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This quotation from law, Legislation, and Liberty, seems so apt to describe the Affordable Care Act.

In fact, of course, the chief circumstance which will make certain measures seem unavoidable is usually the result of our past actions and of the opinions which are now held. Most of the ‘necessities’ of policy are of our own creation. I am myself now old enough to have been told more than once by my elders that certain consequences of their policy which I foresaw would never occur, and later, when they did appear, to have been told by younger men that these had been inevitable and quite independent of what in fact was done.

A primary driver of uncompensated care was EMTALA, which required emergency rooms to treat anyone who shows up, whether or not they have insurance. EMTALA offered no funding for this mandate, so it resulted in fee-shifting to those who did have insurance, causing health care costs to rise.

Anyone who understood how EMTALA would affect the market could have foreseen the likely consequences–namely, free-riding and cost-shifting.

So, to solve this “unforeseen” problem, the Affordable Care Act  imposed an individual mandate. Of course, this new policy will have countless foreseeable consequences (higher premiums, higher costs of care, increased bureaucracies  etc.). Supporters of the ACA kept repeating the mantra that these will never occur. I fully expect that some point in the future, supporters of the law will, as Hayek noted, cry that these consequences were “inevitable and quite independent of what in fact was done.”

And so the cycle repeats.

Wonkblog has an interesting take, as more and more Republican Governors are sailing towards the call the of the ObamaCare siren.

The drafters of the Affordable Care Act never expected that the administration would need to convince governors to expand Medicaid; it was simply required of all 50 states. The Supreme Court changed that in its June ruling, making the provision optional. Looking back, what they did come up with has done surprisingly well at bringing some of the health law’s fiercest opponents on board.

Roberts’s compromise position allowed cooperative federalism to persist. States were not forced to join in, but had the choice. And with the choice, they made the decision on their own. Fascinating.

Texas, doing its best Odysseus impression, is still tied to the mast.

Oh, what case is this, from Trevino v. Thaler?

MR. OLDHAM: Well, Your Honor, I think you could do one of two things: You could always certify the question to the Court of Criminal Appeals if you thought that the question — that the answer turns on what the Texas procedures are and that the parties disagree with them.

JUSTICE BREYER: I tried that once in a case involving Pennsylvania and the result was such that I resolved never to do it again. (Laughter.) JUSTICE BREYER: But — but don’t say never. All right. So one thing we got -­

JUSTICE ALITO: That was a case in which -­ that was the case in which the Court unwisely reversed a certain Third Circuit decision. (Laughter.)

I don’t have time to check now. But I gather Judge Alito remembered.

Well, kinda. Alito suggests that the Foreign Intelligence Surveillance Court provides adequate “judicial review,” and the constitutionality of this program is not insulated from constitutional review.

Second, our holding today by no means insulates §1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis.

Right. So how is Amnesty International supposed to file a complaint in FISC? That’s right, they can’t. It’s a secret. And, no appeal lies to the Supreme Court. I agree with the Court’s standing analysis, but I find this offering unsatisfying. This opinion does put certain programs beyond the reach of Article III Courts.

I can’t help but think of the constitutionality of drone strikes–which are not even subject to FISC. Some have suggested created a drone court. But for now, this decision lies entirely with the executive branch. There is no judicial review. In the leaked memos, the government has stressed that Due Process can be satisfied without judicial review.

I wonder if Alito would take a different position with respect to drone strikes, where no Article III judges are taking a peek.

Well, after Clapper v. Amnesty International, it’s more than the price of a plane ticket.

If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panel’s reasoning, respondents could, “for the price of a plane ticket, . . . transform their standing burden from one requiring a showing of actual or imminent . . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.” 6