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Author Topic: Supreme Court and the Individual Health Insurance Mandate  (Read 19800 times)
Bacon King
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« Reply #50 on: March 27, 2012, 01:38:26 am »
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Court seemed fairly sympathetic to Robert Long. I hope they don't end up agreeing with him- I don't want to see all this just put off for three years before they go through everything a second time.
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« Reply #51 on: March 27, 2012, 01:47:48 am »
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If they strike it down Obama should hit the court hard for being so blindingly partisan. Obviously packing the court isn't going to work, but he should definitely go after them for horrible rulings like Citizens United.

I would submit that the Supreme Court striking down the health care law could be framed as a FAR more partisan act than Citizens United.  The McCain-Feingold law was a bipartisan piece of legislation signed into law by President Bush.  The Citizens United decision was 5-4.  All five Justices in the majority were appointed by Republican Presidents, but so was one of the dissenting Justices (John Paul Stevens).

Contrast that with the Affordable Health Choices Act.  First off, Ginsburg, Breyer, Sotomayor and Kagan are going to uphold the law so the only way it is going to be struck down is 5-4, with the five Justices GOP appointed (Roberts, Scalia, Thomas, Alito, Kennedy) in the majority and the four Democratic appointed Justices dissenting.  It is the signature domestic achievement of the incumbent Democratic President (Obama), whereas I highly doubt President Bush would name McCain-Feingold among his most important accomplishments.  And unlike the bipartisan McCain-Feingold, the Affordable Health Choices Act passed with almost no GOP support.
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« Reply #52 on: March 27, 2012, 01:43:36 pm »
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As I pointed out two years ago, the Democrats in Congress made two monumental (and obvious) errors in drafting Obamacare:

First, they made failure to participate a penalty when they could have (and in the original Senate version did make) it a tax with credits, and

Second, they not only omitted the boilerplate severability clause which is normally included in legislation, but when on to state that the measure could not stand without the individual mandate.

Here's what Justice Breyer had to say on the first issue:

Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”

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« Reply #53 on: March 27, 2012, 02:06:41 pm »
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The second one isn't an error, CARL. The law is intentionally designed that way. Without the mandate premiums would skyrocket due to the new regulations placed on the healthcare industry. The mandate was designed to prevent people from opting out of healthcare insurance while they're young and don't think they need it.
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« Reply #54 on: March 27, 2012, 02:42:21 pm »

Barring insurers from considering pre-existing conditions without also requiring individuals to buy insurance would totally wreck the individual insurance market.  If "must carry" is struck down without striking down at the very least "must offer" with it, then the next Congress will be forced to clean up the resulting mess, and the idiots of both parties will be able to make use of the filibuster to block finding some sort of solution unless they get their own way.

To the degree lack of severability could be considered an error, it is if one feels that only the must carry and must offer provisions should have been inseverable, but save for a few provisions such as parents being able to include on their plans dependent children to a later age, most of the rest of the act consists of provision designed to make it affordable for low-income people to get insurance  under the assumption that there will be something close to universal coverage.
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« Reply #55 on: March 27, 2012, 05:05:47 pm »
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It increasingly looks as if the Supreme Court will strike down the individual mandate -whether that also means the rest of the law will sink with it will be determined tomorrow.

And here's the audio of today's hearings.  
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« Reply #56 on: March 27, 2012, 06:18:28 pm »
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FDR's court packing plan killed the New Deal.  I think Obama should be very careful criticizing a possible loss.
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« Reply #57 on: March 27, 2012, 07:11:14 pm »
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The media is mostly talking about the potential swing votes arguing strongly against the mandate, with a weak defense from the Solicitor General, but I think they're missing the biggest part of this. Listen to Roberts, Alito, and especially Scalia's questions to Verrelli immediately before he switched off to Clement. Here's the biggest exchange:

Scalia: "So you're telling me all the discussion we had earlier about how this is a big uniform scheme and the Commerce Clause, blah blah blah blah, really doesn't matter. This is a tax, and the Federal government could simply have said without all the rest of this legislation, could simply have said, 'Everybody who doesn't buy health insurance at a certain age will be taxed so much money.' Right?"
Solicitor General: "It, ah, it used its powers together, to solve the problem of the market not providing affordable covera--"
Scalia: "Yeah, but you didn't need that, you didn't need that. If it's a tax, raising money is enough."
Solicitor General: "It, it is justifiable under its tax power."
Scalia: "Okay... extraordinary."

