Month: June 2012

Cornhusker Kickback and the opt in/out shuffle

by digby

Speaking of Senator Nelson, remember when everyone was shocked when Justice Scalia referred to the “Cornhusker Kickback” which wasn’t in the legislation?

JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that’s the consequence.

That would mean that if we struck down nothing in this legislation but the — what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay?

The Cornhusker Kickback was supposed to give Nebraska 100% federal funding for Medicaid forever in return for Nelson’s vote. He ended up there when he couldn’t get enough votes for his preferred “opt-in” on the Medicaid expansion. Ironically, Justice Roberts and the majority, by allowing the states to “opt-out” without suffering any penalty, accomplished what Senator Nelson couldn’t.

It probably means nothing, but it makes you wonder what these guys were talking about among themselves doesn’t it?

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The liberal jewel in the ACA crown: Medicaid

by digby

One of the reasons I resist getting all giddy about every Obamacare victory is because I know it’s never going to end. They will be fighting this long after I am dead. (After all, they’re still trying to end Social Security after 75 years). So everyone should just hunker down and assume that the battle is ongoing. A “win” is never final. In fact, it’s usually the beginning.

But after reading reams of analysis over the past 24 hours I do think it’s worth pointing out again that this case was not joined by any of the Medical Industrial Complex players. They sat it out, quite happy to enjoy a big surge in healthy customers fueled by billions in government subsidies. For that reason, it’s very hard for me to see this mandate being repealed or the subsidies being cut back, even though they will stage a Grand Kabuki pretending that they will. It’s just too good for business.

The Medicaid expansion, on the other hand, was always going to be the real political football.(Sometimes I thought it was meant to be.) This is where the battle will be joined in earnest, at least in the short run. Places like California will try to implement the new scheme and may succeed for a time. But if the deficit hawks have their way and put us on a harsher austerity path and/or the Republicans eventually succeed in changing the ACA Medicaid provisions to a block grant or something else, that part of the reforms will wither. And more immediately, we may see some obstinate zealots in the state houses and governors mansions who will take Justice Roberts up on his offer to reject the funding for the ACA.

And you know what that means. Here’s Dday:

I was just on a conference call where Governor Martin O’Malley (D-MD) was asked whether he thought Republican governors might opt out of the Medicaid expansion in light of the Supreme Court’s ACA ruling yesterday. He replied, “I don’t know. Some of our colleagues would like to get out of being members of the Union.” I think that’s the right way to look at it. These are an ideologically extreme set of characters, and they’re not going to go quietly, meekly accepting funds that expands health care for poor people. That goes against their worldview.
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It’s not logical or rational in the short term. But it’s pretty clear that will be their perspective. Especially because those who would be left on the other side of the divide, in the event of rejecting the Medicaid expansion, would so clearly be on the side of the “other”:

For people of color, the impact of the mess that the court just rolled down Pennsylvania Avenue and out into the country cannot be understated. Blacks, Latinos and Asians are up to three times less likely to have insurance than whites. Half of the nation’s uninsured are people of color.

The Center for American Progress estimates that this racial gap in health care coverage costs the country $415 billion a year in lost productivity.

For black and brown America, affordable, quality healthcare is key to closing a wider economic gulf […]

Medicaid is a mitigating force in this lopsided system. Blacks and Latinos are enrolled in Medicaid at twice the rate of whites. Half of those in the program are children. As the Kaiser Family Foundation has bluntly concluded, “Medicaid enables Black and Hispanic Americans to access health care.”

The recession has made this more true than ever. Three out of four people who lose their job, also lose their insurance. As a result, the number of people in Medicaid has soared to 60 million.

60 million people.

During the Health Care negotiations when we were all obsessed with the public option, I recall speaking to a progressive congressman about whether or not they were willing to form a bloc and kill the bill since the PO had been tossed. He said to me that he would love to but he couldn’t walk away from this expansion in Medicaid, it was just too important to the working poor. I supported the bill for the same reasons. I thought we could do a lot better than this crazy set-up for the private insurance market, but the Medicaid expansion was getting through without much controversy, which I thought was a miracle worth taking and running with.

