US Elections

I don’t mean to suggest that citizens aren’t free to protest the ruling, and argue for an alternative interpretation of the law. I’m a firm believer that citizens as well as judges have an important role to play in understanding and articulating the scope of the rights guaranteed under the constitution. Jack Balkin articulates the point rather well:

"When social movements like the civil rights movement or the feminist movement convince the center of the country that their claims are just, the court usually comes around... The great engine of constitutional evolution has not been judges who think they know better than the American people. It has been the evolving views of the American people themselves about what rights and liberties they regard as most important to them."

Just as the gay rights movement helped pave the road for new legal protections for gay and lesbian couples, those on the other side of the issue can attempt convincing their fellow citizens that same-sex marriage is not a civil right. They can offer arguments about why this case was wrongly decided, why it is a political question not a constitutional one. They can push for the election of new politicians who will appoint judges who will vote differently on similar issues.  If these arguments are persuasive, they will become increasingly influential within the legal culture.

These mechanisms allow popular opinion to have a long-term role in shaping the law, while still providing judges the breathing room to decide cases on their merit. An independent judiciary is a hallmark of our constitutional system; throwing out a judge whenever you don’t like their decision is antithetical to this idea.

Regardless of what you think about this particular ruling, it is indisputable that judges will sometimes be required to make decisions that are unpopular. It is deeply troubling that they could be forced to choose between fidelity to the law and holding onto their job.  

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The Affordable Care Act seeks to expand private health insurance coverage in several ways.  Most notably, all insurance companies must “offer the same premiums to all applicants of the same age and geographical location,” regardless of their health status. This is a dramatic departure from the previous system in which insurers would often charge those with pre-existing conditions substantially higher rates, or in many cases deny them coverage altogether. 

Beginning in 2014, companies with over 50 employees will be required to offer health insurance coverage to their workers or else pay a tax penalty . To facilitate access to insurance for those who do not receive it through work, states are required to set up health insurance exchanges in which consumers can compare plans.  Plans offered through these exchanges must provide a baseline set of benefits, and each exchange must offer at least two competing plans, one of which is provided by a non-profit organisation.  These plans must also offer four “predefined level of benefits".

The goal of the exchanges is to create a transparent one stop destination for small businesses and individuals who don’t obtain coverage through their employer to shop for health insurance, and to encourage market competition between insurance companies within a regulatory framework that ensures that they offer coverage to anyone who needs it.

The ACA also expands the scope of Medicaid, the government run health insurance program that is financed by a combination of federal and state funds and administered by the individual states.  Traditionally, Medicaid has been available to all children (and some parents) whose family income is below the poverty line, some pregnant women, the disabled, and seniors at a designated level below the poverty line. Citizens over 65 already receive health benefits through Medicare. Under the new law, all individuals and families with incomes below 133 per cent of the poverty line will be eligible for Medicaid. These changes are expected to extend coverage to 16 million previously uninsured Americans.

Prohibiting private insurers from discriminating against high risk applicants poses challenges though. Charging healthy and unhealthy individuals the same insurance rates creates an adverse selection problem; the sick will rush into the system while the healthy will choose to opt out. If I can purchase insurance at the same price once I get sick, it is rational to wait until I fall ill to buy it. Insurance works by pooling together the risk of individuals, but under the given rules, the pool will be flooded with high risk and expensive consumers. Since the per capita health expenditures within pools will be high, so too will the premiums that consumers pay. In order for these new regulations to work, there needs to be a way of bringing younger and healthier individuals into the risk pool.

This is where the individual mandate comes in. Under the ACA the uninsured -with the exception of select groups such as religious objectors-will be required to purchase a baseline level of health insurance coverage or pay an annual penalty of $695, or 2.5 per cent of annual income, whichever is greater. The penalty is not high enough to create de facto compliance, so it is anticipated that even with the mandate a fair number individuals will choose to opt out of coverage.

