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

[Sam Spade]

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.

[Sam Spade]

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.

[Sam Spade]

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)

[Sam Spade]

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.

[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.

[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.