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Friday, August 12, 2011

11th Court Decision on Constitutionality of Health Care Reform

I'm not the one to read for clarity on the 11th Circuit decision. I don't like it at all, but I have no special insights to offer on the divergences of the 6th and 11th Circuit Court decisions on severability and the Constitutionality of the Mandate and the various dissents and the legal or political pros and the cons of each.

I have always assumed this thing was going to find its way to the Supreme Court eventually. The question on my mind was the timing and I have to say it still looks like a question of timing to me. Expecting sense isn't sensible when we're talking about the partisan Republican Federalist Society of the Supreme Court who stage-managed the Bush putsch, especially in the amplified killer clown college Roberts Court Bush built.

Now that the 6th and 11th Circuits are in public conflict it seems to set the stage for appeal to the Supremes roughly around the culmination of Presidential Silly Season, possibly the worst imaginable timing, but, again, anybody who expects anything but full-throated white-racist theocratic anti-civilizational Crazytown from today's GOP this 2012 just isn't paying attention.

The only detail I would emphasize in all this is that the three-judge panels that handed down these decisions may not be the last word on either Circuit, and if the entire appeals court in both or either decides to hear the case on appeal (rare, but the stakes here are high and everybody knows it) this would trump the panel decisions and possibly bring the decisions more into alignment, or at any rate slow the process down long enough to keep the Supremes from getting their hands on it until after the 2012 campaign and -- hell, who knows? -- maybe even after a second-term Obama appointment shifts the balance of the Court one head toward sanity.

Come what may, there's nothing for it but to fight like hell to get Obama a second term -- ideally in a blowout with enough coattails to win back the House and limit the damage in the Senate as much as possible.

I'm assuming (probably too generously) that even if you're an idiot GOP-Dem equivalency thesis peddler or Rahmsputin/ Obama stealth-Republican conspiracist or politics qua performance-art Third Party narcissist you can surely grasp the difference and the stakes of the difference between Obama's Supreme Court nominations and those of any opponent of his.


myst101 said...

Yeah, the timing of this is suspicious.

However, I've never been thrilled with a mandate requiring people to buy health insurance.

Dale Carrico said...

Actually, I don't think the timing is as suspicious as it is awfully inauspicious. I've been watching the process for months with an eye on the calendar and a bad feeling in the pit of my stomach.

Nobody who advocates single payer like I do (and probably you do, too) would feel warm to the Mandate -- but it does happen to be the only thing making the whole scheme workable, after all, given the political institutional constraints we're working with. This is where severability becomes so fraught in the various diverging decisions and dissents.

What is wanted is at least to secure the regulations and coverage wangled via the odious mandate, and push from there via, on the one hand, more cost-effective state by state single-payer exceptions starting with Vermont and then California and then beyond and, on the other hand, via Medicare buy-in for more and more folks, until one arrives at Medicare for All. At least, that's how it looks to me.

myst101 said...

Including this mandate in the plan doomed it from the start, because it is inherently unconstitutional.

Look at it this way: drivers are required to buy public liability insurance for the public good, but people still have the choice whether or not to drive in the first place (thus, there is no unconstitutional mandate here). People would not have had such a choice if they were forced to buy health care coverage.

Why make people pay for a human right like basic health care anyway? Why not just implement a system modeled on the French or Italian health care systems? And if people want the extravagant specialized medical procedures, then give them the option to pay beyond basic free health care.

We need to move beyond our silly hang-ups towards health care systems that work. Hopefully, this will happen once the older anti-socialist/anti-communist generations die off.

Dale Carrico said...

You are simply wrong to say the Mandate doomed healthcare reform from the start -- and you would be very wrong to say the Mandate dooms it even now. These are debatable questions, and they are being debated in the institutional locations (courts, legislatures, etc) where such debates are supposed to take place.

Never confuse logical arguments with political processes. You probably aren't actually doing that, but, well, just don't. Stakeholder reconciliation in comparatively democratic settings and social struggle in history never proceed according to logical entailments, but convulsively and opportunistically and unpredictably (which is not to declare them utterly illogical either, by the way).

If you are making a theoretical policy point here about the preferability from harm-reduction, cost-savings, and/or social justice perspectives of single payer healthcare systems over for-profit insurance company mediated healthcare systems, obviously you will get no argument from me, obviously, I've come to the same conclusion -- as have the overabundant majority of actual experts on the subject. But you can't make such a case and then pretend the policy-making or politics ends there.

Even at the level of specificity you offer -- "Why not just implement a system modeled on the French OR [emphasis added --d] Italian health care systems?" -- you can't get away with your own "just" -- I mean, well WHICH? French or Italian? What about British or Canadian? Which aspects? Why? To what extent do your decisions reflect your understanding of historical constrains and stakeholder positions? To the extent that they do, why not allow such considerations to shape still more of your position? One cannot wish this stuff away just because one knows where one wants to go in the longer term given what you probably rightly regard as best-case outcomes.

Dismissing such concerns as "silly hang ups" isn't helpful. I don't mean to alienate yet another good regular reader whose politics I obviously sympathize with and whose comments I am always happy to see here in the Moot -- please don't take umbrage at me busting your chops a little here -- but one really does have to hold the possible and the ideal together in thinking through political quandaries and then acting on one's thinking in actual practical struggle.

This stuff is hard and there is nothing more important, that's why I go on about it so tediously. Forgive the lecture -- I lecture people for a living, you know.

myst101 said...

The French and Italian systems were just examples that I provided of the many excellent publicly run health care systems worldwide, vastly superior to our own, that folks in this country dismiss as "socialized medicine." So as long as "socialized medicine" is considered a bad word in this country, we can forget about it.

Forcing people to pay for a human right like health care is not only unconstitutional, it's just wrong.

Also, we need to take the greedy private health insurers out of the equation completely. Like education, basic health care should not be a for-profit enterprise.

Dale Carrico said...

Yeah, well, we're here not there, and getting there and getting it right take more than saying it's wrong. I'm going to assume we're on the same page and move on.