THE BLOG
03/30/2014 10:14 pm ET Updated Mar 31, 2014

Will ACA Late Surge Dismay GOP Fans?

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By: Mark Green

LISTEN HERE:

Bob Shrum and Torie Clarke diagnose Obamacare on eve of April deadline. Growing from six enrollees on first day of website to nearly seven million, is this biggest comeback since Kentucky, down 31, beat LSU by two in 1994? Then, will regulation debate change after GM/Toyota lies cost lives?

On Obamacare's Report Card. Why are policymakers still ferociously fighting over this law since it was duly enacted four years ago and constitutionally upheld?

Torie blames the awful rollout of the website and the many White House tweaks to the law that "moved the goalposts." Bob agrees it was awful but argues that a) changes were to make the program work better, not to sabotage it and b) the problem now, given the number of enrollees is climbing toward the original estimate, is "that the GOP has a desire to see it fail and an animosity to Obama personally" that they can't let go of.

Is David Corn's snarky tweet on the money: "GOP: We hate your program. How dare you delay it!"? Torie says the facts indicate that up to 90 percent of those enrolling already had (perhaps inadequate) health insurance. Hearing the word "facts", Bob counters: "The facts are that health care inflation is at its lowest level in decades and people can't be denied coverage by insurance companies when they get sick." Q.E.D...not to mention that the feared "death spiral" of too few young enrollees collapsing the program didn't materialize

How might this play out in the 2014 midterms? Torie thinks it'll hurt Democratic prospects because the law is unpopular, especially in swing states with vulnerable incumbents. Again, Bob disagrees -- once you understand that a chunk of those opposed say it didn't go far enough, polls show a 47-49 split. (Host: the debate so far, however, appears to be motivating more of the '14 whiter/older off-year Republican base than the Democratic base.) Bob adds that the GOP has no viable replacement and Democrats should hang tough and together. Urging that his party get off defense and get back on offense, the famous speechwriter and adman suggests a commercial, along the lines of: Stop Koch brother billionaires who want to go back to when you were one illness away from bankruptcy and insurance companies could deny you coverage because of pre-existing conditions.

This week the Supreme Court heard the Hobby Lobby case: viz, should a for-profit corporation get out of the ACA's contraception requirement because its owners hold a literal interpretation of the Bible that won't allow IUDs or RU-486? That is, does life begin at incorporation & should faith trump law?

Justice Clarke laments that the Courts have to parse such judgments, including whether reproductive rights are a "compelling interest" to overcome a religiously based belief under the 1993 Religious Freedom Restoration Act. She correctly notes that Congress could have created a subsidy program providing contraception to poor women who couldn't afford it.

Justice Shrum? A law graduate but not a practicing lawyer, Bob cites the Scalia opinion of 1990 which concludes that you can't allow religion to exempt itself from the law based on its own eccentric or unscientific claims. Couldn't this have justified anti-miscegenation laws in the 60s? What next, blood transfusions, as Justice Sotomayor wonders?

Bob also predicts that if the law works, it'll cease to be an issue after 2016 and that'd take the steam out of the single-payer movement...but if it should fail, then supporters would be inspired to say, ok, let's go all the way to the most efficient system, medicare for-all or single-payer.

Host: Those jurists who normally look to the intent of the Founders would have to admit that in this case they surely never thought that corporations had the right to practice religion, and no Supreme Court has ever so ruled. But who knows what one of the most right-wing Courts in our history, according the conservative jurist Richard Posner, might decide?

Think about it: corporations are not natural beings but are created by state charters and given special privileges like limited liability and perpetual life in order to engage in public commerce. Now they want to keep those corporate privileges but also allow their human owners to escape their obligations under the law to impose their religious values on their employees. To permit such a radical view would mean that a corporate plaintiff with crazy ideas could get himself exempted from law if s/he truly believed them (eg, Branch Davidian's David Koresh).

This is ideology posing as law. If the Roberts Court so ruled, it would be as discredited a decision as any since Plessy v. Ferguson ("separate but equal" is constitutional) and Citizens United (which used the metaphor that money-is-speech to allow billionaires to now sway a democracy based on political equality).

We also hear from DeAnn Friedholm, the head of health care policy at Consumer Reports, about what that organization is doing to help enroll people. They have a website, healthlawhelper.org , that educates visitors how to use the law. DeAnn explains why the law will improve health outcomes for millions of people who previously were priced out of the system. She also urges people to sign up and avoid a one percent to 2.5 percent tax on their gross earnings under the individual mandate provision.

On Regulation Debate after GM/Toyota. We listen to McConnell and Obama assert standard polar views on regulation generally - that it burdens business and costs jobs...versus it saves lives and money. How do these arguments sound this month when both GM and Toyota were caught lying to customers about defects and dangers?

Bob thinks this a perfect example of why we need safety legislation since the marketplace often fails to inform consumers about hidden dangers. He repeats the idea of Senator Ed Markey that auto firms should now have to send copies of customer complaints to the National Highway Traffic Safety Administration to make sure that they are not ignoring safety concerns. Torie agrees that there has to be a balance in such laws but not at the expense of legitimate businesses.

The GM/Toyota case pits the slogan "job-killing regulation" against the reality of "life saving regulation." Attacking "big government regulation" polemically resonates in a country founded on skepticism of bigness and embrace of individuality. But as one goes from spin to specificity, voters obviously want government making sure that their children aren't breathing air with mercury particulates or food with e coli bacteria. By failing to tell Cobalt car customers that defective ignition switches could lead to car engines shutting down, GM engaged in possibly criminal behavior that led to multiple avoidable deaths. Toyota too with stuck accelerators

The problem in law enforcement, however, is that those who call the shots don't bear the risks. Laissez isn't always fair.

Quick Takes: NSA and Ukraine. The panel agrees that President Obama seems to have struck the right balance by proposing that the NSA no longer have the power to collect metadata from tens of millions but instead would need to prove "probable cause" to a FISA court in order to collect such information, which would be stored in private companies and not the government.

Then, as 100,000 Russian troops were mobilizing on the Ukraine-Russian border (and on the day before Putin called Obama to discuss the possibility of a diplomatic settlement of differences), the Host asks Shrum and Clarke what they thought were the numerical odds that Putin would invade further into Eastern Ukraine, or into Western Ukraine, or even a Baltic State with some Russians-speakers. Bob said 10 percent/five percent/one percent. Torie, however, said it was 90 percent Putin would try to occupy the rest of the East and then the Western Ukraine. Big difference.

The Host is closer to Shrum than Clarke. Yes Putin has made it clear that he is anguished at the dismemberment of the Soviet Union and offended by, in his view, US duplicity toward his homeland. And his current bold actions have greatly boosted his popularity at home and silenced the anti-Putin movement there, for now. But re-taking Crimea is one thing. Attacking the rest of the Ukraine, however, would surely lead to punishing economic sanctions, which in turn would produce both a long-lasting recession and possibly a Chechnya/Algerian-like insurgency. In Churchill's timeless phrase, time to jaw-jaw than war-war.

Mark Green is the creator and host of Both Sides Now.

You can follow him on Twitter @markjgreen

Send all comments to Bothsidesradio.com, where you can also listen to prior shows.

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