But I never thought the centrists and conservatives wouldn’t try to fuck with it every chance they got. For the reasons Dday outlines above, it will be the new “welfare” with all that that implies.

The Medicaid expansion was the liberal piece of the reforms, government funded health care for the working poor. In my view that’s where progressives should focus their energies and get out ahead of the inevitable conservative onslaught.

Update: By the way, let’s not forget who brought up the Medicaid “option” in the first place:

Sen. Ben Nelson (D-NE) has announced that Senate Democrats would have to allow states to “opt-in” to the Medicaid expansion to secure his vote for the Senate health care bill. In a letter to Nebraska Governor Dave Heineman, who has previously raised concerns about the provision in the Senate bill that would expand Medicaid to 133% of the federal poverty line (FPL), Nelson wrote “In your letter you note that the current Senate bill is not in Nebraska’s best interest. I agree. That is why I continue to work to change it,” Nelson wrote. “Under my proposal, if Nebraska prefers not to opt in to a reformed health care system, it would have that right.”

I’m just saying: don’t count on the Democrats to automatically protect this from the vultures.

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The best f#&king news team on television

by digby

The Daily Show with Jon Stewart
Get More: Daily Show Full Episodes,Political Humor & Satire Blog,The Daily Show on Facebook

The Daily Show with Jon Stewart
Get More: Daily Show Full Episodes,Political Humor & Satire Blog,The Daily Show on Facebook

Says it all …

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Densification: another positive progressive trendline

by David Atkins

To say that demographic trends are against conservatives would be an understatement. From progressive attitudes among the nation’s youth to decreasing religiosity to the rise of Latinos as a percentage of the general population, time is definitely not on the side of the Fox News crowd.

Now we can count densification among those trends:

For the first time in a century, most of America’s largest cities are growing at a faster rate than their surrounding suburbs as young adults seeking a foothold in the weak job market shun home-buying and stay put in bustling urban centers.

New 2011 census estimates released Thursday highlight the dramatic switch.

Driving the resurgence are young adults, who are delaying careers, marriage and having children amid persistently high unemployment. Burdened with college debt or toiling in temporary, lower-wage positions, they are spurning homeownership in the suburbs for shorter-term, no-strings-attached apartment living, public transit and proximity to potential jobs in larger cities.

While economists tend to believe the city boom is temporary, that is not stopping many city planning agencies and apartment developers from seeking to boost their appeal to the sizable demographic of 18-to-29-year olds. They make up roughly 1 in 6 Americans, and some sociologists are calling them “generation rent.” The planners and developers are betting on young Americans’ continued interest in urban living, sensing that some longer-term changes such as decreased reliance on cars may be afoot…

“The recession hit suburban markets hard. What we’re seeing now is young adults moving out from their parents’ homes and starting to find jobs,” Shepard said. “There’s a bigger focus on building residences near transportation hubs, such as a train or subway station, because fewer people want to travel by car for an hour and a half for work anymore.”

Katherine Newman, a sociologist and dean of arts and sciences at Johns Hopkins University who chronicled the financial struggles of young adults in a recent book, said they are emerging as a new generation of renters due to stricter mortgage requirements and mounting college debt. From 2009 to 2011, just 9 percent of 29- to 34-year-olds were approved for a first-time mortgage.

“Young adults simply can’t amass the down payments needed and don’t have the earnings,” she said. “They will be renting for a very long time.”

It’s easy to look at this glass half-empty and assume this is all due to lack of economic opportunity. Part of that is no doubt true. But it’s also a cultural phenomenon.

Many younger people today simply don’t want the big yard, the picket fence and the suburban tract home landscape without mixed use walkability. It’s already well-documented that the Millennial generation would rather make a little less money while working fewer hours on more meaningful tasks with shorter commutes. Living in apartments and condos in close proximity to others isn’t such a problem for Millennials as it has been for previous generations. My wife and I are prime examples of this: we work mostly from home and could choose to live almost anywhere. But we choose apartment life in a medium-size city within easy walking distance to public transportation and a downtown full of shops and restaurants. All this because we choose to, not because we’re forced to. The addition of children will change the dynamic somewhat, but not much.

