Good Thing the Democrats Forced That Vote on the Ryan Plan

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Most of what I have to say about Mitt Romney’s pick of Paul Ryan I said on Virtually Speaking Sunday. I think the Ryan pick will hurt Mitt, and I think it opens up an opportunity for progressives to even box Obama in.

But I am enjoying the response from Republicans, who almost immediately started bad-mouthing the pick. First there was the BuzzFeed story–less than 48 hours after the pick!–describing how the political pros in Mitt’s staff opposed the pick. And now Politico describes the opinions of some three dozen Republican operatives, all of whom except Mary Matalin are queasy about the choice. (The Hill has a similar story.)

In more than three dozen interviews with Republican strategists and campaign operatives — old hands and rising next-generation conservatives alike — the most common reactions to Ryan ranged from gnawing apprehension to hair-on-fire anger that Romney has practically ceded the election.

It is not that the public professions of excitement about the Ryan selection are totally insincere. It is that many of the most optimistic Republican operatives will privately acknowledge that their views are being shaped more by fingers-crossed hope than by a hard-headed appraisal of what’s most likely to happen.

And the more pessimistic strategists don’t even feign good cheer: They think the Ryan pick is a disaster for the GOP. Many of these people don’t care that much about Romney — they always felt he faced an improbable path to victory — but are worried that Ryan’s vocal views about overhauling Medicare will be a millstone for other GOP candidates in critical House and Senate races.

One big reason the operatives don’t like this choice is it makes their job–getting down-ticket Republicans elected–harder.

And that’s just what it does to the Romney-Ryan ticket. Forget how it plays in close House and Senate races.

“Very not helpful down ballot — very,” said one top Republican consultant.

“This is the day the music died,” one Republican operative involved in 2012 races said after the rollout. The operative said that every House candidate now is racing to get ahead of this issue.

And what Politico doesn’t dwell on–but what Crooks & Liars noted the other day–is that it’s already too late for most of the Republicans running for reelection to separate themselves from Ryan’s signature policy. Because they already voted for it.

Even as Mitt Romney was introducing Wisconsin Rep. Paul Ryan as his running mate, his campaign was preparing a defense of the House Budget Chairman’s draconian Medicare proposals. With good reason. After all, in April 2011 the nonpartisan Congressional Budget Office forecast that Ryan’s scheme to convert today’s guaranteed Medicare insurance program into an underfunded voucher system would dramatically shift the health care costs onto America’s seniors. And in February 2010, Ryan acknowledged his privatization plan for millions of future elderly constituted rationing.

But it’s not just Team Romney that should be concerned about being caught red-handed with the proverbial gun pointed at the wildly popular program. Last year, 235 House Republicans and 40 GOP Senators–98 percent of all Republicans in Congress–voted for Paul Ryan’s budget and its blueprint to rationing Medicare.

What’s particularly remarkable about the Politico piece is that, in spite of widely expressed admiration for Ryan, just about all the anonymous sources admit that people hate his plan. The plan their bosses have already voted for.

I don’t think any of the geniuses in DC–whether Republican or Democratic–planned for this. I don’t think they intended to turn Mitt Romney into the poster child for the elites who have been looting our country. I don’t think Mitt realized that by picking Ryan, he would make the problem worse, not better.

But this election has now crystalized into a referendum on the austerity, oligarchy, and looting the Republicans (and more recently, the Democrats too) have been gradually introducing into our country.

Obama may still screw up the election. The economy may recrash, the drought may bring a price spike that makes people desperate enough to vote for Mitt, or there may be an October surprise.

And I’m sure Obama didn’t want to be running this election, pointing out how unpopular and disastrous are Ryan’s policies–policies which are not that different from some of his own.

But that seems to be where we’re heading. A referendum, from the top of the ticket on down, on the unpopular elitist policies that both parties in DC have been pushing for the last decade or so.

