Supreme Court and the Individual Health Insurance Mandate

[Bacon King]

The timeline I've heard is that Supreme Court oral arguments will likely be in the spring, with a decision in the summer.

 According to Big Wing Radio the opponents to the Obamacare beat the WH in a filing procedure, meaning that, that there is a better chance of getting on this years docket. This spring I guess would be their hearing - this is the one with the 28 states winning the mandate as unconstitutional, however, said the balance of the law is OK. Then there's the severability issue.

 The tactic I soppose is for SCOTUS to decided this, I'd prefer the electorate decide this issue of who controls life and the maintenance of it. If the Dem's win another term and SCOTUS refuses to accept or upholds the mandate as constitutional, then the state(s) that refuse the Fed law and SCOTUS will be the growth state(s) where the resistant (legal and civil) will began, the new era in this here USA.

 Which state could or get prepared to be cutoff from the fed, have self sustaining energy and capital needs, political and military strength to capture what is now known as the US Constitution? If none, then submission to the dark side is the future, the completed reversal of the powers to the Obama Islamic-Marx doctrine.

Don't be silly. Obama isn't a Muslim or a Marxist, and while both parties have their issues neither one is "the dark side." And nobody is going to be committing treason over a health insurance mandate.

[Bacon King]

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.

[Bacon King]

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?

[Bacon King]

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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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.   

[Bacon King]

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.

[Bacon King]

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.