March 31, 2012

"The part I struggle with is how you undo two years worth of implementation..."

"It would leave tremendous uncertainty about what is the direction we’re going in and that uncertainty would obviously affect the patients directly."

Consider the argument — featured in the NYT — that it's too late to strike down Obamacare, because so much work and planning and money has already been sunk into implementing it. And yet some experts say that the"important dialogue that has happened over the last three and a half years" will make it "easier for Congress or the states to revisit the issue."

IN THE COMMENTS: John Althouse Cohen said:
Isn't there also an argument that the case isn't ripe yet because no one has been harmed? So it must be either too early or too late for the law to be struck down.

64 comments:

David said...

"Just Undo It."

John Althouse Cohen said...

Isn't there also an argument that the case isn't ripe yet because no one has been harmed? So it must be either too early or too late for the law to be struck down.

rcommal said...

"'X' shouldn't be struck down because it's too late to strike it down."

Now, there's a chilling idea for a general principle.

David said...

More seriously, this is one of the consequences of a careless and unconstitutional law. There have been three years of tremendous waste, plus the lost opportunity for implementing workable and constitutional policies.

This is due to the President's irresponsibility in failing to lead the process. As in the case of the stimulus package, he did not advocate much specificity and left the messy details to Congress. The Congress made a mess of it, as Congress will do with complicated matters.

The entire law is a product of pathetic irresponsibility and incompetence. (Not to mention the dishonesty in cost scoring, etc., etc.)

Baronger said...

"It is too late to undo segregation, after all how do you undo x years of implementation?", or add your choice of laws. Does the NYT, ever take a moment to ponder, what their statements might mean in a wider context.

As for its too early to have a case because no ones been harmed. How about all those environmental cases that are brought, to stop something. How can they bring those cases if no one has been harmed yet?

Ann Althouse said...

"Isn't there also an argument that the case isn't ripe yet because no one has been harmed? So it must be either too early or too late for the law to be struck down."

Yes. Excellent point. It's a neat trick, isn't it.

drozz said...

Who came up with that argument,, Lionel hutz?

Baronger said...

Ah, I see now. Clearly I need more coffee. Very neat trick.

Can we call it the, Jam Yesterday and Jam tomorrow but never Jam today rule?

Pastafarian said...

There's a kernel of truth to this; I think that the damage has been done, and that our current system of health insurance provided by employers has been destabilized.

The insurance companies don't know if they will, at some point, have to offer insurance to people who have just been diagnosed with some chronic expensive-to-treat disease; or if they'll be restricted, at some point in the near future, in what sorts of policies they provide or premiums they charge.

So they're going to price those scenarios in now, just in case. We'll see an acceleration of already rapidly increasing premiums until the only employers that will be able to afford to offer insurance will be GE, GM, and the government (but I repeat myself).

Obamacare was William Ayers' first successful time bomb. It hasn't gone off yet, but it will.

John M Auston said...

Who came up with that argument

Moe? Larry? Curly?

Let's see: Obamacare needs more time so we can see its true effects.

A demand from the very same people who refuse to give Walker and his policies more time.

Cognitive dissonance once again. No wonder they're always acting so angry. Their head hurts.

Almost Ali said...

I didn't win Mega Millions, but I'm still betting SCOTUS will NOT rule 5 to 4. No, my money is on 6-3, then 7-2, against.

There's also a case for 8-1, even 9-0, but this brings us back to millions to one. Still, I wouldn't fall off my chair.

(This is a Cafe cross-post. Because I was sitting there waiting for today's SCOTUS post, and lost patience. Then two seconds later it appeared as if by psychic forces)

Tibore said...

"Consider the argument — featured in the NYT — that it's too late to strike down Obamacare, because so much work and planning and money has already been sunk into implementing it."

Add the concept of "sunk costs" to the list of things that the NYT doesn't appear to understand or care about.

I understand that those editorialists feel obligated to defend certain ideological niches, but when such actions start to run afoul of generally accepted concepts and tread into known decision making traps, you'd hope they'd have the education and intelligence to see the problem and avoid it. But that's apparently not the case here.

rcommal said...

JAC: Zing! Excellent.

Pogo said...

"that it's too late to strike down Obamacare, because so much work and planning and money has already been sunk into implementing it."

Classic sunk cost fallacy.

The response is, why throw good money, work and planning after bad?

