Reflecting on a Decade of ACA Litigation

|

In the Author's Note to my second book, Unraveled (2016), I wrote "By fate or design, my young career has tracked the trajectory of the Affordable Care Act." Four years later, that trajectory has stayed the course. Since I graduated law school in 2009, and started teaching in 2012, debates about the legality of Obamacare have persisted. Indeed, I am now working on a third book to complete the ACA trilogy. Yet, California v. Texas is different. After nearly a decade, the law has woven itself into the fabric of our polity. Most of the staunchest critics of the law have abandoned any efforts to "repeal and replace" the statute. Now, reforms take the ACA's planks as a starting point.

California v. Texas will signal the high-water mark of Obamacare litigation. Not a single Republican member of Congress filed an amicus brief in support of the challenge. Virtually every conservative rejects the notion that the Supreme Court should declare the ACA unconstitutional in its entirety. Perhaps these politicians are persuaded by the legal arguments in defense of the law's constitutionality. I'm not so convinced that legal niceties made the difference. Partisans routinely accept frivolous legal arguments that achieve their policy goal. Rather, I think these politicians recognize the disaster that would result if the Supreme Court were to set aside the ACA. There is a fascinating backstory about the role Texas has played to litigate this case, alongside the federal government. The process was messy. (Stay tuned for the trilogy).

This lack of institutional support doomed the case from the outset. There was no way an argument would move from "off the wall" to "on the wall" if conservatives and liberals alike opposed it. Again, for most non-lawyers, the merits of the argument are secondary. I don't mean that observation as a pejorative. Rather, this dynamic simply describes how legal arguments are used, or are not used by the general public. Most nonlawyers lack the capacity to assess the strength of a legal argument. Instead, they will primarily look to whether that legal argument supports their policy preferences. Or, they may look to whether people they respect advocate, or criticize that position. I've learned this lesson well after nearly a decade of speaking to the press. My "fan mail" looks very different depending on whether my answers tilt left or tilt right.

That history brings me to the oral arguments in California v. Texas. Both the district court and the Fifth Circuit relied heavily on my work. But I've received few plaudits. My position in this case has been an outlier. Scholars on the left and the right have unified. I respect the views of others, including several VC co-bloggers, who have thoughtfully responded to my position. As a general matter, I am not concerned that my views are not widely held. At this point in my career, I am quite used to this status.

Still, I look forward to the argument with some trepidation. No, not because I may be criticized. Those barbs no longer have any effect on me. Rather, I may learn that my longstanding view of NFIB may be wrong. For nearly eight years, I have firmly held an understanding about the holding in NFIB. This view was built on thousands of hours of research, which included interviews with the principal attorneys on both sides of the case. I know so much about how NFIB was litigated that I can't view California v. Texas in a vacuum. Moreover,  I have taught this understanding to thousands of students, and have written books, articles, and Op-Eds about it. I have always viewed this latest challenge differently from others, because I have always viewed the original challenge differently from others. I've stopped trying to explain this history to others, because lines have been firmly drawn.

Maybe my position is right. If so, then my amicus brief would provide the Court with a helpful approach to resolve the dispute. If I'm wrong, then my brief will not be helpful. Truthfully, the only person who can broker that tie is Chief Justice Roberts. And let's be frank. No one really knows what Roberts meant--perhaps not even himself. If you think you know what Roberts really intended, check yourself. NFIB was crafted during a very tumultuous time, when attention to detail was not always possible. It's possible we all misread the Chief. It wouldn't be the first time. At this juncture, I approach the case with enough humility to admit that I may be wrong. I hope others will as well.

It's possible that the Chief will not show his hand during argument. In King v. Burwell, he only asked a few questions. I suspect he may do the same in California v. Texas. And there are so many off-ramps for the Court to punt on this case, that we may never, ever learn how the Chief truly understands his opinion. It is also possible that five other members of the Court decide to write separately and reinterpret, or even deviate from NFIB. Still NFIB would be the riddle of the sphinx.

I will be listening carefully to the arguments, and hope to provide commentary in due course.

NEXT: On the Eve of Argument in California v. Texas

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I support attaching the money to the person, in a health savings account. Everyone gets $4000 deposited a year from birth. Government can provide catastophic coverage, with a $50000 deductible. All money goes into an index fund with no decision allowed. Die healthy at 90, yhe heirs get the $2 million. Patients do their own authentications. Imagine the treatment you get when you walk into a medical office waving a checkbook.

