Obamacare Math

I’m no mathematician, but I’ve come to some interesting conclusions from “running the numbers” on the Obamacare debacle.

First, about 14 million people are covered under the individual health insurance market.

Of those, in 2013, 13% were covered by grandfathered plans; or plans that could be renewed for 2014.  So that’s 1.82 million who for sure can “keep their plans;” at least for 2014.

That means as many as 87% of individual health plans could be cancelled.

We know for sure that as of last week (this is a week by week changing number) 4.8 million people have already gotten cancellation notices.  These are people who were covered this year, and if they want to continue to be covered, need to choose and purchase new insurance plans by January 1st.

The CBO estimated that 7 million people would be covered in the health insurance exchanges in 2014, but that was an estimate based on a fully functional Obamacare website.  I’ve no doubt that that the Obamacare site will eventually be fixed, but how long will that take?  I’m pretty comfortable guessing that the problems will not be fixed by the end of November, as promised by the administration.

The administration estimates that 200,000 people have signed up for coverage with the exchanges by mid-November.  That means as of right now, of the people who had coverage under the individual health insurance market this year, 4.6 million of them still don’t have coverage for 2014.   Although I’m sure that the number of enrolled people will steadily increase over the next few weeks, does anyone think that the remaining people who lost their coverage because of the Obamacare requirements will have coverage by the start of the New Year?

Even the Obama administration isn’t that optimistic.

That means that thanks to Obamacare, more people will start off the year without health insurance coverage than had it this year.  Congratulations President Obama!  You’ve successfully wrecked the nation’s health insurance market!   I think the administration should have applied the lessons learned from the Hypocratic Oath: First, do no harm.  Instead, the administration burned down the house, only to learn that their plans for the new house were incomplete.

If the percentage of uninsured in this country is greater this time next year than it is now, it will be pretty clear who will be responsible for it.  I hope someone is smart enough to remind people of that for the elections.

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Schadenfreude, and the Obamacare Timebomb

Considering the disaster of a rollout that Obamacare turned into, you would expect a lot more schadenfreude from the political right.  After all, it’s the President’s signature domestic policy.  For good or ill (and it’s mostly ill), this will be the domestic program that will be identified with President Obama.  And so far it’s a mess.  So why aren’t conservatives happy?  Part of it I think is that the right is still licking its wounds from the shutdown debacle.  They are still trying to heal a party that was pointless split for no good reason.  See?  I’m still trying to heal.  But the major part of this is that unlike a lot of wacky social programs that the left invents, screws up, and leaves to move on to the next big thing, healthcare is something that affects everyone.  The damage that Obamacare has done to the entire nation’s healthcare system, not just to the minority in the individual insurance market, is extensive, and much of it is permanent.  So there is no schadenfreude to be found in mocking the woman who said, “I was all for Obamacare until I found out I was paying for it.”

Fool, you’ve doomed us all.

If Obamacare had only ruined the healthcare system for those who supported it, then yes, the right would have the freedom to cackle with glee and point fingers, but eventually, this will affect everyone.

OK we’re still doing the finger pointing, but we’re not happy about it.

Right now the big Obamacare story is the website, which is a mess, but eventually the website will get fixed.  The problem goes far beyond the website.  The health insurance plans in the exchange depend on getting enough young health people to enroll to keep the cost of premiums down for the next year.  They need people paying but not using healthcare to afford the people who will enroll and will be sick and will be using healthcare; a lot.  That’s what insurance is all about after all.  If those young healthy people don’t show up and enroll, then you are left with more people taking out of the insurance pool than are putting into it.  That spells extremely high rates for premiums in 2015, or collapse of the exchange insurance groups.

And what could be pulling healthy young people from enrolling in an exchange insurance plan?  In a word; Medicaid.

