Talk Elections

Once the case reaches the Supreme Court, how do you think it will rule on the mandate?  Will it uphold or strike it down?  

If it is upheld, it will have to be as an exercise of the taxing power. While I expect the Supreme Court would find that health insurance is Interstate Commerce (Indeed when it comes to how the Court views the Commerce Clause, the word Interstate has effectively been rendered irrelevant), I can't see any power under the Commerce Clause that could be used to compel people to engage in Commerce if they don't want to.

A pretty good analysis.

However, what is most interesting is that the bill does NOT include a 'severability' clause!

http://www.politico.com/blogs/bensmith/1010/Michigan_judge_upholds_health_care_law.html?showall

No doubt there will be many such stories, though on the off chance that some judge somewhere throws out some part of it, we will hear way more about that case than all the rest...

Heh

Some would say, "sad, but true," but I have long argued that the congress should not allow the courts and the executive branch to usurp its authority, as those branches have been doing for over two hundred years.  When I read this story earlier today on-line, I was glad.  Not that I'm in favor of the bill, but if we're going to be rid of this monstrous piece of legislation, we need to do it using the democratic process, by removing the elected officials who made it law and replacing them with folks will make laws superceding it or repealing it.  I'd like to see every one of these lawsuits go down in flames, and then to see those flames under the collective ass of the so-called "constitutionalist" faction of the voting public, motivating it to action.

I agree that is far better for conservatives to fight it in Congress.  Fighting it through the courts sends a questionable message (politicizing the judiciary).  The last thing they would need is a left wing equivalent of Roe v. Wade getting ~30% of the country permanently riled up against the right for the next generation.

Not to mention that a Supreme Court ruling that health insurance is not interstate commerce would be a signed invitation for some of the Democratic trifecta states to enact state-level single payer.  It probably wouldn't be a big deal on the national level if Vermont did this, but what about California or Massachusetts?   

Good, that's the way it SHOULD be.

I have often wondered whether those most opposed to HCR would support the same program, or even something far to the left of it (like single payer) at the state level simply on federalist grounds.  You say yes.  The hope on the far left and the fear on the far right is that state level government health insurance will spread rapidly after a very influential state (like CA) adopts it.  What if there was a chain reaction through the states where 35 or 40 adopted single payer over 15 years and it became the de facto national health policy, which is basically what happened to the Canadian health care system in 1945-60?  Would you then regret leaving HCR completely up to the states?

No.

I don't know if I'd really be opposed to HCR at the state level.

Should a state have the authority to make all doctors practicing within the state lines employees of the state government without any federal say?  Medical schools and their curricula/residency structure could change drastically, especially if it was CA or MA that did this.

Yes

Maybe you have a very different perspective, but if you take the question of whether the government has a responsibility to provide health care for its citizens to be a moral question, why would the answer depend on the geography of the government?  If you believe that the government has the authority to mandate universal health care,  why should it matter whether it's one township or a global representative democracy?  I could see opposition to the extreme case of a global government doing it based on the freedom to leave/vote with your feet, but even at the national level in the US or another liberal democracy, those who want to leave are free to travel/move internationally.     

Because the federal government has no such Constitutional authority.  Go ahead and have an amendment passed, if you must.  The powers of the federal government are few and defined, but the powers of the state are vast and undefined.  That is what the law in this nation is, and it is wrong to twist it to accomplish a certain end.

This hasn't really been valid since McCulloch v. Maryland.. Actually it wasn't really valid before that as the creation of the First Bank of the United States, for example, showed.

So the federal government can grant itself new powers.  Nice.

Well, yes it can. Who's going to stop them, exactly?

Both de jure and de facto, of course.

Well, the judge in VA just ruled it unconstitutional.

And he severed the Individual Mandate from basically everything else in the bill.

Aww

To clarify.

The original Senate bill was set up where there was a tax which was remitted if a person got acceptable health insurance.

The bill that was passed (enacted) provided for a penalty to those who failed to get acceptable health insurance (i.e. not a tax).

Update!

Judge strikes down healthcare reform law

By Tom Brown
MIAMI | Mon Jan 31, 2011

 (Reuters) - A federal judge in Florida struck down President Barack Obama's landmark healthcare overhaul as unconstitutional on Monday, in the biggest legal challenge yet to federal authority to enact the law.

http://www.reuters.com/article/2011/01/31/us-usa-healthcare-ruling-idUSTRE70U6RY20110131?feedType=RSS&feedName=healthNews

Perhaps, although I would argue that the compulsion to engage in commerce is far more lenient and libertarian the compulsion to pay taxes. In the former, you are free to choose who to buy services from; in the latter, you are forced to buy services from the government. If the individual mandate is struck down, Social Security and Medicare ought to be struck down as well, for you are essentially being compelled in engage in commerce with the government under these programs.

As I posted earlier in another thread, the government's commerce clause argument is stupid, and thus doomed to fail. 

I've read through the taxing clause argument too, and I think the weight of precedent is pretty strongly on the side of it not being a tax.  Doesn't mean that can't change.

Which leaves the necessary and proper clause.  Which I think stands a reasonable shot.  Arguing it, though, probably means you're saying health care law is void if you're wrong.

Anyway, this decision today (as opposed to the VA one) will push it up to the SC quite quickly.

"Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."

McCulloch v. Maryland, 17 U.S. 316 (1819)

Update!

Lawrence O’Donnell asked constitutional lawyer Jonathan Turley Tuesday if the Democrats made a mistake not including a severability clause into the Obamacare law. Part of Turley’s response:

TURLEY: Well, first of all, it was a colossal mistake not to have a severability clause in this legislation. It’s a standard clause in bills.

Read more: http://newsbusters.org/blogs/noel-sheppard/2011/02/02/lawrence-odonnell-democrats-made-huge-mistake-not-writing-severabilit#ixzz1CsNjvS80

 The way I understand it, the latest point of order by the judge who ruled "unconstitutional", the entire act, the fed has 7 days to appeal his decision, if the fed does not, the 26 states who filed, are free from all requirements imposed by the new & improved health bill of 2010.

sovereigndeeds.com   
it's our move

  God has forbidden the 26 filing states freedom. He filed an appeal, yesterday. As the VP said, ‘this is a big f**k’en deal… that is “Houston we got a problem”. In the end, the 2010 health-care law will collapse, freedom will never be buried. Article II, of the Sovereign Deeds Act is the only solution for the liberty of ones health here in the USA.

  Related RTR: as of 3.8.11, the governor of Arkansas, Mike Beebe (D)  has in his possession an 8 page document from Washington, an Obama sign-off, Secretary Sebelius go, that he, Gov. Beebe subvert all constitutional legislative means and implement at once “episode of care” policies. The discussions live at the capital, Little Rock, with state Senators and Rep’s, completely blind sides there positions because the widow for legislative action, bills introduce, has just closed.  The just of “episode of care” is a fixed dollar amount for each prognosis. As always more questions of problems rather than resolve have arisen.   

aside ?  When Obama killed the horizon, who's, future did he win?

