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ObamaCare At The Supreme Court, Day Three (Part One): Is The Entire PPACA Doomed?

This morning’s session at the Supreme Court took as its operating assumption the idea that the individual mandate in the Patient Protection And Affordable Care Act is, in fact, unconstitutional. After yesterday’s hearings, the consensus seems to be that this is at least a far more likely outcome than many might have thought it would be so it’s obviously a timely discussion. The question before the court was both simple and complicated, what happens to the PPACA as a whole if the Court finds that the mandate is unconstitutional. There were three positions presented. One argued that the Court would have to strike down the entire law if it found the mandate unconstitutional, this is the position taken by the challengers to the law. Another argued that the Court could carve out those provisions of the law that dealt so intently with the insurance industry that they would be unworkable without the mandate, this is the position the Federal Government is taking. In addition to these to provisions, the Court appointed outside counsel to argue a third option,  that the Court could leave the rest of the law intact, without carve-outs, even if the mandate is declared unconstitutional.

By the time the morning was over, it seemed clear that the Justices were clearly struggling with the issue:

The Supreme Court began the final day of its review of President Obama’s health-care law Wednesday, considering whether all of the law must fall if part of it is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership.

Paul Clement, a former solicitor general representing the 26 states that are challenging the law, argued that if its mandate for people to buy health insurance is declared unconstitutional, the rest of the health-care law must be rejected as well. Congress would never have adopted the law’s other major structural reforms to the health-care system without the individual mandate, he told the justices.

But the justices questioned that logic.

Justice Antonin Scalia brought up one of the last-minute deal sweeteners that drafters of the law threw in to win the crucial vote of Sen. Ben Nelson (D.Neb.) — a concession dubbed “the Cornhusker Kickback.” If the court were to declare the kickback unconstitutional due to a constitutional prescription against “venality,” Scalia posited, to titters in the courtroom, would the justices really have to strike the entire law on the grounds that the law could not have made it through Congress without it?

“That can’t be right,” he said.

The questions came a day after Scalia and other conservative justices expressed deep skepticism about the constitutionality of the individual mandate as they grilled the government’s top lawyer, Solicitor General Donald B. Verrilli Jr., on the provision. On Wednesday, the third and final day of oral arguments in a case that has drawn demonstrators from both sides of the issue, it was the challengers’ lawyer who was put on the defensive .

Clement repeatedly tried to make the case that key insurance regulations, which even the administration agrees would have to be struck along with the mandate, are central to the functioning of the law’s other major features — including the state-run “exchanges,” or marketplaces , that the law establishes so individuals without employer-sponsored insurance can buy plans with government subsidies. Unless such people can be guaranteed acceptance by plans on the exchanges regardless of their health status, the law will fail in its goal of expanding coverage to them, said Clement.

Justice Elena Kagan seemed unconvinced. Exchanges “function perfectly well in Utah without a mandate,” she said. “Is half a loaf better than no loaf?” she added. This “seems like the perfect example.”

Clement replied that it would be better to strike the law than to allow it to “limp along” in a way that was vastly different than what Congress intended.

Justice Ruth Bader Ginsburg then brought up the vast array of provisions in the law that are clearly unrelated to it’s core — the reauthorization of benefits from miners who have suffered from black lung disease, for instance.

“There are so many things in this act that are unquestionably okay,” she said. “Why make Congress redo these?”

But during the court’s questioning of the next speaker, Deputy Solicitor General Edwin S. Kneedler, representing the administration, Scalia seemed to suggest that Ginsburg’s reasoning would open something of a Pandora’s box.

“You really want us to go through these 2,700 pages?” he asked. “Is this not totally unrealistic that we’re going to go through this enormous bill and go through each item one by one” to determine whether Congress would have adopted it in the absence of the mandate?

Chief Justice John G. Roberts Jr. sounded a similar theme when the final speaker came before the court: H. Bartow Farr III, a private attorney appointed by the court to argue in favor of a third option — to strike the individual mandate but leave the rest of the law intact.

Roberts worried that in doing so, the court could put insurance companies at risk of bankruptcy. Would the insurers then have to go to court seeking a remedy of their own? Roberts wanted to know.

Farr’s answer was that they should go to Congress, not the courts. He suggested that Congress should also be granted deference to come up with another way of preserving the ban on discrimination against people with preexisting conditions and other insurance provisions in the absence of a mandate, because these measures were the “crown jewels of the law.” By contrast, the individual mandate was just a “tool” to help achieve them, he said.

Kagan was skeptical. Congress seemed to think the system would “crash and burn” without the individual mandate, she said.

Scalia also questioned how much deference the court would be showing Congress by cutting the heart out of the law and leaving the rest intact. Once the heart is gone, “the statute’s gone,” he said.

By contrast, Justice Stephen G. Breyer warned that the court should “stay out of politics.”

“That’s for Congress, not us,” he concluded.

Of course, one could hardly think of anything more political than the nine members of the Court parsing their way through a 2,700 page law and try to ferret out those parts that can or should be saved and those that cannot. The matter is also further complicated by the fact that Congress did not include a severability clause in the law when it was passed in 2010. This is not necessarily dispositive of the issue, of course. Indeed, the Court in the past has struck down portions of a law without striking down the entire law even in the absence of a severability clause. One could argue that doing so is typically appropriate when dealing with legislation. However, the Court finds itself in a difficult position here for several reasons. For one thing, it’s unclear what Congressional intent would be in the event the mandate is struck down. Would Congress want the Court to uphold the rest of the law, or is the mandate so central to the law as a whole that voiding that portion of the law requires the Court to void the law as a whole? Would the rest of the law even passed without the mandate, for example? More importantly, what legal criteria can the Court use to determine which provisions to save and which to scrap? We can sit here and agree that this portion of the bill or that one is a good idea, but that doesn’t answer the legal question of what standard should be used to make that determination. It would be improper for the Court to sit down an do a policy analysis to decide this issue, or to substitute its own preferences for those of Congress. For that reason alone, the Court may likely have no choice but to strike down the law as a whole if it strikes down the mandate. To attempt to do anything else would be to substitute its judgment for Congress’s when it comes to health care policy, which is not how our system is supposed to work.