So far (and admittedly this is a changing number) the majority of enrollees under the Obamacare exchanges are enrolling in Medicaid.  Under Obamacare the Medicaid expansion increased the Medicaid Eligibility to 138% of the Federal Poverty Line.  So all of those young healthy hipsters, particularly the ones who have extremely low incomes like students, are being enrolled, but they are being enrolled as Medicaid clients, not people in the actual private insurance groups.  So rather than contributing to the insurance pool, these healthy young people will basically be put on the dole, to drain the Treasury of funds to support healthcare that they could have otherwise been contributing to.

So if in the upcoming year we have insurance plans filled with the sick, while the healthy coast on Medicaid, than that’s a bomb that will blow Obamacare wide open.

Great plan geniuses.

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The “Don’t Fund it” Option

The latest, and perhaps last, opportunity to toss a few stop sticks in front of Obamacare is coming up with the upcoming 2014 spending bill.  The Tea Party coalition wants to strip Obamacare funding from the spending bill, giving the President the option of either vetoing the bill, and effectively shutting down the government October 1st, or signing the spending bill stripped of Obamacare funding; stopping it in its tracks.  It’s not repeal, but it’s a delay, and delaying Obamacare implementation I would think is worth taking some chances.  Obamacare is bad law and worse public policy, and if there is a clear path to even delaying this bill (hopefully for some future period in which there is a change in political leadership), then that path should be followed.  Of course there are two (at least) problems with this: the House leadership and establishment Republicans want nothing to do with this idea, and it’s not clear there is an effective path to getting Obamacare defunded.

Official portrait of United States Senator Mik...

Official portrait of United States Senator Mike Lee. (Photo credit: Wikipedia)

The “Don’t Fund it” option is a real organized effort.  It even has a website to track the progress and pledges of the various Republican Senators and Senate candidates. However, as usual, the establishment is opposed to doing anything that might make either Democrats or the Washington media mad at them.  This default bowing to possible media reaction means that they don’t want to take the chance of looking “obstructionist” in front of the national media.  Speaker Boehner is particularly uninterested in anything that would make the House Republicans look confrontational. So I cheer the Tea Party Republicans who are willing to take a risk at slowing down a bad law.

On the other hand…

The House Republicans have failed to impress in follow-through before. Last year’s fiscal cliff disaster was an eye opening view into how dysfunctional the House Republicans can be.  Before Christmas they voted against an option, what was then known as “Plan B” in order to finally agree and vote for a worse plan, as I chronicled last January.  These guys are not master strategists.  This isn’t House of Cards. It’s not even Pee Wee’s Playhouse. I’ve seen no evidence that there are wheels within wheels of planning and maneuvering to accomplish the goal of defunding Obamacare.  Both the debt ceiling fight and the fiscal cliff debacle demonstrated the amateur hour of the GOP and nothing they’ve done since last December has given me any confidence that they have learned from past mistakes and could prevail in this fight.

That’s not to say there aren’t options available to getting Obamacare defunded.  Some ideas include:

The Republicans could fund the government in multiple spending bills, isolating the Obamacare funding into a separate bill, and basically passing everything but that. Then it will be on the Democrats in the Senate to vote against the rest of the clean government funding.

They could just add an amendment to the bill holding off the implementation of Obamacare for one, two, or even three years. Since the exchanges and a lot of other moving parts aren’t ready, this might be tempting for some Senate Democrats. Obama basically did something similar by fiat.

The House Republicans could offer to fund Obama’s infrastructure and jobs bill with the funds that are not spent on Obamacare implementation.

These are just a couple of ideas that I thought of, off the top of my head.  I imagine a skilled parliamentarian would have a much longer, and perhaps more realistic list.  But in reality it seems unlikely that there is either a skilled parliamentarian or a list of options of any kind available. So I’m left to wonder,

-      Is there an actual strategy that has a possible favorable outcome?

-      Are there contingency plans depending on different possible White House or Senate Democrat responses?

-      Is there a united message and talking points for all participants to use in media contacts?

