Federal Judge Rules Affordable Care Act Unconstitutional

U.S. District Judge Reed O'Connor contends that a recent change in tax law unravels the basis for the Supreme Court's upholding of Obamacare.

A bizarre ruling by a Texas judge has people scrambling.

WaPo (“Federal judge in Texas rules entire Obama health-care law is unconstitutional“):

A federal judge in Texas threw a dagger into the Affordable Care Act on Friday night, ruling that the entire health-care law is unconstitutional because of a recent change in federal tax law.

The opinion by U.S. District Judge Reed O’Connor overturns all of the sprawling law nationwide.

The ruling came on the eve of the deadline Saturday for Americans to sign up for coverage in the federal insurance exchange created under the law. If the ruling stands, it would create widespread disruption across the U.S. health-care system — from no-charge preventive services for older Americans on Medicare to the expansion of Medicaid in most states, to the shape of the Indian Health Service — in all, hundreds of provisions in the law that was a prized domestic achievement of President Barack Obama.

President Trump, who has made the dismantling of the ACA a chief goal since his campaign, swiftly tweeted his pleasure at the opinion. “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster!” the president wrote just after 9 p.m. “Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions.”

Later, the White House issued a statement on the ruling, saying: “We expect this ruling will be appealed to the Supreme Court. Pending the appeal process, the law remains in place.”

For their part, congressional Democrats, who defended the law and its protections for people with preexisting medical problems as a major theme leading up to last month’s midterm elections, lambasted the Texas judge and portrayed themselves as champions of American health-care consumers.

House Minority Leader Nancy Pelosi (D-Calif.), who is expected to become speaker next month, issued a statement that said: “When House Democrats take the gavel, the House of Representatives will move swiftly to formally intervene in the appeals process to uphold the life-saving protections for people with pre-existing conditions and reject Republicans’ effort to destroy the Affordable Care Act.”

A spokeswoman for California Attorney General Xavier Becerra (D), who leads a group of states opposing the lawsuit, said that the Democratic defenders of the law are ready to challenge the ruling in the U.S. Court of Appeals for the 5th Circuit.

It was not immediately clear what the legal path will be from here. Technically, O’Connor granted summary judgment to the lawsuit’s plaintiffs — the Texas attorney general, with support from 18 GOP counterparts and a governor. Because the judge did not grant an injunction, as the plaintiffs had asked for, “it’s unclear whether this is a final judgment, whether it’s appealable, whether it can be stayed,” said Timothy Jost, a health-law expert who is a professor emeritus at Washington and Lee University. Jost, an ACA proponent, predicted that a stay would lock in the law during appeals, saying that, otherwise, “it’s breathtaking what [O’Connor]’s doing here on a Friday night after the courts closed.”

Major segments of the health-care industry also decried the ruling. “The judge got it wrong,” said Charles N. “Chip” Kahn III, president of the Federation of American Hospitals. “This ruling would have a devastating impact on the patients we serve and the nation’s health-care system as a whole. . . . Having this decision come in the closing hours of open enrollment also sows seeds of unnecessary confusion.”

“Today’s decision is an unfortunate step backward for our health system that is contrary to overwhelming public sentiment,” said Barbara McAneny, president of the American Medical Association. “No one wants to go back to the days of 20 percent of the population uninsured and fewer patient protections, but this decision will move us in that direction.”

And calling the opinion “misguided and wrong,” America’s Health Insurance Plans, the industry’s main trade group, sought to reassure consumers that their health coverage would remain “strong and stable” while the ruling is appealed.

These reactions are histrionic. Public sentiment and the desirability of the policy really have nothing to do with the matter. If the law is outside the scope of Congress’ Constitutional authority, it is invalid. But, of course, the law has been litigated for years and ruled Constitutional in a controversial opinion written by Chief Justice John Roberts. So, what gives?

The lawsuit was initiated by Texas Attorney General Ken Paxton, who describes himself as a tea party conservative. The plaintiffs argue that the entire ACA is invalid. They trace their argument to the Supreme Court’s 2012 ruling in which Chief Justice John G. Roberts Jr. wrote for the majority that the penalty the law created for Americans who do not carry health insurance is constitutional because Congress “does have the power to impose a tax on those without health insurance.”

As part of a tax overhaul a year ago, congressional Republicans pushed through a change in which that ACA penalty will be eliminated, starting in January. The lawsuit argues that, with the enforcement of the insurance requirement gone, there is no longer a tax so the law no longer is constitutional.

