Supreme Court and the Individual Health Insurance Mandate
       |           

Welcome, Guest. Please login or register.
Did you miss your activation email?
March 28, 2024, 03:26:46 AM
News: Election Simulator 2.0 Released. Senate/Gubernatorial maps, proportional electoral votes, and more - Read more

  Talk Elections
  General Discussion
  Constitution and Law (Moderator: World politics is up Schmitt creek)
  Supreme Court and the Individual Health Insurance Mandate
« previous next »
Pages: 1 2 3 4 [5] 6 7 8 9
Author Topic: Supreme Court and the Individual Health Insurance Mandate  (Read 48837 times)
Nym90
nym90
Atlas Icon
*****
Posts: 16,260
United States


Political Matrix
E: -5.55, S: -2.96

P P P
Show only this user's posts in this thread
« Reply #100 on: April 09, 2012, 10:10:14 PM »

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.
Logged
True Federalist (진정한 연방 주의자)
Ernest
Moderators
Atlas Legend
*****
Posts: 42,157
United States


Show only this user's posts in this thread
« Reply #101 on: April 09, 2012, 11:04:20 PM »

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).
Logged
Beet
Atlas Star
*****
Posts: 28,802


Show only this user's posts in this thread
« Reply #102 on: June 16, 2012, 04:59:24 PM »

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

Quote
You must be logged in to read this quote.
Logged
TJ in Oregon
TJ in Cleve
Junior Chimp
*****
Posts: 8,952
United States


Political Matrix
E: 0.13, S: 6.96

Show only this user's posts in this thread
« Reply #103 on: June 16, 2012, 05:45:40 PM »

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:

Quote
You must be logged in to read this quote.

But then again even that may sound completely different depending on the context.
Logged
anvi
anvikshiki
YaBB God
*****
Posts: 4,400
Netherlands


Show only this user's posts in this thread
« Reply #104 on: June 16, 2012, 06:22:39 PM »

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.
Logged
True Federalist (진정한 연방 주의자)
Ernest
Moderators
Atlas Legend
*****
Posts: 42,157
United States


Show only this user's posts in this thread
« Reply #105 on: June 16, 2012, 09:59:34 PM »

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.
Logged
Beet
Atlas Star
*****
Posts: 28,802


Show only this user's posts in this thread
« Reply #106 on: June 16, 2012, 11:18:01 PM »

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.
Logged
Snowstalker Mk. II
Snowstalker
Atlas Star
*****
Posts: 20,414
Palestinian Territory, Occupied


Political Matrix
E: -7.10, S: -4.35

P P P
Show only this user's posts in this thread
« Reply #107 on: June 16, 2012, 11:32:23 PM »

The gang of 5 have no judicial constraint.
Logged
True Federalist (진정한 연방 주의자)
Ernest
Moderators
Atlas Legend
*****
Posts: 42,157
United States


Show only this user's posts in this thread
« Reply #108 on: June 17, 2012, 10:24:35 AM »

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.

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.
Logged
anvi
anvikshiki
YaBB God
*****
Posts: 4,400
Netherlands


Show only this user's posts in this thread
« Reply #109 on: June 17, 2012, 11:27:14 AM »
« Edited: June 17, 2012, 11:36:09 AM by anvi »

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?  
Logged
True Federalist (진정한 연방 주의자)
Ernest
Moderators
Atlas Legend
*****
Posts: 42,157
United States


Show only this user's posts in this thread
« Reply #110 on: June 17, 2012, 01:30:37 PM »

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.
Logged
Beet
Atlas Star
*****
Posts: 28,802


Show only this user's posts in this thread
« Reply #111 on: June 17, 2012, 02:53:32 PM »

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.

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.

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.
Logged
True Federalist (진정한 연방 주의자)
Ernest
Moderators
Atlas Legend
*****
Posts: 42,157
United States


Show only this user's posts in this thread
« Reply #112 on: June 17, 2012, 08:22:24 PM »

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.

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.

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.
Logged
Torie
Moderators
Atlas Legend
*****
Posts: 46,057
Ukraine


Political Matrix
E: -3.48, S: -4.70

Show only this user's posts in this thread
« Reply #113 on: June 20, 2012, 09:22:16 AM »

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.
Logged
True Federalist (진정한 연방 주의자)
Ernest
Moderators
Atlas Legend
*****
Posts: 42,157
United States


Show only this user's posts in this thread
« Reply #114 on: June 20, 2012, 07:08:31 PM »

Isn't the issue as to severability, 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.
Logged
Torie
Moderators
Atlas Legend
*****
Posts: 46,057
Ukraine


Political Matrix
E: -3.48, S: -4.70

Show only this user's posts in this thread
« Reply #115 on: June 21, 2012, 09:01:02 AM »

Isn't the issue as to severability, 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. Tongue

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. 
Logged
technical support
thrillr1111
Jr. Member
***
Posts: 309
United States


Show only this user's posts in this thread
« Reply #116 on: June 24, 2012, 09:38:08 PM »

5-4 decison nothing but politics like usual
Logged
Frodo
Atlas Star
*****
Posts: 24,509
United States


WWW Show only this user's posts in this thread
« Reply #117 on: June 25, 2012, 05:09:03 PM »

The long-anticipated ruling is expected Thursday -so mark that date on your calendars.  
Logged
muon2
Moderators
Atlas Icon
*****
Posts: 16,787


Show only this user's posts in this thread
« Reply #118 on: June 28, 2012, 09:09:15 AM »

The individual mandate has fallen.
Logged
Grumpier Than Uncle Joe
GM3PRP
Atlas Legend
*****
Posts: 45,081
Greece
Show only this user's posts in this thread
« Reply #119 on: June 28, 2012, 09:12:10 AM »

The individual mandate has fallen.

Really not a surprise....
Logged
True Federalist (진정한 연방 주의자)
Ernest
Moderators
Atlas Legend
*****
Posts: 42,157
United States


Show only this user's posts in this thread
« Reply #120 on: June 28, 2012, 09:12:48 AM »

The individual mandate has fallen.

I'm hearing on the radio that it is standing as a tax.
Logged
Oakvale
oakvale
Atlas Icon
*****
Posts: 11,827
Ukraine
Political Matrix
E: -0.77, S: -4.00

Show only this user's posts in this thread
« Reply #121 on: June 28, 2012, 09:13:36 AM »

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. "
Logged
muon2
Moderators
Atlas Icon
*****
Posts: 16,787


Show only this user's posts in this thread
« Reply #122 on: June 28, 2012, 09:15:46 AM »

The individual mandate has fallen.

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

CNN initially reported it as fallen, but they are also backtracking now.
Logged
Grumpier Than Uncle Joe
GM3PRP
Atlas Legend
*****
Posts: 45,081
Greece
Show only this user's posts in this thread
« Reply #123 on: June 28, 2012, 09:21:46 AM »

The individual mandate has fallen.

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

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

Drudge reported it fell as well.
Logged
muon2
Moderators
Atlas Icon
*****
Posts: 16,787


Show only this user's posts in this thread
« Reply #124 on: June 28, 2012, 09:25:15 AM »

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.

So it looks like SCOTUS jumped to Torie's claim of a tax, and simply ignored much of the way the case was argued.
Logged
Pages: 1 2 3 4 [5] 6 7 8 9  
« previous next »
Jump to:  


Login with username, password and session length

Terms of Service - DMCA Agent and Policy - Privacy Policy and Cookies

Powered by SMF 1.1.21 | SMF © 2015, Simple Machines

Page created in 0.063 seconds with 13 queries.