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More Damage from Panetta’s Vaccine Ruse: UN Doctor on Polio Vaccine Drive Shot; Hundreds of Thousands Denied Polio Vaccine

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As one of only three countries in the world where polio is still endemic, Pakistan launched a three day vaccination drive yesterday with a target of vaccinating the 318,000 children in North and South Waziristan who have not received their vaccinations. Across all of Pakistan, the goal is to vaccinate 34 million children under the age of five. The drive is being held despite a push by the Taliban to prevent vaccinations in tribal areas. The Taliban’s ban on vaccinations is aimed at stopping US drone strikes in the tribal areas and is in response to the vaccination ruse by the CIA.  Dr. Shakeel Afridi pretended to be doling out hepatitis vaccines in a failed attempt to retrieve DNA samples for the CIA from the bin Laden compound when it was under surveillance prior to the attack that killed Osama bin Laden. Today, a UN doctor and his driver were wounded when a shooter opened fire on them in Karachi. The doctor was reported to be working on the vaccine program.

Dawn reported yesterday that a jirga was convened today in the tribal areas to try to find a solution to the Taliban’s vaccine ban. That article gives good background information on the ban:

Although a nationwide anti-polio campaign was launched on Monday, the authorities were yet to convince the Taliban shura on the importance of getting children of North and South Waziristan vaccinated against the debilitating disease.

/snip/

Commander Hafiz Gul Bahadur, who leads the powerful Taliban Shura, had banned the anti-polio drive in North Waziristan on June 16 and said that children would not take polio drops unless the government stopped drone strikes in the area.

He was followed by Commander Mullah Nazir in South Waziristan and other militant commanders in FRs D.I. Khan and Kohat.

In South Waziristan, the ban is much stricter because it prohibits vaccination against all eight childhood diseases, including polio.

“We have asked health workers to be careful and don’t put their lives at risk,” the official said, adding that they were waiting for the government’s response.

However, the Taliban ban is not the only barrier to vaccines:

He [the official quoted above] said the military operation in Orakzai and Khyber agencies was one of the factors which deprived children of the much needed vaccines.

Just the two tribal agencies of North and South Waziristan account for a large number of unvaccinated children: Read more →

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The FDA Demonstrates What “Targeting” Does

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“They think they can be the Gestapo and do anything they want.” — Chuck Grassley, on learning his staffer’s emails had been surveilled by the FDA

It is utterly predictable that members of Congress only get concerned about heavy-handed surveillance when they get sucked up in the surveillance. And so it is that Chuck Grassley, who voted for the FISA Amendments Act, and Chris Van Hollen, who didn’t, are outraged that their offices have been dragged into the FDA’s invasive surveillance used to conduct a leak investigation.

The surveillance started in response to a belief that FDA scientists, upset that their concerns about the safety of medical diagnostic equipment had been overridden, leaked classified proprietary information to the NYT. But after targeting just 5 scientists suspected of the leak, the FDA developed profiles on 21 people thought to be conspiring against the agency.

What began as a narrow investigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into a much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort.

Moving to quell what one memorandum called the “collaboration” of the F.D.A.’s opponents, the surveillance operation identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and “defamatory” information about the agency.

Mind you, Grassley and Van Hollen’s aides (and Van Hollen himself) were not themselves the targets of the leak investigation. The scientists were the targets. Read more →

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Withholding the Tax Decision: SCOTUSblog on the ObamaCare Decision

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Having served as the liveblog link to a widely-anticipated court decision myself, I probably read Tom Goldstein’s tick-tock of how the decision got reported differently than others. Most interesting for me?

SCOTUSblog is not credentialed to cover SCOTUS

Goldstein describes how most major news outlets as well as the White House listened in on a conference call SCOTUSblog had to discuss the ruling as it came out. He notes that Fox managed to correct its incorrect initial reporting because Megyn Kelly was watching SCOTUSblog. He describes other news outlets–like NPR–citing SCOTUSblog as their source.

And yet, even with all those people relying on SCOTUSblog for coverage of the decision (and all other decisions), SCOTUSblog is not credentialed to cover the court.

The Supreme Court will not grant SCOTUSblog a press credential.  Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston.  There are six other members of our team nearby, running nine computers on eight separate Internet connections.

I’m curious what the justification for this stance is. Does the Court care more about its prestige than ensuring that what amounts to its own newswire be able to report quickly and accurately?

SCOTUS decided not to email the decision

Perhaps that’s the case. After all, SCOTUS also decided not to email the decision to reporters (and the parties to the case), though they have done so in the past.

The Court’s own technical staff prepares to load the opinion on to the Court’s website.  In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced.  But now it relies only on its website, where opinions are released approximately two minutes later.  The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.