-      Has this scenario been “war-gamed?”

I wouldn’t be surprised if none of these issues had been seriously considered.  And that’s why, although I would love, love, love to throw my whole hearted support behind a “don’t fund it” plan, I would only want to do it if I thought there was at least a reasonable chance of success, rather than the Republicans ending up worse off than if they had just done nothing, and the media spinning the Republicans as both stupid and evil, like with the fiscal cliff.  And there is a possibility that the Republicans could end up worse off than if they hadn’t done anything.  If the President and Senate Democrats stand firm (and why wouldn’t they?), all the blame will be spun in the media as Republicans taking away Social Security from the elderly, paychecks from the military… you get the idea.  At that point the ball will be in the Democratic court, and they may have their own conditions to get government funded again.

Catching a few media interviews with Senator Mike Lee over the past week, I didn’t get any indication that there was a well thought of plan that has a reasonable chance of success.  Instead, it sounded more like a last gasp.

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Romney goes all in with Ryan

This was not the Vice Presidential pick I was expecting.  I was going along with the conventional wisdom on this one and assuming either Rob Portman or Tim Pawlenty.  Usually, you almost always can count on going wrong when relying on the conventional wisdom, but Mitt Romney seems like a conventional wisdom kind of guy, so the safe guesses seemed likely to me.  So I was surprised when I heard on the news that Paul Ryan was Romney’s VP pick.

In general terms, Ryan is a good pick.  He’s bright; in fact, bright enough that the average IQ of the House of Representatives will drop a good deal when he leaves. He can also present his arguments clearly and concisely.  One of my favorite all time political video clips is the Obamacare Health Summit, in which Ryan demolished the fiscal rationale behind the Obamacare CBO report in a few minutes, with a scowling Obama looking on.

Ryan was right on Obamacare, but it still passed.

And that’s the problem with the Ryan pick.  The President’s campaign strategy for this year has been to avoid economic issues and engage in personal attacks and demagoguery.  That’s the purpose of the various “war on…” ads.  2010’s “Throw Granny off a Cliff,” featuring a Ryan look alike rolling a wheelchair bound grandmother type off the edge of a cliff, is a harbinger of the type of campaign we can expect from the Obama administration.  When Democrats portray Republicans, they are usually shown as either stupid or evil, depending on what they think fits better.  With Ryan, it’s clearly going to be evil.  Will we see ads portraying Ryan as a blade welding, hockey mask wearing killer, slicing and dicing the elderly in rest homes?  Don’t laugh; after throwing granny off a cliff, will Ryan stop at nothing?

Ryan doesn’t really bring the key battleground States, like Portman (Ohio) or Rubio (Florida) would.  Romney is going for an ideological and ideas pick.  With Ryan, he’s showing that the thrust of his administration is going to be to get our fiscal house in order.  That’s a great thing and a vital one, but it plays into the Obama administration’s yearlong campaign strategy.  The White House is probably popping the corks on the bottles of champagne.  If you’re running a campaign based on demagoguery, you couldn’t have hoped for better than a Ryan pick.

Just like on Obamacare, Ryan is right on our budgetary and fiscal issues, but as Obamacare shows, being right doesn’t mean you will win the votes.

Looking at the race in the beginning of the year, I figured it would be Obama winning in a squeaker.  Months later, with the Ryan pick, I still lean that way.  But at least the battle grounds are clearly drawn, and we know what the race is about: saving our country from fiscal chaos and trying to restore the nation, or stripping the treasury of every dollar and eating our seed corn; eat, drink, and be merry, because tomorrow we may be a third rate, ruined power.  I think if the American people are given that clear choice, they’ll make the right decision.  The problem is, the few undecided voters will be viewing the race through the lens of the big three network nightly news programs, and they are all three firmly on Team Obama.