    1. ^^^Has never paid for medical care in his life.^^^

  2. It may be difficult for the Court to find legal basis to do the thing that ought to be done when it ought to be done, but that doesn't mean the Court shouldn't try.

    Shortly after the Christmas Eve Massacre -- 24-Dec-2009 -- during which the Senate passed the Service Members Home Ownership Tax Act, one Senator (DeMint) noted that "The Senate often chooses to sidestep its rules, creating precedents that become loopholes in the rules, which bind the Parliamentarian in the future. We should be careful to avoid these situations because we can unwittingly trample on the right of the minority." The Senator was correct (in both the narrowest and broadest senses) and the divisiveness sanctioned by the Obama/Pelosi 111th Congress has endured even though the individual health tax imposed by the PPACA has not. Perhaps it is time for the Court to avulse the Band-Aid® thereby forcing the issue into the hands of a Congress which must at this time by necessity respond in a manner more responsive to a broader base of America.

    But how? What argument best wriggles its way through the various hoops to arrive at the conclusion truly reflecting the views of the silent supermajority of Americans? How does the Court best dispense with an “indecisive” “web of legal rules” in favor of a “constitutional doctrine” acceptable to the masses, even if such doctrine is “filled with winks, and nods, and knowing glances”?

    I'll listen to the arguments with an open mind.

  3. for most non-lawyers, the merits of the argument are secondary. I don't mean that observation as a pejorative. Rather, this dynamic simply describes how legal arguments are used, or are not used by the general public. Most nonlawyers lack the capacity to assess the strength of a legal argument. Instead, they will primarily look to whether that legal argument supports their policy preferences.

    No lawyer would ever do that, of course.

    1. Blackman is nothing if not policy preference.

  4. This post would be much better if instead of the author congratulating and praising and feeling sorry for himself,

    "That history brings me to the oral arguments in California v. Texas. Both the district court and the Fifth Circuit relied heavily on my work. But I've received few plaudits."

    he produced a succinct statement of his position and why it was correct and how he expected it to be supported or attacked in the oral arguments. One of the great features of this forum is its analysis and intelligent writing by those legal scholars who post and who also do not use the platform for their own personal grievances.

    As for why he has received so few plaudits, maybe, just maybe it's because Cal. v. Texas was so wrongly and poorly decided at the district and circuit levels.

    Once again, as with the same sex marriage case, the conservatives need the Court to save them politically from having their very unpopular policy positions become law. And while the Court may pull their bacon out of the fire on ACA, it looks like their luck will run out on abortion rights, and they suffer the political backlash when the Court overturns Roe.

    1. Partisans routinely accept frivolous legal arguments that achieve their policy goal.

      Indeed they do. And there are few better examples than the plaintiffs' arguments here.

      Look. This case is a joke. The time and effort devoted to bringing it, hearing it, discussing it, is just amazing.

      Maybe the court will finally put a stake through the heart of ACA litigation.

    2. My browser says Josh used the word "I" 22 times in the post.

      1. Heh. I had started counting manually, but stopped at 15.

  5. Hey, Blackman -- I know this 'save the country from communism' ACA litigation is important (to you), but the Trump campaign urgently needs you to stand up for America.

    The Trump campaign is looking for lawyers -- by tweeting 'hey, anybody know an election lawyer willing to be associated with us?' -- and, let's face it, the number of actual lawyers (looking at you, Phill Kline) willing to be associated with Trump is dwindling.

    Bush had three future Supreme Court justices, a former Secretary of the Treasury, a former Secretary of State, and scores of big-firm lawyers on his Florida recount legal team.

    Trump has Rudy Giuliani, Pam Bondi, Corey Lewandowski, Phill Kline, and whomever a Republican member of Congress can wrangle with a tweet begging anyone and everyone to suggest lawyers willing to board the Trump legal train.

    Your civic duty calls, Prof. Blackman. How could someone whose life is devoted to lost causes abandon Donald Trump now?

    1. Is tilting at these particular windmills the career step Blackman needs?

      1. Taunting this guy with the Never Getting Out Of South Texas Blues?

        That's cold.

    2. Good suggestion, but get paid in advance.

  6. I think the bigger problem is that conservatives have no idea anymore what they want healthcare to look at. They've basically abandoned free market principles. It's just tribal fighting at this point to no real purpose.