“Once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall,” the lawsuit said.

In his 55-page opinion, O’Connor agrees. He writes that the individual mandate is unconstitutional, saying that it “can no longer be fairly read as an exercise of Congress’ tax power.”

The judge also concludes that this insurance requirement “is essential to and inseverable from the remainder of the ACA.”

The opinion goes beyond the administration’s legal position in the case. In a June court brief and an accompanying letter to congressional leaders, Justice Department officials contended that, once the insurance mandate’s penalty is gone next month, that move will invalidate the ACA’s consumer protections, such as its ban on charging more or refusing to cover people with preexisting medical conditions. But the administration argued that many other parts of the law could be considered legally distinct and thus can continue.

More from the NYT (“Texas Judge Strikes Down Obama’s Affordable Care Act as Unconstitutional“):

In his ruling, Judge Reed O’Connor of the Federal District Court in Fort Worth said that the individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power.”

Accordingly, Judge O’Connor, a George W. Bush appointee, said that “the individual mandate is unconstitutional” and the remaining provisions of the Affordable Care Act are invalid.

At issue was whether the health law’s insurance mandate still compelled people to buy coverage after Congress reduced the penalty to zero dollars as part of the tax overhaul that President Trump signed last December.

When the Supreme Court upheld the mandate as constitutional in 2012, it was based on Congress’s taxing power. Congress, the court said, could legally impose a tax penalty on people who do not have health insurance.

But in the new case, the 20 plaintiff states, led by Texas, argued that with the penalty zeroed out, the individual mandate had become unconstitutional — and that the rest of the law could not be severed from it.

The Justice Department’s response to the case was highly unusual: though it disagreed with the plaintiffs that the entire law should be struck down, it declined this year to defend not just the individual mandate, but the law’s provisions that protect people with pre-existing conditions. That prompted a coalition of 16 states and the District of Columbia, led by California, to intervene and defend the law.

Bloomberg (“Obamacare Thrown Out by Judge, Raising Insurance Uncertainty“) adds:

Texas and an alliance of 19 states argued to the judge that they’ve been harmed by an increase in the number of people on state-supported insurance rolls. They claimed that when Congress last year repealed the tax penalty for the so-called individual mandate, it eliminated the U.S. Supreme Court’s rationale for finding the ACA constitutional in 2012.

The Texas judge agreed. He likened the debate over which provisions of the law should stand or fail to “watching a slow game of Jenga, each party poking at a different provision to see if the ACA falls.” He also wrote that it’s clear the individual mandate is the linchpin of the law “without marching through every nook and cranny of the ACA’s 900-plus pages.”

“The court must find the individual mandate inseverable from the ACA,” he said. “To find otherwise would be to introduce an entirely new regulatory scheme never intended by Congress or signed by the president.”

President Donald Trump and Texas Attorney General Ken Paxton praised the ruling, while the American Medical Association called the decision “an unfortunate step backward for our health system.”

Some health-care law experts were quick to critique the judge’s reasoning and predicted the ruling will be overturned.

“We know what Congress’ intent was in 2017 — that was to pull the individual mandate while keeping the rest of ACA intact,” University of Michigan law professor Nicholas Bagley said. “Now we have a judge saying we have an unenforceable mandate. This whole thing is bonkers.”

I tend to agree with Bagley.

Back in 2012, I disagreed vehemently with the Roberts ruling (“SCOTUS Upholds ObamaCare Mandate As Tax Even Though It’s Not a Tax“).

First, I fully agree with the majority that Congress lacks power under the Commerce Clause to compel citizens to engage in interstate commerce.

Second, I fully agree with the majority that Congress has the authority under their power to tax to incentivize people to purchase health insurance or, well, just about anything.

My problem with the ruling, though is the not so trivial detail that Congress not only did not enact the individual mandate as a tax but vehemently denied that it was a tax.  Likewise, until it came to the oral arguments-at which time the tax idea was a Hail Mary fallback position-so did the Obama administration. It strikes me that this matters. The power to tax, after all, resides with the Congress, not the Supreme Court. And declaring something that isn’t a tax to be a tax is likewise outside the mandate of the judicial branch.

Indeed, I gather that Roberts argues that it’s the Supreme Court’s job to bend over backwards to find a way to construe Congress’ actions as Constitutional. My counter is that it’s Congress’ job to write laws that are Constitutional and the Supreme Court’s role is, to coin a phrase, call balls and strikes. The majority here essentially ruled that Congress struck out but nonetheless awarded them a base.

