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Day Two: Obamacare is Going Down

By: Steven Willis (Diary)  |  March 27th, 2012 at 08:29 PM  | 

RESIZE: AAA

From the diaries…

Wow.  To continue with Handicapping Health Care.

Bottom line, I stand by what I said in Handicapping Health Care; however, I increase the odds.  I would handicap it at 65% unconstitutional.  The vote is likely 5-4, but plausibly 6-3, and remotely 7-2.  If the vote is Constitutional, it will be 5-4 (95% chance) and 6-3 (5% chance).

The Solicitor General began horribly, sounding as if he had a cold for several minutes.  While he recovered his style, he lost his arguments, becoming flustered at questions from the CJ (for a couple minutes).  Justice Sotomayor  rescued him with a wonderful soliloquy, but no question other than “Don’t you agree?”

Mr. Toobin at CNN overstates the disaster for the government, as does Drudge.  The first 45 minutes was indeed a government disaster on the Commerce Clause, along with a one or two minute throw-away on the Taxing Power.  Essentially, the government has conceded that the ACA cannot be justified under the Taxing Power.  But the remaining 75 minutes were, at time, dicey for the states and other opponents.

Justices Ginsberg, Sotomayor, and Kagan were tough with Mr. Clement, who represented the States.  He performed brilliantly and almost flawlessly.  He could have better answered Justice Ginsberg’s questions regarding Social Security, but otherwise, he was nearly perfect.

That said, I see Justice Kennedy teetering a bit.  One must listen to the entire argument and read the entire transcript.  Justice Kennedy is almost sold, but not quite.  I believe Justices Scalia and Alito, along with Thomas, are sold: this is unconstitutional.  The CJ is close behind, but not quite as open.  I would be very surprised if any one of them voted to uphold.

This is mostly going to be about Justices Kennedy and Breyer, but we always knew that. Each asked tough questions.  Justice Kennedy appears to want to find it unconstitutional, but wants to think more, which is good.  Justice Breyer appears to be the opposite, but struggling.  He suggested Congress has the power to compel the purchase of cell phones and similar items.  I have doubts he was serious.  I suspect he was attempting to provoke a response from the Solicitor General.  Throughout both days, Justice Breyer questioned both sides very well and appeared reachable.

Justice Sotomayor, for the most part, appears (as one would expect) to support constitutionality; however, she also appears open.  I doubt she will vote for unconstitutional, but it is not unthinkable.  Justice Kagan is, I believe, probably lost, which is no surprise.  I feel better today about Justice Ginsberg, but I wish someone would have answered her questions on Social Security.  Let me do so.

Justice Ginsberg, Social Security and Medicare are very different from the ACA.  SS and Medicare are constitutional income taxes on people who choose to earn wages or who self-employ.  They are also constitutional excises on employers.  As an entirely separate matter, both involve Congress’ spending power, which it annually uses to pay money for the general welfare for old age, survivor’s, disability, and health care benefits.  Congress could constitutionally repeal all the benefits tomorrow and keep the taxes, both past and future.  The two are entirely separate.  Thus neither Social Security nor Medicare is an insurance program.  In contrast, the ACA compels people to purchase real health insurance from a real private party.  It then directly taxes people who have no insurance, but does so in a manner which is not apportioned.  Both aspects are unconstitutional.  The first compels commerce, which violates the commerce clause.  The second is an impermissible unapportioned direct tax and thus violated the Taxing Power.  For Social Security and Medicare, the notion that the two halves (the tax and the benefits) are connected is a myth.  They are not.  Indeed, each is constitutional separately under different powers.  For the ACA, the two are connected and each is unconstitutional – both together and separately.  In sum, the ACA is about the health insurance market.  Neither social security nor medicare have anything to do with insurance: that they do is a myth . . . and a fraud – a sometimes difficult-to-understand myth, but a myth nevertheless.

