If the Supreme Court Strikes Down the Mandate–What’s Next?

Ezekiel Emanuel says he has been betting on how the Supreme Court will decide the case challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA).

Speaking at the annual meeting of the Jewish Social Policy Action Network in Philadelphia not long ago, Emanuel, who served as Special Advisor on Health Policy to the Obama administration when the bill was being drafted, confided that he has placed five wagers expressing his optimism that “the mandate will survive” along with the rest of the legislation.

“I think the vote will be 6:3 in favor with Kennedy and Roberts voting for.” There is “No doubt it is constitutional,” he declared. “Legally, this is an open and shut case.”

Emanuel, now chair of the Department of Medical Ethics and Vice Provost for Global Initiatives at the University of Pennsylvania, also revealed that he recently had dinner with Supreme Court Justice Antonin Scalia. Emanuel says Scalia will not vote for the reform bill. (No surprise there.)

For reasons I have explained in earlier posts here and here, I tend to share Emanuel’s optimism. Nevertheless, I could easily be wrong.

As Emanuel observes, there remains the danger that the Justices will overturn the mandate. In that case, the vote “will be 5:4 against. If that happens, the country will have bigger problems because then it will be a partisan ruling along party lines,” he noted, referring to polls showing that the American public is losing confidence in the integrity of the Supreme Court as an institution that stands above the political fray.

Fat carrots and skinny sticks

If the Justices do declare the mandate unconstitutional, what happens next? Will this spell the end of reform? Absolutely not.

The goal of the mandate is to draw more healthy people into the insurance pool, so that the cost of care when we become sick can be spread over a larger group. But the mandate is only one of many provisions in the PPACA that makes health insurance more attractive and more affordable.

Here are some of the “carrots” that should draw people into the pool:

  • Under the law, middle-income and low-income families purchasing their own insurance will receive tax credits to help them pay premiums. The subsidies will be calculated on a sliding scale for households with income up to four times the poverty level ($92,200 for a family of four and $44,680 for a single person).
  • The PPACA limits how much insurers can ask patients to pay out-of-pocket.
  • Insurers selling policies to individuals and small groups will have to cover all “essential benefits.” No more “Swiss cheese” policies filled with holes.
  • Insurers won’t be able to hike your premiums because you’re sick.
  • They also won’t be able to charge you 30 percent more simply because you are a woman.
  • When covering a large group, insurers must pay out 85 percent of the premiums they collect for medical care. When insuring a small group, administrative costs are higher, so they can keep 20 percent. If they don’t spend the required percentage of premiums on care, customers will receive refunds.
  • There will be no co-pays for preventive care, and the deductible will not apply.

These provisions should encourage many young, healthy Americans to purchase insurance. Research shows that younger people don’t buy insurance – not because they think they’re invincible, but because they can’t afford it. Subsidies will help many of them.

Making the hard sell

But the majority of Americans are totally unaware of the ways that reform makes insurance more affordable and more attractive. This is why Washington & Lee Law Professor Timothy Jost suggests that if the mandate is overturned, reformers should launch “an aggressive, televised marketing campaign.” As Jost explained to me in a recent phone interview, “if you really look at who is subject to the mandate, a lot would have every reason in the world to get insurance, and no reason not to even if there is no mandate.”

Would the carrots be as effective as the financial penalties in persuading healthy people to buy insurance? Probably not. Many observers argue that without the penalties, people just won’t sign up – no matter how many carrots you dangle under their noses.

I’m not convinced. It’s impossible to predict human behavior, especially over a period of years. It remains to be seen how younger Americans will respond to the tax credits, and the rules that require insurers to offer more comprehensive protection, including maternity benefits and preventive care without co-pays.

Moreover, if you read the PPACA, the mandate was a pretty skinny stick. Those who oppose the mandate object that it “forces” Americans to buy insurance. But the truth is that in 2014, someone who decides to opt out would pay a fine of just $95 or 1 percent of taxable income – whichever is higher – up to $285 per household.

This hardly constitutes “force.” Even in 2016, when the penalty peaks, it amounts to only $695 or 2.5 percent of taxable income, up to $2,086 per household – much less than the cost of insurance.