This is a good thing. City life and densification have almost always led to greater progressivism: it’s harder to be a libertarian when the importance of social services is incredibly clear all around you, and it’s harder to be a bigot when there are people of varying races, orientations and lifestyles living all around you mostly without incident.

Short-term trendlines are scary for progressivism in a number of ways right now to be sure. The power of money in politics, the financialization of the economy, and the far-right lurch of the Republican Party are all deeply problematic.

But the playing field is gradually tilting against them. Assuming we don’t allow civilization itself to collapse over the next few decades or fail utterly to slow the process of climate change, the future looks fairly bright over the long term given current trends.

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Virtually speaking tonight with Chris Hayes

by digby

Chris Hayes (@chrislhayes) MSNBC host of the weekend talkshow Up With Chris Hayes (hashtag #uppers) joins Jay to talk about his new book, Twilight of the Elites.

Click the link above to listen online.

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John Roberts’ Long March

by digby

So now John Roberts is a liberal. Ann Coulter has spent the entire day tweeting “I told you so.” Or he is the victim of nefarious Kenyan blackmail. And apparently, he changed his mind (or at least some people are parsing that from wording in the decision) after originally voting to strike down the mandate.

I don’t suppose we’ll ever know what made him vote the way he did. But I personally wouldn’t be surprised if he was worried about the court’s legitimacy — and therefore its power — if they were to strike this down. There’s been an awful lot of talk about the loss of faith in institutions and the destruction of democratic norms in recent times, some of which was perpetrated by the court itself. Bush vs Gore was a blight that cannot be erased and Citizens United was the latest in a series of rulings that are threatening our democracy in a very fundamental way. To strike this down in a 5-4 decision in this political climate (even if it were legally reasonable) could very well have sealed the belief that the Court is a partisan power tool. I would guess Roberts prefers to have his era be thought of as a legitimate conservative juris prudential revolution than as mere hackish devotion to the parochial political concerns of the day. He’s willing to take the time to build that slowly, one precedent at a time.

And keep in mind that there’s conservative and then there’s conservative. Here’s Stephanie Mencimer:

The ever-powerful US Chamber of Commerce, whose legal eagles are in the midst of one of the most amazing runs of success in Supreme Court history, did not oppose the law. Like the insurance industry, the Chamber did not take a position on the individual mandate or other parts of the law. Instead, it merely urged to court to act quickly to settle the outstanding legal issues. Like AHIP, the Chamber argued that the fate of the mandate should be bound to that of the other insurance reforms—if one went, the other would have to be scrapped, too. Other business groups also avoided the fight or signed up for the other side. The hospital industry supported upholding the law’s Medicaid expansion. The pharmaceutical industry’s lobbying arm, PhRMA, which timidly supported the original bill, didn’t weigh in at all.

So business wasn’t really a part of the anti-Obamacare coalition. Instead, the primary legal challenges to the ACA came from states headed by right-wing (and often unpopular) ideological governors, and the states’ outside support came from equally ideological advocacy organizations, such as the Family Research Council and fringe physicians’ groups. But their lack of support from the business community is notable, and it may be the one reason why Justice John Roberts decided the case the way he did.

Roberts is conservative, but not in the same way as Justices Antonin Scalia or Clarence Thomas. He’s more of a white-shoe law firm kind of guy, which is fitting for someone who was a partner at the corporate law firm Hogan & Hartson (now Hogan Lovells). As such, he’s got some of the pragmatism of a corporate lawyer, and his sympathy for the business community’s arguments has been plain from the time he was first confirmed. (See: Citizens United.) If the US Chamber of Commerce didn’t see fit to argue that the ACA was unconstitutional, it’s not surprising that Roberts didn’t, either.

Unlike his right wing brethren on the Court, it would appear that Roberts is ideological to the extent that ideology serves money. Most of the time that makes a majority with Thomas, Alito, Scalia and Kennedy. In this case, due to the nature of the law and its goals, it swung the other way. But Roberts wasn’t being inconsistent. He delivered.