Shouldn't you be concentrating on your defense in the Giffords shooting rather than posting online from your cell?

Thank you for the reminder, it has been bugging me for awhile... How come there is going to be a trial?! Where in the hell was the cover!!! Arizona is an open carry state! da** it!

Oh' and you're right, all prison budgets for computers & internet will be eliminated, at once..
thank you

Ok, I'll give you kudos on a good natured, and pretty funny, response there. :)

  I haven't heard if a check was included with the Obama/Sebelius directive but, if it did, does the gov. get to keep it with a nice try/pat on the back or does Obama want his money back?

 Ar. Leg. just could not find a place in the budget to implement.

so, for now, Arkansas survives health-care reform while

Nope, the Supreme Court say's simply, 'you figure it out - we go'n on vacation'.

 It's actually a good thing that they do not fast track this. States that try to implement will find it compared to having sowed poizen oak.

 It's just my humble opinion, standing on the side of the street mining my own business, of coarse.

It's best that this issue be settled in the trenches of the budgets and the election.

http://www.uscourts.gov/uscourts/courts/ca11/201111021.pdf (http://www.uscourts.gov/uscourts/courts/ca11/201111021.pdf)

Pretty epic opinion, and well-founded, IMO.

Some quotes:

"Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks,
inflation, and unemployment, Congress never sought to require the purchase of
wheat or war bonds, force a higher savings rate or greater consumption of
American goods, or require every American to purchase a more fuel efficient
vehicle."

"From a doctrinal standpoint, we see no way to cabin the
government’s theory only to decisions not to purchase health insurance. If an
individual’s mere decision not to purchase insurance were subject to Wickard’s
aggregation principle, we are unable to conceive of any product whose purchase
Congress could not mandate under this line of argument."

"Ultimately, the government’s struggle to articulate cognizable, judicially
administrable limiting principles only reiterates the conclusion we reach today:
there are none."

 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.

 

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


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.

The Supreme Court has just decided to take the health care law case --

http://www.scotusblog.com/2011/11/court-sets-5-12-hour-hearing-on-health-care/ (http://www.scotusblog.com/2011/11/court-sets-5-12-hour-hearing-on-health-care/)

Fully struck down, 5-4

 If upheld, a counter measure I see developing. Like being required to be certified in the field of your expertise or licensed, bonded and insured in the various over the road, equipment use and legal type jobs, an individual seeking employment will be required prior to being employed, to be medically insured in order to fill their respective position. No different than some jobs requiring physicals or testing for substance abuse. 

Hearings on the individual mandate are set to begin early next week.  Just a heads-up (http://www.nytimes.com/interactive/2012/03/19/us/guide-to-supreme-court-challenges-to-obama-health-care-law.html).  

And here's the schedule:

DATE OF HEARING
March 26

TIME ALLOTTED
90 minutes

40 min.
Robert A. Long, friend of the court, appointed to argue that the suit is barred.
30 min.
Solicitor General Donald B. Verrilli Jr. says the challenges may go forward.
20 min.
Gregory G. Katsas, representing the National Federal of Independent Business and other private parties, agrees with the government on this point.
-----------------------------------------------------------------------------------------

DATE OF HEARING
March 27

TIME ALLOTTED
2 hours

60 min.
Solicitor General Donald B. Verrilli Jr. defends the law.
30 min.
Paul D. Clement, representing 26 states, challenges the law.
30 min.
Michael A. Carvin, representing the private parties, challenges the law.
-----------------------------------------------------------------------------------------------------

DATE OF HEARING
March 28

TIME ALLOTTED
90 minutes

30 min.
Paul D. Clement, representing 26 states, argues that the entire law must fall.
30 min.
Deputy Solicitor General Edwin S. Kneedler argues that most of the law should survive, even if the mandate is struck down.
30 min.
H. Bartow Farr III, friend of the court, appointed to defend the ruling that struck down only the mandate.

TIME ALLOTTED
1 hour

30 min.
Paul D. Clement, representing 26 states, challenges the law.
30 min.
Solicitor General Donald B. Verrilli Jr. defends the law.

Let's suppose the Supreme Court not only rules against the individual mandate but also strikes down the rest of the provisions of the health care law that goes along with it -how will such a ruling impact President Obama's re-election campaign?

It helps but not much.  "Vote for us to repeal Obamacare" is a more potent political argument than "vote for us so you don't have to wait for the Supreme Court to kill the next Democratic power grab" but the GOP should be able to morph its message successfully.

What would hurt the most politically would be if the Court after having made it into a major case rules that the time is not yet ripe for a suit to go forward.  That makes tomorrow the most important set of hearings politically.

What precedent is there to repeal the entire law?

If it's a 5-4 ruling, it might help Obama to remind people how partisan the 5 Republicans on the court are. They gave us Citizens United. And while there have been some changes to the membership, they are essentially the same 5 who appointed Bush President.

What precedent was there in the Citizens United vs. FEC decision?  Why should the lack of precedent stop this court?  It didn't stop them before.   

Looks as if the justices are not going to punt on this issue:

Justices moving to heart of health care overhaul (http://seattletimes.nwsource.com/html/politics/2017841062_apussupremecourthealthcare.html)

By MARK SHERMAN
Associated Press

WASHINGTON —
As demonstrations swirled outside, Supreme Court justices signaled on Monday they are ready to confront without delay the keep-or-kill questions at the heart of challenges to President Barack Obama's historic health care overhaul. Virtually every American will be affected by the outcome, due this summer in the heat of the election campaign.

On the first of three days of arguments - the longest in decades - none of the justices appeared to embrace the contention that it was too soon for a decision.

Outside the packed courtroom, marching and singing demonstrators on both sides - including doctors in white coats, a Republican presidential candidate and even a brass quartet - voiced their eagerness for the court to either uphold or throw out the largest expansion in the nation's social safety net since Medicare was enacted in 1965.

Tuesday's arguments will focus on the heart of the case, the provision that aims to extend medical insurance to 30 million more Americans by requiring everyone to carry insurance or pay a penalty.

A decision is expected by late June as Obama fights for re-election. All of his Republican challengers oppose the law and promise its repeal if the high court hasn't struck it down in the meantime.
-----------------------------------

And since I can't seem to get the audio to work, here (http://www.nytimes.com/interactive/2012/03/27/us/27scotus-transcript.html?ref=us) is the transcript instead.  

C-SPAN has audio here (http://www.c-span.org/Events/Audio-Released-of-Day-One-Health-Care-Oral-Argument/10737429097-4/) with pictures of the people who are talking.

Now why didn't I think of that?  I was looking at Oyez (http://www.oyez.org/) and they didn't have the audio yet of the hearings. 

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.

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.

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.

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.”

http://polipundit.com/

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.

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.

