann O'Leary: 55:30
Ann Marie Marciarille: 1:07:33
General Questions: 1:19:40

ACA SCOTUS Decision Conference Call

Learn From the Experts - Doctors for America

ACA SCOTUS Decision Conference Call: Harold Pollack hosts an all-star team of policy experts - Henry Aaron, Jonathan Gruber, Timothy Jost, Mark Peterson - who share their insights and reactions to the Supreme Court decision upholding the Affordable Care Act.

• Henry Aaron is the Bruce and Virginia MacLaury Senior Fellow at the Brookings Institution. He has served as Assistant Secretary for Planning and Evaluation at the Department of Health, Education, and Welfare. He is a member of the Institute of Medicine and the American Academy of Arts and Sciences. He has been vice president and member of the executive committee of the American Economic Association and was president of the Association of Public Policy and Management.

• Jonathan Gruber is Professor of Economics at MIT. A member of the Institute of Medicine, he was awarded the American Society of Health Economists Inaugural Medal for the Best Health Economist in the Nation aged 40 and under. Dr. Gruber was a principal architect of the Massachusetts health reform (“Romneycare”) and later the Affordable Care Act.

• Timothy S. Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. A regular contributor to the Health Affairs blog and an elected member of the Institute of Medicine, he is the author of numerous books and articles regarding legal and implementation issues in health reform.

• Mark Peterson is Professor of Public Policy, Political Science, and Law at UCLA. He is a founding team member of the UCLA-based multidisciplinary Blue Sky Health Initiative to transform the U.S. health and health care system, which has helped advise Congress on the inclusion of disease prevention and health promotion strategies in the current health care reform legislation. Previously, as an American Political Science Association Congressional Fellow, he served as a Legislative Assistant for Health Policy in the Office of U.S. Senator Tom Daschle. During 2000-2003 he was on the Study Panel on Medicare and Markets organized by the National Academy of Social Insurance.

Let Us Have a Constitutional Moment Here, Nino...

Maybe I am simply being stupid, but it seems to me that there were three nearly-indistinguishable ways to structure the "mandate" part of the Affordable Care Act:

1. A command to purchase health insurance--under pain of losing (part of) your tax refund.

2. A command to have purchased health insurance continuously since the effective date of the ACA when you show up at the emergency room--under pain of having to pay the back premiums plus a fine.

3. Simple "play or pay"--purchase health insurance or else pay an extra tax to cover the costs of treating you when you show up, uninsured, at the emergency room.

Only the first of these might be unconstitutional under any theory that the commerce clause does not allow the regulation of "inactivity". The second and third are fine. And, indeed, five justices say that the first is fine precisely because when the rubber hits the road it is indistinguishable from (3), which is a simple and constitutional exercise of the government's taxing power.

Had the Supreme Court announced at the start of 2010 that justices were going to start ruling that congress could not regulate "inactivity", the Reconciliation bill that completed the Affordable Care Act would have contained an explicit "play or pay" tax provision, and the recent Affordable Care Act decision would have been 9-0 for the government.

Moreover, had the issue of the regulation of "inactivity" reached the Supreme Court in the context of a test of a health-care reform plan enacted by a Republican President Mitt Romney or John McCain--as it might well have--then the Court would have ruled the regulation constitutional by 7-2 or 8-1 or 9-0.

And had the issue of the regulation of "inactivity" reached the Supreme Court in the context of a test of a Social Security privatization plan enacted by a Republican President George W. Bush--as it might well have--then the Court would have ruled the regulation constitutional by 7-2 or 8-1 or 9-0.

I thus find it impossible to escape the conclusion that the drive of Our New Four Horsemen--Alito, Kennedy, Scalia, and Thomas--to strike down all of ObamaCare on the rather interesting grounds that the mandate is both not a necessary and proper means to regulate interstate health-care commerce and such an important part of the structure of the ACA that not a word of it can survive its excision is not an act of text- and precedented-oriented legal technicians or an act of moral judges establishing justice or of political judges deciding what kind of country we should be, but merely an act of partisans striking down a law because it was passed by the other party when they would have been perfectly happy to uphold laws resting on the same principles had they been passed by politicians or their party.

Now I do not mind Constitutional Moments: Marbury v. Madison is good law, and it is a powerful precedent for the principle that when the chips are down and the s--- hits the fan Supreme Court justices become political actors shaping what kind of country we are going to be (and moral actors establishing justice) rather than mere text- and precedent-oriented legal technicians.

But Constitutional Moments are moral and political actions--not partisan ones. Whatever you think of the Old Four Horsemen of the 1930s--McReynolds, van Deventer, Southerland, and Butler, the guys who begged Hoover not to put Cardozo on the Supreme Court because Brandeis was already one kike too many--they ruled New Deal legislation unconstitutional because they believed that America should not become a social-democratic country, not because they were Republicans and FDR was a Democrat.

It is in that context that I find distinctly odd Ilya Somin's claim that Roberts violated his oath as a judge--disregarded the principle of fiat justitia, rust ruat caelum--by not joining Our New Four Horsemen:

Ilya Somin:: [T]he pro-Roberts counter-leakers do not contest what I think was by far the most damning claim in Jan Crawford’s original story: that Chief Justice John Roberts switched his vote not because he had a change of heart about the constitutionality of the mandate, but out of fear of attacks on his and the Court’s reputations…. [I]f it is true that some two-thirds of what eventually became the dissenting opinion was initially drafted by Roberts, that makes it more likely that he had a strong belief that the mandate is unconstitutional. I doubt he would have taken the time to write a long and detailed opinion invalidating the mandate if he were not pretty clear in his mind that that was the way he intended to vote. If fear of attacks on the Court really was his motive, it is extremely troubling for reasons I discussed here:

It is not yet clear whether Roberts really was motivated by such considerations, and we should keep an open mind on the subject…. But if reputational concerns really were at the heart of his switch, it is very sad that the highest-ranking judge in the land valued reputation more than his duty to enforce the Constitution. If fear of criticism by hostile politicians and pundits can deflect the Chief Justice from doing his duty, that does not bode well for the future.

Sometimes, the Court must strike down laws that violate the Constitution even when doing so is highly unpopular and might subject the Court to far greater criticism than Roberts would have gotten for ruling against a mandate…. [C]ourting popularity is not the proper function of a Supreme Court justice, at least not at the expense of his duty to the law.

I still do not think we have enough information to know what Robert’s real motive was with any certainty. The jury is still out on that question. So far, however, we don’t have any clear evidence against the claim made in Crawford’s story, and at least some circumstantial evidence backing it up.

From my perspective, for a Supreme Court justice to write not as a text- and precedented-oriented legal technician nor as a political or moral actor but solely as a partisan is highly blameworthy. That John Roberts was on the edge of doing so was to his discredit. That he drew back from the precipice and ultimately wrote as a political rather than a partisan actor is to his great credit.

What do I think of the political rather than the legal-technical aspects of Roberts' decision? The dictum that the mandate is unconstitutional under the commerce clause is a political attempt to dial back congress's commerce-clause powers from Scalia's hippie-punching extreme in Raich to Rehnquist's Lopez. When combined with Roberts's strong endorsement of the principle that what can be construed as an exercise of the taxing power should be, it is hard to see this as in any sense a big deal.

The holding--by 7-2!--that states have something like a valid reliance interest in the federal government not changing the terms of federal-state joint programs even when the federal government has expressly reserved the right to change the terms is, in my mind, simply bad contract law. I understand the desire to give the states a stronger hand in their dealings with the federal government, but this is definitely not the way to do it…

The Supreme Court's RomneyCare Decision and the Future of Health Care Reform

As delivered at the U.C. Berkeley SCOTUS ACA Forum, July 2, 2012:

With respect to last Thursday: One piece of background is all-important in assessing the decision: ObamaCare is RomneyCare.

The health-care reform plan that Mitt Romney proposed when he was Governor of Massachusetts is the health-care reform plan that Barack Obama proposed. RomneyCare made it through the Massachusetts legislature with only two dissenting votes. No office-holding Republican complained that RomneyCare was bad policy, or would destroy the economy, or would be unconstitutional, or whatnot--for it was the signature policy initiative of a Republican governor. The mandate that was at its core? That was the conservative Personal Responsibility principle. And remember the centerpiece of the Bush administration's Social Security privatization proposals: it was an individual mandate to regulate "inactivity": to require that people who had not established their own private individual retirement accounts do so.

Had the issue of "inactivity" reached the justices in the form of a challenge to a Republican mandate to purchase retirement accounts rather than a Democratic mandate to purchase health insurance, the Republican justices would have voted the other way.

But when the same Republican policy became the signature policy initiative of a Democratic president, every single Republican in office changed their mind. When a state government requires people to buy insurance, they said, that is an assertion of the Conservative Principle of Personal Responsibility. But when a federal government requires that people to buy insurance, they said, that is Bad Big Government, the Liberal Nanny State, and unconstitutional.

Go figure.

Akhil Reed Amar of Yale said a couple of weeks ago that if the Court did not uphold the ACA under the Commerce Clause that his career had been a waste--that he ought to have been doing constitutional law not as an autonomous discipline but as a subbranch of political science.

Amar really ought to have taken as his model not doctrinal analysts like Alex Bickel but legal realists like Fred Rodell.

But even that ultimate legal realist Fred Rodell would have been surprised by last Thursday. In past Constitutional Moments--Miranda, Brown, Jones and Laughlin, Lochner, Dred Scott--the stakes had been partisan, yes, but they also had been moral, and properly political: decisions on deep questions about what kind of country America is going to become. The last time the Supreme Court was this polarized was back in the New Deal era. But when the original Four Horsemen--never mind that McReynolds, van Devanter, Butler, and Sullivan begged Herbert Hoover not to appoint Cardozo because Brandeis was already one kike too many on the court--struck down New Deal legislation, it was because they thought America should not become a social-democratic country.

This time our New Four Horsemen--who claim to be market-oriented Republican justices--struck at an approach supported by the market-oriented Republican presidents who appointed them, thought up by market-oriented Republican ideologues to be the market-oriented Republican approach to keeping the market-oriented health insurance system from collapse. Fred Rodell understood that supreme court justices are for the most part moral and political actors first and text- and precedent-oriented legal technicians second.

Fred Rodell would have been astonished by judges who are for the most part neither precedent- and text-oriented legal technicians nor moral and political actors, but mere partisan weathervanes.

Go figure.

With respect to the future: One piece of background is all-important in assessing healthcare reform: ObamaCare is RomneyCare.

It thus has RomneyCare's weaknesses. It does not allow us to see if people would find a Medicare-like public option better than bargaining with private insurance companies. It hands market power to near-monopoly insurance companies in thinly-populated states. It requires state-level bureaucracies be functional and effective when politicians have laid down political markers that the reforms will fail. It assumes that Medicaid can grow by 2/3, maintain its sub-market reimbursement rates, and still attract doctors and nurses and technicians.