UPDATE: To be clear, while I think Congress could have accomplished this with a tax, I don’t think they passed a tax; rather, they passed a mandate to buy something with a penalty for not doing so. Even if you want to call it a “tax” rather than a “penalty,” I think Roberts and company get it wrong: Congress doesn’t have the power to tax people for , to reuse the tired analogy that was always used in the Commerce Clause debate, failing to eat their broccoli.

What I do think Congress has the power to do is do exactly the same thing in reverse. That is, they could issue either an increase to the Medicare withholding or some other dedicated PPACA tax and then allow an offsetting deduction on the federal tax return for those who can document that they are insured.

I fully grant that, as a practical matter, it’s the exact same thing. But process matters. And neither Congress nor the Supreme Court fIollowed that process.

UPDATE 2: To put it more succinctly, Roberts gets the fundamentals right: Congress clearly wanted to mandate that people have insurance and have a way of collecting money from those who don’t to cover the costs of free riding. Congress clearly has the power to do that via a tax-although typically through tax credits and deductions rather than outright taxes. My objection is that the law imposes a penalty for failure to buy insurance rather than issuing a tax credit for buying it.

My OTB colleague Doug Mataconis wrote an interesting rebuttal (“The Roberts ObamaCare Decision: The Epitome Of Judicial Restraint“) the next day. Our disagreement is really over the issue in my two updates: I contend that the Court ought interpret the law as written and sold and he argues that the Court should indeed bend over backwards to find a way to find duly-passed laws Constitutional.

Regardless, the legality of the mandate and the entirety of the ACA is settled law. Republicans tried and failed an inordinate number of times to repeal the law. And I fully agree with Bagley that repealing the mandate—far and away the most unpopular and controversial part of the law—does not undermine Roberts’ reasoning. His tortured reasoning as to why the mandate was Constitutional is indeed OBE given that there is no mandate. But it’s absurd to argue that the law itself is somehow unconstitutional because there’s no mandate.

Indeed, in the very case in question, NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, the Supreme Court ruled part of the ACA, the Medicare expansion, unconstitutional. But it simultaneously ruled that this defect was “surely no basis to tear down the ACA in its entirety. When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation.”

I fully expect O’Connor’s ruling to be overturned on appeal.

Update (Doug Mataconis): I’ve posted an analysis of Judge O’Connor’s ruling, as well as some early takes from those legal bloggers who were still awake when the opinion was released late yesterday. There’s also a copy of the opinion for those of you interested in reading it. Generally speaking, I agree with James that the ruling that striking down the mandate, which seems to be the only fair interpretation of the law at this point, is probably correct but the broader ruling striking down the law as a whole is incorrect.

FILED UNDER: Health, Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Ben Wolf says:

    So much for RomneyCare.

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  2. Teve says:

    I have a friend with sarcoidosis. He’s self-employed. without the affordable Care act, he can’t afford the medication. It’s a matter of life or death.

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  3. James Joyner says:

    @Teve: On the one hand, if the ACA is unconstitutional, the policy implications of striking it down are moot. But the argument employed to strike it down is unlikely to survive scrutiny. And, while I have misgivings about the policy wisdom of combining insurance with mandatory coverage of pre-existing conditions, it’s so wildly popular that even Trump has come out in favor. Even if this somehow survived appeal, there’s a legislative fix in passing the pre-existing condition coverage in a clean bill minus the penalty-less mandate.

  4. Tyrell says:

    The AHA, while helping many, has serious faults. Too many can’t afford the payments, and don’t qualify for the subsidies. Many who went on the plan were shocked to find their costs were higher, higher deductibles and co-payment, and less coverage. Many had good insurance plans that the AHA closed down. What is needed is a cheap, basic, no frills plan.
    If the government can require people to buy insurance, what is next? Electric cars? Physicals? Chip implants?
    One issue is the price of health care procedures and medications. Most doctors don’t see the prices, and don’t care. Why have the prices of lasik eye surgery and many plastic surgeries gone down? Because they are not covered by insurance and people pay for it themselves: competition*.
    Hospital bills are like new car sticker prices: negotiable. Many charges are over inflated. People should question anything on the bill that seems unusual, such as $300 for straws and a plastic cup. Hospitals will often reduce the bill with just a phone call. They can write it off.
    Incentives are needed for young people to sign up for health insurance – tax deductions and special benefits such as gym memberships.
    What happened to all the HMO’s? Now just a few are left.
    Emergency rooms are used by many as a free doctor office visit for things like sneezing, runny noses, hangnails, and sore throats. ER should only be for real emergencies.
    “The people are over doctored, over medicated, and over tested” Many doctors call patients in for just a talk! It does not make sense. There’s the phone, the chat, texting, conference calls, and email available. “Let’s run a couple more tests”
    *See:”Employers Could Slash Their Health Costs Overnight. So, Why Don’t They?” John Goodman, Forbes

