United States v. Health Care Reform
March 27, 2012 12:55 PM Subscribe

This morning marked day two of marathon proceedings in what's likely the most momentous and politically-charged Supreme Court case since Bush v. Gore: the effort to strike down President Obama's landmark health care reform law. While yesterday was a sleepy affair of obscure technical debate, today's hearings targeted the heart of the law -- the individual mandate that requires most Americans to purchase insurance by 2014. With lower courts delivering a split decision before today, administration lawyers held some hope that at least one conservative justice could be persuaded to uphold the provision, which amortizes the risk that makes universal coverage possible. But after a day of deeply skeptical questioning by swing justice Anthony Kennedy and his fellow conservatives [transcript - audio], the mandate looks to be in grave trouble, with CNN legal analyst Jeffrey Toobin going as far as calling the day "a train wreck" for the administration. But it's far from a done deal, with a third day of hearings tomorrow and a final decision not expected until June.
posted by Rhaomi (371 comments total) 24 users marked this as a favorite

I'm wondering if we can ever have meaningful reform if the mandate is struck down, since the Republicans have disowned the one reform option (the mandate) that they ever really considered.

And I'm curious as to how my liberty is improved by having to pay an "invisible" tax to cover those not covered by insurance.
posted by sutt at 1:02 PM on March 27, 2012 [3 favorites]

I never thought of just not getting any insurance until I got sick. Interesting.
posted by amazingstill at 1:06 PM on March 27, 2012

The only conservative justice who looked like he might uphold the law was Chief Justice Roberts

Whoah.
posted by KokuRyu at 1:06 PM on March 27, 2012

O' Canada....
posted by Fizz at 1:08 PM on March 27, 2012 [3 favorites]

If the entire act is struck down, which seems fairly likely at this point, what will be the GOP's main platform this fall? Obamacare will have already been repealed. Would Obama have to face impeachment charges if he enacted a law that was ruled unconstitutional, thus being in violation of the Oath of Office?
posted by sharkitect at 1:08 PM on March 27, 2012 [1 favorite]

The people who will cheer the loudest if HCR gets struck down will bitch the loudest when their insurance company fucks them over.
posted by Legomancer at 1:09 PM on March 27, 2012 [44 favorites]

Would Obama have to face impeachment charges if he enacted a law that was ruled unconstitutional, thus being in violation of the Oath of Office?

*stares*

Wait. Do you think maybe this is the very three-dimensional chess they've been playing all along?
posted by EmpressCallipygos at 1:10 PM on March 27, 2012 [2 favorites]

I don't even know who to be angry at anymore. The Republicans for smugly shifting the goalposts, the Democrats for falling for it, Obama for just-enoughism, the Justices for craven partisanship. This whole process has gone so horribly, comically wrong at every step. When future generations look up the word "clusterfuck" in their hyper-dictionaries, there will be a stippled illustration of Health Care Reform beside the entry.

Yes, hyper-dictionaries will include both "clusterfuck" and stippled illustrations.
posted by saturday_morning at 1:10 PM on March 27, 2012 [34 favorites]

Tha Carter II
posted by Blazecock Pileon at 1:11 PM on March 27, 2012 [2 favorites]

Yes, hyper-dictionaries will include both "clusterfuck" and stippled illustrations.

No illustration yet, but the OED has included "clusterfuck" since 2004, and the first attested use of this sense was in 1969.
posted by theodolite at 1:13 PM on March 27, 2012 [6 favorites]

We absolutely need healthcare reform.

Walmart gets better prices on everything it sells because it is the world's largest purchaser from most sellers.

A single payer is a single negotiator.

That being said...establishing the precedent that Congress can forced you to buy something is pretty scary. What happens when all of us have to buy stock in Halliburton to finance defense and fund our own social security replacement program?
posted by jefficator at 1:13 PM on March 27, 2012 [21 favorites]

If the mandate goes, does the required selling to individuals with pre-existing conditions?

If the mandate goes, does everything else get rolled back? or brought to the Supreme Court in a piecemeal fashion?
posted by DigDoug at 1:14 PM on March 27, 2012 [1 favorite]

No illustration yet, but the OED has included "clusterfuck" since 2004, and the first attested use of this sense was in 1969.

I prefer "jumblefuck".
posted by josher71 at 1:15 PM on March 27, 2012 [2 favorites]

If the mandate goes, does the required selling to individuals with pre-existing conditions?

That's going to be argued in the Supreme Court tomorrow.

Note that, even if the mandate is ruled unconstitional, 'single-payer' systems at the federal level would still be constitutional (like Social Security). Another idea I just had is for the federal government to do an end-run around their limit of powers by dangling a big carrot in front of states that institute their own mandates, and a big stick behind states that don't (similar to what they do with transportation money). Of course if this gets overturned, I don't think there will be any political capital to get meaningful reform for another 20 years.
posted by muddgirl at 1:18 PM on March 27, 2012 [3 favorites]

When future generations look up the word "clusterfuck" in their hyper-dictionaries

What future generations?
posted by tzikeh at 1:18 PM on March 27, 2012 [20 favorites]

But why isn't the fact that we're forced to pay for uncovered patients, through increased costs in general, as outrageous or moreso than forcing those people to pay something, even if it's only a penalty?

I can't understand for the life of me where the Republicans' stance fits at all within the scope of their conceptualization of liberty and personal responsibility.

Perhaps I'm looking for consistency where none exists.
posted by sutt at 1:18 PM on March 27, 2012 [5 favorites]

I prefer "jumblefuck".

I prefer saying "rummage sale" while raising my eyebrows and winking in a conspiratorial fashionn.
posted by dubold at 1:19 PM on March 27, 2012 [6 favorites]

If the entire act is struck down, which seems fairly likely at this point, what will be the GOP's main platform this fall? Obamacare will have already been repealed.

The interesting thing isif Romney is the nominee, he can't run on this. Not given his record as Governor of Massachusetts.
posted by George_Spiggott at 1:19 PM on March 27, 2012 [1 favorite]

Would Obama have to face impeachment charges if he enacted a law that was ruled unconstitutional, thus being in violation of the Oath of Office?

Meaning that he signed one into law? There goes Bush.

Oh wait. That's logic. Fuck this.
posted by saturday_morning at 1:19 PM on March 27, 2012

I'm wondering if we can ever have meaningful reform if the mandate is struck down, since the Republicans have disowned the one reform option (the mandate) that they ever really considered.

Or they'll simply present it under a different name when they're in the white house, and make the democrats out to be the bad guys from the other side, too.
posted by inigo2 at 1:20 PM on March 27, 2012 [3 favorites]

But why isn't the fact that we're forced to pay for uncovered patients, through increased costs in general, as outrageous or moreso than forcing those people to pay something, even if it's only a penalty?

Because the people who pay for that are just taxpayers. Not large insurance companies filling PAC coffers.
posted by DigDoug at 1:20 PM on March 27, 2012 [5 favorites]

The only conservative justice who looked like he might uphold the law was Chief Justice Roberts

A law that forces Americans to buy products from for profit corporations? From the perspective of the kind of pro corporate judge who brought us Citizens United what's not to love?

Think about it, it's easy to buy laws from the government now by paying the right lobbyists, but they still have to figure out how to make money off all these loopholes and rent seeking. What if they could just buy a law that forces us to buy their products How awesome would that be, for them?

So yeah, I'm not really sure why people might be surprised that Roberts might like this law. We'll have to see, though.

---

Of course, the other issue is the serverability thing. Normally, congress will write a law and, as a part of the law, specify that if one part is overturned, the rest stays.

However, with this law, severing the mandate would basically blow up the insurance companies. Which would be entertaining, for sure. I doubt congress would let that happen. A failure to do so would essentially make issuing health insurance, other then to large employee pools completely impossible.

Of course if this gets overturned, I don't think there will be any political capital to get meaningful reform for another 20 years.

I don't think that's true. Something will have to be done.
posted by delmoi at 1:20 PM on March 27, 2012 [2 favorites]

I prefer "jumblefuck".

How'd you like to be a hyper-dictionary editor?
posted by saturday_morning at 1:21 PM on March 27, 2012 [2 favorites]

If Obama wins a second term, will there be any hope of further healthcare reform? Unlikely.

Ever feel like you are standing on a muddy hillside and you keep trying to walk up hill but your shoes keep sliding on the mud and then the mud starts sliding down the hill and you have to hold onto a little tree or something to keep from sliding down and then you don't even recognize where you are any more so you just let go of the tree?
posted by mattbucher at 1:21 PM on March 27, 2012 [2 favorites]

So if the law is struck down because the government can't require someone to purchase insurance does that mean I can cancel my car insurance? Because I haven't had an accident in decades.
posted by terrapin at 3:19 PM on March 27 [+] [!]

Federal government.

But I'm sure there will be a slew of state court cases challenging those laws if this becomes a precedent.
posted by jefficator at 1:21 PM on March 27, 2012 [1 favorite]

So if the law is struck down because the government can't require someone to purchase insurance does that mean I can cancel my car insurance? Because I haven't had an accident in decades.

Of course not. The government can require you to buy car insurance if you want to drive a car. The argument in this case is that the government is requiring you to buy insurance regardless of any other factor.
posted by Justinian at 1:21 PM on March 27, 2012 [6 favorites]

As far as I can tell, the US isn't so much a modern civilization created "by the people, for the people" as what one might term a Bandit Engine: a complex financial device with numerous hierarchical layers that is cunningly designed to extract the maximum amount of negotiable capital possible from its citizenry by fucking them every way possible using the barest minimum amount of lube necessary to render open revolt unlikely.
posted by seanmpuckett at 1:22 PM on March 27, 2012 [52 favorites]

Wishing you the best of luck.

Signed,
Countries with healthcare for everyone
posted by pyrex at 1:23 PM on March 27, 2012 [30 favorites]

All of this could have been avoided if we had simply done "Medicare for all" since the constitutionality of Medicare is a settled issue. This was such a terrible way to go about Health Care reform. Terrible. About the only thing to be said for it was that it was very slightly less awful than what we have now.
posted by Justinian at 1:23 PM on March 27, 2012 [37 favorites]

I can't understand for the life of me where the Republicans' stance fits at all within the scope of their conceptualization of liberty and personal responsibility.

Isn't the Republican stance that treatment should be refused to those who cannot pay? That is at least consistent ... heartless, but consistent.
posted by Jonathan Livengood at 1:23 PM on March 27, 2012 [3 favorites]

Treatment should be refused to those who cannot pay, unless it's me or mine.
posted by seanmpuckett at 1:24 PM on March 27, 2012 [2 favorites]

So if the law is struck down because the government can't require someone to purchase insurance does that mean I can cancel my car insurance? Because I haven't had an accident in decades.

States can require you to purchase whatever they want you to buy (within the limits of their own constitution). The powers of states are not directly delineated in the US Constitution, except where they are limited by the Bill of Rights. Or something like that.

I don't think that's true. Something will have to be done.

I was just a kid 20 years ago, but I'm sure my parents said the same thing when the Clinton plan fell apart.
posted by muddgirl at 1:24 PM on March 27, 2012

But why isn't the fact that we're forced to pay for uncovered patients, through increased costs in general, as outrageous or moreso than forcing those people to pay something, even if it's only a penalty?

That has nothing to do with whether or not it's constitutional

I can't understand for the life of me where the Republicans' stance fits at all within the scope of their conceptualization of liberty and personal responsibility.

It's simple: If you get sick, the republicans think they shouldn't have to pay for you. They think you have the "individual responsibility" to pay for your healthcare. I don't really think it costs as much to not provide healthcare for someone then it does to do so. It costs something, but not as much as paying for them to get full coverage.

Now, if, on the other hand everyone payed in, then the average cost would be higher. But people who are healthy and don't have insurance would be paying a lot more then they are now (which is nothing)
posted by delmoi at 1:25 PM on March 27, 2012

I don't think that's true. Something will have to be done.

Uh-oh, you know things are bad when delmoi speaks in bolded characters. Seriously, though, it would be interesting to learn more about why Roberts opposes (at the moment) striking down the health care law, as he's pretty consistently supported the status quo (which would seem to be no universal healthcare) and what he considers to be "individual" rights.
posted by KokuRyu at 1:25 PM on March 27, 2012

About the only thing to be said for it was that it was very slightly less awful than what we have now.

I prefer to say that IT'S BETTER than what we had before. Could it be improved? Sure, a lot. But IT IS BETTER.
posted by inigo2 at 1:25 PM on March 27, 2012 [1 favorite]

If the ACA is struck down, the US Congress should end the employer health care tax credit, pass the tax credit to individuals, and allow health insurance companies to sell policies to individuals across state lines. Then we might get something approximating a real market in health insurance.
posted by BobbyVan at 1:27 PM on March 27, 2012 [13 favorites]

Hey, I have a thought. My insurance rate was jacked up 50% after Health Care Reform was passed, ostensibly to offset the costs from providing care to people with pre-existing conditions and so forth.

Anyone want to bet on whether they lower my rates back to previous levels if the law falls? Anyone? (crickets)
posted by Justinian at 1:28 PM on March 27, 2012 [35 favorites]

A few of the justices did seem open in questioning to upholding the mandate under the taxing power as opposed to the commerce clause (by saying they couldn't see how the tax penalty could be viewed separately from the mandate and vice-versa).

I wonder if the government could end up "losing" both of its arguments, but still "win" the case. In other words, they could get less than a majority on the commerce clause argument and less than a majority on the tax power argument, but end up with a majority upholding the constitutionality.

This happened with a second amendment case a year or so ago. I think it was the one out of Chicago.
posted by eviltwin at 1:29 PM on March 27, 2012 [1 favorite]

As a reminder, this is the indivdual mandate that Candidate Obama - distinguishing himself from Candidate Clinton - said he didn't want.

Instead he favored something else. A public something or other.

Because the fuckhattery of Ben Nelson/Joe Lieberman et al in the Senate and the Blue Dogs in the House wasn't really part of the problem?

All of this could have been avoided if we had simply done "Medicare for all" since the constitutionality of Medicare is a settled issue. This was such a terrible way to go about Health Care reform. Terrible. About the only thing to be said for it was that it was very slightly less awful than what we have now.

It's more than "very slightly" (see also: Medicaid "doughnut hole" fixes), but there was literally no way that "Medicare for all" was ever possible. It passed at the exact level of majority in both chambers.
posted by zombieflanders at 1:29 PM on March 27, 2012 [4 favorites]

and allow health insurance companies to sell policies to individuals across state lines

Taking away the right that states currently have to regulate their health insurance markets? That doesn't seem consitutional.
posted by muddgirl at 1:29 PM on March 27, 2012

If they strike it down, does Massachusetts mandate go with it? And would that not repudiate Romney as well?
posted by George_Spiggott at 1:29 PM on March 27, 2012

Republicans' Theme for the Uninsured
posted by Camofrog at 1:30 PM on March 27, 2012 [4 favorites]

If you enact healthcare legislation in the most braindead way imaginable, by forcing people to buy products from corporations, I don't know what else you expect.
posted by unSane at 1:30 PM on March 27, 2012 [12 favorites]

Would Obama have to face impeachment charges if he enacted a law that was ruled unconstitutional, thus being in violation of the Oath of Office?

Of course not. Otherwise every president in history who signed a law later ruled unconstitutional would be impeachable. Let's tone down the rhetoric.
posted by dixiecupdrinking at 1:30 PM on March 27, 2012 [13 favorites]

If they strike it down, does Massachusetts mandate go with it?

Again, this is a question of federal powers. No one (so far) has challenged whether or not states have the right to individual mandates. That would have to be challenged at the state level first.
posted by muddgirl at 1:30 PM on March 27, 2012 [1 favorite]

If they strike it down, does Massachusetts mandate go with it? And would that not repudiate Romney as well?

No, because that's not affected by the Commerce Clause. Of course, Romney's essentially repudiated it anyway...
posted by zombieflanders at 1:31 PM on March 27, 2012 [1 favorite]

Jonathan Livengood: "Isn't the Republican stance that treatment should be refused to those who cannot pay?"

No, the Republican stance is that hospitals emergency rooms should continue to absorb the cost of treating the uninsured.
posted by wierdo at 1:31 PM on March 27, 2012 [2 favorites]

So if the law is struck down because the government can't require someone to purchase insurance does that mean I can cancel my car insurance? Because I haven't had an accident in decades.
Of course not. The government can require you to buy car insurance if you want to drive a car. The argument in this case is that the government is requiring you to buy insurance regardless of any other factor.

Right, you have to buy car insurance in order to drive your car on public roads. You have to buy health insurance to... do what, exist? Have a body?

I was never really a fan of the mandate, it's one of the reasons I preferred Obama over Clinton.

The other key thing is that car insurance mandates are state laws. Massachusetts has had a mandate for years, under "Romney-care", which I guess we're calling it now. That was never a constitutional issue.

There's no federal law that requires you to get car insurance.
posted by delmoi at 1:32 PM on March 27, 2012 [3 favorites]

I will never understand liberal support for a system that forces citizens to buy into a corrupt corporate bureaucracy, the very same bureaucracy that's been killing the health care system for the past 30 years. I will never understand supporting an idea created, enacted, and -- until 2009 -- wholeheartedly supported by conservatives and Republicans.

The mandate is a travesty, not only in itself, but in that it has killed any real hope for health care reform in our lifetimes. If Clarence Thomas gets his way, it will even doom Medicare and Social Security.
posted by dirigibleman at 1:32 PM on March 27, 2012 [13 favorites]

Would Obama have to face impeachment charges if he enacted a law that was ruled unconstitutional, thus being in violation of the Oath of Office?

Obama, and all of his predecessors have never enacted a law. They sign them. Congress enacts them.

They could try to impeach him, but it would be a laugher.
posted by Ironmouth at 1:33 PM on March 27, 2012 [6 favorites]

It all boils down to the one question of is healthcare a right or a privilege. Is there a true middle ground in that question? I don't know but I hope so.
posted by amazingstill at 1:33 PM on March 27, 2012

BobbyVan: "If the ACA is struck down, the US Congress should end the employer health care tax credit, pass the tax credit to individuals, and allow health insurance companies to sell policies to individuals across state lines. Then we might get something approximating a real market in health insurance"

No, what we'll get is every insurance company moving their business address to the Health Insurance version of Delaware - whatever state decides to make is to insurance companies can do what-the-fuck-ever they want (like credit cards can charge whatever-the-fuck they want in Delaware). Market, schmarket.
posted by notsnot at 1:33 PM on March 27, 2012 [13 favorites]

No, the Republican stance is that hospitals emergency rooms should continue to absorb the cost of treating the uninsured.

Hmm ... then what is the incentive for anyone to be insured? How many people would have to refuse to get insurance before the system would completely break?
posted by Jonathan Livengood at 1:34 PM on March 27, 2012

I will never understand liberal support for a system that forces citizens to buy into a corrupt corporate bureaucracy

It's the 'something is better than nothing' policy.

If the choice is between single-payer and individual mandate to buy private insurance (and expanding Medicare), 99.99% of liberals would choose single-payer. If the choice is between individual mandate and vast swaths of people who are not insured, most liberals will pick the lesser evil of an individual mandate.
posted by muddgirl at 1:34 PM on March 27, 2012 [21 favorites]

No, the Republican stance is that hospitals emergency rooms should continue to absorb the cost of treating the uninsured.

I thought the Republican stance was that not having access to healthcare was just added incentive to better yourself. We wouldn't want to encourage people to remain poor by treating their illnesses, would we?
posted by George_Spiggott at 1:34 PM on March 27, 2012 [3 favorites]

So if the law is struck down because the government can't require someone to purchase insurance does that mean I can cancel my car insurance? Because I haven't had an accident in decades.

It's only the federal government that needs specific authority under the U.S. Constitution to enact legislation. That authority is generally very broad, but it has limits, and this case is testing the limits. When you start taking about state legislation, you're getting into completely different territory, which has nothing to do with the type of constitutional analysis the Supreme Court is applying in the health care case. There is no issue of whether a state government has authority to pass legislation under the Commerce Clause or any other clause of the U.S. Constitution.

As muddgirl mentioned, states still can't pass laws that violate the U.S. Constitution (for instance, by infringing on freedom of speech or eliminating due process). That's a completely different type of issue, since it's about protections of individual rights, not about the government's authority to legislate over a certain subject.
posted by John Cohen at 1:34 PM on March 27, 2012 [1 favorite]

Hmm ... then what is the incentive for anyone to be insured?

Because the treatment you get if you aren't insured is terrible. And bankrupts you. It just also bankrupts the rest of the country at the same time.
posted by Justinian at 1:35 PM on March 27, 2012 [1 favorite]

Hmm ... then what is the incentive for anyone to be insured? How many people would have to refuse to get insurance before the system would completely break?

The incentive is that you (sometimes) don't have to declare bankruptcy after a trip to the emergency room. Say what you will about the current system, but it certainly gives you an incentive to buy insurance.
posted by Bulgaroktonos at 1:36 PM on March 27, 2012

No, what we'll get is every insurance company moving their business address to the Health Insurance version of Delaware - whatever state decides to make is to insurance companies can do what-the-fuck-ever they want (like credit cards can charge whatever-the-fuck they want in Delaware). Market, schmarket.

What we'll get is price competition, like we have with auto insurance. You can buy cheap GEICO insurance, or you can spend a little extra and be "in good hands."
posted by BobbyVan at 1:36 PM on March 27, 2012

...why isn't the fact that we're forced to pay for uncovered patients, through increased costs in general, as outrageous or moreso than forcing those people to pay something, even if it's only a penalty?

It's not about what is more outrageous.

I am an Obama supporter who is opposed to the mandate and hopes to see the Supreme Court strike it down. I do not think the Federal Government has the constitutional right to force me to purchase a product of any kind.

If pulling out the mandate keystone causes the entire health care reform bill to collapse, so be it. Our Constitutional Scholar President should have seen that coming.
posted by General Tonic at 1:37 PM on March 27, 2012 [9 favorites]

If they strike it down, does Massachusetts mandate go with it?

No. As noted above, this is a case about federalism—specifically, do the limited powers of the federal government include the ability to require people to affirmatively purchase something. The power to do so arguably derives from the Commerce Clause, but the issue is whether that permits Congress to regulate and penalize what is, so the opponents say, economic inactivity—the decision not to purchase insurance. (Proponents counter that almost nobody can claim to be inactive in the market for health care, so it's just privileging one form of activity (buy health insurance) over another (don't get insurance, go to the ER when you chop your finger off, make everyone else cover your costs.)

However, powers that are not expressly allocated to the federal government are reserved to the states. So just because it is unconstitutional for the federal government to regulate a certain activity under the Commerce Clause doesn't mean the states cannot. Indeed, the Commerce Clause is supposed to carve out of the states' plenary regulatory authority a limited ability for the federal government to regulate economic activity across state lines, though the exception has pretty much swallowed the rule at this point.
posted by dixiecupdrinking at 1:38 PM on March 27, 2012 [2 favorites]

The really stupid thing is that they could have passed virtually the exact same law obviously Constitutionally by making the "penalty" for not having insurance an explicit tax. Because the government's power to tax is very broad and settled. But they didn't want to face accusations of raising taxes so we ended up with this frankenstein's monster.
posted by Justinian at 1:38 PM on March 27, 2012 [5 favorites]

Is Social Security not a 'product'? I think we can argue whether or not the federal government can penalize people for not purchasing a private service, but they certainly can and have required people to purchase public services.
posted by muddgirl at 1:39 PM on March 27, 2012

"Isn't the Republican stance that treatment should be refused to those who cannot pay?"

