Tea Party Activists Protest Tax Deal—Will We Have a Public Debate?

It’s nice to know that the liberals are not the only politicians who know how to form a circle, and then shoot directly into the center.

Today, with a critical procedural vote on the tax deal scheduled in the Senate, some Tea Party activists and other conservatives are denouncing an agreement that gives the Republican leadership virtually everything that they might conceivably hope to win from the White House. 

Not satisfied, the party’s right wing is launching an attack. According to The New York Times “a group called the Tea Party Patriots is circulating a petition accusing Republican lawmakers of cutting a bad, backroom deal with the president that violates the principles that Tea Party candidates campaigned on during the midterm elections.

“‘The Deal’ revives the death tax, an immoral 'vampire tax' that sucks the blood from the dead, ruins family businesses and double taxes savings that were accumulated over a lifetime,” the petition says.  [They would like to eliminate the estate tax altogether.]  "‘The  Deal’ spends billions and billions of dollars that the country does not have in order to prevent a tax hike that the country voted against.’”

No surprise, Rush Limbaugh has joined the chorus: “The economic benefit here, if we do this deal, is going to be minimal,” said Limbaugh insisting that Republicans should have fought for the permanent extension of the tax cuts rather than giving in to a temporary one. “Where is the Republican vision?”

The Times also quotes Erik Erickson, the conservative blogger, writing at Redstate.com: “The deal must now die. It must now be opposed by Republicans. Released now in print, the legislation is loaded up with budget busting pork of ridiculously absurd levels.”

Meanwhile, The Hill reports that Sen. Jim DeMint (R-S.C.) has announced his opposition to the deal. Today, Rep. Steve King (R-Iowa), another Tea Party favorite , told Fox News, “As I understand this, I'm likely to be a ‘no.’"

Finally, according to the Washington Post, Rep. Michele Bachmann (R. Minn.), head of the House Tea Party Caucus, said the agreement "ramps up spending in a big way and ramps up the deficit."   Senator-elect Rand Paul (R-Ky.), who will start his term in January, also has criticized the agreement.

Is this enough to derail the deal? I doubt it. As I write this, the Senate is preparing to give the bill the green light, paving the way to send the bill to the House Tuesday or Wednesday.

But opposition from the right might well hold up the vote in the House– which could give liberals as well as conservatives time to spell out their objections. Even if the compromise was the best deal that President Obama could get, many liberals feel that it should have been debated, so that everyone understands just how much conservatives have won. Even when you can’t win, it is important that the truth be told.

How many voters recognize exactly how expensive this deal is—and where the money is going? How many seniors realize that by cutting the Social Security tax, conservatives are laying the groundwork for 2012, when they hope to gut Social Security? How many members of the public recognize what this deal means for health care reform—and Medicare?

Finally, how many liberals have analyzed just how many additional jobs the deal will create? The tax cuts for the middle-class are not new. And unemployed households lucky enough to receive a weekly check for $300 (the average benefit) are not going to go out and buy a new car. They’ll be happy if they can pay their utility bills. That won’t create jobs.

I’ll be writing more about how the tax deal will affect health care reform later this afternoon.

18 thoughts on “Tea Party Activists Protest Tax Deal—Will We Have a Public Debate?

  1. What I can’t figure out is why did Obama go for this in the first place?
    If he’s got some kind of card up his sleeve, I wish he’d play it.
    But truth is, it looks more like he simply caved.