And the ACA's critically important long-run efficiency-increasing provisions rely on six largely untested bets:

1. That Congress will allow the tax on high-cost health plans--which is, over the next two generation, a slow repeal of the much-loved tax preference for employer-sponsored health benefits.

2. That Congress will allow the IPAB to recover the reimbursement system for doctors from the groups of specialist who have currently captured it.

3. That the bet on evidence-based medicine and comparative-effectiveness and electronic medical records will bring cost and quality in the U.S. as a whole within shouting distance of best-practice found in the Mayo Clinic.

4. That large for-profit providers and sociological groups of practitioners will not find additional ways to game the system and profit from large amounts of unconstrained market power.

5. That demand will create its own supply--that we can double the amount of health care currently received by our 40 million presently-uninsured without demand for care outstripping the ability of our doctors, nurses, and technicians to provide it.

6. That the exchanges will function as benefits departments for those who do not work for large bureaucracies, and deliver high-quality insurance options at an affordable price.

Bets (1) and (2) are bets on us: on what kind of future congresses we are going to elect. The preliminary evidence from RomneyCare in Massachusetts on (3) through (6) is very hopeful--but the dive is less difficult in Massachusetts, and the success of RomneyCare in Massachusetts is only preliminary.

I am hopeful but worried.

Berkeley ACA SCOTUS Panel

Cathy Cockrell:

As ‘Obamacare’ survives, campus experts diagnose prospects for healthcare reform: On the first Monday after the Supreme Court’s decision on the Patient Protection and Affordable Care Act, a half-dozen UC Berkeley experts in constitutional law, public policy, economics, and health law and policy rendered their judgments on the ruling during a panel discussion at Berkeley Law. Healthcare economics, the challenges of implementing a complex law about which the public is deeply divided and the powerful role of politics were all put under the X-ray.

Calling Republican outrage over the ruling “all about politics,” moderator John Ellwood, a professor of public policy, noted that challenges to the ACA were raised “within a nanosecond” of its signing by President Obama in March 2010. For starters, numerous states challenged provisions on expanding healthcare coverage under Medicaid, the program that covers vulnerable individuals of limited means and is funded jointly by the federal government and the states. (The high-court justices, by a 7-2 vote, nullified the federal government’s ability to withhold all Medicaid funding for states that fail to expand Medicaid coverage under the reform.)… Constitutional-law expert Jesse Choper said that one of the most significant implications of the high-court ruling is in limiting Congress’s power to “make all laws which shall be necessary and proper” for executing its enumerated powers. “It’s the first time in 100 years that the court has put an important limitation on the ‘necessary and proper’ clause,” he said.

Several panelists gave a nod to the law’s potential to significantly expand access to healthcare. But “whether or not the expanded coverage is going to be affordable in the long run, that is the central question now,” said Stephen Shortell, dean of public health. The U.S. spends 18 percent of its GDP on healthcare, Shortell noted, “twice as much other countries that have better health statistics than we do.” And given our aging population and our technology-laden healthcare system, “this legislation will not reduce costs.” It could, however, help to slow the rate of growth for healthcare spending, he said. Topping Shortell’s list of ways to bend the cost curve: changing our payment model for healthcare. “Fee-for-service,” he declared, “is toxic.”

“‘Obamacare’ is ‘Romneycare,’ ” said Brad DeLong, a political economist and influential blogger. As such, the federal law and the Massachusetts law share the same weaknesses, he said — including the absence of a public option and “handing a lot of market power to near monopolies,” in remote areas especially. DeLong noted that when Romneycare was the signature policy of a Republican governor, not a single Republican office-holder objected — “yet every Republican officeholder objects to Obamacare.”

Health law expert Ann O’Leary said the Supreme Court, in last week’s 5-4 decision, may have found the law, in the main, constitutional, but wondered about the “political will” to implement it vigorously, even in blue states like California feeling the strain of healthcare costs. Proponents of the reform law intended it to provide healthcare coverage for 32 million of the 50 million medically uninsured, she noted — 17 million of them (largely low-income single men) via expansion of Medicaid coverage. Now the Medicaid expansion has been declared optional, and many states — including Texas and Florida — are threatening not to participate.

W>hy, asked health-law specialist Ann Marie Marciarille, did the court “take a whack at Medicaid? It’s always easy to take a whack at Medicaid.” Unlike pregnant women or the blind, who already qualify for assistance under the program, “poor single men are not in the classical sense the worthy poor,” she said. “We tinker with Medicaid for our own reasons relentlessly.”

Monday’s forum was sponsored by the School of Public Policy and the Robert Wood Johnson Scholars in Health Policy Research Program. Video of the event will be posted shortly on the UC Berkeley YouTube channel, as well as on UCTV Prime. Audio of the forum can be found on Brad DeLong’s blog.

My Little Golden Book of the ACA Supreme Court Decision

The Affordable Care Act--ObamaCare--deals with the fact that America's seniors are relatively happy with their health care insurance, Medicare, by leaving it and them alone.

It deals with the fact that a great many of America's poor have no health insurance, and so get only half of standard medical care, by requiring that states expand the Medicaid program--with the federal government paying for the expansion--if they want to receive any federal Medicaid funding at all.

It deals with the fact that health insurance is broken for middle-class Americans who do not work for large bureaucracies--and thus they cannot obtain fairly-priced health insurance, and so also get only half of standard medical care--in three steps:

1. Creating, in each state, a "health exchange", a benefits department for those who do not already have a large bureaucracy's benefits department to negotiate for them.

2. Requiring that health insurers charge each member of a health exchange the same price for a policy

3. Mandating that every individual buy health insurance, so the health exchanges do not get gained by those who say that I will save money now and only buy insurance when I get sick.

Last Thursday the Supreme Court considered and decided two questions about the Affordable Care Act:

1. Is the mandate that individuals buy health insurance a command that Congress can issue under its general power to regulate interstate commerce, or is it an illegitimate grab by Congress for power that it does not have?

2. Is the federal requirement that states expand Medicaid if they want to get any federal Medicaid dollars at all a legitimate use of the federal government spending, or is it an unallowable coercivity infringement on state sovereignty?

Four Democratic justices answered (i) that the individual mandate is a legitimate use of commerce clause power, and (ii) that the requirement to expand Medicaid is not unduly coercive.

Four Republican justices answered (i) that the individual mandate is not a legitimate use of commerce-clause power, and *(ii) that the requirement to expand Medicaid is unduly coercive.

This left the decision up to Republican-appointed Chief Justice John Roberts.

And this is where things get very tricky very quickly:

Chief Justice Roberts agreed with the Republicans that the individual mandate is not legitimate under the commerce clause. But he then pulled a fast one, and said that the individual mandate is legitimate use of the federal government's power to tax.

Chief Justice Roberts agreed with the Republicans that the requirement that states expand Medicaid if they want any federal government Medicaid funding at all was unduly coercive. But he then pulled another fast one, and said that the cure was not to declare the entire Medicaid expansion part of the Affordable Care Act unconstitutional, but rather for the Supreme Court to rewrite the Medicaid expansion to say that a state that does not expand Medicaid loses not all of its federal Medicaid funding but just the extra funding to pay for the expansion.

Republicans are livid. Some are calling Chief Justice Roberts "Dishonest John". Republicans are especially exercised because he added his two additional wrinkles, allowability under the taxing power and rewriting the Medicaid title, at the last minute--after two months during which our Four Republican Horsemen thought that Roberts was firmly on their side.

Democrats are praising Roberts as a judicial statesman, and a fine Chief Justice.

Hoisted from Comments: DeLong Smackdown Watch: Health Care Affordability Edition

Mike the Mad Biologist:

"That the insurance market reforms will work--that the exchanges will function as, effectively, one large benefits department for those who do not work for large bureaucracies, and deliver high-quality insurance options at an affordable price…. The preliminary evidence from RomneyCare in Massachusetts on (3) through (6) is very hopeful--but the dive was less difficult in Massachusetts, and the success of RomneyCare in Massachusetts is only preliminary."

I guess 'views differ' on what affordable means: http://mikethemadbiologist.com/2010/01/12/affordable_i_do_not_think_that/

It beats the alternative, but that's damning with faint praise.

Monday 10 AM: U.C. Berkeley: Panel on the Supreme Court's Health Care Decision: What Next for Health Care Reform?

Come one, come all… Monday July 2nd, 10 AM to Noon, Berkeley Law School at Boalt Hall, Room 132:

Ann Marie Marcarille's Powerpoint:

20120702 ann marie marciarille ac aat sct

View more PowerPoint from Brad DeLong

Ann Marie Marciarille's Powerpoints: Download 20120702 Ann Marie Marciarille ACAatSCt | key | ppt

J. Bradford DeLong's Powerpoint:

20120702 berkeley obama care event

View more PowerPoint from Brad DeLong

Brad DeLong's Powerpoints: Download 20120702 Berkeley ObamaCare Event (pdf) | key | ppt

Panel Audio: Berkeley ACA SCOTUS Panel

---

Panelists:

• Robert Reich, Chancellor's Professor of Public Policy, U.C. Berkeley, quondam Secretary of Labor
• Moderator: John Ellwood, Professor of Public Policy and Program Director of the Berkeley/UCSF Branch of the Robert Wood Johnson Foundation Research Scholars in Health Policy Program, U.C. Berkeley
• Jesse Choper, Earl Warren Professor of Public Law, U.C. Berkeley
• Steve Shortell, Dean of the School of Public Health, U.C. Berkeley
• J. Bradford DeLong, Professor of Economics, U.C. Berkeley
• Ann O'Leary, Director, Children and Families Program, Center for the Next Generation
• Ann Marie Marciarille, Associate Professor of Law, University of Missouri at Kansas City

---

What I am going to say: first draft:

One piece of background is all-important in assessing last Thursday's decision.

ObamaCare is RomneyCare.

The health-care reform plan that Mitt Romney proposed when he was Governor of Massachusetts, and shepherded through the Massachusetts legislature is the health-care reform plan that Barack Obama proposed and shepherded through the U.S. Congress.

RomneyCare made it through the Massachusetts legislature with only two dissenting votes. RomneyCare made it through the Congress with not a single Republican vote in favor. No Republican made audible complaint that RomneyCare was bad policy, or would destroy the economy, or would be unconstitutional at the federal level, or whatnot--not as long as it was the signature policy initiative of a Republican governor who might well become president someday.

But when the same policy became the signature policy initiative of a Democratic president, every single Republican in office changed their mind.

Some Republican officeholders claimed that they had always been opposed to RomneyCare--but had just kept quiet because of Ronald Reagan's 11th Commandment: "Thou shalt not speak ill of a fellow Republican".

For the most part, however, Republican officeholders claimed that they had not changed their minds. When a state government requires people to buy insurance, they said, that is Gan assertion of the Conservative Principle of Personal Responsibility. But when a federal government requires that people to buy insurance, they said, that is Bad Big Government, the Liberal Nanny State, and unconstitutional. Never mind that the centerpiece of the Bush 2005 Social Security privatization proposal was an individual mandate to regulate "inactivity": to require that people who had not established their own private individual retirement accounts do so.