Philip Klein, meanwhile, takes note of an exchange between the Government’s attorney and Justice Kennedy, who was at the center of yesterday’s hearing:

Deputy Solicitor General Edwin Kneedler, on behalf of the Obama administration, was arguing that only the ban on pre-existing conditions and cap on the cost of policies should be turned down if the mandate was gone. But interestingly, Justice Anthony Kennedy argued this could be seen as more “extreme” than simply striking down the whole law.

CNN’s Jeffrey Toobin, who had called yesterday’s hearing a train wreck for the Administration, was even more pessimistic today:

CNN Senior Legal Analyst Jeff Toobin: “This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?”

Whitfield: “Oh, my goodness. Okay, so I have got about 20 seconds or so left. How might this impact arguments later on this afternoon, Jeff?”

Toobin: “Well, it’s hard to imagine how things could be going much worse for the Obama Administration, but now they’re going to be dealing with the Medicaid portion, and they may decide to get rid of that as well.”

It strikes me that Toobin is being just a little bit over dramatic here. As I noted above, the subject of this morning’s hearing was limited to the very specific question of what happens to the PPACA if the Court does decide to strike down the mandate. In other words, when the Justices walked into the Courtroom today, they were operating from the assumption that the mandate was being struck down strictly for the purpose of this argument. Trying to draw conclusions about how the Court might rule on the issue it heard yesterday based on the oral argument on a completely separate issue today makes no sense at all. This is what I meant when I referred to the dangers of listening to the post-argument punditry. It may well be that the Court will strike down the mandate, but trying to make a guess about that from what happened in a hearing that was based on the hypothetical question What happens if we strike down the mandate? just make Toobin look ridiculous.

As a counterpoint to Toobin’s contention, here’s what Lyle Denniston wrote about this morning’s argument during the break before the afternoon argument on Medcaid expansion:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.

(…)

The Wednesday morning argument offered the Court three mutually exclusive options: strike down all of the Affordable Care Act along with the mandate (the challengers’ position), strike down only two core changes in the way the health insurance system works (the government position), and strike down nothing but the mandate (the position of a Court-appointed lawyer).   Not one seemed to be especially appealing to members of the Court, and each of the three lawyers who came to the lectern faced tough and often skeptical questioning, from across the bench.

Is it possible that the remedy would dictate the result in a case like this? Denniston is a far more experienced observer of the Court than I am so I’m not going to say he’s wrong. He could be right, but it seems to me that if Kennedy really comes to the conclusion that the mandate is unconstitutional then the fact that making such a choice will require him to embrace a remedy that he doesn’t necessarily like won’t be the thing that will change his mind. It’s certainly not the typical way a Judge operates in my experience.

There will likely be further updates from the in-court observers after the afternoon session ends, and I’ll post anything that seems insightful in an update. At this point, though, it seems like this issue may end up being the biggest point of contention between the Justices rather than the Constitutionality of the mandate. If that’s the case, then we could end up seeing an opinion that is made up of shifting majorities depending on which issue they’re dealing with.

Audio of today’s arguments can be found here. My post regarding Monday’s hearings can be found here. My post on Tuesday’s hearing can be found here. And, I’ve embedded the transcript from today’s hearing below:

National Federation Of Independent Business et al v. Sebelius et al SCOTUS Argument Transcript

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. DRE says:

    Clement repeatedly tried to make the case that key insurance regulations, which even the administration agrees would have to be struck along with the mandate, are central to the functioning of the law’s other major features — including the state-run “exchanges,” or marketplaces , that the law establishes so individuals without employer-sponsored insurance can buy plans with government subsidies. Unless such people can be guaranteed acceptance by plans on the exchanges regardless of their health status, the law will fail in its goal of expanding coverage to them, said Clement.

    Roberts worried that in doing so, the court could put insurance companies at risk of bankruptcy. Would the insurers then have to go to court seeking a remedy of their own? Roberts wanted to know.

    The logic of these arguments contains the limiting principle that should allow Kennedy and Roberts to uphold the mandate. The fact that it is so central to the entire regulatory scheme is what makes it different from the much discussed Broccoli mandate.

    Like or Dislike: Thumb up 4 Thumb down 1

  2. Gromitt Gunn says:

    As I am not a lawyer, I have a question: If the individual mandate in PPACA were to be found unconstitutional, would that also automatically make the mandate portion of the Massachusetts model unconstitutional?

    Like or Dislike: Thumb up 2 Thumb down 0

  3. David M says:

    @Gromitt Gunn: No, the challenge to Obamacare will not affect the Massachusetts mandate.

    Like or Dislike: Thumb up 1 Thumb down 1

  4. Matt says:

    Speaking as a person in healthcare IT and security compliance, somebody, on one side or the other, better have a plan ready in case the law is overturned completely. Billions have already been paid out by the government, and hospitals and providers have spent even more to try and get ready for stages 1 & 2, as dictated my CMS. The bigger problem is widespread misunderstandings between what the ACA did and the HITECH Act (part of the stimulus). The two are joined at the hip, and tearing one part out is going to cause mass confusion as to what is actually required.

    Like or Dislike: Thumb up 6 Thumb down 1

  5. Ben Wolf says:

    A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.

    I find this interesting. Assuming the comment to have some grounding, one could in theory and with deliberation attempt to pass unconstitutional measures by putting them in the center of an untangle-able legislative mess. Just think of all the rights we could destroy!

