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General Politics => U.S. General Discussion => Topic started by: Mr.Phips on March 23, 2012, 03:10:54 PM



Title: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Mr.Phips on March 23, 2012, 03:10:54 PM
If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats. 


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: ag on March 23, 2012, 03:38:59 PM
Think a Republican Congress is ever going to pass universal healthcare? 

Yes, of course :))

They will propose it and pass it :)) Certain things are pretty much inevitable. Of course, they will have to tie themselves into all sort of contortions to pretend they are not doing it.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: 🐒Gods of Prosperity🔱🐲💸 on March 23, 2012, 03:41:15 PM
If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats. 
The PPACA isn't universal healthcare anyway, so I don't see how this is relevant.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Queen Mum Inks.LWC on March 23, 2012, 07:21:23 PM
Nothing is 'dead forever'


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Frodo on March 23, 2012, 07:25:30 PM
This might help keep everything in perspective. (http://www.npr.org/templates/story/story.php?storyId=111089777)


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: The world will shine with light in our nightmare on March 23, 2012, 07:33:53 PM
If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats.  
The PPACA isn't universal healthcare anyway, so I don't see how this is relevant.

This.  The reason why the bill's constitutionality is being questioned is because of the individual mandate.  The court can strike it down, but I don't see how this would prevent Democrats from passing NHC in the future, especially if they propose something that doesn't include an individual mandate.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Mr.Phips on March 23, 2012, 07:45:05 PM
If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats.  
The PPACA isn't universal healthcare anyway, so I don't see how this is relevant.

This.  The reason why the bill's constitutionality is being questioned is because of the individual mandate.  The court can strike it down, but I don't see how this would prevent Democrats from passing NHC in the future, especially if they propose something that doesn't include an individual mandate. 

What will prevent Democrats from passing healthcare in the future is clever REpublican gerrymandering.  Unitil Democrats can break up GOP gerrymanders in the big states, there chances of getting a House majority, let alone one big enough to pass universal healthcare are slim to none.  Obama and the DNC royally screwed the Democrats in 2010 when they refused to focus on state legislative races.  2010 really was do or die for Democrats. 


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 23, 2012, 08:33:05 PM
It should be noted that the individual mandate is the only method for getting anything near universal health care that has ever come anywhere close to political acceptability or having been pushed in both parties. The only alternative is directly government funded health care, so it would take a dramatic shift to the left by the GOP to make that possible.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: The world will shine with light in our nightmare on March 23, 2012, 10:00:09 PM
If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats.  
The PPACA isn't universal healthcare anyway, so I don't see how this is relevant.

This.  The reason why the bill's constitutionality is being questioned is because of the individual mandate.  The court can strike it down, but I don't see how this would prevent Democrats from passing NHC in the future, especially if they propose something that doesn't include an individual mandate.  

What will prevent Democrats from passing healthcare in the future is clever REpublican gerrymandering.  Unitil Democrats can break up GOP gerrymanders in the big states, there chances of getting a House majority, let alone one big enough to pass universal healthcare are slim to none.  Obama and the DNC royally screwed the Democrats in 2010 when they refused to focus on state legislative races.  2010 really was do or die for Democrats.  

Both parties have gerrymandered quite a bit with their majorities, so I don't think redistricting will be a huge factor for the next ten years.  Even if it does prevent the Democrats from retaking the House, I certainly wouldn't think it means universal healthcare is "dead forever".  At the very minimum, we should get a public option someday, maybe.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: 🐒Gods of Prosperity🔱🐲💸 on March 23, 2012, 11:31:43 PM
It should be noted that the individual mandate is the only method for getting anything near universal health care that has ever come anywhere close to political acceptability or having been pushed in both parties. The only alternative is directly government funded health care, so it would take a dramatic shift to the left by the GOP to make that possible.
I think the essentialness of the individual mandate to this type of system is overblown - at least so long as employer based plans remain the norm.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Svensson on March 23, 2012, 11:37:15 PM

Of course not. Mr. Phips just seems to like overdramatizing things.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: True Federalist (진정한 연방 주의자) on March 25, 2012, 12:44:03 PM
If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats.  
The PPACA isn't universal healthcare anyway, so I don't see how this is relevant.

This.  The reason why the bill's constitutionality is being questioned is because of the individual mandate.  The court can strike it down, but I don't see how this would prevent Democrats from passing NHC in the future, especially if they propose something that doesn't include an individual mandate.  

What will prevent Democrats from passing healthcare in the future is clever REpublican gerrymandering.  Unitil Democrats can break up GOP gerrymanders in the big states, there chances of getting a House majority, let alone one big enough to pass universal healthcare are slim to none.  Obama and the DNC royally screwed the Democrats in 2010 when they refused to focus on state legislative races.  2010 really was do or die for Democrats.  

Both parties have gerrymandered quite a bit with their majorities, so I don't think redistricting will be a huge factor for the next ten years.  Even if it does prevent the Democrats from retaking the House, I certainly wouldn't think it means universal healthcare is "dead forever".  At the very minimum, we should get a public option someday, maybe.

In any case, it wasn't gerrymandering, but filibustering that killed any hope the Democrats had of passing any sort of single payer plan.  They had enough of a House majority in 2009, that single payer could have passed there, but not enough of a Senate supermajority.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 25, 2012, 01:16:53 PM
I'm with Beet on this one.  Not only in American political discourse, but the world over, there are only two routs to universal coverage, a national system funded through taxation, or a multipayer system backed up by mandates.  You can't finance pre-existing conditions, catastrophic care, long-term care for chronic illness or elder-care, ect., without everyone being in the insurance pool. 

On the other hand, you can't finance universal coverage without some strong mechanisms in place that control health care cost inflation.  If the mandate are overturned by SCOTUS, and we don't want cost controls and we don't want a national system either, then, in the short term, we won't have universal coverage  And we'd be saying, in effect, that we would rather ration tens of millions of people out of health care coverage entirely than ration procedure and medicine coverage for everyone in the pool, and this is one thing that, to my mind, is just disgraceful about our system.  But, on the other hand, if we don't want any of these three things listed above, then the steady increase of costs added to the demographic trends of the U.S. will bankrupt us anyway. 

There have been some proposals floated recently about insurers offering pre-existing conditions coverage in exchange for continued enrollment (incentivizing buy-in), and of course there is always the tax-subsidization for premium costs route.  But I'm not sure how to work the details of the former, and in the case of the latter, without dramatic measures taken in cost inflation management, that solution would be headed to the same abyss everything else is.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 25, 2012, 01:54:23 PM
A case can be made that the SCOTUS decision is all sound and fury signifying very little. First, it is quite likely that if the mandate is struck, the whole law will not go down with it - SCOTUS will sever. Second, the mandate in place is 1) (i) ludicrously small in the amount of the "fine," and (ii) to get the votes the Dems had to excise any enforcement mechanism, so while you are supposed to pay the fine, there is no sanction if you don't (it's the honor system baby). 

So we are back to where we started. Irrespective of what SCOTUS does (which as a practical matter won't mean much probably), Obamacare will collapse of its own fiscal weight. It just doesn't pencil, either on the revenue side as outlined above, nor on the cost side. Congress will have to revisit the issue as the specter of insolvency becomes ever more pressing, and folks start chatting about the quality of the full faith and credit guarantee of the US Treasury in a more insistent manner.  And it seems that we might have to get that close to the abyss before the matter is revisited. Sad.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: The world will shine with light in our nightmare on March 25, 2012, 01:56:12 PM
If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats.  
The PPACA isn't universal healthcare anyway, so I don't see how this is relevant.

This.  The reason why the bill's constitutionality is being questioned is because of the individual mandate.  The court can strike it down, but I don't see how this would prevent Democrats from passing NHC in the future, especially if they propose something that doesn't include an individual mandate.  

What will prevent Democrats from passing healthcare in the future is clever REpublican gerrymandering.  Unitil Democrats can break up GOP gerrymanders in the big states, there chances of getting a House majority, let alone one big enough to pass universal healthcare are slim to none.  Obama and the DNC royally screwed the Democrats in 2010 when they refused to focus on state legislative races.  2010 really was do or die for Democrats.  