Admit the error and move on.

"sunk-cost fallacy
When one makes a hopeless investment, one sometimes reasons: I can’t stop now, otherwise what I’ve invested so far will be lost. This is true, of course, but irrelevant to whether one should continue to invest in the project. Everything one has invested is lost regardless. If there is no hope for success in the future from the investment, then the fact that one has already lost a bundle should lead one to the conclusion that the rational thing to do is to withdraw from the project.

To continue to invest in a hopeless project is irrational. Such behavior may be a pathetic attempt to delay having to face the consequences of one's poor judgment. The irrationality is a way to save face, to appear to be knowledgeable, when in fact one is acting like an idiot.
"

The Drill SGT said...

Notice that the times talks alot about the billions in sunk costs that have been pi$$ed away by the ill-conceived 2700 pages, but can't cite a single case (and you know they would if they could) about how the law has saved the taxpayers so much as a dime. Wasn't this going to be deficit reduction measure?

Pogo said...

@Tibore:

Great thinks mind alike!

Jason said...

Tens of thousands out of Medicare Advantage, insurers also forced to lift lifetime caps, regardless of actuarial soundness, and to take Junior regardless of preexisting conditions (resulting in a huge adverse selection problem in one-child families) and every insurer in the country dropping child-only coverage, which means if mom has a preexisting condition she can't get protection for a healthy child if she wanted to... and JAC thinks nobody's been hurt. Jeebus, you libs have GOT to get out more!

Tank said...

I wonder ... did JAC post this same concern when the voter ID laws were challenged, how about Arizona's immigration statutes?

Or did it only occur to him here to protect a law he favors?

CWJ said...

NYT reasons backward from its conclusion to find a premise. Funny how this argument was never put forward earlier. It was just as valid last week as this week. Only those struggling to find reasons for their pro-Obamacare beliefs will be swayed by this.

Fr Martin Fox said...

"Haha, too late!"

What cheerful little fascists some of these folks are.

The last few years have been a revealing illustration of what the social engineers are prepared to do if they get the power. Their fury is rising because they thought they had it, and the Constitution may yet trip them up.

(They've also illustrated a bi-partisan consensus of government vs. the herd; the threats to liberty are in both parties; but that's another thread.)

The only thing the powerful have left is the goodie-giveaway machine, which is running full-tilt, but burning out. If, as seems increasingly likely, this breaks down in the next few years...

Pogo said...

Most are unaware that features of the bill have already been implemented by health care organizations because the dates of implementation require them to begin the new mandates by then.

As a result, most large HCOs have spent boatloads of money on meeting those demands already.

And in response, there have been limits put on the percentage of Medicare patients that can be seen now.

Harm has indeed already been incurred.

Lem said...

Isn't there also an argument that the case isn't ripe yet because no one has been harmed?

I don't have to be prescient to know it is, or it would be harmful to be compelled to enter into a lifetime contract/servitude with a threat of a penalty.

Waiting to see if it is like asking my hand to give the hot stove a chance.

Tank said...

Lem

I think the "ripeness" questions involves whether there is an actual case or controversy for the Court to decide. That there is a separate constitutional issue.

Quaestor said...

JAC wrote:
Isn't there also an argument that the case isn't ripe yet...

I have'nt heard that argument. Also I didn't known constitutional questions ripen. If such a case were under-ripe -- i.e. green around the edges, too firm, little or no aroma -- could it just be placed in a brown paper bag for a few days?

Pogo said...

Maybe The Bee Gees can help:

How can you mend a broken law?
How can you stop the judge from voting it down?

Lem said...

I think the "ripeness" questions involves whether there is an actual case or controversy for the Court to decide.

I understand the "ripeness" deal.. as a way to avoid litigation of potential harm.

But, lets sort of turn it around.. doesn't the fact that the federal government has never done this before.. as I've read here.. something about a fundamental change in the relationship of government and the governed.. doesn't that history of limitation/caution stand for anything?

My point is if there is a line somewhere and this isn't it.. then I dont know.. there is no line.. the government can pretty much compel you to do anything..

Its over brockley.

DADvocate said...

The old argument that the Constitution means nothing to lefties rings truer every day of Obama's administration. Yet, the MSM has lot their interest in fighting the erosion of our rights since the eeeevul Bush left office.

SGT Ted said...