    I know what i want an endgame on healthcare to look like - less government direct involvement in health care, no 'private' insurance-negotiated prices, more insurance competition, ability to switch insurance even with chronic conditions without catastrophic premiums (ie, you're paying today for the possibility you may develop a chronic condition - and that should count for you after you develop a condition and you switch insurance providers). But I'm not totally sure how you *get there* from here. Republicans are now useless on healthcare, and democrats want the antithesis. Whatever happens, we're doomed to terrible federally managed health care markets of some sort.

    1. Single-payer health care is inevitable -- if only because its opponents are such deplorable losers.

      I continue to hope that America's federal universal health care program is formally named Obamacare. The idea that cranky old bigots must say Obama's name to get medical treatment is comforting.

      1. And while we're at it, lets rename Washington DC to Obamagrad

        1. First we name First Street for Ruth Bader Ginsburg.

          You know it's coming, clingers.

          You know you can't stop it.

          Your bigotry, and failure in the culture war, will continue to have consequences.

          1. Why name a street after a woman who was too scared to hire any Black law clerks?

        2. Agreed! And exile him to Trumpistan.

    2. Well, that's not a bad post. I don't necessarily agree with your solution, but you correctly identify the problem.

      For whatever many faults the Democrats have when it comes to health care (and they are manifold and manifest), they are attempting to craft a solution and look to other western countries for ways to implement their solutions; some are incremental, building on what we currently have, some are not.

      The GOP, on the other hand, merely opposes. Given that they can no longer even credibly assert solutions that involve incrementalism (such as, ahem, Romneycare-type solutions, that the ACA implemented), they are left with simple opposing without offering a meaningful alternative. Sure, there are occasional mouth-sounds that resemble a plan, "Let's do something with tax incentives! Let's have insurance carriers compete across state lines! Let's have people self-fund HSA more!"

      You proffer some ideas about moving toward a more free-market alternative. But that would be anathema at the ballot box. Between the entrenched interests as well as the reliance on various popular forms of government-involved health care (from employer health care subsidies, to medicare/medicaid, to VA benefits, and so on) there does not seem to be any reasonable way to, as you note, get there. More importantly, no one seems interested in the GOP in even articulating that sort of path (perhaps because they realize it would be electoral suicide).

      Which means that the serious discussions regarding health care are, for the most part, ceded to one party.

      1. loki13 : The GOP, on the other hand, merely opposes

        Let's be fair here : Trump still has 71 days to finally release his plan.

      2. "For whatever many faults the Democrats have when it comes to health care (and they are manifold and manifest), they are attempting to craft a solution"

        The main challenge there being that they're trying to craft a solution for people who believe (with white-hot passion) that government can NEVER present a solution to a problem.

    3. more insurance competition, ability to switch insurance even with chronic conditions without catastrophic premiums (ie, you’re paying today for the possibility you may develop a chronic condition – and that should count for you after you develop a condition and you switch insurance providers).

      The problem here is that you're paying the wrong insurance company.

      Say you buy an inexpensive policy, with not-so great benefits, from X. Then you get sick - diabetes, say, or even cancer, and want to switch to Y's Cadillac plan. You've been paying X for the option, but now exercise it against Y.

      What's your solution, because if there isn't one there won't be any Cadillac plans.

      1. Should there be cadillac plans?

        It would seem reasonable that a company can limit people with pre-existing conditions to plans no more extensive than the ones they are leaving behind at their previous insurer, or properly scale the policy cost for the difference in coverage, or similar.

        Ideally neither consumers nor insurance companies should get taken advantage of.

        1. That might help, but what about the person who just wants to shift to a better plan because they are newly able to afford it and decide it would be prudent?

          ISTM there would be an awful lot of people in their 30's or 40's in that position. They've advanced in their careers, and are starting to think a bit about physical frailties. Maybe a friend has had problems, or whatever.

          Looks complex to me.

    4. The big problem for Republicans is that many of the ideas that they had to make a system that look more like what you want are already incorporated in Obamacare, which is an attempt to build on the private insurance model while addressing some of the problems with it. Unfortunately, the partisan reaction of trying to stop Obama from doing anything useful has forced a generation of Republicans to line up against the only really feasible model that anyone has been able to articulate for a market-driven health care framework.