Both parties have gerrymandered quite a bit with their majorities, so I don't think redistricting will be a huge factor for the next ten years.  Even if it does prevent the Democrats from retaking the House, I certainly wouldn't think it means universal healthcare is "dead forever".  At the very minimum, we should get a public option someday, maybe.

In any case, it wasn't gerrymandering, but filibustering that killed any hope the Democrats had of passing any sort of single payer plan.  They had enough of a House majority in 2009, that single payer could have passed there, but not enough of a Senate supermajority.

This is true.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Sam Spade on March 25, 2012, 02:04:52 PM
A case can be made that the SCOTUS decision is all sound and fury signifying very little. First, it is quite likely that if the mandate is struck, the whole law will not go down with it - SCOTUS will sever. Second, the mandate in place is 1) (i) ludicrously small in the amount of the "fine," and (ii) to get the votes the Dems had to excise any enforcement mechanism, so while you are supposed to pay the fine, there is no sanction if you don't (it's the honor system baby). 

So we are back to where we started. Irrespective of what SCOTUS does (which as a practical matter won't mean much probably), Obamacare will collapse of its own fiscal weight. It just doesn't pencil, either on the revenue side as outlined above, nor on the cost side. Congress will have to revisit the issue as the specter of insolvency becomes ever more pressing, and folks start chatting about the quality of the full faith and credit guarantee of the US Treasury in a more insistent manner.  And it seems that we might have to get that close to the abyss before the matter is revisited. Sad.

Probably right on this one.  But no one ever thinks the abyss is there until we already halfway falling down it.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Brittain33 on March 25, 2012, 02:32:25 PM
The issue is that our employer-based health care system appears to be collapsing faster than a future collapse of Obamacare (through higher government expenditures, is it?) could take place. I think we have a ways to go before we get to the abyss of the bond market vigilantes deciding government has to get out of the healthcare business for non-olds, and in the meantime, so much else will have changed that many options will have to be on the table for a solution.

http://seattletimes.nwsource.com/html/health/2017814967_webinsure23.html

The share of people with employer-provided health care has fallen from 67% to 58% between 2000 and 2010. Some of it is due to the recession, but I don't know if we've ever seen a significant rebound in coverage associated with higher employment.

Obamacare won't collapse in a vacuum. It's a given that whatever emerges from its ashes, if it collapses spectacularly, won't be the status quo ante because the status quo ante is doing a fine job of dying on its own. What will we have?



Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 25, 2012, 03:17:57 PM
Yes, the status quo is collapse city too, which is what in part ironically drove Obamacare.  It was getting to the point that medical subsidies were squeezing money out of other programs the Dems hold dear. Buried in the mass of verbiage that nobody read at the time, there is this little rationing system that has been put in effect for Medicare down the road. Actually it is Medicare that is really sinking us, and the rap on Obamacare was that it was just putting lighter fluid on the fire, rather than containing it.

So the hunt continues as to how to ration, without anyone discerning, at least for a period of time, that in fact the emperor has no clothes.  It is all in the packaging.

I admit I have a bias here. I hate long wait times to get medical services, so rationing that way just does not suit my demanding self-centered little personality.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 25, 2012, 07:16:15 PM
I admit I have a bias here. I hate long wait times to get medical services, so rationing that way just does not suit my demanding self-centered little personality.

You're not the only one, Torie.  One reason the U.S doesn't have universal coverage yet is that getting it would require people who already have insurance and providers to give up some privileges that they've become used to, and no one in the U.S really wants to give up anything.  But that time is marching toward us when we won't have much of choice.  On lots of fronts, not just this one.

The thing is, I don't believe that the only alternatives with health care are either longer wait times or what we've got now.  The Bismarck system counties that I lived in didn't have long wait times; indeed, for some specialist care, getting services was even faster than it is here.  But, I digress.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 25, 2012, 07:41:06 PM
The thing with the SCOTUS decision regarding the Obamacare mandate, as Mr. Philps indicated at the top of the thread, is that, if they decide to strike it down, that closes the door to any model of universal coverage that would be implemented through a mandate.  That means, as far as I can tell, that the only route left to universal coverage would be a national insurance system, which, to my mind (others on the forum may disagree), doesn't work as well as the multipayer Bismarck system, which features mandates.  That's to say that, in thinking about this thread, defending Obamacare specifically wasn't my main concern; my concern was rather which doors we may be leaving open or closed in terms of future reforms way may have to make. 


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: memphis on March 25, 2012, 07:49:52 PM
We already have long wait times to see doctors. Not sure what people are getting at. The medical field has the worst customer service model ever.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 25, 2012, 07:57:03 PM
Bismarck was just a stooge of Bill Ayers, anvi. Just be thankful that you escaped whatever totalitarian hell-hole you used to live in and arrived at the land of freedom (fries). :)

On another note, this article (http://www.politico.com/news/stories/0312/74429.html) chronicles just how fringe a Constitutional challenge to the mandate was deemed at the time of the law's passage- even by conservative and libertarian legal experts. This is a classic case of asking ma [SCOTUS] 'cause you didn't get the answer you wanted from pa [democratic political institutions].


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 25, 2012, 08:53:40 PM
Bismarck was just a stooge of Bill Ayers, anvi. Just be thankful that you escaped whatever totalitarian hell-hole you used to live in and arrived at the land of freedom (fries). :)

On another note, this article (http://www.politico.com/news/stories/0312/74429.html) chronicles just how fringe a Constitutional challenge to the mandate was deemed at the time of the law's passage- even by conservative and libertarian legal experts. This is a classic case of asking ma [SCOTUS] 'cause you didn't get the answer you wanted from pa [democratic political institutions].

If only they had packaged as a tax, where you raise taxes, and get it back as a tax credit if you buy insurance. The thing is, if the interstate clause reaches this, it reaches everything. Heck, you could be fined for not buying a Chevy Volt! So just strike the minor and toothless mandate since it is so easy to repackage it as a tax, and the law will be just about equally unworkable and bad, with or without the mandate, so just doing a severing does no real damage to the law itself. In short, there is no compelling public policy need quite yet for the commerce clause to swallow everything, and put the final nail into federalism as something mandatory rather than discretionary under the Constitution.  I think that is a killer and dispositive argument myself, if you work through the steps that way. 


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 25, 2012, 09:33:11 PM
So, let me get this argument straight, Torie.  On the one hand, the Obamacare mandate is so weak and toothless that allowing it to remain in the law or severing the rest of the law from it would make practically no difference.  That is supposedly the case, aside from penalty and tax credit issues, primarily because it has no enforcement mechanism, and so doesn't really function like a mandate anyway.  But, on the other hand, retaining the mandate would destroy the constitution because the mandate is far too strong; it would give the government carte blanche authority to mandate the purchase of any item in the name of regulating markets.  So, the very same mandate is too weak to make the legislation in question effective as regulation of the one market it was intended to regulate, but too strong for the commerce clause to bear the weight of because it threatens to give the government authority to force product-purchase in all markets.  Am I getting this right?  If so, how can a mandate be simultaneously so weak that it doesn't even require product purchase in the law in which it's found, but so strong that its authority could compel product purchase in every other market? 

Anyway, if SCOTUS agrees, then the implications are, I think, as I've stated above.  


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 25, 2012, 09:55:25 PM
You got it anvi.  Alice is still very much alive. Well, it is not so much the integrity of markets, but preserving the idea that the states have some residual power vis a vis the feds (aka "federalism"). Not that I am in love with the idea of "states rights," but that is a whole other Pandora's box, about which I  yet again - have a host of my own arrogant little opinions.  But I have a license to be that way. :P


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 25, 2012, 10:00:31 PM
I agree Alice is very much alive.  I speak to her daily on numerous occasions, in fact.  I'm just saying I don't think it can be both in this case.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 25, 2012, 10:52:54 PM
I agree Alice is very much alive.  I speak to her daily on numerous occasions, in fact.  I'm just saying I don't think it can be both in this case.