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  5. James Pearce says:

    For their part, congressional Democrats, who defended the law and its protections for people with preexisting medical problems as a major theme leading up to last month’s midterm elections, lambasted the Texas judge and portrayed themselves as champions of American health-care consumers.

    Made me laugh. “Portrayed themselves as champions.” Of course they did.

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  6. @James Joyner:

    if the ACA is unconstitutional, the policy implications of striking it down are moot

    My view on this is that there are is no clear constitutional answer to the question. There are, however, philosophical (and economic) arguments for and against the law. There is certainly no clear original intent argument to be made.

    Really, much of it boils down to what one thinks about the commerce clause, and I would argue that ship sailed in terms of expansion of federal powers almost a century ago.

    And while I wish (vehemently) that there was a legislative fix, the reality is that our legislature is dysfunctional and will remain so for the foreseeable future. I say this not to argue for non-legislative fixes, per se, but just to note that to state that there is a legislative fix is tantamount to saying that there is a magical fix (at least for quite some time to come).

  7. @Steven L. Taylor:

    Really, much of it boils down to what one thinks about the commerce clause,

    Not really, in the NFIB v. Sebelius majority opinion, Roberts concluded that the mandate could not withstand scrutiny under the Commerce Clause. That’s why he turned to the “General Welfare”/Tax Clause to uphold the law. That doesn’t mean that the rest of the law can’t be upheld under the Commerce Clause, indeed it probably can, but that wasn’t really before the Court in either 2012 or in this case. The broader issue is whether the rest of the PPACA can survive fiscally without the mandate, but that’s an issue for Congress rather than the Courts.

  8. As I note in an Update, I’ve posted an analysis of Judge O’Connor’s ruling, as well as some early takes from those legal bloggers who were still awake when the opinion was released late yesterday. There’s also a copy of the opinion for those of you interested in reading it. Generally speaking, I agree with James that the ruling that striking down the mandate, which seems to be the only fair interpretation of the law at this point, is probably correct but the broader ruling striking down the law as a whole is incorrect.

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  9. MarkedMan says:

    Incidents like these remind me about why, once the Republicans became The Gingrich/Limbaugh party, I reflexively thought of myself as “Not a Republican”. Not a Democrat, as I was originally registered as an independent. But I just felt that I was not constitutionally the type of person that was attracted to what the Republicans had become. And what they had become was… a bunch of dicks. Nothing stirs a modern day Republican more than a middle class or poor person getting a frickin break. They can babble on about small government, but that’s obvious bull. They can prate on about morality but that’s also just a load of crap. Fundamentally the Republican Party is for the kiss-up kick-down type of people, and that’s the type I despise the most.

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  10. James Pearce says:

    @Steven L. Taylor:

    to state that there is a legislative fix is tantamount to saying that there is a magical fix

    Or maybe it’s to say that we need better legislators.

  11. @Doug Mataconis: I understand what you are saying. What I am saying is, however, that a lot of this boils down far more to philosophy than it does to objective standards that are easily weighed, measured, and applied.

  12. @James Pearce:

    Or maybe it’s to say that we need better legislators.

    While I am not going to get into a protracted discussion with you, as I have come to conclusion that that such an engagement will not be fruitful, for others reading let me note that my while I certainly agree that better legislators are needed, my point (which I have made all over the place here at OTB) is that despite popular conception, our system does not provide an easy pathway for this to happen, nor does it allow for major legislation to happen with much likelihood of success due to the nature of the Senate.

    Our system does not produce a legislature that is representative of the basic sentiments of the population and the structure of the Congress, specifically the Senate, means that for truly serious legislating to take place on topics likes health care to be passed the majority party needed 60 votes in that chamber (which is nearly impossible to obtain). Further, one of our major parties, the Republicans, have demonstrated an utter lack of interest in governing. This is not to say that the Democrats are perfect (far from it).

    Hence, in the context of poor representative outcomes from electoral processes, significant institutional barriers to actual legislation, and one party not interested in good governance, where, pray tell, is a legislative fix coming from?