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Obamacare and its Successors

For those keeping score, once again, I was right and the so called experts were wrong.  The Supreme Court upheld Obamacare, 5-4.  The solid liberal block only had to peel off one of the Justices who actually read the constitution.  So the bad news?  Obamacare upheld.  The good news?  I was right once again!

Based on just a brief commentary I’ve heard so far on the decision, there is actually some other good news.  The court upheld the individual mandate based on the taxing power of the constitution, not the commerce clause.  So when it came to deciding if the commerce clause meant the government could do anything, they punted.  So rather than ignoring the constitution, they merely ignored the text of the law.  That’s a far better situation than if the court had decided to not recognize any limits to the commerce clause.  This is no Kelo.  This is a political decision that was only about this particular law.  It didn’t set a legal precedent.

But this doesn’t really change the playing field, at least not yet.  Even if the Court had repealed Obamacare in its entirety, we still would have been left with the situation of having to replace it with something.  This only pushes back the date to when we can do that; until we have a Republican President.  That makes a Romney win all the more important.  Politically, this might even be beneficial to Romney.  It would fire up a base who was otherwise rather “meh” on him.

So, assuming a Romney victory, what can we replace the shambling corpse of Obamacare with?  It’s not enough to get rid of Obamacare, declare victory, and go home.  The reason Obamacare had any traction in the first place was because there was a universal recognition that our healthcare system was broken.  It cost too much and didn’t cover enough people.  Even with Obamacare out of the way, the real issues that it was advertised to address remain.

Luckily there have been many alternatives proposed, and the pool of various reform plans is large enough to provide a good mix of alternatives to the slap dash political Frankenstein’s monster that was the Patient Protection and Affordable Care Act. The most obvious place to check with first is with the proposed healthcare plan of Mitt Romney.  Some of the major proposals of Romney’s plan include:

End tax discrimination against the individual purchase of insurance

Block grants to Medicaid.

Cap non-economic damages in medical malpractice lawsuits

Empower individuals and small businesses to form purchasing pools

Allow consumers to purchase insurance across state lines

Unshackle HSAs by allowing funds to be used for insurance premiums

Promote alternatives to “fee for service”

Encourage “Consumer Reports”-type ratings of alternative insurance plans

Most of these ideas are common features of other alternative health care reform proposals.  It shares similar features with the National Center for Policy Analysis proposal, the Heritage Foundation, the Competitive Enterprise Institute, the GOP, and the Options Act, a bill currently in committee in the House (as HR 4224).  All of these proposals are similar enough in their general outlines that one bill could probably be crafted out of them rather quickly.

One of the more interesting plans came not out of a think tank or campaign headquarters, but from a businessman, John Mackey, the CEO of Whole Foods.  His plan came out of his experience of trying to provide health care benefits to his employees.  Like the other proposals, Mackey supported equalizing the tax laws so that individual and employee health insurance plans had the same tax treatment, competition across state lines, and tort reform.  He also wanted to allow a check box on tax forms to allow a contribution to a fund to provide healthcare for people not otherwise covered, and expand the use of Health Savings Accounts, which are utilized extensively in the Whole Foods health care plan provided to their employees.

Naturally liberals were apoplectic that the CEO of the place where they purchased their overpriced arugula was proposing a counter proposal to the one Dear Leader was proposing.  The publication of Mackey’s article in the Wall Street Journal lead to a short lived lefty boycott of Whole Foods, at least until liberals decided they couldn’t find a more expensive place to purchase their organic veggies.

All of these proposals are all well and good in and of themselves, and would probably do a good job at “bending the cost curve” as the President inaccurately claimed Obamacare would do.  However they don’t do as much to reduce the number of people uninsured or dealing with people with pre-existing conditions.  Those are issues as important as bending the cost curve is.  That solution was John McCain’s healthcare proposal for the 2008 election.  McCain’s plan would have provided a tax credit for low & middle income people to be applied to their health insurance premium.  A good idea, except that he applied it to both individual and employee plans, boosting the cost of his program (although well below even friendly Obamacare estimates).