Alice goes both ways here, because if the Feds can do the mandate, Constitutionally, then they can do anything that the states can do, but in the instant case, where it was revealed that reality was that it was the Leviathan - DC style - unleashed, in fact they did next to nothing. Just because something has irony attending it, doesn't make it untrue.  But next time, what they may do, unleashed, might be more than next to nothing. And they might be coming after you. 

This little exercise in Paulite paranoia lite assumes arguendo that you think the states are worth a damn. And that brings one to the race to the bottom thing, which is the Pandora's box in the closet on the other side of the hallway. They're everywhere. I need a toke - now.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Sam Spade on March 25, 2012, 11:35:11 PM
Torie has pretty much hit the nail on the head with regard to what I think is the winning argument on the whole matter, so much so that there's no need for me to repeat anything.

What I would mention is that for this argument to be seriously challenged, one would need to show a clear limiting principle, such that the health care mandate, as presently structured, if allowed, can be logically distinguished from other such direct mandates down the road.  The government's brief has not done that, nor has anyone else.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: ○∙◄☻¥tπ[╪AV┼cVê└ on March 26, 2012, 12:47:44 AM
If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats.  
The PPACA isn't universal healthcare anyway, so I don't see how this is relevant.

This.  The reason why the bill's constitutionality is being questioned is because of the individual mandate.  The court can strike it down, but I don't see how this would prevent Democrats from passing NHC in the future, especially if they propose something that doesn't include an individual mandate. 

What will prevent Democrats from passing healthcare in the future is clever REpublican gerrymandering.  Unitil Democrats can break up GOP gerrymanders in the big states, there chances of getting a House majority, let alone one big enough to pass universal healthcare are slim to none.  Obama and the DNC royally screwed the Democrats in 2010 when they refused to focus on state legislative races.  2010 really was do or die for Democrats. 

Focusing on the House sure turned out swimmingly for them.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 26, 2012, 01:06:59 AM
I wrote many drafts of a response over the past few hours, and then just gave up.  Hopefully some wisdom will descend upon me in the future, which will permit me to give up far sooner.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 26, 2012, 02:05:36 AM
Ok, I'll just write it.  We've been through this over and over, so I guess arguing about it now doesn't make much sense when the big nine will rule as they rule soon enough anyway.  But, whatever.

Of course irony doesn't make something untrue.  But saying that one and the same bear is too weak to rip open one plastic bag but powerful enough to rip open all plastic bags is not irony.  And saying that one and the same law that is too weak to compel product-purchase in one market is strong enough to compel product-purchase in all markets isn't irony either.

But, instead of saying that, we're now saying that PPACA's mandate should be struck down because it could have been, or could be worse?  The argument now is that SCOTUS is supposed to shoot down a current law, not because the current law breeches the constitution, but because a future law sort of similar to it but only stronger might?  So, now we have SCOTUS striking down fantasy laws by using the ones before them as proxies?

I was really unaware that I don't give a damn about the states.  I had not thought about that.  But it could be true.  I guess, at the end of the day, I believe that an individual's right to access health care coverage trumps a for-profit insurer's right to deny them coverage or rescind them just because they were already sick.  That is the point of striving for universal coverage.  Do I think mandates are the only way to get there?  Well, the only two routes to universal coverage that I'm aware of so far have been the two mentioned above.  Now, we're told again and again that the "socialized medicine" of a national system is "un-American" and on top of it won't work.  That means that, if the U.S. is to achieve universal coverage, it will have to do so within the framework of a multipayer system.  Well, so far, universal coverage in a multipayer system has required the implementation of mandates.  Now, I'm not some a priori dogmatist.  There's nothing precluding the possibility that someone may come up with a new route, so maybe individual mandates are not the only tool in the box.  If we were trying to get universal coverage with mandates, than I surely agree that the Obamacare mandate is woefully inadequate to the task.  No argument there.  But then again, I don't really believe that health insurance, even if we preserve its offering through private companies, should be a for-profit industry in the first place.  Not because of red-herring issues like the size of profit margins, since health insurance is a low to middling profit-maker to begin with, but because I think making investors happy shouldn't be a motive when it comes to deciding who or what to cover--it's the way the system skews incentives in the wrong area of life that bugs the hell out of me.  If we as a nation really believe that a health insurance company's right to profits is more important than an individual's access to health care, then I think we've become dogmatists about just how many areas of life free-market principles have to dominate, and, with regard to this matter, it's a profoundly unethical sort of dogmatism.  If that makes me an anti-federalist or un-American, then so be it.  In the grander scheme of things, I've actually been called worse.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 26, 2012, 11:17:28 AM
No anvi, it is much simpler. Sorry, if my text has been a mystery within a riddle wrapped in an enigma.

If the mandate is upheld, federalism as a constitutional matter, where the power of the Feds is limited, is essentially dead, even though the mandate itself is very small beer. Now in the real world, if not having a national standard for something creates a situation that is essentially unworkable, denying the Feds the power to manage the economy in a way that absent that, we all sink into the abyss, then obviously that will influence SCOTUS (as it did during the Depression vis a vis the commerce clause). They are practical men, and don't live in a bubble, and in that sense, the Constitution is indeed a living document. But here, there is no such compelling need to finally inter federalism. There is an easy finesse, even if you think the concept that everyone should be paying medical insurance who can afford it because we have these "free" emergency rooms, and we just don't let folks die in the streets, is a sine qua non to avoiding sinking into the fiscal abyss. So at this time, there is no compelling need to effect such a radical adjustment to the meaning of the Constitution. You only go radical in the most interesting of times. This is not one of those times.

Make sense?


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Sbane on March 26, 2012, 12:28:43 PM
Torie, what is in your opinion the best way to have a mandate without actually having one? Make into a tax? Isn't a fine already sort of like a tax?


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 26, 2012, 12:53:40 PM
Torie, what is in your opinion the best way to have a mandate without actually having one? Make into a tax? Isn't a fine already sort of like a tax?

Yes, a tax, and yes economically the mandate is like a tax, but not legally. A tax is where you make a levy on a transaction. So you just raise taxes on everyone, and give it back in the form of a tax credit for those who have insurance. It is well settled that you can bribe folks to do something, even if the Feds lack the power to lash them into doing something. Anyway, as I have said, the finesse is an easy one here.

Anyway, almost all legal scholars agree with me on this one, FWIW. The action surrounds the reach of the commerce clause, not whether this puppy is a tax.

Addendum:  Here (http://www.politico.com/news/stories/0312/74470_Page2.html) is a quite entertaining vignette on today's arguments, where the Solicitor General was arguing today that it was not a tax, but tomorrow will argue that it is, and the Justices basically chewed the guy up and spit him out - all of them. As I said, they just ain't going to find it a tax.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: they don't love you like i love you on March 26, 2012, 04:29:03 PM
What Torie is saying reminds me of Tim Pawlenty's "health impact fee".


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 26, 2012, 06:01:37 PM
Bismarck was just a stooge of Bill Ayers, anvi. Just be thankful that you escaped whatever totalitarian hell-hole you used to live in and arrived at the land of freedom (fries). :)

On another note, this article (http://www.politico.com/news/stories/0312/74429.html) chronicles just how fringe a Constitutional challenge to the mandate was deemed at the time of the law's passage- even by conservative and libertarian legal experts. This is a classic case of asking ma [SCOTUS] 'cause you didn't get the answer you wanted from pa [democratic political institutions].

If only they had packaged as a tax, where you raise taxes, and get it back as a tax credit if you buy insurance. The thing is, if the interstate clause reaches this, it reaches everything. Heck, you could be fined for not buying a Chevy Volt!