    I return to my statement about magic (such as simply wishing for better legislators).

  13. MarkedMan says:

    @Steven L. Taylor: A system such as ours depends on the belief that it is fair. If that feeling goes away the very underpinnings of society can fall apart. I have always believed that the reason Roosevelt got the New Deal through had a lot more to do with the robber barons watching what was happening in Russia and realizing that if the common man comes to believe you are stealing from them and they have no recourse to justice even a powerful army might not be able to stop some shop clerk from raising the mob to storm your mansion, take everything you own and hang you from the rafters. In the span of a generation the US government went from sending soldiers into the streets to shoot strikers at the request of the magnates to anti-monopoly legislation with real teeth. The robber barons didn’t concede their stranglehold on the government because they suddenly started feeling empathy for those they viewed as cattle. It was because they realized the cattle might stampede.

  14. @MarkedMan: This is my fundamental fear: that we are approaching a situation in which one segment of the population feels shut out and another segment is happy to shut them out since it preserves their power positions, despite being in the minority.

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  15. Just nutha ignint cracker says:

    All systems of government are only as good as the people who run them. Democracies have, on the average been the best of a collection of bad governments (if you will) because the people in democracies have tended to elect people who would at least try to serve the public good even while seeking advantage for themselves and their own.

    We seem to be a nation of people who only hold for the good of the individual (specifically “me”) now. Any bromides about “needing to elect better legislators” are simply that. As a nation, we don’t want to elect “better” legislators; we want our side to win–at the expense of everyone else as much as possible. That “we” are hurting “our own” interests in pursuing this goal is simply Irony and Karma being the bitches that is their only role available in the current drama.

    ETA: The future “infrastructure problem” in America may well become a shortage of lampposts…and rope.

  16. James Pearce says:

    @Steven L. Taylor:

    I have come to conclusion that that such an engagement will not be fruitful

    I really wish people would stop telling me that I’m not worth engaging, because A) I am . B) I’ll never agree with anyone who says I’m not. C) As annoying as some people find me, I have seen many “fruits” from these discussions, if nothing else, the honing of arguments and occasional agreement, like “I certainly agree that better legislators are needed.”

    Further, one of our major parties, the Republicans, have demonstrated an utter lack of interest in governing.

    No. There’s a major difference of opinion on how to govern, and a reluctance from nearly everyone in political life –on “both sides” from Congress on down to the voters– to compromise or cooperate or do anything at all to reconcile that major difference of opinion. The prevailing idea is that your side should win and the other side should lose, denying the whole time any kind of common cause or purpose.

    “where, pray tell, is a legislative fix coming from?” From better legislators who want a legislative fix more than they want to brag about their partisan victories.

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  17. mattbernius says:

    @James Pearce:

    I really wish people would stop telling me that I’m not worth engaging, because A) I am . B) I’ll never agree with anyone who says I’m not.

    See James, that’s your issue.

    Literally in a nutshell.

    You are not worth engaging because you are so convinced that you are right you will not entertain the fact that might not be the case.

    Literally.

    Across countless posts you’ve demonstrated that yours is the only interpretation of the facts that matters. Including deciding which facts matter (and loudly attacking any counter arguments).

    A more self reflexive person would as “why do people keep telling me that I’m not worth arguing with? … Perhaps, it’s something I’m doing since I keep hearing this.”

    But not you, you magical snowflake.

    Seriously, the only daylight between you and the average Trump cultist is that (a) you’re slightly more aligned with marginally progressive goals (lets face it, based on the policy positions you’ve expressed, you’re a Rockefeller Republican) and (b) you write longer posts. But your convictions are completely internal and are unswayed by anyone else. You just happen to be marginally more aligned with Democrats… but obviously not those worthless progressives.

    In other words, you’re a crappy discussant because you have already decided you’re right and cannot be swayed from that.

    BTW, feel free to get the last word in on this. Because you are really not worth engaging with beyond that and you’re sure that I’m already always wrong. Just like the rest of the people who are saying exactly the same thing…

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  18. de stijl says:

    @Steven L. Taylor:

    That was all true and really depressing.

  19. James Joyner says:

    @Steven L. Taylor:

    And while I wish (vehemently) that there was a legislative fix, the reality is that our legislature is dysfunctional and will remain so for the foreseeable future. I say this not to argue for non-legislative fixes, per se, but just to note that to state that there is a legislative fix is tantamount to saying that there is a magical fix (at least for quite some time to come).