Even hardcore Republicans can get behind the notion of the government acting for the Public Good. It's just that they want to be the ones to decide when, where, how, and who qualifies as legitimate card-carrying members of the Public.
posted by delfin at 1:39 PM on March 27, 2012 [2 favorites]

I think the health insurance mandate is a wonderful way to be held personally responsible for your health. Put it on a progressive pricing tier. Also, come up with a consolidated billing back-end with progressive pricing tied to your taxable income and insurance tier.

MAKE IT PROGRESSIVE

But whatever, people are too ignorant to know what the hell to do to make themselves better. I give up. On all of you.
posted by roboton666 at 1:39 PM on March 27, 2012

But why isn't the fact that we're forced to pay for uncovered patients, through increased costs in general, as outrageous or moreso than forcing those people to pay something, even if it's only a penalty?

Because the true eventual endgame here is getting us back to the point where people who can't afford to insure themselves die in the streets and it's not considered an outrageous failing of a wayward nation, but a just reward to those corpses for not having been virtuous and industrious enough to afford healthcare. Seriously.
posted by Lentrohamsanin at 1:40 PM on March 27, 2012 [1 favorite]

...and allow health insurance companies to sell policies to individuals across state lines. Then we might get something approximating a real market in health insurance.

WTF does it matter whether companies could cross statelines? You'd still have what you have now...Unaffordable yet mediocre coverage. Only, with even more companies vying to screw you.

There IS "competition" in healthcare. I can choose from a dozen or more insurers in my state. They all suck, though, and oddly seem to charge close to the same amount in premiums, even though they're completely free to compete on price. Se...Here's the thing...They don't have to compete. It's a captive market. Everyone needs healthcare. And, unless they're utterly wealthy, they're going to need insurance. Everyone profits!!!
posted by Thorzdad at 1:41 PM on March 27, 2012 [7 favorites]

Even hardcore Republicans can get behind the notion of the government acting for the Public Good.

I've seen no evidence of this.
posted by Jonathan Livengood at 1:41 PM on March 27, 2012 [11 favorites]

No, what we'll get is every insurance company moving their business address to the Health Insurance version of Delaware - whatever state decides to make is to insurance companies can do what-the-fuck-ever they want (like credit cards can charge whatever-the-fuck they want in Delaware). Market, schmarket.

States can still regulate insurance products sold within their state laws, in the absence of federal laws that require states to allow products sold in other states. There is a law that does that, but it's the same one that has the mandate that's being debated by the court. If the whole thing is struck down, insurance companies wouldn't be able to sell insurance across state lines unless their products comply with local laws.

If the choice is between individual mandate and vast swaths of people who are not insured, most liberals will pick the lesser evil of an individual mandate.

I'm not really sure if that's true of "Most" liberals. During the healthcare debates there were lots of people on the left who didn't want to see the bill passed without a public option.

Is Social Security not a 'product'? I think we can argue whether or not the federal government can penalize people for not purchasing a private service, but they certainly can and have required people to purchase public services.

It's a tax.

Mandate requires you to pay into a private, for-profit system that hands billions of dollars over to wall-street each year and pays healthcare CEOs million dollar salaries.
posted by delmoi at 1:42 PM on March 27, 2012 [3 favorites]

Is Social Security not a 'product'? I think we can argue whether or not the federal government can penalize people for not purchasing a private service, but they certainly can and have required people to purchase public services.

SS is paid for through taxes. As I said this law would have been obviously constitutional if the penalties had been taxes (ie tax everyone the cost of an insurance plan but issue a credit exactly equal to the cost of any plan you purchase for yourself) but that approach was rejected because O NOES OBAMA RAISED OUR TAXES.
posted by Justinian at 1:43 PM on March 27, 2012 [1 favorite]

The really stupid thing is that they could have passed virtually the exact same law obviously Constitutionally by making the "penalty" for not having insurance an explicit tax.

Actually not sure about this. I have read elsewhere that calling something a "tax" versus a "penalty" actually is not dispositive of whether, legally, it is a tax or a penalty. Apparently, many so-called taxes under the IRC are actually, technically, penalties, because they are intended to punish/reward rather than to raise revenue.

I don't know much about tax law so I can't vouch for this argument but it makes sense to me. When it comes to constitutional law, rarely can you change the legal status of something just by calling it something else.
posted by dixiecupdrinking at 1:44 PM on March 27, 2012 [1 favorite]

(Or when it comes to law in general, really.)
posted by dixiecupdrinking at 1:45 PM on March 27, 2012

> Even hardcore Republicans can get behind the notion of the government acting for the Public Good.

I've seen no evidence of this.

I have: building prisons. Or more precisely, providing the prisoners for the private prison system through publicly funded police departments, and having the public pay for their incarceration. Though one suspects they'd get behind private police departments.
posted by George_Spiggott at 1:45 PM on March 27, 2012 [1 favorite]

Hmm ... then what is the incentive for anyone to be insured?

Emergency rooms only have to provide a very basic level of care. It's entirely possible to be extremely miserable yet not be at the level where an emergency room is obligated to do a whole lot for you. It wouldn't surprise me at all if the morbidity/mortality rates among the uninsured are far higher than for those with insurance. (If that weren't the case, then there wouldn't be a reason to get insurance.)
posted by Kadin2048 at 1:46 PM on March 27, 2012

Actually not sure about this. I have read elsewhere that calling something a "tax" versus a "penalty" actually is not dispositive of whether, legally, it is a tax or a penalty.

Under that logic, Bush's tax breaks for buying an SUV would have been an unconstitutional mandate to buy an SUV. (Or tax breaks for solar panels)
posted by delmoi at 1:47 PM on March 27, 2012

BobbyVan: "
What we'll get is price competition, like we have with auto insurance. You can buy cheap GEICO insurance, or you can spend a little extra and be "in good hands."

Surely you're joking.
posted by notsnot at 1:47 PM on March 27, 2012 [1 favorite]

I don't know much about tax law

If you believe my tax professor from law school, neither does the Supreme Court.

Technically he said 8/9 of the Supreme Court, since he was married to one of them
posted by Bulgaroktonos at 1:47 PM on March 27, 2012 [5 favorites]

I'm not really sure if that's true of "Most" liberals. During the healthcare debates there were lots of people on the left who didn't want to see the bill passed without a public option.

Can we avoid arguments about the difference between "many", "most", "lots", etc. etc? It's kind of pointless.

Mandate requires you to pay into a private, for-profit system that hands billions of dollars over to wall-street each year and pays healthcare CEOs million dollar salaries.

Did you read the part where I said "we can argue whether or not the federal government can penalize people for not purchasing a private service?" Federal services are products that we pay for through taxes. We are in complete agreement about that. I was objecting to this comment by General Tonic:

I do not think the Federal Government has the constitutional right to force me to purchase a product of any kind.

The federal goverment forces us to buy MANY services. I think that's a good thing.
posted by muddgirl at 1:48 PM on March 27, 2012 [1 favorite]

I am no constitutional scholar, so I will avoid arguments for or against the plan. I do know this:
a good friend now has insurance coverage for a pre-existing condition. And my son, a recent college grad, tossed off our health coverage is now eligible to be on our plan for a few important years (till gets job and makes enough for his own coverage.

Why must all Americans pay taxes to get health coverage for federal workers? Or even jujst for Congress, that does not want to give it to us in return?

How many industrialized nations have national health coverage?
posted by Postroad at 1:48 PM on March 27, 2012 [2 favorites]

The idea that the government can force you to buy a good or a service is surpassingly odd, and I can see why a court would be very reluctant to open the door to a precedent that could be coercive in all kinds of unforseen ways.

Well, Ol' George Washington disagrees. See, in 1798, he asked for and signed a bill requiring all able-bodied males to have musket, powder and musketballs. If Washington can do it, so can Obama.

Seriously, this is about race. The GOP rejects the only idea they ever came up with for health care reform. Why? Because a black president brought it to fruition, and their base cannot stand it.

But I think some deep breaths are in order. Having done some appellate cases, including Oral Argument, you can't tell much from the oral argument. We'll see what happens when the decision comes out.
posted by Ironmouth at 1:48 PM on March 27, 2012 [1 favorite]

The Supreme Court cares about the Constitution? That's surely news to the First, Fourth, and Fifth Amendment.
posted by entropicamericana at 1:49 PM on March 27, 2012 [4 favorites]

If insurers are allowed to sell across state lines, wouldn't they then come under Federal oversight through interstate commerce laws, negating state regulation?
posted by Thorzdad at 1:49 PM on March 27, 2012

Well, Ol' George Washington disagrees. See, in 1798, he asked for and signed a bill requiring all able-bodied males to have musket, powder and musketballs. If Washington can do it, so can Obama.

No one ever thought of that before!

Oh wait... there's this specific enumerated militia regulation power. Same idea as when the federal government requires military officers to buy uniforms. Not generalizable though.
posted by Jahaza at 1:50 PM on March 27, 2012 [3 favorites]

Actually not sure about this. I have read elsewhere that calling something a "tax" versus a "penalty" actually is not dispositive of whether, legally, it is a tax or a penalty. Apparently, many so-called taxes under the IRC are actually, technically, penalties, because they are intended to punish/reward rather than to raise revenue.

To make things even more complex, a thing can be both a tax for one purpose and a penalty for another.

My gut says it gets upheld, 6-3 with Kennedy and Roberts voting for upholding it.
posted by Ironmouth at 1:51 PM on March 27, 2012

Under that logic, Bush's tax breaks for buying an SUV would have been an unconstitutional mandate to buy an SUV. (Or tax breaks for solar panels)

Not necessarily. There's a difference between rewarding activities and punishing inactivity. The former is squarely within the Commerce Clause. The latter... well. Perhaps we will find out.
posted by dixiecupdrinking at 1:51 PM on March 27, 2012

There IS "competition" in healthcare. I can choose from a dozen or more insurers in my state. They all suck, though, and oddly seem to charge close to the same amount in premiums, even though they're completely free to compete on price. Se...Here's the thing...They don't have to compete. It's a captive market. Everyone needs healthcare. And, unless they're utterly wealthy, they're going to need insurance. Everyone profits!!!

Not so much. All the insurers in your state have to comply with your state's coverage mandates and regulations. They aren't free to compete on price because they all have to cover the same shit.
posted by BobbyVan at 1:52 PM on March 27, 2012 [1 favorite]

Seriously, this is about race. The GOP rejects the only idea they ever came up with for health care reform. Why? Because a black president brought it to fruition, and their base cannot stand it.

That's because when it was proposed, it was to the right of what their opponents were proposing.

Now it's what the opponents are proposing, which means that the only possible position for the GOP to support is four steps further to the hard right.

Which, if this goes down, will be proposed by the Democrats the next time this issue comes up.

The cirrrrrrrrcle of liiiiiiiiiife...
posted by delfin at 1:52 PM on March 27, 2012 [3 favorites]

"It's always darkest before the dawn." I can't believe how many of you are ready to throw in the towel.
posted by crunchland at 1:52 PM on March 27, 2012 [1 favorite]

Not necessarily. There's a difference between rewarding activities and punishing inactivity.

Taxing everyone and then giving a tax credit for purchasing insurance (equal to the cost of the insurance) is exactly rewarding activity. That's why it would have easily passed Constitutional muster.
posted by Justinian at 1:53 PM on March 27, 2012 [1 favorite]

Hmm ... then what is the incentive for anyone to be insured?

Because the treatment you get if you aren't insured is terrible. And bankrupts you. It just also bankrupts the rest of the country at the same time.

if the choice is between dying of cancer and bankruptcy, there's no incentive at all. Almost everyone will take bankruptcy.
posted by Ironmouth at 1:53 PM on March 27, 2012 [1 favorite]

It's always darkest before the dawn

And my keys are always the last place I look for them.
posted by entropicamericana at 1:54 PM on March 27, 2012 [1 favorite]

If insurers are allowed to sell across state lines, wouldn't they then come under Federal oversight through interstate commerce laws, negating state regulation?

Sort of. A state could only regulate insurance policies sold by companies in that particular state. A state could not, however, prevent someone from New York buying a policy sold by a health insurance company based in Kansas.
posted by BobbyVan at 1:54 PM on March 27, 2012

Oh wait... there's this specific enumerated militia regulation power. Same idea as when the federal government requires military officers to buy uniforms. Not generalizable though.

Hmm... Don't members of the military get Tricare, which is payed for out of the federal budget? Maybe we can all sign up for a national militia and get single-payer healthcare through a backdoor.

Not so much. All the insurers in your state have to comply with your state's coverage mandates and regulations. They aren't free to compete on price because they all have to cover the same shit.

Would you be surprised to find out that this is also true for insurance companies who provide car insurance? Even though you can (seemingly) buy car insurance from a national provider like GEICO. It sounds like you would be!
posted by muddgirl at 1:55 PM on March 27, 2012 [1 favorite]

Is there a Justice Ruth Bader Ginsburg fan club? I desperately want to join.
posted by satori_movement at 1:55 PM on March 27, 2012 [6 favorites]

Oh wait... there's this specific enumerated militia regulation power.

Where, in that enumerated power, is it stated that one can force someone to buy anything? If the Commerce Clause can force a private person to sell a service to another party, Heart of Atlanta Motel, then I don't see how it matters whether or not the militia regulation power did it or not. Mind you Washington, signed the law, he didn't enact it. So Congress forced people to buy things. A Congress filled with the Founders.
posted by Ironmouth at 1:56 PM on March 27, 2012 [4 favorites]

When a conservative says they want insurance sold "across state lines" what they really mean is that they don't think there should be any regulation on insurance companies at all.
posted by dirigibleman at 1:57 PM on March 27, 2012 [4 favorites]

That's because when it was proposed, it was to the right of what their opponents were proposing.

the GOP proposed nothing. It was not to the right of their proposals. They had no proposed legislation at all. They did exactly nothing.
posted by Ironmouth at 1:57 PM on March 27, 2012 [1 favorite]

Bandit Engine: a complex financial device with numerous hierarchical layers that is cunningly designed to extract the maximum amount of negotiable capital possible from its citizenry by fucking them every way possible using the barest minimum amount of lube necessary to render open revolt unlikely.

Read this as "numerous hierarchical lawyers" and it still made sense.
posted by saturday_morning at 1:59 PM on March 27, 2012 [1 favorite]

Its always darkest just before the dawn

That phrase resonates so well and so deeply, until you realize that it makes absolutely no sense whatsoever.

It gets progressively lighter as night turns to pre-dawn which turns, in turn, to dawn and then onward to day. It isn't darkest just before dawn, it moderately light because the sun is rising.

To bring this back to the political debate, its dark and its going to get darker because the sun isn't rising, it doesn't have the momentum to do make it past pre-dawn. Greed has the momentum and it will keep if for the foreseeable future.
posted by Slackermagee at 2:00 PM on March 27, 2012 [11 favorites]

When a conservative says they want insurance sold "across state lines" what they really mean is that they don't think there should be any regulation on insurance companies at all.

Yeah, which is why BobbyVan's argument that it would be just like car insurance is confusing. Because, here in the great state of Texas, I have to verify that my car insurance complies with state coverage minimums when I renew my car registration. Even if I am purchasing car insurance from a provider in another state.
posted by muddgirl at 2:00 PM on March 27, 2012

They could try to impeach him, but it would be a laugher.

Nope, they'd never impeach someone over a serious policy. But blow jobs, on the other hand...
posted by Melismata at 2:01 PM on March 27, 2012

The problem I have is that there is no true mandate.

You have three choices.

1) Acquire health insurance.
2) Pay the penalty.
3) Get a waiver.

I would think this would be definitly easier to declare unconstitutional if there was no choice but one. Fundamentally, you can look at it like this:

1) In 2015, Congress is raising the taxes on everyone by a minimum of $695 and a max of 2.5% (I'm handwaving the phase-in)
2) In 2015, Congress has allowed a tax credit of the same amount, if you present proof of insurance *or* if you have gotten a waiver.

In this view, it's clearly constitutional, and it no different that how it's is written in terms of what it is doing.
posted by eriko at 2:01 PM on March 27, 2012 [5 favorites]

I have been wondering why Zeke Emanuel's column a few weeks ago predicting the end to insurance companies because of the ACA (mandate or no mandate) has not got more traction, so I tracked it down to have it ready at the first opportunity. Hello, were you knocking?
posted by kemrocken at 2:04 PM on March 27, 2012

I'm just a dirt lawyer, and I took constitutional law over 15 years ago, but I (along with a great majority of legal scholars, I believe) thought this was pretty much a slam dunk in favor of constitutionality.

I was taught in conlaw, in which my grade was 98, that Congress' enumerated powers in Article 1 are plenary, meaning that they can enact any law rationally related to a legitimate Congressional power if it did not violate another provision in the constitution. And caselaw from the 1930's onward upheld this. So, yes, Congress could require everyone too buy broccoli if that was rationally related to regulating interstate commerce. The limiting factor there is politics, along with other provisions of the constition (ex post facto laws, discriminatory laws, etc.), which don't apply here.

The commerce clause's limitations in 1995 & 2000 were regarding local issues that were non-commmercial in character. That also doesn't apply here.

And the argument that the Federal government is "fundamentally changing the relationship between the government and the individual," as I heard one of the Justices say, really is a red herring. The government has constitionally done so before under their precdents.

Of course, the Supreme Court can rule contra the clear precedents.

If the Supreme Court rules the mandate unconstitutional, it is changing the law and is purely political.

Judicial activism, indeed!

Conservatives who whine about "judicial activism" are pure hypocrits!
posted by JKevinKing at 2:08 PM on March 27, 2012 [19 favorites]

The question is whether the law regulates commerce or creates it.
posted by unSane at 2:13 PM on March 27, 2012

jefficator: What happens when all of us have to buy stock in Halliburton to finance defense and fund our own social security replacement program?

Or, for that matter, what if all of us are forced to purchase cars the next time the auto industry gets in trouble? It's not like you can opt out of the transportation market; like it or not, you use the roads. So Congress, by this argument, would be fully within its power to demand that you purchase transportation it wants you to own, for the greater good of the economy.

Couple that with the government actually owning auto companies, and just imagine all the potential conflicts of interest.

Congress is allowed to offer a benefit in exchange for something you have to do, but they're not allowed to punish you for just breathing. And that's what the individual mandate amounts to. People yell, "but everyone uses healthcare!", but that's because the government imposes that requirement.

If you want to provide free healthcare for the indigent, fine, you have that right. But that gives you no right to then glue strings to their hands to force them to do what you want. You've given them a gift for awhile, and now you want to stop giving it to them, but the way to do that is to STOP GIVING IT TO THEM, not forcing them into contracts with third parties they don't want, and probably can't afford anyway.
posted by Malor at 2:13 PM on March 27, 2012

What happens when all of us have to buy stock in Halliburton to finance defense and fund our own social security replacement program?

But we DO all have to buy stock in Halliburton to finance defense, as it were. It's called the national defense budget, which we pay for with our taxes which we cannot opt out of. At least with the individual mandate there is an illusion of choice.
posted by muddgirl at 2:16 PM on March 27, 2012 [16 favorites]

Nope, they'd never impeach someone over a serious policy. But blow jobs, on the other hand...

He was impeached for perjury and obstruction of justice, pretty serious charges for an officer of the court.

Which is not to say that the investigation was not foolishness of a different order.
posted by IndigoJones at 2:17 PM on March 27, 2012 [3 favorites]

Structuring the mandate as a mandatory tax with explicit waivers and and matching incentives would've definitely been a better way to structure it from a constitutional perspective but I'm not sure that you could've passed it in Congress as Republicans would've called it a new tax and under their current dogma such things are anathema and they've managed to convince a not insignificant percentage of population that taxes = evil.
posted by vuron at 2:19 PM on March 27, 2012

How many industrialized nations have national health coverage?
posted by Postroad

These ones do.

Also, Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798. A little different, but interesting.
posted by Winnemac at 2:22 PM on March 27, 2012 [2 favorites]

It's my understanding that the pro-ACA lawyer was arguing that the mandate WAS a tax.
posted by drezdn at 2:23 PM on March 27, 2012

I have a huge man-crush on Justice Breyer. He is so pragmatic and eloquent and interested in outcomes. And he explains things carefully, like Mr Rogers.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:24 PM on March 27, 2012 [5 favorites]

unSane,

That's a distinction without a difference.

The distinction is that even if the mandate is bad policy, that doesn't make it unconstitutional.

But, as Ironmouth said, the decision hasn't come out yet. I think that ultimately the mandate will be upheld, probably 6-3, or even maybe 7-2. But that's just a guess.
posted by JKevinKing at 2:24 PM on March 27, 2012

Yeah, which is why BobbyVan's argument that it would be just like car insurance is confusing. Because, here in the great state of Texas, I have to verify that my car insurance complies with state coverage minimums when I renew my car registration. Even if I am purchasing car insurance from a provider in another state.

Well, admittedly it's not exactly like auto insurance. Pretty much every state mandates that drivers carry liability insurance to a certain threshold. But that said, the fact that a company headquartered in one state can compete to sell insurance to drivers in all 50 states means that you have a more competitive market.

Let's say I live in one of 15 states where fertility treatments are mandated to be covered by insurance. If I could buy insurance from one of the 35 other states that doesn't force insurance companies to pay for fertility treatments, I could possibly get a lower rate.
posted by BobbyVan at 2:24 PM on March 27, 2012

BobbyVan: "They aren't free to compete on price because they all have to cover the same shit."

Funny, I can get catastrophic coverage, I can get a policy that covers basically everything including vision and dental with only a small copay, and many different levels of coverage in between. Who knew that all those plans were covering the exact same shit at the exact same levels.
posted by wierdo at 2:25 PM on March 27, 2012 [1 favorite]

That's a distinction without a difference.

Justice Roberts certainly didn't think so. Read the transcript.
posted by unSane at 2:26 PM on March 27, 2012

Let's say I live in one of 15 states where fertility treatments are mandated to be covered by insurance. If I could buy insurance from one of the 35 other states that doesn't force insurance companies to pay for fertility treatments, I could possibly get a lower rate.

Why do you think that buying insurance from another state would remove the requirement that insurance companies selling packages in their state provide fertility coverage in their state?

What you are arguing is that states do not have the right to regulate insurance companies, and that is a hard argument to make.
posted by muddgirl at 2:27 PM on March 27, 2012

BobbyVan,

I'd be in favor of that if there are Federal minimum standards for insurance. Otherwise, we'd have a race to the bottom, as others have pointed out.

Fraankly, I would rather have had the Medicare for all proposal, a public option, or a nationnwide exchange at least. But these were all untenable poltically.
posted by JKevinKing at 2:28 PM on March 27, 2012

Let's say I live in one of 15 states where fertility treatments are mandated to be covered by insurance. If I could buy insurance from one of the 35 other states that doesn't force insurance companies to pay for fertility treatments, I could possibly get a lower rate.