It doesn't matter how it's packaged, it matters what it is. Laws are always packaged as different from what they are. Was the "Patriot Act" the essence of patriotism? Many people who would consider themselves patriotic do not support the continuation of the (whole) act. Is the Stand Your Ground law just about your right to stand in a public space? Or, is it also about public safety and proportional force? It is clearly about both, but it was not "packaged" as both. If we start judging laws by now they're packaged, they're be no limit to Congressional power. It was would unprecedented. The government would be able to force you to eat broccoli and buy Chevy volts [both silly comparisons, fwiw] simply by labelling their act a Nutrition and Environment Bill. After all, how could Nutrition be unconstitutional? In short, you're splitting hairs here.

Quote
So just strike the minor and toothless mandate since it is so easy to repackage it as a tax, and the law will be just about equally unworkable and bad, with or without the mandate, so just doing a severing does no real damage to the law itself.

The idea that Congress will pass a tax to make the law whole again is absurd; If this were a Bush or Romney initiative Boehner would try to go for it, as it is he will not. Pelosi would support it, although she'd oppose it if it were Romney's idea. Behind the screen here are no policy reasons, but political reasons.

Quote
In short, there is no compelling public policy need quite yet for the commerce clause to swallow everything, and put the final nail into federalism as something mandatory rather than discretionary under the Constitution.  I think that is a killer and dispositive argument myself, if you work through the steps that way. 

Are you kidding my dear? The health care industry is not interstate commerce? I don't see how anyone could possibly see this as more expansive than a person growing marijuana in their back yard. So essentially what you are arguing is that If I grow marijuana in my back yard I'm trading across states, but Blue Cross Blue Shield does not operate in a national market. This case doesn't "swallow everything", far from it, it is a meek, shy little girl bawling in the corner of the ballroom, and her prosecutors are trying to make her into the belle. The only belle she has a chance of becoming is the one at the conservative judicial activism ball.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 26, 2012, 06:14:33 PM
As a legal matter, savoring the difference between a tax and a fine, and between regulating someone doing something versus not doing something, is an acquired taste Beet. Give it time.

If the Feds can regulate doing nothing, I would be interested in knowing what remains that they cannot do (absent some other Constitutional proscription other than it is beyond the reach of the commerce clause), and how that is different than regulating doing nothing when it comes to health insurance.

If I were arguing for Obamacare, I would make job one trying to outline just how upholding it has not eaten federalism alive, because something, somewhere, remains a class of something relevant to the human condition that is not within the reach of the commerce clause. I frankly can't think of anything, but you are a smart and creative guy Beet who thinks outside the box, so perhaps you can help me here.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 26, 2012, 06:55:09 PM
I consider the premise of the question absurd, because to answer it accepts that it is even a rational response to this bill, which I do not accept. I only point out that the substance of the Affordable Care Act's "mandate" provision is identical to the tax-credit system you yourself seem to have no problem with, the only thing being argued over here is the packaging. I consider Wickard v. Filburn a far, far, far more significant case w.r.t. the commerce clause than this thing.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 26, 2012, 07:12:52 PM
I have a question about a minor detail- Is not buying health insurance actually criminalized? Or is it merely that not paying the penalty is treated as tax evasion? I suspect it's the latter but I haven't been able to find any definitive source.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 26, 2012, 07:44:35 PM
I have a question about a minor detail- Is not buying health insurance actually criminalized? Or is it merely that not paying the penalty is treated as tax evasion? I suspect it's the latter but I haven't been able to find any definitive source.

No, just a fine - with no enforcement mechanism to collect.

That wheat case involved someone doing something. I most clearly understand that you consider it a distinction without a difference.

Pity you won't take up my federalism challenge though. I was counting on you to come through for me.  I was genuinely curious as to what you might come up with.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Paul Kemp on March 26, 2012, 07:46:19 PM
Single-payer please.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 26, 2012, 08:12:35 PM
Torie has pretty much hit the nail on the head with regard to what I think is the winning argument on the whole matter, so much so that there's no need for me to repeat anything.

What I would mention is that for this argument to be seriously challenged, one would need to show a clear limiting principle, such that the health care mandate, as presently structured, if allowed, can be logically distinguished from other such direct mandates down the road.  The government's brief has not done that, nor has anyone else.

I asked Beet Sam Spade to do that for us, and find where life would yet exist in the zone beyond the commerce clause (hey my failure to wear condoms affects commerce (thank God they created a fundamental liberty right after that privacy thing lost its cache)), but that challenge apparently did not excite his most active and creative brain. Maybe I should create a contest with a monetary reward for the chap who does.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 26, 2012, 08:29:16 PM
I guess I'm still not clear on how this mandate swallows federalism.  What does the mandate not let the states do?


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Brittain33 on March 26, 2012, 08:35:59 PM
The problem is that not buying insurance isn't really non-participation in the health care market--everyone participates in that market, except maybe for the Amish who can stay close enough to home to never get in a car accident and get taken to the hospital. That "inactivity" manifests itself in suddenly getting sick and going to the hospital, getting high bills you can't pay, and then resorting to bankruptcy to discharge those bills, which has an impact on the health care economy. I'm not making up that sequence of events... it happened to one of the plaintiffs in the case who was suing about the imposition on her freedom of the mandate. She went to the hospital and then bankruptcy court, hardy har har.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 26, 2012, 08:50:12 PM
Guys everything you choose not to do, or do, affects commerce down the line - there is no escape. If I don't eat certain foods that I should eat, as opposed to other ones, I most certainly will affect the health care market, and my cost to the system. Everything.

The ironic thing is that I by and large disdain federalism - always have, and when the Pubs start ranting about it, I just turn off the sound (I already have enough cognitive dissonance).  But I didn't write the Constitution.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Brittain33 on March 26, 2012, 09:06:38 PM
Guys everything you choose not to do, or do, affects commerce down the line - there is no escape. If I don't eat certain foods that I should eat, as opposed to other ones, I most certainly will affect the health care market, and my cost to the system. Everything.

True, but that's just a slippery slope argument, which isn't an argument in itself. Health care expenditures are a massive part of our economy and part of interstate commerce. You don't have to stretch to see that. Someone eating broccoli or not, you have to stretch really far to see that as part of interstate commerce. And even then, we have an actual precedent of people growing wheat or marijuana for their own possession, which is far more trivial than claiming freedom to not participate in the health insurance market and then getting sick and freeloading on everyone else for health care.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Sam Spade on March 26, 2012, 09:41:04 PM
Guys everything you choose not to do, or do, affects commerce down the line - there is no escape. If I don't eat certain foods that I should eat, as opposed to other ones, I most certainly will affect the health care market, and my cost to the system. Everything.

True, but that's just a slippery slope argument, which isn't an argument in itself. Health care expenditures are a massive part of our economy and part of interstate commerce. You don't have to stretch to see that. Someone eating broccoli or not, you have to stretch really far to see that as part of interstate commerce. And even then, we have an actual precedent of people growing wheat or marijuana for their own possession, which is far more trivial than claiming freedom to not participate in the health insurance market and then getting sick and freeloading on everyone else for health care.

Of course it's a slippery slope argument, but the problem is that no one has put forth a reasonable dividing line (i.e. a limiting principle) as to what activities that I have not done but allegedly have to do can be regulated by the feds, and which ones cannot that can be used by the courts in addressing other laws which attempt to regulate the same way.  It is doubtful that the USSC would allow the feds to regulate activities not done all the way down the pole, for the reasons Torie mentioned (not to mention the fact that it would swallow up other provisions, like the taxing and spending clause, which are broader in scope), so one has to be able to articulate a practical (not to mention constitutional) limiting principle in order to win, I suspect.

The limiting principles that health care is different because it is a large industry or because its something people always have to use I just can't see working.  Think about why. (or maybe re-read Torie's post above)


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 26, 2012, 09:47:10 PM
I'm still missing a step--sorry I'm slow, but I genuinely want to understand the argument.  My understanding up to now is that the major objection against the ACA mandate is that if gives the government too much power over individuals, since allowing this mandate to survive would give the government sweeping authority to require the individual to purchase anything in the name of government regulating its favorite market in any given week.  But this thing about federalism keeps coming up, which makes it sound like the mandate is infringing on the rights of the states, and not the individual.  I don't get that part.  Isn't the commerce clause an enumerated power of the federal government with regard to commerce between the states?  What does the mandate in ACA require the states to do?