No question, if the mandate is eliminated, fewer people will be insured. But if reformers do a good job of communicating the benefits of reform, they could draw millions into the pool.

Losing the mandate may not be nearly as great a blow to reform as some suggest.

Note to readers: I welcome reader comments and questions, and will try my best to reply in a timely manner. I ask only that you do your part to keep our discussion both reasoned and polite.

Maggie Mahar is an author and financial journalist who has written extensively about the American health care system. Her book, Money-Driven Medicine: The Real Reason Health Care Costs So Much, was the inspiration for the documentary, Money Driven Medicine. She is a prolific blogger, writing most recently for TIME’s Moneyland. Previously she wrote and edited the Health Beat blog for the progressive think tank, The Century Foundation. Previous work for the Health Insurance Resource Center includes Can states thwart Affordable Care Act by refusing to build state health insurance exchanges? She also provides background on Congressional health care legislation for HealthReformVotes.org, a special project of the Health Insurance Resource Center.

31 replies »

  1. This has been an excellent dialogue so far, and it is great that Maggie steps in with comments.

    Based on my limited actuarial background (I have been in the insurance industry for many years), I think that Maggie “over-rates” the impact of getting young healthy persons to buy insurance.

    Let me state it another way. The impact of guaranteed issue is so large that getting young people into the pool will not lower costs at all.

    There was a piece in Health Affairs, I do not remember the date, which said that the current participants in the Minnesota High Risk pool had average claims of $15,000 each per year,

    Under the ACA, these persons would ultimately be folded into the Exchanges. You put 20,000 of these folks into the pool, and it takes many thousands of young people to balance that out. ( Also note that half the young people you enroll are females in childbearing years.)

    So I think the battleground issue is the subsidies. Insurance rates are going to go up. If the subsidies hold, then the average American will do OK. Without subsidies, the actuarial death spiral of the individual market (which has been gathering steam for 10 years) will just accelerate like it did in New Jersey and Washington state.

  2. Ignorance is bliss. Besides, are you the only one who reads and comments here? Nice try in attempting to censor me recently.

  3. Determined—

    I haven ‘t read your last 4 comments– just noted that they are there.

    You might note that no one responds to you.

  4. Maybe Ms Mahar can give an opinion of she is interested in reading this link why we should all be paying for health care of interventions as described in his piece about prolonging his demented mother’s life.


    I read an abbreviated part in this week’s The Week magazine, and just thought immediately what PPACA would do with situations like this.

    Ms Mahar won’t admit it in her travels here, but it will come down to one of two things: her generation and that above hers are getting the younger generations to pay their bills, or, people will be basically discarded once a chronic illness costs above X dollars a year.

    You read and decide. Catch ya Monday PM if the Court will finally do their job!

  5. RU Certain & Fran

    First, I agree that you can focus on only 3 or 4 things at a time. But you are just one individual. Health care reform is calling on hospitals, doctors, community clinics, nurse practioners, and policy makers across the nation to reform the system– millions of people, working at different levels of the systm, will be involved.

    It will be a process, not an event. Any one hospital will probably focus on 3 or 4 problems at a time: they’re already addressing readmissions; many are
    working hard to reduce infection rates, more and more are using check-lists, residents are being enlisted to come up with ideas to improve patient safety.
    At some hospitals, nurses are being given more autonomy (to speak up when a doctor forgets to wash his hands, etc.) and by 2014, some hospitals will be “bundling payments” rather than paying free-for-service.

    Nurse parationers are already play a much greater role in teaching patients how to manage chronic diseases.

    Meanwhile, communitiy clinics will be replace ERS as the place where a great many low-income people wiil be able get preventive care for free (no co-pays) in a setting where doctors and nurses know them and their families. (By contrast, an ER can’t provide continuity of care to the many people who drop in in the middle of the night.) The Affordable Care Act
    provides fundign to double the capacity of community clinics. It also raises
    pay for docs who provide preventive care to Medicaid patients by about 30% (to Medicare levels) and it provides funding for scholarships for many
    more nurse paractitioners and primary care docs.

    Secondly, If you are paying $18,000 for bare bones insurance for you and your
    wife, you must live in a state that lets insurers charge more–sometimes as much as 7 times more– to cover a 55 year old than they would when offering the same coverage to a 25-year old. In addition, you’re probably in a state that takes pre-existing conditions into account.

