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The Supreme Court, the Election Returns, and Mandatory Health Insurance:

David Bernstein's recent post raises the issue of how the political situation might affect the Supreme Court's consideration of a case challenging the constitutionality of the Obama health care bill (should it be passed). I tend to agree with David that the Court is unlikely to invalidate any important parts of such a bill so long as the Democrats retain control of both the presidency and Congress.

Some argue that the Court simply "follows the election returns" and only invalidates legislation that the voters dislike or at least don't care about. That is clearly an overstatement. The Court has sometimes invalidated popular laws or practices. Think of the school prayer decisions and the flag burning cases, in both of which areas the Court repeatedly issued rulings that the vast majority of voters disliked. The Court also sometimes upholds very unpopular laws against constitutional challenge, as in Kelo v. City of New London. However, it is extremely rare for the Court to strike down a law that enjoys strong majority support from both the general public and the political elite, and is a major item on the current political agenda. Doing that is likely to create a head-on confrontation between the Court and the political branches of government, which the Court will almost certainly lose, as happened when the Court struck down various New Deal laws in the 1930s.

When the Court has invalidated popular laws, it has usually been in fields where political elites actually agree with the Court (as with flag-burning) and can thus insulate it from political backlash, or ones where the issue is not really a high priority for most voter. School prayer and flag burning both fall in that category, as also did the popular laws invalidated by the Supremes in such Rehnquist-era cases as United States v. Lopez (the Gun Free School Zones Act, which polls showed to be popular) and United States v. Morrison (a part of the Violence Against Women Act, a case in which 36 states filed amicus briefs supporting the government).

By contrast, health care is currently both a major concern of voters and a top priority for political elites in the Democratic Party. If the Democrats succeed in passing Obama care and then retain their congressional majorities, the Court will be on notice that invalidating any major part of the health care bill invites a massive confrontation with Congress and the president. The most ideologically committed justices (e.g. - Thomas) might be willing to take the risk. But the moderates won't. They know that Congress and the president could react with harsh measures such as refusing to obey the decision, implementing an updated version of FDR's court-packing plan (the threat of which helped persuade the Court to back down in 1937), or passing laws limiting the Court's jurisdiction. Such extreme measures are rarely used; but they could be employed if the Court crosses Congress, the president, and the voters on a major issue they care about intensely.

This, of course, assumes that a majority of the justices would want to strike down the Obama health insurance mandate if they thought they could get away with it, an assumption I questioned in my last post. But even if the justices were more interested in constraining congressional authority than I think they are, I doubt they would be willing to take the political risk of doing so in this case.

I am a strong advocate of judicial review of federalism issues, and I hope that the Court will, over time, roll back Commerce Clause precedents that give Congress virtually unlimited power. But achieving that goal will be a slow, incremental process that must take due account of political constraints. It is unrealistic to expect the Court to start the process with a decision that risks a head-on collision with the political branches over a major policy issue.

Rod Blaine (mail):
Gee, and here I was thinking the 1987 disconfirmation of Robert Bork had protected the Court from popular political pressure, leaving it free to resolutely protect the true values of the American People against the, err, elected representatives of the American People.
9.21.2009 9:57pm
Ilya Somin:
Gee, and here I was thinking the 1987 disconfirmation of Robert Bork had protected the Court from popular political pressure

Since polls showed that a majority of the public opposed Bork's confirmation (even if in part because of ignorance), it's hard to argue that the defeat of his nomination was a triumph for people who want the Court to be free of political pressure from popular majorities.
9.21.2009 10:09pm
Hans Blix:
>>>>Court to be free of political pressure from popular majorities

Sorry but the ship has long sailed on this one, and primarily because of the Courts own actions in injecting themselves into realms beyond their ken. Frankly, IMHO its time the American people reasserted themselves over all three branches and it appears that they may be poised to in fact do just this.
9.21.2009 10:48pm
Psalm91 (mail):
Can you take seriously an academic analysis that uses a term like "Obama care"? That is a propaganda buzzword, not a serious term. Can't we do better here? Or is it just all-partisan, all the time?
9.21.2009 10:50pm
Psalm91 (mail):
HB: What are the "American people" poised to do?
9.21.2009 10:51pm
ChrisTS (mail):
Psalm91:
Can you take seriously an academic analysis that uses a term like "Obama care"? That is a propaganda buzzword, not a serious term. Can't we do better here? Or is it just all-partisan, all the time?