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Sam Spade on March 26, 2012, 10:10:56 PM
I'm still missing a step--sorry I'm slow, but I genuinely want to understand the argument.  My understanding up to now is that the major objection against the ACA mandate is that if gives the government too much power over individuals, since allowing this mandate to survive would give the government sweeping authority to require the individual to purchase anything in the name of government regulating its favorite market in any given week.  But this thing about federalism keeps coming up, which makes it sound like the mandate is infringing on the rights of the states, and not the individual.  I don't get that part.  Isn't the commerce clause an enumerated power of the federal government with regard to commerce between the states?  What does the mandate in ACA require the states to do?

Well, there's nothing that says the mandate cannot infringe on the rights of the states, as well as the rights of the individual, in that the two are not coterminous.

Federalism, in its most basic utterance, is the concept that state governments possess certain powers within their purview that the federal government cannot abrogate.  Historically, these types of state powers were commonly defined as "police powers" and they were outside the realm of federal intervention.  With the broader understanding of the commerce clause, and also Section 5 of the 14th Amendment (not to mention the taxing and spending clause), the Court in the latter half of the 20th century has allowed many of these police powers to go by the wayside.

My long road here is merely saying that the mandate does not compel the states to do anything; rather, it takes away a power of theirs to regulate these types of activities directly, namely use of the police power to mandate that people have health insurance (which any state government could certainly do), and limits it severely.  The argument is that the federal government does not have the power to do this under the commerce clause, in that they cannot regulate the citizens into performing certain activities - that is the state's job.

The individual rights argument is a much newer argument, as are all individual rights arguments, which basically find their genesis in the latter half of the 20th century.  The difference is that the individual's right to choose whether to purchase health insurance or not (or whether or not to use health care - to be more direct) is affected directly, as opposed to the indirect federalism argument, where states are not compelled to do anything, just have their powers taken away.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 26, 2012, 11:04:04 PM
The Reader's Digest version is that the concept of federalism is not about whether some arm of the government can force you to eat broccoli (some arm can absent something in the Constitution saying to the contrary), rather it is about whether the Feds as opposed to the States can ... just like Massachusetts  can effect a mandate to buy health insurance, but the Feds cannot - absent the commerce clause saying the Feds can do anything the States can do. 


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 26, 2012, 11:56:40 PM
Ok, sure; states can create laws binding upon their own residents regarding the purchase of health insurance.  But that doesn't negate the fact that health insurance does involve interstate commerce, since it purchases services, medicines and equipment that traverse state lines.  So long as Congress decides to pass a law regulating what is legitimately interstate commerce, that does not necessarily mean that it's abrogating a power that only the states can lay exclusive claim to.  So, then, the question regarding the constitutionality of the ACA mandate is not one about the government's authority to regulate the purchase of health insurance per se, a power that only states would otherwise lay exclusive claim to.  It's about whether pressuring (I'm going to use the word pressuring because the ACA mandate doesn't legally force anyone to make a purchase) citizens to purchase insurance when they don't possess it in the first place is an over-extension of commerce clause authority, presumably in view of the above-stated slippery-slope argument.  And any conflict about the overextension of a congressional power by its very nature invokes the framework of federalism, because powers that don't belong to the federal government might belong to the states or the people.  No?


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 27, 2012, 09:05:36 AM
Government briefs that have addressed the issue of what makes the health care market distinct from other markets, by the way, have not just pointed out that practically everyone is already actively involved with the health care market already, since, as noted above, if that were the only argument, lots of other markets are actually comperable.  In one way or another, most of us already buy water and shoes, but that doesn't mean the government can mandate that we purchase them.  The other distinctive thing about the health care market is that, under certain emergency conditions, someone may go into an emegency room, demand services at no cost without the provider having the right to refuse them, forcing all other active consumers in the market to pay the bill.  This is not analogous to other kinds of cost-shifting in other markets, and certainly in no other market can someone walk into the front door of a vender, demand a service witout compensation, and charge the bill to the general public.  Now, unless we are prepared to repeal laws like EMTILA (and I hope we are not), then that distinction will remain between the health care markets and other markets, and so regulations designed to address that unique problem (the free rider problem) of the health care markets will not impinge on other markets.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 27, 2012, 09:25:32 AM
So if the government subsidizes something ("free" emergency rooms), then it can force people to buy insurance to pay for it, to take some of the subsidy back? 

You guys have done the best you can I think. What you are left with is a size and importance thing. But that isn't a bright line. When does doing nothing rise to the level of import vis a vis the subsidy that it becomes interstate commerce? Interstate commerce before has never before been a function of size and importance, just about the nature of the underlying activity or lack thereof.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Brittain33 on March 27, 2012, 09:34:18 AM
So if the government subsidizes something ("free" emergency rooms), then it can force people to buy insurance to pay for it, to take some of the subsidy back? 

You guys have done the best you can I think. What you are left with is a size and importance thing. But that isn't a bright line. When does doing nothing rise to the level of import vis a vis the subsidy that it becomes interstate commerce? Interstate commerce before has never before been a function of size and importance, just about the nature of the underlying activity or lack thereof.

Health insurance and health care is one of the largest parts of our economy. It's hard to conceive of something taking up 10% (or whatever) of our GDP and not crossing state lines in some way. The mandate is not interstate commerce but it is essential to the functioning of the healthcare system and is covered by "necessary and proper." This is all pretty straightforward. I may not be able to convince you, but it makes sense to me.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 27, 2012, 09:43:57 AM
"Necessary and proper" is almost universally disdained as a road to saving the mandate. Using that prong would justify almost anything. So we are left with the fuzzy line test based on how big the elephant is. And everything we do affects commerce - from the moment we are born. Once you have two people whose activities affect one another, you have commerce. And in an economy where there are not fifty wholly autarkic economies in each state, it affects interstate commerce. So are are back to the issue of the final interment of federalism, putting aside whether or not the fuzzy line test has any attraction to enough Justices who are not quite ready to arrange for the burial service.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Brittain33 on March 27, 2012, 10:02:11 AM
"Necessary and proper" is almost universally disdained as a road to saving the mandate. Using that prong would justify almost anything. So we are left with the fuzzy line test based on how big the elephant is. And everything we do affects commerce - from the moment we are born. Once you have two people whose activities affect one another, you have commerce. And in an economy where there are not fifty wholly autarkic economies in each state, it affects interstate commerce. So are are back to the issue of the final interment of federalism, putting aside whether or not the fuzzy line test has any attraction to enough Justices who are not quite ready to arrange for the burial service.

You seem to be arguing that since everything can be regulated as interstate commerce, nothing can be.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 27, 2012, 10:21:50 AM
What affect does me kissing my girlfriend have on commerce?


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 27, 2012, 10:25:22 AM
No, the bright line is between doing something versus doing nothing. The issue is whether to draw the line there, or have no line at all, or this size fuzzy line thing I guess.

Having said that, and having just done a google, SCOTUS  has (sort of) flirted (http://law2.umkc.edu/faculty/projects/ftrials/conlaw/federalcommercepower.html) with another fuzzy line test, the truly national versus truly local one, so I can see where the mandate folks will be going with this, which is where Brittain33 et al. have already gone, that this puppy is truly national. I find that fuzzy line as unsatisfactory as the size one, but that is just me.

What kind of kiss Beet?  Anyway, one thing leads to another, and before you know it, you might get a disease - or a rug rat. However, your kisses are safe anyway - it's your fundamental liberty right.