      Having said that, you might be overall pretty pleased with the models of, e.g., Germany or Switzerland. These models still make extensive use of private insurance and private health care providers, and solve for problems like preexisting conditions. They feature government-imposed price controls on health care services and individual mandates to buy insurance. Alternatively, Singapore mostly cuts out the insurance aspect entirely, but has a LOT of government-run insurance and also extensive price controls.

      1. Ugh. Singapore has a lot of government-run health care services (actually providing care), not insurance. One day this site will have an edit function.

        1. My idea was we all boycott partisan strife - wild-eyed liberals & zombie undead conservatives alike - until management caves to our demands and gives us an edit function. A few days of tumbleweeds rolling thru an empty comments section & the Man will realize he can't push us around. my only worry is they'd bring in scab commentators.....

      2. I'm not sure you understand what I want. I want more free markets, not government commands and price controls.

        We screwed up health care as far back as WW2, by encouraging health care coverage to be primarily provided by employers. That was a mistake. We made several other mistake along the way, including banning formerly popular healthcare practices like subscription services (you pay a subscription for the year, and all your healthcare was covered by that provider network) at the behest of the AMA. And a whole bunch of other federal regulations, such as pushing certificate of need laws on states in the 70s.

        And its not like we haven't continued to compound on our stupidity on healthcare, like current Democrat opposition to over-the-counter birth control (because over-the-counter medication isn't covered by insurance).

        It's certainly true the current system has very little competition, but the answer isn't less competition and more government control. The reason healthcare costs keep rising faster than inflation is *because there's no real competition*. More government only makes it worse. The only way to bring prices down is less government and more competition (not to mention raise quality).

        The data is pretty clear - the more heavily regulated an economic sector is, the faster prices go up.

        1. Government 'managed' healthcare is as much of a disaster as centrally 'managed' economies, and for the same reasons.

          And price controls always cause shortages. Always. It's pretty much an iron law of economics.

          1. So Squirreloid, describe the world in your alternative? When you get sick, what happens?

            I agree with your diagnosis (too moch government regulation, too much federal involvement, not enough free market, not enough competition), but what is the prescription?

            This is where I have struggled. Is an HSA structure preferable? A Swiss style system? No one on Team R has really articulated a clear alternative path.

            1. Ideally its like home insurance. A storm damages your roof, you get an estimate from a roofer, and only then do you talk to your insurance. Your insurance isn't privately talking to the roofer without your knowledge and negotiating a private price.

              So hospitals and doctors should have clearly advertised prices for procedures, services, and so on. You can shop around based on price, credentials, bed side manner, whatever you like, and then you submit the bill to insurance. (Choosing cheaper doctors should mean insurance covers a higher percentage. Choosing better quality may mean you're paying more out of pocket - but that's your decision to make).

              In an ideal world, the medical provider rarely talks directly to insurance. It goes through you, the consumer and policy holder.

              I mean, there's certainly a lot of fiddly details (how do unexpected complications get dealt with), but they've already worked this out for home insurance, which can also have unexpected complications. (How much internal damage did that damaged roof cause when it rained?)

              1. Also, this means no provider networks for standard insurance. Consumer always chooses the provider, insurance responds directly to consumer. Prices are public and don't depend on insurance. Therefore, insurance has no reason to prefer particular networks.

                Alternatives to the insurance model are also fine, like the aforementioned subscription model. Basically anything that can compete in a relatively unregulated market. A big thing to emphasize here is *no private prices allowed*.

                And it should probably be emphasized that insurance is *hedging against risk*, not just a fancy way to pay for something. Routine care should not be paid for by insurance at all.

                1. This is basically the Singapore system, other than the fact that the government sets the public prices and provides most of the healthcare. But consumers choose their doctors and decide what services they want, generally without any intermediation by insurance companies at all. The Singapore system generally gets good marks for efficiency and a lot of conservatives use it as an example of a market-driven system since consumers are responsible for most of the decisions about health care consumption, but the history of its health care system demonstrates that reliance on pure market principles doesn't necessarily lower prices or result in better care:

                  https://www.nytimes.com/2017/10/02/upshot/what-makes-singapores-health-care-so-cheap.html

                  From the article: "Initially, Singapore let hospitals compete more, believing that the free market would bring down costs. But when hospitals competed, they did so by buying new technology, offering expensive services, paying more for doctors, decreasing services to lower-class wards, and focusing more on A-class wards. This led to increased spending."