At this point, I think you have answered your own question. I wonder how long it will be before no one other than partisans and single-issue trolls come to VC anymore.

This will be a great loss, as VC has been a place for educated people of diverse political perspectives to come together and discuss important legal and political issues.
9.21.2009 10:58pm
ShelbyC:
Yeah. cuz academica are never partison.
9.21.2009 11:11pm
Cornet of Horse:
ChrisTS,

"At this point, I think you have answered your own question. I wonder how long it will be before no one other than partisans and single-issue trolls come to VC anymore.

This will be a great loss, as VC has been a place for educated people of diverse political perspectives to come together and discuss important legal and political issues."

Please.

The President has (rightfully) been advocating forcefully for health care reform for months now, and given the political realities of his election, has been doing so in a markedly partisan manner. He's gotta dance with the ones who brung him, and in this case that's a D wave. If we give him an R Congress to work with, then we can legitimately expect a more bipartisan approach. Until then it's hardly out of bounds for those from the loyal opposition to refer to the drive for health care reform by the name of the one driving it and who was elected to do just that by a plurality of his supporters.

Somin's post on the whole was admirably judicious.

As for partisans and trolls, it's ironic that you, ChrisTS, applaud the petty comment of one who fits that bill like few others - RPT/Psalm91. It's the internet; the partisans and trolls are the price we pay to hear voices like your own.
9.21.2009 11:14pm
Steve:
HB: What are the "American people" poised to do?

I can't answer for Mr. Blix, but I saw a typically cogent analysis the other day.

It's time for conservatives--mainstream Americans, in other words--to throw off the shackles and get aggressive. Our beliefs are correct, our values are the foundation of any society that doesn't have a death wish, and our interests, unlike those of the leftists, are legitimate. We deserve to govern this country, and before long, we will.


Or, to put it differently, every four years a different group of people demands their country back.
9.21.2009 11:15pm
tvk:
How is Morrison an example of a popular law that was disfavored by the elites? If anything, it was more favored by liberal elites than by the general public. I get most everything else, but that one just doesn't compute.
9.21.2009 11:32pm
Constantin:
Give me a break with the Obamacare whining. Nobody had a problem with it when it looked like it might actually happen or, say, wasn't killing the guy politically. If the whole deal had passed when he wanted it to, he'd have already paid the NEA to commission posters superimposing his head on Florence Nightingale's body.

Maybe if there was an actual coherent proposal he was selling we could call it by its name. But, seeing as he's too much of a coward to hitch himself to one wagon, and would rather just spout vague generalities so he can claim a victory for himself if anything at all passes, Obamacare it is.
9.21.2009 11:38pm
Stevie Miller (mail):
By contrast, health care is currently both a major concern of voters and a top priority for political elites in the Democratic Party. If the Democrats succeed in passing Obama care and then retain their congressional majorities, the Court will be on notice that invalidating any major part of the health care bill invites a massive confrontation with Congress and the president. The most ideologically committed justices (e.g. - Thomas) might be willing to take the risk. But the moderates won't. They know that Congress and the president could react with harsh measures such as refusing to obey the decision, implementing an updated version of FDR's court-packing plan (the threat of which helped persuade the Court to back down in 1937), or passing laws limiting the Court's jurisdiction. Such extreme measures are rarely used; but they could be employed if the Court crosses Congress, the president, and the voters on a major issue they care about intensely.


Wow. Where to begin? First, thanks for ending the bullshit that the Supreme Court is anything special anymore, other than a politicized branch like the Pres. and Congress. Generally, law profs are reluctant to do so, because giving away the Court's magic and admitting to their actual role kind of cheapens all the folks who claim to have a specialized study of Constitutional Law, and make their money off it. If it's all just predicting and politicizing, who the heck needs a degree, to read case law, or to care anything about precedent and the history of the Court. Just count up the votes, and let it all rest on the elections.

Next, are you telling us the Obama administration would refuse to obey the decision? Hmm... that would be nailing the casket shut on the idea that our judicial branch is relevant at all in these politicized times. Lose the magic, lose the respect.

