I have now listened to the entire presentation before the Supreme Court today and I have a few observations. First, while the Solicitor General was indeed nervous and less than nimble in his responses, he didn’t fall on his face as Jeffery Toobin would have you believe. Second, Justice Kennedy appears to need some convincing, but his tough questioning doesn’t clearly indicate how he will vote.
Kennedy’s stumbling block is that the insurance mandate compels people to do something. Namely, it requires them to engage in commerce. And it forces them to do this, potentially, against their will. He raised 10th Amendment concerns. Specifically, he mentioned that the 10th Amendment reserves certain powers to the people. In this same context, he raised an Article One question, arguing that the mandate is clearly a necessary provision of the bill, but that it isn’t necessarily a proper provision. If it isn’t proper, it’s because it violates the 10th amendment, not as it pertains to the states, but as it pertains to the people.
While this line of questioning certainly raises some concerns about Kennedy’s disposition, it should be noted that this is a phony distinction. Everyone agreed today that it would be permissible for the government to require anyone seeking emergency room care to purchase health insurance on the spot (at the point of sale). The question is only whether people can be compelled to buy insurance prior to the point of sale. When you think about this, Kennedy’s argument loses almost all of its power. His concern is about the implications of granting the federal government the power to compel the purchase of something, but he concedes that the government has that power. To say the least, it doesn’t make sense to wait until people are in a dire medical condition to force health insurance on them. I honestly think Kennedy is going to realize this. If he ultimately rules against this bill it will be because he is having trouble identifying a limiting principle that would allow the government to do this in the health insurance industry but not in other industries. And this is where the Solicitor General did not do a particularly good job.
It’s actually important that Kennedy conceded that the mandate is a necessary provision of the bill because that means he acknowledges that the mandate cannot be severed from the overall bill. The severability question will be debated before the Court tomorrow. If the mandate cannot be severed from the bill, it makes it a much bigger deal to strike it down. I think it makes it substantially less likely that Kennedy will strike the mandate.
Overall, the conservative Justices pursued a slippery slope argument. They conceded that the federal government could just set up a national health care service paid for with taxes. They conceded that people could be compelled to buy insurance. Their concern was focused less on the evil of the mandate than on its peculiar preemptive structure. They were searching for a way to isolate the forced purchase of insurance so that it would not lead to a precedent for other kinds of forced purchases.
Some observers came away thinking that Chief Justice Roberts was less skeptical of the mandate than Justice Kennedy. I’m not sure I agree with that. He asked less pointed questions about it, but I think people are making too much of Kennedy’s aggressive line of questioning and ignoring other comments he made along the way. For example, at one point (page 24) Justice Kennedy said that since Congress can just set up a single-payer system paid for with taxes maybe they should be given some latitude.
Don’t let Toobin freak you out. No one knows how this will shake out.
I suppose that means they realize that overturning the law would make “Medicare for All” a likely, if not inevitable, outcome?
if they throw out the ACA, health care reform is dead in the water.
The predecessor of this was “HillaryCare”. Without Clinton’s push for national healthcare, Obama would not have been able to push thru HCR.
Same thing applies to DADT. Without the step forward of DADT, the repeal and eventual service of GLBT would be 20 years away.
If we have to wait another 10-15 years, so be it. If this gets gutted, in 5 years the screamers of the TeaParty will be crying in their beer for something like it … or they’ll be dead. 5 years after that, will be the next big push.
i’m 41 years old, I’m getting married this year, I have one kid already (canadian, so he gets wonderful health care), and we’re planning to have a couple of our own. I’m in the middle of planning for a small business we expect to open in 2013. I can’t wait another 10-15 years.
This said by someone who doesn’t like the mandate to buy private health insurance and would have prefered a public option, but has finally said “fuck it, just gimme my goddamn health care.”
What? When did you pop the question? Congratulations!!
We’ve been engaged for a year. She moved to NY and that screwed the schedule. then we both lost our jobs and THAT screwed the schedule. Now we’re in the middle of planning the brewery (yes, i realize I’m an elitist and out of touch by doing so), and we’re hoping to have a building by October. That way, we can have the wedding on-site.
At this point I’m so tired of waiting, i’m ready to sew the dress myself, bake the cake, and take myself out to my own bachelor party.
Sweet. We gotta talk about this brewery, too.
your elitism’s showing.
we had our first pour this past weekend for the Fishtown Neighbors Association (fishtown is very elite, as you know). Christina made this incredible lavender saison.
Fishtown? Isn’t that around Germantown Pike .. by Magarity Chevy?
Or until the next pandemic.