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. (http://seattletimes.nwsource.com/html/politics/2017846888_apussupremecourthealthcare.html)

And here's the audio of today's hearings. (http://www.c-span.org/Events/Is-the-Individual-Mandate-to-Purchase-Health-Care-Coverage-Constitutional/10737429094/)  

FDR's court packing plan killed the New Deal.  I think Obama should be very careful criticizing a possible loss.

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? :(

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.

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.

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.

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?

I put up a post about what the justices are saying about severability here (https://uselectionatlas.org/FORUM/index.php?topic=151391.msg3246434#msg3246434).

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 (http://www.weeklystandard.com/blogs/obamacare-trial-individual-mandate_634761.html) 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.

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? (http://seattletimes.nwsource.com/html/businesstechnology/2017852981_apussupremecourthealthcare.html)

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 (http://www.c-span.org/Events/If-the-Individual-Mandate-Portion-of-the-Law-is-Unconstitutional-Can-the-Rest-of-the-Law-Survive/10737429095/) 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 (http://www.c-span.org/Events/Is-the-Laws-Expansion-of-Medicaid-Coverage-an-Unconstitutional-Intrusion-on-States/10737429096/) on whether Medicaid expansion is an unconstitutional intrusion on the states.

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.

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.

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.

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.

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.

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.

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.

I think the states' argument with regards to the Medicaid expansion is quite weak.  They are saying, in effect, that being offered vast sums of federal money to spend on poor people's health care is "coercive," even when they have the option to opt out.  Even the conservative 11th Circuit, which struck down the insurance mandate, did not buy the states' argument on Medicaid.

You guys I think are making a policy argument rather than a legal one. And SS is a tax.

Yep.

If the government is so committed to making people buy into the private health insurance market, why not voucherize medicare and medicaid?

What's the legal principle behind the abhorrent-ness of the so-called cross-subsidy?

Yes SS is a tax, but why shouldn't the substantive similarity between this and that count when considering the question of whether this fundamentally changes the relationship between the individual and the government (or the states)?

There is no limiting principle to the reach of interstate commerce if it can force people into commerce with the purpose of cross subsidization. That applies to any good, and is not sui generis to health care.

The Feds have the power to tax (it's in the Constitution); they don't have the power to regulate commerce that is not interstate.

That's the law. What the public policy justifications are or lack thereof for all these distinctions is another issue, not relevant to the evaluation as to whether the mandate at the moment is in fact legal.

Now moving on the the medicaid expansion, I think it is clear (http://balkin.blogspot.com/2012/03/states-extraordinary-medicaid-challenge.html) that it is not Constitutionally impermissible  "undue coercion" of the States. For "undue coercion to be in play, the Feds must threaten to take away something from the states to which they are otherwise entitled, and States are not entitled to Federal funds. I suppose one could argue that if the feds enact a law that they will stop giving funds to the State for program X, unless the States do Y, with program Y being wholly unrelated to doing X (we will take away your medicaid dollars unless you enact capital punishment for certain kinds of murders), that there might be a problem still. SCOTUS however has rejected even that. It is only when the Feds tell States to X with no money, of they will suffer some penalty not involving the withdrawal of federal money, that there is a problem.

But here we don't even have an X versus a Y. It's all X. When the Feds are merely restructuring a program for which they are already handing out funds, just changing the rules to get the funds, no, clearly, that is not undue coercion. If it were, once the Feds start handing out money for something to the states, they would be hard pressed to ever restructure it in a way that would cause the states to bear more of the burden.

This issue isn't even close.

The good in question isn't health care, per se. It's health insurance. Some form of cross subsidy is inevitable in insurance. That's the whole concept; some people will come out winners, others losers, but the value added is derived from the reduction in risk at a lower cost than if everyone simply saved on their own. The concept is inherently tied up in the nature of the good being offered. Hence it's fundamentally different from all other markets where the absence of cross subsidy does not prevent the market from operating.

Beet is correct. The government hasn't randomly chosen a group to subsidize and one to take more from. They are making sure the risk pool is large enough, with those not posing high risk to the system paying enough in so that those in the high risk pool can afford to get coverage. And where this differs fro say car insurance, is that you can argue one may never pose high risk to the system since they may never get in an accident or get a ticket, but in healthcare you will get old and pose enormous risk to the system. Everyone is in that boat.

And yet in auto insurance, the insurers use age to categorize drivers and the premiums they pay.  Middle age drivers do not subsidize either the young reckless (but not wreckless drivers) or the old slow-reaction drivers.  There is no inherent reason why a health insurance mandate should act as a means to transfer risk from one age group to another.

Christ we try to do one little thing and they can't help themselves and burn it to the ground.

The mandate isn't that everyone must pay the exact same premium; it doesn't prevent insurers from doing what auto insurers do. The difference between this and auto insurance is, again, everyone is in the market whether they like it or not, only they do not participate in it properly, and this has a direct impact on those that do participate in it properly. If the purpose of regulation is to ensure the proper functioning of markets, then the mandate can be seen as a regulation necessary to the proper functioning of this market. Unless you think we should just let people die on the street.

As a matter of moral principle, why is it permissible to provide a good in the public sector and require it to be paid for via a tax, but improper to require it to be purchased in the private sector? As a matter of liberty, at least in the latter scenario you can choose who to acquire the service from.

Now, you may say that I am not making a legal argument, but I don't see this as a question of law. It is a question of proper policy and should be left to those intended to make policy decisions: Congress and the President.

The whole point of the individual mandate was as a compromise; achieve universal coverage through the private sector, instead of via the public sector as many progressives such as myself would've vastly preferred.

The idea that the mandate somehow fundamentally transforms the relationship between citizens and the government is bizarre to me; it certainly transforms it far less than Social Security, Medicare, Medicaid, or any other multitude of federal programs.

The decision as to whether this bill represents a bridge too far is best left to elected officials who are ultimately responsible much more directly to the voters. If Americans really want this bill repealed, they are more than welcome to elect a Republican President and elect sufficient numbers of Republican Senators to achieve a 60 seat majority in the Senate this fall so that they can repeal it (a Democratic President and 60 Democratic seats in the Senate being how we got it in the first place, of course).

Another interesting question; if the whole bill is struck down, what happens to portions of the bill already implemented such as monies already allocated and doled out by the Feds? Would states be required to pay back the money or do they get to keep it?

Yet another reason why Congress should be the one to repeal this bill, so that these questions can be asked of them by the voters, and the decision of what to replace the bill with (if anything) made by the executive and legislative branches.

There is no limiting principle there. That is true with any good. Just force folks into the market to get the price down and cross subsidize with price fixing.

I can understand why defenders of the mandate want to revert to policy, rather than focus on the law, the Constitutional law. Yes, it is clear via taxation that the government can get to the same place economically. But with one you are doing it with carrots (a tax credit), offset by taxes on everyone, and in the other you are forcing folks into commerce. They are supposed to buy health insurance and break the law if they don't, and get fined. Allowing the government to force people into commerce to make goods cheaper or for cross subsidization purposes effectively renders the concept of limitations of government power vis a vis the states a dead letter.