The Supreme Court is where the real conservative revolution — the corporate revolution — is going to be taking place over the next several years. Today Chief Justice Roberts went a long way toward ensuring that it will have the legitimacy to get that done.

I’ll be very anxious to see how striking down the mandate under the commerce clause plays out — I suspect Roberts is being very clever there. And, as I have always feared, the Medicaid expansion is the weak link. Everyone seems to think that the wingnut Governors won’t be able to resist the free money, but they’ve been pretty willing to forego filthy Planned Parenthood and Unemployment Insurance cash, so I’m not totally convinced. Perhaps more importantly, the mechanism that Roberts came up with (signed on to by 7 justices) is one that could have a very serious effect on the future ability of the federal government to manage national social programs. So we’ll have to see what the reverberations will be down the road.

Balls and strikes

by David Atkins

Dave Dayen riffs on a strange catch by Brad DeLong today, who noticed that Scalia refers to Ruth Bader Ginsburg’s majority opinion as a “dissent” at least nine times. There’s currently an argument about whether Scalia’s reference to dissent in this case was an error, or if he refers only to Ginsburg’s minority view on the legitimacy of the Commerce Clause to decide the point.

Whether or not Roberts did flip at the last minute, however, there is still the issue of why he separated himself from his fellow conservatives in the first place.

Dayen:

Without that shift – if there was one – the entire Affordable Care Act would have been struck down, based on a reading that the individual mandate was both not a valid regulation of interstate commerce and also essential to regulating health care, such that the entire framework of the law, including Constitutional provisions, would have had to have been struck down. The claim for this is that the act’s other statutes would not have been enacted without the mandate, an effort by the Court’s four dissenters to read the minds of the White House and Congress.

But I’m more interested in what, if anything got to Roberts. Was Scalia’s opinion initially the majority ruling? Why did Roberts flip? It’s worth pointing out that Roberts’ opinion does invalidate the mandate under the Commerce Clause. That is a brand new piece of jurisprudence, and there are widely varying opinions from legal scholars over how much that will matter, i.e. whether it merely confines itself to the peculiar case in health care of “regulating inactivity” or not. So it could be that Roberts is chipping away at progressive governance post-New Deal and setting limits on federal power by inches at a time, or that he just couldn’t contemplate the invalidation of the entire law and opted for judicial restraint, or that he was moved by the impending attack on the legitimacy of the Court in the event of taking down the law, or even that he wanted to preserve a forced market for insurance companies and stave off the only option in the event of a full elimination of the law, a move to publicly-dispensed universal health insurance.

If Scalia did not make an error in calling the majority opinion the “dissent” in this case because he was referring solely to the issue of the commerce clause, then it’s possible that Roberts never did flip.

Regardless, it’s impossible to know what actually went through Roberts’ mind in deciding against his fellow conservatives here. It’s important to remember that people in positions of power are still people in all their glorious complexity, and I have cautioned before against applying the Snidely Whiplash theory of politics to everything under the sun. It could be that he was playing a long game, adding a bulwark to the Court’s legitimacy while giving the Court more power to invalidate federal laws in the future. But that argument is as persuasive to me as other arguments involving eleven-dimensional chess. Besides, if Roberts were sneaky enough to see that angle, why not convince at least Justice Kennedy of the same? Why, if DeLong is right, change his mind at the last minute?

I think it’s likeliest that Roberts’ key concern was for the legitimacy of the Court as an institution. But if that is the case, why (if DeLong is correct) switch at the last minute? The issue of Court’s legitimacy would have been obvious from even before the Court took up the case.

I suspect that many books will be written about how and why this decision came down as it did. But it seems likely that one of two things happened: either last-minute pressure swayed Roberts against his own judgment, or a more complicated and deliberative man than Kennedy and the three conservative firebreathers burnt a lot of midnight oil weighing the competing interests of his conservative ideology and the Court’s legitimacy and ultimately decided in favor of preserving the Court as an institution.

