Obamacare Survives: Your Thoughts

We posted a bunch of emails during our live-blogging but here's another big batch:

As much as the right tries to push the "SCOTUS called it a tax" argument, I think Obama has a pretty good comeback with "SCOTUS ruled 8-1 that it's not a tax." Only Roberts said it was a tax. Four justices said it's not a tax and thus unconstitutional; four said it's not a tax but still constitutional. So what if one justice said the mandate is a tax?

A lawyer outlines his reaction to the ruling:

(1)  I am absolutely overjoyed that the Court has upheld the Affordable Care Act, and that the vision of universal coverage is closer today than it was yesterday.

(2)  As a long term legal matter, Chief Justice Roberts:  (a) now has himself a previously non-existent limit on Congress's Commerce clause power, and (b) a perviously unrecognized limit on Congress's Spending Clause power.  He will have these limits at his disposal over his next 20+ years as leader of the Roberts Court.

(3) As political matter, his maneuvering was absolutely genius. He has (a) protected the institution of the Court; (b) forced Obama and the Democrats in Congress to acknowledge that the mandate is a tax and, thus, they have raised taxes on earners under $250,000; and (c) ensured that, as a tax, the mandate can be repealed by reconciliation  – i.e., a bare majority of both Houses and the signature of a Republican President.

Roberts got his limitation on federal power and got to ingeniously play the political game without receiving any fault for doing so. And, most importantly, the uninsured will now get insurance.

Another lawyer writes:

From my quick glance at who signed on to what in whose opinion, it seems like the four dissenters – Scalia, Alito, Kennedy, and Thomas – did not sign on even to the part of the opinion in which Roberts says the ACA would not pass Constitutional muster under the Commerce Clause.  This is unusual, as dissenters usually will join those parts of the majority decision with which they agree unless they have a completely novel reason for their determination – which in this case, from my brief perusal of the opinions, they do not.

Bottom line: the Kennedy-led branch seems to have intentionally distanced themselves from Roberts ruling in toto, even where they agree. Also, based on a quick word search, they do not even mention the majority opinion regarding the parts on which they agree. Thomas, as he often does, both joins the dissent and writes his own, and he does acknowledge Roberts' proper reading of the Commerce Clause though he say he would go even further.

Another reader:

During oral argument of the Affordable Care Act, Solicitor General Donald Verrilli allegedly engaged in a "slip of the tongue" in calling the individual mandate just a "tax" rather than a "tax penalty" – the term that the US generally used to describe the penalty. At the time, I never believed it was a mistake.  Verrilli is to smart, experienced, and careful in his word choices to make such an amatuer mistake.  Is it impossible to imagine – or perhaps to cynical – that he did it intentionally, serving as a kind of subliminal message to the Court, particularly its most conservative members who – it turns out – latched onto that argument to save the Act?


So, now that the Affordable Care Act has a mandate from the Supreme Court, do you think maybe it's time for Obama to put his communication skills to use and explain what the law is, why it makes sense, and how it helps people? This seems like a moment when they can start to win the PR war on ACA that they've so badly blundered in the past, and do so in a way that shows how unhinged the Republicans have become.


I do not understand why Democrats don't embrace the newly defined "tax", saying: you bet we raised taxes, but not on the hard-working, responsible middle class. This is a tax on those deadbeats who don't pay for their own insurance but still expect care when they show up at emergency rooms. It's a tax, all right, and I think we should agree to raise it even higher so they have more of an incentive to buy their own damned insurance and leave the rest of us alone. Let the Republicans protect the rights of deadbeats; Democrats are fighting for people who play by the rules.

And another:

I think Romney and the GOP probably will try to pivot by claiming that "Obama raised taxes on hard working Americans," this talking point is transparently stupid and easy to parry.  The "tax" at issue here is one that no one is intended to pay. If you get health insurance (which most voters have already and the rest want), you don't have to pay the "tax."  And the ACA has a number of mechanisms for helping people get insurance.  The idea that there are actual people out there who don't want health insurance is an absurd product of the wingnut imagination.  If Obama and the Democrats can't parry that argument, they deserve to lose.  Moreover, let's not forget that Romney himself passed a mandate in Massachusetts.  If it's a tax, he raised taxes too. 


Here's an April 2010 video of Romney claiming that RomneyCare did not raise taxes when it had a tax penalty for mandate non-compliance:


As you know, Obama's key challenge now is beating the ObamaCare-as-tax-increase charge. Obama can say this: "For years, Americans who were lucky enough to have health insurance were paying higher-than-necessary premiums to cover those Americans who weren't lucky enough to have insurance but who needed healthcare. Now, the penalty that passed as part of ObamaCare, which some Republicans are calling a tax, and which is the same exact penalty my opponent passed when he was Governor of Massachusetts, will be levied on those same uninsured people unless they decide to purchase insurance. So if you have insurance, not only will you never face the penalty, but your premiums will be lower than they otherwise would have been because you won't be subsidizing the uninsured like you once were."

Or he can simply say this: "I agree with Mitt Romney circa 2007 that it's not a tax, but a penalty. And if you're lucky enough to have health insurance already, it's a penalty you won't have to pay, and it's a penalty that will reduce your health insurance premiums." Full stop.

The latter is less honest, sure, but it's what a Republican would say if he were in Obama's shoes. And it's certainly closer to the truth than anything Mitt Romney will end up saying. And the uninsured who will in fact have to buy health insurance or pay a penalty either know that already or aren't paying attention anyhow. If necessary, he could throw in this bit: "And if you're already struggling and uninsured, we'll help you pay for insurance so you don't have to pay the penalty." Simple stuff.

Yet another:

Just imagine if Romney had originally stood by his Massachusetts health care mandate when he began his run for 2012 president. Today's SCOTUS decision could have been Romney's big win – the triumph of a health care plan conceived by conservative leaders that Romney himself successfully implemented in Massachusetts.  He could have proclaimed himself as a national visionary of conservative health care, while painting Obama as a pale Romney-imitator. But such are the perils of pandering to today's conservative base: Forswear your prior political successes instead of building upon them, then let your opponent reap the rewards of favorable SCOTUS decisions that you could have claimed.

Another reacts to previous readers:

"This decision is a major political problem for Obama"? And this: "…this ruling was a disaster for the left"?? Are these people fucking kidding me? They remind me of that scene in Hannah and Her Sisters where Woody Allen's character learns he doesn't have a brain tumor. He comes running out of his doctor's office, dancing down the street, before suddenly realizing that life is still horrible and meaningless. He then turns around goes shuffling down the street in the other direction. The American Left: even when they're winning, they think they're losing.

Let's take this for what it was: A huge political victory for Obama. But more importantly, a huge victory for all Americans who have suffered and are suffering because of a lack of health insurance. We haven't won the war yet, but we just won a major battle.