Go figure.

Of all the justices who claimed that the individual mandate exceeded Congress's Commerce Clause powers last Thursday, only Justice Thomas would have reached the same conclusion had the issue reached them in the form of a challenge to a Republican president's policy mandating the purchase of retirement accounts rather than a Democratic president's policy mandating the purchase of health insurance: Kennedy jointed and Alito and Roberts endorsed Scalia's opinion in Gonzales v. Raich holding that the Commerce Clause allows Congress to take away from cancer patients pain-relieving marijuana that they have grown themselves. Larry Lessig had a piece a couple of months ago about how his patron Scalia's Commerce Clause jurisprudence was principled, and he would uphold the law. Larry Lessig has a lot of explaining to do. Akhil Reed Amar said a couple of weeks ago that if the Court did not uphold the ACA under the Commerce Clause that his career had been a waste--that he ought to have been doing constitutional law not as an autonomous discipline but as a subbranch of political science.

Both Lessig and Amar really ought to have taken as their model not Alex Bickel but Fred Rodell.

Indeed, that ultimate legal realist Fred Rodell would have been shocked and astonished by last Thursday. In past Constitutional Moments--Miranda, Brown, Jones and Laughlin, Lochner, Dred Scott, McCulloch vs. Maryland, Marbury vs. Madison--the stakes had been partisan, yes, but they also had been moral, and properly political: decisions on deep questions about what kind of country America is going to become are made when the Court rules that the law is different today from what it was yesterday. When the original Four Horsemen--never mind that McReynolds, van Devanter, and Butler begged Herbert Hoover not to appoint Cardozo because Brandeis was already one kike too many on the court--struck down New Deal legislation, it was because they thought America should not become a social-democratic country.

But this time it is our New Four Horsemen--supposedly market-oriented Republican justices who have struck down RomneyCare: an approach supported by the market-oriented Republican presidents who appointed them--an approach thought up by market-oriented Republican ideologues and developed by market-oriented Republican health care experts to be the market-oriented Republican minimal state intervention to make the health-insurance market work and thus preserve its market-oriented character. Fred Rodell understood that supreme court justices were for the most part moral and political actors first and text- and precedent-oriented legal technicians second. Fred Rodell would have been astonished by judges who were for the most part neither precedent- and text-oriented legal technicians nor moral and political actors but mere partisans.

One piece of background is all-important in assessing what will happen to healthcare reform in the future.

ObamaCare is RomneyCare.

It thus has all the weaknesses of RomneyCare. It does not allow us to conduct the experiment of whether people under 65 would find a Medicare-like public option better on price and quality grounds than bargaining with private insurance companies under the exchange framework: the public option has been excised. It hands a great deal of market power to near-monopoly insurance companies in thinly-populated states--it removes the curb on their ability to raise rates provided by the existence of the option for individuals to exit the insurance system, go naked, and rely on emergency rooms. It requires that state-level bureaucracies be functional and effective when many states' politicians have laid down political markers that the reforms will fail. It relies on a bet that Medicaid can grow by 2/3 and still attract enough doctors and nurses and technicians to service its population even with its low and sub-market reimbursement rates. A substantial hole has just been blown in its structure by the other lawless piece of the decision--the Court's granting of states some kind of entitlement to past levels of Medicaid funding. And its long-run cost-saving and efficiency-increasing provisions rely on six largely untested bets:

1. That Congress will stick to its guns and actually implement the tax on high-cost health plans--which is, over the next two decades, a slow repeal of the much-loved tax preference for employer-sponsored health benefits.

2. That Congress will stick to its guns and allow the IPAB to recover the reimbursement system for doctors from the groups of specialist who have currently captured it.

3. That the bet on evidence-based medicine and comparative-effectiveness and electronic medical records will bring cost and quality in the U.S. as a whole within shouting distance of best-practice found in the Mayo Clinic.

4. That large for-profit providers and sociological groups of practitioners will not find additional ways to game the system and acquire large amounts of unconstrained market power.

5. That demand will create its own supply--that we can double the amount of health care currently received by 40 million of our presently-uninsured without demand for care outstripping the ability of our doctors, nurses, and technicians to provide it.

6. That the insurance market reforms will work--that the exchanges will function as, effectively, one large benefits department for those who do not work for large bureaucracies, and deliver high-quality insurance options at an affordable price.

Bets (1) and (2) are bets on us: on what kind of future congresses we are going to elect. The preliminary evidence from RomneyCare in Massachusetts on (3) through (6) is very hopeful--but the dive was less difficult in Massachusetts, and the success of RomneyCare in Massachusetts is only preliminary.

I am hopeful but worried.

I really wish there were a public option in the mix.

I still don't understand why they didn't simply do FEHBP for all: allow everybody to buy in to the federal employees' health-benefit program if they wished.

Will the Supreme Court Decision Hinder Medicaid Expansion, Leaving Millions Of Poor People Without Coverage?

Jonathan Cohn:

Will The Supreme Court Decision Delay Or Hinder The Medicaid Expansion, Leaving Millions Of Poor People Without Coverage?: [W]hat happens if states choose not to expand Medicaid to meet the new guidelines?… As the law was originally written, the entire Medicaid package became an all-or-nothing deal: States that didn't want to meet the new, more expansive guidelines were free to do so. But choosing that option meant forgoing all federal Medicaid money. The Court on Thursday ruled that choice was "coercive."…

[S]tates choosing not to expand coverage give up only the money that would have gone to covering the new populations. Those states would remain eligible for the funds that they already get, to cover people who already qualify for Medicaid under the old guidelines. The practical effect is to change the trade-offs states face…. It takes no intellectual creativity to imagine a Rick Perry or a Rick Scott rejecting the new Medicaid money from Washington—and making a very big show of it.

But sending money back to Washington sounds a lot better than in theory than it works in practice…. For the Medicaid expansion, most states won't pay anything for the first few years. The federal government will pick up the entire cost. And while the federal contribution will decline after that, it will fall only a bit, so that most states are never responsible for more than one-tenth of the cost. That’s a sweetheart deal, particularly when you remember that Medicaid money goes straight into the pockets of local hospitals, doctors, and other health care providers…. [S]tate officials who refuse Medicaid funding are going to get an earful from hospital lobbyists, whose facilities will end up seeing many of these patients regardless of their insurance status. The Medicaid dollars are the hospitals’ best chance to recoup funding for charity care, particularly at a time when they are adjusting to payment reductions designed to push them into more efficiency….

An instructive example may be the history of Medicaid itself. It became law in 1965, as part of the same act that created Medicare. By 1972, every state but one had opted into the program…. The lone holdout was Arizona, which had some special circumstances: Much of its low-income population received coverage through the Indian Health Service. State officials resisted Medicaid for another ten years, but finally gave in (as I recall) because the local hospitals were losing so much money on charity care….

It's important to watch this issue closely and call out Medicaid opponents for what they are doing: Refusing a sweetheart deal that would help their poorest, most vulnerable residents get decent health care, just because they hate Washington…. Eventually, all the states will probably choose to participate in the Medicaid expansion, just as they did with the original Medicaid initiative. But it may take a little time, and a lot of pressure, for that to happen.

The Big Winners from ObamaCare

Paul Krugman:

How many people are we talking about? You might say 30 million, the number of additional people the Congressional Budget Office says will have health insurance thanks to Obamacare. But that vastly understates the true number of winners because millions of other Americans — including many who oppose the act — would have been at risk of being one of those 30 million. So add in every American who currently works for a company that offers good health insurance but is at risk of losing that job… every American who would have found health insurance unaffordable but will now receive crucial financial help; every American with a pre-existing condition…. [U]nless you belong to that tiny class of wealthy Americans who are insulated and isolated from the realities of most people’s lives, the winners from that Supreme Court decision are your friends, your relatives, the people you work with — and, very likely, you….

The Affordable Care Act, by contrast, is fully paid for…. So the law that the Supreme Court upheld is an act of human decency that is also fiscally responsible. It’s not perfect, by a long shot — it is, after all, originally a Republican plan… an awkward hybrid of public and private insurance that isn’t the way anyone would have designed a system from scratch. And there will be a long struggle to make it better….

Which brings us to the nature of the people who tried to kill health reform — and who will, of course, continue…. campaign against reform was its dishonesty. Remember “death panels”? Remember how reform’s opponents would, in the same breath, accuse Mr. Obama of promoting big government and denounce him for cutting Medicare?… [A]ll the old lies and probably a bunch of new ones will be rolled out again…. But what was and is really striking about the anti-reformers is their cruelty. It would be one thing if, at any point, they had offered any hint of an alternative proposal….

Let me add a final word on the Supreme Court.

Before the arguments began, the overwhelming consensus among legal experts who aren’t hard-core conservatives — and even among some who are — was that Obamacare was clearly constitutional…. [F]our justices dissented, and did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship.

The point is that this isn’t over…. The cruelty and ruthlessness that made this court decision such a nail-biter aren’t going away.

But, for now, let’s celebrate. This was a big day, a victory for due process, decency and the American people.

Jonathan Adler on the Medicaid Provisions of Roberts's Switch-in-Time

The highly-intelligent Jonathan Adler writes:

Initial Thoughts on the Health Care Ruling: Holding that it would be unconstitutional to terminate existing Medicaid funds to states that refuse to go along with the Medicaid expansion is quite significant, particularly as seven justices joined this result. While the holding here may not go beyond the limits articulated in South Dakota v. Dole, the Supreme Court has not limited the exercise of the spending power to impose conditions on states since the New Deal and, again, seven justices endorsed this result. Going forward, I expect this portion of the opinion to have the greatest practical impact…

I think that Jonathan Adler is likely to be right.

Joint federal-state programs like Medicaid are an awkward beast. The federal government is making the state governments an offer they cannot refuse--"pony up for Medicaid or else", or "raise your drinking age to 21 or I will take away your highway money". (Note, however, that Arizona resisted the offer of Medicaid money for a long time.) Now we have seven justices who say that the federal government cannot do that, or at least that if the federal government has made an offer that cannot be refused, and its offer has been accepted, the federal government cannot then turn all Darth Vader on the states:

I am altering the deal. Pray that I do not alter it any further.

Roberts--and all the other justices save Sotomayor and Ginsburg, including two Democrats--appear to have thus created for the states a version of Charles Reich-like "new property" in the form of entitlements to established money flows from the federal government.

But what kind of entitlement, exactly?

At a formal level, this notion that the federal government cannot alter the terms of The Deal--that it must make a new deal, with consideration, offer, and acceptance--is hard to understand. The federal government could certainly repeal Medicaid entirely. It certainly could start up a new program equal to Medicaid + ACA Expansions and offer states that deal. It sounds as though if the ACA had been structured in this way:

• Title 15: Title XIX of the Social Security Act, as amended, is repealed.
• Title 16: New Medicaid = ACA Expansions + the old Title XIX of the SSA are mereby enacted

that that would, formally, pass Roberts's scrutiny.