    Like or Dislike: Thumb up 7 Thumb down 0

  6. Dazedandconfused says:

    Not a lawyer either. However, I found Scalia’s point compelling.

    Is the Supreme Court supposed to parse a rational healthcare system out of those “2,700 pages”? Determine whether or not the mandate is the bell on the handle bars or the front wheel of a tricycle?

    Like or Dislike: Thumb up 2 Thumb down 0

  7. DRE says:

    @Ben Wolf: Just think of all the rights we could destroy!

    Except that no rights are destroyed here. Pretty much everyone agrees that Congress could have expressed the mandate as a tax incentive, functioning identically, and there would be no constitutional issue. If the mandate were to be found unconstitutional due to violation of specified individual rights, then the whole scheme would be unconstitutional regardless. The question here is whether Congress is reaching beyond its constitutional powers.

    Like or Dislike: Thumb up 3 Thumb down 0

  8. DRE says:

    @David M:
    No, the challenge to Obamacare will not affect the Massachusetts mandate.

    This is only correct because the challenge to the mandate’s constitutionality is that congress exceeded it powers, not that it violates a protected individual right. If the court found that the mandate violates a protected individual right, then state law mandates would also have to go.

    Like or Dislike: Thumb up 2 Thumb down 0

  9. Blue Shark says:

    Unfortunately,

    …I have exactly ZERO confidence in this Court’s ability to decide anything along legal and not political grounds.

    Like or Dislike: Thumb up 7 Thumb down 2

  10. Gromitt Gunn says:

    Thanks for the info. Much appreciated.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Ben Wolf says:

    @DRE: It’s an intellectual exercise. I know, not the kind of thing that’s popular around here.

    Like or Dislike: Thumb up 2 Thumb down 0

  12. Ron Beasley says:

    @Blue Shark: I agree but the politics are very complex. Striking down the ACA would be a political plus for Obama and the Democrats. It would deprive the Republicans of an issue and make the Supreme court itself an issue for the Democrats.

    Like or Dislike: Thumb up 4 Thumb down 0

  13. Dazedandconfused says:

    I don’t see how they can strike the mandate and leave the requirement to cover existing conditions. They strike the mandate, and they will have to face the music for gutting the whole thing anyway.

    Like or Dislike: Thumb up 2 Thumb down 0

  14. DRE says:

    @Ben Wolf: I could have sworn I was exercising my intellect…

    Like or Dislike: Thumb up 0 Thumb down 0

  15. the Q says:

    Blue shark hits it perfectly. I was thinking today if this court was sitting during the Brown v. Board of Education or the Miranda v. Arizona, Gideon v. Wainwright or hell, even Marbury v. Madison how different this nation might be – and I mean for the worse.

    The court from 2000 thru the roberts term will be compared

    I like OTB because doug and james are thoughtful conservatives who can argue and articulate their views, however they are fast becoming dinosaurs in their party and will soon need chiropractic assistance as they continually have to tiwist and contort to defend the increasingly idiotic partisans on their side of the aisle.

    Like or Dislike: Thumb up 3 Thumb down 4

  16. Tsar Nicholas says:

    Do we let horses hang around after they break their legs? Of course not. If the individual mandate is gone they should just do the humane thing and put the whole sorry ass excuse of that statute out of its misery.

    Concerning the prospective political effects, in the event the entire law is thrown out, my hypothesis is that it won’t affect Obama one iota in the negative sense and perhaps could have the paradoxical effect of helping him out.

    Many if not most of the people who will be voting for Obama this November wouldn’t know the Supreme Court from Diana Ross and the Supremes, and if you asked them for their opinion about the individual mandate they’d assume you were making some sort of veiled masturbatory reference. If you’re voting for Obama you’ll be voting for Obama come hell or high water.

    On the flip side of that coin, however, there are a lot of spoiled brat conservatives and evangelicals who even under regular circumstances look for reasons not to participate in elections. With Romney as the nominee the whole non-voting conservative miasma will be at fever pitch. If Obamcare is voided in toto that could provide a ready excuse for hundreds of thousands (millions?) of conservatives to sit out the election; the theory, if it can be called that, being that with Obama’s signature law down the toilet he’d be toothless and kowtowed. Of course the 500 other reasons to want Obama out of office (prospective SCOTUS vacancies, the federal agencies, the lower federal courts, the DOJ, foreign policy, etc.) will be lost on those demographic groups.

    Like or Dislike: Thumb up 0 Thumb down 5

  17. the Q says:

    Sentence above should read “The court from 2000 thru the roberts term will be compared to some of the awful Taney and Waite decisions.

    Like or Dislike: Thumb up 4 Thumb down 1

  18. Hugh says:

    I’m puzzled by the argument that if SCOTUS strikes down the ACA it’s good for D’s.

    Won’t the fair argument from R’s be, “The President frittered away years on the ACA when he should have been focused on the economy, he had to bribe senators to vote for the monstrosity, and they jammed the whole thing down our throat while all the while tut-tutting our now-proven argument that the whole thing was un-Constitutional. Now that’s it’s been struck down, we have nothing to show for their hubris.”

    Like or Dislike: Thumb up 3 Thumb down 1

  19. @Ben Wolf:

    I was thinking the same thing. Suppose someone, say, slipped an abortion ban into the Defense budget. Would the court throw up it’s hands and say “well, I guess we must allow it since it would be too hard to go through the entire defense budget and say which items are part of the abortion ban and which aren’t”?

    Like or Dislike: Thumb up 1 Thumb down 0

  20. @the Q:

    hell, even Marbury v. Madison how different this nation might be – and I mean for the worse.

    Except Marbury v. Madison was a political decision as it is. They were faced with a law that the President clearly was violating, but knew the President would imply ignore any order they made to obey the law. The whole “hey, let’s say the law doesn’t actually exist” solution was really just a punt to avoid rendering the court irrelevant.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. David M says:

    @Hugh: Except that people do care about access to health care, and the GOP have nothing. It’s easy to talk about how evil Obamacare is and how it needs repealed, but it’s still more popular than nothing.