Anyway, absent a clear limiting principle on the cross subsidy, I think the odds are almost certain that Kennedy will strike it down. There is no limiting principle, and he wants one. And the cross subsidy is not random. The program deliberately makes the young as an age group pay a lot more than they otherwise would, and the old less, so there is age discrimination. There may also be a subsidy for the uninsured or the insured who pay high premiums because they got insurance when they were sick which is paid by everyone less sick in some proportion. But it doesn't matter, the principle is the same.

What the Constitution demands as interpreted is not always the same thing as good public policy. As I have said, to me good public policy is to do away with the concept that the states can do things the feds cannot entirely.

Except that Congress requires hospitals to provide care for life threatening conditions regardless of ability to pay and without subsidy. In other markets, Congress does not force suppliers to provide the good. It does not say, "if people want to buy cars, then they will pay full price, but people who do not buy cars must nonetheless be given one if they need it to get to their job." Health insurance is the only type of insurance market where the good in its most valuable form must be provided regardless of whether the recipient has paid for it.


I asked this question upthread, if not buying insurance actually criminalized you, or if it simply meant you make a choice to pay the penalty. I'd like some more clarification on this. Does it make you commit a misdemeanor, if you choose to pay the penalty?


How deliberately? Age is only significant in that it is a factor that affects an individual's risk. But there are hundreds if not thousands of factors that affect individual risk. Everyone has a different level of risk. I don't see how age is unique here.

Also, what Nym is saying... yes, there is a Constitutional issue and Constitutional law is different from good policy, we get that. But the law also deals with reality, and terms such as 'liberty' also have a substance to them. They mean something in the real world. So if this mandate is substantively the same as a tax then the law should consider that.

On to severability.  I am also quite certain that SCOTUS is just going to get rid of the mandate, and the waiver of pre-existing conditions, and the risk pool, as suggested by the government. The balance of the law will work just as badly without those three elements as it did before. Nobody argued for more going down than just those three, except for those arguing that the whole thing should go down. I did not hear one reason why the whole thing should go down, other than otherwise the court has to read the whole law and figure it out for themselves. Garbage. Sure maybe other portions should, but if not brought to the court's attention as to what they are and why, they certainly must not be very compelling. Call it a waiver if they are out there.

Does anyone think that forcing insurers to keep kids on the policy until 26 has anything to do with the mandate?  Of course not. The concept of just throwing out the whole law is ludicrous.

Beet, one more time. Yes the free rider issue is unique, but you can't bootstrap off that to then say OK we make people buy insurance to deal with the free rider because its unique, and a unique problem because of the inability to pay, and since we can do that, well we will make them cross subsidize too! The sky is the limit now baby.  No, you just allow the exception of forcing folks into commerce to and only to the extent it addresses what is unique, rather than with that leak in the dam, then the feds can do whatever they want that is not unique now that folks have been forced into commerce just to make sure they won't be deadbeats, disrupting the system.

Anyway, whether you agree or not, Kennedy is never going to buy it. If he does, I will be shocked.

Oh, I never argued age is "unique."  Where did that come from? I just said that when the government forces healthy people into the system, and makes them pay more than they would in an open market, that is a cross subsidy. Most of those people are young, and the schedule for what they have to pay the most onerous, as compared to healthy older people. They are going to get soaked. Someone should tell them before the election about that, or tell them just how 'lucky" they are that the mandate was tanked.

Finally nobody thinks requiring folks to go into commerce and fining them if they do not as law breakers is the same as a tax legally. Well next to nobody, including all 9 justices who don't think it is a tax. Congress doesn't think it is a tax either. By the way, would you argue it is a tax if the penalty is execution, or is it just a tax when the penalty is a fine?  Anyway if forcing folks into commerce via fines because they are taxes, then federalism is indeed totally dead.

You boys are stubborn!  What am I going to do with you?  :)

Well, young people are also disproportionately uninsured, so they would benefit from having insurance, and they're disproportionately low income, so they would receive a large share of the subsidies going out under the law.

I'm just saying that dealing with the free rider problem and the cross subsidization effect cannot be separated out from one another. If one agrees that Congress is within its rights to deal with the free rider problem, then I argue that the cross subsidization effect is necessary proper for it to carry out that function. Because without it, then there is literally no way to deal with the free rider problem. And arguably, the emergency healthcare mandate to hospitals is a cross subsidy in the other direction, from those on insurance to those not on insurance, so all this is doing is righting the boat that was unbalanced by that earlier mandate.


How is federalism dead? I really don't understand the federalism angle too well.

Without cross subsidies, you can't deal with the free rider problem?  Really?  You must make them buy insurance to deal with the free rider (not cross subsidies), and if they can't afford it, you subsidize the purchase with a tax credit. Where do you get the money for the tax credit? From taxing the rich more of course!  Isn't that what you guys think is the best public policy anyway, rather than overcharging healthy people for health insurance, mostly younger people? 

Anyway, I'm done and rest my case. I think I have addressed everything at this point, and some more than once, twice, and maybe even three times now.

Uhhh okay... I don't see the difference between this and what ACA actually does, but I'm just a stupid layman.

The difference is the price of the premiums, and it is a huge difference - to fund the cross subsidy as well as pay your own way, and not be a free rider.

Anyway, it's been fun. Thanks for listening.

If hospitals were to opt out of the Medicare and Medicaid programs, they could choose to not provide free treatment for life-threatening conditions.  The requirement on the hospitals is because of their voluntary participation in those programs.  If you're going to argue that it isn't voluntary, then that would mean that the States have a chance to get the court to rule in their favor on the Medicaid changes.

There are already a fair number of doctor practices that opt out of Medicaid and some that opt out of or limit Medicare participation.  There is a limit to how much blood can be squeezed out of that turnip before some hospitals decide not to participate in those programs.

And those who are sick should not pay significantly more. Should someone who has had seizures since they were a little child have to pay more than others in their age group? And speaking of age, yes there should be some cross subsidization from the young to the old. And one day we will get old and get subsidized by the young. That's how this works. Yes, you can charge the old more, but then it becomes hard for many to afford insurance.

This^^

Due to this bill many are able to have insurance, will be able to purchase insurance at cheaper rates than they would be able to on the market today (though maybe not as cheap as they theoretically should be able to) and will receive a large share of the subsidies.

I don't see how the mandate can be considered an unconstitutional abridgement of liberty if the power to tax to raise funds for a single payer health care system isn't. The latter is clearly far more coercive. So in terms of a limiting principle, I don't see how this bill pushes the boundaries at all, unless the Court is prepared to declare Medicare, Medicaid, Social Security etc. unconstitutional as well as the law requiring hospitals to provide service, even if for free, to those whose lives are at risk.

