Nick Baumann

Nick Baumann

Senior Editor

Nick is based in our DC bureau, where he covers national politics and civil liberties issues. Nick has also written for The Economist, The Atlantic, the Washington Monthly, and Commonweal. Email tips and insights to nbaumann [at] motherjones [dot] com. You can also follow him on Facebook.

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Was the Obamacare Dissent Originally the Majority Opinion?

| Thu Jun. 28, 2012 4:03 PM EDT

 

So this is weird. Above is an excerpt from the dissent in Thursday's Obamacare decision. Justice John Roberts joined with the liberals on the court to uphold the law. But did Roberts switch sides? The dissent (read it here, starting on page 127) repeatedly refers to the "dissent," not a majority opinion. Here's law professor David Bernstein, writing at The Volokh Conspiracy, a conservative legal blog:

Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion... to preserve it?

Justice Ruth Bader Ginsburg's opinion, which was joined in part by the other liberals on the court, dissented in part from Roberts' majority ruling. So that could explain the "dissent" language. But legal scholars still seem to think it's unusual to refer to Ginsburg's opinion as a "dissent," because Ginsburg was on the winning side. Here's Georgetown University law professor Lawrence Solum, writing about the passage highlighted in the image above:

Language like this is highly suggestive of a majority opinion. The reference to the dissent and "we" strongly suggests that the "we" was a majority of the Court. This suggests that Justice Roberts switched his vote. There are other conceiveable explanations, but in my opinion, this evidence is very strong indeed.

J. Brad Delong, a blogger and economics professor at the University of California—Berkeley, notes that Justice Clarence Thomas, who authored a separate, very short additional dissent (read it here, starting on page 192), refers to the conservatives' main dissent as a "joint opinion," rather than a joint dissent, as would be standard practice. It could just be a typo—but later in the same section, Thomas does use the phrase "joint dissent." So it's unclear what's really going on here.

Volokh's Bernstein thinks that Roberts' supposed switch is a sign he was "responding to the heat from President Obama and others."* The high court is famously leak-free, but this story is so interesting, and the stakes so high, that we may actually learn more about what really happened in the weeks and months to come.

*Correction: This post originally cited a post on ToBeRight.com as an example of right-wing conspiracy theorizing about the pressure that was supposedly put on Roberts to uphold Obamacare. Blogger Violet Socks (which she says is a pseudonym) makes a convincing case that ToBeRight is actually a satirical site. Please click through to her post for the original text and a full explanation of what I did wrong. Blurgh. I regret the error.

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10 Things You Get Now That Obamacare Survived

| Thu Jun. 28, 2012 12:40 PM EDT

The US Supreme Court on Thursday largely upheld the Patient Protection and Affordable Care Act, the centerpiece of President Obama's first term in office. Chief Justice John Roberts, a conservative appointed by George W. Bush, joined with the high court's four liberals and penned the majority opinion. In their dissent, the court's four other conservative justices said they would have struck down the entire law.

So what does the court's ruling mean for regular Americans?

After the ACA's passage in 2010, Mother Jones' Nick Baumann listed 10 ways Obama's signature health care law will impact the healthy and sick, young and old, rich and poor. Here they are:

1) Insurance companies can no longer impose lifetime coverage limits on your insurance. Never again will you face the risk of getting really sick and then, a few months in, having your insurer tell you, "Sorry, you've 'run out' of coverage." Almost everyone I've met knows someone who had insurance but got really, really sick (or had a kid get really sick) and ran into a lifetime cap.

2) If you don't know someone who has run into a lifetime cap, you probably know someone who has run into an annual cap. The use of these will be sharply limited. (They'll be eliminated entirely in 2014.)

3) Insurers can no longer tell kids with preexisting conditions that they'll insure them "except for" the preexisting condition. That's called preexisting condition exclusion, and it's out the window.

4) A special, temporary program will help adults with preexisting conditions get coverage. It expires in 2014, when the health insurance exchanges—basically big "pools" of businesses and individuals—come on-line. That's when all insurers will have to cover everyone, preexisting condition or not.

5) Insurance companies can't drop you when you get sick, either—this plan means the end of "rescissions."

6) You can stay on your parents' insurance until you're 26.

7) Seniors get $250 towards closing the "doughnut hole" in their prescription drug coverage. Currently, prescription drug coverage ends once you've spent $2,700 on drugs and it doesn't kick in again until you've spent nearly $6,200. James Ridgeway wrote about the problems with the doughnut hole for Mother Jones in the September/October 2008 issue. Eventually, the health care reform bill will close the donut hole entirely. The AARP has more on immediate health care benefits for seniors. Next year (i.e., in nine months), 50 percent of the doughnut hole will be covered.

8) Medicare's preventive benefits now come with a free visit with your primary care doctor every year to plan out your prevention services. And there are no more co-pays for preventative services in Medicare.

9) This is a big one: Small businesses get big tax credits—up to 50 percent of premium costs—for offering health insurance to their workers.

10) Insurers with unusually high administrative costs have to offer rebates to their customers, and every insurance company has to reveal how much it spends on overhead.

UPDATE: Here's one more big benefit we've found out about since the ACA passed:

11) Free birth control and other preventative services for women, unless you work for a faith-based organization that opposes birth control.

Hungry for more? Read Adam Serwer's breakdown of what the Supreme Court's decision means and what comes next

GOP Candidate Says Tammy Baldwin's Philosophy "Has Its Roots" in Communism

| Mon Jun. 25, 2012 9:40 AM EDT
Wisconsin Sen. Robert La Follette, Sr. making a radio speech. He was a progressive, not a communist. There's a difference.

Rep. Tammy Baldwin (D) is running for Senate in Wisconsin, where she will probably end up facing former GOP Gov. Tommy Thompson. But Thompson faces a challenge from the right—Eric Hovde, a wealthy former CNBC talking head, who has apparently decided that the best way to win a Republican primary these days is to suggest the Democratic candidate is a communist. Here's Hovde:

"I fundamentally disagree with Tammy on almost everything. She has a more liberal voting record than almost anybody in Congress," he told The Hill in a recent interview. "Her philosophy has its roots in Marxism, communism, socialism, extreme liberalism—she calls it progressivism—versus mine, which is rooted in free-market conservatism."

Needless to say Baldwin, who does not support government ownership of the means of production, is not a Marxist, a socialist, or a communist. And it's especially sad to see a Republican candidate equating progressivism with communism in Wisconsin, a birthplace and longtime stronghold of the progressive movement. Robert La Follette, a leading progressive Republican, was Wisconsin's governor from 1901 to 1906 and one of its senators from 1906 until 1925. LaFollette was succeeded in the Senate by his son, "Young Bob," who served until 1946, when he lost a GOP primary to the infamous red-hunter Joseph McCarthy. Here's a nice explanation of progressivism from the Wisconsin Historical Society:

Progressive Republicans... believed that the business of government was to serve the people. They sought to restrict the power of corporations when it interfered with the needs of individual citizens. The Progressive Movement appealed to citizens who wanted honest government and moderate economic reforms that would expand democracy and improve public morality... In Wisconsin, La Follette developed the techniques and ideas that made him a nationwide symbol of Progressive reform and made the state an emblem of progressive experimentation. The Wisconsin Idea, as it came to be called, was that efficient government required control of institutions by the voters rather than special interests, and that the involvement of specialists in law, economics, and social and natural sciences would produce the most effective government.

The state historical society's site has lots more on progressivism and Wisconsin history, including many primary source documents. Perhaps Hovde should familiarize himself with it.

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