  2. NG & Panacea–
    NG– Yes. I thought about writing about the Virginia ruling today, but decided there is little to say.
    Republican judges are ruling against health care reform. This is not surprising
    I do think that the mix of rulings (now 2 for health care reform, 2 against) makes it likely t that this question will go to the Supreme Court. (In the past, I didn’t think the Court would tak the case. I’ve changed my mind–now I think that they will.)
    I think Obama bought the deal because he didn’t dare call the conservative’s bluff.
    Calling their bluff would have meant saying: “I cannot believe that you would actually refuse to extend unemployment benifits for the jobless unless you can get huge tax cuts for the 2% of Americans at the top fo the income ladder.”
    The majority of the public would agree that this is outrageous.
    If Obama took hhis case to the public (& on television) I suspect the
    conservatives would have backed down.
    On the ohter hand, he has very little time. After Jan. 1 Republicans will have a majority in the Senate, and the Democrats’ majority in the Hosue will be smaller. Republicans won’t face elections for two years, and might well be willing to ignore the public.
    And, if Obama lost the extension of unemmployment benefits by trying to call their bluff, he would be blamed.
    More importantly, the majority of upper-middle-class and middle-class Americans want to see their Bush tax cuts extended.
    If Obama had refused to extend these tax cuts for the very wealth–I think it is likely that Republicans would have voted against tax cuts for the middle-class.
    Again, voters would have blamed Obama. And at this point he is very concerned about being re-elected in 2012.
    LIke many others, I think that liberals should have forced the tax deal to a vote before mid-term elections.
    Republicans running for re-eleciton would have been shy about saying that they would be happy to veto tax cuts for the middle-class and upper-middle-class unless the top 2% got them.
    But Obama didn’t want to have that fight before the mid-term elections.
    Basically, Obama is not a figher. He is a compromiser.

  3. Maggie,
    On the PBS newshour tonight, they had one of their debate segments between a liberal and a conservative on this constitutional issue concerning the healthcare bill. The liberal sounded like you, but surprisingly, the conservative said that the mistake was not going for a direct government provided plan to all like Medicare. The conservative would not have liked that plan, but agreed it would be constitutional!! Requiring everyone to participate in private business commerce and penalizing them if they don’t is unprecedented and unconstitutional. I actually agree with that!

  4. The interesting thing about the Virginia ruling is that if it holds up — and many observers think the very reactionary supreme court will vote to uphold it — it effectively makes use of private insurance as part of a plan for universal health care illegal, since a private insurance plan could not function unless most people have to sign up to create a reasonable risk pool.
    That would lead reformers to have to embrace a single payer Medicare for All type of plan.
    Probably a few years before that comes down the road now, but at the rate health care in the US is becoming a very very expensive train wreck it will probably be inevitable, since the only other choice would be private programs that will eventually have to exclude everyone but the rich due to high cost.

  5. Pat –
    If the individual mandate is ultimately found unconstitutional by the Supreme Court, I can think of at least two alternatives to expand coverage without resorting to a Medicare for All approach. The first would be to subsidize assigned risk pools much more heavily than they are subsidized today. As I understand it, only about 200,000 people nationwide currently get health insurance through an assigned risk pool while 4-5 million cannot qualify under traditional underwriting due to pre-existing conditions. To make insurance available to these 4-5 million people at something approaching standard rates would be admittedly expensive. The alternative approach would be to offer people one chance, starting in 2014, to sign up for coverage at standard rates even if they have one or more pre-existing conditions. If they don’t, the insurance industry either will not have to sell insurance to them if they want it later or, at the very least, it can assess up to three years of premiums that would have been due from the time they could have signed up for insurance but didn’t.
    Regarding the current plan that calls for heavy subsidies based on income, I’m concerned that there will be massive gaming of the system as people hide or underreport their income in an attempt to maximize the subsidy for which they are eligible starting in 2014. If we ever move to a full taxpayer financed health insurance system, my preference would be for something closer to the Swiss model that makes maximum use of private insurers and allows for varying deductibles based on individual preferences. In the Swiss approach, there is no government run public option, even for the elderly, and the private insurers negotiate with providers in each canton as a group.
    Maggie –
    When discussing the general subject of tax fairness, I think liberals would enhance their credibility if they would quantify exactly how they would define a “fair share” federal tax burden that high income people should pay. Marginal tax rates are irrelevant except to the extent that they affect economic behavior. For someone with, say, $1 million of annual income, is a fair federal share 30% of that gross amount, 50%, 75% plus state and local taxes or is it just always more than whatever they’re paying now?
    If we ever take another crack at serious tax reform in this country, I hope policymakers will include an Alternative MAXIMUM tax. Figure your taxes the regular way and if it’s more than the legislated maximum percentage of gross, just send that amount in. With pretty much everyone using Turbo Tax and other tax software these days, it shouldn’t be all that burdensome to handle, especially since we’ve already had to deal with the Alternative Minimum Tax since 1969.

