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CNN’s Toobin: ‘This Was a Train Wreck for the Obama Administration’

“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.” – Jeffrey Toobin, CNN legal analyst



The individual mandate was the focus today and by all accounts it didn’t go well for Pres. Obama and the administration.

I’ve said from the start that the individual mandate was a horrendous component and the toughest aspect. It’s why those experts who suggested opening Medicare “for all,” starting at those around 55 years of age, was the best avenue from the start.

If the individual mandate is struck down by the Supreme Court, Pres. Obama will be blamed for not listening to movement progressives on the public option, but also making a blunder founded on timidity instead of fighting for what public opinion proved the American public supported, the public option.

Politically, if the mandate is struck, and we still do not know if it will be, Mitt Romney and his team are likely salivating over the possibility of being able to say that no part of his state health care insurance was found unconstitutional.

Today has to be troubling for the Obama administration and Democrats, though we won’t know anything for sure until late June.

As I wrote yesterday, Justice Roberts should have allowed the hearings televised or at the very least made some contingency for the new media culture in which we live. We’re seeing the beginning of the end of Supreme Court secrecy. In fact, it’s already been broken.

From the New York Times:

The Alliance Defense Fund, which identifies itself as a group that defends “religious freedom, the sanctity of life, marriage and the family,” started Tuesday morning posting live updates on Twitter of what the justices and lawyers were saying.

“Justice Scalia: What is left? If Congress can do this … what can’t it? #ObamaCare #SCOTUS,” the group said on Twitter.

Four minutes later, the group posted again: “J. Roberts says not every person to whom mandate is applied will need pediatric care, sub. abuse. Etc but all must pay. #ObamaCare #SCOTUS.”

The story on how the tweets got out, but also how the Wall Street Journal is breaking live updates in their “live blogging” is predictable.

Conservatives are trumpeting FNC’s headline, “Obama lawyer laughed at in Supreme Court.” Fox News Channel, as well as Rush Limbaugh, blasted it out with glee. It turns on the word “tax” versus “tax penalty.” So, nothing to see there, moving along.

However, it’s clear that the Obama administration’s case for the individual mandate is being greeted very skeptically, which doesn’t surprise me in the least.

“The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides, all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were — they did not meet with their success with their colleagues,” Toobin said.

As for those four liberal justices, if Chief Justice Roberts joins them, it’s all it takes.

Nothing is certain and no one should take oral arguments and the reporting from them as predictive, though all of it combined is obviously foreshadowing.

37 Responses to CNN’s Toobin: ‘This Was a Train Wreck for the Obama Administration’

  1. Mutaman March 27, 2012 at 2:03 pm #

    This fellow Tobin has never been very impressive. On Monday night he’s saying the law will be upheld 7-2, and 12 hours later he’s doing a total flip flop. You can’t let oral argument change your opinion like that. Its only a small part of whats going on.

    That being said , its better to know the Judge than to know the law: There are 5 right wingers up there (See Bush v Gore, see Citizens United). How do you think they are going to vote?

  2. Audrey March 27, 2012 at 2:10 pm #

    Whenever I think of the mandate issue in Obamacare, I am reminded of the ruthless way that candidate Obama went after candidate Hillary for having the mandate in her health care plan. I remember the flyer the Obama campaign mailed out to hundreds of thousands of Americans, just before the Indiana primary, which basically accused Hillary of wanting to have Americans jailed if they didn’t buy insurance. And I remember Hillary’s public display of anger (justified anger), at Obama for doing that. I remember too much about Obama. If I still lived in the United States, I would not vote for him in the next election. I simply would not vote.

    • whitepaw March 27, 2012 at 2:18 pm #

      Audrey — I remember it as well. But everyone says you just do not know what you are getting yourself into until you are actually POTUS…. meaning it is OK for Obama to change his mind about any and everything.

  3. Cujo359 March 27, 2012 at 2:32 pm #

    Today has to be troubling for the Obama administration and Democrats, though we won’t know anything for sure until late June.