    In New York State, insurers can not charge me more based on my age or
    pre-existing conditions. My insurance has just gone up a bit, and I’ll be
    paying about $5500 for very comprehensive insurance (for one person) with
    no deductible, no annual imits, no lifetime limits on how much they pay out.
    Co-pays to see a specialist are high ($50) but only $25 for a primary care
    physician, and no high co-pays or deductible if I’m hospitalized.

    Under the Affordable Care Act, your premiums will almost certainly come down. At worst an insurer will be able to charge you 3 times more because you are older (if you are) and won’t be abe to charge more because of a pre-existing condition.

    Most importantly, the ACA will draw a great many more young and healthly people into your insurance pool.

    Finally, for middle income households (households with joint income of
    roughly 45,000 to 68,000) the subsidies (tax credits based on income) will
    really help. (Half of all U.S. houselds earn less than this; half earn more. This is median income, or the true “middle-class.”)

    The rebates are only a tiny part of the relief that the ACA offers. The tax credits are far more important.

    And everyone in the individual and small group market will be getting much better than “bare bones” coverage. Insurers will have to cover all essential benefits which are not usually covered in these plans. Finally there will be caps on out how much out of pocket spending insurers can require.

    People will not be forced to sell their homes to pay for hospital care.

    Some of hte HIT that private sector vendors have been selling to doctors and hospitals is not very good– and has caused problems.
    But a great many hospitals and doctors– at Kaisers, Mayo, the VA and elsewhere are making excellent use of IT. IT has vasty improved coordination of care and reduced errors.
    Privacy issues can be addressed– as they have been in these systems and througout Europe, where IT has been implemented with success in many
    countries. And, when it comes down to it, most patients are far more worried about being given someone else’s medication (and dying) than they are
    about someone seeing their medical record.
    The number of preventable mistakes made because we continue to
    fumble along with paper records is astounding.
    It will take a number of years to work out the wrinkles in our HIT systems– doctors and hospitals should look to the successful systems for advice.

  6. “hyper enthusiasts”, I like that as a substitute for extremist.

    My opinion, most of the hyper enthusiasts are not active health care providers. I would even go further and say over 90% who crafted PPACA do not provide patient care nor have any real idea of what the process involves in any form.

    Otherwise, how would this legislation be submitted to be passed as was done? Thanks for your comments here.

    from fellow provider of patient care for 20+ years now.

  7. I guess my point is that the Federal legislation is doomed by its own complexity. Like treating a patient with 15 items on their problem list. You can’t be successful with all of it and must prioritize to a few or the results will be doomed.

    Here’s another recent example of the law having “a skinny stick” as you say. $1 billion dollars returned out the health insurance cofers sounds like a lot. Is it? I spent $18,000 for bare bones insurance for my wife and I last year and my premiums went up 9.9% in the spring. (Once the state insurance commission approved it).

    As a result of the MLR Rule: “On June 1, 2012, insurance companies nationwide submitted their annual MLR reports for coverage provided in 2011 to the Department of Health and Human Services (HHS). Based on this data, insurance companies that didn’t meet the 80/20 rule will provide nearly 12.8 million Americans with more than $1.1 billion in rebates this year. Americans receiving the rebate will benefit from an average rebate of $151 per household. ”

  8. The reliance of PPACA on HIT to help pay for the increased costs associated with the law is a weak link. Additionally, the violations in patient privacy associated with EHR devices and the adverse consequences caused by them have been ignored by the hyper enthusiasts.

  9. Just keep spouting those numbers all weekend long, if that soothes your nerves. The damage is done, a one sided legislative assault that does not solve health care problems effectively but just redirects the hassles obtusely is not solutions. We as moderate Americans deserve better than this bilateral assault by extremist factions that only care about their legion,

    Again, extremist democraps and repugnocants, find your field and just bludgeon yourselves to death, and we in the middle will try to bury you with what respect we can afford.

    We witness the destruction of the military thanks to Bush and his ilk, so what, we get to watch the internal erosion by this legislative assault by Obama and his ilk? Here’s my mandate: the scum principle dies by majority vote Monday, and see how the Demander in Chief handles it by week’s end.