I doubt anyone will reach Justice Ginsberg, either in argument, in brief, or in discussion on the Court.  I doubt anyone will convince Justice Kagan, either.  I thus predict the vote will be 5-4 or 6-3 unconstitutional, with a remote chance of 7-2 unconstitutional.  I predict it will be on commerce clause grounds, but with at least a concurring opinion on the Taxing Power.

I take some pride in believing my co-author and I destroyed the taxing power argument so thoroughly (in four articles and four briefs), the government relegated it to a minute or so.  They gave up because they could not defend it.  I wish the opponents had seized upon that opening and hammered the Taxing  Power argument, but they did not.  Had they done so, I would be predicting better odds. I did not think they would.  But, Mr. Clement performed so well, I can hardly be disappointed.

I am confident, this act is going down.

COMMENTS

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  • nancylee

    With me. I am a woman, and I dislike working with other women because so many of them seem like nitwits.

    I’ll probably get in trouble, too.

    • 1stRichard

      In ?General? how does this relate to so few?

      John Adams, second president of the United States, MA constitution?
      ?No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community?. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men?.?

      The few obtain ?advantages, or particular and exclusive privileges, distinct from those of the community? and ?for the profit, honor, or private interest of any one man, family, or class of men? with this law, does it not? Why no argument over this?

      • onemovoter

        I have reread what you posted quite a few times and it seems a bit out of context. Of what I can tell, Adams was commenting of the times, that no man, men or groups should have advantage by way of title over others since it was different in England where they did have such titles in their history.

        If you read his explanation of what government is instituted for, it describes government as giving equal protection under the law. Unfortunately much of our current law in many levels of government do not give equal protection under the law. Current tax law taxes people at different levels on all sorts of activities. Thus equal protection is not enforced in tax law or many other laws.

        In the ACA, the “few” is actually those who aren’t paying taxes and are given government provided coverage paid by everyone else. This I believe any other law that tries to “socialize” what some have to give to others for others benefits is a violation of equal protection.

        • NeoKong

          Or more about regulating commerce that will undoubtedly occur sometime in the future whether it be voluntary,catastrophic, unexpected or delinquent?
          Eventually all of us will participate in the health care market one way or another.
          It is just a matter of time.
          Who has never been to a doctor…?

          • DerKrieger

            …to regulate your going to see a doctor nor to regulate any commerce within a state. The meaning of the CC is quite plain. Unfortunately since Wickard the CC has been significantly abused and stretched well beyond its intended meaning. It’s well past time to stop allowing Congress to micromanage the economy via the CC.

          • aesthete

            Insurance markets are financial in nature, and are not necessary to good health. They are one of a range of options to promote good health.

            Food and water are also essential for life, but you can’t mandate that people partake of *specific areas* in the food market (like broccoli), because there’s no way of knowing if people will eat broccoli, or take part in that specific part of the market, at any point in time.

          • lineholder

            if government wanted to encourage behaviors that promoted greater enrollment in health insurance covered, they had other options. Catastrophic insurance was specifically mentioned, coupled with incentives for those who have insurance coverage.

            It isn’t and never has been absolutely necessary to generate a mandate that dictates that consumers engage in the health insurance market IN THE WAY THAT THE GOVERNMENT WANTS THEM TO. They eliminate catastrophic insurance as an option, even though it would be a means of obtaining health insurance coverage. By doing so, they conceivably injure every insurance company that offers catastrophic health insurance and interfere with commerce. This legislation could be perceived as setting a precedent on this point…by defining a specific type of product that is not allowed or not acceptable.

            They used the analogy in court of a car purchase…the government regulates that all cars must have specific devices for pollution control. What they did NOT mention, and I really wish they had, because I have a lot of questions about this is…could this allow government to define what MAKE of car would not be acceptable? Could they say a Ford isn’t acceptable in the same way they have defined catastrophic health insurance as being unacceptable?

          • deVere

            It’s a very bad idea to allow them to do it.

          • richmccreedy

            You’ll also eventually eat food in the future, and live in a house or apartment in the future, and where clothes in the future, and so on and so on. Does the government then have the power to mandate that you must also purchase property, clothes, and food? And if so can they tell you which kinds?