    I’d love for the mandate to be struck down, but I don’t see much point in trying to read the tea leaves here. We’ll know in June. Either way, I doubt it will have much impact on the 2012 election. The full consequences, excuse me, “benefits”, of the ACA don’t kick in until 2013 or later. The economy and ineptitude of the GOP candidates, or lack of same, will be far more crucial.

    If you want to worry about something beyond our control that’s related to the elections, worry about whether Europe is going to drive itself over a financial cliff by then.

    • whitepaw March 27, 2012 at 2:53 pm #

      So true!

  4. LiberalJoe March 27, 2012 at 2:36 pm #

    I’m a single payer advocate, medicare for all, you name it.

    I absolutely hate the mandate without the public option or medicare for all /over 55. Truth be told I’m hoping it’s not upheld. However, the sad part about the mandate being overturned is that the gutless Dems, even if they get control of both chambers of Congress as well as Pres Obama or any other Dem President, will view it as a signal to give up on universal healthcare and we shall never see any movement along those lines for another generation. As a result of this more folks will be crippled by medical costs , go into bankruptcy, not be covered, etc. (BTW unless I’m mistaken VP Biden when he was Senator -he voted for that horrible bankruptcy bill that did not give an exclusion for medical expenses or illness)

    All because the Pres was timid in fighting for a public option or medicare for all/over 55 and because the progressive Dems in Congress lacked the guts to fight. So the result was an ACA bill that contained Stupak and gave Repubs further encouragement to go after women’s rights. as witnessed by the War on Women they are waging at present.

    Saying I told you so is no solace.

    • Ga6thDem March 27, 2012 at 3:10 pm #

      I second the great post. Hillary said she wouldn’t even try to tackle this until her second term and all the O-bots howled to the high heavens. Obama thought he was just too clever by half with everything he did and now it’s coming back to bite him.

      Of course, if this fails, then single payer is the only option for the country.

  5. whitepaw March 27, 2012 at 2:55 pm #

    Great post LJoe…

  6. ogenec March 27, 2012 at 3:24 pm #

    I have to confess, I never understood why so many analysts were so confident that the law would be upheld by SCOTUS. The Administration arguments proved too much: That people who refused to buy insurance could nonetheless be compelled to purchase said insurance. Why? Because by not buying insurance, you were nonetheless engaging in commerce. What?!?!? As one of the justices asked, where does this end – if the government can create commerce, then turn around and regulate it, what is left of enumerated powers?

    By the way, the issue is not solved by a public option. Not sure why people keep mentioning that. The issue is compelling an individual to buy “something,” not what that “something” is. No such issue exists with single-payer. But if Medicare, Medicaid and Social Security have taught us anything, it’s that we should be extremely leery of creating another such program.

    • Cujo359 March 27, 2012 at 6:01 pm #

      By the way, the issue is not solved by a public option.

      Speaking only for myself, it would have made the mandate more palatable. If the government were willing to offer its own service, then that would at least have the effect of keeping insurance honest. Without it, and given the lack of any real regulatory clout to go along with all those new regulations the insurance companies are supposed to follow. I bet that will go just how all the prosecutions for control fraud have gone after the crash of 2008, which is to say that we wouldn’t see any.

      You’re right, of course, that has little, if any, bearing on the constitutional questions. Those questions would have been asked, public option or no, because the insurance companies have all our money, so they can afford to take on the government in court.

      The only real difference is how I’d feel about it.

      • whitepaw March 27, 2012 at 7:34 pm #

        Yes… Me too.. and how I would feel about it. Which of course does not play any role in how the Supreme Court decides. I just wish we did not have to wait until June for their answer.

  7. Art Pronin March 27, 2012 at 3:29 pm #

    This is very worrisome . For 80 New Deal court policy has ruled w/commerce clause etc. Now it could be tossed.My family is counting on ACA to help pay the premiums we fear cannot be paid much long. Millions are in the same boat. If a 5-4 ruling is made against Obama’s sig policy I wonder if hell will be paid as Dems flood the polls ina fury.
    Our Sec Gen was unprepared today all say and got hammered. Obama’s camp must look now at othe roptions for hcr- incl opening Medicare. Im worried now about Medicaid expansion-up tomrw.