    Like or Dislike: Thumb up 4 Thumb down 0

  22. Brummagem Joe says:

    @Hugh:

    I’m sure this would be their line but on the other hand a lot of people are going to find their kids are no longer covered; pre-existing conditions can be grounds for rejection; there are caps on coverage; etc etc. and these things tend to be systemic in that they impact the extended families of all those directly affected. It also going to define the court as having made a clearly political decision and this is without a whole lot of settled commerce clause law that all of a sudden becomes suspect. If ever there was a SCOTUS decision with vast potential for unintended consequences it’s this one.

    Like or Dislike: Thumb up 3 Thumb down 0

  23. anjin-san says:

    somebody, on one side or the other, better have a plan ready in case the law is overturned completely.

    Well, the Republicans have a plan – “Goodnight, and good luck.” Not sure its going to be a winner for them.

    Won’t the fair argument from R’s be, “The President frittered away years on the ACA when he should have been focused on the economy

    If you look at the economy when Obama took office, and the economy today, it’s pretty hard to make a serious argument that the administration has underperformed on the economy. It plays to the Fox News crowd, not so much elsewhere.

    the monstrosity

    Again, it is an effective argument for preaching to the choir, but might not gain much traction beyond that. Turns out that people kind of like the idea of being able to get insurance despite preexisting conditions, and they don’t really like the idea of going bankrupt because of medical bills.

    Like or Dislike: Thumb up 5 Thumb down 0

  24. Dunbar says:

    @Brummagem Joe: As a conservative, I support the Obamacare Health Plan if it covers US citizens only. I believe that any person who goes to a doctor or hospital must have insurance, or enough cash to pay for services. I do not want my money going to pay for someone elses hospital bills.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. Dazedandconfused says:

    @Hugh:

    The Republicans would have to deal with having to come up with something more than “repeal” as a platform on healthcare. Their rhetoric has put them in a corner with few popular options.

    For Obama, the conservative congress and even the Supreme Court itself becomes a campaign issue. “Want us to fix this? Get rid of these guys.”

    Frum outlined the position the Republicans are going to have to run with:

    Our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we’re doing this so as to better protect the government-mandated insurance of people over 65—until we begin to phase out that insurance, too, for everybody now under 55.

    http://www.thedailybeast.com/articles/2012/03/27/after-the-supreme-court-rules.html

    Like or Dislike: Thumb up 2 Thumb down 0

  26. Brummagem Joe says:

    @Dunbar:

    I do not want my money going to pay for someone elses hospital bills.

    This is an entirely selfish view but it pretty well describes what’s happening in the present system. Emergency rooms are compelled to treat anyone who shows up for treatment (hey isn’t that a mandate?)and the cost of those who can’t pay is being picked up by the industry and the rest of us one way or another.

    Like or Dislike: Thumb up 3 Thumb down 0

  27. the Q says:

    Hugh is right….no way this is anything but a huge loss for O.

    However, as a lib who feels this was a flawed bill to begin with (I will be hit with the cadillac tax to the tune of $1400 since my employer believes in a good health plan and I live in LA, CA where this city and state are expensive) this could, in the long run work out for the better as we know health care costs will still be skyrocketing in the short term resulting in more people with out it and the clamor to “fix” it will happen since the brain dead conservative response is of “more private sector choice and deregulation” is was the status quo ante which gave rise to the demand for HC reform to begin with.

    Between the rigid stupidity of Norquist-istas and the corporate complicity of the Dems, maybe its best to blow this up and try anew down the road.

    This time with a single payer/ swiss/ canadian hybrid.

    Like or Dislike: Thumb up 2 Thumb down 0

  28. Tlaloc says:

    Just think, if Obama had simply pushed the massively popular single payer we would never have been afforded this entertaining spectacle.

    Like or Dislike: Thumb up 0 Thumb down 3

  29. Brummagem Joe says:

    @the Q:

    Hugh is right….no way this is anything but a huge loss for O.

    I didn’t say it wasn’t in the short term. But it’s where it goes from there that matters.

    Like or Dislike: Thumb up 0 Thumb down 0

  30. Brummagem Joe says:

    @Tlaloc:

    pushed the massively popular single payer

    Would you like to produce any evidence from a reputable source that a single payer system is massively popular.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. John Burgess says:

    I’ m really loving the battleground preparation! There’s no decision, but already it’s ‘political’. Never mind that it just might be unconstitutional and therefore improper. No, it’s those damned activist judges again.

    Like or Dislike: Thumb up 1 Thumb down 2

  32. the Q says:

    Joe,

    I agree with some of your points (see my post above) about where it goes from here,
    but I doubt the ability of the dems to sell it to the average joe dumbshit.

    Bill Maher said it best on his show that blue collar white guys will see him in small towns when he does his stand up act and ask: (I hope this doesn’t get censored):

    “the republicans are for the rich and democrats are for the niggers…who represents me?”

    And they are in no mood for another round of obama and reid sticking unconstitutional socialist mandates down their throat.

    Like or Dislike: Thumb up 1 Thumb down 0

  33. the Q says:

    Joe,

    I agree with some of your points (see my post above) about where it goes from here,
    but I doubt the ability of the dems to sell it to the average joe dumbshit.

    Bill Maher said it best on his show that blue collar white guys will see him in small towns when he does his stand up act and ask: (I hope this doesn’t get censored):

    “the republicans are for the rich and democrats are for the nig#$gers…who represents me?”

    And they are in no mood for another round of obama and reid sticking unconstitutional socialist mandates down their throat.

