Appeals Court rules part of Obamacare unconstitutional......

[Grumpier Than Uncle Joe]

The part, of course, where you have to buy coverage or pay a penalty.

Just one more step on its journey to SCOTUS.

[anvi]

Does that make two appeals courts now that have ruled the "mandate" unconstitutional but that the rest of the law could stand? 

I wonder who is really more pissed, the White House or AHIP.

[Grumpier Than Uncle Joe]

Does that make two appeals courts now that have ruled the "mandate" unconstitutional but that the rest of the law could stand? 

I wonder who is really more pissed, the White House or AHIP.

Actually, anvi, I think the last court ruled the whole shooting match unconstitutional, but this one just the mandate?  Right?

[Atlas Has Shrugged]

Im glad its moving up to the Supreme Court. I rather see it declared constitutional/unconstitutional there, then see Congress or the White House deal with it.

[anvi]

Actually, anvi, I think the last court ruled the whole shooting match unconstitutional, but this one just the mandate?  Right?

The other ruling I had in mind was Virginia v. Sebelius, where Judge Huston ruled last Dec. 13th that the mandate was unconstitutional but the rest of the law should not be blocked from implementation.

http://en.wikipedia.org/wiki/Commonwealth_of_Virginia_v._Sebelius#December_13.2C_2010_ruling

[Lief 🗽]

It's really depressing that we have so many judges that don't understand the constitution deciding our laws for us.

[BigSkyBob]

It's really depressing that we have so many judges that don't understand the constitution deciding our laws for us.

What is pathetic is people whom don't believe that the rules, aka "Constitution," are an impediment to doing what you want to do.

[NVGonzalez]

It's really depressing that we have so many judges that don't understand the constitution deciding our laws for us.

What is pathetic is people whom don't believe that the rules, aka "Constitution," are an impediment to doing what you want to do.

Hi pot. My friend kettle would love to meet you.

[Amenhotep Bakari-Sellers]

This law should of been put in place 10 yrs ago. But with the age of budget cuts of discreationary spending, the mandate part was unnecessary and should of been in place real health care reform, reform of the industry not the insurance. Should of gave some tax credits at the end of the yr to people to subsidize there insurance cost.

[Landslide Lyndon]

1)The mandate was upheld by the Sixth Circuit last June with a W. appointee voting for it. I don't know how some here got the idea that it's 0/2 for the Obama administration.

2)FWIW, Orin Kerr (a former Kennedy clerk) has this to say about the mandate and SCOTUS.

http://www.scotusblog.com/2011/08/affordable-care-act-predictions/

Here are my predictions on the future of the mandate litigation in the Supreme Court:

1)      Will the Court grant cert, and if so, when? 

I think they’ll probably grant cert eventually in one of the cases, but I doubt they’re in a hurry.   The lower courts are just beginning to evaluate the constitutionality of the mandate, and each new opinion is adding a fresh perspective.   The initial opinions were high on ideology but weak on analysis.   More opinions, including en banc opinions and dissents from denial of hearing, will help both the Justices and the litigants better refine their arguments.  In Supreme Court lingo, the Justices will want the issue to “percolate.” So while I think they’ll take a mandate case eventually — and they certainly will if a circuit court strikes down the mandate en banc, or with a panel that survives en banc review — I expect it will be a while.

2)       If the Supreme Court does review the constitutionality of the mandate, how will they rule?

Predicting the future is hard, but SCOTUSblog isn’t paying us the big bucks for nothing.  To make things interesting,  I’ll hazard a guess of how seven of the nine Justices will vote (assuming all nine are still on the Court when the case is heard).

Here are my guesses. Justices Breyer and Ginsburg are pretty obvious votes for the mandate, as they dissented in United States v. Lopez. Justices Kagan and Sotomayor seem like safe votes for the mandate, even if only for the reason that there is almost no opposition to the constitutionality of the mandate in the Democratic establishment from which they were appointed.  Chief Justice Roberts will likely vote to uphold the mandate given the very  expansive views of the Necessary and Proper clause that he signed on to just recently in United States v. Comstock.  I suspect Justice Kennedy will vote to uphold the mandate given his concurring opinion in United States v. Lopez.  And I’m pretty sure Justice Thomas will vote to strike down the mandate given his views of the Commerce Clause.  In contrast, I don’t have good sense of where Justices Scalia and Alito might come out.

Putting the numbers together,  I expect 6 votes for the mandate, 1 against, and 2 uncertain.   If my numbers are right, the mandate will be upheld by a vote of anywhere from 6-3 to 8-1.

