What happens if conservatives kill ACA?
Ezra:
I think it's vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process -- as that would sidestep both legal attacks and the supermajority requirement.
The resulting policy isn't too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy (which is how the House originally wanted to fund health-care reform). That won't get us quite to universal health care, but it'll get us pretty close. And it'll be a big step towards squeezing out private insurers, particularly if Medicaid and Medicare are given more power to control their costs.
If it's unconstitutional for the government to force people to buy something, but policy demands that the thing be bought by everybody, then it's only sensible that we just have the government buy the thing directly for the people. Voila, single-payer health care, or something like it.
No More Heath Insurance for Kids?
Cato reports on the collapse of the Washington State child-only individual insurance market. It's easy to follow the preplanned line of attack and "blame" the recent health reform bill for the change. But you have to wonder -- is this a bad thing after all? My intuition tells me no.
We know that markets grow through a process of creative destruction; markets and products must first die before others fill their place. We know that health insurance markets are grossly inefficient, particularly when run in the private sector. So it comes as no surprise to me that, once fairness and efficiency is required by law, health insurance will cease to be profitable for most private companies. The demise of the smallest markets, then, is the first sign that reform is working: that the abuses of the past are being undone.
And that's the whole point of the health-care-as-social-insurance safety net. At the very least, the preplanned state exchanges will sooner or later come into effect and replace these failed markets with a better model. If we get really lucky, regulators and legislators will see the magnitude of the market failure as more and more marginal markets collapse, and we will embark on a gradual path of total reform for our sad system.
(photo: David_Shankbone)
Why the Slaughter Rule is Constitutional
Apparently this is turning into a real furore. Slaughter's solution to the procedural hurdle facing House Democrats with respect to the Senate bill and the requisite package of fixes is a rule under which the House would, contingent on the passage of the fix bill, "deem" the original bill to have been passed. This is an elegant solution that avoids the need for a vote on the unpopular Senate bill while still approving the legislation as a whole.
Conservative commentators have taken shots at its constitutionality, claiming that by avoiding a vote on the bill they are "ramming it down" or "forcing it through" or something like that. But their assessments are wrong. A long debate on Volokh yesterday boils down to two major talking points. Here we go.
1. The Slaughter rule passes health care reform without a vote, which is undemocratic.
Wrong. The Slaughter rule is only a simplifying mechanism that allows the House to pass its version of the bill using the reconciliation procedure without having to take a separate vote on the politically difficult Senate bill. In fact, Members will still be on the hook for voting for "health care reform" no matter which way you slice it: they'll have voted on both the adoption of the Slaughter rule and on the fix bill, which constitute the whole thing.
2. The Constitution requires a vote of "Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal."
Wrong. This clause is written in such a way that it only applies to veto override attempts by Congress. The relevant section is as follows:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.
So a full vote is not required to pass normal legislation, and this is widely understood. The exact same mechanism of the Slaughter rule is used frequently, by both parties, for passage of the debt-limit through the House, but it’s known as the “Gephardt Rule” during that procedure. In that situation, the House deems the passage of a resolution that increases the debt limit to the level set forth in the budget resolution, contingent on the passage of said resolution. Nobody bats an eye.
The Slaughter rule, like the reconciliation process, is neither new nor controversial. It abides by the constitutional protection that "Each House may determine the Rules of its Proceedings," so long as a single bill passed by both Houses winds up on Obama's desk. That's exactly what the procedure is intended to do.
Update: Turns out Republicans have been doing exactly this for ages anyway, including on their own “trillion-dollar bills.”
“Slaughter’s Solution” – Health Bill Procedure Ready To Go
Should the House pass the Senate bill first? Can the Senate take up changes to an unpassed bill? According to House Rules Chair Louise Slaughter, the question is moot:
Slaughter is weighing preparing a rule that would consider the Senate bill passed once the House approves a corrections bill that would make changes to the Senate version.
Republicans are already attacking the tactic, calling it a "'Slaughter Solution' to Ram Unpopular Health Care Takeover Through Congress Without a Vote." Of course, they neglect to mention that it will in fact require a vote.
That a bill can be passed by a rule contingent on another vote is no news either; the House implicitly passes debt-limit legislation every year by rule when the budget resolution is approved: the "Gephardt rule." Like that, Slaughter's Solution is a brilliant solution to what has been an extraordinarily difficult procedural puzzle - and it should wrap up the process even sooner than expected.
Palin: Health Bill Too Conservative
She might as well have said it:
"We used to hustle over the border for health care we received in Canada," she said. "And I think now, isn't that ironic?"
You can just imagine her thinking "...because I want to deny American citizens that same quality of care."