Recognizing the extra cost associated with Pre-existing conditions, McCain’s advisors were considering a proposal to have risk rated the tax credit so that people with pre-existing conditions would get a higher tax credit based on the rated expense of their particular condition.  He also supported State based risk pools, similar to the ones in Obamacare.

So looking at all of these plans together, shaking them up in a big healthcare reform bag and baking at 350°, this is what I’ve come up with as key features of a good alternative to Obamacare:

1)       Equalizing the tax treatment between individuals and businesses for health insurance premiums.  This would mean giving a first dollar deduction to individuals and families on their taxes plus for low and middle income people, a tax credit that would be applied to the health insurance premium.  McCain’s plan had a $5000.00 tax credit for family insurance premiums.  That would probably need to be updated and perhaps indexed to the growth in the cost of health care insurance premiums.

2)      I like the proposal to have a formula to increase the health insurance premium tax credit based on the severity of the pre-existing condition, but some pre-existing conditions are so severe that they are not insurable at any price.  For those, I go along with the state risk pools; not as a separate insurance plan, but as a secondary payer to the member’s regular primary insurance.  By applying and being accepted into a state pool, the member will be able to purchase regular insurance at regular prices and the diagnosis’s and procedures related to the members’ severe pre-existing condition the risk pool would pay as a secondary payer, similar to the way worker’s comp and auto accident insurance are handled.

These two main points handle the bulk of our current uninsured and pre-existing conditions crisis.  Of course I concur with the bulk of the other alternative reforms as well, such as Romney’s idea to allow purchasing pools for small businesses and other organizations.  I’m not clear as to why we would prohibit organizations like churches from organizing their own insurance purchasing pools.

There are many other options to Obamacare.  Options that are cheaper, more efficient, and would actually facilitate expanding healthcare, that are not top down statist solutions that guarantee to be more expensive and reduce consumer choice and little else.

Tags:  Politics, News, Obamacare, John Mackey, Whole Foods, Mitt Romney, Healthcare Reform, health insurance tax credit, pre-existing condtion,

Putting the Brakes on American Decline

I originally wrote and posted this a few years ago and have gone back and re-read it since, and it still holds up.  Our big national problems are basically the same, only worse, so I felt this was worth a repost; particularly since it required only a few updates.

Baring stunning breakthroughs in longevity, I should probably be dead in 50 years or so.  But I care what happens to this country after I’m dead, and would like it to continue to be a great power.  Not just a good one, or an “OK power” but a great one.  So I thought of a couple of ideas that I think would help to guarantee American dominance through the 21st Century and beyond.  Not by any means a complete list of course, but just a couple of ideas to get us started.

Getting our fiscal house in order

This should be a no brainer, but given that we are heading for a 16 trillion dollar budget deficit, it’s clear that we are a nation that wants far more government than we are willing to pay for.  How we got in this situation is easy to see:  Republicans are no fan of taxes, but have made little headway (none actually) in cutting spending.  Democrats have a limited ability to raise taxes because the country doesn’t like to pay them, but have an unlimited appetite for Federal spending.  Add both parties in power; simmer for a few decades, and presto!   Of course that doesn’t even count the unfunded liabilities of our Social Security. Medicaid, and Medicare promises, that we have no ability to pay, now, or in the future.  That’s about 61 trillion dollars and growing.

The GOP has already put a proposal on the table to at least get the conversation started on that.  The Ryan Plan would convert Medicaid to block grants to the States and modify Medicare into a premium support plan that is similar to Obamacare’s exchanges to purchase individual healthcare plans.  It’s a start at least and it does reverse the debt to GDP ratio that the current administration has us on.

Any debt plan that doesn’t address the escalating costs of Medicare, Medicaid isn’t really a debt plan, it’s a stalling plan.