Meanwhile in other news, Justice Kennedy also asks (http://www.politico.com/news/stories/0312/74525.html) that if the health insurance mandate now, is the broccoli mandate next?  Justice Breyer and Ginsburg rejoined with the free rider issue, although not apparently tying it to something other than a public policy concern.  Plus ca change, plus ca meme chose.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 27, 2012, 10:55:04 AM
"Necessary and proper" is almost universally disdained as a road to saving the mandate. Using that prong would justify almost anything. So we are left with the fuzzy line test based on how big the elephant is. And everything we do affects commerce - from the moment we are born. Once you have two people whose activities affect one another, you have commerce. And in an economy where there are not fifty wholly autarkic economies in each state, it affects interstate commerce. So are are back to the issue of the final interment of federalism, putting aside whether or not the fuzzy line test has any attraction to enough Justices who are not quite ready to arrange for the burial service.

You seem to be arguing that since everything can be regulated as interstate commerce, nothing can be.

Eh, the argument that I can see is that the notion that everything affects interstate commerce in some way is a platitude, so that argument which depend on it can't be reliably depended on. In U.S. vs Lopez (1995), the government argued that the crime rate affected interstate commerce, and the justices didn't buy it. Of course the court isn't totally averse to arguments about indirect affects, as Wickard v Filburn (1942) shows.

Apparently the judges thus far have been somewhat hostile to the taxing power argument, although I have to admit that that one seems to be the stronger one to me, personally. Roberts raised something similar with the effect of questioning the strength of the mandate, and it really isn't very strong.

Quote
Meanwhile in other news, Justice Kennedy also asks that if the health insurance mandate now, is the broccoli mandate next?  Justice Breyer and Ginsburg rejoined with the free rider issue, although not apparently tying it to something other than a public policy concern.  Plus ca change, plus ca meme chose.

The whole broccoli example is absurd if the mandate is seen as enforced through a tax, because then all the government does is force us to 'buy' things. Literally everything the government does is the functional equivalent of 'forced buying.' Witness the protestations about the funding of Planned Parenthood.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 27, 2012, 11:14:53 AM
The two main arguments I've heard against that it is a tax-- first, that if you do not buy insurance you pay a fine described as a 'penalty', but it is a penalty for not paying a tax, because the act of purchasing insurance in accordance to the so-called mandate itself has the properties of a tax. The mandate itself is a tax because-- well, the whole point of it is to inject money into the national insurance pool. The good that it is designed to uphold is entirely monetary. In contrast to say, a law against speeding, which is designed to protect a non-monetary benefit (safety), or a law against littering (cleanliness), the mandate is inherently monetary. The supporters of the mandate are not saying that having insurance is inherently morally superior to not having insurance. They simply want to compel people-- through incentives, to contribute more money into the system. It seems pretty absurd to me how something that is functionally equivalent to that which is purely constitutional can be struck down simply because of some matters of semantics. But again, the judges don't appear to like this argument, so admittedly I'm not quite sure what to think. I'm not a lawyer :/


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Sam Spade on March 27, 2012, 11:18:36 AM
Based on the updates today, it seems pretty clear that four are in favor.  The other justices are having problems with exactly what Torie and I have referenced - no limiting principle.

Most key, Kennedy is also having real issues, as I suggested above, with how the mandate affects individual liberty and individual rights.  He apparently repeatedly asked "whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden" (to quote SCOTUSblog), which suggests that he may think the mandate is unprecedented, and thus would have to meet a heavier burden of scrutiny.

At any rate, Tom Goldstein writes this:  "After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close."

Which means we're back to the limiting principle question again.  At minimum, it suggests that any holding for the health insurance mandate will be very narrow, because I don't see Roberts going very far outside the facts either, based on his questions.  Alito, Scalia seem like clear nos.  Thomas doesn't talk.

My read also is that the tax argument is not getting any credibility.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Brittain33 on March 27, 2012, 11:25:05 AM
Well, if the judges decide to overturn this law by a 5-4 margin, the only significant binding precedent will have been Bush v. Gore for having led to the current composition of the Supreme Court. Schade.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Swing low, sweet chariot. Comin' for to carry me home. on March 27, 2012, 11:28:28 AM
Well, if the judges decide to overturn this law by a 5-4 margin, the only significant binding precedent will have been Bush v. Gore for having led to the current composition of the Supreme Court. Schade.

It's clear the mandate will be overturned by this court, and considering the majority of Americans want it to go down, a 5-4 split would be ideal for GOP arguments in Nov 2012 - "if you want Obamacare, just give Obama another 4 years to shift the balance of the court."



Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Brittain33 on March 27, 2012, 11:33:38 AM
Well, if the judges decide to overturn this law by a 5-4 margin, the only significant binding precedent will have been Bush v. Gore for having led to the current composition of the Supreme Court. Schade.

It's clear the mandate will be overturned by this court, and considering the majority of Americans want it to go down, a 5-4 split would be ideal for GOP arguments in Nov 2012 - "if you want Obamacare, just give Obama another 4 years to shift the balance of the court."



It's true, Kennedy and Roberts may be considering how difficult Romney's path to the White House will be if the mandate he championed in Massachusetts remains in place. If they can overturn it, that removes a major obstacle to united conservative support for him in his race against Obama.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 27, 2012, 11:37:12 AM
If I may ask, why isn't the tax argument getting any credibility?

In any case, it seems to me w.r.t. to the commerce clause at least that it would be hard to argue that the mandate is unconstitutional regulation and at the same time that the mandate is essential to the requirement that insurance companies accept those with preexisting conditions-- because the latter clearly is a constitutional regulation. So one has to either accept that the latter is somehow practicable without the mandate, in which case it must be severed, or that the mandate is somehow necessary to requiring companies to accepting preexisting conditions, in which case the mandate is necessary for the government to be able to effectively enact regulations on this market.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 27, 2012, 11:39:02 AM
Well, if the judges decide to overturn this law by a 5-4 margin, the only significant binding precedent will have been Bush v. Gore for having led to the current composition of the Supreme Court. Schade.

It's clear the mandate will be overturned by this court, and considering the majority of Americans want it to go down, a 5-4 split would be ideal for GOP arguments in Nov 2012 - "if you want Obamacare, just give Obama another 4 years to shift the balance of the court."



It's true, Kennedy and Roberts may be considering how difficult Romney's path to the White House will be if the mandate he championed in Massachusetts remains in place. If they can overturn it, that removes a major obstacle to united conservative support for him in his race against Obama.

You don't really think that do you Brittain33 do you?  I mean if I were them, I would consider that an incredibly insulting comment - suggesting that they have no ethics at all, and no compunction against abusing the power of their office.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 27, 2012, 11:43:46 AM
If I may ask, why isn't the tax argument getting any credibility?

In any case, it seems to me w.r.t. to the commerce clause at least that it would be hard to argue that the mandate is unconstitutional regulation and at the same time that the mandate is essential to the requirement that insurance companies accept those with preexisting conditions-- because the latter clearly is a constitutional regulation. So one has to either accept that the latter is somehow practicable without the mandate, in which case it must be severed, or that the mandate is somehow necessary to requiring companies to accepting preexisting conditions, in which case the mandate is necessary for the government to be able to effectively enact regulations on this market.

At tax is a charge on a transaction or property, not a charge due to the failure to do something - that is a fine.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 27, 2012, 11:45:16 AM
Based on the updates today, it seems pretty clear that four are in favor.  The other justices are having problems with exactly what Torie and I have referenced - no limiting principle.

Most key, Kennedy is also having real issues, as I suggested above, with how the mandate affects individual liberty and individual rights.  He apparently repeatedly asked "whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden" (to quote SCOTUSblog), which suggests that he may think the mandate is unprecedented, and thus would have to meet a heavier burden of scrutiny.

At any rate, Tom Goldstein writes this:  "After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close."

Which means we're back to the limiting principle question again.  At minimum, it suggests that any holding for the health insurance mandate will be very narrow, because I don't see Roberts going very far outside the facts either, based on his questions.  Alito, Scalia seem like clear nos.  Thomas doesn't talk.

My read also is that the tax argument is not getting any credibility.

Ah, the "pressing need" exception. We shall see.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Brittain33 on March 27, 2012, 11:46:27 AM
Well, if the judges decide to overturn this law by a 5-4 margin, the only significant binding precedent will have been Bush v. Gore for having led to the current composition of the Supreme Court. Schade.