Either way, one thing is undeniable at this point: there is a difference between Roberts and Alito, and Democrats were right to put up more of a fight against the latter than the former. This was a momentous case with high stakes, and the balls and strikes were called correctly at least this once.

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There they go again: The sky has been falling for 50 years

by digby

Let’s take a little trip down memory lane, shall we? The socialists have been destroying our freedom by forcing health care on us for half a century. And yet, somehow, we survive:

But hey, even Ronnie (very famously) hedged, years later, in a 1980 presidential debate:

CARTER: Governor Reagan, as a matter of fact, began his political career campaigning around this nation against Medicare. Now, we have an opportunity to move toward national health insurance, with an emphasis on the prevention of disease, an emphasis on out-patient care, not in-patient care; an emphasis on hospital cost containment to hold down the cost of hospital care far those who are ill, an emphasis on catastrophic health insurance, so that if a family is threatened with being wiped out economically because of a very high medical bill, then the insurance would help pay for it. These are the kinds of elements of a national health insurance, important to the American people. Governor Reagan, again, typically is against such a proposal.

MODERATOR: Governor?

REAGAN: There you go again. When I opposed Medicare, there was another piece of legislation meeting the same problem before the Congress. I happened to favor the other piece of legislation and thought that it would be better for the senior citizens and provide better care than the one that was finally passed. I was not opposing the principle of providing care for them. I was opposing one piece of legislation versus another.

Bullshit.

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Rule ‘O Law

by digby

Of course. If it’s Thursday it must be time for armed revolution:

The former spokesman for the Michigan Republican Party sent out an email that said armed rebellion was justified over the Supreme Court ruling upholding Obamacare.

Matthew Davis, an attorney in Lansing, sent the email moments after the Supreme Court ruling to numerous new media outlets and limited government activists with the headline: “Is Armed Rebellion Now Justified?”

Davis added his own personal note saying, “… here’s my response. And yes, I mean it.”

“There are times government has to do things to get what it wants and holds a gun to your head,” Davis said. “I’m saying at some point, we have to ask the question when do we turn that gun around and say no and resist.

“Was the American Revolution justified?”

When contacted, Davis said the key word was “justified.” He compared armed rebellion to a situation where the government cannot get your money by way of liens or seizure of bank accounts is coming to arrest you for not paying an unconstitutional tax.

“You can’t have people walking with lattes and signs and think the object of your opposition is going to take you seriously,” Davis said. “Armed rebellion is the end point of that physical confrontation.”

Fergawdsdakes. This “tax” is about the lamest, most unenforceable “tax” you can possibly think of:

What if your failure to obtain health insurance means you owe the penalty but you nonetheless refuse to pay it? That’s where things get tricky. The IRS can’t throw you in jail, because the health reform law explicitly states (on Page 336): “In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.”

Nor can the IRS seize your property, because the law states (also on Page 336) that the health and human services secretary may not “file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty … or levy on any such property with respect to such failure.”

As Jost pointed out on the New England Journal of Medicine’s Web site, these restrictions would appear to pose a greater threat to enforcing the individual mandate than any nullification attempts by the states. “Compliance,” Jost wrote, “will … belargely voluntary (although the IRS can still make a tax resister’s life miserable, whether or not it can ultimately collect).” State legal challenges, though unlikely to sway federal courts, might nonetheless “be seen as invitations to civil disobedience that counsel state citizens to ‘violate the federal law, wave this statute in their face, and dare them to come after you.’ ”

Which, in this instance, the IRS can’t do.

Seriously wingnuts, get a grip. You can put on your little costumes and strap on your six guns and pretend you are being oppressed, but the truth is that this just isn’t that big of a deal.

If they really want to stand-up-fer-freedom, you’d think these guys would suit up and defend the legal pot growers who are having all of their assets seized by the federal government on a daily basis. That seems like something worth getting up in arms over.

