Individual Mandate and ACA in Trouble

36 Comments

1. 

   meh on August 12, 2011 at 2:39 pm

   “Not to get too into the legal weeds, but worth remembering that the rulings by the 6th and now 11th Circuits on the constitutionality of the health insurance mandate were each by three-judge panels of those courts. The three-judge panels get the first and usually only stab at most cases on appeal. But in legally and politically significant cases, the entire appeals court may decide to hear the case en banc. The en banc decision trumps the three-judge panel. So this may not be the last word on the matter from either circuit.”

   –David Kurtz at TPM

2. 

   MNPundit on August 12, 2011 at 2:51 pm

   We’ve heard no rumors about this from the 6th. It’s possible both just want to get it over with an just want Kennedy to decide.

   TPM has a note from a lawyer who is incredulous at the change in precedent brought about by the rightists appointed to the judgeships.

   Perhaps it’s time to link to some defenses of the individual mandate?

   • 

     seabe on August 12, 2011 at 2:56 pm

     Here’s one from a lawyer at AS (there’s plenty of others, but it’s just the most recent):

     As a lawyer, I believe there are genuinely held ideological objections to the notion that the U.S. population should have universal health care, but I submit that there is no legitimate argument that the Commerce Clause does not empower Congress to regulate the direct payment of health care costs – – an industry equal to an estimated 1/6th of the U.S. economy and a line item cost that is factored into the overwhelming majority of every product and service provided by businesses and service firms throughout the country.  The pages of arguments against HCR’s constitutionality based on notions of a “slippery slope” to a Congressional dictatorship and/or a “parade of horribles” that the federal government could force you to “eat your broccoli” are logically and legally incorrect.  But that point has been extensively set forth on your site (and others).

     What I think is the interesting and overlooked point is that this HCR “constitutional” debate only exists because the Obama administration chose in legislative arguments and bill drafting to characterize the enforcement mechanism as a “penalty,” and did not dare use the word “tax.”  No one disputes that the federal government’s taxing authority would allow it to tax individuals who did not purchase health insurance (or to issue a “tax credit” to those who did).  And if HRC was presented as an issue of the government’s taxing authority, there would be no constitutional question.  None at all.

     On that point, in the article you posted, Robert Levy (Cato Institute) quickly and early dismisses the taxing authority basis for HRC, arguing that “[t]he Taxing Power rationale hasn’t garnered support from any court – principally because the penalty was neither intended nor structured as a tax.”  Notably, he does not, and could not (plausibly), argue that HRC was not perfectly “legal” under the taxing authority of Congress.

     Now, despite Mr. Levy’s quick dismissal, it is not clear that HCR’s enforcement mechanism is not a tax, and the Obama administration has argued vigorously in courts that it is a tax.  But, in the end, what is clear is that the ongoing and voluminous debate about whether Congress had the power to enact HCR, and whether the U.S. (like all other Western countries) could democratically vote to have universal health care,  only exists because it was politically impossible in the current Republican environment to use the word “tax.”  If HCR had said a “tax” would be imposed, instead of a “penalty,” this issue would never be debated, much less a greatly anticipated Supreme Court ruling on the Commerce Clause.  

     So, at bottom, this HRC “debate,”  like the last threatened government shut down, and the debt ceiling crisis, is really the product of the Republican lock-step insistence that there be no tax increases or elimination of tax deductions – no matter the merit of the position.  And, again, this is not about purity on tax issues.  Republicans have effectively captured the tax issue as a tremendously effective tool to enact or block a score of non-tax ideological issues.  In this case, it has been to complicate and potentially block a universal healthcare bill.  But there is no “constitutional” reason that the U.S. could not have universal health care.  

3. 

   TarheelDem on August 12, 2011 at 2:53 pm

   Given how long it will take to get to the Supreme Court, unless they pick it up this term, the constituency for the bill that has already been implemented will be so large that there will be a backlash to the Supreme Court ruling unconstitutional the ACA.

   Keep these words handy.  “Medicare for all”

   • 

     RT on August 12, 2011 at 3:53 pm

     Keep these words handy.  “Medicare for all”

     Amen.

4. 