  6. should this court decision stand, provisions that make insurance available to all still exist, which I thought was the basic point here. are we ready to fight to REQUIRE people to buy insurance? not me. can understand why providers might because it would wipe out their bad debt issues. so I’m a bit puzzled as to why this is such a big issue. it is upsetting if you are a provider or insurer, the two groups that benefit from this requirement. unclear why the rest of us should care.

  7. I think we should all be able to fill out our taxes on a 3 x 5 notecard. I am all for eliminating every single credit and deduction. That even includes the mortgage interest deduction, and crazy ones like buying a 6000 lb vehicle. While you may have no need for a car that big, you can buy it and advance 50% of the depreciation in the first year. Pure silliness. Our tax code has had decades to be clogged with such junk.

  8. Jim —
    As you know, insurance underwriting is dependent on having people in the pool who don’t use the insurance benefits, or use them minimally. If a pool contains mostly people who believe they will be able to get more benefits than the insurance costs, rates will rise substantially until the insurance is profitable.
    Planners of the ACA were counting on the influx of new, relatively healthy people to underwrite the increased costs that insurance companies would face in covering people now excluded because of underwriting decisions and allow for the insurance to be affordable for everyone.
    Second, if large numbers of people remain uninsured, that scuttles one of the main sources of potential savings in health care reform. Some of those people will get sick or hurt. Many will defer getting care because they don’t want to or can’t pay for it. Many of them will then end up using ER’s instead of doctors’ offices and will arrive sicker, significantly increasing the cost of care.
    There is a simple reason why ALL of the world’s countries with health care programs based on private insurance — France, Germany, the Netherlands, Switzerland, Japan, etc. — require that everyone in the country buys insurance and provide a subsidy for people who need help paying for it. The systems won’t work right without it.
    Barry —
    Yes, subsidized programs for people who can’t get regular insurance do work fairly well. We have that in Minnesota. However, the costs remain fairly high, and many people choose not to access the programs, even if they theoretically could afford the policies. $10,000 for a couple out of pocket is a lot of money for middle class people, especially when it is for insurance with a $5000 per person deductible.
    In a system which in the end will rise or fall on its ability to keep costs under control, creating as near as possible to universal coverage is critical in order to control costs of insurance and to avoid problems with free riders disrupting the system when they do need care. Creating a patchwork system of government subsidies to pay for the high cost patients and to cover the uninsured when they do eventually reach the health care system would create high tax subsidized costs without actually fixing some of the biggest problems.