But it does.  At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever.  It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling.  And millions of people are now on the site anxiously looking for the decision.  They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again.  In the face of the crushing demand, the Court cannot publish its own decision.

The opinion will not appear on the website for a half-hour.  So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

Aside from being a boneheaded technical decision, it is, again, a statement about the philosophy of information at the Court. Why insist that the decision go through those physically at the Court, where people have little space or time for close reading?

Who hacked SCOTUSblog?

And here’s the bit that has me most intrigued. When we covered the Libby trial, we were hounded by denial of service attacks, including on verdict day–though we were also operating on a less stable system with almost no staff and little time to prepare for the technical demands of the coverage, which I think made the attacks rewarding.

Plus, it wasn’t surprising someone would attack FDL during the Libby case; because we served as the wire service for the trial, and because we didn’t unquestioningly repeat whatever Barbara Comstock claimed, we ended up undermining Liibby’s defense team’s best efforts at spin. So I’ve always assumed our DNS hackers were conservatives trying to cut off our coverage, leaving the more favorable Libby spin by default.

So it made sense that we were getting attacked.

But SCOTUSblog?

Our problem at the moment is that someone is trying to crash the blog.  At 10:00 exactly, hackers are launching a “distributed denial of service” attack with 1,000 page views per second to try and bring us down.  It does not work; our tremendous Deputy Manager Max Mallory has spent months augmenting our capacity, and the hackers give up after a few minutes.

The only one who–assuming good faith interest in reporting accurately–who I can imagine having a motive to hack SCOTUSblog are other media outlets who don’t want a competitor to draw off potential readers and viewers.

Alternately, there’s the possibility that someone wanted the decision reported inaccurately. Read more →

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SCOTUS Conservatives in Anonymous Disarray

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I expressed skepticism about the part of Jan Crawford’s story confirming John Roberts flipped his vote on ObamaCare that claimed Roberts had no role in writing the dissent.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

Salon now has a single anonymous source disputing Crawford’s two anonymous sources on this point.

Crawford’s sources insist on the claim that the joint dissent was authored specifically in response to Roberts’ majority opinion, without any participation from him at any point in the drafting process that created it. It would, after all, be fairly preposterous for the four dissenters to jointly “author” an opinion that was in large part written originally by the author of the majority opinion to which the joint dissenters were now so flamboyantly objecting.

Yet that, I am told by a source within the court with direct knowledge of the drafting process, is exactly what happened. My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.

[snip]

Roberts’ chamber did much of the drafting of the [first 46 pages of the dissent, which don’t mention Roberts’ opinion], and none of the [last 19 pages, which do mention it]. In short, it appears Chief Justice Roberts ended up in large part authoring both the majority opinion and the dissent in National Federation of Independent Business v. Sebelius.

Set aside the fact we’ve got a anonymous leak war going on, with neither side inherently garnering credibility. Set aside what Salon’s report, if correct, would suggest about Roberts.

I want to focus on what it means that comity in the court has broken down in this way. If Crawford’s report comes, as many suspected, from the conservative justices themselves, it would suggest they leaked a transparently illogical cover story (in that it didn’t explain the relics that made everyone suspicious about the dissent in the first place). They not only broke SCOTUS protocol about leaks, but did so and, reportedly, lied in doing so.

Then you’ve got a quick response from someone–could this be a Roberts clerk? one of the other conservatives?–calling out that purported lie.

To what end? To shift the emphasis on Roberts’ fickleness? To try to tone down the confrontational claims at the heart of the Crawford piece? And if another of the conservatives is behind the Salon report, then how do the original leakers feel about the story? What are the political objectives of each side of this anonymous leak war?

And all this is just what we can see through the screen of anonymity. The rancor this expresses must be worse in person.

Even if it’s all anonymous, I gotta say, I’m glad this leak fest has revealed the conservative justices in all their bitchy glory.

Read more →

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Complacency on Medicaid Would Feed Two Years of Ugly Race-Baiting

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I’m with DDay. I believe liberals are far, far too complacent in their wonkery-based confidence that Red States will eventually come around and extend Medicaid under ObamaCare. (See this post too.)