Dammit. They're going to be ruling that the Anti-Injunction Act prevents them from deciding the merits of the case, aren't they? Sad
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« Reply #58 on: March 27, 2012, 07:54:00 pm »

Dammit. They're going to be ruling that the Anti-Injunction Act prevents them from deciding the merits of the case, aren't they? Sad

Yes and no.  I'm doubtful that there are five justices taking that position on the merits, but they may use it as the fig leaf to allow them to delay a decision until after the election.
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« Reply #59 on: March 27, 2012, 09:29:44 pm »
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If the 5 conservatives are going to overturn it, but one of them might be swayed on the tax argument and delay the decision, the 4 liberals should go with that argument and hope the composition of the Court is better in 2015.
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« Reply #60 on: March 28, 2012, 09:05:21 am »
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I posted this on the thread in 2012 elections but want to post it here as well because I think it's an interesting question. I don't know if it can legally work the way I am proposing here, but if it is legal, I think there's a decent chance of it happening. I would be very interested in knowing whether this is possible.

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What would be the most interesting outcome, and I tend to think it's kind of likely though I am no expert on law, would be if the individual mandate is struck down and it is severed from the rest of the law except the pre-existing condition and community rating portion. It might not, actually should not be severed from that portion since the mandate is necessary to make covering pre-existing conditions and community rating possible. The rest of the law should be severed as it does not have anything to do with the individual mandate. Can the law experts please let me know what they think the possibility of that happening is? Seems like a perfect moderate hero option for Kennedy.
« Last Edit: March 28, 2012, 09:06:59 am by Senator Sbane »Logged
Bacon King
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« Reply #61 on: March 28, 2012, 09:57:26 am »
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I posted this on the thread in 2012 elections but want to post it here as well because I think it's an interesting question. I don't know if it can legally work the way I am proposing here, but if it is legal, I think there's a decent chance of it happening. I would be very interested in knowing whether this is possible.

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What would be the most interesting outcome, and I tend to think it's kind of likely though I am no expert on law, would be if the individual mandate is struck down and it is severed from the rest of the law except the pre-existing condition and community rating portion. It might not, actually should not be severed from that portion since the mandate is necessary to make covering pre-existing conditions and community rating possible. The rest of the law should be severed as it does not have anything to do with the individual mandate. Can the law experts please let me know what they think the possibility of that happening is? Seems like a perfect moderate hero option for Kennedy.

That's exactly what the administration is arguing today, actually. The opponents of the bill are arguing that the entire thing should be thrown out; a friend of the court was appointed to argue that everything besides the mandate itself should stay.

I'm no expert, but I believe this is one issue where existing precedent favors the government; IIRC the Supreme Court generally holds that as little as functionally possible should be removed from a law when a section of it is found unconstitutional.   
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« Reply #62 on: March 28, 2012, 11:40:39 am »
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I posted this on the thread in 2012 elections but want to post it here as well because I think it's an interesting question. I don't know if it can legally work the way I am proposing here, but if it is legal, I think there's a decent chance of it happening. I would be very interested in knowing whether this is possible.

Quote
What would be the most interesting outcome, and I tend to think it's kind of likely though I am no expert on law, would be if the individual mandate is struck down and it is severed from the rest of the law except the pre-existing condition and community rating portion. It might not, actually should not be severed from that portion since the mandate is necessary to make covering pre-existing conditions and community rating possible. The rest of the law should be severed as it does not have anything to do with the individual mandate. Can the law experts please let me know what they think the possibility of that happening is? Seems like a perfect moderate hero option for Kennedy.