Fixing this problem should be a national priority of the first order.  It’s not of course but it should be.  The next place to start is with a balanced budget amendment.  We (both the Congress and the American people) have proven that we are not mature or responsible enough to handle an allowance without adult supervision.  We need some rules and that would be best one.  Just like we self righteously tell someone in credit card debt to cut up their cards, we need to cut up our national one.

In addition we need to redo the way federal budget is handled.  Social Security has a trust fund in theory.  In practice we spent the surplus from that year after year, for decades and in return gave the Social Security Trust fund an IOU.  Of course the days of the Social Security surplus are now over.  From here on out, we’ll be cashing those chits, not collecting them. But that’s not even the only one.  The federal gas tax is supposed to go to a transportation trust to fix our roads and bridges; infrastructure in other words.  What happened to that money?  Same place as the Social Security money, into the general pork fund.  I’m not an accountant, but even I know that taxes that are being collected for dedicated purposes, like the gas tax and Social Security, shouldn’t be spent on anything other than what was intended.  They should be in off budget separate accounts.  Fix these fiscal problems and maybe a dollar will still be worth a dollar 50 years from now.

Tapping into the brain drain

We are a nation of dummies.  We’ve allowed the K-12 educational system in this country to fall apart and since we still don’t have a national consensus on what the problem is or how to fix it, I don’t expect that to be solved soon.  However our system of colleges and universities are still some of the best in the world.  As a consequence they attract the best and brightest from all over the world to come and study. Foreigners dominate our technical graduate and PhD programs. On the world market, a degree from a US University still means something.  So naturally, as soon as one of these foreign students graduates from a degree program with useful technical skills, what do we do?  We kick his or her ass out.

We do have a Visa program to allow people with technical skills to come to this country, but we limit it to 65,000 per year.  That’s a drop in the bucket compared to refugees, family “chain immigration” and other categories that allow people in this country.

And that’s not even counting the illegals.

What should we be doing?  We should gradually increase the number of H1-B technical skills visas and reduce the percentage of the some of the other categories of Visas.  We should also make it easier to allow foreign students to convert their student visa to an H1-B.   Since we can’t produce enough home grown professionals and technically trained people, let’s just import them.  If we are going to maintain our economic dominance in science and technology, we need engineers, IT professionals, and scientists of all types.  We are able to provide domestically all of the sociology and feminist studies graduates that this country will ever need.  Maybe we should export those.

Another useful visa type is the E-2 Visa, which allows foreigners to come to the US to live as long as they invest and start a new business in the US.  The requirements on this visa are tough.  Although a spouse can come over on this visa, children can’t.  Also, if the business fails, you can be deported even if you’ve lived in the country for years.  It’s astounding to me that so many in this country want to give amnesty to people who’ve entered the country illegally, but people who’ve followed the rules, worked hard and done everything we’ve asked we can’t wait to give the boot to.

Between these two Visa types, we can get almost all of the high quality immigrants this country needs. This country is still the number one destination for immigrants worldwide.  As long as that is the case, we should take advantage and get the cream of the crop.  Long term, they provide a bonus to our country by generating upper middle class wages and paying upper middle class taxes.  You want to reduce poverty in this country?  Stop importing so many poor people and start importing an educated, English speaking middle class.

Tax haven to the world

With New York losing its battle with London as the financial capital of the world, we should be concerned that capital is finding other places more attractive than the United States.  We are losing to a European country?  There are a variety of reasons, the financial crisis, Sarbanes Oxley, and even Eliot Spitzer gets some blame for chasing away companies from New York.

And of course there is the tax treatment.  US corporate taxes are among the highest in the developed world.  Although personal income taxes in most of Europe are far above the US level, we make it up by kicking in the crotch the companies that provide jobs and economic growth.   I’ve always found it interesting that “socialist” Europeans want their businesses to succeed worldwide, while in the “capitalist” United States we hate and incessantly attack our most successful companies.  We attempted to break up Microsoft and investigated them for years for anti-trust violations; one of the most successful US companies of the 90’s.  One of the other successful companies, Wal-Mart, is on the liberal ‘sue’ list. You don’t see Finland attacking Nokia for having too large a market share of the cell phone market.