    Like or Dislike: Thumb up 1 Thumb down 1

  34. Dazedandconfused says:

    Single payer has been quite popular in quite a few polls.

    http://pnhp.org/blog/2009/12/09/two-thirds-support-3/

    Averages about 2/3rds in favor in this batch.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. Brummagem Joe says:

    @John Burgess:

    Never mind that it just might be unconstitutional and therefore improper.

    But then a lot of leading jurists including conservatives have found it constitutional. The problem that arises when you overturn longstanding stare decisis jurisprudence is that you’re overturning the accepted rule of law that in this case governs much of the relationship between govt and the public. There’s little doubt that if this is overturned it will constitute a piece of judicial activism in the conservative interest because it’s going to reject over 70 years of precedent going back to the new deal. It’s not as if it being done to correct great wrong (eg. Jim Crow laws) but to overthrow a piece of Democratic legislation. Does this mean that in future only Republican legislation will pass muster with the court? This decision puts the court squarely in the middle of politics. Period.

    Like or Dislike: Thumb up 4 Thumb down 1

  36. Brummagem Joe says:

    @Dazedandconfused:

    Averages about 2/3rds in favor in this batch.

    You should read your own links. Much of the comment is devoted to the fact polling doesn’t support single payer per se but either Medicare or only when questions are supported by links to the UK etc. If this overwhelming support for single payer exists why didn’t the administration opt for it? No conspiracy theories please.

    Like or Dislike: Thumb up 0 Thumb down 0

  37. Dazedandconfused says:

    @Brummagem Joe:

    Looks like pretty clear majority’s to me. Are you quibbling about the term “overwhelming”? You seem very upset.

    Like or Dislike: Thumb up 0 Thumb down 0

  38. Tlaloc says:

    You should read your own links. Much of the comment is devoted to the fact polling doesn’t support single payer per se but either Medicare or only when questions are supported by links to the UK etc.

    That’s not even close to a fair reading of the link, Joe. In fact it’s just about as twisted a take as you could possible put on it without breaking any rhetorical tie to the link at all. In other words yes we know you’re lying through your teeth.

    If this overwhelming support for single payer exists why didn’t the administration opt for it? No conspiracy theories please.

    Because they didn’t want it, it’s just that simple. Far from being a hard left ideologgue Obama is very much a center right politician. Almost the entirety of his political actions in the White House have been in support of previous republican goals, whether on Guantanamo (where he didn’t close the prison despite having ample authority to do so as C-in-C) or health care (where he chose to kill single payer and a public option and push for a plan that’s almost exactly the GOP alternative to “Hillarycare”) or the “War on Terror” (where he’s been happy to continue rendition and torture as official US policy, and stuck to the Bush plan of a surge and then draw down). The few things he’s done that have been progressive he’s had to be dragged kicking and screaming into (support for gay marriage, punishing BP for causing an enormous ecological catastrophe).

    At some point progressives just have to accept: he’s not on our side.

    Like or Dislike: Thumb up 0 Thumb down 2

  39. Dazedandconfused says:

    @Tlaloc:

    That all ignores the reality of Joe Leiberman, Teddy croaking, and Croakley choking.

    Like or Dislike: Thumb up 2 Thumb down 1

  40. David M says:

    @Tlaloc: This is a blatant lie:

    where he chose to kill single payer and a public option

    Why should informed people take you any more seriously than the death panel morons?

    Like or Dislike: Thumb up 3 Thumb down 0

  41. Brummagem Joe says:

    @Dazedandconfused: @Dazedandconfused:

    You seem very upset.

    No just recognizing the fact which the article highlights that there is some ambivalence there. And as the Hillarycare debacle demonstrated single payer (although I agree it’s the best solution) isn’t practical politics

    Tlaloc says:
    Wednesday, March 28, 2012 at 18:31

    Almost the entirety of his political actions in the White House have been in support of previous republican goals, whether on Guantanamo (where he didn’t close the prison despite having ample authority to do so as C-in-C) or health care (where he chose to kill single payer and a public option and push for a plan that’s almost exactly the GOP alternative to “Hillarycare”) or the “War on Terror” (where he’s been happy to continue rendition and torture as official US policy, and stuck to the Bush plan of a surge and then draw down). The few things he’s done that have been progressive he’s had to be dragged kicking and screaming into (support for gay marriage, punishing BP for causing an enormous ecological catastrophe).

    Okay we’ve got it….you were betrayed by Obama

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  42. Brummagem Joe says:

    @Dazedandconfused:

    Looks like pretty clear majority’s to me. Are you quibbling about the term “overwhelming”? You seem very upset.

    A note of clarification. I regard these polls with some scepticism for much the same reason I regard with scepticism polls showing majorities of voters wanting to repeal Obamacare. Then voila when you get into the weeds you actually find substantial majorities for much of the substance except the mandate and even there we find ambivalence.

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  43. Steve V says:

    Yeah, Toobin’s being an idiot about these arguments. Appellate arguments are not sporting events. Sheesh.

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  44. An Interested Party says:

    I was thinking the same thing. Suppose someone, say, slipped an abortion ban into the Defense budget. Would the court throw up it’s hands and say “well, I guess we must allow it since it would be too hard to go through the entire defense budget and say which items are part of the abortion ban and which aren’t”?

    In that case, the court could easily throw out the abortion ban as that would have nothing to do with the Defense budget…but in this case, the individual mandate is an integral part of PPACA…the individual mandate was always controversial and I remember arguments at the time the legislation was being crafted that the mandate shouldn’t of been so closely entangled with the rest of the legislation…wouldn’t it be incredibly ironic if that entanglement ended up saving PPACA from being overturned by this court…

    I do not want my money going to pay for someone elses hospital bills.

    Psst, here’s a little hint, your money has always served that purpose and always will, as long as you are part of an insurance pool and as long as you pay Medicare taxes…

    Just think, if Obama had simply pushed the massively popular single payer we would never have been afforded this entertaining spectacle.

