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

[Torie]

A case can be made that the SCOTUS decision is all sound and fury signifying very little. First, it is quite likely that if the mandate is struck, the whole law will not go down with it - SCOTUS will sever. Second, the mandate in place is 1) (i) ludicrously small in the amount of the "fine," and (ii) to get the votes the Dems had to excise any enforcement mechanism, so while you are supposed to pay the fine, there is no sanction if you don't (it's the honor system baby). 

So we are back to where we started. Irrespective of what SCOTUS does (which as a practical matter won't mean much probably), Obamacare will collapse of its own fiscal weight. It just doesn't pencil, either on the revenue side as outlined above, nor on the cost side. Congress will have to revisit the issue as the specter of insolvency becomes ever more pressing, and folks start chatting about the quality of the full faith and credit guarantee of the US Treasury in a more insistent manner.  And it seems that we might have to get that close to the abyss before the matter is revisited. Sad.

[Torie]

Yes, the status quo is collapse city too, which is what in part ironically drove Obamacare.  It was getting to the point that medical subsidies were squeezing money out of other programs the Dems hold dear. Buried in the mass of verbiage that nobody read at the time, there is this little rationing system that has been put in effect for Medicare down the road. Actually it is Medicare that is really sinking us, and the rap on Obamacare was that it was just putting lighter fluid on the fire, rather than containing it.

So the hunt continues as to how to ration, without anyone discerning, at least for a period of time, that in fact the emperor has no clothes.  It is all in the packaging.

I admit I have a bias here. I hate long wait times to get medical services, so rationing that way just does not suit my demanding self-centered little personality.

[Torie]

Bismarck was just a stooge of Bill Ayers, anvi. Just be thankful that you escaped whatever totalitarian hell-hole you used to live in and arrived at the land of freedom (fries).

On another note, this article chronicles just how fringe a Constitutional challenge to the mandate was deemed at the time of the law's passage- even by conservative and libertarian legal experts. This is a classic case of asking ma [SCOTUS] 'cause you didn't get the answer you wanted from pa [democratic political institutions].

If only they had packaged as a tax, where you raise taxes, and get it back as a tax credit if you buy insurance. The thing is, if the interstate clause reaches this, it reaches everything. Heck, you could be fined for not buying a Chevy Volt! So just strike the minor and toothless mandate since it is so easy to repackage it as a tax, and the law will be just about equally unworkable and bad, with or without the mandate, so just doing a severing does no real damage to the law itself. In short, there is no compelling public policy need quite yet for the commerce clause to swallow everything, and put the final nail into federalism as something mandatory rather than discretionary under the Constitution.  I think that is a killer and dispositive argument myself, if you work through the steps that way. 

[Torie]

You got it anvi.  Alice is still very much alive. Well, it is not so much the integrity of markets, but preserving the idea that the states have some residual power vis a vis the feds (aka "federalism"). Not that I am in love with the idea of "states rights," but that is a whole other Pandora's box, about which I  yet again - have a host of my own arrogant little opinions.  But I have a license to be that way.

[Torie]

I agree Alice is very much alive.  I speak to her daily on numerous occasions, in fact.  I'm just saying I don't think it can be both in this case.

Alice goes both ways here, because if the Feds can do the mandate, Constitutionally, then they can do anything that the states can do, but in the instant case, where it was revealed that reality was that it was the Leviathan - DC style - unleashed, in fact they did next to nothing. Just because something has irony attending it, doesn't make it untrue.  But next time, what they may do, unleashed, might be more than next to nothing. And they might be coming after you. 

This little exercise in Paulite paranoia lite assumes arguendo that you think the states are worth a damn. And that brings one to the race to the bottom thing, which is the Pandora's box in the closet on the other side of the hallway. They're everywhere. I need a toke - now.

[Torie]

No anvi, it is much simpler. Sorry, if my text has been a mystery within a riddle wrapped in an enigma.

If the mandate is upheld, federalism as a constitutional matter, where the power of the Feds is limited, is essentially dead, even though the mandate itself is very small beer. Now in the real world, if not having a national standard for something creates a situation that is essentially unworkable, denying the Feds the power to manage the economy in a way that absent that, we all sink into the abyss, then obviously that will influence SCOTUS (as it did during the Depression vis a vis the commerce clause). They are practical men, and don't live in a bubble, and in that sense, the Constitution is indeed a living document. But here, there is no such compelling need to finally inter federalism. There is an easy finesse, even if you think the concept that everyone should be paying medical insurance who can afford it because we have these "free" emergency rooms, and we just don't let folks die in the streets, is a sine qua non to avoiding sinking into the fiscal abyss. So at this time, there is no compelling need to effect such a radical adjustment to the meaning of the Constitution. You only go radical in the most interesting of times. This is not one of those times.

Make sense?

[Torie]

Torie, what is in your opinion the best way to have a mandate without actually having one? Make into a tax? Isn't a fine already sort of like a tax?