    • Cujo359 March 27, 2012 at 6:08 pm #

      I believe that is “sol gen”, Art, as in “Solicitor General”, the DoJ appointee who argues cases before the SCOTUS. For a moment, I was wondering what the U.N. had to do with this. No doubt they’re involved, what with their black helicopters and all. ;-)

      I’ll be quiet now…

      Actually, I think that there are probably limits to what the commerce clause can allow. There ought to be. I’m tired, for instance, of the DoJ trampling on states that have legalized marijuana in some way, which is justified based on that clause.

  8. StrideHyde March 27, 2012 at 5:20 pm #

    There are a number of people like Art who are in a position to be hurt if this is struck down. I really wonder how posters here think our chances of a single-payer system are given the level the national argument has sunk to. Good luck with that. Are we really going to repeal not only Stupak but also the Hyde amendment? (no relation, by the way). And for those who propose extending Medicare down to age 55, great, but what do we do with the younger uninsured people?

    • Cujo359 March 27, 2012 at 6:20 pm #

      With Medicare lowered to 55, and if Medicaid were still available to those at 1.5 times the poverty level or lower, most folks who need insurance would have been covered. There are still lots of folks who won’t be “covered” under the ACA, so it’s not like that act is consequence-free. In this hypothetical plan, most folks who are still in their prime working years might be covered by employer-provided insurance.

      The other question is this: What do you mean by covered? I see absolutely no reason to believe that I will be “covered” by the ACA in any way other than that I will be forced to pay for insurance that I will not be able to afford to use, or will turn out to not be worth a damn because it pays late, doesn’t actually cover things it says it should, and so forth. If you think a years-long court battle to resolve those issues is a viable option for sick people, then you need to think again. Plus, in contrast to insurance companies, most of us just don’t have the money to keep making that case until they relent. There is no enforcement provision in the ACA. They’d need a budget in the billions of dollars to credibly enforce those regulations. Where is that money going to come from?

      For every person who is likely to be helped by the ACA, there are dozens who will get screwed. So what about them?

  9. Sagacity March 27, 2012 at 5:23 pm #

    ogenec says “But if Medicare, Medicaid and Social Security have taught us anything, it’s that we should be extremely leery of creating another such program.”

    What? If a government serves its people, those programs are the US government’s best. And the reason a public option would have worked is that it would inevitably cost less than other insurance and eventually everyone would move to it–without any mandatory requirement. The mandatory requirement was for the insurance companies. Most of the AFA was written by and on behalf of the insurance companies. Our irritating Dems wanted to do something that looked like addressing healthcare but still made their campaign contributors happy. If they had wanted to do the right thing (and by the way, had another 30 year run of controlling government similar to the New Deal), they would have passed the public option and called it Medicare for All.

    • jinbaltimore March 27, 2012 at 6:14 pm #

      This is mostly true…not sure about your use of “public option,” where I might have chosen Universal Health Care, i.e. Medicare for all. But yes, if the Democrats had wanted to please people (and not their corporate donors), this is what would have happened…that’s why “serious” people talked it down.

      I hope the Supremes strike out the mandate, but doubt it, given their corporate-friendly leanings. This “train wreck for the Obama Administration” could all be kabuki theater for all we know.

    • ogenec March 27, 2012 at 9:43 pm #

      What what, sagacity? You seem to be missing my point. I’m not saying those programs are bad. I’m saying that, invariably, their cost projections are way off the mark. It happens every time. the 2012 trustees projections are not yet out (to my knowledge, anyway), but I looked at this issue back in 2011: http://the44diaries.wordpress.com/2011/05/26/why-bill-clinton-is-right-on-medicare/

      Here is the problem, in a nutshell. Costs are understated (benign explanation) or outright fabricated (cynical explanation) to appear low. Then, when costs exceed projections and thereby threaten long-term viability, three options present themselves. One, raise taxes. Two, cut benefits. Three, impose the extra cost on some unsavory third party. Republicans and Democrats won’t abide Option One: republicans hate all taxes, and Democrats insist only the rich pay for them, which won’t generate enough to fill the gap. Option Two is anathema for the beneficiaries, all of whom – even the hardcore Tea Party Patriots! – are too fond of their benefits. Option 3 is viable, so long as you can find an unfortunate enough donkey to pin the tail to. But that tactic has a short shelf life, because the donkeys wise up soon enough and threaten to leave the system.