    While I think that’s right generally, I’m not sure it’s true in this case. There is massive public support for the pre-existing condition provision. Even Trump and GOP leaders in Congress were careful to say they supported it during the “repeal and replace” nonsense. So, I think there’s a good chance of a legislative fix next Congress—Democratic House plus a popular provision—in the unlikely case this ruling holds up on appeal.

  20. @James Joyner: I hope you are correct, but fear you are not. My problem is that I think that even “massive public support” is well outweighed by at least 41 GOP Senators (if not 51+) who have constituencies (especially in their nominating primaries) who will stick with “the ACA is tyranny” regardless of general, clear public support.

    This is clear illustration of why I keep repeating we have a representation problem, if not a crisis, in our system.

  21. James Joyner says:

    @Steven L. Taylor: I concur on the growing representation problem. The system was designed for conditions which obtained in 1787 and it hasn’t aged well. In addition to more massive disparities in state population size than was imaginable then, we’ve basically turned a system that was designed to incent compromise by avoiding reinforcing cleavages (per Federalist 10) into one with parliamentary-style party discipline.

  22. Gustopher says:

    @James Pearce:

    Further, one of our major parties, the Republicans, have demonstrated an utter lack of interest in governing.

    No. There’s a major difference of opinion on how to govern, and a reluctance from nearly everyone in political life –on “both sides” from Congress on down to the voters– to compromise or cooperate or do anything at all to reconcile that major difference of opinion.

    I will refer you to the budget deficit. It’s an issue for Republicans when Democrats hold the Presidency, but they blow up the debt when they are in charge.

    That’s not a difference of opinion in how to govern. Thats cynical grabbing for power despite having to govern. That’s a failure to govern. That’s running on lies, and rewarding their cronies.

    Big Government with big taxes vs. small government with small taxes is a difference of opinion in how to govern.

  23. Blue Galangal says:

    @Steven L. Taylor: See: Wisconsin; Michigan.

  24. @Blue Galangal:

    See: Wisconsin; Michigan.

    Indeed. I have written several posts about WI. I have not yet done more than give MI a cursory look, but will get there.

  25. @James Joyner:

    parliamentary-style party discipline

    That characterization always makes me uncomfortable, because the system is not parliamentary (as I know you know) since the legislative parties do not control who the executive is.

    More accurately: our parties finally sorted ideologically after the long after-effects of the Civil War and Reconstruction wore off. In other words, it isn’t that our parties have become odd lately (whether the system is parliamentary or presidential) it is that they were profoundly odd before 1994.

  26. James Pearce says:

    @mattbernius:

    See James, that’s your issue.

    With all due respect, that’s not my issue (I have several) and all the psychoanalyzing needs to stop. You many think you know me, but you don’t.

    A more self reflexive person would as “why do people keep telling me that I’m not worth arguing with? … Perhaps, it’s something I’m doing since I keep hearing this.”

    I am a reflective person, not an idiot, and I’ve concluded that some of you do not want me to comment here anymore, not that I’m a deplorable person who isn’t worth engaging. Are you kidding me?

    (And when I think why some of you don’t want me to comment here, I know it’s due to a difference of opinion and not any alleged trolling. Have I ever called you a name or disparaged you personally? No I have not.)

    you’re a Rockefeller Republican

    I was born in the 70s, so no…. (Although I do like Ike.)

    Five years ago I was an Obama Democrat, and I’d probably still be one today, but you know…Hillary and football protests and SJWs and The Resistance. I didn’t leave the Dems. The Dems left me.

    your convictions are completely internal and are unswayed by anyone else

    You say that like it’s a bad thing….

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  27. @Gustopher: It isn’t even that (although I agree with your assessment). It is that even with unified government, exactly how much serious legislation/governing have we seen in the last two years?

    Where are real attempts at, for example, immigration reform/border security? In recent years (and well prior to Trump), the party is more geared to slogans and opposition than to governing. See, e.g., “repeal and replace.”

    Apart for upper-income/corporate tax cut, the party seems to lack much in the way of policy goals.

  28. @James Pearce:

    And when I think why some of you don’t want me to comment here, I know it’s due to a difference of opinion and not any alleged trolling. Have I ever called you a name or disparaged you personally? No I have not

    It is not that I want you to stop commenting. I just have gotten to the point where I know that engagement leads nowhere. And it isn’t that I can’t change your mind, it is that I can’t get you off a clear narrative pathway you want to go down. That is your right, but why would I (or anyone else) want to play Groundhog Day?