The federal government will also offer new subsidies to help offset the cost of purchasing health care.  People who are above the cut off line for Medicaid but whose income is less than four times the poverty level will be eligible for subsidies. Federal funding is provided on a sliding scale. Individuals and families with incomes 3 to 4 times the poverty level would not have to pay more than 9.5 per cent of their income for insurance, while those closer to the federal poverty level would not pay more than 3 to 4 per cent.  

Additionally, some small businesses that pay over 50 per cent of their workers health insurance costs will be eligible for tax credits.

In sum, the ACA attempts to address the affordability of health care by increasing the number of people eligible for Medicaid, preventing insurers from discriminating against those with pre-existing conditions, and increasing federal subsidies to low and middle income Americans.

The costs of the new healthcare program are financed in a number of ways. Most notably, is an additional 0.9 per cent payroll tax on individuals with an annual income over $200 000. Similarly, there is a 3.8 per cent tax on passive income, such as investments or royalties, that totals over $200 000 in a year. These taxes fund the Medicare program that provides health coverage to Americans over 65.

There is also a new excise tax on “group insurers with annual premium payments in excess of $10 200 for individual coverage and $27 500 for families.” The tax rate is “40 percent on the amount of premiums above the thresholds”

Additionally, the ACA imposes a variety of smaller fees on the “health care industry.” Among these are a 2.3 per cent tax on infrequently purchased medical devices , taxes on pay for health care executives whose companies fail to meet given government guidelines,  and an annual tax on “certain manufacturers and importers of brand name pharmaceuticals.” You can peruse the links I’ve provided if you’re interested in a fully comprehensive list of the funding mechanisms for the ACA. And here’s a good pie chart on how the bill is financed.

Estimating the total costs of the bill is not exactly a straightforward task because individuals disagree over the mechanisms used and in part because politically motivated individuals on both sides are excellent at obfuscating the issue. The Wikipedia article on the ACA provides a good summary of these areas of disagreement.

The nonpartisan Congressional Budget Office which is responsible for scoring the costs of legislation estimated in March 2011 that the act will bring in $813 billion from 2012 to2021 and cost $613 billion to implement, resulting in a deficit reduction of $210 billion dollars. At the time it was passed into law the CBO projected that the ACA will cause “national health... expenditures to rise to 19.6 percent of GDP (by 2019) as compared to 19.3 percent had ACA not been enacted.”

There’s also a final point aspect of the health care bill worth touching on. As Sarah Kliff explains:

“much of the law’s 905 pages are dedicated to... an overhaul of America’s business model for medicine. It includes 45 changes to how doctors deliver health care — and how patients pay for it. These reforms, if successful, will move the country’s health system away from one that pays for volume and toward one that pays for value. "

I’d like to tackle the issue of cost controls on health expenditures in a later post. It’s an extremely important topic, but also a pretty wonky one.   A lot of the new regulations focus on incentivizing efficiency and encouraging health care providers and insurers to keep costs down (such as the previously mentioned tax on expensive health care plans.  Ezra Klein points out that the bill implants a wide variety of potential cost control mechanisms attempting to make “reform a continuous, rather than occasional, process.”

One area of agreement amongst both defenders and critics is that, even if the ACA is upheld by the Supreme Court, this will not be the end of the health care reform process.  Simply put, while the law begins to address rising medical costs, it doesn’t contain the sort of large scale cost control mechanisms that will curb the continuously increasing expenditures on health care.  The ACA is not the cure-all for a troubled health care system, but is it an important step in the right direction or a journey down the wrong path?

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When Santorum lost his Senate seat in 2006 by 18 points it looked like it could be the end to his political career. But, the man who was crushed in his own backyard was able to assemble enough of a national coalition to give Romney a run for his money. He went from an afterthought within Republican circles to someone who may well play a prominent role within the party in the coming years.