[anvi]

Can someone tell me why having health insurance is bad?

The only people who don't want health insurance are healthy youngs, who don't believe they need it and don't want to pay for it, and people who have religious objections to treatments of modern western medicine.  The current legislation extends the period of protection that youngs can enjoy under their parents' plans and exempts those with religious or anti-western-medicine concerns from the "mandate."  So, the objection of those opposed to health insurance "mandates" isn't really about these groups, and isn't about people thinking that having health insurance is a bad thing.

Objections about the so-called "freedom" not to buy health insurance are really veiled objections of some who don't want their tax dollars to fund an expansion of Medicaid coverage or subsidies that would help poors buy health insurance.  (Never mind that we pay anyway, in the form of higher premiums and tax costs for uncompensated care.)  They are also objections from businesses that don't want to have to buy plans to make available to their employees. (And this is despite the fact that the new law gives them tax credits to do it and that new statewide exchanges--a Republican idea, as were mandates--will allow employees to go shop for themselves).  

So, the objection is really not about people's "freedom" not to buy health insurance or believing that having health insurance is bad.  It's rather about taxpayers wanting the freedom not to subsidize anything that doesn't directly benefit them and the freedom of businesses not to use scarce capital to buy employee plans.  They would prefer that people who can't afford health insurance fend for themselves, either by finding ways to pay for it at market prices or just going without it.  In the end, I really don't believe that this whole conflagration is about "mandates" or "the commerce clause," or even about "freedom" in any really meaningful philosophical sense of the word.  It's about money out of people's pockets that goes to the benefit of others.  And when we're talking about that money being for health care, the high costs of which are only going ever-more-rapidly upward, the stakes only get higher for everyone; individuals, businesses, providers, insurers, and government.

Money forms the contours of a lot of American debates about freedom.  I think that's understandable in certain cases.  But in the larger scheme of things, it's unfortunate.  Freedom means more than money.  Neither capitalists nor Marxists understand that.  

[lowtech redneck]

2)If the Supreme Court does review the constitutionality of the mandate, how will they rule?

I think it will be a 4-4-1 split, all conservatives objecting on the basis of the Commerce Clause, with Anthony Kennedy being the deciding vote.

What I want to know is what would happen if Kagan recuses herself and there is a 4-4 deadlock?

[True Federalist (진정한 연방 주의자)]

2)If the Supreme Court does review the constitutionality of the mandate, how will they rule?

I think it will be a 4-4-1 split, all conservatives objecting on the basis of the Commerce Clause, with Anthony Kennedy being the deciding vote.

What I want to know is what would happen if Kagan recuses herself and there is a 4-4 deadlock?

Then they keep holding it over for a rehearing until one of them dies, retires, or changes their mind.  This case is coming to the court with divergent opinions from different circuits.  A 4-4 deadlock is not an acceptable option.

[Queen Mum Inks.LWC]

2)If the Supreme Court does review the constitutionality of the mandate, how will they rule?

I think it will be a 4-4-1 split, all conservatives objecting on the basis of the Commerce Clause, with Anthony Kennedy being the deciding vote.

What I want to know is what would happen if Kagan recuses herself and there is a 4-4 deadlock?

There's no reason for her to recuse herself.

[J. J.]

2)If the Supreme Court does review the constitutionality of the mandate, how will they rule?

I think it will be a 4-4-1 split, all conservatives objecting on the basis of the Commerce Clause, with Anthony Kennedy being the deciding vote.

What I want to know is what would happen if Kagan recuses herself and there is a 4-4 deadlock?

There's no reason for her to recuse herself.

I think she was somehow involved with the process, but I don't know what role that was.

[Queen Mum Inks.LWC]

2)If the Supreme Court does review the constitutionality of the mandate, how will they rule?

I think it will be a 4-4-1 split, all conservatives objecting on the basis of the Commerce Clause, with Anthony Kennedy being the deciding vote.

What I want to know is what would happen if Kagan recuses herself and there is a 4-4 deadlock?

There's no reason for her to recuse herself.

I think she was somehow involved with the process, but I don't know what role that was.

She's said she wasn't.  I'm willing to take her word for it.  That being said, with as much as Obama had been criticized up to that point, he probably should've known she'll be criticized for not recusing herself, and he's probably going to regret nominating her.

[The Vorlon]

A poorly constructed bill from a constitutional point of view.