      Thus it is that the “doc fix” tries to solve the medicare funding problem by cutting reimbursements to doctors. You understand, this doesn’t do anything to fix cost escalation, It just forces doctors to absorb the cost increase. Except, now that doctors are leaving medicare in droves, that option is increasingly not feasible. Which is why the Congress keeps pushing off the doc fix, even as the CBO is required to assume that the cumulative effect of the cut – now over 30% – will one day be made.

      It’s also why COLA adjustments to SS were made last year, even though because of the recession, there was no increase in the CPI (and, hence, there should have been no increase in COLA payments). I’m not saying the adjustment was not warranted on other policy grounds, only that the growth in these programs is hard to corral.

      So when people tell you that single payer will reduce costs, heal the afflicted, and leap tall buildings in a single bound, retain some small amount of skepticism. People who tout Medicare as a prime example unwittingly prove my point: The costs are artificially low because of negative externalities imposed on the provider end of the equation.

      When the 2012 Trustees’ reports come out, I will post an update (and compare against my post in 2011). And you will see that the dire projections from 2011 look rosy in retrospect.

      • Ga6thDem March 28, 2012 at 6:47 am #

        What you don’t understand is that Medicare covers the part of the population with the highest medical costs. With something like single payer, you are putting a lot of healthy people into the mix which changes the cost equation. Something like 1/4 to 1/3 of Medicare costs are from end of life situations.

        • ogenec March 28, 2012 at 7:24 am #

          No, I understand that very well. I agree that putting young people in the mix helps. But it’s not enough to counter the moral hazard problem: that if the government underwrites something, people will consume more of it. Just as government loans act to jack up tuition, or tax benefits contribute to the escalation of home prices. And your argument doesn’t address SS, which is experiencing the same problems.

  10. StrideHyde March 27, 2012 at 6:14 pm #

    If the mandate is struck down the guaranteed issue and renewal will go with it. We will be back to insurance being unavailable to those who need it the most.

    • Cujo359 March 27, 2012 at 6:28 pm #

      Being forced to buy insurance you can’t afford to use isn’t being “covered”.

      As for the need for the mandate, I think if they had concentrated efforts on enforcing the regulations that health insurance will supposedly have to follow, the insurance companies would have been just as well off. People who are careful, but know how health insurance will take advantage of any customers it can afford to, would be more likely to buy insurance if they thought it would pay out when it was supposed to. Those people would tend to increase both profits and pool money if they were available. I know of no evidence-based study that shows that a mandate is necessary given the “no pre-existing conditions” requirement being done away with, and I keep asking for anyone who believes otherwise to show me one.

  11. StrideHyde March 27, 2012 at 6:34 pm #

    Not sure if that was directed at me Cujo but I disagree with your assertion that most people would be covered with only the expansion of Medicare and Medicaid. I also don’t know where you are getting your assumptions about the plans on the exchanges. They will be required to cover certain benefits under the law and, in addition to the federal subsidy that kicks in at 4X federal poverty, there is also the stipulation that premiums not exceed 9.5% of household income. Now you can certainly argue that the “tax penalty” for not buying insurance is low enough that people will choose that and you can also argue that the cost of federal subsidies will rise too fast. But the rest of what you are saying sounds like a lot of assumptions not based on actual facts or knowledge of the statute.

    • Cujo359 March 27, 2012 at 6:54 pm #

      I disagree with your assertion that most people would be covered with only the expansion of Medicare and Medicaid.