However, he stood to lose a lot of this positive publicity by staying in the race. Mitt Romney had moved ahead of Santorum in the Pennsylvania polls, and given his enormous cash advantages the former Massachusetts governor looked poised to win the Keystone State on April 24th. Even if Santorum pulled off the upset in Pennsylvania it was unlikely to alter the race much given that candidates are expected to carry their home states. In contrast, a loss would have brought instant comparisons to 2006, and his withdrawal from the race would have been cast in a less favourable light.

Putting aside Pennsylvania, there was already a growing consensus amongst Republicans that the time had come to coalesce around Romney and start looking toward the general election. The longer Santorum stayed in the race, the more it would appear that he was hindering the Republican’s chances in November.

It’s unclear what the future holds for Santorum. While the runner up in the Republican Primary often goes on to be the nominee in the next election cycle, it’s less likely that this will be the case with Santorum. There are a lot of talented young GOP-ers who will be ready to jump into the race in 2016 if Romney loses in 2012. Additionally, Santorum’s brand of conservatism inevitably turns off a large segment of moderate Republicans and independent voters. That being said, whatever Santorum’s future aspirations, they were likely bolstered by his decision to withdraw today.

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In February 2011, Republican Governor Scott Walker introduced the Wisconsin Budget Repair Bill as a means of addressing the large state budget deficit. The Bill cut benefits for government employees and, most controversially, limited their collective bargaining rights to wage issues. The bill set off a firestorm. Democratic lawmakers left the state in order to prevent the Republican legislature from having the quorum needed to pass the legislation. Over 100 000 protestors flooded the capitol city of Madison in response to what they saw as an inexcusable infringement of worker’s rights. 

The bill eventually passed, but the controversy has not subsided. Opponents gathered the signatures necessary to force recall elections for six Wisconsin legislators including Governor Scott Walker. The Wisconsin Republican Party “as a whole is more united behind Scott Walker than it’s been for anything it’s ever done” said Mark Graul, a veteran member of the state GOP. This solidarity has led most Republican legislators to fall in line behind the frontrunner and establishment favourite Romney. It appears that key figures in the party don’t see much point in wasting time or opening up party divisions by publicly voicing support for the other candidates.

However, there might be one silver lining for Santorum. Nate Silver points out that the lack of interest in the presidential primary may very well lead to low turnouts, and the fewer people that show up the larger the chance of a result that defies the polls. This coupled with the fact that Santorum has previously outperformed his polling numbers on Election Day, means that he still holds a (very) small chance of upsetting Romney tomorrow.

Finally, here’s a song for the primaries. This is Holocene off the 2011 self-titled album from Eau Claire, Wisconsin natives Bon Iver.

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Liberals hoped that this ruling might compel even the very conservative Justice Scalia to uphold the law. Unfortunately for them, that no longer appears likely. Undeterred by the spectre of Raich, Scalia all but announced in oral arguments that he was going to vote to strike down the indvidual mandate.

Justice Kennedy was a bit less transparent. He declared that the "mandate fundamentally changes the relationship of a citizen with the government" but near the end of oral arguments seemed to entertain the idea that the consequences of the uninsured on the national health care system might make this case unique.

Reading the tea leaves in these cases is often a fruitless task, but, since I couldn't resist, I went over the transcript from Gonzales v Raich and compared the two Justice's statements from oral arguments to the votes they ultimately ended up casting. If Justice Kennedy-or perhas even Justice Scalia-appeared sceptical of the constitutionality of the law but eventually upheld it, perhaps they might do the same thing in the current health care case.

Despite ultimately siding with the federal government, Scalia did draw attention to several perceived holes in their argument.

“I mean, in these other... in these other cases, Congress presumably wanted to foster interstate commerce in wheat, in Wickard v. Filburn. Congress doesn't want interstate commerce in marijuana. And it seems rather ironic to appeal to the fact that home-grown marijuana would reduce the interstate commerce that you don't want to occur in order to regulate it. I mean, you know, doesn't that strike you as strange?”