Well, alot of planning and work was involved in keeping slaves too. Lots of planning and work went into implementing Jim Crow laws, too. I guess we should have kept that going.

Nevermind an actual Contitutionality of the law. The question is "How much money have they already spent?"

The Progressive European Union Court Justices on the USSC are really stretching to find a way to ignore the Constitution and the peoples rights. They certainly aren't acting like justices using the Constutution of United States as their guide.

Is this what a legal "education" does to people? Make them highly articulate and incredibly stupid?

Why are we allowing them to rule us again?

No, they actually don't have the final say on what rights I am allowed to keep. Just ask the Negro slaves.

Lem said...

I have to go.. so if you don't hear from me.. blame the Obama economy, I have to work on Saturdays.

Shame ;)

Quayle said...
This comment has been removed by the author.
SGT Ted said...

Isn't there also an argument that the case isn't ripe yet because no one has been harmed?

So, we can keep un-Constitutional laws on the books as long as no one is "harmed"?

How convenient.

Quayle said...

(Shorter Quayle)

In business, inevitably when some big program is failing, there is always some idiot that advocates continuing to spend based on the sunk costs - how much has already been wasted.

It is an amateur argument for suckers.

The only analysis is: what do we get for the next dollars.

rhhardin said...

Members of the US supreme court are not the nation's legal best and brightest. They are not chosen for wisdom. They are chosen because they are the least creative, the least imaginative, and therefore the least controversial among the nation's prominent legal minds, and so are least likely to generate bad headlines for the administation in the nomination process. They are, in short, a bunch of mediocrities.

- John Derbyshire, explaining the failure of the Bork nomination, but commenting on the Obamacare hearings.

edutcher said...

With this kind of "logic", you would never have had the '64 Civil Rights Act.

This is where Michele Bachmann's Mother of All Repeal Bills comes into play.

David said...

"Just Undo It."

Undo The Wrong Thing.

F said...

What I find hard to understand is that the law was as shoddy as it was. Here's a legislative idea Democrats have been dreaming and scheming about for decades -- almost since FDR. Yet when they get the Congress and White House they are not ready to move and end up cobbling a monstrosity that clearly has errors in it. If universal health care is such an important policy effort, why has some staffer or some think tank been drafting this for years, just waiting a moment like occurred following Obama's election? Yes, Hillary got her wrist slapped 15 years ago, but why was that not a lesson in what not to do instead of causing somnolence all around? And why was this bill larded up with so much extraneous material that it just begged for attack? It is hard to take this bill seriously because it is so shoddy. Which is not to say that is why it will be struck down, but I go back to my original point: if this policy is important to the Democrats, why has someone not been working to make it right just in case, instead of creating a hodge-podge that "has to be read to know what's in it"?

Richard Dolan said...

Ripeness like the requirements governing standing is rooted in Article III's limitation of judicial power to "cases and controversies," which much be actual rather than theoretical. The difference is that, while the "injury in fact" standing rule is mandatory, ripeness has an element of judicial discretion in its application (as with fruit, people will differ about how ripe is ripe enough). So it's quite odd to see complaints that JAC is doing something constitutionally sneaky by raising the issue here. Quite the opposite.

The constitutional issue also bears a family resemblance to the statutory issues that concerned the Court on the first day of argument -- is the challenge barred by the Anti Injunction Act, which (if the statute is essentially a tax) defers judicial consideration until after the tax is paid and a refund demanded.

For its own reasons, the Govt didn't rely on those doctrines to try to avoid a ruling now. And, given that the case turns on a facial challenge to the statute (rather than as-applied), and that at least some of the plaintiffs can show actual injury (having to take steps now only because of the statute's requirements), neither ripeness nor standing concerns really apply here.

Rick67 said...

We've spent so much time, money, and human energy into creating this giant instrument of our own demise.

@Pogo - "Sunk cost fallacy". Nicely played.

Richard Dolan said...

rhhardin: "They are, in short, a bunch of mediocrities," quoting someone else dissing the current justices.

Well, rh, you say up-thread that you're more skilled as an economist than others. So let's run with that. What's your scale of achievement that leads you to think the current justices are, as a group, just "mediocrities."

Your loyal readers want to see the charts, graphs, equations and data. Cough it up.

rhhardin said...