Because tort reform is a sovereign remedy against pandemic ‘flu.
Inevitable, when? 20 years from now? Probably. Not any time in the next few years, though.
But the health care and health insurance markets are in a serious mess without the ACA. Health care inflation goes back through the roof. The number of uninsured keeps growing. Without the ACA, there is still a screaming need to at least patch up the holes.
That’s not say, “…so therefore, Medicare for All is inevitable,” but health care reform goes right back on the agenda in a short amount of time.
Yet costs have been going up for how long? And I am surprised no one has mentioned the U.K. Where they are going ass backwards as Cameron is in the middle stages of dismantling the NHS.
How is “Yet costs have been going up for how long?” supposed to be a rebuttal, in the face of the HillaryCare and ObamaCare episodes.
Yup, health care costs have been skyrocketing for a couple of decades, and in that time, health care reform has been a top-tier issue in our politics. Thus demonstrating my point.
In the UK, their health care situation is soooooo under control (How under control is it?) It’s sooooooo under control that it’s possible for other issues, like the budget, to take precedence over it.
Yup, health care costs have been skyrocketing for a couple of decades, and in that time, health care reform has been a top-tier issue in our politics. Thus demonstrating my point.
And it’s been addressed(once successfully .. once not) twice in the past 20 years plus. So, I don’t see Congress actually addressing it for a while again. I’ll be happy to be proven wrong though.
Once again it all depends on how honest and how competent the Dems and liberals turn out to be if the mandate is struck down. It would be easy for Obama/Dems to hold up all the benefits that the court took away — we’d be back to allowing insurancecos to cherrypick their customers and eliminating sick people; taking away insurance from student-age people; either raising taxes or making it explicit that the uninsured are just left to die. Just for starters. The Dems could also point out that they wanted a much better system like Medicare for all, but the mandate was the best they could get out of the Republicans.
Are the Dems motivated to make this into a fight and go up against the insurancecos? That is the question. If they’re finally ready to rumble, a bad court decision could be the catalyst needed to get to where we should have been in the first place.
What I don’t know is, would the money for the reform still be available, or would it go away? If it’s still there, the ability to give states a exemption to use the funds to try their own system might be a godsend. Maybe it’s a way, state by state, to get people used to a system that actually works without the individual mandate.
First, while the Solicitor General was indeed nervous and less than nimble in his responses, he didn’t fall on his face as Jeffery Toobin would have you believe.
I don’t know, Boo. Watching the Twitter machine today, even staunchly pro-ACA people think the SG did a very crappy job. He wasn’t even prepared for the kind of questions the wing-nut justices were likely to throw at him. And Toobin will lose all credibility if it is upheld, not to mention anything more than a 5-4(with Kennedy among the 5).
Perhaps there are those who believe that the SCOTUS striking down the ACA is “no big thing”. If we have to wait another 10-15 years, so what? What happens to the millions of kids with preexisting conditions who now have coverage thanks to the ACA? What about the young adults who are still covered by their parents insurance? What about the women, like my friend who is a breast cancer survivor who can finally get insurance that she hasn’t had since the 1990’s? Surely “liberals” or “progressives” who say “let them die” (because many surely will) can’t denigrate the so-called “compassionate conservatives” in their hypocrisy.
We can get them a commemorative stamp — if there’s still a post office.
Or a monument on the Mall — something tasteful, and not too flashy.
Surely that’s enough.
You can’t tell anything from the arguments. Toobin has always been a bit of a screamer.
Didn’t Toobin recently write a book on the Supreme Court? Or was that Turley?
I think one of them did. I now get them confused. One or the other has a hissy fit on tv and it’s hard to tell them apart.
Yes
If the whole health care law is struck down, what we’ll get, as soon as Republicans completely take over, is the complete GOP wish list: tort “reform,” loser pays, insurance across state lines (meaning one state in the union will be to health insurance what South Dakota is to credit cards, with the most lax regulation, and all health insurance will come from there)…. None of it will solve any of the problems, but the frog will be boiled slowly, so it will a gradual adjustment for Americans to the notion that health care is a problem that, gosh, simply can’t be solved, kind of the way gun violence simply can’t be solved (even though it actually could be if we had reasonable gun laws like every other civilized country on the planet). We’ll just get used to less. Widespread health insurance will simply become a relic, like widespread defined-benefit pensions. If you had insurance for a while, you’re grandkids will think you had it soft.
It’s more instructive to oneself to remember the SCOTUS is not home to softball questioning. It is by definition supposed to be some of the toughest questioning on some of the most complex issues our society can throw at it.