  9. NG, Pat S., & EVERYONE
    Last night, I spoke to Timothy Jost of Washington & Lee University about the Virginia decision.
    I consider him to be one of the most reliable and insightful sources out there when it comes to health care reforn and the law. He is not a “pundit”–he offers evidence for his views, and thinks things through.
    (See the piece he wrote about the individual mandate for Health Affairs here http://healthaffairs.org/blog/2010/10/08/a-victory-for-health-reform-and-good-law
    Last night, Jost pointed out that “so far, 12 courts have dismissed claims challenging the ACA. Two have upheld the statute on the merits. At least one of the twelve had been appealed– and the appeal was rejected.”
    Jost added: “I didn’t find the Virginia decision persuasive. But it is important that the judge
    “found the individual mandate could be severed n from the rest of the bill.
    The entire rest of the bill would stand.
    “If the individual mandate were stricken, I think what would happen is that insurance would simply become more expensive,” he added, “but I think you could still implement a ban preventing insurers from refusing to insure people with pre-existing condtiions.”
    In any case, the Virginia decision “will be appealed, and I hope overturned.”
    Jost also noted that even if the individual mandate were declared unconstitional at a federal level, states could still pass a law requiring that all of a state’s citizens must buy comprehenisve insurance.
    (The legal argument against the mandate is tied up with state’s rights.) Here Jost offered a cunning idea: “The federal governnment could require states to create an individual mandate if they want to have Medicaid.”
    My guess is that Texas and Florida are the only states that would even consider giving up Medicaid. And if they did, how would their hospitals aborb the costs of treating the poor? Or would they let people bleed to death on the sidewalk outside the hospital?
    As for the bill going to the Supreme Court, Jost said:
    “I don’t think the Supreme Court wil take it until they hear from the Court of Appeals.
    I don’t think the Surpeme Corut would want to get in the middle of this. I don’t think they are going to reach out for this one.”
    If the case does go to the Supreme Court, Jost
    doesn’t think the court would throw out the indidivdual mandate.
    “The only Justicee who has consistently supported an expansive interpetion fo the commere clause is Thomas. (The argument against the individual mandate depends on a very broad interpretation of the commerce clause.)
    “Thomas is always consistent–you can count on him,” Jost added.
    “Other Justices haver favored a more limited interpretation of the clause.I also don’t think the case will necessarily get to the Supreme Court.”
    As for whether going to a single payer plan would be a way to solve the problem Jost said “I can’t imagine to get a single-payer system through any Congress that might be elected. I don’t see that as a possibility.
    We would have todramatically raise taxes to make single-payer work.”
    He is absolutely right. Even though Medicare has low administrative costs, Medicare for all would be expensive because there is so much waste in the system. Medicare pays for a great many unnecessary tests and treats. About 1/3 of Medicare dollars are squandered in this way.
    This is why Medicare for all would cost about $12,000 for a family–and they would still need a MediGAp policy to fill the holes in Medicare.
    Most importantly, your employer would not be paying part of that $12,000.
    Employers who offer insurance now pay 60% to 100% of the premiums.
    If we moved to single-payer, no doubt large companeis would be required to contribute to the cost through a coxrporate income tax.
    But they would not be asked to contribute as much as they contribute now-=-in part becuase they dcouldn’t afford to pay that much. (What they contribute to their own empolyees’ health care is tax deductible. And even then, some are spending more on health insurance than they can afford. (For example, automakerse, and some states snad cities that provide health insurance for their employees are hard-pressed.
    Moreover, today, when employers pay 60% to 100% of healh care premiums, they get somethign in return: employee loyalty. The insurance helps them compete for the best employees.
    If they were simply contributing to a single-payer plan, they would get nothing in return. As a result, Congress would never ask them to contribute as much as tehy do now. (Everyone would argue that we would be undermining their ability to compete internationally if we asked them to put so much into healthcare.)
    This means individuals would have to pay a much higher share of that $12,000 premium for a family plan.
    Upper-middle class famlies earning more than about $110,000 jointly would probably be expected to paya the whole $12,000.
    (As a rule of thumb, in most developed countries households are expected to spend 10% of their income on health care before they get help from the government.
    And the same upper-middle class families would have to pay much higher income taxes to provide subsidies for the vast majority of Americans who earn considerably less than $110,000.
    This is why we wouldn’t want to try to move toward “Medicare for All” until we have squeezed much of the waste out of Medicare.
    Right now, the major force driving the high cost of healthcare in not the administrative costs of private insurance (though that adds to the bill.)
    There are two major reason why our health care is so expensive :
    a) we pay so much for everything — drugs, hospitals, doctors. Even after adjusting for differences in cost of living, and the fact that doctors take on debt in med school, we pay specialists far more than they are paid in other developed countries.
    2) Americans undergo many more tests, many more surgeries, and many more treatments while seeing many more specialists than
    the citizens of other developed countries.
    Those of us who have generous employer-based insurance, and those of us on Medicare, are over-treated. This costs a fortune, and exposes us to many unnecessary risks.