Well, rh, you say up-thread that you're more skilled as an economist than others. So let's run with that. What's your scale of achievement that leads you to think the current justices are, as a group, just "mediocrities."

It's the expected result of the nomination process. That's economic reasoning for you.

It doesn't occur to law types.

Indigo Red said...

We've heard the argument before - too big to fail, too much blood and treasure to pullout, that these honored dead shall not have died in vain - with the result being pouring good blood and treasure after bad until one side or the other just quits for lack of blood and treasure.

We learned as children, "If at first you don't succeed, try, try again." From my very youngest days, I've thought that to be a stupid proposition. If what you're doing isn't working, or it's not what is wanted,stop.

It's like that old joke: A man goes to his doctor and says, "Doc, my arm hurts when I do this." Doctor says, "Don't do that."

There's nothing that's started that can't be stopped.

YoungHegelian said...
This comment has been removed by the author.
YoungHegelian said...

Oh, Oh, now that it's their ox getting gored the liberals are concerned about the costs of "implementation".

I didn't see no liberals gettin' all bent out of shape when the Supreme Court banned segregation in the South. Talk about costs of "implementation"!

Unconstitutional is unconstitutional. If you don't want to do the time don't do the crime!

Tibore said...

@Pogo

Great minds? What does that have to do with us? ;)

Just Lurking said...

From the article:
"...policy experts, insurers, doctors and legislators are now seriously contemplating the repercussions of a complete change in course two years after the nation began to put the law into place."

Change brings uncertainty. No kidding. But this type of thinking can be used to argue for repealing the bill. How can we contemplate the future repercussions of fully implementing the rest of this 2700 page bill, that no one has read?

It could be used to argue against any grand transformative bill- aka the types that progressives love. Do they really want to go there?

They are being intellectually dishonest (no surprise).

John Althouse Cohen said...

So, we can keep un-Constitutional laws on the books as long as no one is "harmed"?

How convenient.


That rule comes from the text of the Constitution (Article III).

John Althouse Cohen said...

So it's quite odd to see complaints that JAC is doing something constitutionally sneaky by raising the issue here.

Also, I didn't take any position on anything. I pointed out two different things that other people have said. My mom clearly perceived the irony in this juxtaposition when she quoted my comment on the front page.

Just Lurking said...

I said:
They are being intellectually dishonest (no surprise).

In case it is unclear, "they" refers to the NYT and any other liberal pundit that pushes this argument.

Jay Vogt said...

Inertia is all fine and well as applied to physics, but it reeks of desperation as a applied to the law.

KJE said...

Drozz for the win.

Ann Althouse said...

"Also, I didn't take any position on anything. I pointed out two different things that other people have said. My mom clearly perceived the irony in this juxtaposition when she quoted my comment on the front page."

Ha ha.

Yeah... and by the way... I've been teaching the justiciability doctrines, including standing and ripeness, at the law school level for more than a quarter of a century.

An elaborate explanation of why it makes sense to say "ripeness" here could be done, but I'm not going to do it right now.

Suffice it to say that on Day 2 the government's lawyer talked about justiciability so much that Sotomayor, who was trying to help him, said she'd asked him 3 times to stop talking about it.

The point was: There are so many provisions in the act, and there are parties attacking some of them and claiming an injury, but then there are so many other provisions of the act where no one with an injury is in court, etc.etc.

There was a lot of that. And ripeness is a prudential term that is used to express the idea that it is too soon -- at to early a point in the development of the facts -- for the court to address the issue.

SGT Ted said...

Spending billions we don't have isn't "harm"?

Jay Vogt said...

The proper response is that of Alec Guiness at the one minute mark of this clip

http://www.youtube.com/watch?v=PskoqCtRFD4

Jay said...

John Althouse Cohen said...
Isn't there also an argument that the case isn't ripe yet because no one has been harmed?


You mean "not harmed" other than double digit increases in insurance premiums, right?

HT said...

Well, I haven't finished reading the article yet. If it advocated a particular position, so be it, ok. I haven't seen it yet. But it also, you know, imparted information, information that a lot of people probably did not know. The love-hate relationship with the NYT on this blog grows tiresome sometimes.

Bender said...

Ripeness and standing were raised as issues on the very first day of the very first cases to be brought against ObamaCare.