            And some people are getting caught up in this argument that not being engaged in the health-care market (i.e. not buying insurance) is somehow different than not being engaged in any other market. For constitutional purposes it isnt. Let me explain.

            The argument goes that because of your refusal to buy health insurance and because of the inevitability that you will use health-care services, your refusal to buy health-insurance and “free-ride” necessarily causes costs to go up for those who are actively participating in the insurance market. My first reponse to that is, so? But, let’s continue.

            The argument then continues that this is somehow different than the broccili market. That a person who buys broccili and participates in the broccili market is the only person who actually effects the market, and the non-broccili eaters do not. But this is simply false. Every person living is a potential broccili eater, and for every person who chooses to not eat broccili, they are having an effect on the market. In this case, the effect is the opposite of what it is on the insurance market. In this case, it causes prices to go down (less demand than there could be if the govt. just forced everyone to buy broccili) which helps the consumer. But what about the broccili farmer? His prices could be higher. He could be better off. If only the govt. would mandate everyone eat broccili, the demand for the broccili would increase and the broccili farmer would enjoy the fruits of his labor more.

            You see, every single market that you choose to not participate is somehow effected by your choice to not participate. The effect on the insurance market is that costs for those who are insured go up more when people do not participate. The effect on the broccili market is that costs go down when people do not participate. But make no mistake, the effect is there, and if the government can tell you to buy one product because you are somehow effecting it, they can tell you to buy another.

            Imagine a day when something like the car companies start to go under (hard to imagine, I know). The government, seeing no easy solution, decides that there are a bunch of people out there who are not actively participating in the new car market and, because of their non-participation, the car companies are going to go bankrupt. The government then decides that you, Mr. Individual, must be compelled to buy a car via threat of penalty in order to save the car companies.

            There ultimately is no difference between this and health-care. The argument goes that you will almost assuredly enter the health-care market, but you might likely not enter the car market. But does this argument hold up? Do not a large number of Americans have cars? Are not a large number of Americans, due to obligations, almost required to own cars? Are there not times in one’s life where owning a car goes from being a luxury to being a necessity? Of course there are. And, if you follow the logic that health-care is fundamentally different and therefore deserves to be regulated differently, then you open the door wide open for what I just proposed. A national car company crisis, a government that cares not for individual liberty, and a neat Supreme Court case that all but affirms their power to force you to buy a car to help save the market.

        • retrocon87

          So then by that logic, I have to pay income and payroll taxes to provide free health insurance and social security to senior citizens and there is no guarantee that Medicare and Social Security in their current forms will still exist when I retire… would that make Medicare and Social Security (and any other program serving similar functions) unconstitutional?

          • aesthete

            affirm the legal position of the United States government, which is that SS is really just a tax and then a lump transfer for what the government deems to be the “general welfare”, and that it guarantees nothing to anyone.

            Medicare is a bit more involved.

          • The_Gadfly

            what has been the growing Constitutional Crisis of our age: SCOTUS rendering unconstitutional decisions. If they vote Obamacare constitutional, the crisis reach the tipping point.

          • retrocon87

            note– Steven’s diary argues that SS and Medicare are constitutional due to federal taxation and spending authority… it seems like you’re arguing that they would still be unconstitutional due to violation of equal protection since “some are taxed while the spending goes to others”, ie that the excise tax earmarked to pay specifically for social security is paid by the working-age population while the actual benefits go to retired seniors who as retirees no longer pay the payroll tax…

          • DerKrieger

            …see my comment re the taxing power below and Madion below that.

        • 1stRichard

          Adams was more then commenting of the times onemovoter, he drafted them in to the Declaration of the Rights of my state, part of the foundation of our national Constitution and such sentiment was voted presidency of the United States. While I agreed this original intent has become bastardized and perverted over the years, my interest is in the Original Intent of General Welfare as a limit ?equal protection? applied to all powers of congress and all laws unequal found unconstitutional. Not only Obamacare should be seen as unconstitutional under such Original Intent but Romneycare as well yet here we are with so many so-called conservatives blatantly ignoring Original Intent.