I mean, there may be an issue if Congress is saying that 'well, you cannot charge young people less than X' (of course, Congress already mandated that employes have to offer old workers the same terms as young workers on their health insurance; that's the biggest cross subsidy right there, and it's deemed constitutional). Will many young people be able to purchase insurance at cheaper rates than they could on the individual market today? Anybody have any interesting links that addresses this issue?


Yeah. It's voluntarily and heavily incentivized. Just like buying health insurance would be under the other so-called 'mandate'.

I believe that the Fed carrot for employer plans doing what the Feds want, is that the benefits are not treated as income to the employees even thought the cost to the employer is deductible. Again it is done through the tax code. Yes I appreciate folks don't like the distinction between coercion through taxation, and coercion through regulation under the interstate commerce clause.  But there is a method to the madness and the reason heretofore Congress structured their laws they way they did - except this time with the mandate.

It's not about not liking the distinction, it's about there really not being one at all, at least in terms of infringement upon liberty. I think it's being extremely literal to a ridiculous degree to say that Congress has the power to tax because it is explicitly given so, but that if a regulation acts for all practical purposes like a tax except for being much less restrictive of freedom than a tax, it's unconstitutional because it's not a tax. The fact that Congress is given the power to tax implies that any regulations less coercive than a tax are also acceptable to further the same goals, IMO.

The Civil Rights Act also comes to mind as another regulation that is at least as coercive as the ACA; it requires individuals to engage in commerce with people whom they would prefer not to.

Not quite. The Civil Rights Act of 1964 has a number of opt outs, the most basic one of which is to not engage in the activity that is being regulated.  If you don't like mandatory auto insurance, you can always choose to not drive.  If you don't like mandatory health insurance, you can't stop breathing.  But beyond the "don't do it" exception, the CRA of 1964 has a vague "private club" exception to Title II (public accommodations), and religious and private non-profit organizations are exempted from Title VII (employment).

http://www.dailykos.com/story/2012/06/16/1100591/-Justice-Ginsburg-sharp-disagreement-rate-will-go-up-next-week-and-the-week-after

The sharp disagreement rate will go up no matter what the court rules because this issue is so polarized. I don't think you can necessarily conclude anything from what Ginsburg said. The closest thing she seems to give to a tipoff was that she did make it sound as though the individual mandate was in serious trouble:


But then again even that may sound completely different depending on the context.

She noted that the severability of the law was "one question" the Court had to face, which was true from the beginning.  So, I don't think that tips a hand on anything.  She probably said it just so she could make the "broccoli" joke.

But I'm pretty sure the court will sever the law in any case.

Why?

There is no explicit severability clause and there are very reasonable reasons to not want the "must carry" and "must purchase" provisions severed.

No there isn't; the vast majority of this colossal bill has absolutely nothing to do with those provisions. No one with even a shadow of care for judicial constraint would ever strike down those portions.

The gang of 5 have no judicial constraint.

Judicial restraint does not mean that judges should get to pick and choose when they will apply severabilty.  Courts should not be expected to function as editors because legislatures are unable to write a law that says what they mean.  One aspect of this case is that it will likely establish clearer precedent concerning severability.  Considering that they spent the morning of the third day of arguments covering this very question, I don't see it as a slam dunk in either direction.  It's fairly clear from arguments that they will almost certainly consider some of the provisions to be inseverable from the individual mandate.  For them to come up with a means to leave other provisions intact if they strike the individual mandate would seem to require that they come up with a clearer standard of when severabilty does apply.  If they don't have a clear standard, then they will be acting like legislators instead of judges if they decide which parts can be severed.

No, judicial discretion is a power of the court, and does not render it into a legislative body.  In the absence of a severability clause, the court has discretion to determine which of the law's provisions are or are not severable from the "mandate."  They would have to base that finding on the content of the remainder of the law, not just on the length of the bill and the fact that they don't want to play today.  So with regard to that content, what, for example, do the provisions dealing with eventual generic offerings of biologic drugs, Preventive Services, an indoor tanning tax, new medical fraud deduction methods, the Medicare part-D rebate, the reduction in Medicare Advantage subsidization, or the health insurance exchanges have to do with the mandate?  

I would say that the onus is on showing that they are not related so that they can be severed, not on showing they are unrelated so that they cannot be severed.  With the exception of the indoor tanning tax, I would say that all of those provisions because of their direct connection to health care are sufficiently related that I cannot see severing them without also severing the must carry provision. While must offer without must purchase is a generally agreed to be a bad combination, that is for subjective reasons.  There are no legal problems incurred if insurers are required to offer insurance to everyone at the same rates but people are not required to purchase that would provide an objective reason to make must offer and must purchase inseverable without making pretty much the whole bill inseverable save for a few minor provisions.

Bullsh**t. Scalia basically said he's lazy and laughed it off. Forgetting that someone had to write the bill, and he's complaining about even reading it. They're not going to be editing anything. The standard is that the rule on what they're frickin' asked to rule on: the issue before the court. The parts of the law that haven't been constitutionally challenged shouldn't be constitutionally struck down. What's the justification for the court striking down a part of a law that hasn't even been contested as unconstitutional? The issue isn't even before the court, and they're going to strike it down just because they don't like it. There's no difference between that and dictatorship.

Heck, they might as well just rule that Romney is the winner of the election, like they did in 2000.

Well, reading the bill is something for the law clerks do for judges, just like staffers wrote the bill.  (If you think any actual elected Congresscritter did any of the actual writing, you have a higher opinion of Congress than I do.)  You seem to be arguing that if they decide to strike the individual mandate and to sever, then they should so narrowly and leave Congress to clean up the mess that will result from must offer without must purchase.   A nice reasonable position, but one I doubt Kennedy will adopt.  Of all the judges on the current court, he's the one I think is most likely to try to pick and choose what gets saved.

Isn't the issue as to serverability, to ask just what portions of the bill depend on the revenues generated by mandatory health insurance one way or the other (to wit, those provisions which almost certainly would not be in the Bill absent mandatory health insurance)?  That certainly is the question I would be asking.

Unless there is some subsidy being provided out of the tax imposed for not having health insurance, then there is no direct linkage of funds.  If the desirability of the private economic impact that severing (or not severing) other provisions from the mandate is cause for determining whether they are severable, then that would give the judicial branch carte blanche to subjectively filet any law with an unconstitutional provision, and subjective decisions should ideally be left to the legislative branch to make.

One would need to look at the legislative history to get a better handle on how the parts work together. Oh wait, maybe there isn't much of any legislative history on this Bill, since nobody read it before it passed. :P

Anyway, even the government (solicitor general) admits that the rule requiring insurers to take insured with pre-existing conditions will have to go, since the quid pro quo was to get a host of healthy youngs who would pay excessive insurance premiums to subsidize the olds and the sicks. As to how the penalty payments penciled into the bevy of largely cooked up numbers, I don't have a clue. 