                  1. If government is setting public prices, there are going to be shortages. That's what price-fixing results in.

                    Free markets do a number of things - one of which is bring costs down *for the same services*. But what Singapore's hospitals seem to have realized is that consumers wanted other things - new services (that happen to cost more), and new technology (which has to be paid for, and thus costs more). But now you're not comparing apples to apples for a price comparison - prices went up, but the services changed. When the government stepped in, it was to actively deny consumers what they wanted. That's not a positive result.

                    And I'm guessing they didn't let the experiment run long enough. The cost of technology comes down. New services become cheaper over time. Meanwhile, the quality of care has gone up.

                    As far as 'lower-class wards', if it's not profitable to service an area (seems unlikely in the US since the continuation of medicare is probably inevitable, but), that's where charity hospitals can enter the picture. Meanwhile in this country, certificate of need and other anti-competitive practices are used to protect monopoly status of existing hospitals in areas - denying competitors and even charity hospitals the ability to start new medical centers. If its worth protecting a monopoly in an area where a charity hospital wants to operate, its doubtful we'd see significant retreat of hospitals from poorer areas.

                    Also, I'll grant Singapore's system would probably be an improvement over our status quo. (It's really not hard to be better than our status quo). But I doubt American politicians could resist the temptation to regulate more and more and more. Singapore's real success story may be due more to politicians relative restraint, something US politicians don't have.

        2. Ah, but this is actually my whole point: even the most market-driven alternative models always include a healthy dose of government control. That can be full-scale government control as in Canada or the UK, or it can be government price regulation as in Germany and Switzerland, but there's simply no model that achieves goals like "ability to switch insurance even with chronic conditions without catastrophic premiums" without government intervention in the marketplace. The reason you can articulate a list of desires but not any way to get there is because it's impossible, just like I could say "I would like to eat 20 slices of cake a day, not exercise, and lose weight" but inevitably be disappointed that no one can provide me with a diet plan that actually achieves my goals.

          By the way, this: "And its not like we haven’t continued to compound on our stupidity on healthcare, like current Democrat opposition to over-the-counter birth control (because over-the-counter medication isn’t covered by insurance)." is a load of malarkey. The only Democratic "opposition" to the attempt to make birth control over the counter was a complementary attempt to extend insurance coverage to OTC birth control.

          1. Or maybe the way to deal with chronic conditions is to just decide they aren't insurable after they happen (because remember, insurance is supposed to be hedging against risk), so they don't need to be covered anew.

            Instead, when you get diagnosed with a chronic condition, your current insurance creates a trust to pay for your ongoing treatment, and that trust is then portable.

            (Surely insurance must be pricing in the possibility of chronic conditions, because if someone develops one and doesn't switch insurance companies, they'd be on the hook anyway).

            I mean, the bare fact of the matter is that known ongoing costs need to be paid for, which is why routine care isn't really insurable, even if insurance covers it. You're still paying for that care, you just now have to pay the salaries of middle men to create the illusion that someone else pays for it.

            If the market was allowed to innovate, I'm sure someone somewhere would find a solution that worked. Clearly this is a desirable service. Chronic conditions are increasingly common. Innovation, however, requires less regulation, because regulation makes you do things that you were already doing before.

            1. "If the market was allowed to innovate, I’m sure someone somewhere would find a solution that worked. Clearly this is a desirable service."

              The market worked by ignoring them, and leaving them to the government to handle. Government handled some of them, and some of them died of their illnesses, and the market didn't care one from the other.

              As bad as it seems to have some faceless government bureaucrat making decisions about what healthcare is available, having a privately-employed bureaucrat with a profit incentive to deny care to YOU is not an improvement.

        3. " We made several other mistake along the way, including banning formerly popular healthcare practices like subscription services (you pay a subscription for the year, and all your healthcare was covered by that provider network) at the behest of the AMA."

          Did nobody remember to tell Kaiser Permanente that HMOs were banned? They seem to be still operating (with some popularity among the subscribers.)

  7. “ Virtually every conservative rejects the notion that the Supreme Court should declare the ACA unconstitutional in its entirety.”

    What the actual hell are you talking about? You’re not “conservative”? Multiple gop state AG’s aren’t conservatives? The gop senate and House members aren’t conservative? Half this board and 40% of the country aren’t conservative?

    Who exactly does Top Legal Ego Josh Blackman believe is driving the now ten year effort to tear up the ACA root and branch?