That's exactly what the administration is arguing today, actually. The opponents of the bill are arguing that the entire thing should be thrown out; a friend of the court was appointed to argue that everything besides the mandate itself should stay.

I'm no expert, but I believe this is one issue where existing precedent favors the government; IIRC the Supreme Court generally holds that as little as functionally possible should be removed from a law when a section of it is found unconstitutional.   

Are they arguing for getting rid of the portion of the bill that deals with pre-existing conditions and community rating if the mandate is ruled unconstitutional? Or are they saying the mandate, and only the mandate, should be taken out of the bill?
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« Reply #63 on: March 28, 2012, 12:56:41 pm »
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I put up a post about what the justices are saying about severability here.

It looks like sbane and I have perhaps made the wrong call here. It appears that either the whole law, or a considerably larger portion of it, is on the chopping block.

And here I think is the single best article I have read regarding the expected half life of the mandate. Yes, Kennedy muses that health care might be a unique good, in that we all have to buy it and there are no substitutes, and that is the limiting principle, but on the other hand, then a Pandora's Box is opened, with down the road all sorts of special pleaders claiming their good is unique too - we are all unique in our own way.

And why open that Pandora's Box, when the government "ought to have been honest" as Kennedy put it as to the power it was using, and structured the mandate as a tax, to wit a tax credit with offsetting revenues - an easy fix that would have got Obamacare safely to port. But they chose to be dishonest. Thus, there is no compelling public policy reason to spring another leak in the federalism wall that leashes just what the feds can do with such an easy fix available with the same economic effects in order for the government to achieve its no doubt worthy objectives.  

The Torie finesse was always the Achilles heel in Obamacare. Absent that, I suspect Kennedy would vote to uphold. I put the odds at from about 3-2 to 2-1 that Kennedy will tank the mandate. The article speculates that Sotomayor may join him in a 6-3 decision FWIW. I tend to doubt it, but who knows of course.
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« Reply #64 on: March 28, 2012, 05:51:28 pm »
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Looks as if the justices will throw out other pieces of the law if they strike down the mandate:

Health care arguments: Can any portion survive?

By MARK SHERMAN and PETE YOST
Associated Press


WASHINGTON —

The Supreme Court signaled Wednesday that it could throw out other key parts of President Barack Obama's health care law if it first finds the individual insurance requirement unconstitutional.

On the third and last day of arguments, the justices appeared to accept the administration's argument that at least two important insurance changes are so closely tied to the insurance requirement that they could not survive without it.

Less clear was whether the court would conclude the entire law, with its hundreds of unrelated provisions, would have to be cast aside.

The justices also spent part of the day considering a challenge by 26 states to the expansion of the Medicaid program for low-income Americans, an important feature in the effort extending health insurance to an additional 30 million people.

The court's liberal justices made clear they will vote to uphold the Medicaid expansion, which would take in 15 million people with the federal government paying almost all the costs.
---------------------------------------------------------

Here's the audio on the proceedings determining whether if the individual mandate is unconstitutional, the rest of the law should also be struck down; as well as the audio on whether Medicaid expansion is an unconstitutional intrusion on the states.
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« Reply #65 on: March 28, 2012, 09:35:20 pm »
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On the medicaid issue, Roberts may be the key vote. The other four "conservative" justices seem to loathe it. Roberts mused that the states should hardly be surprised that once they started taking "boatloads" of federal money (boatloads was a term introduced by Kagan) to finance a big chunk of medicaid, they should hardly be surprised when the Feds started leveraging it to make them into puppets on a string. Good point.
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« Reply #66 on: March 28, 2012, 10:12:32 pm »
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The real surprise for me was how serious Roberts, Scalia, Kennedy and Alito took the argument of striking down the whole law.  I expected yesterday because of the complete lack of a proposed limiting principle, and the complete lack on the part of the government to try and put forth one (whether by design or by intellectual laziness, who knows), when the question of individual rights is addressed, which will always pique Kennedy's interest, because there is a big question there.