5-4 decison nothing but politics like usual

The long-anticipated ruling is expected Thursday (http://video.msnbc.msn.com/newsnation/47951779/#47951779) -so mark that date on your calendars.  

The individual mandate has fallen.

Really not a surprise....

I'm hearing on the radio that it is standing as a tax.

From SCOTUSBlog -

"The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read. "

CNN initially reported it as fallen, but they are also backtracking now.

Drudge reported it fell as well.

So it looks like SCOTUS jumped to Torie's claim of a tax, and simply ignored much of the way the case was argued.

Torie wins the award.

Good God, Kennedy:

"In our view, the entire Act before us is invalid in its entirety."

FL in 2000?

()

The media is still parsing the part that is overturned in relation to Medicaid.

Roberts apparently found that while Constitutionally the mandate is a tax, because the act calls it a penalty, the Anti-Injunction Act was not invoked, so the suit could be brought.  Odd.

I wonder how this will effect liberal's attitude of George W Bush, since it was one of his appointees who was pivotal in saving the mandate, and apparently the whole act.

Opposition was much stronger against Alito, though.

I see where CNN got confused.  Roberts first talked about how the mandate was not upholdable under the Commerce Clause before saying it was upholdable under the taxing power.

Barack Hussein Obama can now be officially named the emperor of all tax and spend governments of the world.
Bill Clinton and Jimmy cater gotta be just setting back and saying “man, this guy is good!”
Thumbs up to the Chief Justice, he kept intact the correct tools for the people.

^ This.

Beet is vindicated. The mandate is a tax!  Who knew?  :)  Yes, it is not appealing to put something into a different box for a lawyer when the economics is exactly the same. In this case, Roberts stripped away the label to get to the substance. SOCTUS did however surprisingly toss out the Act's stick that states lose all their medicaid subsidies if they don't expand their programs, presumably because it was viewed as unduly coercive. That sounds rather fuzzy to me.  

I believe it was conservative legal analyst John Eastman who called Roberts a creature of the Washington Administrative State.  Looks like Roberts is on his way to becoming a new swing vote and might now be joining Kennedy in creating a new 3-4-2 conservative, liberal, swing vote breakdown.
Alright all you young post-age 26 slacker hipsters out there, time to start insurance shopping, and remember go for the gusto on coverage if its subsidized.

Justice Roberts' majority opinion was not completely signed on to by any other justice. I wonder if that's kind of rare. Anyways, the fuzziness was what Roberts felt like doing.

Ginsburg with Sotomayor in support would have found that the changes in Medicaid were valid, so it looks like the severing of the Medicaid provisions is 7-2.

What was the problem with the Medicaid provisions, again?

I thought that the Supreme Court wasn't allowed to rule on whether a tax is constitutional until it takes effect? If the mandate is a tax than shouldn't the suit have been dismissed and need to be reargued in a couple years?

That is a procedural hurdle which Roberts ignored. I don't blame him.

I don't know, but Kennedy was yipping about undue coercion of the states. I am amazed that Roberts bought into that.

Is Kennedy really a swing vote or just a libertarian?

The PPACA considerably expanded the scope of Medicaid and threatened to take away the funding for the existing version if States refused to go along with the expansion.  The 7-2 decision on this point said the Feds couldn't do that.

I'm going to guess some type of 10th Amendment type argument.

Not just Roberts, but also Breyer and Kagan.

He's just a libertarian. The people at Cato consider him one of their own: http://www.cato-at-liberty.org/justice-kennedys-mysterious-philosophy/

Washington (CNN) -- The U.S. Supreme Court on Thursday upheld the controversial health care law championed by President Barack Obama in a landmark decision that will impact the November election and the lives of every American.

(Ed.  For more - read it at CNN.)

obama's re-election numbers on intrade also went up

A win is a win

But now the GOP will argue that Obamacare is a "secret tax" and that Obama lied when he said it wasn't a tax, but now it is officially a tax.

I'm so happy that on one day, one judge was able to make a decision that wasn't based on his/her politcal ideology. This is supposed to be how the system works. I know that liberals have also won key battles through unelected courts as well. Law is supposed to be made by elected officials.

the supreme court had everyone fooled. I even thought it was going to be struck down.

The court never fooled anyone, they just fooled themselves. "Common knowledge" is a dumb thing.

Two judges, actually.  Anthony Kennedy and John Roberts are doing some sort of sitcom-style trading places thing.

Actually from what I've read in the opinion so far, it is very much about Robert's ideology. At his confirmation he stressed judicial restraint and opposed judicial activism. The opinion reflects that view in deferring to the legislature where he could.

at least now with universal marriage, people can get free health care by marrying their partners instead of having to pay the "health care tax" 

Some health care providers require couples to be in a "sexual relationship" instead of a platonic relationship.  However, many straight and non-straight couples are actually in platonic relationships, depending on your definition of platonic, which basically means no insemination occurs. 

I expect the definition of marriage to expand to all singles and couples who are in platonic relationships (such as long term roommates).  There are many singles and couples who cannot engage in sexual activity for a variety of physical or health reasons.  This should not deny them the benefits of free health care through marriage. 

With fewer and fewer companies offering health care coverage except the high paying jobs and the out of control the prescriptive drugs costs keeps going, people will find ways to get around getting health care insurance and keep going to clinics and the well off will get health care unless you are an unwed mother with kids or a senior.

You can see there is something wrong with this country when such an obvious and logical decision makes the headlines and is decided by a single vote.

Well...worse is that "Obamacare" is even considered a universal healthcare project to begin with.

Yeah, Beet definitely wins first prize.  Torie comes in second.  I finished last, which was, you know, fairly predictable.  After another listen to Kennedy's comments during oral arguments the other day, I'm not surprised at all he voted for a wholesale strikedown.  Roberts saying that, even though Congress didn't call it a tax, it is one, sure surprised me. 

This. 

Still, it is better politically than it being found totally unconstitutional.

Great news.

A tax that his opponent supported. Before he opposed it.

A tax that will only be paid by people who a) don't have insurance now, b) don't want to buy insurance, and c) have a relatively high income that takes them out of subsidy range.

Yeah, Republicans on here seem to be forgetting who they are depending on to sell this message.

"I will be voting against John Roberts' nomination. I do so with considerable reticence. I hope that I am wrong." ~ Barack Obama, 2005.

and as a young pre-age 26 slacker hipster, I'm delighted to say I can slack on my insurance shopping for yet another 4 1/3 years, as I enjoy my handout from my father and the City of New York.

You really don't need to sell this message too much; people understand tax increases.

Great news. I have to give massive props to Chief Justice Roberts for his admirable adherence to judicial restraint in this case. It looks like Torie was right with respect to the Commerce Clause. Roberts will be one to watch. He knows how to move carefully and keep the Court out of searing political battles, which is right where it should be. And yes, I agree with his reasoning in this one, as well. :P

Well now, hold on; I do finish last, but I get a few points...

