COVID-19 & Healthcare

Posted by AzBlueMeanie:

The conservative talking point du jure that has all the right-wing propagandists clutching their pearls and feigning outrage, ranging from the inflamatory Rush Limbaugh to the always lame neoconservative opinion writers at the Washington Post (e.g., Ruth Marcus republished today in the Arizona Daily Star) is that President Obama: (1) threatened the U.S. Supreme Court; (2) threatens the "separation of powers;" and, naturally (3) the former law professor doesn't know constitutional law. (Always diminish him and attack his legitimacy — that is how the right-wing politics of personal destruction works).

First of all, these propagandists of the right-wing noise machine know neither the finer points of constitutional law nor their American history. They are propagandists after all.

Secondly, President Obama merely made the observation that the Supreme Court has traditionally exercised judicial restraint and deference to the legislative acts of Congress.

The quote that has the right-wing propagandists clutching their pearls and feigning outrage is:

I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress…

I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step…

As I said, we are confident this will be over — this will be upheld. I am confident this will be upheld because it should be upheld. And again, that is not just my opinion. That is the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this piece of legislation or my presidency.

Here are just a few of the Rules of Statutory Construction that "Professor" Obama clearly had in mind:

• "When testing the constitutional validity of statutes, courts shall presume the statute to be valid."
• "Every act of the legislature is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable."
• "When the constitutionality of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge. All laws are presumed to be constitutional and this presumption is one of the strongest known to the law."

There is a strong historical comparison to the hostility President Obama faces from the "Felonious Five" conservative judicial activists of this Supreme Court to the conservative judicial activist Supreme Court that existed in President Franklin Roosevelt's first term. Andrew Cohen, a contributing editor at The Atlantic and a legal analyst for 60 Minutes, makes the case in an analysis at The Atlantic, For Barack Obama, Law Professor, the Time to Lecture Is Now (excerpts):

When President Obama on Monday (and again on Tuesday) offered his own legal analysis, when he accurately identified the hypocrisy the health-care law's defeat would reveal about "judicial activism," he raised for renewed public consideration the question of what a president should or should not say while a Court case is pending.

* * *

In this context, and especially compared with the past, what President Obama said was a virtual mash note to the justices.

Posted by AzBlueMeanie:

Arizona Public Media is failing its viewers by interviewing guests who do not know the subject matter on which they speak and simply repeat political talking points aimed at low information voters who know even less about the subject matter than they do. In what way does this fulfill public media's supposed role of better informing the public?

Case in point, the Political Roundtable on Arizona Illustrated on Friday night invited Republican strategist Sam Stone to talk about health-care politics in Arizona, among other topics. I am told Mr. Stone is GOP congressional candidate Martha McSally's campaign manager, a fact not disclosed in the introductions.

For this example I will focus just on the Affordable Care Act topic. Political Roundtable: Health Care, Street Troubles, Bus Fares, Contraception Legislation & More.

Mr. Stone asserted that "right from the start this legislation did nothing to address the problem of rising health care costs in our system." Really? Bending the health care cost curve is primarily what the ACA addresses. Peter Orszag and Ezekiel Emanuel wrote at the New England Journal of Medicine, Health Care Reform and Cost Control — NEJM:

In fact, it institutes myriad elements that experts have long advocated as the foundation for effective cost control. More important is how the legislation approaches this goal. The ACA does not establish a rigid bureaucratic structure to be changed only episodically through arduous legislative action. Rather, it establishes dynamic and flexible structures that can develop and institute policies that respond in real time to changes in the system in order to improve quality and restrain unnecessary cost growth.

The article goes on to address the various cost containment programs. In addition, the Congressional Budget Office:

(CBO) determined that the ACA will reduce the federal budget deficit by more than $100 billion over the first decade and by more than $1 trillion between 2020 and 2030. And the Commonwealth Fund recently projected that expenditures for the whole health care system will be reduced by nearly $600 billion in the first decade.

In fact, the Commonwealth Fund's most recent study (January 2012) is projecting lower health spending over the rest of the decade. Bending the Health Care Cost Curve – The Commonwealth Fund:

CMS's estimates of health care spending through the end of the decade have been steadily falling over the last year and a half. As shown in Exhibit 1, the most recent projection of national health spending in 2020 is $4.6 trillion, or 19.8 percent of gross domestic product (GDP), compared with its projection of $4.9 trillion, or 21.1 percent of GDP, in 2009 in the absence of reform. This represents a $275 billion (5.6 percent) reduction for 2020, compared with pre-reform estimates. Moreover, that projection represents a cumulative reduction of $1.7 trillion over the 10 years from 2011 to 2020.

This reduction in projected national health spending is particularly important because the pre-reform projection of health care costs was used by the Congressional Budget Office (CBO) and the CMS Office of the Actuary in estimating the cost and impact of health reform. Already, spending is far below the trajectory projected to result from implementation of the Affordable Care Act. In fact, reduction in utilization of health services and trims in payment rates under the Affordable Care Act more than offset the projected cost of covering the uninsured.

Posted by AzBlueMeanie:

Charles Fried is a professor of law at Harvard University. From 1985 to 1989, he served as President Ronald Reagan’s solicitor general. He specializes in constitutional law and is the author of many books on the subject, including 2004’s “Saying What the Law Is: The Constitution in the Supreme Court.” He also wrote a brief on behalf of 104 law professors arguing that the individual mandate is constitutional.

Professor Fried spoke to Greg Sargent after three days of oral argument on the Affordable Care Act and was highly critical of the conservative activist Justices of the U.S. Supreme Court. How did legal observers and Obamacare backers get it so wrong? – The Plum Line:

[F]ormer Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare.

“I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

Professor Fried earlier gave interviews to Greg Sargent and Ezra Klein of the Washington Post.

Posted by AzBlueMeanie: The "original intent" types always ask, "What would the Founding Fathers have done?" Would the Founding Fathers have supported a federal health care mandate? It turns out, The Founding Fathers loved health care mandates (By Jon Green at Americablog.com): In light of the Supreme Court hearing arguments this week about the constitutionality … Read more

Posted by Bob Lord Hard not to be depressed by the last three days at the Supreme Court. While the tea leaf readers obsess over each question asked and even the inflection of the Justices’ voices, the hard realities remain. First, there’s a reason why attorneys can in good faith argue both sides of a … Read more