Third: are we letting the Ivory Tower types tell us what the public's great concern over healthcare actually means? That it translates to support for a mandatory plan where the government is responsible for allocating care, managing the budgeting, and promising that it will come in not a dime over budget? Heh. I got an underwater bridge in Minnesota to sell ya buddy.

Finally, here's where your argument really fails. The plan passes, and how long do you 'spect it takes to get to the Supreme Court? You know how slowly you legal types move (billing by the hour afterall, and getting the job done is kind of backseat to the preening, posturing and ... deep thinking you fellas do.)

Anyway -- let's be overly generous and give it a year. Don't you think the public will see how the plan plays out in one year's time (actually it would probably be more like 3 or 4, minimum)

Guess what? The way this thing plays out in reality will catch up to all the pretty promises being made now. Thus, all those who put efficient healthcare as a high priority will be forced to open their eyes to how things play out in the real world, and chances are good they will change their minds. Fickle fickle fickle.

Think of all the supporters of the Iraq war -- how many were still cheerleading a year or two in? Ditto all those who were thinking happy and romantic thoughts about electing Obama the day after the election. A year hasn't passed yet -- he's still got that level of love for his promises and plans, now that we see it was all just words read off a teleprompter.

Trust me: the longer it takes to get this thing to SCOTUS, the more opportunity people will have to evaluate it not on paper like you professional analysts, but how it affects their pocketbooks and medical appointments. Will your average small business have stopped insuring by then? Will the young folks like paying penalties or ... 13% (13 %!!!!!) of their measly above-the-poverty-level incomes on mandatory insurance? Will your doctor still be seeing patients, or will he decide to take the early retirement and get out while the gettings good?


Sorry if this sounds snarky. I know you think you're on to something here with this: The Court will put its' finger to the wind and listen to the will of the people in deciding what's Constitutional or not. (maybe they too could get into the poll-reading and adjustment business.)

Where're your off is thinking that public support will hold after the bloom is plucked from the rose and the bills come due. It's not a knock on you: foresight is really not a measured quality in law school, and you're more used to looking back for your answers than forward. Of course, if you want to continue to politicize the Court, those skills will become less and less relevant and those who are two steps ahead in their understanding will gain the upper hand.

(Isn't it cute how some of the strongest Obama supporters -- I'm thinking law prof bloggers here -- are just now wising up to what so many of us saw BEFORE the election? Ditto the Iraq war. It's all in the timing; anybody can be intelligent as the game plays out, it's in the foresight and critical listening WHILE the promises are being made that are most important. Fickle folks tend to divorce, change their minds like they change their underwear, and never take responsibility for the consequences of their actions ... and their votes.)

Signed: Didn't vote for GWB. Didn't vote for Obama. Wishing there were more people who saw through the marketing and did their thinking at a time when it mattered, not after the fact.
9.21.2009 11:57pm
Stevie Miller (mail):
The President has (rightfully) been advocating forcefully for health care reform for months now

The issue is: this proposed reform doesn't go far enough in solving the problems he purports to address. Hard to imagine we could do worse than we've got today, but look at the numbers --- who's really winning here, and please don't tell me you're stupid enought to believe this bill will "save lives" and help the country. Mark my words: it won't and soon enough, people will wise up to that.

Americans might be slow, but they don't like to be taken as suckers.
9.22.2009 12:01am
Stevie Miller (mail):
It is unrealistic to expect the Court to start the process with a decision that risks a head-on collision with the political branches over a major policy issue

I'm a gambler, so respectfully, I'd bet your wrong here too on your assessment of reality.

Roberts and Alito have some balls down there. Plus, they're cut from a different cloth than the politicians who thrive on "being popular".

If Scalia and Thomas lead, I could see Roberts and Alito, and even Kennedy, standing up for what they think is right, regardless of what the other branches think. Heck maybe even Soutomayor would get ticked with the idea that they're a puppet branch who have to keep in line to keep their seats.

Keep pushing this meme that it's all about politics, I could definitely see then ignoring all that and demonstrating their judicial independence. Those two at least (Roberts and Alito) didn't get on the bench by being the most popular boys at school, they got their own their own brainwork, so why pack all that away now when they've got a life appointment.

You want to be in the predictions game, you ought to be a bit more creative in understanding human psychology, how "upsets" occur, and how nobody puts baby in a corner, so to speak. I suspect in the coming days, you'll see a lot of artist pushback too on the idea that the Fed. Gov't and this administration can tell the arts community what to say, do, think, create also.