Losing the mandate would be harsh but winning without a strong, intelligent fight might be a greater loss.
Vain fortunetellers like Toobin will spew self-serving dourness on tv, and the Chicken Littles of the nation will lap it right up. Purely transactional. Supply and demand.
The law will die a thousand unconstitutional deaths between now and June, before Anthony Kennedy and his clerks put the matter to rest. One way or the other.
I agree folks shouldn’t let Jeffrey Toobin panic them. In fact, I really think Toobin ought to know better than think he knows where Kennedy is going — much less where he’ll end up — based on the questions he asked. Kennedy may have wanted to press on the government’s case to identify the weak points and hear the arguments to deal with those weak points.
Anyway, that’s what I’m hoping. {sigh}
Seems to me the slippery slope reasoning is just intellectual game playing. Kennedy and Roberts both noted that health care is a unique market. I guess Social Security and Mecicare are in danger also. When did I get a choice to contribute to programs I may or may not eventually use? What’s the friggin’ difference, other than those are government administered benefits?
What’s the friggin’ difference, other than those are government administered benefits?
You just answered your own question. Technically, Obamacare is not a government administered benefit. Not like Social Security and Medicare are.
Yes, but what is the legal distinction? How does money coming out of my paycheck which goes to the government – against my will theoretically – differ from money going to a private enterprise? Both are insurance policies. Mind you, I would enthusiastically embrace single payer, but politically that seems not to be an option. What says that source of insurance has to be government administered to not be an unconstitutional mandate?
The distinction is that the money coming out of your paycheck for a government program is a tax. In principle you have control over that through your representatives.
The money that you pay to private insurers is still a premium. You have zero control over that except through comparison shopping. And the bafflegab in insurance company plans makes it almost impossible to do comparative shopping. Thus the exchanges part of Obamacare – plan information comparable on an apples-to-apples basis. (Except that states will be setting up exchanges and who knows what will come out of that meat grinder.)
In 1992 I went to work for Prudential Insurance which at the time was a mutual company (Policy holder owned not one of today’s shareholder/CEO oriented beasts). Prudential at the time owned and operated their own health care company and in 1994 our Administrative people took a good hard look at the Health Care insurance market and came to the conclusion that down the road some 10-15 years the business would not be viable. It would no longer be a money making venue for us unless we were to engage in some very deceptive practices which basically they felt were dishonest (imagine that!). So…they sold off the Health Care unit and we employees were left singing the blues.
I hate supporting the profits of Insurance companies who are only in the business of increasing the bottom line but at this point we have no better choices. There is no single payer out there to turn to and Canada won’t allow me to join their system so I guess I am left to root for the ugliness we have created that is now being debated by SCOTUS.
I don’t know that it would be as hard as most think for the Dems to make the case that, OK the mandate has been shot down, so the only way to have decent healthcare for Americans is to end it and replace it with a tax-paid system. A negative SC decision would go a long way to make the issue simple again.
I’ve always believed that the individual mandate was forced by Republicans for two reasons: it’s big money for the insurancecos, and its forced subsidy to hated corporations goes against the grain in people (including me) across the political spectrum. Get rid of it and the most effective argument against Obamacare is gone, and the prospect of going back to the bad old days is starker.
Everything really depends on how willing the Dems/liberals/lefties are to put up a smart, all-out fight to lose the mandate and keep the promise of an American healthcare system that works. The odds are not nearly as bad as the handwringers want us to believe. The big question mark is our side’s motivation to go to war for it. Does any significant political force really care if we change for the better?
There are essentially two things that have to happen to create a tax-paid system from the current system.
And there might need to be some administrative changes in the procedures covered.
And certainly the contracts to insurance companies for doing claims processing for Medicare will have to be expanded. Unless the government is going to bring that work back into the civil service.
Just as a hedge on the Supreme Court decision, please circulate this petition.
Universal Healthcare Without Individual Mandate
Outrageous! They did NOT concede that people could be “compelled” to buy insurance! This truly shows the dishonesty of your position…don’t want to buy car insurance…then don’t drive…don’t want to buy homeowners insurance…then rent…the Individual Mandate gives no opt out…and please do not use the B—S— argument that, “well we all use it eventually”…we don’t all use it equally! I have not been to a doctor since my Mom took me to get vaccines when I was twelve…like I told you Boo, there are different approaches to health care…the death knell for the individual mandate was the numerous and brilliant analogies put forth by counsel representing the states…but please be honest in your representation…there is no “compulsion. To get any other kind if insurance…you can opt out of driving or owning a home…you cannot opt of existing…unless you make suicide legal, of course…
Jesus Christ. You come on my blog and call me a liar?