    Oh really? And which 60 votes would that have gotten in the Senate?

    Never mind that it just might be unconstitutional and therefore improper. No, it’s those damned activist judges again.

    Indeed, when five people can simply decide what is constitutional and what is not, how can that not be seen as political or the work of activist judges…

    At some point progressives just have to accept: he’s not on our side.

    So people should just vote for hopes and dreams rather than what is politically possible? I guess that’s how we ended up with presidents like Eugene McCarthy and Ralph Nader…

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  45. WR says:

    @John Burgess: ” No, it’s those damned activist judges again. :

    They are not “activist judges.” They are whores.

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  46. Dazedandconfused says:

    @Steve V:

    I suspect he was “caught in the moment”.

    I would guess he was expecting a “Super Bowl” of an argument from the government side. Expecting Tom Brady, imagine his shock when he got Tim Tebow.

    I’m speculating that the government being unprepared for even the “broccoli” argument blew his mind a bit.

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  47. Tlaloc says:

    @Tlaloc: This is a blatant lie:

    where he chose to kill single payer and a public option

    Why should informed people take you any more seriously than the death panel morons?

    Right. Why should you believe me. You can simply take Obama at his word:
    http://www.politico.com/blogs/bensmith/0609/Obama_rejects_single_payer.html

    Oh wait Politico must also be liars, right?

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  48. Tlaloc says:

    Oh really? And which 60 votes would that have gotten in the Senate?

    The same 60 that voted for the PPACA as single payer is both more popular and a much easier sell. The PPACA was an ugly sausage of a bill with huge drawbacks and no guarantee it would work, indeed you can make one hell of an argument that by keeping in place for profit insurance and not giving them any meaningful constraints, it was guaranteed not to work. Single payer on the other hand is easy to understand, starts form a position of majority support, has tons of evidence to back it up.

    One of these is easier to sell people on than the other. If the hard one scraped by with 60 votes there’s no conceivable way the easy one gets less.

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  49. Dazedandconfused says:

    @Brummagem Joe:

    The reason Obama and Pelosi didn’t go for the single payer is they were hoping for some bi-partisan support, IIRC.

    Turned out to be a fool’s errand. This was not the same batch of Republicans they were used to. My guess is that going from having both houses and the Presidency to nothing in just two years did a number on them. Too few moderates left. The ones that remained were under siege from their own party. The party had been so suddenly displaced, a strong sense of entitlement to power remained.

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  50. An Interested Party says:

    The same 60 that voted for the PPACA as single payer is both more popular and a much easier sell.

    You really believe that Ben Nelson would have voted for a single-payer plan? Arlen Specter? Evan Bayh? Not to mention the Dem senators from the Dakotas…by the way, I agree with you about single-payer…but I have seen no evidence that the senators listed above would have ever voted for that…

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  51. David M says:

    @Tlaloc: A speech saying how there isn’t a public option is killing it? For Obama to have killed it, along with single payer, you would need to show there were 60 votes for either in the Senate, but Obama was the one that talked them out of it. Not just Obama didn’t use the bully pulpit enough, but that he convinced people to vote against the public option and single payer. Senators that would have supported it absent Obama’s influence and are on record saying Obama convinced them to change their minds and oppose the public option and single payer.

    Oh, you don’t have that kind of evidence? Of course you don’t, as your scenario is as much a lie as the death panels are. People that think the Senate and House wanted to pass a more liberal health care plan but were prevented from doing so by Obama are lunatics.

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  52. An Interested Party says:

    If PPACA is overturned, the Republicans will have to answer some questions

    Republicans will need a Plan B. Unfortunately, they wasted the past three years that might have developed one. If the Supreme Court doesn’t rescue them from themselves, they’ll be heading into this election season arguing, in effect, Our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we’re doing this so as to better protect the government-mandated insurance of people over 65—until we begin to phase out that insurance, too, for everybody now under 55.

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  53. LC says:

    Slightly OT. Conservatives oppose judicial activism: legislating from the bench. So is it JA to strike down a massive piece of law that took almost 2 years to write and pass or to pick and choose which parts to keep or both?

    Why not let the voters decide? Silly question. It’s only JA if Conservatives oppose a ruling.

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  54. KariQ says:

    @LC:

    A bigger issue is that finding the mandate unconstitutional will throw virtually every important law passed in the last 70 years into question, because Congress has relied heavily on the interstate commerce clause. I shudder to think the chaos it would cause if they do so.

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  55. James Joyner says:

    @Dazedandconfused: The power of Congress to issue a wide array of laws and ensuing regulations via the mechanism of the Commerce Clause is not at issue. That’s been settled law since 1937 or so. What’s at issue here is whether Congress can use that power to force citizens to purchase a commercial product–something that it’s never thought to do in its 223 year existence.

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  56. Brummagem Joe says:

    @Dazedandconfused:

    The reason Obama and Pelosi didn’t go for the single payer is they were hoping for some bi-partisan support, IIRC.

    They may or may not have thought they could have attracted some Republican support but the much more important reason was to produce a program that they could get all the members of their own caucuses to support. There was no way all the Dems in the house and senate were going support single payer. It was borderline as it was as An Interested Party points out.

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  57. Brummagem Joe says:

    @David M:

    Oh, you don’t have that kind of evidence? Of course you don’t, as your scenario is as much a lie as the death panels are. People that think the Senate and House wanted to pass a more liberal health care plan but were prevented from doing so by Obama are lunatics.

    Unfortunately tin hat wearing is not the exclusive province of the right although admittedly it is more common.

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  58. Brummagem Joe says:

    @James Joyner:

    What’s at issue here is whether Congress can use that power to force citizens to purchase a commercial product–something that it’s never thought to do in its 223 year existence.