   RandyH on August 12, 2011 at 3:07 pm

   If only this piece is repealed, couldn’t it be fixed by a bill amending the law so that if people don’t elect to buy from a private insurer then they must by a plan administered by the government? They did not say that you can’t be required to buy something from the government, just from private industry.

   In other words, fix it with a Public Option (run like Medicare) in the insurance buying pools.

   • 

     BooMan on August 12, 2011 at 3:10 pm

     Yeah, the likelihood of that happening are about nil.  

     • 

       Anonymous on August 13, 2011 at 7:07 am

       But what happens if only this piece is repealed?

       I’d love a Free Ride on the insurance companies, until I drove them out of business ….

5. 

   joe from Lowell on August 12, 2011 at 3:09 pm

   Do you think Clarence Thomas would appreciate a big ol’ tub of farm-fresh, delicious, hand-churned butter for his birthday?

6. 

   ivor ulfsson on August 12, 2011 at 3:30 pm

   Without the public option, ObamaCare had no teeth anyway.

   Health ins. premiums have gone up an average of 35% since 2009; by 2014, probably 100%.  It would have been amoral to force the poorest members of our society to pay $500 a month for private health ins. (and make it a punishable offense.)

   That’s just obscene when you consider that most countries (both rich and poor) offer their citizens free medical care.

   • 

     joe from Lowell on August 12, 2011 at 4:31 pm

     It would have been amoral to force the poorest members of our society to pay $500 a month for private health ins.

     …hence, the tens of billions of dollars in subsidies for them.

     • 

       ivor ulfsson on August 12, 2011 at 7:54 pm

       …which is why big Pharma loved the Individual Mandate: billions in gov’t subsidies in THEIR pocket.

       • 

         joe from Lowell on August 13, 2011 at 10:19 am

         Sort of like how food stamps are billions in government subsidies for Big Grocery.

         And how Unemployment Insurance is billions in government subsidies for Big Mortgage.

         And how the tax credit for hybrid and electric cares is billions in government subsidies for Big Auto.

         Oh my goodness, Gloria, if we help poor people afford things, they’re going to buy things!  From somebody!

7. 

   gideon on August 12, 2011 at 3:38 pm

   I have not read the opinion yet, but others are saying that the court ruled the mandate WAS severable.

   http://www.washingtonpost.com/blogs/ezra-klein/post/health-care-law-individual-mandate-ruled-unconst
   itutional-by-11th-circuit-federal-appeals-court/2011/08/12/gIQAq1OSBJ_blog.html#pagebreak

   • 

     gideon on August 12, 2011 at 3:39 pm

     Oops never mind.  I thought your post said otherwise.

   • 

     TarheelDem on August 12, 2011 at 4:02 pm

     It better be severable.  There was an explicit section on severability in the original Senate bill.  If it got taken out, someone has a lot to answer for.  Incompetence or venality, take your choice.  I don’t know how severability ever became at issue.

     • 

       on August 12, 2011 at 4:06 pm

       Plus, someone knows who took it out, or they had damn well better. When you log in, they know who you are. And somebody had better be saving versions in a numbered, ordered manner. Thus, the identity of the responsible party is known. All that is unclear is why this is not public knowledge.

     • 

       mainsailset on August 12, 2011 at 5:01 pm

       Huge mistake, they left severability out

       • 

         TarheelDem on August 12, 2011 at 5:15 pm

         It was in the original version.  Time to ask who took it out.  This is a standard procedure in writing legislation.  You always include a severability clause.

         Someone is guilty of malpractice.  Is it you Mr. Baucus or you Mr. Reid?

8. 

   seabe on August 12, 2011 at 3:42 pm

   What’s most troubling to me is if, as David Dayen says, the SCOTUS takes it up around June…right before the conventions.

   • 

     TarheelDem on August 12, 2011 at 4:04 pm

     That would be perfect.  If the individual mandate is the only part that is ruled unconstitutional, there are only two ways to go: Medicare for all or high insurance costs.  If you were a voter, which would you pick?

     • 

       seabe on August 12, 2011 at 4:07 pm

       I suppose there might be ways the president could threat that needle, but it would look like a huge defeat of his first bill.