Instead of ending the states' rights to regulate insurance coverage for their citizens, why don't you just move to one of those other states?
posted by dirigibleman at 2:29 PM on March 27, 2012

The mandate isn't punishing you for living it's saying that you forgoing health insurance is creating the risk that in the event of a catastrophic illness that you aren't going to be sticking the healthcare system, government and the rest of the citizenry with the bill in the form of unpaid debt, higher insurance premiums, higher base costs of care, etc.

By forcing someone to enter the system (or opt out with a penalty) you've forced them to realize the externalities associated with their actions. As the economic consequences of those economic actions clearly cross state boundaries it stands to reason that the power of the government to regulate interstate commerce is definitely in effect.

However I'm not a lawyer but it seems like that is the general argument for developing this type of regulation.
posted by vuron at 2:29 PM on March 27, 2012 [2 favorites]

UnSane,

Yes, I know he didn't. But see my first comment re judicial activism.

The conservative justices are looking for an excuse to practice it.
posted by JKevinKing at 2:30 PM on March 27, 2012

(In other words, health insurance is not like a computer. If you live in California, you are generally going to be using health insurance in California, and thus California has an interest in regulating the outcome of that health insurance. Even if the company which provides that insurance resides in Delaware, the package they sell to California residents will have to comply with California law, just as the car insurance I purchase from a company in Virginia has to comply with Texas law).
posted by muddgirl at 2:30 PM on March 27, 2012

Is it possible for the four liberals to say it's constitutional under the commerce clause, and for Chief Justice Roberts to say that it's constitutional under the taxing power, but because the majority of judges don't feel that it's a tax, the Anti-Injunction Act doesn't apply? Would that result in the mandate being upheld even if the remaining justices want to strike it down?
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:31 PM on March 27, 2012

Whichever way the court goes, it's hard to see it not significantly affecting the election, or at least the discourse around same.
posted by shakespeherian at 2:32 PM on March 27, 2012 [1 favorite]

Manitoba,

It would be upheld 5-4. Justice Roberts would write the Opinion of the Court (sinnce he would be in the majority & would decide who writes the opinion) and the 4 liberal justices would write concurrences.

In fact, I suspect Jutice Roberts will vote for it for that reason (whatever his legal reasoning).
posted by JKevinKing at 2:36 PM on March 27, 2012 [1 favorite]

If this is ruled unconstitutional as not justified by the commerce clause, will other laws suddenly become unconstitutional as well? Should the conservatives be careful what they wish for?
posted by tommyD at 2:36 PM on March 27, 2012

kemrocken, thanks for the link. I've always had a weak spot for utopian sci-fi.
posted by Uncle Ira at 2:38 PM on March 27, 2012

If it's ruled unconstitutional, the SC will probably do some hand waving ala gore vs. Bush to limit it's effect.
posted by drezdn at 2:39 PM on March 27, 2012 [3 favorites]

My insurance rate was jacked up 50% after Health Care Reform was passed, ostensibly to offset the costs from providing care to people with pre-existing conditions and so forth.

Anyone want to bet on whether they lower my rates back to previous levels if the law falls?

To previous levels? No; in the meantime there's been a little new inflation and a lot of new regime uncertainty.

Lower? Sure, I'd take that bet. Health insurance isn't much of a free market, but there is still a vague resemblance, enough that you can be suspicious of accusations of greedy price hikes because everyone is already being greedy. If your insurance company rates were 33% lower before PPACA passed, that's not because Snidely Whiplash was feeling uncharacteristically charitable or even just waiting patiently for the perfect excuse to charge you more. It's because Whiplash Insurance already determined that charging you more would drive customers to other insurers and leave them with less money in the end. Then the rules of his game changed enough to invalidate that determination.
posted by roystgnr at 2:39 PM on March 27, 2012

My guess is that Roberts, Scalia, Sotomeyor, Breyer, Kagan & Ginsberg will vote for, and Alito, Kennedy & Thomas will vote against, with Kennedy possibly voting for.

Or maybe that's a hope.
posted by JKevinKing at 2:39 PM on March 27, 2012

weirdo: Funny, I can get catastrophic coverage, I can get a policy that covers basically everything including vision and dental with only a small copay, and many different levels of coverage in between. Who knew that all those plans were covering the exact same shit at the exact same levels.

Not the exact same levels. You can pay a higher premium if you think you'll consume more health care. Or pay a lower premium with higher co-pays. But if you live in a state that mandates health insurance pay for marriage counseling or chiropractors, expect to pay more.

muddgirl: Why do you think that buying insurance from another state would remove the requirement that insurance companies selling packages in their state provide fertility coverage in their state?

It wouldn't. But it would free me from paying an invisible tax on fertility treatments. To your next point, California may have an interest in regulating what kinds of insurance companies based in California sell to consumers... But if there were a national market in health insurance, the state of California could not prevent a citizen from purchasing insurance from Colorado (that would be interfering with interstate commerce). What is the state of California's interest in how its citizens' health care costs are reimbursed to hospitals?
posted by BobbyVan at 2:39 PM on March 27, 2012

Roberts is a big fan of assigning himself the majority opinion, so that he can narrowly tailor the ruling to his own ends. It's a nice perk of being Chief Justice.
posted by Sticherbeast at 2:39 PM on March 27, 2012

But it would free me from paying an invisible tax on fertility treatments.

No, it won't. The insurance company in Colorado would still be required to comply with minimum coverage requirements in the state of California to sell insurance to California residents. You would still be paying for fertility treatments.

What is the state of California's interest in how its citizens' health care costs are reimbursed to hospitals?

What is the State of California's interest in how consumers pay for car wrecks?
posted by muddgirl at 2:42 PM on March 27, 2012 [1 favorite]

I'm personally betting on a 6-3 in favor of the mandate with the 4 liberals saying it's okay under the commerce clause, roberts and kennedy writing a concurrence that says this is functionally a tax, scalia and alito saying they disagree with this massive invasion of the federal government into the private sector and Thomas writing something typically batshit insane.

Of course it could quite easily be 5-4 rejecting the mandate but I think Roberts and/or Kennedy will probably budge if for no other reason that they seem to be willing to go for expedient but limited solutions to constitutional issues.
posted by vuron at 2:44 PM on March 27, 2012 [4 favorites]

Love you, America! You're awesome! Keep fighting for better healthcare because god damnit the rest of us consider it a human right!
posted by pyrex at 2:44 PM on March 27, 2012 [1 favorite]

No, it won't. The insurance company in Colorado would still be required to comply with minimum coverage requirements in the state of California to sell insurance to California residents. You would still be paying for fertility treatments.

I wasn't aware that the state of California mandated its citizens to carry health insurance, let alone insurance that covers fertility treatments.
posted by BobbyVan at 2:44 PM on March 27, 2012

Yeah I would be surprised if Kennedy, at least, doesn't find a way to split the baby on this that basically upholds the law, maybe while creating a ton of uncertainty about the commerce power for the next decade for good measure.
posted by dixiecupdrinking at 2:46 PM on March 27, 2012 [4 favorites]

I wasn't aware that the state of California mandated its citizens to carry health insurance, let alone insurance that covers fertility treatments.

It was an example - I don't live in California. If California does not have minimum health coverage requirements, then what benefit is provided by buying insurance from a different state?
posted by muddgirl at 2:48 PM on March 27, 2012

In a perfect world, if I were one of the people crafting the ACA, I would have tried to make it (if possible) so that striking down ACA would take a few conservative pet projects with it.
posted by drezdn at 2:50 PM on March 27, 2012

BobbyVan: "Not the exact same levels. You can pay a higher premium if you think you'll consume more health care. Or pay a lower premium with higher co-pays. But if you live in a state that mandates health insurance pay for marriage counseling or chiropractors, expect to pay more. "

And this is what it looks like when your interlocutor decides to move the goalposts.
posted by wierdo at 2:53 PM on March 27, 2012 [2 favorites]

I wasn't aware that the state of California mandated its citizens to carry health insurance, let alone insurance that covers fertility treatments.

Now you're being deliberately obtuse. Even when a state doesn't mandate buying insurance, it often does say what that insurance must cover, and you know it.
posted by Kirth Gerson at 2:53 PM on March 27, 2012 [3 favorites]

Vuron,

In that case, Roberts & Kennedy would write the opinion & the liberal justices would be the concurrences, but that probably more plausible than my guess.

This might be one of those cases with at least 5-6 different opinions.

The only reason I thought Scalia might vore for is his previous opinions and my hope is causing me to place too much faith in his integrity & Kennedy is quite the libertarian, which is why I thought he's vote against.
posted by JKevinKing at 2:53 PM on March 27, 2012

If California does not have minimum health coverage requirements, then what benefit is provided by buying insurance from a different state?

It's simple. California can regulate insurance companies in California, and tell them "if you sell insurance in our state, you must cover X, Y, and Z." Often-times, those mandates are implemented to satisfy certain political lobbies, and they impose certain costs. So citizens of California face a choice: they can buy expensive insurance that covers X, Y, and Z, or they can go uninsured.

BUT, if there were a national market for health insurance, an uninsured citizen of Los Angeles could buy insurance from another state that covers only X and Y, saving money in the process. California couldn't interfere with that contract, because it would be interstate commerce.
posted by BobbyVan at 2:53 PM on March 27, 2012 [1 favorite]

I find it laughable that anyone is considering oral arguments today as if the Justices, and Roberts in particular, are coming into the discussion on a good faith basis. This was always destined to be a 5-4 political ruling against Obama's flagship bill.

The only question is whether, in the course of thier partisan attack, the Five Horsemen are prepared to go full teabagger and undercut the modern regulatory state as well.
posted by T.D. Strange at 2:54 PM on March 27, 2012 [2 favorites]

Now you're being deliberately obtuse. Even when a state doesn't mandate buying insurance, it often does say what that insurance must cover, and you know it.

See my point here.
posted by BobbyVan at 2:56 PM on March 27, 2012

Let's be honest though here, without a mandate that brings in healthy consumers that are low users of the healthcare system the risk pool for healthcare insurance forces insurance companies (both from an actuarial and profit making perspective) at a rate higher than a good percentage of consumers can afford. Increasing healthcare costs are just going to increase that dollar value.

Opening the insurance market further isn't going to reduce costs to the point where the majority of the uninsured will suddenly be able to pay for coverage. It probably wouldn't even slow down cost increases. It's simply not a solution.

The truth of the matter is that the healthcare "market" is pretty much already in market failure already and that's when it's generally incumbent on government to step in and fix the market. I don't love the individual mandate as a form of healthcare policy (too little) but it seems like it's one of the few politically viable alternatives that keeps the private insurers in business and staves off financial doomsday in the healthcare markets.
posted by vuron at 2:56 PM on March 27, 2012 [2 favorites]

Robert's is certainly being coy, and yeah, pretty much comes down to Kennedy and Roberts. Which is slightly better odds than just having it rest on Kennedy alone. I think if Kennedy can find a way forward he may well bring Roberts along, I also would not discount Sotomayor's persuasion powers if she can find an argument that resonates with either of those two. I've a secret suspicion Sotomayor was a wiley pick that we'll only begin to truly appreciate decades down the road
posted by edgeways at 3:00 PM on March 27, 2012

California couldn't interfere with that contract, because it would be interstate commerce.

California could (and probably would) refuse to accept any non-compliant out-of-state insurance plans in their public hospitals, just as the state of Texas does not accept any non-compliant insurance for registered automobiles on public roads.
posted by muddgirl at 3:03 PM on March 27, 2012

If you want to provide free healthcare for the indigent, fine, you have that right. But that gives you no right to then glue strings to their hands to force them to do what you want. You've given them a gift for awhile, and now you want to stop giving it to them, but the way to do that is to STOP GIVING IT TO THEM, not forcing them into contracts with third parties they don't want, and probably can't afford anyway.

posted by Malor at 4:13 PM on March 27 [+] [!]

Marie Antoinette would undoubtedly be impressed with your superior intellect. The rest of us have learned something since her time.
posted by goethean at 3:05 PM on March 27, 2012

How the current system works:

Had a close friend needed heart transplant.He was put on list but told he was fa bit too old and that younger folks would get hearts first. Dick Cheney, former VP, not very old but hardly a youngster got a transplant because he needed one. No wait.
posted by Postroad at 3:08 PM on March 27, 2012 [3 favorites]

California could (and probably would) refuse to accept any non-compliant out-of-state insurance plans in their public hospitals, just as the state of Texas does not accept any non-compliant insurance for registered automobiles on public roads.

And I'd argue that's unconstitutional. If a patient were to show up with a broken leg and an out-of-state policy that guarantees reimbursement to the hospital for mending said leg, and the state of California were to deny treatment because the patient's policy does not cover marriage counseling, California would be guilty of interfering with interstate commerce and protecting its in-state insurance industry (not to mention being an incredible asshole to a poor guy with a broken leg).
posted by BobbyVan at 3:11 PM on March 27, 2012

gotta step away for the evening... poke away at my argument and i'll be back soon
posted by BobbyVan at 3:11 PM on March 27, 2012

How about waiting for the actual ruling before getting hysterical?
posted by dave78981 at 3:13 PM on March 27, 2012 [1 favorite]

So Congress, by this argument, would be fully within its power to demand that you purchase transportation it wants you to own, for the greater good of the economy.
posted by Malor at 2:13 PM on March 27

Okay well tell you what let's go ahead with this healthcare thing for now and then when Dread Cyberqueen Malia forces us all to buy tax-powered jetcars in 2032 I'll admit you have a serious point that makes a lot of sense
posted by a_girl_irl at 3:16 PM on March 27, 2012 [4 favorites]

Robert Reich's suggestion.
posted by wittgenstein at 3:17 PM on March 27, 2012

"Dick Cheney, former VP, not very old but hardly a youngster got a transplant because he needed one. No wait."

Actually, the news is saying he waited about 20 months, when an average person waits about a year. So there's probably no favoritism there.
posted by Kevin Street at 3:18 PM on March 27, 2012 [1 favorite]

So Congress, by this argument, would be fully within its power to demand that you purchase transportation it wants you to own, for the greater good of the economy.
posted by Malor at 2:13 PM on March 27

If they can build a transit system that removes the necessity of cars, is equally convenient and cheaper then sign me up.

I love automobiles, but I'd glady turn it from a necessity to a hobby, thanks. I can spend all of that money I save on something useful, like cocaine and Dom Pérignon.

The American healthcare system gives me nightmares. I can't imagine why something like adequate healthcare would infringe on your rights and freedoms, but I hope you guys get that shit sorted out. In the meantime, I guess we can keep AskMeFi alive with Americans coming in to ask how to self treat colon cancer or brown recluse bites, and we can keep hearing, "IANAD Go see a doctor."
posted by Stagger Lee at 3:27 PM on March 27, 2012 [4 favorites]

So, after this we get single payer, right?
posted by TwelveTwo at 3:29 PM on March 27, 2012 [1 favorite]

One last point: do California public hospitals -- today -- deny treatment to non-residents with out-of-state health plans?

If you show up at a hospital in California, public or not, with bone sticking out of your leg, the hospital is required by federal law to put it back in before sending you away. What other services you receive (they are not required to do anything unless your life is in danger) and who pays for it is the question up for discussion. If you don't have insurance and can't pay yourself, then the hospital (government funded, non-profit, or for-profit) has to eat the cost.

Also, I will totally vote for Cyberqueen Malia, assuming you vote for cyberqueens.
posted by Garm at 3:31 PM on March 27, 2012

I've a secret suspicion Sotomayor was a wiley pick that we'll only begin to truly appreciate decades down the road

Next thing you'll be telling us is that elections matter and Romney would nominate Supreme Court Justices who would argue against marriage equality, the Voting Rights Act, and Roe v Wade. Which is crazy talk, right?

Also, I will totally vote for Cyberqueen Malia, assuming you vote for cyberqueens.

She will, of course, be competing for the robot vote against the winner of the Robot Nixon/Human Mitt Romney primary.
posted by zombieflanders at 3:36 PM on March 27, 2012 [2 favorites]

So Congress, by this argument, would be fully within its power to demand that you purchase transportation it wants you to own, for the greater good of the economy.

If they phrased it as a $15,000 tax, with a $15,000 tax credit, then yes, it would be *perfectly* constitutional.

The Constitution does not have a "don't be an idiot" provision, because that's unenforceable. This was the crux of Kelo v. City of New London. The Justices were very clear that while the use of eminent domain here may not be right, or even what was intended, it was clearly, by precedent and by the Constitution, legal.

And that's what the Supreme Court is supposed to be judging on. If a justice is morally opposed to a law, but cannot find a legal reason that it is not constitution, they must vote to affirm the law -- because the justices do not answer to the people.

The place for "is this law right or not?" is the Congress and the Presidency, in their shared power to create and enact law. If a law is not morally right, it should not be enacted, but if it is enacted, it's moral judgment has already been made, and if it is constitutional, then the courts must affirm it and enforce it.

Now, I'm not saying this court won't throw that out and rule politically ahem Bush v. Gore but I am saying, in a just system, they will follow the law.

You may disagree with the mandate. I certainly do. However, I simply don't see how this is outside of the power of Congress to enact.
posted by eriko at 3:43 PM on March 27, 2012

re: medicare, robert reich's proposal is clever...

Unhappily for Obama and the Democrats, most Americans don't seem to like the individual mandate very much anyway. Many on the political right believe it a threat to individual liberty. Many on the left object to being required to buy something from a private company.

The President and the Democrats could have avoided this dilemma in the first place if they'd insisted on Medicare for all, or at least a public option...

If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they're willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

If they did this the public will be behind them — as will the Supreme Court.

also btw here's andrew sullivan's roundup so far + eat your broccoli :P

There is a very clear difference between mandating broccoli purchase and mandating health insurance. I doubt it could be turned into a limiting principle suitable for court, but I'll offer it anyway. First, if the government mandated purchase of broccoli, average broccoli price would rise. That follows from supply and demand, and I hope it is intuitive.

However, if the government mandates purchase of health insurance, average price of health insurance falls. That's because non-purchase of health insurance has negative externalities (due to adverse selection) that non-purchase of broccoli does not have. Those externalities are a type of market failure.

and apparently there's more at stake...

Maybe the federal government's authority under the Commerce Clause is much narrower. Maybe that authority doesn't extend to requiring individual citizens to have health insurance or pay a fine. But if so, it is not only the future of Obamacare that will suddenly be shaky. Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act. It includes laws protecting the environment and consumers.

Basically anything the government does that has ever been justified by the Commerce Clause will be open to challenge. For the sake of their own sanity and summer recesses, the justices ought to proceed cautiously.

posted by kliuless at 3:57 PM on March 27, 2012 [4 favorites]

Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act.

I doubt this, especially the latter, is of any concern to conservatives on and off the court. After all, the Supreme Court already seems likely to invalidate Affirmative Action.
posted by zombieflanders at 4:02 PM on March 27, 2012 [1 favorite]

The commerce clause was intended and designed only to make sure transactions, public or private, between States, or between Citizens in two States, were carried out fairly.

Twisting it into 4D pretzels to force through some delusional and corrupt ideology is sad.

There are simple and Constitutional ways to attain a basic health care for all Citizens and legal residents.
posted by caclwmr4 at 4:05 PM on March 27, 2012

eriko: "If a justice is morally opposed to a law, but cannot find a legal reason that it is not constitution, they must vote to affirm the law -- because the justices do not answer to the people. "

Well, the justices can really vote however they want. There's nothing anyone can do about it aside from electing a congress that would impeach them. They could interpret the constitution in a way that allows slavery, and if congress went along with it then that'd be the end of the story.

The constitution is literally only a piece of paper if two branches of the federal government say it is.
posted by mullingitover at 4:06 PM on March 27, 2012

justinian: My insurance rate was jacked up 50% after Health Care Reform was passed, ostensibly to offset the costs from providing care to people with pre-existing conditions and so forth.

I applied for an individual health care plan from Aetna that is $230/mo. Because I have a pre-existing condition, my rate ended up at $491/mo. And yes, I know for a fact that that is why my rate was more than doubled; they have to tell you why the rate is increased when they offer you the "adjusted" rate.

So, justinian (et al), that "ostensibly" is the key word, isn't it.

To me, that's just proof that, even if the Supreme Court doesn't strike any of it down, when the "can't charge a higher premium for those with pre-existing conditions" goes into effect, they'll just raise premiums across the board.
posted by tzikeh at 4:08 PM on March 27, 2012 [1 favorite]

Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act.

I doubt this, especially the latter, is of any concern to conservatives on and off the court.

I don't think this is fair to the SCOTUS (though it's fair to the politicians). If nothing else, I doubt the justices want to spend the rest of their careers having to refine commerce clause doctrine, but I bet it would take years to sort out all the implications of overturning the ACA on that basis.
posted by dixiecupdrinking at 4:15 PM on March 27, 2012

I listened to the entire audio recording of the argument yesterday. It was a bland and uninteresting argument about a little-used statute. It mirrored the technical, procedural and precedential focus of most appellate oral arguments---arguments that have no meat on their bones for the lay public.

I just listened to the entire audio recording of the argument today. It was excellent. I think it should be required listening in civic classes. It a a review of constitutional first principles, an enjoyable dialogue hashing through hypotheticals, and it showed an extraordinarily involved panel. Some of the questions were powerful and engaging (everyone participated intensely except for Thomas). The presenters today were also very good (Clement showed why he is one of the best; Solicitor General Verrilli was a mixed bag, struggled at some points but compelling on others; Carvin had the unfortunate role of following Clement and took on more water than Clement). It was not dense leaglese. It was accessible and thought-provoking. I think encourage everyone to listen to it.

My takeaway from the argument today is that I think the individual mandate will be held to be unconstitutional largely because it does not have a limiting principle. It is well-known that it is hard to read too much into Kennedy's questions, but today showed an oddly emotive Kennedy. He said voiced some powerful concerns about this transforming the relationship between individuals and the government. If the mandate has any chance, then what I think will happen is that Kennedy will try to fashion some heretofore non-existent extraordinarily heightened standard--above even strict scrutiny--and then say that the mandate meets that. The interesting thing will be how many people Kennedy can get to sign on for his standard.

As I understand it, there are four issues:
(1) whether there is standing under the Anti-Injuction Act [yesterday's argument];
(2) roughly, whether the mandate is a necessary and proper use of commerce clause powers [today];
(3) whether it as a constitutionally-permissible use of the taxing power [today]; and
(4) whether, if the mandate is unconstitutional, it is severable from the bill or does the whole thing fall.

If I had to predict right now, I'd say that:
(1) goes 9-0 or 8-1 that the AIA does not bar suit [think maybe Scalia will say it does in a dissent so he can cite to himself later];
(2) goes 5-4 that the mandate is unconstitutional [or possibly 5-4 if Kennedy fashions his limiting principle in the form of a new highest level of review, and a very longshot possibility of 6-3 if Roberts goes with Kennedy for the Court's integrity of not having this landmark case being a 5-4 case];
(3) goes 9-0 against [this was the weakest part of the Government's argument. It was pathetic]; and
(4) goes.... I don't know yet.... tomorrow should be interesting.