If the bill has said: 

1) We put a new tax of $4000 a person on everybody living in America.
2) If you have health insurance from your employer, other government program, or buy it your self, we give you a $4000 tax credit.....
3) If you make below X $ a year, we give you a subsidy based upon the following formula.....

there would be no constitutionality issue.

This is a hard one to call on SCOTUS, regulating commerce is one thing, requiring somebody to engage in commerce is another...

Wonder if the Supremes will take and then rule on the case before the 2012 election?

[J. J.]

2)If the Supreme Court does review the constitutionality of the mandate, how will they rule?

I think it will be a 4-4-1 split, all conservatives objecting on the basis of the Commerce Clause, with Anthony Kennedy being the deciding vote.

What I want to know is what would happen if Kagan recuses herself and there is a 4-4 deadlock?

There's no reason for her to recuse herself.

I think she was somehow involved with the process, but I don't know what role that was.

She's said she wasn't.  I'm willing to take her word for it.  That being said, with as much as Obama had been criticized up to that point, he probably should've known she'll be criticized for not recusing herself, and he's probably going to regret nominating her.

As I said, I have no idea of her role; some people were suggesting that she did have some role.  I take a dim view of a lot of the claims of conflict of interest.  I'd need to see something substantial before I'd be calling for it.

[🐒Gods of Prosperity🔱🐲💸]

The problem isn't having health insurance. It's having to buy health insurance. It widens the scope of government authority and corporatism at the expense of liberty for individuals and communities. It leaves no room for people to, for example, pool their resources in other ways. Sure, there's an exemption for Amish or other "recognized religious sect" but that leaves a constitutional issue of its own.

[Grumpier Than Uncle Joe]

The problem isn't having health insurance. It's having to buy health insurance. It widens the scope of government authority and corporatism at the expense of liberty for individuals and communities. It leaves no room for people to, for example, pool their resources in other ways. Sure, there's an exemption for Amish or other "recognized religious sect" but that leaves a constitutional issue of its own.

Sooo... you think people should NOT be required to buy health insurance or face a penalty?

I bet he meant this......

[Zarn]

The problem isn't having health insurance. It's having to buy health insurance. It widens the scope of government authority and corporatism at the expense of liberty for individuals and communities. It leaves no room for people to, for example, pool their resources in other ways. Sure, there's an exemption for Amish or other "recognized religious sect" but that leaves a constitutional issue of its own.

Sooo... you think people should NOT buy health insurance?

It doesn't actually matter if you think people should buy health insurance. What matters is that the federal government is forcing people to buy something.

[rob in cal]

I'm thinking it will come down to a 5-4 vote at the Supreme Court.  Anthony Kennedy, the most powerful man in America making the final decision of course.  I think he has the coolest, but most serious job in America.  He basically is the fifth vote on the vast majority of controversial court decisions.  If it doesn't come down to a 5-4 vote I'll actually be disappointed, as it will undercut my argument that the Supreme Court is a very arbitrary and predictable body.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I'm thinking it will come down to a 5-4 vote at the Supreme Court.  Anthony Kennedy, the most powerful man in America making the final decision of course.  I think he has the coolest, but most serious job in America.  He basically is the fifth vote on the vast majority of controversial court decisions.  If it doesn't come down to a 5-4 vote I'll actually be disappointed, as it will undercut my argument that the Supreme Court is a very arbitrary and predictable body.

>my argument that the Supreme Court is a very arbitrary and predictable body
>very arbitrary and predictable body
>arbitrary and predictable

One of these words you might be misusing. I think it's probably the first one. Other than that, I find myself more or less in agreement with your analysis because of how politicized (or rather polarized, since it's always been political; let's not fool ourselves with false nostalgia) the Court is now.

[BigSkyBob]

The part, of course, where you have to buy coverage or pay a penalty.

Just one more step on its journey to SCOTUS.

The fact that there are people in the United States that would file a lawsuit so they could have the right to NOT buy health insurance tells you why the country is such a mess today.  Which financial adviser is out there telling people NOT to buy health insurance.

The Constitution enshrines a federal government with limited, enumerated powers. Policies outside those powers rest either with the states, or by means of amending the Constitution by the process stated in the Constitution. Constitutional questions are decided by their Constitutional merit.

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[BigSkyBob]

If the decision moves to en banc rulings, we need to wait. Otherwise, there is already a split between circuits in the Court of Appeals. Generally, when splits occur, the Supreme Court will take a case of importance, and, this is certainly of importance.

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