  10. Maggie —
    I agree that many positive features of the ACA would remain in force if the Supreme Court were to uphold the reactionary position, but the impact on the ability to attain a reasonable financial result would be fatal to the idea of reform that can be financially viable. That would certainly destroy the program, since a program that resulted in insurance costs increasing by large amounts would certainly be politically impossible to sustain as well as defeating one of the most important goals of the program. In that situation, alternative approaches — possibly including state run programs or Medicare for All — would remain the only choices.
    I wish I shared Jost’s optimism about the Supreme Court, but the last two years have shown that five members of the court are almost always willing and eager to throw out precedent and the entire past consensus of what the constitution means to further reactionary policies.
    The notion that state medical reform could replace federal reform is, of course, correct, except for the problem that the results would be a patchwork of policy and regulation confusing to patients and difficult but not impossible for providers and insurers to navigate. Also, unfortunately, states like Arizona, Texas, Florida, and others would almost certainly take this opportunity to create health care programs that exclude low income people and other groups like immigrants from access to many if not most health care services.
    I agree with your opinion that Medicare would require extensive reform if a comprehensive program for universal care were to be adopted. However, Medicare needs that reform regardless if we are going to avoid health care bankruptcy that would end up destroying Medicare along with health care access for all but the most wealthy.
    I am not proposing that a Medicare for All program would be better, just that it would be a way of dealing with a legal environment that stripped programs based on private insurance of their financial viability. It would be one way of attaining universal care that was still legal. Turning the problem over to the states, with or without federal incentives, would be another way, but would put millions of residents of states trapped behind the Red Curtain at risk for loss of access as state politicians used the excuse of saving tax dollars to risk people’s health.

  11. Pat S.
    I agree with much of what you say.
    But the question that would go to the Supreme Court really does turn on a legal question: how do you interpret the commerce clause?
    Many (not all) memebers of the Supreme Court are serious legal scholars who care deeply about how we interpret the constitution. By and large they do not favor broad interpretations.
    I know nothing about how they have ruled in the past (even before they were on the Supreme Court) on cases involving the commerce lause. (My own understanding of the commerce clause is less than profound.)
    But I believe Timothy Jost is famllliarw ith their positions on the commerce clause.
    So I tend to take his position on this question very serioously.
    TPM also reports that conservative legal scholars who oppose health care reform are saying that the Virginia judge made a serious mistake in his reading of the law.
    See http://tpmdc.talkingpointsmemo.com/2010/12/amateur-hour-va-judge-makes-elementary-error-in-health-care-ruling.php
    This is one of these cases that turns on legal technicalities– I think you really meed a legal scholar to assess the chances that the mandate could be declared unconstitutional.
    And so far, the majority of legal scholars have said that this objection won’t fly.
    On a state solution: I totally agree that we don’t want patchwork health care reform. On the other hand, if we had a choice between the Affordable Care Act on 46 states or the Affordable Care Act nowhere, I would choose the states–hoping that health care reformers could persuade them that they all really to stay on the same page, same rules,etc., that HHS and CMS recommend.
    On the Court’s decison: .When the Surpreme Court weighed in on Bush’s re-election it really wasn’t handing down a legal opinion. It was all about politics– and concern that if the Court didn’t act quickly to settle it in Bush’s favor, we would be facing a constitutional crisis. (Unlike the Democrats, the Republicans would not have backed down. I’m pretty sure of that. )

  12. Barry–
    On the question of a “fair share” tax burden, liberal economists like Paul Krugman go back to the “Fifites and early “Sixties when
    the gaps between teh middle class, the upper middle class and most of the upper class were much, much narrower.
    This is in large part because tax rates for the wealthy were much higher. (See the tax chart I link to in my most recent psot on the Tax Deal).
    Also, liberal economists would argue that taxes passive income (capital gains,) should be equal on taxes on earned income.
    And taxes on estates should be much higher.
    The goal: to create society where the vast majority of the population is middle class/ upper-middleclass with very very few poor and on a tiny group who are very rich.
    (In the 1950s and the beginnig fo the 1960s, this was true of the white population, though most blacks adn other miniorities were not part of this middle-class society.) )
    Try Googling “median income” in 1959 or 1960, as well as “income” and “top 10%” and “top 5%” and 1960.
    Right now, we’re experiencing the huge income gaps of the 1920s.
    And that didn’t work out very well —