This will unquestionably be a landmark case. This is history folks. Take advantage of the ability to listen to it within hours of it happening.

It will be interesting to hear what happens tomorrow.
posted by dios at 4:15 PM on March 27, 2012 [22 favorites]

Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act.

I don't think this is correct, at all. I'm guessing it is merely intended as hyperbolic rhetoric to push for a desired political result because I think any serious follower of the Court's history knows that opinions are not written that way.

The principle that will make this fall will not in any way impact the legal reasoning of the Court's prior Commerce Clause doctrine. My guess is this that the Court will distinguish its prior Commerce Clause cases as embodying specific principles, including voluntary actions to enter an established marketplace that, in its aggregate, has an effect on interstate Commerce. If it goes 5-4 against, the opinion will say that in this instance, the Court is requiring the entrance into one market (insurance) to effect changes on a difference market (health care). The Court will note the absence of a limiting principle (if this is possible, then the Commerce Clause has no principled limitation) and that will be that. There will not be any attempt to suggest that the Government cannot do what it did in all of those other cases.
posted by dios at 4:25 PM on March 27, 2012 [3 favorites]

Of course, I should also note that the fears on the opponents of the mandate are likely over-wrought as well when they say that if this is upheld, the Government can tell you what to eat for breakfast. I think the only way the mandate is upheld is if Kennedy can get a coalition together on a new heightened standard of review (his "heavy burden of justification"). Just completely spit-balling, it might be something like "that the use of regulatory power to require affirmative acts that have downstream effects on interstate commerce can only be used if it is fundamentally necessary to an essential governmental function, such as providing national security or protecting the welfare of the state, and the power is exercised in a manner narrowly tailored to have the least effect upon individual liberty possible in fulfilling the governmental function.

If Kennedy fashions some test like that as a the limiting principle to uphold the mandate, then the parade of horribles will not come to pass either.

In other words, as usual, partisan's hand-wringing fears of the Supreme Court are completely over-wrought and detached from reality.
posted by dios at 4:35 PM on March 27, 2012 [2 favorites]

Dios,

That's possible, but then the Court will be creating new law. I'm not aware of any case that limits Congress' powers under the commerce clause where it applies.

I haven't been at a computer and frankly I don't have the time to research thoroughly, but if memory serves there are definitely cases that rule that Congress' powers under Article 1 are plenary.

I understand politically why the Obama Administration did not more forcefully make that argument and perhaps argue in the alternative for some heretofore unapplied limiting principle to the commerce clause that would encompass the mandate, but I think they should have.

Are you aware of any cases that limited the application of commerce clause powers, other than other provisions of the constitution?
posted by JKevinKing at 4:37 PM on March 27, 2012

Looks like I picked the wrong week to start sniffing glue.

sigh
posted by PapaLobo at 4:38 PM on March 27, 2012

Dios,

I also don't understand the need or desire for a heightened standard of review here. In tha past, unless certain criteria are met that I don't think apply here, the Courts have applied rational basis review for commerce clause cases.

Unless the argument is that because Congree supposedly is requiring a purchase of a product of individuals, there should be a heightened standard of review.

That would also be a novel theory and unconvincing, to me at least.
posted by JKevinKing at 4:41 PM on March 27, 2012

And I don't think the commerce clause as it has been interpreted has a principled limit, aside from a rational basis to a legitimate governmental purpose and actions that are specifically prohibited in the constitution.

To argue otherwise is to attempt to enshrine poltical biases into the law, and contrary to what some say, the constitution does not proscribe a particular political ideology except on a very basic level. Nor should it.

Like I wrote previously, if the law is struck down the justices are basically legislating from the bench. And this the particular justices said they are loathe to do.
posted by JKevinKing at 4:50 PM on March 27, 2012

If the mandate has any chance, then what I think will happen is that Kennedy will try to fashion some heretofore non-existent extraordinarily heightened standard--above even strict scrutiny--and then say that the mandate meets that. The interesting thing will be how many people Kennedy can get to sign on for his standard.

I do not understand this. Are you saying that Kennedy will fashion a standard higher than strict scrutiny, the highest standard possible, and then save the mandate by saying it meets that standard? Seems the reverse of what you would do. You'd argue for the rational basis test, then say the statute meets the test. If you're saying he's going to kill the mandate with such a standard, I could see it, but doubt anyone would sign on. Strict Scrutiny is the highest possible standard, as far as I know. Obviously in Lawrence, he invented a new standard, "intermediate scrutiny" but I don't think we're going to see that here.

Frankly, I think 5-4 with Roberts going with ACA being Constitutional. The standard of review here is rational basis, without a doubt.
posted by Ironmouth at 4:50 PM on March 27, 2012

Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act.

I don't think this is correct, at all.

People like Randy Barnett, the driving intellectual force behind the ACA challenge, and David Bernstien have explicitly argued against the entire line of commerce clause cases arising from the New Deal and the switch in time. The end goal of these folks is exactly that broad, rolling back everything from the SEC and NLRB to Medicaid and the Civil Rights Act.
posted by T.D. Strange at 4:52 PM on March 27, 2012 [1 favorite]

that the use of regulatory power to require affirmative acts that have downstream effects on interstate commerce can only be used if it is fundamentally necessary to an essential governmental function,

But doesn't Heart of Atlanta Motel force people to engage in conduct? The distinction between allegedly forcing a person to sell something and forcing someone to buy something has always been lost on me. If you can be forced by the U.S. Constitution to rent a room to a black person, you can be forced to buy something too. Its still "forcing" and it makes no difference at all which side of the transaction you're on.
posted by Ironmouth at 4:54 PM on March 27, 2012

That's possible, but then the Court will be creating new law. I'm not aware of any case that limits Congress' powers under the commerce clause where it applies.

That's a bit of a tautology. The question is not whether this a limit upon Congress's power under the commerce clause where it applies. The question is whether the Commerce Clause permits the federal government to compel commerce. Most of the Commerce Clause jurisprudence turns on whether the conduct regulated falls within the purview of the commerce clause--not whether an act within the clause's purview can be limited.

Are you aware of any cases that limited the application of commerce clause powers, other than other provisions of the constitution?
posted by JKevinKing at 6:37 PM on March 27

Well, depending on what you mean. The Court has wrestled for a long time with different tests (direct v indirect, etc) that has circumscribed the commerce clause power of Congress. Take, for instance, United States v. Morrison. That itself followed US v. Lopez and several other cases. Of course, the Court can swing like it did back in Gonzalez v. Raich in which you see an odd majority permitting the use of Commerce Clause to regulate marijuana growing. So the Court goes all over the board in determining whether things related to interstate commerce falls have impacts sufficient to bring it within the purview of the Clause and where it is questionable, the Court has "limited the attempted application of the Commerce Clause."
posted by dios at 4:54 PM on March 27, 2012

Ironmouth,

I think intermediate scrutiny was created earlier than Lawrence to apply governmental distinctions based on sex.

But I agree with your analysis.
posted by JKevinKing at 4:54 PM on March 27, 2012

How about waiting for the actual ruling before getting hysterical?

Agreed. Do me a favor and call Jeff Toobin, would you?
posted by Ironmouth at 4:55 PM on March 27, 2012 [1 favorite]

My takeaway from the argument today is that I think the individual mandate will be held to be unconstitutional largely because it does not have a limiting principle

Where is that anywhere in the Constitution or its interpretation?

The legislation does not require entry in to the insurance market. It merely denies you a tax credit if you do not have insurance.
posted by Ironmouth at 4:58 PM on March 27, 2012 [1 favorite]

I do not understand this. Are you saying that Kennedy will fashion a standard higher than strict scrutiny, the highest standard possible, and then save the mandate by saying it meets that standard? Seems the reverse of what you would do.

I think the idea is that Kennedy would pass the legislation, but only because the health care crisis is an epic-level government interest. The higher scrutiny would be there to prevent the ruling from allowing other mandates on less important things in the future.
posted by Winnemac at 4:58 PM on March 27, 2012

Are you saying that Kennedy will fashion a standard higher than strict scrutiny, the highest standard possible, and then save the mandate by saying it meets that standard?

If you isolate his questions in the oral argument today, that would be a reasonable reading of them. Kennedy expressed extreme concern about this type of law ("But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act...and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.") and noted that the Government on a couple of occasions a high burden (never mentioning rational basis or strict scrutiny). Kennedy expressed great reservation through most of the SG and Clement's arguments. He only started sounding different when Carvin was getting grilled by Breyer. The thing that seemed to get Kennedy turned for it was Breyer's pressing about the extreme importance of this law to 40million people in terms of life and death. And there was a repeated articulation about the uniqueness and importance of this particular use of the commerce power.

The impression I got is that Kennedy will go there with a limiting principle, but he never heard one and the current standards don't meet his deep concern about fundamentally altering the relationship between the individual and the government. So it seems like if Kennedy could find an incredibly high burden to justify the fundamental alteration he could see it being applied in this unique and importance situation that represents life or death to 40 million people (the Breyer hook).

I could be wrong about that. Kennedy is notoriously hard to read. But that would be a legacy for him and fit with his past behavior.
posted by dios at 5:03 PM on March 27, 2012

Dios,

I don't think it's a tautology at all. I believe that the law is that where the commerce clause applies, Congress may choose any many rationally related to that purpose. If the question is whether the commerce clause applies at all then it certainly applies in this case, as health care & its financing is a national market.

US v. Morrison is distinguished because Congress' regulation in that case was on a local issue of a non-commercial character.

If you want to argue there is a heightened standrd of review because the nature of the mandate, you can make that argument, and it's reasonable, but I'll disagree with you.

Strict scrutiny has been used in instances based om classifications based on race, etc. I can think of no other case where heigtened scrutiny has been applied to purely economic actibity. Even advertising enjoys less protections than poltical speech.

That's why this would be new law.
posted by JKevinKing at 5:04 PM on March 27, 2012

Haven't listened to the arguments. Having been burned before (the judges asked good questions, Mr Client, I am pleased), I try to avoid the issue.

But isn't the limit created by the rational basis test itself? Its irrational to require people to eat broccoli.
posted by Ironmouth at 5:12 PM on March 27, 2012

This is tangential, but you are the people I rely on for both informational and humorous responses to these kinds of thoughts about issues, so.

I have this ridiculous idea—part wish, part fantasy, part "this isn't even remotely feasible, but what would happen if"—about forcing the U.S. toward universal health care.

Keep in mind that I know this is purely a Gedankenexperiment, but what the hey:

How much noise could a group of uninsured Americans make by going to a European nation and requesting asylum, contending that the American government is committing genocide by attrition? And what would it take for that noise to bring about a real debate (even though the idea that it would bring about serious change is laughable)? Would the American media even pick up the story? Would the national media of said European country (or, hey, countries! Why not?) write about it? Has there ever been a case in the history of the existence of the U.S. that a coalition of other nations has managed to get it to do something it doesn't want to do?

And, while I'm wishing for ponies, what would the reaction of any given European government be to such a request? Would they consider it, even if for no other reason than to spite and show up the U.S.?
posted by tzikeh at 5:13 PM on March 27, 2012 [1 favorite]

But doesn't Heart of Atlanta Motel force people to engage in conduct? The distinction between allegedly forcing a person to sell something and forcing someone to buy something has always been lost on me. If you can be forced by the U.S. Constitution to rent a room to a black person, you can be forced to buy something too. Its still "forcing" and it makes no difference at all which side of the transaction you're on.
posted by Ironmouth at 6:54 PM on March 27

This distinction was addressed in the arguments.

Heart of Atlanta regulated people who already are running hotels. So the operators are already in commerce. It did not require someone to open a hotel or turn their house into a hotel. It held that if you are already in the market, then you had to meet certain rules. Someone could stay out of the market of providing boarding if they wanted--opt out and avoid regulation--but once in, follow the rules. The question in HoA was whether a hotel has effects on interstate commerce, which the Court held it does.

Here, the issue is requiring people who are not in the insurance market right now and no intention of being in the insurance market of taking affirmative acts to enter the insurance market. Contrary to HoA, there is no way to opt out and avoid regulation. Everyone is subject to the regulation.

That's the distinction. The SG's response was to say that everyone is in the market for health care or will be and the insurance market has effects on the health care market so it falls under the commerce clause.

The legislation does not require entry in to the insurance market. It merely denies you a tax credit if you do not have insurance.
posted by Ironmouth at 6:58 PM on March 27

I don't think the SG even argued that. He conceded it is either a tax or a penalty. Don't think anyone argued it was a tax credit issue. Again, though, the issue is the market. Not everyone is in the insurance market--that's the very reason why the problem exists: 40 million people are not in that market. The problem is that people are in or will be in the market for health care and not in the market for insurance. But to help the market for health care, the mandate requires them to enter the market for insurance. Can't opt out of that.
posted by dios at 5:14 PM on March 27, 2012

Dios,

I think you're on too something vis-a-vis Kennedy's thinking, but, as I wrote before, I believe it is contra current law.

He's free to do that, obviously, but I don't like it, especially considering their stated notions of judicial restraint. I think it's applying their political notions in an unprincipled way.

I don't really see the difference in the mandate and other applications of governmental power.
posted by JKevinKing at 5:15 PM on March 27, 2012

I believe that the law is that where the commerce clause applies, Congress may choose any many rationally related to that purpose. If the question is whether the commerce clause applies at all then it certainly applies in this case, as health care & its financing is a national market.

Yes. The question is whether the commerce clause applies at all. The commerce clause certainly applies to regulations of the health care and the insurance industries. That is is stipulated. The core issue in this case is whether the commerce clause applies to regulate people who are not involved in the health care or insurance industries--who are currently outside commerce. This not about limitations of something that falls within the Commerce Clause. This about whether the power of the Commerce clause extends to cover actions which are outside commerce altogether. That is why Wickard v Filburn played such a lead role in the arguments today. Does non-commercial non-conduct fall within the purview of the Commerce Clause? Or, as Kennedy said, "Can the government force people into commerce under the name of the commerce clause?"
posted by dios at 5:21 PM on March 27, 2012 [2 favorites]

the individual mandate (is) one of the few politically viable alternatives that keeps the private insurers in business and staves off financial doomsday in the healthcare markets.

This is particularly upsetting, especially in the way that it echos our response to the financial crisis.

~~We are~~ Our political class is so beholden to these corrupt institutions that the prospect of just failure and a resultant period of true reform is right off the table.

Financial doomsday for the for-profit healthcare industry. Cry me a river.
posted by General Tonic at 5:25 PM on March 27, 2012 [6 favorites]

dios-Thanks for the thought provoking comments. I'm not a lawyer, and thus I don't have any technical understanding of this. But you say: "The core issue in this case is whether the commerce clause applies to regulate people who are not involved in the health care or insurance industries--who are currently outside commerce." Does the commerce clause apply also to customers and users of health care or interstate services? Or does it only apply to providers of services and products?

Because I have a hard time conceiving of the American who will never participate in health care in any commercial way (perhaps in some Amish communitites?). And if everyone receives health services, than the government isn't really forcing non-participants into the market, it is merely regulating how they enter the market?

Or is that a total misinterpretation of things on my part?
posted by HighTechUnderpants at 5:28 PM on March 27, 2012

But to help the market for health care, the mandate requires them to enter the market for insurance. Can't opt out of that.

But it doesn't force anything. There's going to be a tax increase. If you show proof of insurance, you get a tax credit for the amount of tax raised.

As for "entering the market" how can the Commerce Clause reach Wickard who wasn't in interstate commerce at all and force him to adopt federal production quotas, but can't reach that far here? I don't get it. I don't see how they don't overturn Wickard if they overturn this. If the Federal Government can reach Wickard's grain even though he's not in a market reachable by the Commerce Clause how can they not reach this.
posted by Ironmouth at 5:29 PM on March 27, 2012

I hope the individual mandate is struck down because I believe it's the quickest route to single payer.

With the mandate, we're still left dealing with a clusterfuck of inefficient for profit insurance companies with a huge overhead spent on paperwork, regulations and the confusion generated by thousands of 'competing' insurance plans.

If the mandate was struck down, single payer is only logical possibility. Probably executed through a slow expansion of Medicare/Medicaid.
posted by j03 at 5:33 PM on March 27, 2012 [1 favorite]

j03: If the mandate was struck down, single payer is only logical possibility. Probably executed through a slow expansion of Medicare/Medicaid.

Honest question: why have you excluded the the other logical possibility--that we get fuck-all in place of the mandate, and return to the shitty health "care" we had before ACA?
posted by tzikeh at 5:37 PM on March 27, 2012 [9 favorites]

Huh, I just read David Sedaris's somewhat smug New Yorker piece this morning about how great his health care is in Paris, and my thought was roughly, 'yeah you funny smug asshole, but at least we'll have the exchanges in 2014 so fuck you and your glamorous Paris life I mean Paris yeah but Philly's just fine ktx

I mean, I really thought that. Glad I read it this morning, as opposed to this evening.
posted by angrycat at 5:37 PM on March 27, 2012

Does non-commercial non-conduct fall within the purview of the Commerce Clause?

But the fact that Wickard was or was not involved in any commerce seems irrelevant. The question is was he involved in activities which affected interstate commerce. He was not involved in commerce that the Commerce Clause could reach directly. He was involved in activity that affected interstate commerce and was therefore able to be regulated. In essence, people are affecting the health care insurance market by consuming health care. Its an artificial separation to say that somehow the health care market doesn't affect the health care insurance market. There's no basis for somehow making this fake line between the two. Whether or not a person is participating in a specific market (insurance) doesn't mean they aren't affecting commerce in markets that can be regulated.
posted by Ironmouth at 5:39 PM on March 27, 2012 [1 favorite]

I hope the individual mandate is struck down because I believe it's the quickest route to single payer.

If this isn't constitutional, how is single-payer going to be constitutional?
posted by Ironmouth at 5:42 PM on March 27, 2012

I and (you probably) already pay into Medicare...
posted by rosswald at 5:48 PM on March 27, 2012

Medicare is constitutional and single payer is just Medicare with no age restrictions. How is it NOT constitutional? Unless you think striking down the mandate makes Medicare unconstitutional.
posted by Justinian at 5:48 PM on March 27, 2012 [2 favorites]

the prospect of just failure and a resultant period of true reform is right off the table

The NPR bloviators discussed the possibility of single payer becoming the only alternative in tones normally reserved for a default on the national debt.
posted by Trurl at 5:50 PM on March 27, 2012 [3 favorites]

That being said...establishing the precedent that Congress can forced you to buy something is pretty scary. What happens when all of us have to buy stock in Halliburton to finance defense and fund our own social security replacement program?

Car insurance. Seat belts. A share of the public education program. Social security. and so on.... There's nothing new about government forcing people to pay money for things...
posted by kaibutsu at 5:54 PM on March 27, 2012 [1 favorite]

the prospect of just failure and a resultant period of true reform is right off the table

The NPR bloviators discussed the possibility of single payer becoming the only alternative in tones normally reserved for a default on the national debt.

Let me put it to you this way. Assuming its constitutional to completely eclipse an entire market via government action, everyone can breathe easy--we're only 40 years away from enough votes in Congress to defeat a filibuster against single-payer. It only took 90 years from the end of the Civil War for the Voting Rights Act to be passed. I mean they're only voting on stripping away birth control right now and all.
posted by Ironmouth at 5:59 PM on March 27, 2012 [2 favorites]

Honest question: why have you excluded the the other logical possibility--that we get fuck-all in place of the mandate, and return to the shitty health "care" we had before ACA?

I believe charts like this are the long-term answer to that question. Even the 1% might balk when 99% of GDP is going into healthcare. Of course, it will take a century to get there...
posted by chortly at 6:02 PM on March 27, 2012

kaibutsu: Car insurance. Seat belts. A share of the public education program. Social security. and so on....

To play Devil's advocate:

Car insurance is a) state-mandated, not federally mandated, and only applies if you have a car, not if you simply exist.

Seat belts I don't even get. The government didn't force us to buy them.

Public education and social security are paid for by taxes that go to the governmen,. That money is not used to purchase goods and services from a private corporation.

If Obama had been smart, he'd have presented it simply--Medicade for all; a tax that actually *increases* your yearly income (no money taken out of your paycheck for health insurance, plus no medical expenses, no matter what). He made a mess of things by assuming that people would take the time to understand the complexities, rather than making pie charts and using small words.
posted by tzikeh at 6:06 PM on March 27, 2012 [2 favorites]

*ugh* - MediCARE for all, not Medicade (which isn't even spelled correctly anyway.)
posted by tzikeh at 6:07 PM on March 27, 2012

That money is not used to purchase goods and services from a private corporation.

For-profit, anti-trust exempt corporations.
posted by Trurl at 6:12 PM on March 27, 2012

I'll settle for the federal government paying half of all medical expenses in order to cap the costs. Conceivably, the consumer could probably end up paying the same amount if they paid off their bills directly, with some tax credits for the losses. If controlling costs is the goal, and it should be, then we need to take the road of least resistance to get there.
posted by Brian B. at 6:34 PM on March 27, 2012

tzikeh: "kaibutsu:

To play Devil's advocate:

Car insurance is a) state-mandated, not federally mandated, and only applies if you have a car, not if you simply exist."

I've seen this argument referenced a few times in this thread. Where did it come from? Saying that the ACA 'forces' you to buy something presupposes that someone could go for their entire lives without paying for healthcare. Anyone who actually accomplishes this will be in the middle of the forest and probably isn't paying any taxes. Arguing that this is anything except redistribution of risk (and what is social security if not that?) is difficult for me to understand. If we accept this argument, am I allowed to say that taxing my income in order to pay for roads and highways impermissibly forces me to use a car instead of walking? What is the difference between forcing you to buy something you use and having the government do it for you (as is the case with almost every other government service)?
posted by anewnadir at 7:09 PM on March 27, 2012

Dios,

Thank you for the stimulating discussion.

Once you stipulate that health care and its financing is sibject to Congressional authorization under the commerce clause, to me the only question becomes: is the mandate reasonably related, or if you will necessary & proper, to the scheme that Congress chose too adress it, and (I guess this a second question, or, more like a question 1A) is the law a rational means to adress it. The rest is all smoke & mirrors.

Again, to me the answer is yes; hence the law is clearly constitutional, at least under existing Supreme Court precedent.

I have to go now, but cheers, and I guess we'll see who's right in a few months! ;)
posted by JKevinKing at 7:11 PM on March 27, 2012

I hope the individual mandate is struck down because I believe it's the quickest route to single payer.

I'm afraid it isn't. Unfortunately there is ZERO chance of a single payer system moving forward in the current political environment. The Democrats enjoyed huge majorities (that they are unlikely to see again for generations) in both houses in 2009/2010 and still couldn't muster the votes to pass a public option.

Remember, a single payer system would basically put the entire health care insurance industry out of business (or nearly so). So? These corporations employ tens of thousands of people and (most importantly) contribute millions of dollars to political campaigns and hire lobbyists.

By contrast, your average voter can barely be bothered to show up and vote, yet alone do anything else that even remotely registers on the radar screen of your average congressman. They don't donate to congressional campaigns. Heck, most voters don't even know the names of their congressman. *Meanwhile* these industries also offer lucrative jobs to former members of congress and their assistants.