These justices -- maybe it would help if you think of them as tempermental artists too, shaping the legal canon. I mean, push them the wrong way, you can throw you're predictability out the window when the humanness is factored in.

Who the heck thought Scalia would vote like that in Raich, afterall? Kind of inconsistent with his former rock-solid judicial leanings, but we all have our biases and if life was all that predictable, anybody could tell us how the Court will decide, right?

In short, don't be so confident in your own analysis. Then you won't be so surprised if it turns out the justices surprise you. (And I do think if we keep playing the idea that we're all just puppets whose strings are being pulled from above, you'll see push back.)
9.22.2009 12:14am
J. Aldridge:
I am a strong advocate of judicial review of federalism issues, and I hope that the Court will, over time, roll back Commerce Clause precedents that give Congress virtually unlimited power.

Not as long as the court thinks Congress "ought" to regulate this or that for the common good.

It's pathetic, but that is the state of current judicial thinking today.
9.22.2009 12:28am
juris_imprudent (mail):
It is unrealistic to expect the Court to start the process with a decision that risks a head-on collision with the political branches over a major policy issue.

Boy, the architects of our govt sure messed up with that silly checks and balances thing.
9.22.2009 12:34am
yankee (mail):
When the Court has invalidated popular laws, it has usually been in fields where political elites actually agree with the Court (as with flag-burning) and can thus insulate it from political backlash, or ones where the issue is not really a high priority for most voter. School prayer and flag burning both fall in that category, as also did the popular laws invalidated by the Supremes in such Rehnquist-era cases as United States v. Lopez (the Gun Free School Zones Act, which polls showed to be popular) and United States v. Morrison (a part of the Violence Against Women Act, a case in which 36 states filed amicus briefs supporting the government).

The number of states filing amicus briefs seems like a very poor proxy for the popularity of a law.
How is Morrison an example of a popular law that was disfavored by the elites? If anything, it was more favored by liberal elites than by the general public. I get most everything else, but that one just doesn't compute.
As much as I would love it if the entire elite were on my team, "elites" and "liberal elites" are not yet the same thing. And would you mind providing a link to that poll about the popularity of the Violence Against Women Act?
9.22.2009 12:36am
Cornet of Horse:
Steve,

There's plenty there to reform. There's plenty of support for smart reform. The latter looks unlikely with the present Congress. That can change, as it did in '94. Until then, I don't think that the President can be fairly blamed for attempting to make lemonade with his lemons, especially given the mandate upon which he perceives himself to have been elected.*

As for the SC going maverick, I think the entire political/professional class is too spooked currently to venture it.

* - that perception significantly underestimates the importance of Bush's fiscal incontinence, though perhaps recent events will gradually alter it.
9.22.2009 12:45am
Stevie Miller (mail):
It is unrealistic to expect the Court to start the process with a decision that risks a head-on collision with the political branches over a major policy issue.
-------------
Boy, the architects of our govt sure messed up with that silly checks and balances thing.




The scary thing is ... it's the law profs admitting to this. Not just angry populist sentiment that everybody -- even neutral judges -- are really in it for themselves, and knows that you have to payback/lick the hand that feeds them.

Still, I say a bit of pride in the job just might make us see a few obvious attempts at independent thinking from the justices, especially as they realize the power they hold apart from who put them in the job. (C'mon Sonia, show us what ya really got now that you don't have to be worried about getting or losing the big jobs by coming up with politically correct decisions. Remember, she too took criticism on the weak opinion on the white firefighters case that was ultimately overturned. She's not worried about what the liberals think of her work anymore, but more what her now-colleagues think. Again, the need to show judicial mettle, independence, and cast off the worries that it's better to write nothing than to write the "wrong" thing. On these cases where it's not about race or disapppointing this group of people or that, maybe she'll just surprise us with her independent legal reasoning instead of having to specially craft the thinking to reach the desired result.)
9.22.2009 12:46am
Off Kilter (mail):
"Boy, the architects of our govt sure messed up with that silly checks and balances thing."

Sad to say, but that's correct. It is actually quite difficult, as public choice shows, for one part of a monopoly to check another part of the same monopoly. Internal mutually beneficial pay-offs are too easy to arrange. Checks and balances are more realistic when they derive from competition. To paraphrase Lenny Bruce, it's Macys that checks Gimbles.
9.22.2009 12:46am
Stevie Miller (mail):
As for the SC going maverick, I think the entire political/professional class is too spooked currently to venture it.