    Wait... is this an ANTIFACOMMUNISTSBLM false flag effort to make conservatives look bad?

    1. “ Virtually every conservative rejects the notion that the Supreme Court should declare the ACA unconstitutional in its entirety.”

      I believe it's a reference to THIS legal challenge.

      This particular legal challenge was not viewed in a positive light by, well, almost everyone. For a multitude of reasons (I'd start with standing and severability), it was viewed more as a partisan PR ploy.

      That doesn't mean that conservatives had to believe, or did believe, that the original ACA challenge was incorrect.

  8. Just think, what if Obama and the Dems had decided not to meddle with the health care of everyone in America? What if they had designed a program simply to help the few percent that actually ended up benefiting (at everyone else's expense)?

    1. Gee. It looks like they left a giant opening for the Republicans to do that.

      Just think. What if they had done that? Or even beaten Obama to the punch by doing it during the Bush administration?

      Would have been quite an accomplishment to point to, wouldn't it?

      But there's one thing we know about the Republican attitude towards helping those who need it, which is that they don't give a shit.

      1. I will point out that the first US president to call for national health care was a Republican -- Teddy Roosevelt, over a century ago.

        And that Nixon supported it. In fact, it nearly passed during his term, but unfortunately he and Ted Kennedy couldn't agree on the details.

        Once upon a time, Republicans actually cared about making this country a better place

        1. Even before TR, President Madison signed into law a provision making a health care service (smallpox vaccination) available to all Americans with no co-pays, deductibles, or other charges.

        2. "I will point out that the first US president to call for national health care was a Republican — Teddy Roosevelt, over a century ago."

          Teddy Roosevelt would be driven out of the modern Republican party in a heartbeat. Why, he actually believed that the government could solve some problems, of all things. No way that would fly with the modern conservative movement.

          1. AND he wanted to preserve natural places rather than developing them for private profit.

    2. Millions of people, Ben.

      1. The number of uninsured people rose to 46.5 million between 2008 & 2010 during the economic recession. As early provisions of the ACA went into effect in 2010, the number of uninsured began to drop, hitting 44.4 million in 2013. As major ACA coverage provisions went into effect, the number of uninsured continued to fall dramatically to 26.7 million by 2016.

        Overall, nearly 20 million more people had coverage in 2016 than before the ACA was passed.

        1. It's almost as if passing a law requiring people to do something, results in a lot of people doing it.

          Sure more people had insurance, but many were financially much worse off for having to buy it after the ACA drove prices up

          1. "It’s almost as if passing a law requiring people to do something, results in a lot of people doing it."

            If you actually make it possible, sure.
            Pass a law requiring people to fly and be bulletproof, and see how many Supermen you get.
            When the Republicans started messing with ACA, all of a sudden the plan I was on, acquired through the government healthcare exchange, was suddenly "no longer offered" and as a result my hospitalization the following year was uninsured and I'm still paying for it.

        2. That is all? 20MM? We blew all that money for just 20MM people? We could have paid cash the the HCPs and it would have been cheaper.

          PPACA was a legislative abomination. Hopefully, SCOTUS will send it right back to Congress to fix it. Because that is who should fix it = Congress.

          1. Total US spending on healthcare increased from 17.4% of GDP to 17.7% of GDP from 2010 to 2018, so that's a 1.7% increase in cost to increase cover ~6% more of the population, and this ignores the fact that health care costs were already exceeding the rate of GDP growth prior to the ACA.

            So overall, seems like it was actually pretty efficient in expanding coverage?

      2. "Millions of people, Ben."

        Yeah, but some of them are Black.

        And some are women.

        And some are gay.

        And some are brown.

        And some have college degrees, marketable skills, and "elite" standard English.

        How many real Americans are really left for conservatives to care about?

        1. I left out Muslims.

          And liberal Jews.

          And people who don't believe in fairy tales.

          And people who make fun of QAnon.

          Sorry, real Americans!

        1. I note that you've decided to leave out the magnitude of harm.

          And the harm involved in maintaining the status quo ante, which had no shortage of both governments and giant corporations meddling in health care already there!

          Your analysis is not anything more than ideology and hostility.

          1. The status quo ante was also a problem. That doesn't make Obamacare a good solution.

            If you like your rapidly accelerating health care costs, i suppose you can keep them. I know i've seen my health insurance costs increase more post-obamacare (more than doubled) than pre-obamacare (when they were basically flat for a decent number of years).