If this is voted down, Republicans are unlikely to support any other meaningful reform. The "best" you might hope for is a dusting off of the McCain plan, which was really just a tax break for people who already purchase health care. That sounds good enough for your average voter, never mind that it would be *more* expensive than "Obamacare" and would do little to help the vast majority of those without insurance.
posted by Davenhill at 7:17 PM on March 27, 2012 [3 favorites]

"Dick Cheney, former VP, not very old but hardly a youngster got a transplant because he needed one. No wait."

Actually, the news is saying he waited about 20 months, when an average person waits about a year. So there's probably no favoritism there.

The waiting list for jackal hearts is much much longer!
posted by batou_ at 7:37 PM on March 27, 2012 [5 favorites]

If they strike health care down now, it shall become more powerful than you could possibly imagine.

(Expect a sequel. Maybe several of them.)
posted by markkraft at 7:57 PM on March 27, 2012 [1 favorite]

"Dick Cheney, former VP, not very old but hardly a youngster got a transplant because he needed one."

(Sidetrack: Could you be charged with a crime if you threw a donor organ in transit under a bus?)
posted by markkraft at 8:00 PM on March 27, 2012

What happened today seems to be quite a bit of theater by the Corporate owned justices to make it seem like they gave the Obama admin a heck of hard time, but in the end they will not want the world of hurt upending the commerce clause would cause them nor the political backlash. Also, Robert's has got to be pretty sensitive to his legacy in regards to Citizen's United, and this would put the nail in his reputation as anything other than a Right wing stodge and a shill.

My prediction is the worst has taken place and the final count will be 7-2, with Alito and Thomas against. Scalia siding with Roberts majority so as to put his pompous self-righteous monarchist momma's boy imprimatur on history.

Yes, because I think Scalia is an over grown dweeb who wouldn't know real experience in the real world if it slide up his robes.
posted by Skygazer at 8:02 PM on March 27, 2012

That being said...establishing the precedent that Congress can forced you to buy something

The law does no such thing. You can either buy insurance or you pay a fee to the government, (very partially) offsetting any future care you get that will have to be absorbed by the rest of us. Not buying insurance is not a crime, and the fee is not a sentence.

Regardless of the exact wording of the law; the PPACA is a tax, which a really hugh exemption. It's troubling that the Court seems not to understand this and take the propaganda of the law at face value. (Does the Patriot Act create patriots?) The Court has long held that the de facto reality of a law matters.; and despite the obsessive avoidance of the word "tax", this law walks and quacks. The law is constitutional.
posted by spaltavian at 8:08 PM on March 27, 2012 [4 favorites]

I'm not suggesting that universal single healthcare is a sure thing that would happen overnight. But, I do think a creeping expansion of Medicare/Medicaid over the course of 4-16 years would ultimately be a better solution than being mired in a complex web of thousands of inefficient private health insurance plans for the next 50 years. And no, it's not a foregone conclusion, but neither is the current law. Struckdown or upheld, Republicans can still take it away through legislative means.
posted by j03 at 8:09 PM on March 27, 2012 [1 favorite]

I hope the individual mandate is struck down because I believe it's the quickest route to single payer.

Some people live on a different planet than me, obviously. This is not going to happen in any foreseeable time. Medicaid is going to be reduced, not expanded and Medicare is on it's way to insolvency. This country has shown almost no willingness to pay for the things it spends money on now, let alone a massive increase in those programs. PPACA is pretty close to the best possible outcome. A perfect game on the administration's part may have gotten some weak public option that states could opt out of or something; but a robust public option wasn't going to happen and quantum mechanics doesn't allow for single payer in this country.
posted by spaltavian at 8:17 PM on March 27, 2012 [2 favorites]

Splatavian: It's troubling that the Court seems not to understand this and take the propaganda of the law at face value.

Pure vaudeville. Really, they can't just act like the TP people and Fox News and Limbaugh and the Right Wing Propaganda infrastructure and the shrieking hysterical alarmist racist shitshow going HURF DURF my freedoms...my freedoms....I IZ FREE..OBAMA COMMONISM is comprised of totally moronic retards.
posted by Skygazer at 8:18 PM on March 27, 2012

Spaltavian: It's troubling that the Court seems not to understand this and take the propaganda of the law at face value.

Skygazer: Pure vaudeville. Really, they can't just act like the TP people and Fox News and Limbaugh and the Right Wing Propaganda infrastructure and the shrieking hysterical alarmist racist shitshow going HURF DURF my freedoms...my freedoms....I IZ FREE..OBAMA COMMONISM is comprised of totally moronic retards.

This is true, but to be fair; they're taking Democratic propaganda at face value too. They couldn't admit it was a tax, because that would kill them. I understand why, and agree with the strategy of this deception; but Justices should be making legal decisions rather than political ones.

Many of the laws that discriminated against minorities were never discriminatory in their text. Yet the intent and effect were discriminatory and the Court struck them down. There's a long and established precedent of the Court not letting Congress and the states get away with these stunts. You look at what a law actually does; not what it claims it does.

If congressional Democrats had kept the law exactly the same but named it the Fluffy Bunny Act; I'd swear we'd be hearing debate over the Hare and Rodent Act of 1839.
posted by spaltavian at 8:34 PM on March 27, 2012 [2 favorites]

Medicaid is going to be reduced, not expanded and Medicare is on it's way to insolvency.

This is true under continued Republican obstructionism and majorities. But I think it could change if progressives can re-take control of the House and Senate.

If you think that's far fetched, then what gives you any hope that the current law wouldn't be repealed if the Republicans increase their majority?

Let me break it down..
........................................|.....Mandate Repealed....|.......Mandate Sustained
--------------------------------|----------------------------|---------------------------------|
Republican Super Majority---|........HCR Repealed.......|........HCR Repealed..............|
--------------------------------|----------------------------|---------------------------------|
Democratic Super Majority...|..Single Payer Expansion.|........HCR Continues............|
--------------------------------|----------------------------|---------------------------------|

So, the way I see it, best case scenario is that the Mandate is repealed and a Democratic Super Majority is able to expand Medicare/Medicaid to better meet the insurance needs of the poor and uninsured.

If you think the Republicans will continue to win elections and expand their power, the outcome of the case is moot, because they'll probably repeal the law anyway.
posted by j03 at 8:53 PM on March 27, 2012 [1 favorite]

Unless it is sustained and people really, really don't want to give it up after it comes into full effect but before the Republicans can kill it. America's first taste of decent healthcare for all may very well make for a tough genie to re-bottle.
posted by jason_steakums at 9:00 PM on March 27, 2012

gotta step away for the evening... poke away at my argument and i'll be back soon

Sorry, late to this, and I've enjoyed the headier legal discussion directly above, but I needed to respond to this, so here's my poke:

The idea that car insurance is remotely comparable to health insurance is deeply flawed. My car insurance company knows the value of my car - if I total it, they know almost to the penny how much they're on the hook for. If I get hurt, ditto. If I hurt someone else, ditto. All spelled out nicely on my EOB. Let's compare that predictive cost structure (AND mix in the fact that many, if not most people, never even need to draw a claim from their car insurance for years on end) with my health insurance needs.

Now, if I were young and single and healthy, my health insurance might very well resemble my car insurance, but while I am fortunate enough to be healthy, I'm 42, married, with young children. They were both born via emergency C-section at almost a hundred grand a pop - already we've spent about 20 times the value of my Mazda. My son endured 9 hours of cranial surgery at 10 months of age; the blizzard of bills was hard enough to follow (we ended up paying "only" about $6k out of pocket) but if I added it up correctly it was somewhere a bit south of half a million dollars. And on and on and on. What's really frightening is how much all of that is really a drop in the bucket if God-forbid one of gets cancer or something.

So my point in all this? It's nice to imagine that in a less regulatory environment insurance companies might busy themselves "competing" for us, but unless I can turn back time and be a 22-year old single male again, how exactly is that going to happen? Because there's no conceivable financial arrangement in this universe where my family would ever generate a single penny of revenue for a health insurance company. There is absolutely NO incentive for my family to be covered at all other than the fact that we HAVE to be covered because I'm lucky enough to have a halfway decent job.

If someone can present a credible scenario explaining how removing the blocks to interstate commerce and the leverage the state currently wields by basically forcing coverage through employers would NOT result in pretty much every health insurance company relocating to the state with the shittiest minimum coverage standards, competing almost exclusively for the young and healthy while offering family coverage that's basically unattainable for anyone not named Gates or Ellison, I'm all ears. Because I sure can't imagine it.
posted by jalexei at 9:24 PM on March 27, 2012 [5 favorites]

"Seat belts I don't even get. The government didn't force us to buy them."

Interesting note: Seat belts were at one point in time required of US car manufacturers. So the car companies tooled up to make specifically what was required of them, and ended up ignoring things like air bags or crumple zones for decades.

What really drove acceptance for those new, fandangled safety technologies was a car manufacturer going above and beyond the basic requirements. Technically, air bags aren't a requirement, but I'm hard pressed to think of a major company that doesn't offer them as standard equipment.

What are the chances that the court strikes this baby down, but with the added publicity of things like accepting customers with pre-existing conditions and same-sex partner benefits, that a company actually steps up and offers these things and it becomes standard practice?
posted by Blue_Villain at 9:37 PM on March 27, 2012

Honest question: why have you excluded the the other logical possibility--that we get fuck-all in place of the mandate, and return to the shitty health "care" we had before ACA?

It's not that clear. It's not clear. Without the mandate, insurance companies would still be required to cover everyone, regardless of pre-existing conditions. Everything else about the law would stay in place, unless the court rules that if that one thing goes, the whole thing goes (normally, laws specifically mention this, but there was an oversight this time)

That would clearly be an unsustainable situation, but it would be the insurance companies, not individual Americans who would be fucked.

I'm sure congress would act to save the insurance companies, and come up with something.

On the other hand, the whole thing dies, then we're fucked.

If this isn't constitutional, how is single-payer going to be constitutional?

The same way Medicare is constitutional.

Car insurance. Seat belts. A share of the public education program. Social security. and so on.... There's nothing new about government forcing people to pay money for things...

There is nothing new about state governments forcing people to do things.

What are the chances that the court strikes this baby down, but with the added publicity of things like accepting customers with pre-existing conditions and same-sex partner benefits, that a company actually steps up and offers these things and it becomes standard practice?

Same sex partner thing is fine, but it doesn't matter how much an insurance company might want to cover people with pre-existing conditions without a mandate. It would be financially impossible to do so.

Which is the huge irony here. Without the mandate, the bill will destroy private, for-profit insurance companies. They'll be required to cover pre-existing conditions
posted by delmoi at 9:53 PM on March 27, 2012

What really drove acceptance for those new, fandangled safety technologies was a car manufacturer going above and beyond the basic requirements.

But they weren't going "above and beyond" the basic requirements, they were meeting them, specifically Federal Motor Vehicle Safety Standard No. 208. There may have been (are?) avenues open to meeting those standards with different technology, but for all intents and purposes airbag ubiquity came about via government regulation.
posted by jalexei at 9:54 PM on March 27, 2012

but for all intents and purposes airbag ubiquity came about via government regulation.

Yes, because after the lawmakers realized that the carmakers were just doing the bare minimum, they re-wrote the law to be less specific as to how patients were protected and more broad in the overall safety aspect.

So maybe less 'citizens must purchase health insurance' and more 'insurance companies must provide options for covering X, Y and Z.'
posted by Blue_Villain at 10:09 PM on March 27, 2012

With all the talk of massive medical bills, what I don't get is how any for-profit insurance is sustainable. Or any-profit insurance.

If everybody sooner or later runs up a million-dollar tab on a hospital, how do we pay for this?

Or do enough people squeak by with low-level stuff until they get hit by a bus or suffer a massive stroke or heart attack and die relatively instantly that they cost almost nothing?
posted by Camofrog at 10:18 PM on March 27, 2012

Remember, for the first tie ever, Cheney has a normal heart. So I think everything's gonna turn out ok.
posted by Fupped Duck at 11:09 PM on March 27, 2012 [2 favorites]

If everybody sooner or later runs up a million-dollar tab on a hospital, how do we pay for this?

Basically, if they make it to 65 they qualify for a single-payer system call Medicare.

(It won't be there when we turn 65)
posted by dirigibleman at 11:14 PM on March 27, 2012

Dirigibleman, you are without fail, a continual ray of sunshine in these HCR threads.

Lolz. K, sorry. Just having a little fun, carry on, folks.

/Derail
posted by Skygazer at 12:54 AM on March 28, 2012

"Technically, air bags aren't a requirement, but I'm hard pressed to think of a major company that doesn't offer them as standard equipment."

Technically, they're not, but there is a requirement that cars either have airbags or automatic seat belts. Automatic seat belts save more lives than airbags (per car with them, obvs), but consumers loathe them, so cars have airbags instead.
posted by klangklangston at 1:14 AM on March 28, 2012

You just need two statistics:

Costs of health care in percent of GDP

and

Life expectancy

(Position 34).

So basically the US citizens seem to get little for their money.
posted by yoyo_nyc at 1:33 AM on March 28, 2012 [3 favorites]

I was having a conversation on another web forum, and I finally more or less verbalized why I think the individual mandate is so dangerous. The blockquoted part is a reply from a non-MeFite, and the rest is mine:

In other words, as I understand that, it could be both unprecedented AND constitutional. The court could wind up deciding to interpret the Constitution as giving Congress more power than it had before the ruling.

Yep, and if it does, the last vestiges of the idea of having a central government with limited powers goes away. I submit that grabbing at the dangling healthcare candy, in exchange for ignoring the central foundational idea of the Constitution, is a bad, bad trade.

The government is supposed to be limited in what it can do, and this interpretation of the Commerce clause is so expansive that it is no longer limited in any significant way. It changes the tenor of the entire Constitution -- instead of a list of granted powers, it becomes a list of excluded powers. The part where it says 'any power not granted here is reserved to the states, or to the people' becomes null and void, because there is essentially no situation that couldn't fall under this interpretation of the Commerce clause.

It is wrong to do it this way. It is wrong, wrong, wrong, wrong. Even if the Supreme Court agrees, it is still wrong. Any interpretation that invalidates the central idea of the document, that the Federal government had only a very limited set of powers, is dangerous, irresponsible, and absolutely will be abused. It will mean that the Supreme Court has 'living documented' the Constitution out of its most central meaning.

We have a process for changes this major. This could happen through a Constitutional amendment. For those of you who say, "Sure, but then we couldn't get this passed", then I reply, "then that means you shouldn't be allowed to pass it." No matter how good your intentions are, that document is supposed to mean something.

That interpretation of Commerce means you're losing every right that's not explicitly documented in the Constitution, even though it clearly says that you do not. Society as a whole did not agree to this massive change.

You're trading away Manhattan for a few shiny beads.
posted by Malor at 5:00 AM on March 28, 2012 [6 favorites]

That interpretation of Commerce means you're losing every right that's not explicitly documented in the Constitution, even though it clearly says that you do not. Society as a whole did not agree to this massive change.

I hear what you're saying, but at the same time, we can't pretend that the Court is as rigorously consistent as we (or it) would like it to be. We will probably lose the individual mandate on constitutional grounds, while still keeping every other sort of overly expansive read of the Commerce Clause. We will probably lose the benefits of the individual mandate, while also gaining no ground in the fight against rulings like Gonzales v. Raich.
posted by Sticherbeast at 5:12 AM on March 28, 2012

Malor: "That interpretation of Commerce means you're losing every right that's not explicitly documented in the Constitution, even though it clearly says that you do not. Society as a whole did not agree to this massive change.
"

A) That happened a long time ago, and

B) As I mentioned earlier, the way the government is structured, the constitution doesn't matter. The only thing that ever limits the power of any one branch of government is whether or not it can get another branch play go along with it.
posted by mullingitover at 5:21 AM on March 28, 2012

Malor,

I don't think so. The powers are still limited. Congress has the power to regulate interstate commerce and to enact legislation rationally related to that power. And it has for decades, since the Supreme Court stopped using substantive due process to limit that power. In fact, the Court has recently promulgated limits to the commerce power. It can't use the commercve power to regulate, say, family law, for instance. A ruling in favor of the mandate does not change that; it does not increase the scope of the power listed in the constitution. But with its ennumerated powers, it has lattitude to address issues of national scope in a reasonable way.

BTW, I'm embarrassed by my multitude of typos yesterday; that's what I get for tapping things out on a Blackberry. Sorry about that. But this discussionn helped me get through the trudgery of things I had to get done but didn't have to pay full attention to.
posted by JKevinKing at 5:24 AM on March 28, 2012

The only thing that ever limits the power of any one branch of government is whether or not it can get another branch play go along with it.

The professional commentariat confidently opined that the individual mandate would never lead to abuses like people being required to buy cell phones because it would be too politically costly for would-be abusers.

I invite everyone who intends to vote for the Lesser Evil party this year to consider the reliability of that safeguard.
posted by Trurl at 5:39 AM on March 28, 2012 [2 favorites]

The government is supposed to be limited in what it can do, and this interpretation of the Commerce clause is so expansive that it is no longer limited in any significant way. It changes the tenor of the entire Constitution -- instead of a list of granted powers, it becomes a list of excluded powers.

This has already happened. Wickard pretty much sealed that deal, which is why it was the Supreme Court didn't stike down a single law as violating the Commerce Clause until 1996, despite the Federal Government's size and influence growing exponentially during that period.

You can argue that Wickard is a bad interpretation of the Commerce Clause, but it's been the law of the land for 70 years.
posted by Bulgaroktonos at 5:47 AM on March 28, 2012 [1 favorite]

The professional commentariat confidently opined that the individual mandate would never lead to abuses like people being required to buy cell phones because it would be too politically costly for would-be abusers.

You must read the opinions of morons. The two situations are not comparable; one does not and cannot lead to the other. Roberts answered his own question; PPACA simply mandates that you have a way to pay for healthcare, it does not require to take any specific action, such as buying a cellphone for emergencies.

I invite everyone who intends to vote for the Lesser Evil party this year to consider the reliability of that safeguard.

I know that you are, in fact, being disingenuous and that you are not really asking me to consider anything. Rather, this is another reminder of how righteous you are. Still, if you're going to pretend that you are asking us to examine our opinions in good-faith, obnoxious little phrases like "the Lesser Evil party" are pretty big indicators that no dialogue is possible with you.
posted by spaltavian at 6:00 AM on March 28, 2012 [5 favorites]

This has already happened. Wickard pretty much sealed that deal, which is why it was the Supreme Court didn't stike down a single law as violating the Commerce Clause until 1996, despite the Federal Government's size and influence growing exponentially during that period.

Michael Carvin, for the challengers: “Oh, but let’s be careful about what they were regulating in Wickard, Justice Ginsburg. What they were regulating was the supply of wheat. It didn’t in any way imply that they could require every American to go out and buy wheat.”
posted by BobbyVan at 6:02 AM on March 28, 2012

Hey, I have a thought. My insurance rate was jacked up 50% after Health Care Reform was passed, ostensibly to offset the costs from providing care to people with pre-existing conditions and so forth.

Anyone want to bet on whether they lower my rates back to previous levels if the law falls? Anyone? (crickets)

Haha love it.
posted by amazingstill at 6:10 AM on March 28, 2012

To my best knowledge, it has never been the case that the Federal government has been able to require you to take a proactive action. It can regulate existing commerce, but no interpretation I'm aware of has said that it can force nonexistent commerce into being.

It can offer a benefit in exchange for taking a naked action, but it cannot exact a penalty for failing to do so. If you want to sell your house, Congress can put limitations and conditions on that sale, but they cannot simply force you to sell it to someone. Nor can they force you to buy a home you don't want. But now, under this interpretation of Commerce, they can. There is no conceivable way you can argue that you're not part of the housing market, so they can compel you to take actions in that market, even if you don't wish to, and even if you weren't taking any action already. Even homeless people would be subject to attack under this thinking; their lives could be destroyed even more thoroughly than they already are. ("you must rent an apartment or pay fines. If you don't pay the fines, we will imprison you.") Voila, homeless problem 'dealt with'.

Once Congress can compel actions in this way, there is essentially no behavior it can't control. The entire concept of private property, and the Constitution itself, become largely meaningless. Property or money you "own" is only yours until they decide what you must do with it, and the nebulous, non-specified rights you once had disappear.

Any power not explicitly denied the Federal Government is now granted, and I submit that giving ANYONE that kind of power over your life is deeply stupid. What happens when Republicans take over all three branches of government? For that matter, what kind of chaos could happen if Democrats took over all three at once? There's no limit to the damage they could do.

If this interpretation of Commerce holds, the most fundamental check and balance on the Federal government is no longer just weak, it's explicitly gone.
posted by Malor at 6:14 AM on March 28, 2012 [3 favorites]

Pretty much everyone will consume medical services, that's part pf being human. What people are being asked (not required) to do is make sure they have a way of paying for that instead of passing the burden on to everyone else.
posted by mullingitover at 6:23 AM on March 28, 2012 [1 favorite]

You know the law is in trouble when Slate's legal affairs columnist, Dhalia Lithwick, rants for 1000+ words about yesterday's oral arguments without once mentioning the US Constitution or relevant case law.
posted by BobbyVan at 6:23 AM on March 28, 2012 [2 favorites]

I invite everyone who intends to vote for the Lesser Evil party this year to consider the reliability of that safeguard.

Why, your brilliant plan of not voting for the "Lesser Evil" party this year is absolutely brilliant! I mean, why even bother electing officials who have even a modicum of restraint? Romney and Obama are totes similar you guys! It's not as if the rights of minorities to vote or women to control their bodies or people to marry who they want are about to be enshrined in a generation or two's worth of law, amirite?
posted by zombieflanders at 6:28 AM on March 28, 2012

You must read the opinions of morons.

I listen to NPR while commuting to work.

Close enough, I guess.
posted by Trurl at 6:37 AM on March 28, 2012

One thing that would make it extra depressing if it were overturned. The big cudgel used by Ron Johnson to beat Russ Feingold was ACA. That's the same Senator Ron Johnson that told women who couldn't afford birth control to google it.
posted by drezdn at 6:39 AM on March 28, 2012

JKevinKing and dios, I am really enjoying your comments in this thread (amongst others) and learning a lot. Thank you for participating.
posted by triggerfinger at 6:41 AM on March 28, 2012 [1 favorite]

But the individual mandate doesn't require that you go buy insurance, it just says that if you aren't insured either via a group policy provided by your employer, some form of public insurance (medicare, medicaid) or some sort of private insurance that you are subject to a financial penalty.

Financial penalties for negative actions taken or a failure to act seem like they are in keeping with framework of the Constitution. For instance we can clearly tax individuals who engage in undesirable actions via stuff like Sin Taxes. We can also mandate that a failure to act can result in a penalty (financial or otherwise).

The question is whether the court agrees with this sort of logic. The liberal justices clearly seem amenable to it but the conservative block seems unwilling to accept said logic.
posted by vuron at 6:42 AM on March 28, 2012

One thing that would make it extra depressing if it were overturned.

