If the healthcare law is overturned, universal healthcare is dead forever

[anvi]

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?

[anvi]

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.

[Torie]

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.

[Gravis Marketing]

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.

[Torie]

"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.

[Gravis Marketing]

"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.

[Beet]

What affect does me kissing my girlfriend have on commerce?

[Torie]

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 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 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.

[Beet]

"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.

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.

[Beet]

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 :/

[Sam Spade]

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.

[Gravis Marketing]

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.

[Swing low, sweet chariot. Comin' for to carry me home.]

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."

[Gravis Marketing]

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.

[Beet]

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.

[Torie]

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.

[Torie]

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.

[Torie]

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.

[Gravis Marketing]

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.

[Beet]

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?

[cavalcade]

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.

[You kip if you want to...]

When can we expect a ruling?

[Sam Spade]

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.

[Torie]

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.

[True Federalist]

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.

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.