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

"b.)  Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penal- ties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that pay- ment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is un- lawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language— stating that individuals “shall” obtain insurance or pay a “penalty”— does not require reading §5000A as punishing unlawful conduct."

People also understand what the phrase "pre-existing condition" means.

Well, it is how judges should do. Judgements must be done using laws, not ideology.

So basically your reducing marriage to a means of acquiring healthcare.

This is bad, as it's the first step towards Universal Single Payer healthcare as in Britain. So enjoy all the corruption, waste, inefficiency, bureaucracy, incompetence and high taxes that it is accompanied by.

I didn't count on Chief Justice Roberts, he agrees with Alito some kind of amazing percentage.

NHS has got its issues, but it costs about half as much as U.S. healthcare. Whatever waste and inefficiency Brits experience are dwarfed by what we have in the U.S. without universal coverage. We have an extensive bureaucracy but it's private.

One more thing. Why do people who already have healthcare give a sh*t about those who don't. Why, why!!!!!!!!

^^^^^^^^^^^


1) Human empathy
2) the well-being of society

Alright my question now is, what does "denying coverage mean."

If you are someone who has had back problems or diabetes, what is an insurance company allowed to do in 2014?

1) Give you coverage, but not for back/diabetes related problems.
2) Give you coverage for the ailments, but charge more.
3) Cover the ailments at the same price as everyone else.
4) Something else?

If number #3, is someone allowed to get health insurance at the same cost as everyone else right (provided they paid the tax) after being diagnosed with a terminal or highly deadly disease?

..well, I find it oddly comforting that the sum of all wisdom and power comes down to the Chief Justice, taking the American people back to school, reminding them, the terms and definition of a 3 integer word, T A X.  


a_troll

Because the uninsured aren't an abstraction, but are usually relatives of the insured?

Isn't this a truism though?  People don't have to follow the law, they can choose a fine or prison sentence instead, depending on the law.

You don't have to get insurance, you can pay the fee...in the same sense as how you don't have to put quarters in the parking meter, you can pay the parking ticket instead.

There's some subjectivity to the exact difference between something that is unlawful and something that is merely disincentivized by the law. To some degree, the difference is only that the former is categorized as a crime while the latter is not. But from a substantive functional standpoint, other factors must come into play-- for example, with unlawful behavior, the intent of the law is to eliminate all such behavior, whereas merely disincentivized behavior, the intent of the law is to reduce such behavior, but not necessarily eliminate all of it. Since Congress anticipated that millions of people would choose the pay the penalty and were fine with that, it can't be said that Congress intended to eliminate all uninsured in the U.S.

Another factor is simply how burdensome the incentive is. A tax on cigarettes that raises the cost by 100% from $3 a pack to $6 a pack disincentivizes smoking. A tax on cigarettes that raises the cost to $1,000 a pack effectively bans it. In this case, the tax penalty in ACA's case for not purchasing health insurance is relatively modest and based on the individual's ability to pay.

So did I. I expected a ruling based on 'freedom to contract' that the Right has been seeking to push.

To be honest, Mikado, I don't know.  Tax evasion and filing false returns are felonies and not filing any taxes when they are owed is a misdemeanor.  In contrast, not paying the "penalty," what we have to call a tax now, for failing to have insurance carries no legal implications.  Roberts found some significance in that, although, in thinking about it now, I'm not sure what kind.  Torie, can you help?  I don't want to claim points I didn't earn.  :)

I'm reading through Roberts' opinion, and I'm really impressed.  He protects federalism and gives Congress all the latitude to tax that precedent allows.  Really, I'm not very smart and I'm not a lawyer, but reading through this makes me wish I'd gone to law school.  Really impressive.  

It's also an object lesson: when defending yourself, always make more than one argument!  :)  Wish I'd thought of that in my first marriage.  :)

Most people don't have them (I'm the exception).

While this is entirely accurate that this is a tax that will likely only apply to 1% or less of Americans, that wont stop the GOP/Romney/Superpacs from running ads with..
 

Look at how they have convinced people to be against the Estate Tax, which effects like 0.01% of Americans or even convinced people that Obama has already raised their taxes (he lowered them) and wants to raise them even more (he only wants to raise taxes on high incomes).

Which makes you even more of a misanthrope.

Worry about your own f[inks]ed up country.

(Sorry posted this in the wrong thread.)

Alright my question now is, what does "denying coverage mean."

If you are someone who has had back problems or diabetes, what is an insurance company allowed to do in 2014?

1) Give you coverage, but not for back/diabetes related problems.
2) Give you coverage for the ailments, but charge more.
3) Cover the ailments at the same price as everyone else.
4) Something else?

If number #3, is someone allowed to get health insurance at the same cost as everyone else right (provided they paid the tax) after being diagnosed with a terminal or highly deadly disease?

Mokbu, that is why the mandate is important. So that people will have to keep paying into the system even if they are healthy and that they won't show up to buy insurance just after being diagnosed with a disease. AFAIK, number 3 is what is required now.

I think they are not supposed to discriminate at all based on prior health - same rate and guaranteed issue. I don't know if the insurance companies can charge differently based on age or other factors, or if it's supposed to just be one flat rate for everyone. I imagine people without preexisting conditions will see their insurance premiums rise to balance it out.

Some premiums have increased in part due to pricing in the ACA. Premiums are expected to rise again as certain populations come into the coverage pool.

I was reading today that premiums for those aged 18-34 will rise the most, with modest increase for those from 35-55....didn't mention anything about those older though. There is certainly a cross subsidy from the young to the old but I think it is necessary to keep the system afloat. Also prices need to be reduced overall somehow....

Never mind my own bs above.  Roberts was talking about the fact that not buying insurance is not a crime under the law; he wasn't talking about the lack of enforcement provisions on the tax.  My bad.  No points for me.  I'm going to desist from making observations about legal issues from now on, since I clearly don't understand them. 

I'm pretty sure you know more about this than 99% of the people opining about this on Facebook. :)

Also, no one is arguing that Obamacare is the last word here. The issue of rising costs still needs to be addressed, and a compromise may still be reached replacing the mandate, so long as it is replaced by something that provides for effective universal coverage.

For all the troubles Greece has, their healthcare isn't quite as (Inks)ed up.

I'm withholding my opinions until I read through it.  Which could take a while.

Ah, there is a distinction (the reasoning isn't mine, of course - I am not clever enough). The constitutionality is decided based on what this truly is, ignoring the labeling the Congress chooses to provide - a tax. But the prohibition on ruling pro/contra constitutionality of taxes not yet in effect is based on a statute and the Congress can choose to word the statute as it likes. It prohibited ruling on constitutionality not of taxes, but only of things it chooses to call taxes. Hence, this is a tax for the purposes of a constitutional argument, but not a tax for the purposes of this particular statute :)

So the community rating isn't modified for age?  In that case, there's no telling whether young people with pre-existing conditions will end up paying more or less than they are now. Well done, Congress.