I don't know... Never underestimate the dark horse; sometimes it pays to bet on the upset. Particularly if a branch feels like their power is being cheapened and they want to make a big statement of independence, a show of strength. Wouldn't it be a hoot if this is where Roberts uses his skills to convince the others it's necessary for the sake of the country to join in on an unpopular unanimous decision because legally, it's the right thing to do?
9.22.2009 12:50am
Stevie Miller (mail):
And like I stated above, given time -- and you see it happening now -- I suspect such a decision wouldn't be all that unpopular with at least half the population that has worked hard for the health care benefits they currently receive, and isn't to keen to have somebody else mess with the system and give away freely what they worked for to others.
9.22.2009 12:54am
Oren:

You know how slowly you legal types move (billing by the hour afterall, and getting the job done is kind of backseat to the preening, posturing and ... deep thinking you fellas do.)

Unfortunately for this hypothesis, most of the delay involves the Bench, not the bar. Alas, they are salaried.
9.22.2009 1:01am
Kazinski:
I think even under the most conservative Supreme Court it would pass muster, if it were structured right. If the health insurance tax was structured as a tax on all individuals and families, with a corresponding credit for a qualified health insurance plan, then I think it would have to pass muster with the court.

Not that I'm for it, put the solution is political. There are going to be millions of Americans that are going to deeply resent being forced to buy health insurance or to pay the tax. And they are going to be motivated to vote. I saw a poll today that 42% of uninsured are against the President's health care proposal. They are not going to be happy about the thousands of dollars of forced premiums or the penalty.
9.22.2009 1:15am
themighthypuck (mail):
I think it is highly unlikely that the highest court in a modern democracy will roll things back to 18th century political ideas (today we have the internet and satellites; then they had horses and boats). The fact is that the country needed a way to end run federalism and the court used the commerce clause for this purpose. It isn't like anyone ever really thought this was in keeping with the spirt of the constitution.
9.22.2009 1:34am
J. Aldridge:
I think it is highly unlikely that the highest court in a modern democracy will roll things back to 18th century political ideas (today we have the internet and satellites; then they had horses and boats).

Telegraph and railroads wasn't modern? Same arguments exist with those as with internet and satellites today. States cannot regulate their own domestic affairs?
9.22.2009 2:20am
Off Kilter (mail):
"It isn't like anyone ever really thought this was in keeping with the spirt of the constitution."

If only there were some way to explicitly amend the document...
9.22.2009 2:25am
themighthypuck (mail):
t Off Kilter,

I think that if the constitution was easier to amend we would have a much more conservative constitutional jurisprudence.
9.22.2009 2:46am
second history:
Steve sez:

....I saw a typically cogent analysis the other day.

I'm sorry, but I can't take any "analysis" from a Powerline poster named "John" as serious (or cogent)-you might as well have cited Free Republic. If this is the best that you can post here, then you are way out of your league. Now if you had cited a 18th or 19th political philosopher, then you mght be able to play ball.
9.22.2009 2:52am
second history:
...18th or 19th political philosopher... should read 18th or 19th century political philosopher....
9.22.2009 2:55am
Brett Bellmore:

Who the heck thought Scalia would vote like that in Raich, afterall?


The decision came as no surprise to me, nor did the hash he made of the 2nd amendment in Heller. Scalia has a record, and it's not as a consistent originalist, it's as a jurist who really, really hates overturning established law, even if it was established wrongly. He's at best a fair weather originalist.


Boy, the architects of our govt sure messed up with that silly checks and balances thing.



Nah, that would be the architects of the 17th amendment. In this particular case. Cut off the last influence anybody outside the federal government had on the composition of the federal judiciary, clearing the way for federal officeholders to turn it into a rubber stamp for the 'constitutionality' of any usurpation of power they felt like committing.
9.22.2009 6:25am
pireader (mail):
Professor Somin --

"I am a strong advocate of judicial review of federalism issues, and I hope that the Court will, over time, roll back Commerce Clause precedents that give Congress virtually unlimited power."