  13. Maggie —
    I agree that the majority of constitutional law scholars believe that the insurance requirement in the ACA does not violate the 10th ammendment.
    However, the majority of constitutional law scholars also believed that it was legal to pass laws preventing corporations from making unlimited secret donations to political campaigns, that the DC and Chicago gun laws were legal and that the 2nd ammendment did not even trench on individual rights to own guns, atomic weapons, or other “arms.” They also believed that federal regulation of environmental issues and pollution requirements was constitutional, that search and seizure law required exclusion of evidence acquired in violation of the law even if police had acted “in good faith” in the violation, and that it was constitutional to ban guns from school grounds in a federal law. I could go on.
    The conservative majority in the Supreme Court contains several men who are very bright legal scholars as well as some who are not, but those scholars have made it clear that they are going to use that brilliance to concoct decisions that fly in the face of established legal theory in order to further an ideologically driven political agenda with activist revisionist right wing decisions.
    Everything I have read about the ACA case, all based on the thought of established legal experts, suggests that all of the decisions about it to date have a disturbing correlation with the political background of the judges writing the decisions, and that the Supreme Court position on the case is at best a coin flip and at worst a slam dunk for the conservative agenda.
    Unfortunately, since Bush v Gore Supreme Court decisions have regularly departed from the well established highways of legal thought to hack new trails through the tangled underbrush of right wing ideology. The departure of Sandra Day O’Connor and the arrival of John Roberts made that not just the exception but the rule for Supreme Court decisions.

  14. “On the question of a “fair share” tax burden, liberal economists like Paul Krugman go back to the “Fifties and early “Sixties when the gaps between the middle class, the upper middle class and most of the upper class were much, much narrower.
    This is in large part because tax rates for the wealthy were much higher.”
    Maggie –
    While marginal federal income tax rates were much higher in the 1950’s and 1960’s then they are today, few people actually paid them. Tax shelter opportunities abounded, especially in the oil and gas and real estate industries where wealthy investors could realize tax write-offs of 4, 5, and 6 times what they actually invested and had at risk. This allowed them to realize more in tax savings than they invested in the deal, so they made money even if, say, the oil exploration investment produced nothing but dry holes. This changed in the 1970’s when the “at risk” rules were implemented. Also, the top rate on long term capital gains was 25% then or far below the top rate on ordinary income. Moreover, state and local taxes were far lower then vs. now. For example, prior to 1966, NJ had neither a state sales tax nor a state income tax. Now we have both. The property tax on my modest tract house when it was first built in the early 1960’s was $450 per year. Now, it’s over $8,000 while the CPI during that period increased “only” about six fold.
    I think the main reason we see the large concentrations of wealth that exist today is due to the sharp rise in the stock market. It wasn’t until 1954 that the Dow Jones average exceeded its 1929 high. It didn’t break 1,000 until 1973. Today, it’s over 11,000. Land values also rose much more than the CPI during that time.
    Finally, one can make the case for taxing capital gains at the same rate as ordinary income if the top marginal rate is fairly low – 30% or less. Beyond that, it’s not fair, I believe, to tax the gain on a business built over decades as though it were all earned in one year. It’s probably also not fair to tax the increase in value due to price inflation. Since the early 1980’s, we’ve had indexation of tax brackets to protect wage earners from inflation driven bracket creep which produced more revenue for the government without the politicians having to actually vote to raise taxes.