    • FlyingTigress

      … are, sadly, other women. Especially in my age group (early 50s) +/- 10 years..

      I don’t know whether it was the old ‘play stupid’ that simply took hold, drugs or alcohol, or something else, or, my growing up in a household with parents who expected us to use our God/genetics-given and trained minds to their fullest extent.

      ^—- probably in trouble, too. (snort)

      I’m ashamed to say that I actually scanned through the comments at the NYT report of today’s session. I wanted to ralf-up my lunch sandwich (and it had been a cheesesteak!) reading the inane comments about ‘car or homeowner’s insurance’ as a comperable situation, or, the lack of knowledge about our system of governance (Federal vs State powers) or judicial overight of Congression legislation (Marbury) and the contemptible “If its like a pinata – full of treats for everyone – it must be Constitutional!”

      • FlyingTigress

        Hopefully, most reading know what a “pinata” is.

        (Lived in SoCal from ’62 to ’92, and they were a staple of SoCal childrens’ birthday parties even in the 60s. But don’t know how commonly-known they are outside the southwest)

        In hindsight, maybe Nancy P. was thinking of pinatas when she referred to “We’ll have to pass it to find out what’s in it.”

  • kowalski

    One thing that was crystal clear to me, after I turned off my Wonk Brain and just tried to listen to the arguments from the point of view of a regular person, was that ordinary people in this country no longer have any hope whatsoever of making arguments for themselves that matter to anyone.

    You listen to to Solicitor General’s arguments today and you realize that without an advanced degree or at least a preternatural level of interest, most people have absolutely no control over what the government does to them, or is going to do to them, whenever it wants to, on the basis of arguments and precedents and legislation they don’t even know exists and cannot understand.

    The Mothership has left the planet.

    • kowalski

      Because compelling people to purchase something and then assessing increasing penalties on them if they don’t is something everyone understands but the arguments for it – and why it is being proposed – are so esoteric that the average person cannot understand them. It’s like saying: “We’re going to use the Schr?dinger Equation to hit you with this hammer.” No wonder people don’t trust their government. They cannot understand it.

      • hungarianfalcon

        On a case like this, do you really think each of them is sincerely asking questions with the intent of being objective or do you feel that at least a portion of them are merely posturing for appearances, knowing fully what direction they intend to decide?

        I’m a statistical scientist and I see way too many predictable outcomes from the court to realize that each of the judges have their individual perceptions of the way things should be and decide accordingly. If that weren’t the case, we’d get surprised by the outcomes far more than we do and it would also depend far more on the skill of those arguing the cases rather than the high-level issues at hand.

        HF

        • The_Gadfly

          If I were to extend your definition of fairness to a branch of mathematics that more closely resembles law, some days 2 +2 = 3, others it would =4, and still others it would =5, but on average would be 4 +/- 5% with a 95% confidence level.

          Predictable outcomes are the preferred sign of fairness in law. In fact, in a perfectly fair legal system, the same case tried by different lawyers in front of different judges with different juries would result in exactly the same v erdict. We tolerate deviance from that because we are imperfect humans.

        • http://www.ufcle.com/willis/willis.htm Steven Willis

          Some of both. I’ve worked for judges, state and federal and I felt my judge was sincere.

          From the argument, I had the impression that both Breyer and Kennedy are working through this and are not decided. A few give the strong impression they’ve made up their minds, which is ok if they’ve researched it. So much occurs in the briefs and articles and at the lower courts in narrowing the issues and in fine tuning the arguments, when we get to oral argument, it is often already over.

    • http://www.ufcle.com/willis/willis.htm Steven Willis

      Amen. Law is far too complicated. As I note below (way below), the government desperately wants to change the argument because it is losing. They realized months ago they could not win on tax, so they dropped it. Now, they realize they cannot win if they call this a Mandate and Penalty, which everyone understands. Thus they call it timing in a very clever attempt to disguise reality.