    The so called Broccoli Enforcement theory which is novel but nonsense. Congress has been compelling people to buy retirement healthcare purchase plans since the 60’s. One of Republicans pet schemes is to privatize parts of SS and compel participants to purchase mutual fund investments. In fact, what is at issue is whether congress has the power to regulate a market which it clearly has and whether healthcare constitutes a market which it certainly does since we all use purchased healthcare services from the day we are born to the day we die.

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  59. WR says:

    @James Joyner: “The power of Congress to issue a wide array of laws and ensuing regulations via the mechanism of the Commerce Clause is not at issue. That’s been settled law since 1937 or so.”

    The idea that money in politics could be regulated was settled law. The idea that the second amendment didn’t mean every American had a right to carry a gun wherever he wanted was settled law. I don’t know if you’ve noticed, but the reactionary block on the Supreme Court doesn’t give a damn about settled law. Or anything else. They have a vision of what they want this country to be, and they pass rulings to make it that way, no matter how much that means ignoring decades of settled law.

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  60. al-Ameda says:

    This is an activist conservative court, I believe that ACA id dead.

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  61. DRE says:

    @Brummagem Joe:
    You point out a silver lining that I hadn’t considered. If the court rules the mandate unconstitutional because it’s forcing individuals to purchase a private product, that really ought to end talk of privatizing social security. Because it really makes no sense to say that the commerce power couldn’t possibly grant congress that authority but the taxing power does. Either the “power to force citizens to purchase a commercial product” is an unacceptable government infringement on individual rights or it isn’t. If the taxing power can allow this then it clearly is not an unacceptable infringement. The use of taxing power requires a legitimate governing purpose, and so does the commerce power. That is the real limiting principle to all of the governments powers.

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  62. David M says:

    @DRE: You’re putting more thought into this than necessary. The privatized SS accounts are constitutional because they are a GOP idea, while Obamacare is unconstitutional because it was enacted by Democrats. It’s really not any more complicated than that, because nothing else explains Scalia bringing up ridiculous tea party health care complaints like the “cornhusker kickback” during the questioning.

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  63. Brummagem Joe says:

    @David M:

    because nothing else explains Scalia bringing up ridiculous tea party health care complaints like the “cornhusker kickback” during the questioning.

    Certainly on the face of it Scalia was demonstrating his hackdom. The Broccoli bs is probably going to be the source of law school jokes for the next 100 years.

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  64. Dazedandconfused says:

    @James Joyner:

    Thanks, but I am wondering if your comment was for another poster. I understood that part, and don’t recall making any statements that questioned it.

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  65. DRE says:

    @David M: Put it another way. This whole controversy should warn people off of ever taking conservative arguements in favor of privatizing Social Security seriously.. The idea of a mandate was a conservative response to the idea of public funding for healthcare, but as soon as it is adopted they say it is unconstitutional in order to kill the program entirely. Why should anyone believe that they wouldn’t do the same with social security or medicare?

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  66. DRE says:

    @James Joyner: What’s at issue here is whether Congress can use that power to force citizens to purchase a commercial product–something that it’s never thought to do in its 223 year existence.
    The only reason this is true is that conservatives have never before won the argument about relying on existing private entities to perform an essential public service. Hopefully they never will again.

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  67. Roy says:

    @Gromitt Gunn: Amendment 10 reserves powers not delegated to the federal government (or prohibited to the states) to the states or to the people. A state mandate on that state’s citizens is a separate issue from a federal mandate on all United States citizens. Most states have fashioned their state constitutions to be similar to the U.S. constitution, but the PPACA mandate being declared unconstitutional does not necessarily mean that a similar state mandate is also unconstitutional. I don’t know the specifics of the MA mandate, nor have I read the MA constitution, but it would not surprise me if the MA mandate was in clear violation of the MA constitution. Most (if not all) social engineering programs are clearly unconstitutional, but if people accept them, or don’t protest loudly enough, then they will be implemented and/or expanded regardless of any constitutional issues.

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  68. Tlaloc says:

    You really believe that Ben Nelson would have voted for a single-payer plan? Arlen Specter? Evan Bayh? Not to mention the Dem senators from the Dakotas…by the way, I agree with you about single-payer…but I have seen no evidence that the senators listed above would have ever voted for that…

    Yes you have you have direct evidence of it- they voted for the much harder to justify and hugely unpopular PPACA. Again there’s simply no colorable argument for why they’d vote for the hard unpopular one and not the easy popular one.

    :”A speech saying how there isn’t a public option is killing it? For Obama to have killed it, along with single payer, you would need to show there were 60 votes for either in the Senate, but Obama was the one that talked them out of it.”

    And I’ve done exactly that- there were very clearly 60 gettable votes and realistically probably closer to 65 or so. What there was not was a president pushing for it. That was the ONLY thing missing. The history is right there. The polling is right there.

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  69. Tlaloc says:

    The power of Congress to issue a wide array of laws and ensuing regulations via the mechanism of the Commerce Clause is not at issue. That’s been settled law since 1937 or so.

    I thought so too, and then the supremes started attacking the entire basis of Medicaid. At that point all bets were off. If they can move to find a program that dates back to 1965 to be unconstitutional (as they indeed sounded like they were leaning according to SCOTUSblog) then nothing is safe.

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  70. Tlaloc says:

    People that think the Senate and House wanted to pass a more liberal health care plan but were prevented from doing so by Obama are lunatics.

    Yeah we all know congresspeople hate being associated with popular programs that make constituents happy. Why that’s just crazy talk!

    Seriously your argument is that they managed to get a filibuster proof majority for a program that has never had positive favorables and which cost the dems the largest congressional losses in history in 2010 but there’s no way they could get the same people to vote for a position which in all polling except rasmussen(*snerk*) gets not just a plurality but a majority of support? And all that without single payer having the president pulling for it but instead having him actively sabotage it?