  15. Pat S.
    The NYT “Week in Review” ran an interesting piece on the mandate yesterday.
    It quotes more legal experts who point out that Supreme Court Justices really do care about their place in history. And while you and I may view them as ideologues, they see themselves as intellectuals.
    Also– and this is something that I have heard from others– if the penalty for those who don’t buy insurance were called a “tax,” the federal government has every right to levy a tax. No constitutioanl problems.
    Obama didn’t want to call the penalty a “tax”–for obvious reasons, but if push came to shove, I assume reformers would call it a tax.
    Finally, questions about the mandate seem, to me, the least of our problems.
    The Obama-McConnell compromise on tax cuts has me very worried that conservatives will win a majority in the House in 2012. (See part 2 of my post on What the Tax Cut Deal Will Mean . . It went up late this afternoon.)
    Obama himself remains more popular than legislators of either party, but even his re-election seems to me in jeopardy.
    The recovery on Main Street is going to be painfully slow. Obama’s economic advisors come from wall Street–this is where they have spent their lives. The stock market has been perking up. The bankers are pretty happy.
    But none of this means much to the vast majority of Ameircans who live on Main Street where real unemployment is now 17%. By the end of 2012, it may be down to 15%. (Economists predict official unemployment of 8% at the end of 2012, plus those who have given up looking for work or have settled for part-time jobs. I put the total number at 15%. )
    Meanwhile, real estate cycles move very slowly. Housing prices will show little signs of recovery in 2012. And, in some parts of the country (NYC, for example, where prices have barely begun to fall) prices will be lower in 2012 than they are now.
    I say this with some conviction becuase I have followed real estate markets–and written about them–for about 30 years.
    Even assuming that Obama is re-elected, if conservatives have control of the Senate and the House, they may have enough votes to overturn a presidential veto. Also, Obama might succumb to further “compromises.”
    As far as I can tell, this is simply part of his temperament. He’s not a fighter. I’m inclined to view this as a character flaw, but I’m Irish . .

  16. Maggie —
    I read the NYT article too.
    The one big problem with any efforts to rejigger the mandate to make it work if the mandate fails in court is that it would have to pass through congress again, something that the increasing power of the GOP would make very hard.
    Most articles about future Supreme Court decisions about the ACA stress the notion that Justice Kennedy will be the critical factor, as usual. Following the retirement of O’Connor and the appointment of Roberts, he seems to have fallen more under the sway of the conservative faction than he was earlier, but convincing him is far more likely than getting a vote from one of the more doctrinaire conservatives. The NYT suggested that Roberts in particular may be more interested in his reputation, but that has certainly not shown in his decisions to date. While he definitely is a legitimately brilliant judicial thinker, he has so far applied that ability to formulating extremely novel right wing approaches.
    Ezra Klein has perhaps the best suggestion: influencing Kennedy by subliminal suggestion or hypnotism — “Justice Kennedy, you are getting sleepy, sleeeepy…”

  17. Pat:
    The entire health care industry wants the mandate.
    Not only insurers, but pharma, device-makers, hospitals etc. They all know that the mandate will bring them many more paying customers.
    Anyone involved in healthcare also inderstands that without the mandate, we cannot ask insurers to ignore pre-existing conditions.
    The only opposition to the mandate comes from extreme libertarians and the right-wing fringe (tea party types) who seem incapable of logical thought.
    So if Congress had to vote on a bill that called the penalty for not buying insurance a “tax”, Republicans would be under extraordinary pressure to let the bill go through.
    Ideology aside, the entire health care industry represents an enormous amount of campaign funding.
    Insurers, Big Pharma, major hospitals . . .
    Sure, some Republicans who are dead set against any type of health care reform would vote against it.
    But Money Talks. And this is one of those situations where the fact that lobbyists have such huge
    influence over Congress would work in favor of the mandate.
    But I still don’t think it will get to that point.
    I think that the Supreme Court will support the mandate.
    I understand what you are saying about our conservative court, bu this is a consittutional issue. Legally, the commerce clause argument is very weak. As Jost points out, 12 courts have already dismissed claims challenging the ACA. . .
    The media rarely mentions this. The media likes this sotry becuase it’s a Big Story: Surpeme Court Overturns Health Care REform.
    It’s a story like “Tornado Heading for Manhattan.”
    You knnow a tornado will never get here, but the media can get a lot of mileage out of the possibility.
    As a Supreme Court vs. Congress story it’s enormous. Health Care REform is the most important legislation Congress has passed in 45 years.
    For the Court to overturn it raisess enormous questions about separation of powers — another reason why the Supreme Court is probably not eager to get in the middle of this.