       • 

         seabe on August 12, 2011 at 4:07 pm

         thread*

       • 

         MNPundit on August 12, 2011 at 4:09 pm

         Wouldn’t his first bill be the stimulus? Most people think that’s failed.

         (ED: I know it worked after a fashion.)

         • 

           seabe on August 12, 2011 at 4:16 pm

           I meant first bill as in first health care bill.

       • 

         on August 12, 2011 at 4:10 pm

         And so why is Obama and the Democrats NOT rallying public support? This has been the mystery all along. The bill has much to like, much that is good, and some that could be stronger. And yet, no campaign to build support. WHAT THE FUCK ARE THEY THINKING ABOUT THERE?  Thousands of attacks from Repukeliscum and no defense. Little wonder that that there are issues of public support.

         (0 + -1000) / 2 = -500

         • 

           TarheelDem on August 12, 2011 at 4:19 pm

           Village disorientation syndrome would be a good diagnosis of why.

           When you are looking toward an election that might cost $2 billion before it’s done, you go a little crazy and do strange things to finance your campaign.

         • 

           MNPundit on August 12, 2011 at 5:40 pm

           When has there EVER been a sustained campaign from the WH to rally public support for anything they’ve done? There are moments, but they never last. Partially this is because they never get the rest of the elected Dems on the bandwagon (whether because they don’t or can’t). But this administration plays an inside game and that seems to be as far as it goes.

     • 

       Davis X Machina on August 12, 2011 at 7:55 pm

       Which one screws over people I don’t like, look like or sound like?

       PS I don’t care if it screws me over in the process. This is America…

9. 

   ishmael on August 12, 2011 at 4:42 pm

   If the SC kills ACA it will make Obama look very stupid. He would have wasted all that capital on passing a version of health reform that became a victim of demagoguery. If they had referred to the mandate as an outright tax this could all have been avoided.

   Oh well. To be honest, we all know ACA is a band-aid. Time to promote what will actually work.

   • 

     TarheelDem on August 12, 2011 at 4:57 pm

     And someone needs to lay it fully at the feet of Max Baucus.

     • 

       Davis X Machina on August 12, 2011 at 7:57 pm

       We’d be waiting for the first weeks of Obama’s third term term for any bill if the funding mechanism was called a ‘tax’ — which it is.

       As it was, it barely squeaked through

10. 

    jsfox on August 12, 2011 at 5:26 pm

    You might want to read the dissenting opinion from a conservative judge on the panel. It could give some insight on how SCOTUS might rule.

    In a blistering dissent, Judge Stanley Marcus, also a Clinton appointee but a Republican originally nominated to the federal bench by Ronald Reagan, intimated that his colleagues were legislating from the bench. “Quite simply, the majority would presume to sit as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly,” he wrote. “This approach ignores the wide regulatory latitude afforded to Congress, under its Commerce Clause power, to address what in its view are substantial problems, and it misapprehends the role of a reviewing court. As nonelected judicial officers, we are not afforded the opportunity to rewrite statutes we don’t like, or to craft a legislative response more sharply than the legislative branch of government has chosen.”

    http://tpmdc.talkingpointsmemo.com/2011/08/circuit-court-rules-health-care-laws-individual-mandate-u
    nconstitutional.php?ref=fpb

11. 

    The Voice In The Wilderness on August 12, 2011 at 6:33 pm

    I’m surprised to see no comments on the Postmaster-General’s threat to stop delivering the mail on October 1 unless Congress nullifies the union contract he just signed a few months ago thus allowing him to strip health insurance half a million workers and their families, while adding 120,000 people to the unemployment roles.

    I would have thought there would be some comment from “a Progressive Community”.

12. 

    Quiddity on August 12, 2011 at 7:20 pm

    Obama’s failure to get judges on to the Federal courts, through delay* or lack of fight once a nomination is made, will endanger progressive politics for a generation.

    * especially in his first two years in office.

    • 

      Suranis on August 13, 2011 at 12:11 pm

      Please, tell us how he was supposed to get such nominations through a deadlocked Senate.

      Bonus points for good descriptions of the superpowers involved.