    Occam’s Razor. Learn it. It will help you not make such a huge fool of yourself.

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  71. al-Ameda says:

    @Dazedandconfused:
    “Single payer has been quite popular in quite a few polls.” Single Payer is popular until Republicans tell people it’s socialism.

    In fact, I doubt that we could get Medicare passed today – we’d have Town Hall meetings on a proposed Medicare system, and the various speakers would step forward to denounce the proposed plan variously as marxist, socialist, class warfare, a redistribution of income, and hurting the job creators.

    We’re too dumbed down to even have a sensible discussion of Single Payer.

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  72. Brummagem Joe says:

    @Tlaloc:

    Occam’s Razor. Learn it. It will help you not make such a huge fool of yourself.

    As someone once said of Occam Razor (Einstein I think) we certainly want to look for the simplest explanation for things but not make them simpler than they really are . I’d say the only person making a huge fool of themselves here is you.

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  73. David M says:

    @Tlaloc: “there were very clearly 60 gettable votes and realistically probably closer to 65 or so”

    You win the internets for today. You’re now claiming at least 5 Republican’s would have voted for the public option or single payer if it had only been offered, but Obama talked the Democrats out of it. There are no words for how mind numbingly stupid that is. I have more respect for the idiotic tea baggers claiming the stimulus raised their taxes.

    And Occam’s razor? I wouldn’t have brought that up, as most sane people think the reason that Obamacare didn’t contain a public option or single payer is that there weren’t enough votes, not that there was a massive conspiracy by the Obama Administration to keep them out of the bill.

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  74. Tlaloc says:

    I’d say the only person making a huge fool of themselves here is you.

    Feel free, but since the position you support not only has failed to fix health care and is looking likely to be repealed but may end up costing us Medicaid as well….

    …let’s just say your credibility here as a thoughtful proponent on matters of health care is shaky.

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  75. Tlaloc says:

    You’re now claiming at least 5 Republican’s would have voted for the public option or single payer if it had only been offered, but Obama talked the Democrats out of it. There are no words for how mind numbingly stupid that is.

    I give you direct vidence and your only response is to attack me personally. At least you got one thing right: I have won this argument. Thanks.

    And Occam’s razor? I wouldn’t have brought that up, as most sane people think the reason that Obamacare didn’t contain a public option or single payer is that there weren’t enough votes, not that there was a massive conspiracy by the Obama Administration to keep them out of the bill.

    Really sane people think that? Even though we have direct quotes from Obama saying he didn’t want single payer? Even though we have the LA Times reporting that Obama met with the insurance companies and agreed to kill single payer in return for their support?

    Wait, if you were insane are you sure you;d know it? Cause it seems like your definition of sane is that they agree with you, irregardless of facts and evidence.

    Interesting.

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  76. Tlaloc says:

    Not only did Obama not try for Single Payer he didn’t even try for a Public Option, despite it also being quite popular, much more so than bill he did submit.

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  77. David M says:

    @Tlaloc: Gee, so far you have a link to a speech from Obama pointing out there wasn’t a public option, which was true and nothing more than an observation that water is wet. Now a random assertion of a LA Times article without a link that will prove your outlandish nonsense. No where can you point to a single Senator on record saying they would have voted for the public option or single payer, but Obama convinced them not to, or to be more blunt actual evidence.

    Here’s why it’s a myth.

    I’m not sure if I can simplify this enough for you to get through your ODS, but the Obama Administration recognizing the votes were not there for single payer or the public option is not the same as killing it. For whatever reason, there are a group of clueless people that were disappointed in health care reform and chose to ignore the obvious conservative roadblocks in Congress and focus on an imaginary let down by Obama. They have zero evidence to support their “theory”, but you are a prime example of how dedicated they are to pushing a lie.

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  78. Tlaloc says:

    Sorry my bad, it was the NY Times, not the LA Times, and it was about Obama’s secret meetings to kill the public option (AKA Single Payer lite) rather than Single Payer. Naturally I’m sure he had even secreter meetings in which he was actually pushing Single Payer. Fo’ reals! [1][2]

    Just what does the man have to do to convince you he’s not on your side? He’s made deals Pharma, Hospitals, and Insurance companies while lying to your face and saying he wasn’t (and eventually of course he got caught lying about it). He’s had his chief of staff literally call you “fucking retarded.” He’s broken almost all of the campaign promises he made (make sure to scroll through there’s 4 pages of them). What’s a guy got to do to give you a hint?

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  79. An Interested Party says:

    I’m still wondering in what magical world 60 Democrats would have voted for a single-payer plan…the plan that was passed was a mess but it was also a much more conservative plan which is why it got passed…the public option couldn’t get 60 votes so it’s hard to believe that a single-payer plan would of gotten 60 votes…but hey, trash the President as “not being on the side of progressives”…if enough progressives actually believe that and stay home, I hope they will be happy with President Romney…

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  80. Dazedandconfused says:

    @al-Ameda:

    I very much agree. Same reason we can’t seem to have an intelligent nation discussion about Cuba, I guess.

    Certain interests have managed to effectively play sheep-dog on us in that issue as well.

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  81. David M says:

    @Tlaloc: I’ll assume you don’t even bother to read what you link to:

    Senator Tom Daschle: “…I did not mean to suggest in any way that the President was not committed to [the public option]. The President fought for the public option…The public option was dropped only when it was no longer viable in Congress, not as a result of any deal cut by the White House.

    And the NY Times link doesn’t do a lot of good after I already posted the link to the Plum Line article pointing out how your claim is a myth, and nothing more.

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  82. Brummagem Joe says:

    @Tlaloc:

    Feel free, but since the position you support not only has failed to fix health care and is looking likely to be repealed

    Not only a fool but a fool but a fool with comprehension problems too. In fact I’d have preferred single payer as I said above but unlike you I live in the real world not fantasyland.

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