However, far from contradicting his vote in the case, Justice Scalia's line of questioning actually makes a lot of sense given the concurring opinion he ended up writing. While Justice Stevens's majority opinion relied heavily on rationale of Wickard v. Filburn, Justice Scalia's concurrence focused more exclusively on the Necessary and Proper clause. In this context, it seems doubtful that Scalia had a change of heart between oral arguments and voting, but rather that he was trying to convince the other Justices of his own rationale for upholding the government's regulation.

At numerous other points, Justice Scalia appeared outwardly supportive of the federal government's position. He mentioned that the prohibition of marijuana appeared similar to an existing prohibition on the possession of endangered eagle feathers. In that instance, Congress had explained that there was no way of determining whether the feathers came through interstate commerce or not. Obamacare supporters who still cling to the irrational hope that Justice Scalia might uphold the mandate probably won’t take much solace in the oral arguments from Raich. Justice Scalia showed a sympathy for the Bush administration’s argument that was wholly absent from his line of questioning in the health care case.

Justice Kennedy was coyer. Many of his comments in Raich were clarifying questions, asking the lawyers to expand on statements they had made. But, the few viewpoints he did express offered cautious support for the federal government's position. Once, he reminded Bush’s Solicitor General of a case that would support their argument. He also hinted several times that the mere possession of marijuana might constitute economic activity, and that its "fungibility" made it difficult to establish whether it came through interstate commerce or not.

Kennedy voiced concern on Tuesday that the individual mandate could justify a whole host of new federal powers, but he never expressed similar worries over allowing the federal government to regulate private marijuana use within the home. All indications are that he sees the Obama adminstration's argument in the current case as at least somewhat weaker than the Bush's administration's argument for a blanket prohibition on marijuana. In Justice Kennedy’s eyes, Raich may be more or less in line with traditional congressional regulation of economic activity, while Obamacare is an unprecedented use of Commerce Clause power.

Of course, none of this means that Justice Kennedy is a sure bet to strike down Obamacare, only that he sees it representing a somewhat troubling intrusion on indvidual autonomy and state sovereignty I could see Justice Kennedy going either way. He obviously seems troubled by the idea of government mandates, but, as others have pointed out, the outcome of the case might well hinge on whether he thinks he can uphold the law and still identify clear limiting principles that would restrain the government in the future.

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I see a lot of problems with this attempt to sand away the distinction between the public and private spheres. But here, I wanted to focus on an unlikely parallel in the thought process of both Professor Dawkins and evangelical voters.

It’s no secret that many conservative Christians are sceptical of Mormonism, and this distrust has had large implications on the Republican primaries. Steve Kornacki points out that while while Rick Santorum easily beat Romney in Louisiana amongst "evangelical or born-again Christians" (56 per cent to 20 per cent), Romney actually edged out Santorum amongst the rest of the electorate. Kornacki explains that this is part of a larger trend. Romney doesn’t have as much a problem connecting with very conservative Republicans, as he does connecting with evangelicals. Even more to the point, exit polling has shown that a large segment of voters think that it is very important for a candidate share their religious beliefs.

I don’t want to put words in the mouths of these evangelicals, but I would assume for many of them the thought process would go something like this.

"Mitt Romney thinks that Jesus visited America? He believes that there is no such thing as the Holy Trinity? You’re telling me he reject the idea of original sin? I’m pretty suspicious of this guy, even if I do agree with his tax policies."

For many of the devoutly religious, some of the teachings of Mormonism probably seem just as silly and illogical as they do to an atheist like Professor Dawkins. Obviously, voters can decide on whatever basis they want to vote for a particular candidate, but I would hope they would prioritize the substance of the candidate’s policies over his or her religious beliefs. As such, Dawkins’s statements are subject to many of the same criticisms that would be rightly levelled at a Catholic organisation who pressed a Jewish candidate on why he or she rejected the divinity of Christ.

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