      My fear is this: no more briefs and no more argument on the subject. If the Justices or the clerks do not defeat that claim, it could fly. Other than today’s argument about several-ability, the only way to communicate with the Court is through a law review article or the press (which is not likely to be successful, IMO, on an esoteric, complicate argument).

  • bs61

    I hope that you are right!

  • snowshooze

    Thank you very much.

  • sbm1

    I fail to see the uniqueness of “health care”….Counsel Ginsburg in arguing for the case states that there is a 7% free rider deficit that is made up by the other people with insurance.

    Well, I sell clothes, and I have about 2% shrinkage (theft), and if I didn’t train my staff to prevent it, and put those security tags on my more expensive clothes it would probably be about 5%. I have to accept that as a cost of doing business, and have to include an accomodation for that in my pricing, which only my customers end up having to pay.

    Unfair I guess, but the way any market works.

    I am also appalled at the blank acceptance of the only way that health care could ever see its debts settled is through “insurance”. The best thing that could happen to health care would be consumerism, which means people pay their own bills….a market for catastrophic insurance could easily be established for anything truly unexpected, and sane people would buy that just like sane people buy life insurance or car insurance.

    Those who don’t would have to rely on the benevolence of doctors and hospitals.

    • johnjohn23

      Except Congress does have the power to regulate large or systemic theft, so that’s not a good example. 7% of a 17% of GDP market is over 1% of GDP so it’s pretty large, and similarly Congress has laws against racketeering or intrastate criminal acts.

      • sbm1

        7% is a high water mark, otherwise ginsberg wouldn’t have cited it.

        and very few if any of these people are claiming ability or intent to pay, so there is no defraud going on.

        and through the hypocratic oath and the widespread knowledge that emergency rooms will treat you irrespective of your ability to pay.

        and I am no lawyer, but I would say that tue trauma unconscious emergency treatment by the doctor is pretty analogous to the homeless guys who squeegee your car without asking for consent, and then ask you for a tip.

        If a guy walks into my store and says, “I have no ability to pay you, but do you have some clothes I can have for free, and I give them to him, I can’t call it theft.

        At a restaurant it is different, there it is expected that anythign you order, you will pay for, and in actively placing the order you have entered into an agreement to pay.

        and I am guessing that retail sales make up more than 17% of GDP (considering a large part of health care is also retail sales – all equipment), so the amount og GDP at risk for shrinkage is at least as big as underinsured free riders.

  • earlgrey

    They pointed out that Roberts was unusually subdued during the proceedings. We could be surprised by one of “our justices”. Eeyore talking

    • http://www.ufcle.com/willis/willis.htm Steven Willis

      That is why I give our side a 65% chance. We could very well lose.

      • Scope

        the big surprise to many. From what I’ve read he was seen by some as being less reliable as the other conservative judges. He has in the past been willing to give wide powers to the Congress.

        When some were calling for Keagan to recuse herself, as she was the Solicitor General when the law was being written, Roberts came out in her defense and said something to the effect that she can and will make her decision fairly. I think not many haven’t seen her allegiance to the liberal viewpoint, and in favor of the nanny state, just by her questioning and remarks. Surely Roberts knew that when he made his comments.

        • Scope

          on Fox reminded her viewers that she worked as a lawyer for nine years before going to Fox. She said that she and the law firm she worked for followed the Roberts confirmation hearings very very closely, and that she would be shocked if Roberts voted in favor of the law.

          I am praying that Roberts, nominated and confirmed during George Bush’s term, isn’t a part of the “compassionate conservative” ideology, that caused many Republicans to leave the Republican party, and to become independents, because of the compassionate spending that took place in the Bush years, especially the expansion of the entitlement Medicare Part D.

  • Lynn Otting

    actually thought this was a tax, would they have determined on the first day that it wasn’t?

  • krish

    enacted laws but was wondering if the supreme court strikes down individual mandate federally – how does that affect individual mandate by a state?

    Prof.Willis – appreciate your input. Thank you.