    37% of us are not partisan hacks, o ye faithless trumpets!

  10. 6-3 puts it to bed. 5-4 to Uphold says “this is all we’re giving you and your Frankenstein law.” Campaign on it. We punt.

    5-4 to strike says “enjoy your lengthy retirement, one-termer. We’re not afraid of you.”

  11. “Expect a big turn-out on both sides.”

    The first thing you have written that is mostly right. You seem to ignore the third party interests here. Not convenient to you and your cause, eh?

    Your boss is not doing well of late. Here’s a tip for others to ponder: when the boss is not being appropriate or attentive to his legion, people will be pissed when they realize they are being ignored or sold out. Next week will be telling to the Democrat cause. He loses the Supremes’ vote and gets major egg on the face for recklessly using Executive Privilege for reasons that don’t hold up, start watching’ the floor for those rats. Your ship ain’t floating so soundly.

    I just look forward to the Repugnocant vessel that recklessly crashes into it to sink ’em both!!!

  12. Rucertain–

    I wonder if you have read a good 5-page summary of the heatlh care legislation?

    If you had, you would realize that it regulates health insurance to a point that most knowledgable observers agree that the for-profit insurance industry
    will be dead in a matter of years. As the CEO of Aetna recently pointed out
    “Our business model wil no longer work” Under the ACA they won’t be able to make the profits Wall Street expects because:

    They will no longer be able to “cherry pick” healthy patients.
    They won’t be abe to charge sick paitents more.
    They will have to pay out 85% of premiums to hospitals and doctors,
    keeping just 15% for salaries, marketing, administrattive costs, cusomter service profits for investors, etc. etc.
    (Even if we had a “single payer” or Medicare For All system, Commonwealth & others have pointed out that would cut the cost of insurance by, maybe 4%–at most. It.
    Insurers will have to cover all “Essentail Benefits”– inluding maternity,
    rehab after surgery, mental health, dental and vision care for children– and there will be no co-pays for preventive care. for adults or children. (Deductibles also will not apply.)

    But, insurers will not be required to cover everything that a doctor might prescribe if medical evidnece reveals that it offers no beneifts to the patient. For example, insurers will not be required to cover PSA testing
    (though they can if they want to). They won’t be required to cover
    back surgeyr for low back pain except in cases where the patients medical profitle suggests that i it might do some good. They won’t be required to cover many tests, treatments and surgerys if the risks significantly outweigh the benefits.

    This will not hurt patients.
    But urologists, back surgeons and others who will find their income stream
    shrink are not happy.
    The law also will cut into the income streams of many equpment manufacturers, pharmaceutical companies, device-makers and, hospitals..

    Back to insurers:, under reform, insurers in the U.S. will be regulated, much the way they are in Europe. (In all Western European countires, private insurers are part of the system, but they are regulated.

    In those countires, by and large, neither the government nor private insurers will pay for treatments and tests unless there is medical
    evidence showing that they will do the patient somw good.And the governments also regulate how much drug-makers, device-makers and doctors can charge.

    This is why health care in those countries is so much more affordable than it is here.

    Meanwhile, by and large, outcomes are as good–or better–than in the U.S.

    Tests and teratments that offer no benefits–and create needless risks–
    lead to wrose outcomes.

    Bobby G–

    My guess it that 5-4 –in favor of the legislation is most likely.

    But it could go 5-4 against the heatlh reform law.

    Either way, the election in November will decide this. What the Supremes
    say is far less important than you wins Washington.

    However the Court decides, both Democrats and Republicans
    will be energized by the debate that follows

    Expect a big turn-out on both sides.

  13. 6-3 to Uphold. Maybe only 5-4 though, truthfully. Which would keep it in play as a 2012 Presidential campaign issue.

  14. No one of integrity or respect of others’ boundaries enforces mandates. You apply consequences if people stray beyond reasonable and fair boundaries, but, democracies do NOT mandate action.

    It is why the Democrats are as big a failure to this society as their equally insensitive Republican counterparts. Why the Court does not release their opinion is yet another example of alleged leadership and higher authority both clueless and compassionless. And, Narcicistic drama kings and queens.

    Oh well, see what Monday brings.