It's clear the mandate will be overturned by this court, and considering the majority of Americans want it to go down, a 5-4 split would be ideal for GOP arguments in Nov 2012 - "if you want Obamacare, just give Obama another 4 years to shift the balance of the court."



It's true, Kennedy and Roberts may be considering how difficult Romney's path to the White House will be if the mandate he championed in Massachusetts remains in place. If they can overturn it, that removes a major obstacle to united conservative support for him in his race against Obama.

You don't really think that do you Brittain33 do you?  I mean if I were them, I would consider that an incredibly insulting comment - suggesting that they have no ethics at all, and no compunction against abusing the power of their office.

Do you think they are insulated from political considerations and a view of the greater good they are working toward? I don't. Scalia in particularly has swam comfortably in political waters. I imagine if we had a liberal majority on the Court in 2000, Bush v. Gore would have been decided differently, too.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Beet on March 27, 2012, 11:55:26 AM
If I may ask, why isn't the tax argument getting any credibility?

In any case, it seems to me w.r.t. to the commerce clause at least that it would be hard to argue that the mandate is unconstitutional regulation and at the same time that the mandate is essential to the requirement that insurance companies accept those with preexisting conditions-- because the latter clearly is a constitutional regulation. So one has to either accept that the latter is somehow practicable without the mandate, in which case it must be severed, or that the mandate is somehow necessary to requiring companies to accepting preexisting conditions, in which case the mandate is necessary for the government to be able to effectively enact regulations on this market.

At tax is a charge on a transaction or property, not a charge due to the failure to do something - that is a fine.

What about tariffs? Bringing something into the country, by itself, is neither a transaction or property. It seems that governments throughout history have come up with all sorts of ways to collect revenue, the fact that so many being tied to transactions only for the practical reason that if you are transacting, you likely have something for the government to take. Same with property. Obviously the government can't collect from someone who has nothing in the first place. In the end, the defining feature of taxes seem to be that they are meant to raise revenue [that of fines to punish], and that's why I'm focusing on the fact that this 'mandate' is really about bringing money into the insurance pool, and that it's clearly about incentivizing, with any language about punishment applying to the failure to pay only - but whatever. I suppose this debate is already finished.

In any case, going back to your question of a limiting principle, couldn't you establish one based around how directly such action or inaction affects the actual market? I.e., eating broccoli, kissing, or doing something that may increase the perceived crime rate, affects the market but only in extremely indirect ways-- whereas not buying insurance - like not buying wheat, directly affects the price?


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: cavalcade on March 27, 2012, 12:24:11 PM
Just starting the transcript now. 

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday

Initial impressions: Kennedy, Roberts, and Alito all pouncing.  Government lawyer seems nervous.

Intrade has been bouncing around, just climbed above 50% but could easily drop again.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: You kip if you want to... on March 27, 2012, 12:30:28 PM
When can we expect a ruling?


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Sam Spade on March 27, 2012, 12:35:18 PM
Just starting the transcript now. 

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday

Initial impressions: Kennedy, Roberts, and Alito all pouncing.  Government lawyer seems nervous.

Intrade has been bouncing around, just climbed above 50% but could easily drop again.

The government lawyer was pretty bad - Ginsburg and Kagan often had to make his arguments for him.  Clement was brilliant, but then again, he always is, which is why he does so many of these.

It really is a 50-50 call in my book.  Basically, Kennedy has to find a limiting principle, one which I suspect he will have to come up with on his own.  We'll know in a few months.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 27, 2012, 01:06:09 PM
Quote
In any case, going back to your question of a limiting principle, couldn't you establish one based around how directly such action or inaction affects the actual market? I.e., eating broccoli, kissing, or doing something that may increase the perceived crime rate, affects the market but only in extremely indirect ways-- whereas not buying insurance - like not buying wheat, directly affects the price?

Actually that is the best I have heard so far to be honest among the fuzzy line choices. It is still about magnitude in the end, but it has the element that it is demonstrable rather than more speculative as well.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: True Federalist (진정한 연방 주의자) on March 27, 2012, 02:52:33 PM
Meanwhile in other news, Justice Kennedy also asks (http://www.politico.com/news/stories/0312/74525.html) that if the health insurance mandate now, is the broccoli mandate next?  Justice Breyer and Ginsburg rejoined with the free rider issue, although not apparently tying it to something other than a public policy concern.  Plus ca change, plus ca meme chose.

The whole broccoli example is absurd if the mandate is seen as enforced through a tax, because then all the government does is force us to 'buy' things. Literally everything the government does is the functional equivalent of 'forced buying.' Witness the protestations about the funding of Planned Parenthood.

What's so bad about a broccoli mandate?  It's a very tasty vegetable.  Now if we were forced to slather it with cheese sauce, I could understand the concern.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Donald Trump’s Toupée on March 27, 2012, 03:35:26 PM
From the updates I've read, it looks very likely that a 5-4 vote against the mandate will occur now.

As already mentioned, this will make Mitt's campaign so much easier, removing a huge obstacle for him. And this would be a train wreck for Obama - essentially his first two years in the trash, along side his (mostly) failed stimulus.

At this rate, the guy will only be able to run on economic numbers, and even those - while a slight improvement - aren't good.....

Obama needs to hope it's not struck down. If it his, I think he's lost re-election and he is destined to be remembered as the weak president he has ultimately been.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: True Federalist (진정한 연방 주의자) on March 27, 2012, 05:44:26 PM
From the updates I've read, it looks very likely that a 5-4 vote against the mandate will occur now.

As already mentioned, this will make Mitt's campaign so much easier, removing a huge obstacle for him. And this would be a train wreck for Obama - essentially his first two years in the trash, along side his (mostly) failed stimulus.

At this rate, the guy will only be able to run on economic numbers, and even those - while a slight improvement - aren't good.....

Obama needs to hope it's not struck down. If it his, I think he's lost re-election and he is destined to be remembered as the weak president he has ultimately been.

If only the mandate is struck down then whoever wins the White House in November is going to have quite the mess on their hands.  (No way anything gets done to clean up the mess before the election.)  The Republicans need to hope that if it is struck down that the Court does not find the law to be severable so that it is a total strike.  Even if they win all three branches in November, the Democrats will have enough Senators to filibuster the GOP from doing anything to clean up the mess without extracting some major concessions on what will be a must pass bill.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: J. J. on March 27, 2012, 06:10:30 PM
Well, if the judges decide to overturn this law by a 5-4 margin, the only significant binding precedent will have been Bush v. Gore for having led to the current composition of the Supreme Court. Schade.

I think it might be like Bush v. Gore, a 7-2 vote on the mandate, and possibly a 5-4 decision on the rest.


As already mentioned, this will make Mitt's campaign so much easier, removing a huge obstacle for him. And this would be a train wreck for Obama - essentially his first two years in the trash, along side his (mostly) failed stimulus.

At this rate, the guy will only be able to run on economic numbers, and even those - while a slight improvement - aren't good.....

Obama needs to hope it's not struck down. If it his, I think he's lost re-election and he is destined to be remembered as the weak president he has ultimately been.

Yes, I think this could do two things, strengthens Romney, slightly, and weakens Obama, greatly.

On so many fronts, having this struck down destroys Obama.  The presumed "strengths" of Obamacare.

1.  While this isn't a direct effect of any SCOTUS decision, a selling point is that Obamacare would become popular.  It hasn't.  It's a drag on the Democratic Party.

2.  A strike down will make Obama look [even more] ineffective.  He will have four years and nothing to show for it.

3.  It plays into the "Obama is a Socialist willing to violate the Constitution" argument.   This is even worse since he claimed to be a "constitutional professor."

4.  Because some form of "socialized medicine" has long been a major piece of Democratic policy, the Holy Grail of it, it has a fair chance of discrediting the party as a whole.