Am I wrong in seeing this as a version of substantive due process for states reliant on money flows from the federal government?

Did Nino Scalia Firmly Think He Had His "Constitutional Moment", and His Majority?

Sure sounds like he did not search-and-replace his text to correct it when Roberts peeled off.

Successfully electing George W. Bush 5-4 was not enough for him. He thought he had repealed the ACA 5-4 as well.

Scalia refers to Ginsburg's concurrence--agreeing with the Court that the mandate stands, but for different reasons than the opinion of the Court expresses--not as a concurrence, but as a "dissent":

Our test’s premise of regulated activity is not invented out of whole cloth, but rests upon the Constitution’s requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 26, a proposition that has never recommended itself, neither to the law nor to common sense…

Repeatedly:

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Com- merce Clause that all private conduct (including failure to act) becomes subject to federal control…

Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government…

The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact crimi- nal laws, . . . the power to imprison, . . . and the power to create a national bank,” ante, at 34–35. Is not the power to compel purchase of health insurance much lesser?…

The dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause…

The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers…

The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets…

In its effort to show the contrary, JUSTICE GINSBURG’S dissent comes up with nothing more than two condemnation cases, which it says demonstrate “Congress’ authority under the commerce power to compel an ‘inactive’ landholder to submit to an unwanted sale.” Ante, at 24. Wrong on both scores. As its name suggests, the condemnation power does not “compel” anyone to do anything. It acts in rem, against the property that is condemned, and is effective with or without a transfer of title from the former owner. More important, the power to condemn for public use is a separate sovereign power, explicitly acknowledged in the Fifth Amendment, which provides that “private property [shall not] be taken for public use, without just compensation.”

Thus, the power to condemn tends to refute rather than support the power to compel purchase of unwanted goods at a prescribed price: The latter is rather like the power to condemn cash for public use. If it existed, why would it not (like the condemnation power) be accompa- nied by a requirement of fair compensation for the portion of the exacted price that exceeds the goods’ fair market value (here, the difference between what the free market would charge for a health- insurance policy on a young, healthy person with no pre-existing conditions, and the government-exacted community-rated premium)?…

Those differences make a very good argument by the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent’s view) included among the unenumerated “problems” that the Constitution authorizes the Federal Government to solve. But those differences do not show that the failure to enter the health-insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can “regulate.”…

Nine times Scalia refers to Ginsburg's opinion on the mandate not as a concurrence--agreeing with the result, but for different reasons--but as a "dissent". An opinion that reaches the same result but by a different road is not a dissent. And there was not "a" dissent. There were three: Thomas's, Ginsburg's, and Scalia's. When there are three dissents--two other dissents--to refer to one of them as "the" dissent is, at the least sloppy.

Is this deliberate--that Scalia wants us to know that his opinion was originally written to be the opinion of the Court? Or is this simply sloppy draftsmanship--chronic laziness at revision?

And what made Roberts peel off?

Inquiring minds want to know...

Andrew Kaczynski: Romney In 2007: The Indvididual Mandate Is "Ultimate Conservatism"

http://www.buzzfeed.com/andrewkaczynski/romney-in-2007-the-indvididual-mandate-is-ultima

ACA Opinions

Mandate:

1. Sustain mandate under Commerce Clause: Breyer, Ginsburg, Kagan, Sotomayor
2. Sustain mandate as a tax: Roberts
3. Reject mandate: Alito, Kennedy, Scalia, Thomas

Medicaid expansion:

1. Allow Medicaid expansion: Ginsburg, Sotomayor
2. Reject Medicaid expansion as written: Alito, Breyer, Kagan, Kennedy, Roberts, Scalia, Thomas

Penalty for Medicaid expansion overreach

1. No penalty: Ginsburg, Sotomayor
2. Preserve preexisting federal funding even if state does not expand Medicaid: Breyer, Kagan, Roberts
3. Strike Medicaid expansion completely: Alito, Kennedy, Scalia, Thomas

Affordable Care Act Medicaid Expansion Has Been Turned into a State's Option Expansion

Amy Howe:

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.

What the principled reason behind this piece of judicial activism is is unknown. I don't think there is one. If Medicaid were repealed, and then re-passed in expanded form, there would be no limitation on the federal government's ability to condition all Medicaid funds on compliance with all provisions of the act.

Oyez! Oyez! Oyez!: Next Steps for Health Care Reform Implementation

In the wake of the surprising Supreme Court decision Thursday morning on the constitutionality of the Affordable Care Act, the natural question is: what next for health-care reform?

One piece of background is all-important.

ObamaCare is RomneyCare.

The health-care reform plan that Mitt Romney proposed when he was Governor of Massachusetts and shepherded through the Massachusetts legislature with, as he used to boast, only two dissenting votes is the health-care reform plan that Barack Obama proposed in the first year that he was President of the United States and shepherded through the U.S. Congress with not a single Republican vote in favor. No Republican made audible complaint that RomneyCare was bad policy, or would destroy the economy, or whatnot--as long as it was the signature policy initiative of a Republican governor. When the same policy became the signature policy initiative of a Democratic president, however, every single Republican in office changed their minds.

For the most part, they claimed that they had not changed their minds. They said that when a state government required that people who are likely to wind up in the hospital at some point in their lives by insurance so that the cost of treating them would not fall on other patients or taxpayers, that was Good Small Government, an assertion of the Conservative Principle of personal responsibility people needed to accept responsibility for the consequences of their actions. but, they said, when a federal government requires that people who are likely to wind up in the hospital at some point in their lives by insurance so that the cost of treating them would not fall on other patients or taxpayers, that is Bad Big Government, an assertion of the liberal Nanny State principle that people needed for the government to boss them around, and unconstitutional.

Go figure.

Well, now the Supreme Court has settled the "unconstitutional" part.

Now it is time for all Republican officeholders to say that although the Supreme Court is not infallible, it is final, and that they will turn all their energies to making the implementation of what was President Romney's signature initiative when he proposed and implemented it as Governor of Massachusetts and will be President Romney's signature initiative when he implements it as President of the United States into a smashing and total success.

---

We will soon see if God Himself can save this not-very-honorable court...

Apparently yes: the individual mandate is a tax, and so survives...

Tom: The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.

What does "narrowly read" mean in this context?

Lyle: The key comment on salvaging the Medicaid expansion is this (from Roberts):

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding. (p. 55)

Indeed:

Lyle: To readers of the Roberts opinion, a caution: It is the opinion of the Court through the top of p. 44; the balance is labeled as, and is, Roberts speaking for himself.

---

The Romney Fifty Little Mandates Plan

Greg Sargent: ‏@ThePlumLineGS

Who says Romney has no plan to replace Obamacare? He wants to see it replaced with 50 individual mandates--one in each state.

Berkeley Panel Next Monday: What Next for Health Care Reform?

Panelists:

• Robert Reich, Chancellor's Professor of Public Policy, U.C. Berkeley, quondam Secretary of Labor
• Jesse Choper, Earl Warren Professor of Public Law, U.C. Berkeley
• J. Bradford DeLong, Professor of Economics, U.C. Berkeley
• Steve Shortell, Dean of the School of Public Health, U.C. Berkeley
• Ann O'Leary, Director, Children and Families Program, Center for the Next Generation
• Ann Marie Marciarille, Associate Professor of Law, University of Missouri at Kansas City
• Maryanne McCormick, Executive Director, Blum Center for Developing Economies, U.C. Berkeley

Moderator:

• John Ellwood, Professor of Public Policy and Program Director of the Berkeley/UCSF Branch of the Robert Wood Johnson Foundation Scholars in Health Policy Research Program, U.C. Berkeley

Date: Monday July 2nd
Time: 10 AM to Noon
Place: Room 132, Berkeley Law School at Boalt Hall

What Next for Health Care Reform?

In the wake of the surprising Supreme Court decision Thursday morning on the constitutionality of the Affordable Care Act, the natural question is: what next for health-care reform?

One piece of background is all-important.

ObamaCare is RomneyCare.

The health-care reform plan that Mitt Romney proposed when he was Governor of Massachusetts and shepherded through the Massachusetts legislature with, as he used to boast, only two dissenting votes is the health-care reform plan that Barack Obama proposed in the first year that he was President of the United States and shepherded through the U.S. Congress with not a single Republican vote in favor. No Republican made audible complaint that RomneyCare was bad policy, or would destroy the economy, or whatnot--as long as it was the signature policy initiative of a Republican governor. When the same policy became the signature policy initiative of a Democratic president, however, every single Republican in office changed their minds.

For the most part, they claimed that they had not changed their minds. They said that when a state government required that people who are likely to wind up in the hospital at some point in their lives by insurance so that the cost of treating them would not fall on other patients or taxpayers, that was Good Small Government, an assertion of the Conservative Principle of personal responsibility people needed to accept responsibility for the consequences of their actions. but, they said, when a federal government requires that people who are likely to wind up in the hospital at some point in their lives by insurance so that the cost of treating them would not fall on other patients or taxpayers, that is Bad Big Government, an assertion of the liberal Nanny State principle that people needed for the government to boss them around, and unconstitutional.

Go figure.

Well, now the Supreme Court--a Supreme Court with a Republican-chosen majority of Thomas, Scalia, Alito, Kennedy, and Roberts--has settled the "unconstitutional" part.

IF (mandate="upheld") THEN:

Now it is time for all Republican officeholders to say that although the Supreme Court is not infallible, it is final, and that they will turn all their energies to making the implementation of what was President Romney's signature initiative when he proposed and implemented it as Governor of Massachusetts and will be President Romney's signature initiative when he implements it as President of the United States into a smashing and total success.

ELSE IF (insurance-provisions="upheld") THEN:

The Supreme Court has just broken RomneyCare. It has taken a delicate balance of countervailing policies that make up a very strong structure when all put together--the mandate to purchase insurance, guaranteed issue, community rating, and so forth--and kicked out one of its foundations. The remaining structure cannot stand, or cannot stand well.

However, the states can make it stand. The federal government cannot, so this Supreme Court says, regulate the interstate commerce that is health insurance to mandate purchase. Never mind that this decision is precedentless and lawless, going against the grain of at least 75 years of judicial doctrine and development. Ever since 1801 when John Marshall seized the opportunity to issue his decision in Marbury vs. Madison there has been precedent and law that the Supreme Court can, when it wishes, act contrary to established precedent and settled law--that the Supreme Court can turn itself into moral guardians seeking justice and political actors seeking the general welfare rather than mere judicial umpires calling balls and strikes. Yes, John Roberts lied about his role in his confirmation hearings. But that is not the point here. The point here is that the structure of RomneyCare--of the health-care reform plan established and advocated by both Mitt Romney and Barack Obama--is tottering, but that it can be fixed. It can be fixed by the states.