Here. This is the Solicitor General talking to Chief Justice Roberts. Pay attention to the part I bolded:
Read more:
When he said that they all agreed that’s because they all agreed earlier. It’s because Clement, arguing for the plaintiffs stipulated to that fact.
If you want to call me a liar, make sure you have a rational basis for it.
I did not call you a liar…that term implies a character flaw, someone who is habitually dishonest…I believe you are a generally a well-meaning, sincere person…but what does the phrase, “insurance at the point of sale” mean…I would argue that the very definition of insurance precludes buying at “point of sale”…
For the purpose of this debate, buying insurance at the “point of sale” means that all parties agree that it would be Constitutionally permissible for Congress to mandate that anyone seeking health care treatment have insurance at the time they receive that care, and if they don’t have any, that they be compelled to buy it right there on the spot.
Why?
Because Congress can say that all health care transactions must be paid for with insurance and not in cash.
Why is that?
Because the health care industry is national and because Congress has absolute power to regulate interstate commerce in almost any way that they see fit.
Now, it would be immensely stupid to make such a law for a wide variety of reasons. That didn’t prevent Clement from advocating it. But you and I can agree that you can’t do anything much stupider than to take someone having a heart attack and ask them to sign forms, or to ask an insurer to agree to pay their bills when they haven’t received a single premium. But that’s not the point.
The point is about constitutionality. Congress could make such a dumb law. The question is whether they are permitted to make a much saner law that asks people to buy insurance and to pay a tax penalty if they fail to do so.
I’ve got to give props to the attorney representing the states…not only were the analogies insightful, but he linked several of them directly with past Supreme Court decisions! The best one…instead of creating a central bank to ensure the stability of the banking system…pass a law requiring every one to deposit a certain percentage of their asset in a bank! After all, more people use the banking system in one form or another than use the health care system…
Boo…at the point of sale, the point at which you engage in commerce…if there is an “insurance requirement” at the time in which you choose to buy the service that you were insuring against…you are just paying for the service, or being denied the service…his entire point was that the insurance mandate is only constitutional of applied once you engage in commerce, I.e. you go to purchase something (I.e. actual health care services)…I apologize if my wording was belligerent, but I truly felt you were not entirely representing the spirit of this exchange…)
Right.
So, if you are uninsured and you accidentally cut off a finger while playing with your lawnmower, when you show up at the emergency room it would be constitutionally acceptable to deny you care until you first purchase health insurance. Note that under existing law that it would be illegal to make such a requirement. But even though it would be illegal, it wouldn’t violate the Constitution.
I know that is confusing, but all parties agreed that it is true.
So, given that, no one is arguing that there is something constitutionally wrong with compelling people to buy insurance (even if they will die if they don’t).
And if you can compel the purchase of insurance under penalty of death, they you ought to be able to compel under penalty of a tax.
That’s the point…the logical extreme of the “insurance requirement” at point of sale argument is denying emergency treatment if you cut your finger off…what that have to do with insurance…what if I don’t buy insurance, and I don’t cut my finger off? You know it’s not a tax…it’s penalizing someone because of what might happen…look at the bright side…it makes Romney look even weaker if they rule against the individual mandate…
More like, what will inevitably happen to any person who breathes air.
Good God, man. You live in a world covered in bacteria. Every single breath you take takes in thousands of bacteria, plant spores and dust. The cells inside you are under assault from mutagenig radiation from the monitor you are looking at this from. The ground you are standing on is slowly grinding against itself and may be one crack away from shaking. The atmosphere is swirling aroundo form st itself and drawing up the energy to form storms. If you slip gravity slams you to the ground whether you are a Randian or not
Pretending that you won’t need health care is so freaking dumb its beyond idiotic. Thats why every sane country spreads the cost around as everyone needs it at one time or other.
Notice how you shifted the argument?
Stay focused.
Just because it is a logical extreme has zero impact on its implications for the constitutionality of the mandate.
Everyone agreed that the government can compel you to buy private for-profit health insurance as a prerequisite for receiving care. No one would actually do that, but they could do it.
So, what does that mean for requiring you to buy insurance when you are not seeking care? As Kennedy ruminated, maybe they should grant the government that latitude.
If people don’t want to buy the insurance, I suppose they do have another option. Pay the fine. How much is it anyway? Then when they hurt themselves or get sick they can go to the emergency room, and pay again of they can afford to. Not so different from now, except more people will opt for having insurance.