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  • lineholder

    What was your opinion of the interaction that went on between Mr. Carvin and Justice Breyer regarding “unintended entry into commerce”, being born, and the plenary powers of Congress, allowing Congress to regulate every human activity from the cradle to the grave?

    I was very surprised by this, and thought Justice Breyer was rather anxious to turn the talk to other things…very, very quickly.

  • Scope

    but, do you find anything odd that the majority of the liberal SC now is made up of women? I know I’m wrong about this, but, from my perspective, women being caretakers and nurturers of their children, they seem maybe to want the government to take on that same role in the federal government. I say this because if anyone has spent any time on CNN, you see the women, who control the network all day until Wolfe Blitzer at 4, who seem to be the ones arguing all day long about the government being more responsible for the “children” and adopting the Hillary Clinton position that it takes a village to raise a child.

  • gawken

    The CJ no doubt recognizes that even if he is on the court for the next 30 years, this vote will most likely be the defining one for the Roberts court. And therefore, the CJ does NOT want a 5-4 decision, ala Bush v. Gore.

    I think he is determined to bring one of the liberal four over to his side..most likely Breyer. And this can best be accomplished by appearing to be somewhat open to both sides during oral arguments, and hoping to convince Breyer during deliberation.

    Like you, I think he has a good chance of accomplishing it.

    I suspect that whatever the vote, we will have NINE seperate opinions…..each Justice will feel compelled to explain his vote for posterity..

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    I agree with you. Justice Breyer appeared conflicted both days . . . almost as if he was arguing with himself. He chided the government, to great laughter, for calling it a tax, but later did so himself. He asked interesting, but sometimes odd questions, as if he were puzzled and thinking it though. That is a good sign.

  • Tbone

    women.

  • kowalski

    “…they seem maybe to want the government to take on that..”

    Maybe?

    What, Scope, did you forget this ad from 2008?

    http://www.youtube.com/watch?v=yzBvQ9EeF3k

  • lineholder

    I was thinking something similar earlier this afternoon. Not so much about the female justices on SCOTUS, but about female doctors…and female teachers as well. Plenty of them DO seem to have an overly-maternalistic attitude, portraying themselves as the champions of all our nation’s perceived “victims”.

    Gives a whole new meaning to the words “nanny state”, eh?

    Seriously, though, any mother who genuinely loves her child and who wants that child to succeed in their own right in the long run knows that they can’t dictate that child’s life, baby them along, coddle them, protect them from all the world’s evils every single second of the day. No matter how much they might want to. It cripples them, mentally, emotionally, socially…you name it. It does more damage than good, in the long run.

  • Melody Warbington (rwm52)

    have with this statement are with those on the other side. The network women have to believe it takes a village because none of them are home raising their own children. How’s that for getting in trouble? And I say that as a mother who worked.

    Of course, to liberal women, village means government. To conservative women, it means friends, neighbors, and those who actually care enough about each other’s children to correct them when necessary. I’ve never had a problem with someone else correcting my child, and it was always clear that if a child was in my home, he’d be corrected if I saw fit.

    I have a very dear, compassionate friend at church who told me once that even though she knew individuals were better capable of using their own money to help others, and that there was a lot of fraud and waste with regard to entitlements, she was so afraid that someone who actually needed help would fall through the cracks that she thought we should all be willing to pay more taxes in order to fund such programs because we were all so blessed. I never could get her to see the problems with a system where somebody gets to decide who has enough and who needs more so we can all be equal.

  • Tbone

    to justice.

  • onemovoter

    I am glad to see you touch up with the issue of SS and Medicare with a very clear explanation and comparisons. In the past, I have seen liberals try and use this particular argument in favor of a the Federal gov. putting you into a system via a mandate. Your explanation utterly destroys such argument.

    It was also the reason why I brought it up on here yesterday and had you clarify such information. There is a difference between a public good funded by a uniform taxation, and a mandate enforced by a penalty (forced coercion) into a private contract, neither of which party is directly from the government (private insurance).

    Some questions popped up into my head. Can the Federal government force you (via coercion) into a private contract? Does contract law at any level of government say that both parties have to be willing partners in such agreement? Can the Federal government force you into a public program (medicaid which is voluntary at this time) that is run by the states (via forcing states through coercion)?