Update: Oy Vey

Mike Vanderboegh, the ex-militia blogger who calls himself one of the “midwives” of the Operation Fast and Furious scandal, recently predicted that if the Supreme Court declared the health care reform bill to be constitutional, it would lead to violent insurrection against “government tyranny.”
[…]
In the excerpts Vanderboegh posted on his blog “which deal with the decision today,” he says of a then-potential decision upholding the health care law, “You may call tyranny a mandate or you may call it a tax, but it still is tyranny and invites the same response.” He further predicts the response of his ilk: “If we refuse to obey, we will be fined. If we refuse to pay the fine, we will in time be jailed. If we refuse to report meekly to jail, we will be sent for by armed men. And if we refuse their violent invitation at the doorsteps of our own homes we will be killed — unless we kill them first. … I am on record as advocating the right of defensive violence against a tyrannical regime.”

CNN’s interpretive SCOTUS dance

by digby

I realize that this is a very peripheral issue today, but since people are alking about, I might as well too. CNN is taking a boatload of criticism because they blew it big time when they prematurely declared that the mandate had been ruled unconstitutional. It sent a bunch of people scrambling for a while.

But here’s the thing. They — and others — did exactly the same thing with Bush vs Gore, remember?

In the confused minutes after the flummoxing, unsummarized decision came down, its meaning depended on what network you were watching. On MSNBC, Gore was toast. On CNN and Fox, he still had a chance. ABC’s Jackie Judd and Jeffrey Toobin, asked for their instant read by Peter Jennings, reacted as if served a baked rat. (“I’m going to turn it over to Jeffrey Toobin,” she offered; “I was hoping to turn it over to Jackie,” he demurred.) NBC’s tag team of Dan Abrams and Pete Williams flipped madly through the opinions, looking with their topcoats, windswept hair and booklets like Victorian gentlemen caroling in legalese. On CBS, Dan Rather–trading spin with analyst Jonathan Turley though neither had read the ruling–was adamant on one point: those of us on Eastern time would definitely see Judging Amy when this report was over.

But the real judicial drama was right in front of us. It was a perfect ending to Postelection 2000, in which a creaky 18th century legal-political process ran smack against the more!-faster!-now! demands of 21st century media. Fast news, like fast food, requires prep work, and modern journalists have grown accustomed to pre-leaked and -summarized stories, the better to plan coverage and scare up file video. But like the DMV, the Supreme Court doesn’t consider lack of patience on your part an emergency on its part. Without explanation, it delivered to the media a President wrapped in an enigma.

So the special reports turned into an impromptu bar exam, a live speed-reading contest in which reporters jumped to conclusions, sometimes qualified and sometimes not. Most networks first seized on the majority opinion, which seemed to imply that Gore might pull off a new recount. Rather said flat-out, “What [the ruling] does not do is in effect deliver the presidency to George Bush.”

Except, of course, that it did, as his peers realized as they read on. Some measured up well. Abrams and Williams sussed in a few minutes that Gore had run out of time. But it was excruciating to watch CNN, where legal analyst Roger Cossack stalled pitiably for time as anchors Bernard Shaw and Judy Woodruff pressed him to draw a conclusion, while the clock ticked and rival MSNBC sounded taps for Gore. “So are you saying,” Woodruff asked, “it appears that a recount could take place?” “Yes,” he finally answered–an ultimately incorrect analysis the network stuck with well into the hour–though he pleaded futilely that it would be “irresponsible” to answer definitively before reading the whole ruling.

Obviously, Cossack didn’t get the memo–responsible doesn’t sell. After election night, when the networks botched the call of Florida twice, this was their last, best chance to get it right. So they applied what they learned from November. Namely, nothing. Again, they chose being fast over necessarily being right. And this time they didn’t even have the excuse of bad data. The answer was in their chilly little hands; they just decided not to digest it before reporting. In general, they pulled off a remarkable feat of deadline analysis. Thing is, that used to be what you did after you absorbed the facts.

The supreme chaos was testimony to TV news’s inability to utter three little words: “We don’t know.”

This morning I didn’t bother turning on the TV. I went to the Scotusblog live blog, along with over half a million other people at the time, and waited for some real analysis. And guess what they said while CNN was declaring the mandate unconstitutional?

It’s very complicated, so we’re still figuring it out.

Blogs-1, MSM-0

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