I am still at 50-50 either way, but based on oral argument, if you put a gun to my head, I'd say it gets struck down.  I presume not to assume that this occurs - remember it is only oral argument - but if you take time to ask questions that presume a certain result, it must mean you at least take the result seriously.
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« Reply #67 on: March 28, 2012, 11:03:16 pm »
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The worst possible thing now is if one of the pricks writes the majority opinion.  We don't need another Roe v. Wade-esque decision, highly-polarizing and whatnot.
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« Reply #68 on: March 29, 2012, 12:06:16 am »

On the medicaid issue, Roberts may be the key vote. The other four "conservative" justices seem to loathe it. Roberts mused that the states should hardly be surprised that once they started taking "boatloads" of federal money (boatloads was a term introduced by Kagan) to finance a big chunk of medicaid, they should hardly be surprised when the Feds started leveraging it to make them into puppets on a string. Good point.

Agreed.  If they don't strike the whole law, I expect the Medicaid provisions to stand.  Striking them down on their own merit rather than as a side effect of striking down the mandate would give the judicial branch the unwanted job of deciding which Federal transfers to the States rise to the level of being coercion.  There's no obvious bright line there unless they were to suddenly find requiring any level of state matching funds to be unconstitutional.
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« Reply #69 on: March 29, 2012, 12:33:59 pm »
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So.... is it safe to say that the individual mandate will go up in flames then?

I felt so confidant going into this thing and now I have almost no confidence that the Supreme Court will not end in a 5-4 decision against. So perhaps a new question: could the government have effectively defended the individual mandate or was it doomed even before the trial began?
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« Reply #70 on: March 29, 2012, 01:30:26 pm »
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So.... is it safe to say that the individual mandate will go up in flames then?

I felt so confidant going into this thing and now I have almost no confidence that the Supreme Court will not end in a 5-4 decision against. So perhaps a new question: could the government have effectively defended the individual mandate or was it doomed even before the trial began?

There's no certainty in anything at this point. As I highlighted earlier, even if a majority of the court thinks that the Commerce Clause doesn't allow an individual mandate, there's still the question of the Anti-Injunction Act. Robert Long made an excellent case on the first day of oral arguments, and in particular I don't see Scalia being convinced by the half-hearted arguments that it doesn't apply.
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« Reply #71 on: March 29, 2012, 07:12:10 pm »

So.... is it safe to say that the individual mandate will go up in flames then?

I felt so confidant going into this thing and now I have almost no confidence that the Supreme Court will not end in a 5-4 decision against. So perhaps a new question: could the government have effectively defended the individual mandate or was it doomed even before the trial began?

There's no certainty in anything at this point. As I highlighted earlier, even if a majority of the court thinks that the Commerce Clause doesn't allow an individual mandate, there's still the question of the Anti-Injunction Act. Robert Long made an excellent case on the first day of oral arguments, and in particular I don't see Scalia being convinced by the half-hearted arguments that it doesn't apply.

Thing is, unless a majority back invoking the Anti-Injunction Act, those who do aren't going to be silent on the other issues, and I don't see a majority forming unless at least two Conservative justices are in it. (Maybe Thomas?  You almost never learn what he's thinking during oral argument because he so seldom does anything but listen.)

But even if they decide that they can't decide the fate of the mandate, that wouldn't prevent them from ruling on the merits of the Medicaid expansion.  Indeed, that might be the only way they could.  If a majority would hold that there is no severability at all in the act, then only if the AIA keeps them from ruling on the mandate would they get a chance to rule on the Medicaid expansion.  It's the sort of issue that Kennedy has liked to play around with at times in the past, so if he's neutral on whether to invoke the AIA, he might do so, just so he can get a crack at the Medicaid expansion.