That and the 16 million+ people that would be denied Medicaid. But that's part of the "only slightly better" health care reforms, and besides, it's for the poor who don't deserve health care because of bootstraps. So y'know, not a big deal.
posted by zombieflanders at 6:44 AM on March 28, 2012

This is my favorite line from the Slate article linked above: "It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804."

But God forbid you want freedom in your bedroom.
posted by codacorolla at 6:48 AM on March 28, 2012 [1 favorite]

To my best knowledge, it has never been the case that the Federal government has been able to require you to take a proactive action

This is false. The second Militia Act of 1792 required every adult free white male to own a musket or rifle and assorted accoutrement.

1792. Second Congress. If I count right, James Madison voted for it in the House.

So one the one hand, a primary architect of the Constitution and the man who had been President of the Constitutional Convention believed that it is constitutional for the federal government to force you to take a proactive action or even for the federal government to require you to enter commerce. On the other hand, a grab-bag of dickhead Republican state officials say it isn't, for now anyway.

I'mma go with Madison, Washington, and assorted other framers on this one.
posted by ROU_Xenophobe at 6:53 AM on March 28, 2012 [7 favorites]

But in essence by living in the US you are engaging in commerce with the health care industry. You might not be actively using it at that moment but you represent a definite risk in the form of unpaid medical bills, lost productivity, emergency room care, etc. As long as every hospital with an ER is forced to accept you regardless of your ability to pay that in essence creates a future (and potentially unrealized) transaction.

So in essence you failure to pay into the system at regular intervals via premiums is creating a financial burden on the remainder of the population with impacts that cross state boundaries.

While the logic is admittedly torturous I think there is enough substance to that logic that you could probably string together a constitutional justification for a mandate.

Honestly they should've structured the law in a way that makes the individual mandate less subject to judicial review (making it a clear tax levied across the board with tax incentives for those with other forms of insurance) but they didn't do that. Largely for political reasons.
posted by vuron at 7:02 AM on March 28, 2012

This is false. The second Militia Act of 1792 required every adult free white male to own a musket or rifle and assorted accoutrement.

Even Slate thinks that comparison is bogus.

How good of a defense, really, is the Militia Act for the insurance mandate?

It's pretty flimsy. The constitutionality of the insurance mandate relies on the so-called Commerce Clause, which grants Congress the power "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The Militia Act (actually two bills passed within a week of one another in May 1792), on the other hand, depends on the Militia Clause, which authorizes the government to "provide for organizing, arming, and disciplining, the militia." Because the two mandates have such different foundations, the constitutionality of one is essentially independent of the other.

Separate clauses aside, the Militia Act of 1792 would still be poor precedent for the insurance mandate, because Congress never enforced, or even meant to enforce, the law at the federal level. Lost in the health-care inflected discussion of the bill is its initial purpose: To standardize state militias and to authorize the president to call them into action. The government expected each state to achieve standardization through locally issued regulations, and to handle the gun-toting provision independently. As it happens, the state-level requirements and penalties were onerous, especially for poorer men. The standard-issue musket, which was too heavy and high-caliber to be useful off the battlefield (say, for hunting), cost about $13—several weeks' wages for the average Joe, who earned less than a dollar a day. Men who did not comply were fined as much as $12 (the penalty in New York), and those who didn't pay the fine could be imprisoned for debt.

posted by BobbyVan at 7:03 AM on March 28, 2012 [1 favorite]

This is false. The second Militia Act of 1792 required every adult free white male to own a musket or rifle and assorted accoutrement.

But that's not Commerce, that's Militia. Different Constitutional theory entirely.
posted by Malor at 7:05 AM on March 28, 2012 [1 favorite]

To my best knowledge, it has never been the case that the Federal government has been able to require you to take a proactive action.

This is still the case. A person under the mandate remains free not to carry private health insurance; they simply have to pay a tax.
posted by gerryblog at 7:15 AM on March 28, 2012

This is still the case. A person under the mandate remains free not to carry private health insurance; they simply have to pay a tax.

So what would make it a mandate to carry insurance? A prison term?
posted by BobbyVan at 7:17 AM on March 28, 2012

It can regulate existing commerce, but no interpretation I'm aware of has said that it can force nonexistent commerce into being.

It still doesn't. If don't have to buy any coverage. If you don't, you don't get arrested, charged or go to jail. You do not get sentenced or criminialized. But if you don't, you're going to pay a non-criminal fee. Who is that fee to? The Internal Revenue Service. It's a tax with the biggest (and most socially beneficial) loophole ever.

If there was a law that said "healthcare costs are costing the federal government money. Therefore, we are going to impose a new tax on everyone to help pay for these costs. However, people who have coverage will be exempt, because they're care is already being paid for". There would be no debate. We have such a law, it's called PPACA, and that's exactly what it does. We just don't use the word tax.

Everyone, including the Court, it appears, wants to have the political fight again. In political fights, you employ messaging, talking points and themes. But now is the time for the constitutional fight, and that means you need to look at what the law actually does. It's a tax.
posted by spaltavian at 7:20 AM on March 28, 2012 [9 favorites]

So what would make it a mandate to carry insurance? A prison term?

That'd certainly be different than what we have. I was responding to Malor's hyperbolic conern for freedom; turns out you still have the same freedom to make the terrible decision not to carry health insurance that you always had, you just can't be a free rider anymore.

If the mandate is an unjust impingement on personal freedom, any tax action designed to incentivize particular behavior is similarly illegitimate. The mortgage interest deduction is forcing me to buy a house! The college tax credit is forcing me to go to college! This is all very silly. No one is going to make you eat broccoli, no matter how many times to say it.
posted by gerryblog at 7:21 AM on March 28, 2012 [5 favorites]

spaltavian nails it. This has always been a political objection in search of a legal justification. They might actually convince the five right-wing justices to go along with it in the name of hurting Obama, but let's not kid ourselves.
posted by gerryblog at 7:22 AM on March 28, 2012 [1 favorite]

If the mandate is an unjust impingement on personal freedom, any tax action designed to incentivize particular behavior is similarly illegitimate. The mortgage interest deduction is forcing me to buy a house! The college tax credit is forcing me to go to college! This is all very silly. No one is going to make you eat broccoli, no matter how many times to say it.

Those analogies are all quite different. For the mortgage interest deduction to be applicable, the mandate would need to be structured to give a tax credit to people who purchase health insurance, not a tax penalty to people who do not purchase insurance.
posted by BobbyVan at 7:28 AM on March 28, 2012

Those analogies are all quite different. For the mortgage interest deduction to be applicable, the mandate would need to be structured to give a tax credit to people who purchase health insurance, not a tax penalty to people who do not purchase insurance.

That's a distinction without difference. Who gets a tax penalty and who gets a tax break is relative to the observer. I don't own a home; my taxes would be lower if I did. I'm getting taxed "more" relative to someone who owns a house. They're have a "tax break" as much as I have a "tax penalty".

What you're talking about is political- thematic and public messaging. But those two "versions" of the law do the exact same thing, so they are the exact same law.

But that doesn't matter; because the power of Congress to tax is not questioned. Once you accept we're talking about taxes, you've already accepted that PPACA is constitutional.
posted by spaltavian at 7:34 AM on March 28, 2012 [2 favorites]

That's a distinction without difference. Who gets a tax penalty and who gets a tax break is relative to the observer. I don't own a home; my taxes would be lower if I did. I'm getting taxed "more" relative to someone who owns a house. They're have a "tax break" as much as I have a "tax penalty".

It may not make much of a difference to you, but constitutionally it makes a world of difference. The ACA mandates the purchase of insurance and imposes a penalty for not purchasing insurance. It would be different if the Congress imposed a tax on everyone to pay for the bill, then issued credits to those who purchased their own insurance.
posted by BobbyVan at 7:43 AM on March 28, 2012

I'm not well versed in Constitutional law, but is it actually the case that "constitutionally it makes a world of difference"? Isn't that what this very case is going to spell out one way or another for the first time?
posted by jason_steakums at 7:46 AM on March 28, 2012 [1 favorite]

Hm, NY AG Eric Schneiderman is very optimistic.
posted by angrycat at 7:49 AM on March 28, 2012

A fair point, Jason.
posted by BobbyVan at 8:04 AM on March 28, 2012

It may not make much of a difference to you, but constitutionally it makes a world of difference. The ACA mandates the purchase of insurance and imposes a penalty for not purchasing insurance. It would be different if the Congress imposed a tax on everyone to pay for the bill, then issued credits to those who purchased their own insurance.

Again, those two things are structurally identical. Constitutionality does not depend on semantic labeling. See upthread, and also any legal analysis of the taxing power. This is well-trod legal ground.
posted by gerryblog at 8:10 AM on March 28, 2012 [1 favorite]

Malor: your concern is what I referenced above, which is the absence of a limiting principle. No boundary. That is what some of the Justices kept asking about. And like I said, I think unless Kennedy can find a limiting principle himself (he certainly wasn't provided one), it will be 5-4 against the mandate.

Re: Militia Act. That is an apples to oranges comparison. You are dealing with legislation to meet a specific constitutional imperative with the Militia Act. In this case, you are dealing with the scope of constitutional authority to enforce conduct based upon the government's policy decision. Of course, one out to find it rather curious that the only real example of anything even close to this act requires us to go back to 1792 to a little known law dealing with national defense.

As for the recent dialogue here about taxing power, I think the Court is likely to go 9-0 against that analysis meaning that they will not find this is a legitimate use of the taxing power--if it is going to survive, it is going to be under the Commerce Clause or nothing else. The taxing power is backwards here. Because of how Congress decided to do this, the mandate becomes constitutionally suspect because it is a direct tax and the Constitution is very limiting in what can be a direct tax (its an issue with apportioning). An indirect tax is something that occurs at the point of a transaction (e.g, sales tax) whereas a direct tax is something that is imposed on a person for, in effect, being born. Meaning, a direct tax requires no conduct by the person. Here this is a tax for not having something, that is insurance. So this is likely an impermissible direct tax.

However, I should note, that had Congress decided to do this differently, it could very well have done so pursuant to the taxing power. Had Congress decided to provide tax incentive to people who buy insurance, they could have done so. Because at that point it is not taxing non-actors. Rather it is giving people the option to do some act in return for a incentive. You may question whether there a practical difference between the two, but there is a very important constitutional difference. Even Carvin conceded in questioning from Sotomayor that Congress, had it wanted to do so, could have constitutionally taxed everyone and set up a public health system. The opposition conceded that Congress could have followed the Medicare and Social Security models. But, Congress did not. It tried this novel approach, and it is one that I think the Supreme Court will reject. Constitutional law is almost always about the process. The government can achieve the same result by different means with one way be constitutional and the other unconstitutional. And here, without passing on the merits of the results, I think the Supreme Court will say that doing it this way is definitely not allowed under the taxing power and will likely say it is not allowed under the Commerce Power (unless Kennedy can create a limiting principle).
posted by dios at 8:17 AM on March 28, 2012 [1 favorite]

First severability argument update (SCOTUSBlog):

The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail, that is the government’s position. The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.

posted by zombieflanders at 8:22 AM on March 28, 2012

Hey everybody! Malor thinks the Federal government is still limited! He must have slept through the War on Drugs, the War on Terror, the War on Piracy, and assorted Wars on Nouns. Can someone fill him in on the last 20-30 years? Thanks!
posted by entropicamericana at 8:25 AM on March 28, 2012 [2 favorites]

Again, those two things are structurally identical. Constitutionality does not depend on semantic labeling. See upthread, and also any legal analysis of the taxing power. This is well-trod legal ground.
posted by gerryblog at 10:10 AM on March 28

If I understand your point, this is likely wrong. With respect to taxing power, it is very much an outcome determinative issue whether something is an incentive or a tax. As I noted directly above, had this been an incentive so that everyone with insurance gets a tax break of $695, that is probably constitutionally permissible because it is not a direct tax and people can choose whether to avail themselves of the benefit. But making it a tax for people who don't have insurance of $695 makes it an un-apportioned, constitutionally questionable direct tax because the Constitution prohibits such.

You can argue that it is "structurally identical" insofar as people without insurance are paying $695 more per year under either the incentive or tax, but there is a constitutional distinction. And the distinction is this: under the incentive, people can opt in for it. Under the tax, people cannot opt out of the tax. They are taxed if they are born and do nothing.
posted by dios at 8:27 AM on March 28, 2012

So, what stays if the mandate dies? Sorry if I missed this upthread.
posted by angrycat at 8:32 AM on March 28, 2012

angrycat: that's what they are arguing about as we speak in front of the Supremes. Day 3 argument is about "severability". If mandate dies, is is severed out and the rest remaining? Or does the whole bill die? Or should some result obtain between those two boundaries.
posted by dios at 8:34 AM on March 28, 2012

Second update from the severability argument:

We are roughly two-thirds of the way through the severability argument. The government’s lawyer was finishing up when I left the building. So far it is hard to see where this one is going. Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.

But Ed Kneedler also faced skeptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)

posted by zombieflanders at 8:36 AM on March 28, 2012

But making it a tax for people who don't have insurance of $695 makes it an un-apportioned, constitutionally questionable direct tax because the Constitution prohibits such.

Its a tax for everyone. Everyone must pay. But if you have insurance, you get a credit equal to the tax payment you make. The tax payment is not removed, but a tax credit is added.
posted by Ironmouth at 8:38 AM on March 28, 2012

This is false. The second Militia Act of 1792 required every adult free white male to own a musket or rifle and assorted accoutrement.

But that's not Commerce, that's Militia. Different Constitutional theory entirely.

You know, I don't see that distinction. Where is it written in the Constitution or jurisprudence that while exercising one power, the government may force someone to buy something and while exercising another the government may not.

Not to mention no one is forced to buy anything. Everyone is paying a new tax. If they have proof of health insurance, they get a tax credit equal to the amount they pay in the tax on top of paying the tax. Their requirement to pay the tax is not changed, their eligibility to get a tax credit is changed.
posted by Ironmouth at 8:41 AM on March 28, 2012 [1 favorite]

Severability is the issue at hand today. Basically if one part of the law is unconstitutional then is the entire law unconstitutional?

Basically the court has the potential option of throwing out the entire law which is what the plaintiffs want or they could just throw out the individual mandate and allow the remaining regulatory features to stay in place.

Of course if the law as a whole is constitutional then I would expect a major fight by insurers to work on repealing the regulatory framework (so they can deny coverage once again) as they claim that increasing coverage without broadening the risk pool is financially unsustainable. I would also expect conservative states to challenge the medicaid expansion in various ways.

I wonder if Democrats could use a ACA act sans individual mandate as a stick to force Republicans to negotiate some other solution since there will be enormous pressure on all parties to compromise. Recent history seems to indicate that Democrats would be likely to cave but they could definitely get a pound of flesh in the process.
posted by vuron at 8:43 AM on March 28, 2012

Everyone is paying a new tax. If they have proof of health insurance, they get a tax credit equal to the amount they pay in the tax on top of paying the tax. Their requirement to pay the tax is not changed, their eligibility to get a tax credit is changed.

I'm pretty sure that's not how the ACA was structured.
posted by BobbyVan at 8:44 AM on March 28, 2012

Does it seem weird to anybody who knows more than I that Kagan et. al. on the side of HCA would start worrying TODAY that the court was going to strike down the mandate? I mean, do they refrain from discussing the case prior to argument or something?
posted by angrycat at 8:46 AM on March 28, 2012

That's all Kennedy's fault. You can never tell when he's in a judicial mood or a political mood. And that mood will likely change several times before the decision.
posted by zombieflanders at 8:48 AM on March 28, 2012

I would expect a major fight by insurers to work on repealing the regulatory framework (so they can deny coverage once again) as they claim that increasing coverage without broadening the risk pool is financially unsustainable. I would also expect conservative states to challenge the medicaid expansion in various ways.

Would this be a bullshit argument? Not a loaded question, but I did think that the mandate was tied to the other stuff because of funding issues.
posted by angrycat at 8:49 AM on March 28, 2012

New Yorker legal analyst Jeffrey Toobin tweets: "At #scotus, still a train wreck, maybe also a plane wreck for @barackobama."
posted by BobbyVan at 9:01 AM on March 28, 2012

Someone else would probably have to provide estimates of the financial costs of expanding coverage without increasing the risk pool and what impact that might have on insurance premiums.

Presumably the healthcare companies would have increased costs because they can no longer deny coverage to high-risk clients. So assuming that they would still want to maintain their profit margins they would have to increase revenues in some way. The increased number of healthy clients was supposed to accomplish that but absent that it seems likely that costs to consumers would tend to increase to a rate that supports the new costs to insurers.

This would probably cause many privately insured individuals and some employers to drop existing coverage. This would presumably increase the number of uninsured individuals unless there was access to a government run option that could pick up the slack at a lower cost than the private insurers.

In essence it seems like it would gradually force the insurers out of business as they would continually have to increase premiums to match the ever declining pool of consumers. That's assuming that some sort of public insurance co-op that competes with private insurers is viable.

In short a ton of really big ifs. I'm not really sure what is likely to happen if the court rules that the individual mandate is unconstitutional but is unwilling to jettison the whole law. A big political fight certainly but otherwise who knows.
posted by vuron at 9:02 AM on March 28, 2012

Re: Militia Act. That is an apples to oranges comparison. You are dealing with legislation to meet a specific constitutional imperative with the Militia Act.

Sure, fine. There are still good reasons to bring it up.

One is that laymen (and, I expect but will not bother to look up, some Republican officials) do state without qualifiers that it would be unconstitutional for the feds to make you buy something. But this seems unequivocally false, unless they hate George Washington.

Another is that it punctures the scare-talk around arguments like Malor's. Malor says "To my best knowledge, it has never been the case that the Federal government has been able to require you to take a proactive action." Now, this is silly on its face, because presumably Malor has registered with Selective Service at some point. So, scare-words tonedown number 1: When he says "a proactive action," he must mean mean the less scary "buy something."

Adding the bit about the militia act means that he's either (a) wrong or (b) really means, in scare-words tonedown number 2, that "it has never been the case that the Federal government has been able to require you to make a purchase under the auspices of the commerce clause, though it has always been able to do so under other powers of the Constitution." Which is rather less scary.

Third, it punctures the slippery-slope argument. "Or, for that matter, what if all of us are forced to purchase cars the next time the auto industry gets in trouble?" But if the federal government has been able to compel purchases of militia members, and can make essentially everyone a member of an inactive militia, *as it has actually done*, then the federal government has had the capacity to do this nefarious deed since 1789 and we can empirically observe how strongly it has been abused.
posted by ROU_Xenophobe at 9:21 AM on March 28, 2012 [2 favorites]

Not to mention no one is forced to buy anything. Everyone is paying a new tax. If they have proof of health insurance, they get a tax credit equal to the amount they pay in the tax on top of paying the tax. Their requirement to pay the tax is not changed, their eligibility to get a tax credit is changed.
posted by Ironmouth at 10:41 AM on March 28

Ironmouth, your argument is very different than the one the federal government made yesterday. Are you trying to make a creative argument for the sake of argument? Or are you suggesting that is exactly how it is structured? I would anticipate the Solicitor General might have pointed that out if that was, in fact, how it is structured. Instead, he clearly stated that 5000A is a penalty to be paid by those who do not maintain insurance and as such is a tax under the taxing power. He never once tried to argue that it is a uniform tax and a credit, so I'm at a loss as to where you are getting this argument.
posted by dios at 9:23 AM on March 28, 2012 [1 favorite]

New Yorker legal analyst Jeffrey Toobin tweets: "At #scotus, still a train wreck, maybe also a plane wreck for @barackobama."

Toobin, has been strangely overwrought since yesterday. Don't know if it's just his personal excitement over this, or he's over-sensationalizing a bit or if the country's on the verge of a decision that's going to mean Right-wing domination for the next decade, as it did after Bush vs. Gore, in which that court hypocritically thumbed it's nose at state's rights (and the fact that Gore won the people count).

I'm beginning to get a bad feeling about this. The GOtP has wanted a way to truly truly give the Obama Admin. a major down-pegging and whack in the chops for all those indignant racists/birther's/Tea Pee-er's/Dittoheads who can't stand the guy, and Robert's SCOTUS has seemed willing to oblige in the past.

Here's a question: Can lawmakers call the judges and petition for a certain kind of outcome? For example: Can a Mitch McConnell or a Jim DeMint get on the phone on a daily basis and rag on various members of the court to "do the right thing"?
posted by Skygazer at 9:23 AM on March 28, 2012

Sorry to be Ms. Question, but how did FDR get away with threatening to stack the court back in the day? Would the Senate have backed his move or what?
posted by angrycat at 9:24 AM on March 28, 2012 [1 favorite]

New Yorker legal analyst Jeffrey Toobin tweets: "At #scotus, still a train wreck, maybe also a plane wreck for @barackobama."

BREAKING: National news personality engages in hyperbole to gain attention.
posted by zombieflanders at 9:25 AM on March 28, 2012

He does have a new book in September (ie: Toobin).
posted by Skygazer at 9:28 AM on March 28, 2012

BTW, this is the lede from people familiar with the Court and the Justices not working on getting ratings:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

posted by zombieflanders at 9:30 AM on March 28, 2012 [1 favorite]

Sorry to be Ms. Question, but how did FDR get away with threatening to stack the court back in the day? Would the Senate have backed his move or what?

Well, he did have 76 votes to start with there plus 334 in the House. When your party controls 75% of both houses, you have a lot of latitude.
posted by Copronymus at 9:31 AM on March 28, 2012 [3 favorites]

Scalia lets his inner teabagger fly on severability today.
posted by T.D. Strange at 9:32 AM on March 28, 2012

This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

Dahlia Lithwick
posted by angrycat at 9:32 AM on March 28, 2012 [2 favorites]

Congress can alter the size of the Supreme court and did so at various times in the 19th century to best meet the caseload demands of the court. The Judiciary Act of 1869 set it to the current 9 justices. Now that the Justices control which cases they choose to hear there aren't a ton of reasons to alter the size based upon caseload.

So basically increasing the size would be done to dilute existing power of a block of justices.

FDR threatened this in response to the SCOTUS blocking some of the New Deal legislation but ultimately a backlash against this attempt (which was largely seen as political maneuvering) stopped the attempt. Retirements which allowed him to appoint a pretty liberal court also limited the political need.

So in theory Congress could decide to say screw you to the court and give a President the power to pack the bench but it seems unlikely that the supermajorities required to push that sort of attempt are likely to happen anytime soon.

So in the meantime we jockey for the presidency because most presidents can shape judicial policy at least indirectly through the appointment process.

This is one of the key reasons that some more pragmatic liberals say that voting for Obama no matter how disappointing he is in terms of reaching a liberal agenda is so damned important, because there is likely to be 1-2 retirements in the 2012-2016 time period and the idea of a 6-3 conservative block in the SCOTUS is fairly terrifying.
posted by vuron at 9:38 AM on March 28, 2012 [4 favorites]

Why, your brilliant plan of not voting for the "Lesser Evil" party this year is absolutely brilliant! I mean, why even bother electing officials who have even a modicum of restraint? Romney and Obama are totes similar you guys! It's not as if the rights of minorities to vote or women to control their bodies or people to marry who they want are about to be enshrined in a generation or two's worth of law, amirite?