Yes, a tax, and yes economically the mandate is like a tax, but not legally. A tax is where you make a levy on a transaction. So you just raise taxes on everyone, and give it back in the form of a tax credit for those who have insurance. It is well settled that you can bribe folks to do something, even if the Feds lack the power to lash them into doing something. Anyway, as I have said, the finesse is an easy one here.

Anyway, almost all legal scholars agree with me on this one, FWIW. The action surrounds the reach of the commerce clause, not whether this puppy is a tax.

Addendum:  Here is a quite entertaining vignette on today's arguments, where the Solicitor General was arguing today that it was not a tax, but tomorrow will argue that it is, and the Justices basically chewed the guy up and spit him out - all of them. As I said, they just ain't going to find it a tax.

[Torie]

As a legal matter, savoring the difference between a tax and a fine, and between regulating someone doing something versus not doing something, is an acquired taste Beet. Give it time.

If the Feds can regulate doing nothing, I would be interested in knowing what remains that they cannot do (absent some other Constitutional proscription other than it is beyond the reach of the commerce clause), and how that is different than regulating doing nothing when it comes to health insurance.

If I were arguing for Obamacare, I would make job one trying to outline just how upholding it has not eaten federalism alive, because something, somewhere, remains a class of something relevant to the human condition that is not within the reach of the commerce clause. I frankly can't think of anything, but you are a smart and creative guy Beet who thinks outside the box, so perhaps you can help me here.

[Torie]

I have a question about a minor detail- Is not buying health insurance actually criminalized? Or is it merely that not paying the penalty is treated as tax evasion? I suspect it's the latter but I haven't been able to find any definitive source.

No, just a fine - with no enforcement mechanism to collect.

That wheat case involved someone doing something. I most clearly understand that you consider it a distinction without a difference.

Pity you won't take up my federalism challenge though. I was counting on you to come through for me.  I was genuinely curious as to what you might come up with.

[Torie]

Torie has pretty much hit the nail on the head with regard to what I think is the winning argument on the whole matter, so much so that there's no need for me to repeat anything.

What I would mention is that for this argument to be seriously challenged, one would need to show a clear limiting principle, such that the health care mandate, as presently structured, if allowed, can be logically distinguished from other such direct mandates down the road.  The government's brief has not done that, nor has anyone else.

I asked Beet Sam Spade to do that for us, and find where life would yet exist in the zone beyond the commerce clause (hey my failure to wear condoms affects commerce (thank God they created a fundamental liberty right after that privacy thing lost its cache)), but that challenge apparently did not excite his most active and creative brain. Maybe I should create a contest with a monetary reward for the chap who does.

[Torie]

Guys everything you choose not to do, or do, affects commerce down the line - there is no escape. If I don't eat certain foods that I should eat, as opposed to other ones, I most certainly will affect the health care market, and my cost to the system. Everything.

The ironic thing is that I by and large disdain federalism - always have, and when the Pubs start ranting about it, I just turn off the sound (I already have enough cognitive dissonance).  But I didn't write the Constitution.

[Torie]

The Reader's Digest version is that the concept of federalism is not about whether some arm of the government can force you to eat broccoli (some arm can absent something in the Constitution saying to the contrary), rather it is about whether the Feds as opposed to the States can ... just like Massachusetts  can effect a mandate to buy health insurance, but the Feds cannot - absent the commerce clause saying the Feds can do anything the States can do. 

[Torie]

So if the government subsidizes something ("free" emergency rooms), then it can force people to buy insurance to pay for it, to take some of the subsidy back? 

You guys have done the best you can I think. What you are left with is a size and importance thing. But that isn't a bright line. When does doing nothing rise to the level of import vis a vis the subsidy that it becomes interstate commerce? Interstate commerce before has never before been a function of size and importance, just about the nature of the underlying activity or lack thereof.

[Torie]

"Necessary and proper" is almost universally disdained as a road to saving the mandate. Using that prong would justify almost anything. So we are left with the fuzzy line test based on how big the elephant is. And everything we do affects commerce - from the moment we are born. Once you have two people whose activities affect one another, you have commerce. And in an economy where there are not fifty wholly autarkic economies in each state, it affects interstate commerce. So are are back to the issue of the final interment of federalism, putting aside whether or not the fuzzy line test has any attraction to enough Justices who are not quite ready to arrange for the burial service.

[Torie]

No, the bright line is between doing something versus doing nothing. The issue is whether to draw the line there, or have no line at all, or this size fuzzy line thing I guess.

Having said that, and having just done a google, SCOTUS  has (sort of) flirted with another fuzzy line test, the truly national versus truly local one, so I can see where the mandate folks will be going with this, which is where Brittain33 et al. have already gone, that this puppy is truly national. I find that fuzzy line as unsatisfactory as the size one, but that is just me.

What kind of kiss Beet?  Anyway, one thing leads to another, and before you know it, you might get a disease - or a rug rat. However, your kisses are safe anyway - it's your fundamental liberty right.