I keep seeing these confident predictions from health care experts that no state would be so foolish as to reject the Medicaid expansion for their state. I want to set up a poker game with these people, to provide for my family in retirement. How many times can you say “well that’s so radical and extreme, it could never happen!” and be wrong before you review your assumptions?

[snip]

The idea that you can just point to a set of numbers and say “but it’s almost all paid for by the federal government!” and convince ideologically motivated conservatives with that reasoning is really rich. The consensus opinion on the right is that giving free services to poor people puts them on the road to serfdom and crushes their innovative spirits and shackles them rather than allowing them to grow and succeed. Really they don’t want rich people to pay for “others” to get free stuff.

But I don’t even think the wonks have formulated the question properly, given that they are formulating it as wonks, rather than as partisan hacks.

Take Ezra’s formulation of the argument with regards to South Carolina, which has already announced it won’t expand Medicaid.

Take South Carolina. “We’re not going to shove more South Carolinians into a broken system that further ties our hands when we know the best way to find South Carolina solutions for South Carolina health problems is through the flexibility that block grants provide,” said Rob Godfrey, spokesman for Gov. Nikki Haley.

So how are those South Carolina solutions working out? Nineteen percent of the state’s residents are uninsured, which is well above the national average. When the Kaiser Family Foundation ran the numbers, they found the Medicaid expansion in the new law would cut South Carolina’s uninsurance rate among eligible adults by 56.4 percent. That’s the fourth-largest drop of any state in the nation. The cost of that for the federal government between 2014 and 2019? Almost $11 billion. For South Carolina? Less than $500 million.

In the short term, a rising Republican star like Haley might have reason to reject that deal. The Republican base hates the law, and so one way to build a national profile right now is to be the most implacable, unreasonable opponent of the Affordable Care Act.

But that won’t last forever. And governors also have to answer to non-Republican voters who don’t want their state missing out on billions in federal dollars, and to the hospitals in their state who have to treat uninsured patients that end up in their emergency rooms, and the insured voters who end up paying for their uninsured brethren.

What remains unspoken in these arguments (though DDay has addressed it)–even in the assessments of why these Red States already have such low rates of Medicaid coverage to begin with–is race.

Medicaid expansion in Red States is not going to be argued as “extending health insurance to uninsured adults,” but rather, “giving free stuff to people of color” (though that won’t be the phrase used).

Consider:

Enlargement of Medicaid is the single most important provision of the Affordable Care Act for people of color. It’s the way that almost all non-whites covered by the law would receive insurance.

Read more →

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The John Roberts-Anthony Kennedy Smackdown

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There are several fascinating details in Jan Crawford’s confirmation that John Roberts did, indeed, flip his vote on ObamaCare.

Most interesting is Crawford’s description of the desperate efforts on the part of Roberts and Anthony Kennedy to persuade the other to flip their vote.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

I’m also fascinated by Crawford’s oblique description of why this leaked from the normally tight-lipped Court.

The justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.

But in this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.

Note, too, that Crawford uses the same word Ramesh Ponnuru used–“wobbly”–to describe Roberts’ position, suggesting he may have had the same sources she did (and the word seems to come from a Justice himself).

It was around this time [in May] that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

There’s a lot in Crawford’s story that seems to treat the conservative leakers with too much credibility–not about the law, but about the pissing contest that has ensued. In any case, the very fact that it took just a few days to make it into a story add to the intra-party sniping.

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John Roberts Fails to Dictate Another Presidential Outcome, John Yoo Cries

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In this post, I suggested the reason Republicans are so angry that John Roberts apparently flipped his vote (note, Barton Gellman reminded today that Ramesh Ponnuru said at Princeton reunion this year that Roberts had flipped before June 1) because they expected the conservative Justices to influence this year’s election.

Funny. In his rant declaring John Roberts the next David Souter, John Yoo has this to say:

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years.

Mind you, he doesn’t rule out a Republican (he doesn’t name Mitt directly) getting elected. But he does see this in terms of the election, it seems.

But that’s not the most interesting passage in Yoo’s rant. This was:

Justice Roberts too may have sacrificed the Constitution’s last remaining limits on federal power for very little—a little peace and quiet from attacks during a presidential election year.

The … last … remaining … limits … on … Federal … power.

Yep. John Yoo said that.