Each state should enact, on its own and for itself, the provisions of the Affordable Care Act that have just been carelessly broken by the Supreme Court. If states do this, then they will see themselves following the path of health-care reform marked out by, following the trail broken by health-care reform pioneer Mitt Romney in Massachusetts, and that is a good path, a good trail.

Those states that do not now act to fix the broken core structure of RomneyCare are putting the well-being of their small businesses, sole proprietors, and independent contractors at risk: their individual and small group markets may experience a moral-hazard meltdown. The likely outcome is that the states of the Northeast, the Pacific Coast, and pieces of the Midwest will step up to the plate, and will fix the parts of the ACA that the Supreme Court has broken. They will attach state-level backups to make the RomneyCare system function as designed.

Barack Obama will approve of this.

Mitt Romney will approve of this too--or, at least, is on record as approving of it. Back in July 2009, remember, Mitt Romney had no objections, neither technical-legal-constitutional nor substantive-policy objections, to a national mandate:

The lessons we learned in Massachusetts could help Washington…. The Massachusetts reform aimed at getting virtually all our citizens insured. In that, it worked…. [W]e established incentives for those who were uninsured to buy insurance. Using tax penalties, as we did, or tax credits, as others have proposed, encourages “free riders” to take responsibility for themselves rather than pass their medical costs on to others. This doesn’t cost the government a single dollar…. Republicans will join with the Democrats if the president abandons his [public option] government insurance plan…

And, back then, as Romney told Tim Russert, he thought that each and every state should enact an individual health-care mandate, which, he said:

is a terrific idea. I think you're going to find, when it's all said and done, after all these states that are laboratories of democracy get their chance to try their own plans, that those who follow the path that we pursued will find it's the best path, and we'll end up with a nation that's taken a mandate approach.

Nevertheless, in spite of both Barack Obama's and Mitt Romney's belief that each state would be well-served by passing an individual mandate to implement the conservative personal-responsibility principle, it is likely that the South, the Praries, scattered pieces of the Midwest, and Texas will fail to fix the parts of RomneyCare that the Supreme Court has now broken.

What can we do? Well, we can pressure the politicians of the South, the Praries, Texas, and their scattered bastions in the Midwest to do their jobs as Americans. Everybody who knows anything about health insurance should say, and say loudly, that those state-level politicians who do not fill in the gaps the Supreme Court has ripped in RomneyCare are destroying the ability of small businesses and solo practitioners and independent contractors to get the health coverage that they need.

Moreover, they should say that these politicians are doing this for short-term partisan political gain.

And maybe then the Republican politicians will become patriots first and partisan obstructionists second--or will at least realize that it is to their electoral advantage not to appear to be the partisan obstructionists they wish to be.

ELSE:

The Supreme Court has just sent us back to square one as far as fixing our broken private health-care system is concerned.

This is truly extraordinary. Five times in U.S. history the Supreme Court has eaten its wheaties and said that in the future the law will, in a major way, be very different than it had been before. The first was Marbury vs. Madison: the Supreme Court's 1803 assertion of the power that it was going to be the final arbiter--that its decisions about what the Constitution meant would be the ones that stuck. And there have been a bunch of others. These are the Supreme Court's Constitutional Moments

In all previous Constitutional Moments, the stakes were political, but the stakes were also large, and the stakes were substantive, and the stakes were fundamental. The issue was about what kind of country we were going to be. Marbury vs. Madison was about whether the Supreme Court was going to be another anti-majoritarian brake on the powers of legislative majorities that were possibly transient. Lochner was about whether freedom of contract--or freedom to exploit--was going to be a core right. The Switch-in-Time-that-Saved-Nine was whether social democracy would come smoothly or would require an economic-regulation constitutional amendment. Brown-vs.-Board-of-Education-of-Topeka was about whether we would remain a country of racial apartheid.

This Constitutional Moment we have just seen is the first one in which the stakes are purely partisan, and purely political. Had Mitt Romney won the 2008 presidential election, every single Republican legislature who voted against RomneyCare when it was proposed by Obama would have voted for RomneyCare when proposed by Romney. And every single Supreme Court justice who has just voted to strike down RomneyCare would have been a comfortable vote for RomneyCare--had it been proposed by Romney. This is the dirty little secret of what just happened: Bush vs. Gore, Citizens United, and now the ACA--we have an out-of-control Supreme Court majority who are all busy violating their oaths as judges as much as they dare. We understand when judges say that the law says X, but justice requires Z, therefore I say Z. We do not understand the judges who have today said that although law and precedent say X, my partisan political loyalties and those alone impel me to say Z.

This Supreme Court is hopelessly broken. It needs to be fixed as fast as possible. And the best way to fix it is to reelect President Obama, and give him a reliable majority in the Senate and a reliable majority in the House to choose judges who will keep to their oaths of office.

"Constitutional Moments"

Five times in U.S. history the Supreme Court has eaten its wheaties and said that in the future the law will in a major way be very different--or, rather, that Americans before, including the Supreme Court, had been in error about what the law truly was and had been doing it wrong.

Call the first Marbury vs. Madison: the Supreme Court's 1803 assertion of the power that it was going to be the final arbiter--that its decisions about what the Constitution meant would be the ones that stuck. It could have gone another way…

Call the second Lochner: the Supreme Court's 1905 assertion that a late eighteenth-century Constitution enacted an early-twentieth century conception that your key liberty interest is the freedom to make whatever contracts you want to make without let or hindrance from the federal government.

Call the third the Switch-in-Time-that-Saved-Nine: the Supreme Court's 1937 assertion that Lochner was in error, and that Congress's power to regulate interstate commerce was a trump that gave it the right to regulate everything.

The fourth and the fifth are Warren Court actions: (a) in 1954 that legal racial apartheid will no longer be part of America, and (b) in 1966 that the poor will have at least some of the privileges in their interactions--both criminal and civil--with the law that the rich have always had.

You can add others: Dred Scott in 1857 as an attempt to turn the entire United States into a slave country, Roe v. Wade in 1973, the forthcoming overturning of the DOMA. The key is that the Supreme Court moves as a political (and moral) entity--and not as a judicial entity developing and extending precedent in an arena of laws set by common-law history and legislation. And, of course, the odd thing is that since Marbury vs. Madison (1803) there is precedent that the Supreme Court can do this.

In all previous Constitutional Moments, the stakes were political, but the stakes were also large, and the stakes were fundamental: about what kind of country we were going to be. Marbury vs. Madison was about whether the Supreme Court was going to be another anti-majoritarian brake on the powers of legislative majorities that were possibly transient. Lochner was about whether freedom of contract--or freedom to exploit--was going to be a core right. SiT was whether social democracy would come smoothly or would require an economic-regulation constitutional amendment, et cetera.

The interesting thing about the Constitutional Moment that now perhaps looms is that it is the first one in which the stakes are purely partisan, and purely political. The probable Supreme Court majorities in the ACA case have shown no inclination to restrict congressional power when it is a matter of exceeding black-letter patent clause authority to provide a payoff to Disney or to prohibit the medical use of marijuana--and will show no inclination to revisit and change those decisions in the future.

Bob Drummond:

The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.

Only eight of them predicted the court would do so.

“The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”…

Five of the 21 professors who responded, including Whitman, said the court is likely to strike down the coverage requirement. Underscoring the high stakes and complexity of the debate, eight described the outcome as a toss-up.

During arguments in March, four justices appointed by Republican presidents questioned Congress’s constitutional power to enact the mandate, including Chief Justice John Roberts and Justice Anthony Kennedy, who had been viewed as potential swing votes. A fifth, Justice Clarence Thomas, rarely speaks during courtroom sessions. Questioning by four Democratic appointees was more sympathetic to the provision, a centerpiece of President Barack Obama’s health-care law.

“There was certainly a lot of hostile questioning by the more conservative members of the court,” said Jesse Choper, a law professor at the University of California at Berkeley who described the court as likely to support the mandate. “It’s relatively straightforward -- if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”

There was broad agreement that the ruling, barely four months before November’s presidential election, has the potential to hurt the Supreme Court’s reputation as an impartial institution.

Eighteen of the 21 professors said the court’s credibility will be damaged if the insurance requirement -- which passed Congress without a single Republican vote -- is ruled unconstitutional by a 5-4 majority of justices appointed by Republican presidents….

Nine of the law professors said if the coverage mandate is invalidated the justices are likely or very likely to throw out several related provisions, such as requiring insurance companies to offer policies without regard to pre-existing medical conditions. Five respondents said the justices will leave those provisions in place; seven called it a toss-up.

Supreme Court Possible Health Care Decisions

Jonathan Cohn:

Health Care Supreme Court Outcomes:

1. Uphold the entire law: If you believe in health care reform, as I do, this is obviously the best outcome. And it remains a very credible one. Remember, two very conservative judges at the appellate level found the law to be constitutional, despite tough questioning during oral arguments.

2. Strike the mandate, keep everything else, including the penalty: This would be a moral victory for the critics and it would, quite possibly, limit federal power for generations to come. But it would probably do very little…. If Justices Roberts and Kennedy want to have their cake and eat it too—to issue a major ruling with long-lasting doctrinal effects, but in a way that doesn't look like a naked usurpation of legislative authority—this is the way to do it.

3. Strike the mandate and the penalty, keep everything else. I keep reading that this would be equivalent to gutting the law. That is very, very wrong. Such a ruling would significantly weaken the law: Many fewer people would get insurance and, at least initially, and individual insurance premiums would be higher. But middle-class people buying coverage on their own would basically pay the same as they would if the mandate stayed in place, because of the way the subsidies work. (People who get coverage through employers or through Medicaid would also fare the same.) The law would still bring coverage to between 10 and 20 million people, according to the projections, and the deficit would actually end up slightly lower. In the future, state and federal lawmakers could bolster the law by thinking up alternatives to the mandate, or versions designed to meet the Supreme Court’s legal criteria.

4. Strike the mandate, the penalty, the insurance reforms, but keep everything else. This would be a lot more devastating. The dysfunctional insurance market would remain…. We'd have universal coverage for the very poor and for the old (thanks to Medicare). The non-elderly middle class would be the ones left out.

5. Strike the whole law—in other words, keep nothing. This is as bad as it sounds. Thirty million people lose health insurance they were supposed to get. People who would have had insurance anyway lose consumer protections and guarantees of minimum benefits. The deficit goes up, according to projections. Incentives to make the health care system safer and more efficient disappear.

This list is not exhaustive. The Court could decide that it can't decide the case until the law is in place and somebody can allege actual harm. The Court could also make a ruling on one part of the law and then "remand" the case to a lower court to sort out the rest. Those outcomes, and other permutations I've heard, seem far less likely, at least according to the experts I've consulted. But this is the Supreme Court. The justices can do pretty much what they want.

