Supreme Court and the Individual Health Insurance Mandate

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

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.

[True Federalist (진정한 연방 주의자)]

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).

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

The individual mandate has fallen.

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

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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?

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.

[True Federalist (진정한 연방 주의자)]

What was the problem with the Medicaid provisions, again?

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.

[True Federalist (진정한 연방 주의자)]

What was the problem with the Medicaid provisions, again?

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

Not just Roberts, but also Breyer and Kagan.