Now what would be wicked weird would be a decision that says, the AIA keeps us from ruling on the mandate, but we can decide if the Medicaid expansion is an undue imposition on the States, and we think it is and that the act is non-severable so the whole act gets overturned without ever establishing whether the individual mandate was constitutional.  I truly doubt that is what the decision would be, but its not totally impossible.
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« Reply #72 on: March 29, 2012, 09:18:19 pm »
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I have some further thoughts on the Constitutionality of the health care mandate. I pretended that I was a Justice. I thought, and thought hard, about whether there was a limiting bright line principle that makes sense, without gutting the last vestiges of federalism (which I don't care about on a policy level, but that is not the role of a Justice).

Here's the thing. I think as a Justice as a tentative matter, I can get to the point that health care in one sense is unique because 1) you will enter the market for it at some point, and there are not real substitute goods to avoid that, 2) it is about life and death, and 3) there is a rather unique problem at the point of sale for this good - when you hit the wall without insurance, you will still be able to "purchase" the good (we don't let folks just run around very sick just because they can't pay for medical services, or at least we shouldn't), but without insurance the good will not be paid for when purchased, really disrupting the market.

So if the mandate were just about requiring folks to purchase the health care good in advance through insurance, so that they can "pay" for services received later, I think I see a clear limiting principle, which is a rather bright line, that will not end up eating the remnants of federalism alive. But the mandate is more than that. About 80% of the cost, at least for young people, which is where the action is here, is about their cross subsidizing older folks by vastly overcharging them for their insurance premiums  now. I see no clear limiting principle for that 80% of the mandate's cost. The government could just force one group of folks into commerce for a good in order to make it cheaper for other folks buying the good, by overcharging them, expanding the market or whatever.

So in the end to me the mandate issue is not really a close case. That 80% cross subsidy aspect is a fed intrusion, that will in effect in the end without a bright line limiting principle, largely shred whatever there is about federalism that limits federal power vis a vis the states. It should be struck.
Clement arguing against the mandate before SCOTUS mentioned the cross subsidy issue, but I don't think he tied it down quite a tightly as I think I did per the outline above.  

And that is how I think I would rule absent someone persuading me that I have not adequately thought this through, and there are other considerations that as a Constitutional jurisprudence matter I should have taken into account, or given more weight.
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« Reply #73 on: March 29, 2012, 11:11:36 pm »
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But the mandate is more than that. About 80% of the cost, at least for young people, which is where the action is here, is about their cross subsidizing older folks by being vastly overcharging them for their insurance premiums. I see no clear limiting principle for that 80% as the mandate's cost.  The government could just force one group of folks into commerce for a good in order to make it cheaper for other folks buying the good, by overcharging them, expanding the market or whatever.

Young people will one day become old people (unless they get sick, in which case the point is moot), when they will be subsidized by the next generation in turn. Over the course of one person's lifetime they will be the beneficiary at some point. The government is not discriminating between groups; the unit is the atomistic "citizen".
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« Reply #74 on: March 29, 2012, 11:34:04 pm »
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But the mandate is more than that. About 80% of the cost, at least for young people, which is where the action is here, is about their cross subsidizing older folks by being vastly overcharging them for their insurance premiums. I see no clear limiting principle for that 80% as the mandate's cost.  The government could just force one group of folks into commerce for a good in order to make it cheaper for other folks buying the good, by overcharging them, expanding the market or whatever.

Young people will one day become old people (unless they get sick, in which case the point is moot), when they will be subsidized by the next generation in turn. Over the course of one person's lifetime they will be the beneficiary at some point. The government is not discriminating between groups; the unit is the atomistic "citizen".

^^^^^
This. I'm sure there's a pretty good comparison with Social Security to be made here.
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