We need to redo our regulatory and tax structure to encourage capital to come to the US to invest, not chase it away.  There are several options to do this, such as the fair tax, or a flat tax.  We should have as a goal to reduce and gradually eliminate the capital gains tax.  Basically, whatever rules and regulations that successful tax havens have, we need to emulate them so people worldwide will want to put their money here.

These are just a couple of ideas and I’m sure other people have their own wish lists for what they would like to see and this is by no means a complete list.  But we need to start recognizing that the US continuing as a superpower isn’t inevitable, or even particularly likely.  It will take much effort and work to continue that status.

Obamacare on Trial

I realize that at this moment in time, far more people are concerned about Trayvon Martin’s tweets or George Zimmerman’s facial injuries, but this week there was something far more important happening, with much longer lasting consequences

The United States Supreme Court, the highest c...

The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

than anything that happens in Sanford’s Bonfire of the Vanities.  I’m talking about the oral arguments for the Patient Protection and Affordable Care Act, or as it’s more commonly known; Obamacare.

Not since the second Militia Act of 1792 has the Congress ordered citizens to purchase something.  In that case, it was a musket and accessories.  But that was under the President’s article 2 powers, not the commerce clause, so the Obamacare mandate to purchase health insurance is something brand new.  Unless you’re simply a statist who regards the State as superior to everything else in society, including the constitution, that’s a tough sell.  And Solicitor General Donald Verrilli showed that before the Supreme Court on Tuesday.

Verrilli has taken a lot of heat for his nervous stumbling and bumbling before the court, but I’m not sure if he had been composed, calm, and collected it would have made a difference.  He just didn’t have good arguments.  Particularly for questions that he must have known that he would be asked, as when Justice Kennedy asked about the limits of the commerce clause.  I don’t think even Joe Pesci from My Cousin Vinny could have saved this case.

I was particularly struck by the news coverage this week that the pundits, talking heads, and reporters simply accepted as a given that the four liberal judges would vote to uphold the law, no questions asked.  The debate seemed to roll around the idea that Justice Kennedy, the swing vote, could be persuaded to come down on the side of the law.  There was even some speculation that Chief Justice Roberts might put aside “politics” to vote to uphold.

Since of course to vote the law down is political, but to uphold the law would just be good jurisprudence!

But for the liberal judges there isn’t that sort of pressure.  No one is asking the liberal justices to “put aside politics.”  One of the benefits of being a liberal judge who believes in a living, breathing, constantly evolving constitution is that you don’t have to worry about the actual text of the constitution, or the intent of the founders.  A living constitution means never having to say you’re sorry.  Or, to put it another way, if the law feels good, do it.

Leave the cracking of books to the strict constructionist eggheads.

If the individual mandate goes down, it would be with a bit of irony, since President Obama originally opposed the mandate during the 2008 campaign, using some of the same arguments against Hillary that the President’s opponents are now using against him.

He should have stuck with his first instinct.

We’re not going to find out how this all plays out until later this summer when the court releases its decision even though the Justices likely voted on this issue today.  But I’m not afraid to go ahead and handicap the decision now.  My gut feeling is that the odds are better than even that the court will uphold the mandate.  I base that on the fact that the mandate has 4 automatic votes for.  So that means that only one vote is needed to be swayed among the other five Justices who actually have to study this case (unlike Ginsberg and Breyer, who will be windsurfing instead of reading law books).

But if the mandate is overturned, I think it’s likely that most of the law will stand intact.  I figure the Justices will just throw this mess back to Congress to fix the creaking boat of Obamacare with a mandate sized hole in the bottom of it. The Congress, divided as it is, will be able to accomplish nothing.  At least until next year.  And what then happens to health reform will largely depend on which party does well in November.

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