I think #1 and #4 have further reaching effects than just Obama.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Sbane on March 27, 2012, 06:28:55 PM
I don't see why a decision that makes clear that making people buy healthcare insurance is an exception to the rule, cannot be reached. I think it's quite clear the healthcare insurance market is something very different from most of rest of commerce.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: retromike22 on March 27, 2012, 07:32:02 PM
If Medicare is already constitutional, why not just expand Medicare for everyone? That seems to be better than a individual mandate.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: DrScholl on March 27, 2012, 08:06:56 PM
How are Republicans going to explain how they intend to remedy pre-existing conditions returning to the fold? That is one of the top successes of the health care law. They pushed for this case and have no solutions for what to replace it with. Romney doesn't gain from this either way, it's just not an election changer.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: muon2 on March 27, 2012, 10:18:49 PM
If Medicare is already constitutional, why not just expand Medicare for everyone? That seems to be better than a individual mandate.

Medicare is single payer, and even the Obama White House has been unwilling to go down that road.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 27, 2012, 10:28:25 PM
How are Republicans going to explain how they intend to remedy pre-existing conditions returning to the fold? That is one of the top successes of the health care law. They pushed for this case and have no solutions for what to replace it with. Romney doesn't gain from this either way, it's just not an election changer.

Their insurance premiums for a certain level of coverage need to be subsidized more on a means tested basis. That is the Pub response - at least among those who are serious about the issue, rather than just demagoging for the moment for short term gain. The Pub response is more market oriented. The Obamacare edifice is wholly unnecessary to achieve the objective - and what I particularly despise about Obamacare is the cross subsidy from the impecunious young, to the less impecunious old as a general rule. The youngs will be subsidizing me for example. It's ludicrous. And any plan in the end requires some sort of rationing, but that is most pressing with Medicare.

In any event, the status quo is the pre-existing conditions folks of limited means go to the emergency room, and don't pay their bills. So they are being "dealt" with, just not in any coherent or sensible manner.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: muon2 on March 27, 2012, 10:39:14 PM
How are Republicans going to explain how they intend to remedy pre-existing conditions returning to the fold? That is one of the top successes of the health care law. They pushed for this case and have no solutions for what to replace it with. Romney doesn't gain from this either way, it's just not an election changer.

Their insurance premiums for a certain level of coverage need to be subsidized more on a means tested basis. That is the Pub response - at least among those who are serious about the issue, rather than just demagoging for the moment for short term gain. The Pub response is more market oriented. The Obamacare edifice is wholly unnecessary to achieve the objective - and what I particularly despise about Obamacare is the cross subsidy from the impecunious young, to the less impecunious old as a general rule. The youngs will be subsidizing me for example. It's ludicrous. And any plan in the end requires some sort of rationing, but that is most pressing with Medicare.

In any event, the status quo is the pre-existing conditions folks of limited means go to the emergency room, and don't pay their bills. So they are being "dealt" with, just not in any coherent or sensible manner.

There's a local bottom-up way to deal with this as well. In my county the covered pool has been greatly expanded by having the government partner (http://www.accessdupage.org/) with local hospitals and clinics. It's in the the hospital's financial interest to provide services that are lower cost than treating uninsured in the emergency rooms. The government steers clients to cost-effective options as needed. The net effect is about a 1-to-9 leverage of tax dollars to private services.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: ○∙◄☻¥tπ[╪AV┼cVê└ on March 28, 2012, 12:21:38 AM
Forever, no. But it could be a while. Especially since Democrats saw their failure to pass health care in 1994 as the reason that election went so poorly, and so looked to pass some random bill with the name reform in it to avoid another 1994, and they did avoid another 1994, 2010 was worse.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: anvi on March 28, 2012, 05:39:52 AM
The idea that sick people who have no insurance can just routinely use emergency rooms for their care is false. The provisions of EMTALA only require hospitals to treat such persons if they are at severe risk of death or in active labor, and even then they need only be treated till their immediate condition is stabilized. While there are emergency rooms that treat more, it's completely legal for them to turn patients away if they don't meet these conditions, and they often do. Many people in such circumstances suffer from serious chronic conditions for long periods of time that would otherwise be treatable, but end up only being accepted for emergency room care when it's too late to successfully treat their conditions. A rather large number if American citizens lose their lives every year because of these circumstances. So the notion that we can comfort ourselves with the argument that there are only problems of economic inefficiency bedeviling our system when it comes to the uninsured is a conceit. It's a moral issue, and I think a serious one.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Franzl on March 28, 2012, 06:13:38 AM
The idea that sick people who have no insurance can just routinely use emergency rooms for their care is false. The provisions of EMTALA only require hospitals to treat such persons if they are at severe risk of death or in active labor, and even then they need only be treated till their immediate condition is stabilized. While there are emergency rooms that treat more, it's completely legal for them to turn patients away if they don't meet these conditions, and they often do. Many people in such circumstances suffer from serious chronic conditions for long periods of time that would otherwise be treatable, but end up only being accepted for emergency room care when it's too late to successfully treat their conditions. A rather large number if American citizens lose their lives every year because of these circumstances. So the notion that we can comfort ourselves with the argument that there are only problems of economic inefficiency bedeviling our system when it comes to the uninsured is a conceit. It's a moral issue, and I think a serious one.

Agree entirely, and it's not understandable in any way for me. Even if you have no moral problem with people dying in one of the richest countries in the world for lack of healthcare, it doesn't make economic sense. Nothing is free - and the way the system operates in the U.S. right now makes it unnecessarily expensive AND non-universal.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: muon2 on March 28, 2012, 08:06:08 AM
The idea that sick people who have no insurance can just routinely use emergency rooms for their care is false. The provisions of EMTALA only require hospitals to treat such persons if they are at severe risk of death or in active labor, and even then they need only be treated till their immediate condition is stabilized. While there are emergency rooms that treat more, it's completely legal for them to turn patients away if they don't meet these conditions, and they often do. Many people in such circumstances suffer from serious chronic conditions for long periods of time that would otherwise be treatable, but end up only being accepted for emergency room care when it's too late to successfully treat their conditions. A rather large number if American citizens lose their lives every year because of these circumstances. So the notion that we can comfort ourselves with the argument that there are only problems of economic inefficiency bedeviling our system when it comes to the uninsured is a conceit. It's a moral issue, and I think a serious one.

But many uninsured do routinely stop at the ER for lack of an alternative. The best solution is to connect those people with a primary care physician. That overcomes economic inefficiency and works to identify conditions that could be effectively treated at an earlier point.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Torie on March 28, 2012, 09:58:20 AM
The idea that sick people who have no insurance can just routinely use emergency rooms for their care is false. The provisions of EMTALA only require hospitals to treat such persons if they are at severe risk of death or in active labor, and even then they need only be treated till their immediate condition is stabilized. While there are emergency rooms that treat more, it's completely legal for them to turn patients away if they don't meet these conditions, and they often do. Many people in such circumstances suffer from serious chronic conditions for long periods of time that would otherwise be treatable, but end up only being accepted for emergency room care when it's too late to successfully treat their conditions. A rather large number if American citizens lose their lives every year because of these circumstances. So the notion that we can comfort ourselves with the argument that there are only problems of economic inefficiency bedeviling our system when it comes to the uninsured is a conceit. It's a moral issue, and I think a serious one.

True enough, although the "emergency room" is packed with folks with conditions not so dire (I see now that Muon2 mentioned that above). The other backup is Medicaid - which is effectively rationed via hideously long wait times in practice all too often. I hope no one assumed I considered the lack of universal insurance (at least catastrophic insurance) to be a non problem due to emergency rooms and Medicaid, because that is not the case.  :)

Muon2 is also clearly right that the primary care physician system needs to be beefed up. Among other issues, we just don't have enough of those kinds of doctors and nurses. I would prefer that that be done through HMO's myself for the subsidized tranche were possible, so all the financial incentives are in the public interest, and the temptation for abuse minimized.


Title: Re: If the healthcare law is overturned, universal healthcare is dead forever
Post by: Yelnoc on March 28, 2012, 10:05:00 AM
Somebody probably already beat me to the punch, but the OP realizes "Obamacare" is in no way "universal", yes?