Wow, someone didn't bother to read the comment. The point was that you can't use 'political unpopularity' as a way to avoid abuses, because if republicans and democrats both do something politically unpopular together (A good example: SOPA, which was on political auto-pilot and looked certain to pass with bipartisan support) then everyone is screwed, because there is no one else to vote for.

If there was a law that said "healthcare costs are costing the federal government money. Therefore, we are going to impose a new tax on everyone to help pay for these costs. However, people who have coverage will be exempt, because they're care is already being paid for". There would be no debate. We have such a law, it's called PPACA, and that's exactly what it does. We just don't use the word tax.

Why would it be surprising that the constitutionality of a law might be dependant on the text of the law? Wording has always mattered in law.

Again, those two things are structurally identical. Constitutionality does not depend on semantic labeling. See upthread, and also any legal analysis of the taxing power. This is well-trod legal ground.

Again, why on earth would constitutionality not depend on semantic labeling? Since when has semantic labeling not been important in the law?

----

This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

I'm not really sure what she's talking about here. "Freedom" is fundamentally the opposition of an "Obligation"? It doesn't matter if you think it's an obligation people should have it's still infringement on "Freedom". Whenever you make someone do something they don't want to do, or prevent someone from doing something, you're restricting their freedom.

None of what she says there has anything to do with whether or not 'freedom' is involved.
posted by delmoi at 9:39 AM on March 28, 2012

The Democrats enjoyed huge majorities (that they are unlikely to see again for generations) in both houses in 2009/2010 and still couldn't muster the votes to pass a public option.

No, they didn't. As point out above, FDR had 76 votes in the Senate and 334 in the House. In 2008 the Democrats had 59 votes in the Senate (counting Blue Dogs and Joe Liebermann) and 257 votes in the House.
posted by kirkaracha at 9:47 AM on March 28, 2012 [4 favorites]

Scalia in 2005:

“Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.”

posted by Skygazer at 9:51 AM on March 28, 2012

Jonathan Alter ‏ @jonathanalter tweets: Conserv justices arguing that Obamacare may be "necessary" but isn't "proper". That's a pub policy not const argument. Sooo political.
posted by Skygazer at 9:57 AM on March 28, 2012

Is there any consensus who Obama's next supreme court pick would be? I recall a really insightful comment on MeFi that predicted why it would be Sotomayor then Kagan.
posted by mattbucher at 9:59 AM on March 28, 2012

Wikipedia suggests Diane Pamela Wood, who was on the short list both times an opening came up.
posted by zombieflanders at 10:04 AM on March 28, 2012

I think it really depends on who retires next.

Ginsburg and Breyer seem likely to retire if Obama wins re-election.

Scalia and Kennedy are both getting up there in terms of age and while I think both would prefer to retire during a Republican administration that might not always be an option. I think both can last 4 more years but if the Democrats hold the presidency in 2012 and 2016 then that would be an opportunity for a significant shift in the court for the foreseeable future.
posted by vuron at 10:10 AM on March 28, 2012

Jonathan Alter ‏ @jonathanalter tweets: Conserv justices arguing that Obamacare may be "necessary" but isn't "proper". That's a pub policy not const argument. Sooo political.

Thanks for not prefacing your comment with "Noted constitutional scholar Jonathan Alter tweets..."
posted by BobbyVan at 10:10 AM on March 28, 2012

New Yorker legal analyst Jeffrey Toobin tweets: "At #scotus, still a train wreck, maybe also a plane wreck for @barackobama."
posted by BobbyVan at 12:01 PM on March 28 [+] [!]

Thanks for not prefacing your comment with "Noted constitutional scholar Jonathan Alter tweets..."
posted by BobbyVan at 1:10 PM on March 28 [+] [!]

ಠ_ಠ
posted by zombieflanders at 10:17 AM on March 28, 2012

there is likely to be 1-2 retirements in the 2012-2016 time period

Ginsburg is 78, Kennedy and Scalia are 75, Breyer is 73, Thomas is 63, Alito is 61, Sotomayor is 57, Roberts is 56, and Kagan is 51.
posted by kirkaracha at 10:19 AM on March 28, 2012

ಠ_ಠ
posted by zombieflanders at 1:17 PM on March 28 [+] [!]

Jeffrey Toobin is a 1986 graduate of Harvard Law School, where he was an editor of the Harvard Law Review.
posted by BobbyVan at 10:20 AM on March 28, 2012

Ginsburg is 78, Kennedy and Scalia are 75, Breyer is 73, Thomas is 63, Alito is 61, Sotomayor is 57, Roberts is 56, and Kagan is 51.

It's also worth pointing out that Ginsburg has undergone surgery for colon cancer twice.
posted by zombieflanders at 10:24 AM on March 28, 2012

Jeffrey Toobin is a 1986 graduate of Harvard Law School, where he was an editor of the Harvard Law Review.

And Jonathan Alter is a political correspondent making a valid political point, whereas Toobin was a legal analyst making a valid courtroom point. So what's yours?
posted by zombieflanders at 10:27 AM on March 28, 2012

Oh, and BTW this noted constitutional scholar (and Reagan Solicitor General) had this to say:

First of all, the limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.

Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.

Here’s another thing Marshall said. To regulate is “to make the rule for.” Does this make a rule for commerce? Yes!

posted by zombieflanders at 10:30 AM on March 28, 2012 [1 favorite]

Jeffrey Toobin is a 1986 graduate of Harvard Law School, where he was an editor of the Harvard Law Review.

That makes him a lawyer. It doesn't make him a constitutional scholar. I'm surprised you didn't bring up The Nine instead, which would have made much more sense as a credential.
posted by Sticherbeast at 10:32 AM on March 28, 2012

And Jonathan Alter is a political correspondent making a valid political point, whereas Toobin was a legal analyst making a valid courtroom point. So what's yours?

Actually, Alter is misunderstanding that the "necessary and proper" clause has a specific history in US case law. To say a law is "necessary" but not "proper" is not a political statement or public policy judgment.

To wit:

And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Id., at 421. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." Ibid. These phrases are not merely hortatory. For example, cases such as Printz v. United States, 521 U. S. 898 (1997), and New York v. United States, 505 U. S. 144 (1992), affirm that a law is not "`proper for carrying into Execution the Commerce Clause'" "[w]hen [it] violates [a constitutional] principle of state sovereignty." Printz, supra, at 923-924; see also New York, supra, at 166.

That makes him a lawyer. It doesn't make him a constitutional scholar. I'm surprised you didn't bring up The Nine instead, which would have made much more sense as a credential.

Christ. Can we just agree that Toobin has a lot more to say about what happens inside the Supreme Court than Jonathan Alter?
posted by BobbyVan at 10:34 AM on March 28, 2012

Actually I'm kinda surprised Ginsburg didn't retire last year. Retiring during an election year seems like it would just drive people on both sides into hyper partisanship (as if we aren't already there) and the Republicans in the senate would just hold it up ad infinitum.

The Republicans are holding up everything they didn't write ad infinitum. In any case, Ginsburg said she'd like to serve until at least 2015. So unless something bad happens, she'll hang in there.

Can the President do recess appointments to the Supreme Court? Or would that be pushing stuff too far?

Technically, yes, but it would be an enormous shitstorm.
posted by zombieflanders at 10:37 AM on March 28, 2012

BobbyVan: Christ. Can we just agree that Toobin has a lot more to say about what happens inside the Supreme Court than Jonathan Alter?

Nope. there's a lot going on here, simultaneously, that are beyond the limited science of Toobin, Horatio.

And not unless you mean to suggest that anyone interested in the workings of the Supreme Court, and such an important decision needs to have a law degree.

Especially with a court, this particular court, with such a clear political leaning, as manifested by Citizen's United which gave corporations personhood status, and their political contributions expressions of free speech.
posted by Skygazer at 10:52 AM on March 28, 2012

Christ. Can we just agree that Toobin has a lot more to say about what happens inside the Supreme Court than Jonathan Alter?

His legal qualifications aren't a good reason to think so. Predicting decisions and other aspects of Supreme Court internals are more a matter of political science/judicial behavior stuff than anything lawyers train in.
posted by ROU_Xenophobe at 10:55 AM on March 28, 2012

I agree there's a lot going on, but I hate to see that noble and most sovereign reason, Like sweet bells jangled, out of tune and harsh.

Alter is a smart guy, but he's out of his depth when he assumes that a discussion of the necessary and proper clause is a deliberation on what constitutes good public policy.
posted by BobbyVan at 10:59 AM on March 28, 2012

And not unless you mean to suggest that anyone interested in the workings of the Supreme Court, and such an important decision needs to have a law degree.

In my opinion, everyone should be listening to the recordings of this because it is a good civics lesson, especially for non-lawyers. It is important to listen and think about the relationship we are supposed to have with government and want to have with government. And it is important to think about, if there are constitutional concerns to what we may want, why do those concerns exist? Are we missing something that is a legitimate concern? So I think it is very important for all citizens to be learning about and thinking about this issue, and hopefully read the opinions that come out and endeavor to understand them. If more people did that, our political discourse in this country would be much better informed.

And, in fact, if people listened to these important legal arguments and endeavored to understand what the Court is actually saying in a given case and why it would help keep people from making irresponsible and incorrect statements that do nothing but create toxicity in our political discourse. Incorrect and toxic comments like, for instance:

Citizen's United which gave corporations personhood status.

So I say to non-lawyers, "listen, absorb, and learn... and please do so before making broad claims about what is happening."
posted by dios at 11:05 AM on March 28, 2012 [1 favorite]

Christ. Can we just agree that Toobin has a lot more to say about what happens inside the Supreme Court than Jonathan Alter?

Graduating from law school and footnotin' away in law review doesn't make someone a constitutional scholar. Writing a popular book about the Court is closer, but it's still different from being a constitutional scholar. It doesn't mean that Toobin isn't a good person to follow for news about the Court, but the guy's not Erwin Chemerinsky (or the equivalent).

With regard to Alter, let's not be so hasty with regard to the Necessary and Proper Clause. "Necessary and proper" isn't as clear-cut as we'd like it to be. The determination of what is "proper" has never been clear, not to mere mortals, not to constitutional scholars, not even to originalist constitutional scholars, and not even to the framers of the Constitution itself. For example:

In the New York Convention, for example, John Williams contended that it "is perhaps utterly impossible fully to define this power." For this reason, "[w]hatever they judge necessary for the proper administration of the powers lodged in them, they may execute without any check or impediment."

Randy Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 185 (2003) (footnotes omitted)

Barnett is typically quite confident, if not often overconfident, of his understanding of the Constitution, but even in this article, his arguments about the "proper" part of "necessary and proper" do not seem to take much shape. They are uncharacteristically sloppy. Note how much shorter his "What is Proper?" section is than his "What is Necessary?" section.

He goes so far as to admit that "impropriety" may mean something as airy as illegitimate "ends" (Id. at 219), which is merely public policy by another name. However, rather than deal with this issue, he ducks out the back door determining proper jurisdiction or proper application of enumerated powers.

The point is, even among very intelligent originalist libertarian constitutional scholars, the "necessary and proper" clause is not all that clear. Whether we like to admit it or not, public policy arguments can and do flood in when the law is unclear. As to whether the Court will invoke public policy arguments in its decision for this case, who knows. I'd give it even odds. Either way, the ruling in this case will not be short and snappy.
posted by Sticherbeast at 11:22 AM on March 28, 2012

Davenhill The Democrats enjoyed huge majorities (that they are unlikely to see again for generations) in both houses in 2009/2010 and still couldn't muster the votes to pass a public option.

kirkaracha No, they didn't. As point out above, FDR had 76 votes in the Senate and 334 in the House. In 2008 the Democrats had 59 votes in the Senate (counting Blue Dogs and Joe Liebermann) and 257 votes in the House.

The point I was trying to make is that it is rare to have the coincidence of both 60 senators* and a sufficiently large majority in the house. You have to go back a generation and a half to 1977.

Given the recent abuse of the filibuster, the shifting conservatism of "moderate" Democrats, and the inability of Democrats to reliably enforce block votes, the Democratic party would need far more than 60 senators to even entertain the chance of passing Single Payer health care reform. Unfortunately it is unlikely the Democrats will achieve sufficiently large majorities in both houses again anytime soon, yet alone coincident with a political will for something as progressive as Single Payer. You have to go back to Nixon** and Truman for all of those pieces to come together. Given the current trend in our politics, I think it's fair to say that won't happen again for generations, if indeed it ever happens.

* counting the two independents and the two high water marks in the fluctuating count
** Ted Kennedy had worked with Nixon on a universal health care bill, and again worked with Carter on a more modest proposal. In both cases he scuttled those efforts in the 11th hour for political reasons (he didn't want to give Nixon a face-saving signature achievement once Watergate surfaced, and he didn't want to help Carter once he decided to run against him). For someone who claims to have fought his whole life for health care reform, he's also on the short list of people most to blame for us not having it.

posted by Davenhill at 11:29 AM on March 28, 2012 [1 favorite]

With regard to Alter, let's not be so hasty with regard to the Necessary and Proper Clause. "Necessary and proper" isn't as clear-cut as we'd like it to be.

If any of this were clear-cut, this thread wouldn't exist!

The point is, even among very intelligent originalist libertarian constitutional scholars, the "necessary and proper" clause is not all that clear. Whether we like to admit it or not, public policy arguments can and do flood in when the law is unclear. As to whether the Court will invoke public policy arguments in its decision for this case, who knows. I'd give it even odds. Either way, the ruling in this case will not be short and snappy.

That seems balanced and reasonable. Much more so than this statement:

Conserv justices arguing that Obamacare may be "necessary" but isn't "proper". That's a pub policy not const argument. Sooo political.

posted by BobbyVan at 11:30 AM on March 28, 2012

Incorrect and toxic comments like, for instance:

Citizen's United which gave corporations personhood status.

I admit poor choice of words on my part, and I don't want to derail into a debate over Citizen's United, other than to say that conservative, Federalist, strict interpretationist judges have been getting away with the ideological equivalent of murder, via that methodology that limits decisions strictly to their micro-inner-clock sprung legal workings, without ever pretending to realize what the real-world effects of their decisions actually are...I think it's the most cynical and devious, and egregious form of legal activism there is IMHO.

We don't ask laboratory scientists to make clinical decisions and interact with patients for a reason. Why should "laboratory" judges make "legal correctives" for the real world?

For example, can Scalia or Thomas, even for a second know what it is like, to worry that you're one sick person in your family away from complete financial bankruptcy? Or even worse, that you can't afford a procedure that means the difference between life and death for a family member??

Nah, course not. They sit on their fat asses and worry about their fucking ego's, and fucking legacies, and whatever the fuck else superficial concern they have, like where they're spending their summer vacation and if the Koch bros. will let them use the fucking private jet again...

But you, know, that's "toxic" talk.
posted by Skygazer at 11:32 AM on March 28, 2012

all talk is toxic
that is why active people are so healthy
writers so unhealthy
and politicians deathly
posted by TwelveTwo at 11:43 AM on March 28, 2012 [1 favorite]

That seems balanced and reasonable. Much more so than this statement:

Conserv justices arguing that Obamacare may be "necessary" but isn't "proper". That's a pub policy not const argument. Sooo political.

Fair enough, but I don't think he's a million miles away from the truth.

While of course the determination of what is "necessary and proper" is a constitutional question, the actual reasoning behind what is "proper" is often so airy-fairy as to be indistinguishable from many public policy arguments.

If the mandate will be struck down through the Necessary and Proper Clause, the Court will not argue, as Barnett would have "propriety," that the federal government has no enumerated power over regulating interstate commerce in general. That would be ridiculous.

Instead, if the Court seeks to kill the mandate through the Necessary and Proper Clause, they'll probably use a much more nuanced argument about it being more generally "improper" for the government to use tax penalties to compel people to purchase health insurance. This ruling would not merely be about finding this word or that in the Constitution or in the Court's case law, but instead it would indeed take public policy considerations into account. The Court would have to see what the positive or negative real world effects would be of adopting or striking down a certain law, of allowing the government to assume this power.

These sort of value judgments are allegedly improper in the act of judging, according to the originalist scholars. See Scalia's belief in the duresse oblige of judging, see Barnett's belief that a judge could not have struck down the Runaway Slave Act until the Constitution had been amended.

This is why it would be so curious to see these public policy considerations suddenly appear in this ruling. That is, of course, if only if the Court does try anything like striking down the mandate through the Necessary and Proper Clause.
posted by Sticherbeast at 12:00 PM on March 28, 2012 [1 favorite]

Instead, if the Court seeks to kill the mandate through the Necessary and Proper Clause, they'll probably use a much more nuanced argument about it being more generally "improper" for the government to use tax penalties to compel people to purchase health insurance. This ruling would not merely be about finding this word or that in the Constitution or in the Court's case law, but instead it would indeed take public policy considerations into account. The Court would have to see what the positive or negative real world effects would be of adopting or striking down a certain law, of allowing the government to assume this power.

Really? Here's how the "necessary and proper" discussion went. I don't see any evidence of the court taking "public policy considerations into account" here.

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation -

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that exists.

GENERAL VERRILLI: But it -

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

posted by BobbyVan at 12:20 PM on March 28, 2012

Having Justice Ginsberg reference "infected" parts of the ACA law and "wreck[ing] the whole thing" can't be positive news for the White House.

JUSTICE GINSBURG: And what we're really talking about, as Justice Sotomayor started this discussion, is who is the proper party to take out what isn't infected by the Court's holding — with all these provisions where there may be no standing, one institution clearly does have standing, and that's Congress.

And if Congress doesn't want the provisions that are not infected to stand, Congress can take care of it.

It's a question of which — which side -should the Court say, we're going to wreck the whole thing, or should the Court leave it to Congress?

posted by BobbyVan at 2:11 PM on March 28, 2012

I don't own a home; my taxes would be lower if I did. I'm getting taxed "more" relative to someone who owns a house.

Actually, that's not true. The tax deduction is on interest paid on your mortgage. Those who own their homes outright get no such deduction. The mortgage interest deduction is basically a subsidy to banks.
posted by spacewaitress at 3:16 PM on March 28, 2012 [2 favorites]

To my best knowledge, it has never been the case that the Federal government has been able to require you to take a proactive action.

Correct me if I'm wrong, but I believe that I was required by law to register for the draft.

I also believe that I am required by law to file a tax return every year.
posted by Flunkie at 5:02 PM on March 28, 2012

Does Antonin Scalia Know What's in the Affordable Care Law?
posted by homunculus at 5:08 PM on March 28, 2012

Does anyone know everything of what's in that thing? 2700 pages? Up from the original 900?

Nobody who voted for it read the whole thing in the 24 hours that it was finalized. The person who signed it didn't read it.

Is that alone not unConstitutional somehow? It was certainly unethical and immoral.
posted by caclwmr4 at 6:20 PM on March 28, 2012 [1 favorite]

Read it? Reading is for cowards. The brave sign boldly with strength to question nothing and the courage to obey absolutely! Hail to the brave, the strong, the obedient. All hail our leaders, the led!
posted by TwelveTwo at 6:25 PM on March 28, 2012

I want a zombie Alexander Hamilton to pay a visit to the court and explain the purpose of the Commerce Clause.
posted by angrycat at 6:32 PM on March 28, 2012

Does anyone know everything of what's in that thing? 2700 pages? Up from the original 900?

Nobody who voted for it read the whole thing in the 24 hours that it was finalized. The person who signed it didn't read it.

I've always kinda wondered, has anyone tried to insert a pet project into one of these 2000+ page bills in the hopes that it gets signed into law with nobody the wiser, when there's no time for anyone to read the whole thing before passing it?
posted by jason_steakums at 8:29 PM on March 28, 2012

Yes.
posted by TwelveTwo at 8:30 PM on March 28, 2012 [1 favorite]

New life goal: become a Congressman, insert "...and Rep. Steakums gets free beer and hot wings for life." into the dryest, dreariest passage of every bill over 2000 pages.
posted by jason_steakums at 8:39 PM on March 28, 2012 [2 favorites]

Even if I am purchasing car insurance from a provider in another state.

This may be OBE at this point in the conversation, but it's worth pointing out that you do not "purchas[e] car insurance from a provider in another state." That just does not happen, at least that I am aware of.

The "national" insurance providers are actually collections of insurance companies, each licensed and regulated within a particular state. This is why, if you have (say) Nationwide, and move from Connecticut to Massachusetts, you get a new insurance card in the mail. You actually just changed insurance companies -- from Nationwide of Connecticut (a Connecticut insurance company) to Nationwide of Massachusetts (a Massachusetts insurance company). Two separate legal entities, existing in different regulatory regimes -- in the case of Massachusetts, substantially different -- that just happen to probably be wholly-owned subsidiaries of the "Nationwide" that you think you're doing business with all along. (This is all hypothetical, I don't even know if Nationwide does business in MA; many national auto insurers don't, because MA is kind of a weird animal.)

A big insurance company offering various lines of business (e.g. auto and homeowners, or life and health, or whatever) could potentially have multiple insurance companies in each state. Sometimes these are tightly controlled by a single public corporation (Cigna), and in other cases they're more loosely coupled (Blue Cross).

But anyway, insurance is very much a state-regulated thing, and there is very little cross-state-border commerce. The big insurance companies have done a lot, particularly in the auto insurance sector but also in health insurance and some other areas, to smooth out the differences and transitions when you move from one state to another, from the consumer's perspective. But on the back end it is all separate.
posted by Kadin2048 at 9:30 PM on March 28, 2012

Anyone else notice how it seems as the the conservative judges are more interested in the fate of insurance companies then they are about people without insurance.

Nobody who voted for it read the whole thing in the 24 hours that it was finalized. The person who signed it didn't read it.

People may have read drafts, and then read 'diffs' of what changed between the draft they read and the final version.

Also, "2700 pages" is somewhat inaccurate, as legislation is written in a large font (like 14-16 pt) double spaced. Printed like a normal book, it would be a few hundred pages, supposedly
posted by delmoi at 10:40 PM on March 28, 2012

I've always kinda wondered, has anyone tried to insert a pet project into one of these 2000+ page bills in the hopes that it gets signed into law with nobody the wiser, when there's no time for anyone to read the whole thing before passing it?

Given what happened last year during Minnesota's budget shutdown and fight I would just about guarantee it.

We had a situation where the R dominated legislature and the DFL Governor locked horns and the R's refused to pass a budget the gov would sign so we had an emergency shut down. During the state shutdown negotiations proceeded to come up with a solution and one was finally signed into law. Only, there was at least one unauthorized insertion by some annoymious legislator that would kill off corporate foster care (even non-profits) in the State by saying once someone moved out of a facility the company could not fill the slot.
No one knows who inserted it, and the bill was written and signed into law so fast (to get the State back up and running) no one caught it until after the fact. The work around for now is that DHS has agreed (with the consent of the Gov and Legislature leaders) to not enforce the new "law", and supposedly it will be amended and withdrawn next the legislature meets.
posted by edgeways at 8:16 AM on March 29, 2012

Is that alone not unConstitutional somehow? It was certainly unethical and immoral.