This remark struck me as the real point behind this chain of ten VC posts. A awful lot of people here, both posters and commenters, think we'd be better off if the state governments, not the Federal government, held authority over their economies. Not that the constitution's text requires it, for better or worse. Not that all governmental authority over the economy should be severely restricted. Specifically, that state authority is better than Federal.

Frankly, I think that view is wildly mistaken. But I'd be fascinated to read a post from you, or one of your colleagues, laying out the logic behind it.
9.22.2009 8:44am
David M. Nieporent (www):
This remark struck me as the real point behind this chain of ten VC posts. A awful lot of people here, both posters and commenters, think we'd be better off if the state governments, not the Federal government, held authority over their economies. Not that the constitution's text requires it, for better or worse. Not that all governmental authority over the economy should be severely restricted. Specifically, that state authority is better than Federal.
Well, I can't speak for commenters, and certainly not posters, but I think you're wrong in both of your assumptions that you've ruled out in your third and fourth sentences. I think people are motivated by those two concerns. As for me:

1. I do think the Constitution's text mostly requires it.

2. Since I think most such exercises of authority are a bad idea, having them at the state level rather than federal gives me the opportunity to opt out, by voting with my feet. Moreover, if it is a good idea in a particular instance, then having different policies in different states allows for experimentation.
9.22.2009 9:03am
Stevie Miller (mail):
Frankly, I think that view is wildly mistaken. But I'd be fascinated to read a post from you, or one of your colleagues, laying out the logic behind it.

Oh, that's an easy one. Massachusetts is different than Florida. Look at the populations and attitudes. Florida has a extreme upper class, and a servant class to serve them. They've imported a good number of undocumented workers, who can be easily exploited and who operate underground. The problems of Texas' 1 in 5 uninsured, are not the same in Minnesota, which has actively structured social programs to care for their people (it was a free labor state, so the exploitation of other people ... that attitude is not so strong as elsewhere.)

Next up,
the FLoridians and upper class coastals want us to buy into some National Catastrophe insurance, so the people of Nebraska can cover all those mansions and condos that might get wiped out by natural causes. Build on the sand, you don't stand forever.

If we continue to pretend that all states have equal needs, equal attitudes and priorities, then we'll all fall together. I don't want to subsidize states that looked the other way when employers broke labor rules to lower their operating costs, and lacked common sense in where to build. Turns out, the "cheap labor" costs society as a whole in social services.

Instead of a bailout of those states, let them clean up their own messes. Don't distribute this burden to others, otherwise they will continue to make poor choices.

You make your bed, you sleep in it. Otherwise, how will they ever make needed changes and learn from their mistakes?
9.22.2009 9:09am
Stevie Miller (mail):
Not that I'm for it, but the solution is political.

Actually, the solution is economical. Not that we're anywhere close to addressing that yet, or crafting legislation that will accomplish that goal.

Look at how well political solutions like busing played out on the local levels and helped raise our educational standards, afterall.
9.22.2009 9:11am
Pragmaticist:
You mean it really all just boils down to politics??? Quick, the smelling salts!
9.22.2009 9:50am
Ricardo (mail):
I'm curious about those who think mandatory health insurance is unconstitutional and where they stand on already existing regulation of the health insurance sector. For instance, are COBRA, HIPAA, and the law requiring hospitals to admit all emergency patients without verifying ability to pay also unconstitutional?

I genuinely wonder at what the principle is that distinguishes mandatory health insurance from these other regulations, if one exists. If one does not exist, the Supreme Court would risk being hoisted by its own petard by declaring mandatory health insurance unconstitutional. The rest of these regulations enjoy broad bi-partisan support and help make the current health care status quo tolerable. Doing away with these regulations as well would generate a huge public backlash that would not be friendly in the least to market-oriented reforms.
9.22.2009 11:15am
Ricardo (mail):
Re: Scalia's opinion in Raich

I'm not much of a court-watcher but I don't think the theory that Scalia just really hates weed explains his opinion in Raich. After all, didn't he write the majority opinion in Kyllo vs. U.S. that held that use of an infrared camera on a person's home without a search warrant violated the 4th Amendment? Since this technology is used more often than not (as it was in the case before the court) to detect heat lamps used for the purpose of growing marijuana, there's got to be more to it than Scalia's supposed personal biases.
9.22.2009 11:23am
David M. Nieporent (www):
Can you take seriously an academic analysis that uses a term like "Obama care"? That is a propaganda buzzword, not a serious term. Can't we do better here? Or is it just all-partisan, all the time?
Has it ever happened before in history that a political movement claimed that its proposals were necessary, destined to make the country better, wildly popular (and only being thwarted by lobbyists for special interests and a few rabid ideologues), and yet got upset when the movement was given credit for the proposals?