    Further, I am to the point where I cannot tell how much you say what you think to be true and how much you are deliberating trying to provoke/troll.

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  29. @James Pearce: And I think you are utterly dismissive on any element of race or of any discussion of flaws to our system.

    Your approach to these areas come across as telling a short person if they want to reach the top shelf that they just need to grow some more. At that point, where is there room to talk?

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  30. mattbernius says:

    @James Pearce:

    And when I think why some of you don’t want me to comment here

    Stop. Full stop.

    At least for myself, I don’t care whether or not you comment here. I’m not trying to make you stop. I think my record of posting here (and elsewhere… my name is easy to track) conveys that when I provide feedback, it isn’t for the lolz. Its because I’m telling you what I legitimately think… And I stand by what I wrote above… that based on your writing, it’s clear that you don’t care or consider deeply, at any level, critique.

    Or, if you do, please point me to a post where you admit what you had posited was wrong.

    (BTW, I’m happy to point at the many times where someone else has caused me to admit that I need to rethink something I wrote….)

    I’m just pointing out that you are useless to engage with because you are not remotely interested in changing your opinion. But if that makes you uncomfortable… well, tough.

    BTW, I especially love how you recently, despite your habit of dismissing everything about causal racism, called out out what you considered casual misoginy… But as usual, we (anyone other than you) is wrong….

    @Steven L. Taylor:

    Further, I am to the point where I cannot tell how much you say what you think to be true and how much you are deliberating trying to provoke/troll.

    This.

  31. Mister Bluster says:

    Your approach to these areas come across as telling a short person if they want to reach the top shelf that they just need to grow some more.

    Don’t want no short people ’round here…

  32. Gustopher says:

    @Steven L. Taylor: Governing does not always require passing new laws, so I think that’s a poor metric, or at least an incomplete metric. They might be fine with the current situation. They are ostensibly conservatives after all.

    The lack of oversight shows a lack of interest in actually governing. No one should be fine with Pruitt or Zinke — it’s not a matter of policy, it’s a matter of corruption.

    I can understand rallying around their president, since a President is hard to replace, but cabinet officials are a dime a dozen.

    There really is just an embarrassment of failures to govern from every angle that aren’t just a difference of opinions on policies and how to govern.

  33. Gustopher says:

    @James Pearce:

    And when I think why some of you don’t want me to comment here, I know it’s due to a difference of opinion and not any alleged trolling.

    I’d just like you to get to the god damned point, beyond “you’re all doing it wrong”.

    There are some uncommunicated values that underly your comments, without which, it’s just griping. You think that race and minorities and SJW stuff and Republican corruption are less important, but you never really say less important than what — not in a way that people hear.

  34. Blue Galangal says:

    @mattbernius: I’m more cynical than I used to be. With that said, James Pearce is an A-1 concern troll.

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  35. John says:

    Pre-existing conditions were covered by good health insurance before the ACA. People are now confusing guaranteed issue health insurance with the coverage of pre-existing conditions. We need to go back to answering health questions to obtain health insurance. Health risk pools existed before the ACA for people who were uninsurable.

  36. James Pearce says:

    @Steven L. Taylor:

    I just have gotten to the point where I know that engagement leads nowhere.

    You say this is as if I don’t actually read this blog. Engagement doesn’t lead to group hugs and campfire songs, but it leads somewhere.

    it is that I can’t get you off a clear narrative pathway you want to go down

    Fair enough. We live in a world of competing narratives. As the narrative rises, the counter-narrative comes to meet it. If the Dems want to “portray themselves as the champions of American healthcare consumers,” they better be prepared for someone to challenge that, because indeed, someone has.

    As for better legislators, look…I think the guys we have now, especially in leadership, are terrible, the whole lot of them, not just Chuck and Nancy. Is that such a controversial opinion?

    utterly dismissive on any element of race or of any discussion of flaws to our system

    Oh, I don’t know about that. I just think there’s usually more going on than racism.

    @mattbernius:

    I’m just pointing out that you are useless to engage with because you are not remotely interested in changing your opinion.

    Matt. I’ve been posting here a long time. The last few years, my comments have been a record of me changing my opinion.

    (Re: Craig in Friday. I don’t treat women like that. Do you? Perhaps you’d make an exception for Felecias. Not me.)

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  37. MarkedMan says:

    @Steven L. Taylor:

    Further, I am to the point where I cannot tell how much you say what you think to be true and how much you are deliberating trying to provoke/troll.