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Chief Justice Roberts, Flipped Votes, and the Naked Partisans

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Yesterday Barack Obama discovered the one high-rankng Republican in the country who would help him raise taxes: John Roberts.

While the political (how will yesterday’s ruling affect both the Presidential and lower ticket races in November) and pragmatic (what red states will turn down tons of Federal money to provide health care for their poor) consequences of yesterday’s decision are still playing out, I’m quite interested in the Kremlinology over Roberts’ vote.

Because the unsigned dissent on the mandate refers to Justice Ginsburg’s opinion as itself the dissent–and for a slew more reasons–a number of people think that Roberts originally joined the conservatives, but then flipped at a late moment. (See here and here for a discussion of the evidence supporting that argument, see here for an alternative explanation.)

Then there are questions about why Roberts voted, for the first time, with just the liberal block, his first swing vote on one of the highest profile cases of his tenure. Was it to save the respectability of the Court? To gut the commerce clause? To serve his one consistent constituency, corporations?

The answer to those questions, too, are still playing out.

I can’t help but see this in another context. This decision was the last opportunity for SCOTUS to help defeat Barack Obama. They helped mightily with Citizens United and again with their rejection of the Montana campaign finance case. The Court came close to helping on voting rights and redistricting. The Republicans in the Roberts court has done a lot to make sure Obama doesn’t get to pick anymore of their future colleagues.

But yesterday’s decision had a big impact on the the course of this year’s election. Had the Administration lost, I do think they hypothetically could have used the loss as a rallying point, though in practice they have never shown the ability to win this political argument or even try in concerted fashion, so the more likely outcome would have been a setback at the polls. I do think given Mitt’s embrace of the dissent–rejecting insurance for those with pre-existing conditions, among other things–Democrats ought to be able to spin his opposition to great advantage. Yet I also agree with those who argue that neither Obama nor Mitt have an incentive to talk much about healthcare moving forward. Congressional races are another thing altogether, as the GOP will try to run on a promise to overturn ObamaCare.

Alll that said, I’m most struck by the naked partisan face that has emerged in recent days. While the dissent was largely an angry legalistic screed, the decision–to overturn all of ObamaCare–was radical in its intent. Ginsburg’s opinion’s frequent reliance on the Massachusetts example, RomneyCare, was a nice partisan touch. Most all there’s the haunting dissent to the SB 1070 ruling that Scalia read on Monday, using slavery-era law to argue that states could exclude undesirables from their state (to say nothing of Alito’s defense of life in prison for teenagers).

Roberts may be a corporatist, but the other four conservatives are showing far uglier faces of late.

Then there’s this detail. Amanda Terkel noted Jim DeMint saying conservatives had been “teased” into believing SCOTUS would overturn ObamaCare for them, doing as activist judges what even Erick Erickson now accepts must be done by politics.

“Teased”? What does that mean? Was DeMint “teased” with the results before Roberts flipped, if he did? Did DeMint have reason to believe the five conservatives had taken the radical step of overturning all of ObamaCare?

I don’t know the answer to that, but I will say that the dissenters yesterday have clerks and other staffers who, with a half hour’s work, could have hid the most obvious relics of John Roberts’ flip, if that’s what he did. Search and replace: “dissent,” “concurrence.” That is, if indeed Roberts flipped his vote, then it seems likely that the angry Republicans deliberately left evidence that would lead us all to speculate if not conclude he had done so.

SCOTUS doesn’t leak, Jack Goldsmith says, because it doesn’t bring the same political leverage that leaking does for Executive branch employees.

The justices benefit from the reality and mystique of secrecy, and gain nothing from a leak. A justice can frame a case to the public in a written opinion and wins no internal leverage (and likely loses some) from disclosing the disposition of a case prematurely.

[snip]

Emboldened lower level officials become disrespectful of the secrecy system and sometimes disclose classified information to spin an operation in their favor, to settle a bureaucratic score, or to appear important.

Whether or not Jim DeMint learned how the Court voted some time ago, if it’s true Roberts flipped his vote, then it seems likely the other conservatives–the ones serving an even uglier partisan ideology than Roberts’ raw corporatism–believe they benefit from making that known now, after the fact.

They delivered their side of the bargain, the clues in the dissent show. And they seem to want that known.

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The SCOTUS Healthcare Decision Cometh

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[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!

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