  15. Which is easier to communicate to a patient: the benefits of a healthy diet or the bad effects of smoking? You can list all the positive benefits of the ACA but all you need to point out to most Americans is the part where the Federal gov’t mandates you buy something you may not want, no matter how good it is for you.

    It’s sad to see how poorly designed the ACA turned out to be. As a physician, I had high hopes for reform of the Health Insurance industry by the Obama Administration but it has just become clearer than ever the political power and prowess of insurance companies, Big Pharma and the AHA to drive up prices in order to keep premiums high (and profits).

  16. “protect Eric Holder from Congressional action regarding the Fast & Furious investigation”

    All just Part of Our insidious, deft Plan to rescind the Second Amendment.

  17. This comment is targeted to whomever reads this blog and threads and is concerned with the alleged leadership supposedly representing us these last few years. I am genuinely concerned with the growing hypocrisy coming out of Barack Obama’s mouth. And I voice this at this thread because I read this post author more and more just a mouthpiece for this administration’s agenda for this legislation, and readers who are paying attention to the bigger picture need to consider my concerns when watching what amounts to narcissists who’s ego strength amounts to what the Glenn Close character (moreso a borderline personality disorder, but still a personality disorder) says in “I will not be ignored”.

    It is well documented now Obama said last year it was not his place to unilaterally decide how immigration matters should be handled, yet, last Friday was quite the opposite speech. Now today we learn that Obama has claimed Executive Privilege to protect Eric Holder from Congressional action regarding the Fast & Furious investigation, an order that is solely to protect the President’s involvement in a matter I was not aware involved him directly until this directive.

    Anyone out there who has dealt with characterologically disordered people and watching this erosion of limits of power, is it really absurd to surmise that this guy will ignore a Supreme Court ruling that could dampen his alleged legislative achievement? Think about it. Not that Russia/former USSR is a bastion of democracy, but Putin has shown how one man can run roughshod over his population to maintain power.

    I just find the sheer hypocrisy of active Democrats and supporters bashing the prior Bush for his poor Executive actions that now pale a bit to what Obama is doing to be disgusting. Power corrupts, absolute power corrupts absolutely.

    Scary times indeed. This ruling could be a defining moment for this country. Stay tuned.

  18. Bill–


    I agree that the penalty is an implicit tax. If it had been made explicit that it was a tax there would be no question as to whether it was constitutional:
    the federal government has the right to tax out.

    If it has been an explicit tax, the legislation never would have passed
    Congress. I was watching the votes as the legislation slowly wended its
    way through Congress.

    By January of 2010, many people were convinced that reformers just
    didn’t have the votes– even though they had made compromises, given up on the public option, etc.

    I thought the bill would pass — but not if they added taxes that would affect anyone except the very rich (individuals earning over $200,000).

    Most Republicans are opposed to taxes of virtually any kind. Most
    Americans are anti-tax.

    Even moderate Democrats would have been afraid of voting for a bill
    that their opposition at home could argue was hiking taxes on the middle-class.

    So while yes, it would have been great if they could have called it a
    tax, I think that they made a realistic decision.

    I would rather have reform legislation– with its many “carrots” even if
    we lose the mandate–than no reform legislation at all.
    And that was the alternative. Even without the mandate, millions of people will be helped by reform legislation.

  19. Hindsight is 20/20, ain’t it? You see, the lesson I learned in 2010 is that irregardless of what party is in power, a one party plurality in the Executive and Legislative Branches do not do the public any favors, just promoting their principles and agendas because, hey, who is there to stop them?!

    We got screwed into going to War in the Middle East in 2003, and then got screwed again by letting power mad insensitive majority leaders and the head egomaniac fuelling them throught the White House push this crap through in 2010. That is why I don’t get Ms Mahar trying to tell us this is not about Obama. It is almost all about Obama. Don’t worry though, I will remind any and all readers remember the pathetic efforts by Reid and Pelosi that pushed this crap through.

    Hey, I know my parrot reply will be coming after repeating what was basically said by the San Fran she-man, “let’s pass the legislation to find out what’s in it”. Isn’t that what Ms Mahar has the gall to echo above in her last comment in this current thread?! “I also agree that the ACA will become increasingly popular as more parts of it are implemented, and more people find out what is actually in the legislation.”