      Age discrimination in hiring, which often as not has to do with the increased cost of health insurance, starts at around age 55. Expanding Medicare takes care of that problem. At the other end of the age spectrum, most folks in their late teens and early twenties are in low-paying jobs. They would be more likely covered by the expanded Medicaid (only part of the ACA I thought was worth crap, actually).

      Nor do I, nor the person who originally mentioned that idea, think that it should have stopped at 55. That’s the next logical step, though. Eventually, health insurance will discriminate itself out of so many market segments that it won’t have one anymore. Until that day dawns, though, keep lowering the Medicare eligibility age every few years, and we’ll be there before too long.

      Read again, carefully this time, what I wrote. I said I would be forced to buy insurance I could not afford to use. Let me make that more clear. I couldn’t afford to use it, or it would not actually pay out like it’s supposed to. Do I need to repeat that? It’s not that we can’t afford paying for the insurance. It’s just that it’s only protection money – it won’t actually do anything for us. If you try to buy insurance on the open market, you’ll find out this is true. They can screw us, because we aren’t part of a big group of customers who can punish an insurance company when it screws its customers. They charge us more, and they’ll screw us more. Little of that will be changed by the exchanges.

      Oh, and that’s another reason to start Medicare at 55 – the insurance companies can still charge much, much more for health insurance for those in middle age or older.

      And let me repeat this one more time, because apparently this didn’t get noticed, either. There is no means for enforcement. I’ve explained that statement already, but I’ll add that in government, you learn quickly that any department that doesn’t have a budget and a mandate isn’t serious. There is no budget. It’s not serious.

      Anyway, I’m bored with this subject. Carry on.

  12. Lake Lady March 27, 2012 at 6:48 pm #

    According to Dr. Emmanual on MJ this morning that has been tried and it always fails because young helathy people still don’t buy insurance and just show up at the emergency room needing care the cost of which gets passed on to people who do buy insurance in the form of higher rates.

  13. Art Pronin March 27, 2012 at 6:50 pm #

    Note Sotomayer today mentioned why not have govt issue hcr itself-
    http://fdlaction.firedoglake.com/2012/03/27/reminder-no-one-disputes-the-legality-of-single-payer/

  14. StrideHyde March 27, 2012 at 6:54 pm #

    Here is a study http://www.rwjf.org/files/research/73812.5598.qs.individualmandates.pdf sorry, not sure how to make that pasting look neater, I’m using an old computer. But basically it backs up what Lake Lady is saying. If people wait until they are sick to sign up it leads to adverse selection. In order for insurance whether public or private to work, the cost for a few has to be borne by the many. 5% of our population account for 50% of health care costs. That sounds grossly unfair, but you never know when you might be in that 5%.

    • Cujo359 March 27, 2012 at 7:06 pm #

      I remember this study, but I’m reading it again. I still don’t see any validation that what I said isn’t true. And what I said, just to be clear, is that there is no actual evidence to suggest that strict enforcement of regulations mandating things similar to what the ACA mandates, minus a mandate, wouldn’t be just as profitable and/or efficient.

      The point Lake Lady made about emergency rooms is another of these – suppose those folks had insurance. Would they be visiting health care facilities more often for non-emergency treatment? Probably. Emergency room care is the least efficient way to provide care from a monetary perspective. But that’s transaction-based thinking. What’s the overall cost relative to the other? I’d bet it’s less, but when we talk about insurance companies and their risk pools, we’re not talking about health care costs. We’re talking about insurance company profits, because what is being said here is that it’s not fair to make insurance companies cover all people, but not all people join the system. The question then is, who actually doesn’t join the system, based on something besides guesswork.

      We do things very wrong in our health care system, and I think that the way it’s financed is a big part of the problem, but that’s another story.

    • Lake Lady March 27, 2012 at 11:02 pm #

      Thanks :)

  15. Lake Lady March 27, 2012 at 6:55 pm #

    Heathcare Insurance should be not for profit,period. It once was. Our corrupt system could never abide such a thing now.