Ezra Klein: Do Democrats Have Their Own Individual Mandate Level Flip-Flop? No.

Why am I not surprised to find Peter Suderman saying something that does not have the truth nature as he plays for Team Republican?

Peter Suderman: Democrats and liberal policy wonks took a similar turn with Medicare premium support, now championed in broad form by both GOP presidential nominee Mitt Romney and the party’s leading policy entrepreneur, House Budget Committee Chairman Paul Ryan. The story is remarkably similar: The idea started out as a policy promoted by prominent liberal wonks, briefly gathered support from a handful of top-level policymakers near the end of the Clinton presidency, and is now deeply opposed by the majority of Democrats, who often refer to the idea as a plan to “end Medicare as we know it” — or occasionally just a way to “end Medicare,” period. Premium support, which would pay a flat rate toward the purchase of a private insurance plan for each Medicare beneficiary, was first developed by Alain Enthoven, a Democratic adviser who had previously served as a health policy consultant to President Jimmy Carter,  in “The History of Principles of Managed Competition” in 1993. In 1995, Henry Aaron, a scholar at Brookings who served as a senior official in President Carter’s Department of Health, Education, and Welfare, gave the policy its name — premium support — and suggested that it represented a Medicare reform compromise, a “middle ground” that could retains Medicare’s strengths but address budgetary challenges. In 1999, the National Bipartisan Commission on the Future of Medicare, which was chaired by Democratic Senator John Breaux and included Democratic Sen. Bob Kerrey, met to develop a proposal to reform the seniors’ health entitlement. The first item in the final proposal put forth by Breaux and supported by Kerrey was “the design of a premium support system.”

Ezra Klein:

There are a few problems with drawing an equivalence between “premium support” in Medicare and the individual mandate in health care. The first, and biggest, is simply who supported it… a few Democratic wonks, and then-Sens. Breaux and Kerrey. Of those Democratic wonks, some, like Alice Rivlin, continue to support a premium support system…. The reason the report from the National Bipartisan Commission on the Future of Medicare never went anywhere is that every other Democrat on the Commission voted against the recommendations, and the Clinton White House quickly released a statement opposing premium support. There were, in other words, exactly no leading Democrats who signed onto premium support…. [T]he most significant elected Democrat to sign onto premium support is Sen. Ron Wyden, who crafted a plan with Paul Ryan earlier this year.

Compare that to the individual mandate. The mandate’s first political appearance was in a brief from the conservative Heritage Foundation. It then appeared in legislation co-sponsored by 18 Senate Republicans, including Bob Dole… Newt Gingrich… Mitt Romney… the Wyden-Bennett plan… Lamar Alexander… Chuck Grassley…. As late as June 2009, Grassley was telling Fox News, “there is a bipartisan consensus to have individual mandates.”

To my knowledge, there are no senior Republicans who have maintained or announced their support for an individual mandate in the manner of Rivlin or Wyden.

Premium support, in other words, was once endorsed by a handful of Democratic wonks and heterodox senators, though it was, from the beginning, a policy that gained the vast bulk of its political support from elected Republicans. It never gained any serious traction within the Democratic Party. The individual mandate was a Republican idea that garnered support from a diverse array of Republican leaders and institutions over the course of almost 15 years. And unlike with Breaux and Kerrey, many of those Republican leaders and institutions — like Gingrich and Romney and Grassley and Hatch and the Heritage Foundation — are still around today.

That’s not to say motivated reasoning doesn’t happen on both sides. But premium support isn’t a very good example of it. Rather, the clearest example of motivated reasoning among Democrats probably comes in the civil liberties sphere….

Finally, on premium support, it’s not clear to me that Democrats actually oppose it…

For the record, I support premium support--if Henry Aaron, Ron Wyden, or Alain Enthoven design it. I don't think that what Paul Ryan is proposing is anything that Enthoven, Aaron, or indeed Wyden would call "premium support": it is something else.

For the record, I believe that Glenn Greenwald is correct in being absolutely terrified of the Obama administration's continued and expanded abuses of power in national security. We may all suffer someday from the failure to confirm Dawn Johnson:

Glenn Greenwalda: To avoid counting civilian deaths, Obama re-defined "militant" to mean "all military-age males in a strike zone": Virtually every time the U.S. fires a missile from a drone… American media outlets dutifully… cite always-unnamed “officials” claiming that the dead were “militants.” It’s the most obvious and inexcusable form of rank propaganda: media outlets continuously propagating a vital claim without having the slightest idea if it’s true.

This practice continues even though key Obama officials have been caught lying, a term used advisedly, about how many civilians they’re killing. I’ve written and said many times before that in American media discourse, the definition of “militant” is any human being whose life is extinguished when an American missile or bomb detonates (that term was even used when Anwar Awlaki’s 16-year-old American son, Abdulrahman, was killed by a U.S. drone in Yemen two weeks after a drone killed his father…. “Another U.S. Drone Strike Kills Militants in Yemen”)…

Ezra Klein: DeLong Smackdown Watch: Romney Now Sincerely Believes the Individual Health Insurance Mandate Steals Our Liberty Department

Mitt Romney, July 2009, on how great the individual mandate is:

Mr. President, What's the Rush?: No other state has made as much progress in covering their uninsured as Massachusetts.... I worked in a bipartisan fashion with Democrats to insure all our citizens... it passed the 200-member legislature with only two dissenting votes. It had the support of the business community, the hospital sector and insurers…. Our citizens purchase private, free-market medical insurance.... Using tax penalties, as we did... encourages “free riders” to take responsibility for themselves rather than pass their medical costs on to others. This doesn’t cost the government a single dollar….

Ezra Klein claims now that Mott Romney and all his supporters have had a genuine change of mind:

My view — based both on my experience as a reporter in Washington and on an increasingly voluminous psychological literature about how partisans form opinions — is that human beings are very good at convincing themselves of whatever their self-interest would have them believe, and that Washington has become an increasingly sophisticated machine for encouraging and accelerating this sort of “motivated reasoning.”... [Romney's] new opinions are sincerely held. 

I don't buy it. Ezra summarizes my position better than I do:

Coming to any conclusion about that requires disentangling the mechanisms by  which these shifts are happening. One popular perspective — see this post by Brad DeLong — is that this is rank cynicism. The Republican Party hasn’t changed any of its positions, or if it did, it didn’t hold those positions in the first place. Rather, the Republican Party is coldly taking whatever position happens to be most strategically convenient, and if that requires pretending to jettison their previous beliefs, then so be it. 

Ezra Klein: Why Republicans Used to Support and Now Oppose the Individual Health-Care Mandate

I think that the broad thrust of this article by Ezra Klein is largely wrong. I don't think Republican politicians have convinced themselves that the individual mandate is a bad idea. I do think Republican politicians think it is worth saying that the individual mandate is unconstitutional--because there may be five judges who will say that is is unconstitutional, and if they do, then it is. "Motivated reasoning" plays a much, much, much smaller part in the current mishegas than Ezra Klein thinks it does.

Certainly in private Republicans willing to talk about policy will admit that, yes, if Romney had won the 2008 election, nearly all the Republian politicians now condemning nationwide RomneyCare would be its biggest boosters.

Ezra Klein:

The mandate made its political début in a 1989 Heritage Foundation brief titled “Assuring Affordable Health Care for All Americans,” as a counterpoint to the single-payer system and the employer mandate, which were favored in Democratic circles. In the brief, Stuart Butler, the foundation’s health-care expert, argued:

Many states now require passengers in automobiles to wear seat-belts for their own protection. Many others require anybody driving a car to have liability insurance. But neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement….

Ten years later, Senator Ron Wyden… began building a proposal around the individual mandate, and tested it out on both Democrats and Republicans. “Between 2004 and 2008, I saw over eighty members of the Senate, and there were very few who objected,” Wyden says. In December, 2006, he unveiled the Healthy Americans Act. In May, 2007, Bob Bennett, a Utah Republican, who had been a sponsor of the Chafee bill, joined him. Wyden-Bennett was eventually co-sponsored by eleven Republicans and nine Democrats…. In a June, 2009, interview on “Meet the Press,” Mitt Romney, who, as governor of Massachusetts, had signed a universal health-care bill with an individual mandate, said that Wyden-Bennett was a plan “that a number of Republicans think is a very good health-care plan—one that we support.”...

Democrats lining up behind the Republican-crafted mandate, and Republicans declaring it not just inappropriate policy but contrary to the wishes of the Founders—shocked Wyden. “I would characterize the Washington, D.C., relationship with the individual mandate as truly schizophrenic,” he said. It was not an isolated case. In 2007, both Newt Gingrich and John McCain wanted a cap-and-trade program in order to reduce carbon emissions. Today, neither they nor any other leading Republicans support cap-and-trade. In 2008, the Bush Administration proposed, pushed, and signed the Economic Stimulus Act, a deficit-financed tax cut designed to boost the flagging economy. Today, few Republicans admit that a deficit-financed stimulus can work. Indeed, with the exception of raising taxes on the rich, virtually every major policy currently associated with the Obama Administration was, within the past decade, a Republican idea in good standing….

Orin Kerr says that, in the two years since he gave the individual mandate only a one-per-cent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”

Jack Balkin, a Yale law professor, agrees. “Once Republican politicians say this is unconstitutional, it gets repeated endlessly in the partisan media that’s friendly to the Republican Party”—Fox News, conservative talk radio, and the like—“and, because this is now the Republican Party’s position, the mainstream media needs to repeatedly explain the claims to their readers. That further moves the arguments from off the wall to on the wall, because, if you’re reading articles in the Times describing the case against the mandate, you assume this is a live controversy.” Of course, Balkin says, “if the courts didn’t buy this, it wouldn’t get anywhere.”

But the courts are not as distant from the political process as some like to think….

What is notable about the conservative response to the individual mandate is not only the speed with which a legal argument that was considered fringe in 2010 had become mainstream by 2012; it’s the implication that the Republicans spent two decades pushing legislation that was in clear violation of the nation’s founding document…. In February, 2012, Stuart Butler, the author of the Heritage Foundation brief that first proposed the mandate, wrote an op-ed for USA Today in which he recanted that support. “I’ve altered my views on many things,” he wrote. “The individual mandate in health care is one of them.” Senator Orrin Hatch, who had been a co-sponsor of the Chafee bill, emerged as one of the mandate’s most implacable opponents in 2010, writing in The Hill that to come to “any other conclusion” than that the mandate is unconstitutional “requires treating the Constitution as the servant, rather than the master, of Congress.” Mitt Romney, who had both passed an individual mandate as governor and supported Wyden-Bennett, now calls Obama’s law an “unconstitutional power grab from the states,” and has promised, if elected, to begin repealing the law “on Day One.”

Even Bob Bennett, who was among the most eloquent advocates of the mandate, voted, in 2009, to call it unconstitutional….