Just finished reading all the opinions.  Man, Kennedy, Scalia, Alito and Thomas really take Roberts to task for his tax interpretation, without naming him.

Wow that was a total BS contradiction of calling it a "penalty" when applying the Anti-Injunction Act and a "tax" when considering the powers of congress. Until reading the decision I was under the impression that there was a legitimate reason for that distinction beyond basically Roberts felt like it.

Time to move to Canada. Not because we have universal healthcare, mind, but rather because Canada has universal healthcare that's actually universal healthcare.

*cough* Citizen's United *cough*

Of course there is some adjustment. But the young pay more than they otherwise would and the old pay less.

SCOTUS had ruled for unlimited expenditures by an individual back in the 70's. When someone can explain how SCOTUS can distinguish between expenditures from an individual as opposed to a group of individuals of any size, then I can understand why CU is activism. Or do you suggest SCOTUS should have reversed on their holding for a right to association?

'Taxed to Death' just seems to have a more relative meaning today. go figure...

Yeah, Americans are oppressed to death by taxes.  You should live in another country where even middle-class people pay far higher provincial and consumption taxes, and still live a decent life in exchange for the benefits they get in return, and see what you think then.

 Would that be the one that's debt free, open borders and they're own military defending that decent life? It can't be the one(s) that just where promised another bail out today.

While I applaud your sliding into coherence (software update?), I must say I liked you better when it was actually impossible to understand what you were actually saying.

But now we're changing the subject and talking about spending decisions and how they're financed.  I'm talking about the oft-expressed political sentiment in America that, if there is any one thing that ruins our lives, it's taxes.  I certainly understand that upward adjustment of tax rates makes things harder for businesses.  But I've had family members run businesses and worked in one of them when I was younger, and of the ones that failed, taxes, even when they were much higher than they are now, really weren't the death blow, not even close to it.  I'm saying that, once one factors everything in, Americans pay far less in taxes than most other citizens do in a vast majority of industrialized countries.  But we also seem to complain more bitterly about taxes than almost anyone else.     

Welfare has become a dirty word because it's too strongly need based, IMO. If only a small fraction of the population (regularly) uses state services (directly...obviously everyone uses them a lot more often than they think), then it turns into an us vs. them mentality.

In more universal welfare states, many people use the state healthcare, go to university for free tuition, etc., and less people mind paying taxes because they know everyone profits from a well run welfare state.

The reason why Americans’ paid fewer taxes was because it had a vast land of opportunity to create wealth that, to which, many more people paid taxes, at a much lower rate. An example, let’s say you and a bunch of your buddies’ decide to go out to the pub as a group, each puts up first $20 for all expenses, the drunk and fat one fulfill their wants at a much better price than ones that primarily are enjoying the company of friends.  Enter Obama Care [Affordable Care Act], which does seem to have a unique meaning for my above example, back to my point, the difference with Obama care is; first, he is an uninvited quest who is insisting on being paid first for managing how and what you drink and eat tonight. Secondly, you must provide sufficient proof you need not provide more than the $20. Thirdly, the most relevant provision of ObamaCare, is, you must provide him and his staff (IRS, GSA…) for life, expenses and pensions, so to keep and maintain your next gathering.
Anvi, as to your decent life; is that the one that is given and allowed or the one that is purposely pursued to fulfill or not?

Good luck with the above anvi. It will be interesting to see how you respond.  :P

noting that Ginsburg doesn't rely on the law so much.  only uses it to set the state for delving into what's reasonable.  FF.

I haven't looked at this board for about a week and just saw the reply above.  So, Torie, are you daring me?  :)  Well, I'll probably fail, but I can't just leave an emoticon like that stand there.

First, t_host1, if you agreed with your buddies that you would put up $20 for everyone's initial expenses, but when you got to the bar and decided not to drink yourself, would you ask for your money back just because your friends were doing the drinking?  If that's so, I don't think anyone else will have to have make up rules for your future drinking parties; you're buddies will stop asking you to come along pretty soon.
Secondly, is Obama really an uninvited guest who is insisting on managing your habits?  In 2008, he got almost 70 million invitations from your other drinking buddies do to administrative work. If you and they want to un-invite him in November, that's totally fine.  But if someone hired you and then told you you weren't ever hired in the first place, I'd say it was the guy doing the hiring that was being unfair.
As far as the last part of your analogy with paying Obama's pension, looks to me like that's done when you go to bar too!  Maybe go to a volunteer bar, if you can find one.
I'm not sure what you're asking with your last question.  If it's a question about me, then...I got the gift of life from my parents.  And no matter how hard I work and purposely pursue happiness through my own efforts, I've always needed help from others.  If you're experience is different, then I'll wait to read your autobiography, because that would be quite unique.  If you're talking about debt-burdened countries instead, well, the U.S. is hardly in a position to point fingers.  The fact that we put so little in is related to how much we seek from others.

Well anvi, that was a most interesting discussion of mandatory cross subsidies (although your bit that you might not be invited to drink again if you don't drink and are the cross subsidizer, seemed a bit peculiar, since the idea is that the teetotaler must always go to drinking soirees precisely to cross subsidize, but I digress), and the cost and personnel to administer them. Good job with your handling of that last sentence from your interlocutor. That one really through me for a loop, because it seemed to have been dropped there from outer space from a contextual perspective.

Torie, I didn't address cross-subsidization in my response above just because I couldn't find anything in t_host1's post about it, although maybe I missed it. I thought it had drifted into a more general debate about taxes, so that's what I was focusing on.   I do think the cross-subsidization issue you've raised for a while is a legit one, and one way or another it will have to be rectified.  My interest in ACA as a matter of law before SCOTUS was that I wanted to see a mandate, or something that functions like one, survive constitutional challenges, and that not for the sake of Obamacare itself, but for the sake of implementing a viable framework for near-univeral coverage in our country at some point. 

Well, if you put in $20 bucks for booze, and then don't drink, that to me is a subsidy. But the fun of course was trying to parse a text written in code. You manned up and made a good faith effort. I read the text, and reached for my bong. :)

As to the mandate, of course the problem is that it is too small, and not enforced, so "everybody" is going to drop their insurance ASAP who is healthy, since now they get insurance any time they want it when they get sick. That is what happens when you troll for votes desperately at the last moment. You end up with a Godzilla-like monster that will be wrecking havoc throughout the land if not brought down.

I agree with your criticisms in the last paragraph, Torie.  As to the text, yeah, it was fun to read, though I'm not sure if I did all the decoding correctly.

Anvi, I was not required (mandated) to go to the pub or pay the $20. And, it’s not initial, expectations are known to be limited and fixed-(a separate and detailed discussion). Your point to ones character among friends and foe; we, are different.  I may be out numbered by those that want to aggrandize my health and aspirations for its constitutional order has diseased. Submission will always be resisted; it is the only medicine that works every time.