(Now, if you agree that Obamacare is unpopular and is going to fail, I can understand why you wouldn't want it associated with Obama.)
9.22.2009 11:57am
second history:
Stevie Miller sez:

Next up, the Floridians and upper class coastals want us to buy into some National Catastrophe insurance, so the people of Nebraska can cover all those mansions and condos that might get wiped out by natural causes. Build on the sand, you don't stand forever.

As if Nebraskans and everyone else in the Midwest doesn't have to worry about tornados. Name me a region that doesn't suffer from natural disasters--New England (snowstorms, flooding); the West Coast (earthquakes, volcanos); the Gulf Coast (hurricanes, flooding); the Southeast (flooding); and the Midwest (tornados, flooding).

Between 1950 and 1994 Nebraska had 1,673 tornados, fifth highest overall and fourth highest in Tornado Alley, causing $632,463,872 in damage, the 11th highest total. It also ranked 23rd in number deaths during that time period with 51. See here for rankings. So it's not like they are sitting pretty.
9.22.2009 12:48pm
Cornet of Horse:
pireader,

"held authority over their economies"

I'd be interested to know where you picked up that phrase.
9.22.2009 12:56pm
ChrisTS (mail):
Cornet:

I don't want to get the thread off on the Obamacare thing, as it seems to be going in substantively interesting directions. I'll just note, for you, that I no nothing about RPT/Psalm91; I just sympathized with the point s/he made. (I probably was also feeling a bit irritable about other things.)

By the way, are you still in quarantine, as the handle suggests? What's with that?
9.22.2009 1:14pm
http://volokh.com/?exclude=davidb :

Since polls showed that a majority of the public opposed Bork's confirmation (even if in part because of ignorance)

Given Ilya's body of work, I think that parenthetical is probably redundant.
9.22.2009 3:15pm
Cornet of Horse:
ChrisTS,

Thx for asking. Well, actually yesterday our whole school shut down for the week, as 20% of our students were home sick, but I'm on quarantine until Thursday. From what I hear from the health professionals, this is a combination of due caution and mild mass hysteria. In other words, this isn't some sort of epidemic with serious casualties expected, which is consistent with my own experience - it was just a really bad case of the flu.

Hoping they're right.
9.22.2009 4:08pm
David M. Nieporent (www):
Between 1950 and 1994 Nebraska had 1,673 tornados, fifth highest overall and fourth highest in Tornado Alley, causing $632,463,872 in damage,
I love the precision of that number. Not $632,463,871 or $632,463,873 but $632,463,472.
9.22.2009 4:22pm
ChrisTS (mail):
Cornet:

Wow. We [my college] are trying to decide what the tipping point for closure might be, but so far no one sees it in the near future.

How come such a long quarantine for you? Should we get you yet another name, Typhoid Mary? :-)
9.22.2009 5:28pm
/:
Otherwise, how will they ever make needed changes and learn from their mistakes?

How will we ever realize our Bright Common Future without the cooperation of all humanity to achieve the full efficiency possible of planned economies? (And don't forget about the crippling taxes!)
9.22.2009 7:59pm
Cornet of Horse:
Cornet,

Well, once I've stopped coughing for 24 hours, I'm breaking it anyway, but I thought 1 week was SOP.
9.22.2009 9:46pm
Leo Marvin (mail):
I'd think playing it safe with the quarantine would be at least as much for your own benefit as anyone else's. The last thing you need is to catch something else while your immune system is depleted, on top of being vulnerable to a relapse of what you already have.

But then I got half my genes from a Jewish mother, and half of the other half as well.
9.23.2009 12:18am
ChrisatOffice (mail):
Cornet:
Oh, I was thinking it had been over a week already. But, I'm with Leo: do as the doctor and or your mother says. (I'm still working on the many halves of Leo.)
9.23.2009 4:53pm
Leo Marvin (mail):
Chris, as I believe Yogi once said, genetics is 90% who your parents are, and the other half is who their parents are.
9.23.2009 5:38pm

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