FWIW I guarantee you very few, if any, of the House members has read the stalled Highway bill all the way trough, ditto the so called House "budget" or anything longer than a precis of any law that is longer than 10 pages. Take Michelle Bauchman for example, do you think she can focus enough to even get through the cliff notes of Moby Dick?
posted by edgeways at 8:20 AM on March 29, 2012

The Supreme Court Parties Like It's 1936

Judicial activists in the Supreme Court

Once-ludicrous opinions might carry the day

Justice Kagan: "Wow. Wow."
posted by T.D. Strange at 9:03 AM on March 29, 2012 [1 favorite]

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.

(snip for space)

I'd have to read an actual opinion to understand Scalia's reasoning here, should he proceed on this point, but as stated in oral arguments, Scalia's legal point lacks solidity. Despite the legal language, there's a big fat plain old public policy concern lurking underneath: Scalia doesn't like the individual mandate, because he personally thinks it would be a bad idea for the federal government to behave this way. There isn't much substance to the idea that this is obviously an improper "expansion" of the government's power, or that this particular power of the federal government is any more or less egregious than other powers of the federal government of which Scalia enthusiastically approves.

More specifically, the States' sovereignty argument is incoherent as it allegedly applies to ACA. The individual mandate ultimately concerns Federal taxes. The States have never had the authority to assess (or waive) Federal tax penalties. How does the individual mandate interfere with the sovereignty of the States? Please be specific, please be concrete. I don't accept "the sovereignty of the States" as a generic, hand-wavey way of saying it makes the Federal government too powerful, especially when Scalia has also been on record as stating that the federal government may certainly regulate intrastate, noneconomic activity when such activity would even merely "undercut" federal interstate regulation.

It's all well and good that Scalia sees the mandate as being a bad thing, where others may see it as a good thing, but if he can't back up his arguments with a substantive, concrete, at least somewhat consistent legal argument, then it's just boiling down to whatever Scalia thinks is a good or bad idea. At the very least, it's merely the left-handed isomer of the "health care is special" argument.
posted by Sticherbeast at 9:24 AM on March 29, 2012

Take It From Me: Defending Obamacare is Super-Hard
posted by unSane at 9:26 AM on March 29, 2012

Oh, and BTW this noted constitutional scholar (and Reagan Solicitor General) had this to say:

Don't forget author of "Obama Is Too Good For Us"!

More specifically, the States' sovereignty argument is incoherent as it allegedly applies to ACA. The individual mandate ultimately concerns Federal taxes. The States have never had the authority to assess (or waive) Federal tax penalties. How does the individual mandate interfere with the sovereignty of the States? Please be specific, please be concrete.

You "snipped" too much. Scalia isn't talking about "state sovereignty." He's suggesting that even if the mandate is deemed necessary to further a legitimate Congressional function (regulating interstate commerce), it may be "improper" because by forcing individuals to purchase health insurance, it runs afoul of the spirit of the constitution, which defines the federal government as one of enumerated powers. Please see this amicus brief (.pdf) on this subject for more detail.

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that exists.

GENERAL VERRILLI: But it -

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

posted by BobbyVan at 10:36 AM on March 29, 2012

There isn't much substance to the idea that this is obviously an improper "expansion" of the government's power

Pardon? That's a rather bold claim to make seeing as how the conventional wisdom is that, after listening to this concern being stated by the majority of the Court, by the end of June the Supreme Court will say precisely that.

More specifically, the States' sovereignty argument is incoherent as it allegedly applies to ACA.
posted by Sticherbeast at 11:24 AM on March 29

He didn't apply to the ACA. What he was saying is that "necessary and proper" are two separate considerations. And as evidence of that he was referencing two cases in which the Court found something necessary but not proper (and in those cases, the improper part was a states issue).

Here is he arguing that it is not enough to be necessary, it must also be a proper exercise of the government's enumerated powers (read: cannot exceed or run afoul of those powers). No one, including Scalia, has argued that the individual mandate is a states' rights issue.

If he votes for it, it will be because of a Raich analysis. If he votes against, which is likely, it will be that the mandate has no limiting principle and exceeds the authority granted by the Commerce Clause by requiring individuals to take a proactive step to enter commerce.
posted by dios at 10:59 AM on March 29, 2012

If Scalia didn't think States' sovereignty was relevant, then why did he bring it up? Either it's total nonsense, or it's a rhetorical trick to make his personal distaste for the individual mandate look more legal than it is.

All Scalia is saying is that the federal government ought to be limited in this respect because it ought to be limited in this respect. If taken as a purely legal argument, his reasoning is thin and tautological. What's really going on is that he thinks it would be a bad idea to give the government this sort of power. That's a policy consideration. Maybe he's right, maybe he's wrong, but in talking about whether or not the mandate would be a good idea or a bad idea, he's moving from the realm of purely legal arguments and into the realm of public policy arguments.

The idea that the individual mandate gives Congress "unlimited" power is unfounded. Congress has always had the enumerated power to tax. Congress still has to go through the appropriate electoral and legislative processes. All the individual mandate is a tax credit, phrased in such a way that politicians can (disingenuously) claim that they didn't raise taxes in order to pass ACA. I don't remember anywhere in the Constitution where it said that you couldn't do this.

Also, it's weird that the amicus brief which brings up the Constitution's text and original meaning, and then immediately quotes a speech James Madison made. Originalism, she was born and died in the same paragraph.

...

Pardon? That's a rather bold claim to make seeing as how the conventional wisdom is that, after listening to this concern being stated by the majority of the Court, by the end of June the Supreme Court will say precisely that.

This is tautological. Of course if the Court says that, then the Court says that.

What I have been saying is that the determination that the individual mandate is "improper" is a public policy argument in a legal argument's clothing, as the legal definition of "propriety" becomes so vague and inconsistently understood as to be essentially a public policy prong. If the Court decides that the individual mandate is an improper exercise of the federal government's power under the Commerce Clause, without overruling Raich, then there is no legal consistency whatsoever. Like I said before, it's just another version of the "health care is special" argument.

The more interesting strictly legal question is whether or not someone has entered into the stream of health care commerce by the act of being born.
posted by Sticherbeast at 11:12 AM on March 29, 2012

If Scalia didn't think States' sovereignty was relevant, then why did he bring it up?

I already explained that to you. Most of oral arguments on legal issues deal with hypotheticals and comparisons. Because if an issue has been squarely decided, there is not a whole lot left to argue about other than over-turning existing precedence. So all Scalia was saying was "we have held things necessary but not proper before" and then gave examples. There are not a lot--its a very thin topic. So the two he referenced are when something was held necessary but not proper because it impinged upon the tenth amendment. The substance of the examples were meaningless to the point he was making which is that the Court has done it. It is no different than saying "We have held things necessary but not proper before when an action violated the Fourth Amendment". For instance, it might be really helpful and necessary for the IRS to have access to your bank accounts such that they could monitor cash flow and directly withdraw your taxes in order to combat the extreme problem of people not paying taxes that is causing our economy to be weak. But that not be a proper action because it would violate the Fourth Amendment.

It is just an example.

What I have been saying is that the determination that the individual mandate is "improper" is a public policy argument in a legal argument's clothing, as the legal definition of "propriety" becomes so vague and inconsistently understood as to be essentially a public policy prong.

This is not accurate. There is a very definite legal meaning: there is a "Necessary and Proper" Clause in the Constitution. Something might be necessary, but it also has to be proper. And proper means an appropriate use of governmental power that does not exceed a constitutionally-granted enumerated power or impinge upon a constitutionally protected right. There have been cases that address this. "Proper" means "does the constitution allow this exercise of authority" It does not mean, as you suggest, "do I like this policy."

If the Court decides that the individual mandate is an improper exercise of the federal government's power under the Commerce Clause, without overruling Raich, then there is no legal consistency whatsoever.

I do not think that is correct either. Depending on what happens, Raich could stand if the holding is that Congress cannot compel all people to enter commerce through exercise under authority of the Commerce Clause. Such a holding would have no impact upon Raich. That case and the regulations at issue in that case dealt only with people who grew marijuana. It had no effect on everyone else. The issue here is that everyone is controlled, regardless of whether they want to buy insurance.

Look, I'm not trying to convince you of the right answer one way or the other. I think every one of those justices could write a different opinion going different ways with this, and they all could make compelling arguments. But I think you do them each a disservice when you do not approach them on their own terms.
posted by dios at 3:23 PM on March 29, 2012 [1 favorite]

Dios -
What would you guess the rulings would be? Obviously, you have about as much idea as anyone else who follows this stuff (aka no real way to tell until the ruling comes out,) but what does your gut tell you?

(My layman's and not terribly educated guess - mandate falls 5-4, rest of law except guaranteed issue and community rating intact 6-3.)
posted by azpenguin at 7:50 PM on March 29, 2012

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

Excepting, of course, when he and his ilk deem it necessary, in their infinite and fickle wisedom, to overturn a state court ruling, such as it did with Florida in Bush v. Gore

Scalia, is ridiculous. Period. The damage the man's done to the nation with his divine rights approach to law has set it back decades, and if he goes through with his internalized and deeply deeply (he should recuse himself and so should Thomas. They're both shills for the Kochs) partisan, and Democrat base and Obama derangement syndrome ways, he'll set it back even further.

They're going to kill the mandate. Period. There's no way they don't. This is the GOtP's moment of existential crisis, and as much as, it's become an unhinged rabid aberration that desperately needs to be taken behind the shed and put out of it's misery, for everyone's sake, they lost all perspective on that.

Good, let them kill it. It's going to energize all those people out there millions who were finally being treated like human beings by the private insuurance co.'s, not to mention progressive and Obama's not only going to win, there will be Dem majorities in the House and Senate. Clear majorities. Re-pass ACA as single payer universal health care, or extend Medicare, and see to it that SCOTUS is manned (or womaned) with persons who can contain the rot of these five partisan, activist unhinged right-wing operatives.

There's no way anyone, is going to convince me, especially condescending lawyers on thr Right that these folks have any credibility left. SCOTUS is clearly BUBAR. (Borked-up beyond all repair).

I rest my case.
posted by Skygazer at 5:29 AM on March 30, 2012

So all Scalia was saying was "we have held things necessary but not proper before" and then gave examples. There are not a lot--its a very thin topic.

I understand that. Of course the Necessary and Proper Clause includes both necessity and propriety. The words "necessary," "and," and "proper" strung together would seem to suggest that both necessity and propriety are at play when considering the Necessary and Proper Clause. That obviousness was why it was distracting, and not illuminating, to bring up States' sovereignty issues, because of course the independent mandate isn't related to those issues. It would have been just as distracting to bring up your Fourth Amendment example, because this case is not about the Fourth Amendment.

Perhaps it was muddy thinking on Scalia's part. He encountered an unclear legal principle, so he clung to clear one, no matter its lack of relation, as a drowning man might cling to an inflatable whale. Or, perhaps it was part of a fairly clever rhetorical gambit on his part, to imply that there was some sort of clear way to say that the individual mandate is improper, without citing an immediately relevant legal principle.

But, this is all caviling by this point. We agree that the independent mandate must be both necessary and proper. It seems that even Scalia thinks it fulfills "necessity," but not "propriety."

The problem is that the case law is so thin on this issue, in particular with regard to propriety, that this does basically become actually a quite general and philosophical question, one going outside merely whether this word or that is in the Constitution or in the case law. This does not mean that it is impossible to determine what is proper, or that it is bad judging to carve out new case law on the topic. But, it does mean that this is exactly the sort of case where originalism is at its weakest, especially if an originalist feels in his gut that this law ought to be found unconstitutional, but cannot point to a specific part of the Constitution or the relevant case law where the law says as much.

It is inaccurate to say that the Necessary and Proper Clause, especially as it concerns propriety, has a "very definite legal meaning." Necessity has a fair amount of substance in case law, but propriety really doesn't. Even Randy Barnett, a very intelligent man for whom the clouds often part no matter what everyone else sees in the sky, despairs of propriety's relative mystery.

Your view on "propriety" is that it asks us the most basic and important question in Constitutional analysis: "does the Constitution allow this." Unfortunately, even this perfectly reasonable read of "propriety" runs into trouble. If "propriety" only means "the Constitution allows this," then its inclusion is pure redundancy. Of course the Constitution does not permit unconstitutional laws. If propriety is merely constitutionality, then it would be literally without meaning for a Supreme Court Justice to ask whether something fulfills both prongs. It would be literally without meaning to point out that other laws have been found unconstitutional on grounds not present in the current case. (This view on "propriety" would also raise a series of extremely strange questions about the distinct-and-dormant Necessary Or Proper Clause.)

Even if we work with the idea of propriety being the redundant concept of constitutionality, the case against the individual mandate is fairly weak. If we say this case goes down to enumerated powers, then it's just a matter of whether or not Congress has the enumerated power to tax, in this case assessing a tax penalty. Of course Congress can assess tax penalties.

Any attempt to massage "propriety" into a separate, meaningful concept necessarily involves bringing in, yes, ethical and philosophical considerations. Perhaps "propriety" concerns less the formal requirements of the Constitution, than it does adherence to the somewhat more general ideas of life, liberty, and property. (This would partially explain the oral arguments' fixation on "liberty" in general.) These are perfectly good things to be concerned about, but they are also precisely the sort of ethical and philosophical considerations that Scalia supposedly doesn't care about. Mr. Duresse Oblige himself has always been about the separation of constitutionality from whether or not a law makes the world a better (or worse) place. He claims to have always been about the law as being the law, with no patience for judges as philosopher-kings.

So, why the inconsistency? Is the Constitution itself demanding that he be inconsistent - forcing him to consider whether or not something is proper not just in a strictly legalistic sense? Or is this a case of Scalia cloaking his own political views in legal language, hiding behind "propriety" as a catch-all concept?

Of course inconsistency is the hobgoblin of small minds, and Scalia's alleged hypocrisy would be a separate issue from the validity of his opinion. I agree with you that each Justice could write his/her own opinion with his/her own rationale and they'd all be compelling. This is not an easy case.

But: "propriety" remains to be such a general concept, with such thin case law, that it does wind up becoming "do I like this," whether or not we like it.

...

As for Raich: the law in question there treated the defendant as if he was in interstate commerce, even though he was not. Raich held that the government could do this, as it had an interest in not having its regulation "undercut." Everyone is controlled, whether or not they participate in any interstate commerce at all. This is even more intrusive than the individual mandate, especially considering how expansively written the opinion was, as was Scalia's concurrence. A skillfully written opinion could technically dodge the bullet of inconsistency, but I'm unconvinced that there would be any substance to the distinction, in terms of limiting the power of federal government.
posted by Sticherbeast at 5:37 AM on March 30, 2012 [2 favorites]

...there will be Dem majorities in the House and Senate. Clear majorities. Re-pass ACA as single payer universal health care, or extend Medicare...

Having watched the previous majority-Democratic leadership's rush to remove single-payer from the table (it was the very first thing they did), I think you are overly optimistic about what would happen even if the Democrats achieved unassailable majorities. They didn't dump single-payer as an option because they didn't have the votes, they did it because they didn't want single-payer. These are rich people who are never going to depend on the same system we do. Most of them depend on something else to retain their power - money from corporations. One of the biggest players in that game is the insurance industry.

I think the path we'll take to achieve single-payer is the same one that Canada took: state initiatives. It will be interesting to watch the industry-owned congressbeings attempt to outlaw such initiatives, and revealing to see whether that issue reaches the Supreme Court.
posted by Kirth Gerson at 6:35 AM on March 30, 2012

It's also worth noting that there's no assurance of a house or senate dem majority after November.
posted by klangklangston at 4:06 PM on March 30, 2012

A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself.
posted by homunculus at 4:11 PM on March 30, 2012

James Carvile was on CNN the other day arguing he thought that it would be great for the democrats politically if the court overturned this. And I think he's probably correct.

He basically said 1) It puts the issue of healthcare front and center again, where the democrats obviously do better and 2) it vastly broadens the "Supreme Court" part of the equation as far as arguing that we need a Dem in order to nominate judges. That argument was mostly about abortion before, but now it's going to be expanded to health care as well (plus Citizens United)

It may be bad overall, but I think it could lead to a better outcome in the long term, or even the short term. If the democrats go back to the drawing board, they'll be more likely to try to do something like medicare for all that won't have constitutional issues. Maybe not that likely but more likely.

They'll have a mandate to do it, since they'll have campaigned on it.

On the other hand, if this is held up, that means healthcare is "done" for a while. And people don't vote on the past, they don't vote to reward success. They vote based on the future. Overturning this will make healthcare a part of the future, not just history.

Rather then taking heat for coming up with a law people don't really like, they get to blame the republican controlled supreme court for being radical judicial activists and campaign on replacing them.
posted by delmoi at 7:38 PM on March 30, 2012 [1 favorite]

KlangKlangston: It's also worth noting that there's no assurance of a house or senate dem majority after November.

Entirely right, but it seems impossible to me that there isn't a demographic (most of these growing btw), --be it women, Latinos, immigrants, blacks, LGBT, college-educated folks, urban creatives, suburban creatives, millennials, college kids, seniors, unions-- who hasn't been deeply insulted, and alienated or dehumanized by the GOtP at this point.

A party that's so recursively jumped the shark to the nth degree of unhingedness, and soiled itself and made a mockery of anything resembling a sober and prudent organizaton, that I'm at a loss, as to, just who in the fack, of all that is good and decent, and retains some modicum of self-respect, would want to vote for them.

Can Citizen's United and the onslaught of monies it can raise from psycho-billionaires be enough to put them in power again? I mean like ever again, as all those above referenced demographics continue to grow in size and political presence? Because, fcuk me, that's like bad 70s movie level of dystopian dysfunction. If that is where the country's headed, I'm going to grow a cheesy mustache, begin wearing retro-track suits and speaking English with a phony German accent and do bong hits 24/7.
posted by Skygazer at 4:32 AM on March 31, 2012 [1 favorite]

it seems impossible to me that there isn't a demographic (most of these growing btw), --be it women, Latinos, immigrants, blacks, LGBT, college-educated folks, urban creatives, suburban creatives, millennials, college kids, seniors, unions-- who hasn't been deeply insulted, and alienated or dehumanized by the GOtP at this point.

There was a good chance McCain would've won the last election, following two disastrous terms from Bush, if he had chosen a more competent VP. I don't think people (more specifically, voters) care about being insulted.
posted by inigo2 at 6:11 AM on March 31, 2012

Nah. No way. McCain could've had the baby Jesus himself as his VP pick and I still don't think he would've won. You're forgetting that Obama bested Hillary Clinton, before he utterly wiped the floor with McCain, in the debates, and in every way. Obama is really one of a kind in that way.

AND that the GOP was in complete shitsville with the nation after those two, truly soul-destroying, Bush presidential terms.
posted by Skygazer at 7:40 AM on March 31, 2012

But note, Skygazer, that even with those amazing performances, with McCain crippled with an idiotic VP candidate, and hobbled by his election advisers to run as a crazy person instead of John McCain, and even coming off the disastrous Bush presidency, Obama still only won with 52% of the vote.

It was no blowout. A Veep candidate that wasn't an embarrassment could easily have swung that election the other way.
posted by Malor at 8:14 AM on March 31, 2012

Remember Malor, that 52% is a very respectable showing and beats out any numbers either, Bush 2, Clinton, Bush Sr. ever put up going back to I believe Reagan's numbers in 1984 re-election.

And Obama won unheard of red states like N.C., Indiana, Missouri, and I believe Virginia.

Granted, he's more of a known quantity now, and 4 years of GOtP hammering is going to have a toll. We shall see. I certainly want to think anyone thought this was a "stay at home" prez. election.

I guess the question now really should be: If SCOTUS turns down the signature domestic Obama Legistlation that is the ACA, because of the mandate, is that going to hurt Obama and the Dems, or help them?

There seems to be people on both sides of that.

Long range further down the decade, I'm pretty optimistic about the GOtP imploding and obsolescing rather spectacularly....
posted by Skygazer at 1:12 PM on March 31, 2012

Signs of Supreme Court activism worry Reagan administration lawyers: Advocates of judicial restraint say conservative justices should be wary of the impulse to strike down the healthcare law passed by Congress.

Yawn. Two of the three "Reagan administration lawyers" are committed Obama supporters.

Charles Fried: Obama Is Too Good For Us
Douglas Kmiec: Endorsing Obama
posted by BobbyVan at 8:58 AM on April 3, 2012

Now this is interesting. Yesterday, in a Rose Garden press availability, President Obama challenged the Supreme Court not to strike down his landmark health care law:

With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

...

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Mr. Obama's remarks were criticized in a piercing editorial in the Wall Street Journal:

President Obama is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago. But did he somehow not teach the historic case of Marbury v. Madison?

And now, a three-judge panel at the 5th Circuit of the US Court of Appeals has weighed in on the controversy. Per a report by CBS News:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

posted by BobbyVan at 1:21 PM on April 3, 2012

Obama destroys Constitution with mild Supreme Court criticism: Conservatives and moderates declare SCOTUS-bashing to be "intimidation"
posted by homunculus at 4:38 PM on April 3, 2012 [1 favorite]

But a supreme court judge's wife taking money from anti-health care tea party groups (and the judge not reporting it on ethics forms), well, the conservatives have no problems with that.
posted by inigo2 at 7:17 PM on April 3, 2012 [4 favorites]

Health Care Reform Act Prediction Market
posted by jeffburdges at 1:25 AM on April 4, 2012

jeffburdges: That link doesn't work for me (leads to a login page), but Intrade puts the odds of a USSC overturn of the individual mandate at 64.0% right now.
posted by Kadin2048 at 6:51 PM on April 4, 2012 [1 favorite]

Its always darkest just before the dawn

Slackermagee: That phrase resonates so well and so deeply, until you realize that it makes absolutely no sense whatsoever. It gets progressively lighter as night turns to pre-dawn which turns, in turn, to dawn and then onward to day. It isn't darkest just before dawn, it moderately light because the sun is rising.

Maybe the reason why it makes no sense to you is that you're confusing dawn with sunrise. Dawn is the "progressively lighter" part. What you're calling "pre-dawn" is actually dawn, just like how it's still light out even though the sun has gone down, which is known as "dusk." And it's the part just before that when it's said that it seems the darkest.

But I don't think people ever meant the phrase to be taken literally. It is a metaphor. People who say this are dreading the coming day, so the darkness is in their soul, due to the anticipation of the events of the coming day, be it a duel or a battle or whatever.
posted by crunchland at 4:38 AM on April 20, 2012

There are apparently several definitions for dawn, only one of which matches yours. In the others, it is not darkest just before dawn.

People who say this are dreading the coming day, so the darkness is in their soul, due to the anticipation of the events of the coming day, be it a duel or a battle or whatever.

This is diametrically opposite to how I've always interpreted the phrase. It always reads to me that things can't get any worse, so they will improve with the dawn.
posted by Kirth Gerson at 6:24 AM on April 20, 2012

I guess I have interpreted it that way, too. I always dread something way more than it actually ever ends up being, so "darkest before the dawn," dreading something before it happens, and it's usually not as bad as you end up imagining it will be.
posted by crunchland at 8:34 AM on April 20, 2012

No, Virginia, cancer care in Europe doesn't suck, contrary to what a recent paper implies
posted by homunculus at 12:06 PM on April 24, 2012

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