    Little late for that sound bite, EH!?!?!?!?!

  20. Rather disingenuous of you to say that this is not about Obama, but just PPACA, which by the way is the correct abbreviation for the bill, but specifics and correctness is not part of the agenda now, is it?

    This is about BOTH Obama and the bill, because he is merged into the problem at hand. Wow, you PR people really think you can tell us your versions are the only one(s) to consider, you really validate what the above writer at TMV said that I linked to at the beginning of this thread.

    If my numbers are right about what that poll said about who voters identify with as party affiliation, doubt your 28% will overwhelm the sizeable portion of the 37% who do not favor either party, and be sure the odds are that more Republicans will come out to vote than Democrats, not that I will be voting for either of their candidates for President in November.

    Again, what is the color of the sky in your world?!

  21. I wonder what the Obama administration and the Democratic leadership in Congress now think about not setting up the individual mandate as a “pay or play” explicit tax? This approach would have negated any efforts to have the PPACA overturned on the basis that it falls outside of the regulation of interstate commerce power of Congress.

  22. Laura, Jonathan H., John & Everyone

    Let’s try to keep this thread on the topic. The post is not about Obama.
    It is about the Affordable Care Act, and whether people wil buy insurance even if there is no mandate.

    Laura– Thanks for the Pew report.

    But note that Pew says that “most of the coverage” in the media has “focused on the politics of the bill rather than the substance of the legislation.”

    Jost is not talking about relying on the mainstream media to communicate the benefits of the legislation. They have done a very poor job of that. As
    Pew says, they’re more interested in the politics (which are more entertaining) than what’s actually in the bill.

    Jost (and I) are taking about a televised marketing campaign launched by
    reformers who support the bill and actually talks about the benefits– much like the media campaign in Massachusetts where the Red Sox came on
    television to promote Mass. health reform. It was very effective.

    Jonathan H.–
    You write that if the Court overturns the mandate
    “Afterwards, the ACA will become more popular with the public, the Supreme Court less so, and this ruling will have probably a neutral to positive impact on Obama’s re-election in 2012.”

    I agree that the Court’s popularity will fall further if it nixes part of the legislation. The public perceives the Court as “too poitical” and if the
    Justices (the majority of whom are conservatives) vote against the legislation this wil be see as a case of the Justices voting their politics– whether or not that is true. What is true is that the Supreme Court is supposed to be above the political fray.

    I also agree that the ACA will become increasingly popular as more parts of it are implemented, and more people find out what is actually in the legislation.

    Finally if the Court rules against the mandate, health reform’s supporters will
    be angry, and if anything, more of them will turn out to vote for Obama. His opponents, on the other hand, will see the court’s decision as proof that Obamacare is unconstitutional. All in all, I think the effect will be, as you say, a wash.

    John —

    The “policy institute” that did the poll descibes itself as “center right” and
    devoted to “smaller government.” It’s against health reform and so it’s not
    terribly surprising that its poll shows the court repealing the mandate. (One
    could also say that its not surprising that Emanuel, a former member of
    the Obama administration believes the Court wil support the mandate.
    Though Emanuel has always been outspoken even when what he is saying is not poitically correct.. . .

  23. Umm, no. Juan Williams has been in quite the number of disputes with other Fox commenters of late, this issue as one example. Reference, he was with NPR for years as their only African American commentator until dropped for his Islamic comment that was so allegedly over the top bigoted.

    Fox News hired him as a left/liberal commentor which he has remained.

    And, it is not my comment but one by a TMV poster that comments on Williams in the first place. I just think the poster is correct.

    have a nice day.

  24. DeterminedMD: Juan Williams is a conservative Fox News commenter, so he is predisposed to believe the opposite of what you just wrote. He is more likley to believe that 5:4 decisions that go the conservative way are justified while those that go the opposite way are partisan. His saying that a 5:4 ruling striking down the law will be divisive and seen as partisan is an attempt to be non-partisan, and recognize how rarely justices strike down acts of congress on constitutional grounds, specifically with respect to the commerce clause.

    Here’s my prediction: the ACA mandate will be overturned, along with guaranteed issue. I have no guess about community rating. I think the rest will stand. Afterwards, the ACA will become more popular with the public, the Supreme Court less so, and this ruling will have probably a neutral to positive impact on Obama’s re-election in 2012.