All this suggests that the old model of compromise is going to have a very difficult time in today’s polarized political climate. Because it’s typically not in the minority party’s interest to compromise with the majority party on big bills—elections are a zero-sum game, where the majority wins if the public thinks it has been doing a good job—Washington’s motivated-reasoning machine is likely to kick into gear on most major issues. “Reasoning can take you wherever you want to go,” Haidt warns. “Can you see your way to an individual mandate, if it’s a way to fight single payer? Sure. And so, when it was strategically valuable Republicans could believe it was constitutional and good. Then Obama proposes the idea. And then the question becomes not ‘Can you believe in this?’ but ‘Must you believe it?’ ”

And that means that you can’t assume that policy-based compromises that made sense at the beginning will survive to the end, because by that time whichever group has an interest in not compromising will likely have convinced itself that the compromise position is an awful idea…

Yes. The Mitt Romney Campaign Lies All the Time. About Everything. Why Are You Surprised?

It's not just that Romney changes his positions more often than he changes his underware. There's more:

Greg Sargent: Company at center of Romney’s latest attack didn’t move because of Obamacare: Mitt Romney has debuted a new talking point on the campaign trail, arguing Obama is out of touch with the negative impact Obamacare is having on small businesses. This is designed to reinforce the larger case that Obama is detached from Americans’ economic difficulties. Romney’s claim is based on a local interview Obama gave in Iowa, in which the president was told by a reporter that a local company had closed and was moving jobs to Wisconsin because of Obamacare. Obama reacted with incredulity…. That led Romney to remark that Obama “didn’t understand that Obamacare was hurting small business,” and “you have to scratch your head about that.”

ABC News did a good fact check of this claim, noting that Romney had distorted what Obama said. But it gets better still.

It turns out that the company didn’t close because of Obamacare…. The company in question is called Nemschoff Chairs, and it manufactures a whole range of health care furniture for waiting rooms…. Obamacare’s implementation had nothing to do with the decision, Mark Schurman, a spokesman for parent company Herman Miller, tells me. “We never said health care reform is the reason we’re closing and consolidating that operation,” Schurman said. “We never said it’s the result of the health care reform legislation.”… “The ongoing uncertainty surrounding what health care reform will take place has caused some health care provider customers and other related aspects of the industry to defer investments in their facilities,” Schurman said.

“The issue is not the administration’s propsed reforms,” he continued. “The issue is that there is no certainty as to what reform is going to look like. Is it going to be repealed or modified? Is it going to be decided in June by the Supreme Court, or the election? Or decided through a series of lawsuits?” “The uncertainty is caused by the ongoing debate,” Schurman said. “Were there no ongoing debate, there would be no uncertainty.”

Looks to Me as If U.C. Davis May Need Some Different Deans, as Well as a Different Chancellor...

Deans Pomeroy and Meyers. Who is the health system counsel?

If Pomeroy and Meyers have a side of the story, they need to document it now, not say that it is "inappropriate" for them to comment on "personnel matters".

Kaustuv Basu:

Academic freedom committee at UC Davis blames administrators: At 7:02 a.m. on Sept. 30, 2010, scant hours after an op-ed he had written for the San Francisco Chronicle criticizing his university appeared in print, Michael Wilkes received an e-mail from an administrator at the University of California at Davis. Wilkes, a professor at the medical school, was told that he would no longer lead a program sequence that taught better patient care, and support for a Hungarian student exchange program he headed would be withdrawn.

Within weeks, Wilkes was told that he would be removed as director of global health for the UC Davis Health System. He also received letters from the university’s health system counsel suggesting that the university could potentially sue him for defamation over the op-ed. 

Now, a committee on academic freedom at the university that investigated allegations of intimidation and harassment against Wilkes has found them to be true. The faculty committee said in its report, a copy of which was obtained by Inside Higher Ed, that the actions of the university administrators cast doubt on its ability to be a “truthful and accountable purveyor of knowledge and services."

The group has asked the dean and other top officials at the university’s school of medicine to write letters of apology to the professor, admit to errors of judgment, stop proposed disciplinary actions against him and take steps to prevent future violations of academic freedom. This week, representatives of the university’s Academic Senate are expected to vote on similar resolutions against the administrators.

The investigation came about after Wilkes filed a written complaint to the committee in late 2010, alleging that there had been a “blatant breach of my academic freedom.” The fracas started after Wilkes, an expert on prostate cancer, co-wrote the op-ed (along with a University of Southern California professor) questioning the efficacy of the prostate-specific antigen screening test, often referred to as the PSA, only days after some faculty members at the school were part of an event that promoted  the test, according to documents. The other groups associated with the event were the American Urological Association Foundation and the National Football League.

The event "doesn’t even acknowledge a problem with prostate cancer screening,” the op-ed said. “Contrast this to the comments of Dr. Richard Ablin, the inventor of the PSA test, who has publicly called it ‘a hugely expensive public health disaster,’ with accuracy ‘hardly better than a coin toss.’ ” In his op-ed, Wilkes (and his co-author) asked why the university had supported the event and wondered “whether it just might have to do with money.”

"Testing for and treating PSA-identified cancer is a large part of the practice of many urologists so it may not be surprising that urology groups take a far more positive stance on the test than almost any other doctors," Wilkes said in the article.

The report from the university’s Committee on Academic Freedom and Responsibility does not identify the medical school’s administrators by name, only by their titles. The School of Medicine’s executive associate dean, who is referenced several times in the report, is Fred Meyers; Claire Pomeroy is the school's dean.

Meyers and Pomeroy said in an e-mail to Inside Higher Ed that it would be inappropriate to comment on personnel matters and findings that are being reviewed by the university’s Academic Senate. “We deeply regret that our actions in handling this particular personnel matter are perceived by some as a violation of academic freedom. Academic freedom is fundamental to the discovery and dissemination of knowledge, and we are personally and professionally committed to upholding that freedom within our institution,” they said. “We respect and protect the rights of our faculty to pursue their research and teaching as they wish, so long as it is in a manner that is consistent with professional standards.”

Wilkes, who is in Tanzania, could not be reached for comment.

According to the report, Meyers received several faculty complaints about the article after it appeared online and he was upset that the debate over the PSA test was playing out in the media, rather than in a scientific journals or forums. He told the committee that the timing of the actions against Wilkes were coincidental. For example, he alleged that the Hungarian student exchange program was being run poorly and Wilkes had been warned numerous times.

However, Meyers acknowledged to the committee that the e-mail sent to Wilkes “has an appearance of impropriety, based upon its close proximity to the timing of the article, even though he denies that the timing is connected,” the report said.

And although none of the threatened actions against Wilkes have been carried out, committee members felt that his academic freedom had been compromised.

James Beaumont, an emeritus professor of public health at Davis who serves on the academic freedom committee, said that the university had not retracted its threat of disciplinary actions even though it hadn’t pursued them.

Gregory Pasternack, a professor of hydrology at the university who also serves on the committee, said the threats against Wilkes were a very serious problem. “There is no question that he has had to adjust his behavior and it has affected his ability to teach, write commentary or interact with his students,” he said.

Pasternack pointed out that when a faculty committee at the University of California at San Diego criticized a dean’s decision to order a professor not to talk about and evaluate another professor’s research, the university accepted the committee’s findings and said that they regretted the administrator's statements.

“There have been egregious actions by the administrators at the medical school,” Pasternack said. “I am hoping that the university will take a contrite approach and recognize the mistakes they have made.”

Romney and "Insurance"

When I talk to Romney people, they say--look: providing coverage for people who have been diagnosed as having chronic diseases (like, say, Ann Romney) isn't insurance: it's redistribution. And we don't like redistribution.

The view that the chronically ill in our society are moochers who have it too easy is, I think, a rather odd one...

Jonathan Cohn:

Romney, MS, And The Stakes Of The Campaign: If you have MS, or any other serious chronic illness, you need more than a devoted spouse. You need a way to pay your medical bills…. The bills are high enough that even patients with private insurance have struggled with out-of-pocket expenses or run up against annual or lifetime limits on payments. And those patients have been, in some respects, the lucky ones. People who buy coverage on their own or through small businesses frequently end up with exorbitant rates or skimpy benefits, or can’t get coverage at all….

The Affordable Care Act will not fix all of these problems. The standards for insurance it sets allows for substantial out-of-pocket expenses, which means many patients with MS and other chronic disease will still struggle with the cost of care. But the health reform law will certainly make the situation better, by making sure almost everybody can get health insurance, no matter what their pre-existing conditions, and by making sure everybody’s coverage includes at least a minimum set of benefits and limits on cost-sharing…. These are just some of the reasons that the MS Society, like virtually every other chronic disease group, advocated for the law and endorsed it after enactment.

But patients with chronic disease like MS will lose most or all those protections if Romney becomes president and, as he has promised, he repeals the Affordable Care Act. He's promised to replace it with other reforms but, based on what he's said, his reforms won't be much of a substitute. Worse still, the tax and regulatory changes he's proposed would quite likely undermine existing insurance arrangements without providing a suitable alternative…. Those who rely on Medicare and/or Medicaid to pay for MS treatments will also struggle if Romney gets his way.

Although he has not been terribly specific about his plans for for Medicare, he’s made clear his intention to transform Medicare into a voucher program that no longer offers the same guarantee of benefits. Romney has been more specific about Medicaid: He intends to turn the program over to the states but with a lot less money….

MS belongs in this presidential campaign, along with every other major disease. But the conversation should go beyond what it says about Romney as a husband and father. It should include what it says about him as a potential president.

Mitt Romney Makes the Case for ObamaCare

The rationale for ObamaCare--what we used to call RomneyCare in Massachusetts, where it has been a substantial success. Nobody wants to repeal it:

Ezekiel Emmanuel: Health Policy and the Affordable Care Act

Health Policy and the Affordable Care Act | Coursera:

This course will explore the many problems of the American health care system and discuss the specific ways that the Affordable Care Act will impact access, quality, costs, as well as medical innovation.

Categories: Economics, Finance, and Business; Healthcare, Medicine, and Biology

Next Session: June 2012. Duration: 4 weeks

About the Course

The American health care system has many problems. 50 million people are uninsured. Quality is extremely uneven, with peaks of greatness at leading academic centers but overall poor quality in both process measures and outcomes such as asthma deaths. Finally, the U.S. health care system spends over $8000 per patient per year, nearly double next highest country. In March 2010, the Affordable Care Act was enacted. Over the next decade or more, the Act will dramatically re-structure the American health care system.

This course will explore the history and structure of the current American health care system, including the history of and problems with employment-based health insurance, the challenges surrounding access, cost and quality, and the medical malpractice conundrum. The course will then explore the history of health care reform and the challenges that were overcome to achieve health reform in America. Finally, we will delineate the specific ways that the Affordable Care Act improves access and quality, and will control costs. Throughout lessons regarding health economics, health policy, and medical practice will be elucidated.

This class is open to anyone that is interested in gaining a better understanding of the US health care system and the challenges of health care reform. There are no prerequisites or required knowledge of the health system.