            At some point, uninsured numbers are going to skyrocket because people can't afford insurance.

            1. The threshold is merely better solution. Ben is arguing against that. If you can call it an argument.

              I don't think the demand cycle of health care makes it a good fit for market solutions.

            2. " I know i’ve seen my health insurance costs increase more post-obamacare (more than doubled) than pre-obamacare (when they were basically flat for a decent number of years)."

              Odd observation, in that healthcare costs (and therefore healthcare insurance costs) had double-digit inflation pre-ACA. Since the ACA didn't do anything to reduce costs, but rather just rearranged the accounting for them, the fact that ACA didn't curtail costs wouldn't come as a surprise.

      3. It's always the same argument:

        We are going to lie to everyone and hurt a lot of people intentionally. But we crafted this spreadsheet and when you add up all the people harmed and all the people helped, the number comes out positive. So we're the good guys for doing this to everyone, even with all the people we hurt.

        And then the spreadsheet projections turn out wrong. But the people harmed can be hand-waived away — they're not like us so forget about them.

        That was a long time ago, of course. Dems have since given up on even talking about helping anyone. Now they talk about blacklists and getting revenge for distant past racial grievances and about how there’s a bogeyman (QAnon! Run!) around every corner. And if the bogeyman doesn't get you, it's doomsday anyway because white people drive cars and use plastic straws.

        1. Ben_ : "..about how there’s a bogeyman (QAnon! Run!) around every corner"

          Says the same Ben who is claiming (just a few threads away) that this election was rigged by a vast amorphic conspiracy without organization, leaders or funding. Per Ben, this election fraud simultaneously appeared in a dozen states and spontaneously stole tens of thousands of votes without any organization. Per Ben, the fact there's no trance of this massive criminal effort means nothing; only a full-blown investigation can expose the fraud he "senses".

          So, yeah : Ben has no right to lecture Democrats on freak beliefs.

          His entire head is stuffed full of 'em.

          1. False. I made no such claim. You are a liar.

        2. Yeah, you got the argument exactly spot-on.

          It's the left that dehumanizes people, via a 1960s stereotype of a bureaucrat.

          1. You know it‘s a (perhaps exaggerated) depiction of the truth.

            Same argument with the border:

            Some Americans with troubles are trying to take the first step on the employment ladder toward independence and long-term gainful employment. But we're going to open the borders so those entry level jobs can be filled with foreign nationals. We know it will lead to long-term unemployment for some of the most vulnerable Americans. But this GDP number on the bottom of the spreadsheet is positive. So vulnerable Americans lose. We’re the good guys and everyone who disagrees is a monster.

            1. If you favor severe restrictions on liberty and making the country and most people in it poorer and worse off, just because a small number of people are whining, well, "monster" is a bit strong but you're certainly not the good guys. And not conservatives.

              1. Hire unemployed Americans instead of foreign nationals for entry-level and low-skill work is a "severe restriction on liberty"?

                1. "Hire unemployed Americans instead of foreign nationals for entry-level and low-skill work is a “severe restriction on liberty”?"

                  Put children in cages to discourage illegal immigrants from staying in this country certainly is a "severe restriction on liberty".

          2. Most criticism of bureaucrats comes from people who don't understand bureaucracy, either how it works or how it is supposed to work, when there is a difference between the two.

    3. "Just think, what if Obama and the Dems had decided not to meddle with the health care of everyone in America? What if they had designed a program simply to help the few percent that actually ended up benefiting (at everyone else’s expense)?"

      Just think, what if the Republicans had actually spent the years since the passage of the ACA to develop their own plan that was better? They would have had it ready to go as soon as they manged to control the House, the Senate, and the Presidency...it could have been signed on Day One!

      ... but they don't have a better plan, which became embarrassingly clear in 2017. and 2018, 2019, and 2020. Unless you consider "just hope sickness goes away by itself" to be a better healthcare plan, as Republicans do.

  9. " Perhaps these politicians are persuaded by the legal arguments in defense of the law's constitutionality."

    Or perhaps they noticed that the law is more popular than they thought it would be, and don't like answering questions about why they want to take away people's healthcare when they campaign for re-election. In some cases, perhaps they've found a way to take credit for parts of the law that are popular with voters.

Please to post comments