  25. A report released today by a DC policy institute, who polled ex-staffers of the justices’, reveals that the mandate is likely to get overturned. In terms of what’s next, it will be interesting to see how other parts of the law such as the medical device tax will fare pending the SCOTUS decision. Check out the poll: http://bit.ly/Kz0zv9

  26. I linked this at Bob Wachter’s post a few days ago, and boy, am I glad you did not disappoint in forwarding this post today, ma’am. From Logan Penza at The Moderate Voice site a few days ago, http://www.themoderatevoice.com, for those readers who missed the comment prior:

    “Commentator Juan Williams argues that overturning the Affordable Care Act on a 5-4 decision would undermine the legitimacy of the Supreme Court.

    Most of those responding to Williams point out that his is a weird argument — arguing that overturning a generally unpopular government mandate would damage the Supreme Court doesn’t really make sense. But my take is that Williams and others who share his opinion have a weird double standard: 5-4 decisions like Lawrence v. Texas that promote progressive policy preferences are not a problem, but 5-4 decisions that defy those preferences like Citizens United and, potentially, the forthcoming ACA decision are.

    What really seems to be going on here is that fans of the ACA have given up on the substantive argument. Their attempts to convince Americans that the individual mandate lies within the near-infinite power of Congress under the Commerce Clause are both legally and politically unsustainable. So they have reverted to a more primitive technique of trying to say that disagreeing with them is simply disallowed, no debate needed.

    They would be better off looking to the future — if the ACA is struck down, conservatives will have won a victory, yes, but we will still be left with a dysfunctional health care system desperately in need of reform. And it would be easily possible to resurrect many of the policy options in the ACA without tripping over the Constitution again. For example, the problem with the individual mandate largely arose because of Congress’ contortions to avoid the accusation that they were raising taxes. Simply being honest about what their preferred policies were and what they would cost would clean up the debate and avoid the constitutional conundrum.

    Then again, maybe that’s the problem. Single-payer health care has many virtues, but also many flaws. And as many critics noted two years ago, progressive advocates of health care reform tended to avoid persuading anyone in favor of simply bullying everyone.

    Perhaps if the ACA goes down, it will be a good thing in that it forces a reconsideration of both the substantive policies for health care and the rhetoric means for promoting them.”

    As I went on to add, yes, it is this primitive technique of just ignoring the realities of reasonable dissent among the populace and just telling us to basically shut the hell up and just do as told. Yeah, well guess what, I read in The Week magazine the other day a poll conducted on who American voters identify with, and these were the numbers: 37% with neither party, 28% with Democrats, and 23 % with Republicans. Interesting that 12% had no answer, which I interpret that they really don’t identify with either party either, but didn’t want to be pigeoned holed into a firm group, so, that to me means that 49% of the voters in this poll do not identify with either party.

    That means, again to me, basically 1/2 the population that votes, at least who participated in the poll, do not embrace either party’s more recent extremist rhetorics. Hmm, so we are to just go along with a partisan legislative assault and thank the PR firm of Buddy, Doas, Isay trying to sell this false message of hope, that I think Ms Mahar is a Senior member. Nahh!

    Hey, why aren’t you and your posse being so hopeful and telling us it will be by a 7-2 or 8-1 vote, we’ll spot you Scalia wouldn’t vote for a Democratic fueled legislation or social agenda even if it was supported by Reagan’s ghost? Oh yeah, can’t make the numbers too absurd, might bring some attention to the few who have a brain and think for themselves that the PR effort is a bit too much in Left field!

    Here’s a sad but very likely prediction: Obama will be so incensed, and based on the flagrant violation of Constitutionality he did last week with the Immigrant Order, he will try to defy the Court and claim the legislation will stand irregardless.

    Hey, can you say Impeachment, Ms Mahar? If I am sadly right, and he tries such a stunt, how many millions will be in the Mall outside the White House windows calling for his head? What, he’ll have drones shoot down civilians at that point? Extremism leads to desperation, and boy, how ironic he wanted to emulate Lincoln. We do not need another Civil War.

    You just keep telling us to not pay attention to the man behind the curtain.