Meanwhile in other news, Justice Kennedy also asks that if the health insurance mandate now, is the broccoli mandate next?  Justice Breyer and Ginsburg rejoined with the free rider issue, although not apparently tying it to something other than a public policy concern.  Plus ca change, plus ca meme chose.

[Torie]

Well, if the judges decide to overturn this law by a 5-4 margin, the only significant binding precedent will have been Bush v. Gore for having led to the current composition of the Supreme Court. Schade.

It's clear the mandate will be overturned by this court, and considering the majority of Americans want it to go down, a 5-4 split would be ideal for GOP arguments in Nov 2012 - "if you want Obamacare, just give Obama another 4 years to shift the balance of the court."

It's true, Kennedy and Roberts may be considering how difficult Romney's path to the White House will be if the mandate he championed in Massachusetts remains in place. If they can overturn it, that removes a major obstacle to united conservative support for him in his race against Obama.

You don't really think that do you Brittain33 do you?  I mean if I were them, I would consider that an incredibly insulting comment - suggesting that they have no ethics at all, and no compunction against abusing the power of their office.

[Torie]

If I may ask, why isn't the tax argument getting any credibility?

In any case, it seems to me w.r.t. to the commerce clause at least that it would be hard to argue that the mandate is unconstitutional regulation and at the same time that the mandate is essential to the requirement that insurance companies accept those with preexisting conditions-- because the latter clearly is a constitutional regulation. So one has to either accept that the latter is somehow practicable without the mandate, in which case it must be severed, or that the mandate is somehow necessary to requiring companies to accepting preexisting conditions, in which case the mandate is necessary for the government to be able to effectively enact regulations on this market.

At tax is a charge on a transaction or property, not a charge due to the failure to do something - that is a fine.

[Torie]

Based on the updates today, it seems pretty clear that four are in favor.  The other justices are having problems with exactly what Torie and I have referenced - no limiting principle.

Most key, Kennedy is also having real issues, as I suggested above, with how the mandate affects individual liberty and individual rights.  He apparently repeatedly asked "whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden" (to quote SCOTUSblog), which suggests that he may think the mandate is unprecedented, and thus would have to meet a heavier burden of scrutiny.

At any rate, Tom Goldstein writes this:  "After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close."

Which means we're back to the limiting principle question again.  At minimum, it suggests that any holding for the health insurance mandate will be very narrow, because I don't see Roberts going very far outside the facts either, based on his questions.  Alito, Scalia seem like clear nos.  Thomas doesn't talk.

My read also is that the tax argument is not getting any credibility.

Ah, the "pressing need" exception. We shall see.

[Torie]

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Actually that is the best I have heard so far to be honest among the fuzzy line choices. It is still about magnitude in the end, but it has the element that it is demonstrable rather than more speculative as well.

[Torie]

How are Republicans going to explain how they intend to remedy pre-existing conditions returning to the fold? That is one of the top successes of the health care law. They pushed for this case and have no solutions for what to replace it with. Romney doesn't gain from this either way, it's just not an election changer.

Their insurance premiums for a certain level of coverage need to be subsidized more on a means tested basis. That is the Pub response - at least among those who are serious about the issue, rather than just demagoging for the moment for short term gain. The Pub response is more market oriented. The Obamacare edifice is wholly unnecessary to achieve the objective - and what I particularly despise about Obamacare is the cross subsidy from the impecunious young, to the less impecunious old as a general rule. The youngs will be subsidizing me for example. It's ludicrous. And any plan in the end requires some sort of rationing, but that is most pressing with Medicare.

In any event, the status quo is the pre-existing conditions folks of limited means go to the emergency room, and don't pay their bills. So they are being "dealt" with, just not in any coherent or sensible manner.

[Torie]

The idea that sick people who have no insurance can just routinely use emergency rooms for their care is false. The provisions of EMTALA only require hospitals to treat such persons if they are at severe risk of death or in active labor, and even then they need only be treated till their immediate condition is stabilized. While there are emergency rooms that treat more, it's completely legal for them to turn patients away if they don't meet these conditions, and they often do. Many people in such circumstances suffer from serious chronic conditions for long periods of time that would otherwise be treatable, but end up only being accepted for emergency room care when it's too late to successfully treat their conditions. A rather large number if American citizens lose their lives every year because of these circumstances. So the notion that we can comfort ourselves with the argument that there are only problems of economic inefficiency bedeviling our system when it comes to the uninsured is a conceit. It's a moral issue, and I think a serious one.

True enough, although the "emergency room" is packed with folks with conditions not so dire (I see now that Muon2 mentioned that above). The other backup is Medicaid - which is effectively rationed via hideously long wait times in practice all too often. I hope no one assumed I considered the lack of universal insurance (at least catastrophic insurance) to be a non problem due to emergency rooms and Medicaid, because that is not the case.  

Muon2 is also clearly right that the primary care physician system needs to be beefed up. Among other issues, we just don't have enough of those kinds of doctors and nurses. I would prefer that that be done through HMO's myself for the subsidized tranche were possible, so all the financial incentives are in the public interest, and the temptation for abuse minimized.