Scott Brown Disappoints Yet Again

Igor Volsky:

Scott Brown Benefits From Obamacare, Despite Supporting Its Repeal: [Y]esterday, this Tea Party champion and great opponent of Obamacare admitted something astonishing: his 23 year old daughter is one of the 2.5 million young Americans who are benefiting from a regulation that allows young people to stay on their parents’ health care plan until age 26.

Harold Pollack on the Strange Lack of Empathy of the New Mitt Romney

Harold Pollack:

In sickness and in health: like Ann Romney. She strikes me as a charming, dignified, and tough advocate for her husband’s presidential campaign. On Thursday, she appeared on Entertainment Tonight to discuss her experiences as a breast cancer survivor and her challenges arising from multiple sclerosis. Having sat white-knuckled in a gritty Chicagoland hospital waiting room as my wife lay unconscious in the cardiac ICU, I feel some kinship with Mitt Romney in seeing a life partner facing profound medical challenge. [But] neither Romney nor I know what it felt like for many families sitting near me, who faced a medical crisis while also fearing crushing medical bills.

Acemoglu and Robinson "Fiscal Expansion Is Not Left-Wing Because Do You Know Who Else Was in Favor of Expansionary Fiscal Policy in a Depression? HILTER!1!!" Blogging

Mark Thoma sends me off to read Daron Acemoglu and James Robinson:

Inequality and Keynesian Economics: Paul Krugman and Robin Wells have an interesting article in the Occupy Handbook…. Krugman and Wells… [argue] that the huge increase in income inequality has also had major political consequences… the main corrosive effect of this inequality is in preventing Keynesian policies to combat the recession 2007-2008 and the sharp increase in unemployment that resulted. The idea here is that the “right” (the GOP) opposes any government intervention, and Keynesian fiscal policies and work programs that would have increased employment and combatted the recession are opposed by the right because, with increased inequality, they have become more beholden to the very wealthy.

Though intriguing, this idea is not backed up…. [T]he distinction between “right” and “left”… is not a natural one when it comes to Keynesian economics and policies. Many conservative politicians, and not just Nixon and Reagan, have embraced Keynesian economics…. [A]n economic history of Nazi Germany by Dan P. Silverman is entitled *Hitler’s Economy: Nazi Work Creation Program, 1933-1936…

My first reaction is that clearly Acemoglu and Robinson are not aware of all internet traditions. On the internet, any declaration that a position usually seen as left-wing in some sense--vegetarianism, say--is actually not left-wing at all because IT WAS SUPPORTED BY HILTRE!!1! is greeted with raucous laughter, and taken as an admission that you have no good arguments. The rhetorical principle that the side of the argument that says "Hitler" first automatically loses functions as a remarkably good heuristic, and also increases civility--for people really do not like being told that their policies are bad because they were Hitler's policies, and tend to respond in impolite ways.

My second reaction is that I do, to some extent, understand what Acemoglu and Robinson's impulse is here. The idea that we should engage in technocratic interventions in the macroeconomy to provide a stable economic environment in which free men and women can make their plans live their prosperous lives is, as John Maynard Keynes wrote back in 1936, "moderately conservative": it is in its essence neither left nor right, but merely sane.

The question of what technocratic interventions work best--pegging the price of gold, constant reserve stock, stable money growth rule, lender of last resort, nominal GDP targetting, automatic stabilizers, deposit guarantees, expansionary fiscal policy at the zero nominal lower bound--is not a question of values and goals, but rather a pragmatic question of what works, of what macroeconomic policy is properly "neutral" rather than deflationary. And that is an empirical-technocratic question, rather than a value-philosophical one.

But, even so, right here and right now both the policies of fiscal expansion in a depression advocated by John Maynard Keynes and the policies of massive quantitative easing in a depression recommended by Milton Friedman are strongly left-wing policies--not right wing ones. And, right here and right now, higher income and wealth inequality in our system of money-driven politics has strengthened the right. Thus I have a hard time reading Acemoglu and Robinson's resort to Hitler as anything other than an attempt to divert attention away from these facts.

But why do they do this?

I think that, once one recognizes this fact that both Keynes and Friedman are to the activist left of even the left edge of today's policy spectrum, one cannot then escape the conclusion that today the entire right wing and a good part of the center is simply not sane. The position of the right today is, in essence, that (a) because the top managements of highly-leveraged money-center banks were unable to understand or control their derivative books, (b) tens of millions of additional people must be doomed to poverty and unemployment, for (c) the market giveth and the market taketh away: blessed be the name of the market.

And this is simply nutso.

Our technologies, resources, and preferences are what they were in 2007, and high unemployment because we will not repair our magneto is a choice, and a disastrous one, and an insane one, and a right-wing one.

Acemoglu and Robinson, I think, want at some level to be thought of as Very Serious People, as part of the Bipartisan Center. They do, I think, fear that if they took those additional logical steps that they would find themselves dismissed as "shrill"--as like Paul Krugman and company.

So they try to avert their own--and everybody else's--gaze from the fact that right now to be truly technocratic and nonideological is to be advocating policies that are left of the entire political structure.

Another Reason Why You Simply Should Not Believe People Playing for Team Republican

Paul van de Water on Charles Blahous:

“Double-Counting” Canard Quacks Again: Former Bush Administration official Charles Blahous has garnered some media attention by gussying up old, discredited arguments about the budgetary effects of health reform….

Ezra Klein and Jon Chait Over Charles Blahouse and Lori Montgomery, 6-0, 6-0, 6-0

http://www.washingtonpost.com/blogs/ezra-klein/post/the-weird-baseline-obamacares-opponents-are-using/2012/04/10/gIQAu3de8S_blog.html

Perhaps the Washington Post should hire a real ombudsman.

Why oh why can't we have a better press corps?

Heaven Mourns Each Day That the Washington Post Is Not Liquidated II: Health Care Cost Estimates Edition

Charles Blahous is… not careful with his work… and plays 110% for Team Republican. The Washington Post's reporter, Lori Montgomery, either doesn't know this or pretends not to know this. We will see if there is any internal pushback from the Ezra Klein insurgency…

Jonathan Chait:

The Bogus Obamacare-Deficit Study: The Washington Post has an apparent blockbuster story today. It reports that a new study finds that Obamacare will increase the budget deficit…. It’s not even remotely legit.

Heaven Mourns Every Day the Washington Post Liquidation Is Delayed...

Why oh why can't we have a better press corps?

Paul Krugman:

Socialsecuritymedicareandmedicaid Strikes Again - NYTimes.com: Jared Bernstein and Dean Baker are both mad, understandably, at Robert Samuelson, who pulls out, for the 7 millionth time, the old Social Security bait and switch. Here’s how it works: to make the quite mild financial shortfall of Social Security seem apocalyptic, the writer starts out by talking about Social Security, then starts using numbers that combine SS with the health care programs — programs that are very different in conception, financing, and solutions. And then the writer ends by demanding that we cut Social Security, as opposed to addressing health care costs…

Andrea Louise Campbell's Sister-in-Law vs. Nino Scalia

The LORD preserve us from judges like Nino claiming to preserve our "liberty".

Andrea Louise Campbell:

Down the Insurance Rabbit Hole: Justice Antonin Scalia subsequently expressed skepticism about forcing the young to buy insurance: “When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us.”

May the justices please meet my sister-in-law. On Feb. 8, she was a healthy 32-year-old, who was seven and a half months pregnant with her first baby. On Feb. 9, she was a quadriplegic, paralyzed from the chest down by a car accident that damaged her spine. Miraculously, the baby, born by emergency C-section, is healthy. Were the Obama health care reforms already in place, my brother and sister-in-law’s situation — insurance-wise and financially — would be far less dire. My brother’s small employer — he is the manager of a metal-fabrication shop — does not offer health insurance, which was too expensive for them to buy on their own. Fortunately, my sister-in-law had enrolled in the Access for Infants and Mothers program, California’s insurance plan for middle-income pregnant women. AIM coverage extends 60 days postpartum and paid for her stay in intensive care and early rehabilitation.

May I Say That Posting Nutrution Information on Processed Food Products Is Exactly What the Government Ought to Be Requiring Merchants to Do?

Nancy-Ann Min DeParle is on the wrong side here:

Gardiner Harris: White House and F.D.A. at Odds on Regulatory Issues: Nancy-Ann DeParle, the whip-smart and sometimes caustic White House deputy chief of staff, picked up The Wall Street Journal one summer day in 2010 and got an unwelcome shock. The Food and Drug Administration was proposing as part of the new health care law to require that movie theaters post calorie counts for popcorn — and this was the first she had heard of it.

In the F.D.A.’s view, the law called for moviegoers to know that many a buttery bucket of popcorn had more calories than two Big Macs, but Ms. DeParle, President Obama’s chief health adviser, thought the requirement was unnecessary and would probably be lampooned on Fox News as an especially silly example of the government intrusions that conservatives often mocked as the nanny state…

A more-informed consumer is a better consumer. That is not rocket science.

David Dayen comments:

The Administration’s Muzzling of the FDA: [T]here’s plenty more…. The FDA wanted to regulate sunscreen by banning use of the name for ineffective products. The White House just wanted them listed as ineffective. The FDA wanted over-the-counter sales of the morning-after pill. The White House wanted sales restricted behind the counter. And the White House ends up winning all these fights. They see the FDA as “hopelessly naïve” do-gooders who don’t understand the implications of their actions. This of course reflects on them as the hopelessly naïve ones, thinking that Republicans will somehow stop their attacks if they never use the power vested in them by the Constitution. The obsession with message and image has real consequences for policy.

The article explains how the Bush Administration first tampered with the FDA’s independence, and that the White House under Obama has really done the same thing, if for different reasons. The Bush Administration just didn’t want the regulations. The Obama Administration just didn’t want the risk associated with the regulations. But the impact is exactly the same; it doesn’t matter what’s in the heart of those stopping the regulations. “Employees here waited eight long years for deliverance that didn’t come,” said one top FDA official.

Reading over this report, you get the impression that the biggest consumers of Glenn Beck in the 2009-2010 period were White House staffers. And policies were set so as to not rouse him…. This is about big money and lobbying, sure, but also a philosophy that comes from Cass Sunstein, a light-touch “nudge” theory of regulation that clashes with the FDA’s main mission to protect the public. The article closes with this from Susan Wood. I will also:

Susan Wood, a former head of the office of women’s health at the F.D.A., had resigned in 2005 to protest the Bush administration’s repeated refusal to make emergency contraceptives available without a prescription. In 2009, the White House invited Dr. Wood to attend a ceremony during which Mr. Obama signed a presidential memorandum pledging to restore scientific integrity to government decision-making and to listen to scientists “even when it’s inconvenient — especially when it’s inconvenient.” Dr. Wood said that she feels Mr. Obama broke that promise and fears future administrations will overrule the F.D.A. in other such controversial areas.