    Steven, you are an intelligent guy, and long experienced in the blogosphere, so I have to accept there is some chance that he’s not a troll (of the traditional variety). But c’mon, how can you read the following and not come away thinking anything other than he’s giving you the business?

    I really wish people would stop telling me that I’m not worth engaging, because A) I am . B) I’ll never agree with anyone who says I’m not. C) As annoying as some people find me, I have seen many “fruits” from these discussions

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  38. JohnMcC says:

    Apologize for being off topic (i.e. – not talking about Mr Pearce) but:

    Reince Priebus at age 42 and completely innocent of military background is getting a commission and will become an office in the U. S. Navy soon.

    Confirms what this ancient old enlisted guy thought of the officer corp. It never advanced past the idea that the 2d son of the Duke of something is qualified to lead men to deadly places. Why not!

  39. Just nutha ignint cracker says:

    “There are some uncommunicated values that underly your comments…”

    While that may be true, I’m inclined to think that in the case of this person, he may be lacking in the self-reflective inclinations necessary to discover those values. In which case, he’s just griping.

    ETA: “Health risk pools existed before the ACA for people who were uninsurable.”

    Not that I can recall. Can you show some examples of this?

  40. @MarkedMan: The impulse to response is an occupational hazard, I will confess. But there is a curve, thought it be long, that some folks travel that finally get me to stop.

  41. Hell, I tried to legitimately engage with Bunge well longer than I should have.

  42. @JohnMcC: I heard about that. It strikes me as quite strange.

  43. MarkedMan says:

    @Steven L. Taylor: This particular individual was the only one that I commented on, for reasons not worth repeating. I assumed there was something like a 95% chance that he was either a traditional variety troll or a moderately clever Trump supporter in stealth mode. I still think those two possibilities are the most likely, but I’ve realized there are a few other possibilities I hadn’t really thought about. On the off chance that they might be true, and having no wish to cause vulnerable people undue harm, I’m going to put him on my “do not comment on” list, at least for now.

  44. Mikey says:

    @JohnMcC: IIRC Priebus has/had a sister in the military.

    Probably the only thing I’d consider a bit odd is he’s decided to join at age 46, which would make him older when he joins up than many officers are when they retire.

    Still, I’m not going to begrudge anyone a desire to serve. It’ll certainly be better for his health and sanity than working for Trump was.

  45. @t:

    bullshit

    If wanted him to stop, I could just delete his comments.

    Or, at a minimum invite him to stay off my threads, as I have done to some commenters in the past.

  46. @t: I see no name calling. And I also do not consider multiple attempts at engagement to be bullying.

  47. James Joyner says:

    @JohnMcC: @Mikey: I gather he’s getting a direct commission as part of a special program to bring “human resource officers” with civilian competence in. Four others are part of his group. It’s a bit odd but he’s certainly qualified to be an HR ensign. Indeed, I would have no objection if he were commissioned in the JAG Corps, either.

  48. @t: As you wish. Feel free to chime in when the time arises.

  49. Gustopher says:

    @t: People are frustrated with him, but generally civil. He doesn’t back up his opinions with either facts or statements of value, so all we get is “you’re doing it wrong.”

    He’s not particularly worth paying attention to these days. He used to be better than this, but his reaction to Trump seems to have been “see, you really are doing it wrong!” It’s boring and repetitive.

    Why are you defending him?

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  50. James Pearce says:

    @t: As always, t has my back. Thanks again.

    @Steven L. Taylor: I’ve had to tell multiple people on here not to talk to my like I’m the dog they’d rather kick than step over. t’s assessment is spot on: “posters regularly insult his intelligence, call him racist, question his sanity, recommend that he seek professional help. etc etc.”

    Not poster, posters. Once one of you starts, more follow. And when someone calls me racist or an idiot, I have never been under the impression they were trying to persuade me that I am. C’mon…

  51. @James Pearce: I gave this some thought the other day, and I will step back and agree that some commenters have been unkind to you. And yes, in those cases persuasion was not the goal.

    The worst that I have said to you personally was comparing your addressing of evidence to that of a flat earther (I stand by that comparison), and noting, more than once, that you seem not to take claims of racism seriously (I stand by that as well).

    t criticized myself and Matt Bernius (who has been more reasonable with you, IMO). If you, or t, wish to address people who have been insulting to you, feel free.

  52. James Pearce says:

    @Steven L. Taylor:

    I gave this some thought the other day, and I will step back and agree that some commenters have been unkind to you.

    I appreciate you saying that.