That’s the very interesting thing about the legislation. The penalties are not specific and they are supposed to be collected by the IRS.
It’s beginning to look to me that what is going on is (1) passing legislation that was supposed to get Congressional support from Republicans because it was essentially framed by the Heritage Foundation and written by a healthcare industry insider; (2) Republicans decided to be the “party of No” and legislation passes anyway; (3) Republicans push the issue and take individual mandate (the key Heritage Foundation concept) to court; (4) the Supreme Court rules the Heritage Foundation “privatized” plan unconstitutional and asks rhetorically why the government didn’t pursue direct funding from taxes (single-payer).
Romneycare does not become unconstitutional because states have different constraints in the Constitution than does the federal government.
Take some time to figure out where that goes politically. (All right for Massachusetts; shouldn’t be national)
Boo. You sound nervous. Where’s that bravado and arrogance suggesting how right and righteous you and Obama the Good have been all along? What about this comment you made about “silly talk about unconstitutionality”?
Your tone has changed significantly. The Health Insurance Shepherding Act of 2010 (euphemized as Health Care Reform or HCR or Obamacare) is unconstitutional. Just like the government cannot and should not force me to purchase cable TV, the gov’t should not and cannot force me to purchase Blue Cross, regardless how “good” the outcome is for “20 million people.”
End of story. This law will be struck down. This is politics, not some feel-good story about the social climber who moderated til the cows came home and got “something done.” That “something” turned out to be a disaster. And this decision will precursor the election in a demonstrative way.
Yes, I understand that Obama should be reelected because he’s so “good” and everyone else…isn’t. But so the eff what!
Arrogance! Those chickens are coming home to roost and your condescension will need to be reassessed.
You won’t respond to this because my comments are beneath your contempt but so it goes. If I sound cheerful, it’s only because I was called “stupid” by you and your coterie of fellow worshipers and I see clearly where this trashy bill is going.
Keep spinning, dude. Keep spinning. You see where this is going, too.
Wow!
Sadly, you’re wrong.
The government can’t compel you to buy cable television but they can compel you to buy health insurance. All parties agreed to that during yesterday’s hearing. If you doubt me, read the parts of the argument I cited elsewhere in this thread.
The government can also conscript your ass and send you to Afghanistan where you might very well be maimed or killed.
You might be right that the bill will be struck down. I don’t really know. But you don’t understand the issues.
Boo, you do know but your claim of naivete rings hollow.
You’re depending on Justice Kennedy to uphold this “reason” that you and Obama adore?
Times have changed. Isn’t Kennedy the justice who said simmering to the effect of, “there is no evidence that money corrupts elections”? Uh-huh…get a clue!
Yeah, I may not understand your “issues,” but I do understand the politics in this modern era that had left you and all your righteous wisdom behind.
Again, stop talking down to people. That’s the problem with all you Democrats these days. Until you figure that out and gain some humility, you (and we) will continue to lose where it really counts.
At some point in history I obviously hurt your feelings. I’d apologize for that, but I just have an impression that you’ve made a lot of abusive comments about the president and about me, and I don’t think I did anything wrong in responding to you brusquely and dismissively. But you’re right that people, including me, should remember to be humble. In that spirt, I offer you the following for your consideration.
Boo, for what it’s worth, I accept your apology.
However, you are changing the subject and remain obtuse to the truth. As much as youd like to make this about me amd brush this under the Democratic carpet, it won’t work. This is politics and has nothing to do with the Democratic interpretation of feelings that you derive from your fancy-pants textbooks. You can’t see the forest because you’re so busy trying to save it.
I don’t really care how brusque you are with me. Contrary to your interpretation of me, I can handle myself and do well, considering.
This is about you Democrats and elitist indignation. Just because I don’t hold your or Obama’s lofty self opinions in any regard doesn’t make me “silly” or “stupid” or any other epithets you bandy about by you with self-awareless conceit.
This is a an epic struggle. Half measures and tempered reason and timidity will never work today as they might have i’m years gone by.
All that nonsense about “hearts and minds” doesn’t stop at the borders of whatever war Democrats not quite advocate yet not quite condemn. You Democrats have no convictions past the next election.
I didn’t apologize. I explained why I am not apologizing. I have no intention of going out of my way to be a dick. But I’m not sorry.
That’s fine. But you and your fellow dems soon will be.
Still you ignore the major thrust of my argument. I expect nothing less from you.
The thrust of your argument is that you know what is going to happen better than I do. How am I supposed to respond to that? Maybe you do, maybe you don’t. It’s a hard argument to win when I’m not making a very strong prediction.