    My question is why is everyone associated with this effort so lacking in talent? That now includes our solicitor general. Is it evidence that people with skills and talent just don’t do government service anymore?

    • Cujo359 March 27, 2012 at 7:30 pm #

      My opinion, based on having worked within a large government agency for a long time, is no, there are still competent people in our government. In matters where there isn’t a high degree of political influence, I still trust what the government tells me a lot more than many commercial sources of information (like radio, TV, etc.)

      Heck, I even trust the CIA sometimes.

      I think what has been lacking lately is leadership, and specifically, leadership that is affected by what affects most of us. When our leaders are invariably well off, and invariably unaffected by issues like health care coverage, the decisions they make are far less likely to be determined by how what those decisions will turn out for us. Our leaders are so isolated from us now that I really don’t even think of them as leaders, I think of them, and often call them, rulers.

      • Lake Lady March 27, 2012 at 11:01 pm #

        You are right Cujo~ We have a leadership problem

  16. Lake Lady March 27, 2012 at 6:56 pm #

    healthcare…what happened to the handy edit feature?

  17. TPAZ March 27, 2012 at 8:28 pm #

    Plan B: Medicare for All. We can convert the 3,700 post office stations scheduled for closure to sign up and service Americans for five years until 2018. The 35,000 postal employees due to be phased up through attrition can be retrained to operate these conversion facilities. This will prevent creating newly unemployed in a fragile economy. Private industry can supply new software and hardware for this new venture. After 2018, a $2.00 per gallon tax on gasoline will start to pay for universal healthcare.

  18. StrideHyde March 27, 2012 at 8:57 pm #

    “Read again, carefully this time, what I wrote. I said I would be forced to buy insurance I could not afford to use. Let me make that more clear. I couldn’t afford to use it, or it would not actually pay out like it’s supposed to.”

    OK, I give up. I do not understand what you mean by this statement. I don’t know what you base the assertion on that it won’t pay out, except that you have had bad experience in the past. Fair enough. The PPACA is intended to prevent some of what you seem to be complaining about. The means of enforcement is a tax penalty when you file, though I agree, not much teeth there because the penalty is so low.

    I do not buy the assertion that most people in low-paying jobs are younger and healthier. There are people who move in and out of coverage because they are temp workers, workers who work contract to contract such as the construction trades etc.

    There are two types of people who cost the system a lot of money, the acutely ill (that can be any of us) and the chronically ill (that also can be any of us, but we might be able to control that through lifestyle to a certain extent). The idea of a majority subsidizing a minority sounds very unfair, but that is basically how insurance works, be it public or private.

    You can talk about insurance company profits all you want, and I won’t defend them. But when we are talking about spending trillions on care, the millions that executives are paid don’t look like the principal driver of the problem. If you are opposed to the idea of for-profit insurance (as Lake Lady does) then I think you are on to something.

    I also agree that the Obama administration has done a terrible job of explaining this to everyone.

  19. JoeCHI March 28, 2012 at 5:27 am #

    “Present.”

  20. mjsmith March 28, 2012 at 9:01 am #

    The Obama team and the Democrats dropped the ball on this issue was when they refused to meet with and work with the Republicans. Senator John McCain sincerely wanted to work with them on this and President Obama’s reply to him on National TV – “John, the Election is over.” At this point I lost all confidence the President Obama has what it takes to be an effective leader. When Republicans and Democrats work together on an issue, the first things to go away are the bad ideas. President Obama had a great opprotunity to work with the GOP and incorporate some of the great ideas they have into the proposed reforms and get rid of the lousy and awful aspects the Democrats put into their laws. Rememebr candidate Obama did not have this crazy mandate in his Health Care Reform plan that is getting ready to be declared Un-Constitutional, and rightfuly so, by the Supreme Court. Nanay Pelosi said after the bill is passed people can see it and then they will like it. The opposite is true. THe bill passed, and the facts clearly show in poll after poll that the People do not like this or want this.

.... a writer is someone who takes the universal whore of language
and turns her into a virgin again.  ~ erica jong