All of the cases brought by individuals, for example, raising claims related to individual personal liberty (due process, etc.) were dismissed as not being ripe. No person is yet subject to the individual mandate. But states and insurers are still burdened by it because they have to take certain steps now in preparation for the entire scheme. Hence, the states and insurers being able to go forward on their claims that ObamaCare is not within the enumerated powers of Congress.

Other cases were dismissed on standing grounds, although ripeness played a role there too.

In any event, Scalia had an interesting exchange on the matter of standing, pointing out that for some provisions, regardless of how unconstitutional they might be, there was no one who might be able to establish standing, other than taxpayer standing, which the Court has rejected except in religion cases. And the response of the government lawyer (Kneedler) was, "so what?"

JUSTICE SCALIA: Mr. Kneedler, there are some provisions which nobody would have standing to challenge. . . . But nonetheless, that has to continue because there's nobody in the world that can challenge it. Can that possibly be the law?
MR. KNEEDLER: I think that proves our point, Justice Scalia. . . .
JUSTICE BREYER: What he's thinking of is this: I think Justice Scalia is thinking, I suspect . . . Does the government just sit there
collecting half the money forever because nobody can ever challenge it? You see, there -- if it were inextricably connected, is it enough to say, well, we won't consider that because maybe somebody else could bring that case and then there is no one else?
I mean, is that --
MR. KNEEDLER: Yes, we think that is the proper way to proceed.

furious_a said...

Sunk Cost Fallacy, maintaining a losing project because of money already wasted on it.

Among problem gamblers it manifests itself as staying at the table to recover one's losses.

Bender said...

About that "uncertainty" -- that certainly is an argument in favor of nonseverability, of striking down the entire thing.

Make no mistake, this is not the only challenge to ObamaCare. There are countless others out there just waiting to be litigated. Does society have to just sit and wait for all of these issues to be decided. Do we have to continue to endure the uncertainty that has persisted the last two years concerning whether the law is going to stand or not?

The only way to remove any uncertainty is to strike down the entire thing now, and not have to deal with it piecemeal in subsequent years, which was Clement's penultimate point when he mentioned the Buckley experience.

furious_a said...

"Isn't there also an argument that the case isn't ripe yet because no one has been harmed? So it must be either too early or too late for the law to be struck down."

Didn't Nancy Pelosi already make that argument?

"We have to pass the law in order to know what's in it."

If I'm in a crosswalk and a car is hurtling toward me, I don't need to wait for it to strike me to know I'd be harmed. "Lionel Hutz", someone said...

X said...

I guess you could just assume no one has been harmed yet. Doesn't make it so.

X said...

I've seen the non-ripe argument. It just seems an odd thing to argue when your side is the one claiming inactivity is activity.

Not buying insurance = interstate commerce.

Obamacare = no effect on interstate commerce 2 years after enacted. wait, what?

bagoh20 said...

It's also too late and too early to cut spending in any way, and always was and always will be.

bagoh20 said...
This comment has been removed by the author.
SGT Ted said...

I would say that the harm was done when they passed a 2700 page bill into law without reading it.

We really have no protection against that, do we? Not really, we just have a crapshoot called the USSC, where leftist lawyers unmoored from the Constitution rule on things they'd like to have, because Europe has them. Quite frankly I see it as a violation of their oaths to defend the document they are trying real hard to subvert with legal-babble, which amounts to "The Feds can do whatever the fuck they want. All money belongs to them to redistribute as they see fit, as long as its an idea we approve of, like Government run healthcare."

When I took my oath to defend the USC, I didn't then pour through it to find justification to depart from it or ignore it. And that is exactly what the Progressive judges on the court are now doing. They aren't "interpreting", they are making shit up.

I didn't serve for 26 years to discard the Constitution in favor of European Progressive Authoritarianism.

Bender said...

We really have no protection against that, do we? Not really

Well, in theory we also have the protection of, for example, a succeeding House of Representatives providing a check by refusing to fund such unconstitutional monstrosity or, if necessary, refusing to fund other desired things unless and until the unconstitutionality is repealed.

But, as we have seen, the Boehner House has refused to provide such a check. They have taken a couple of show votes to repeal, but they have not exercised the full extent of their constitutional power, they have voluntarily not provided the check and the balance that the Constitution provides for.

Instead, the Boehner House has aquiesced and gone along with it, even though the ONLY reason that the Republicans were elected was to provide such a check and balance. Instead, they screwed the people who voted for them.