    I see a huge disconnect in Federal powers here and how the ACA was written. As you noted, many of the liberal leaning justices were struggling with trying to find reasoning in favor of the mandate.

    For many people I argue with in constitutional issues, I usually ask them a rather simple question. –

    What is the repeating theme that runs through the Bill of Rights?

    The rest of the US Constitution specifies how the Federal government is organized and what Enumerated powers it has which are very limited. The Bill of Rights repeating theme is “the government is prohibited from doing….”

    This is the fundamental essence of how our government was set up after freeing ourselves from a tyrannical government. The ACA brings back the tyranny of government rule which removes our economic and personal freedom.

    My hope and best wishes to you in winning this case. Also thank you for standing up for what’s right.

  • DerKrieger

    The clause of the Constitution regarding taxation states:

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence[note 1] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    Like all clauses of the Constitution this one has generally been understood to be constrained to the enumerated powers. In other words, Congress has the power to collect taxes to fund the constitutionally legitimate and enumerated functions of government. The same applies to the Necessary and Proper clause that was also brought up today. Congress may only enact legislation that is necessary and proper to execute its enumerated duties. Not what is “good n plenty” or necessary and proper to make Leftists feel good about themselves or what is necessary and proper to advance their socialist agenda.

    I am of the opinion that Social Security is in fact unconstitutional as its enactment isn’t in accord with any enumerated power and thus the payroll tax is an unconstitutional application of the taxing clause.

    The taxing clause, nor any other clause,isn’t carte blanche for Congress to do whatever the heck it pleases.

  • Cheetah772

    I do have some questions, hopefully somebody savvy with how Supreme Court functions can answer my questions.

    1.) When do the judges usually take votes after the case is presented before them? Within few days when oral arguments are fresh in their minds? Or some weeks later, after all the judges have researched the relevant prior cases or precedents before deciding which to vote for? I assume in this case, like a jury, the judges can take multiple vote counts, so a judge can be swayed by others one way or another, is this correct? Finally, do the clerks have some power to sway the judges, I can imagine the judges giving them an opportunity to voice their legal opinions in some small ways. I don’t doubt the judges will have the final say, and they will mean it.

    2.) Once the vote count is taken and considered as final, how long until Supreme Court releases its ruling? Few months later? Before the end of summer? October? I’ve always wondered if Supreme Court will release an inkling of how the judges reached their decisions, can this be possible? Somehow I doubt this, as the judges will want to preserve the aurora of mystery, and some would say, secrecy, surrounding their fiercely guarded judicial independence.

    3.) Is it always possible that even a case falls apart for a party before the Supreme Court in oral arguments, it may end up as a victory for the seemingly defeated party? Has this ever happened before in the history of Supreme Court rulings?

    Sorry if there are a lot of questions. Sure hope all questions can be answered thoroughly. Thanks.

  • DerKrieger

    …advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the (taxing) clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.[16][17]

  • johnjohn23

    I think Breyer is solidly constitutional. I’d actually put him more solid than Sotomayor, who basically telegraphed that had this been brought as an as-applied rather than facial challenge she might come down differently. He kept going back to the “can’t the government mandate an innoculation for a widespread deadly disease” argument, and mentioned the two pages of examples of the government forcing purchases. If I had to rank them in order of unconstitutional/constitutional I would go:

    Thomas
    Alito
    Roberts
    Scalia (Might flip with Roberts)
    Kennedy
    Sotomayor
    Breyer
    Ginsberg
    Kagan

    There is no chance of getting the bottom three. I have to say I think the odds seem better after today, but both Scalia and Roberts wanted to hear the arguments for unconstitutionality. There was almost zero discussion of the N&P clause, which surprised me. You would think at least Scalia would want to bring it up if for no other reason than to give himself ammunition for separating from Raich. I had originally handicapped this at 7-2 constitutional. I think Scalia, Roberts and Kennedy are all wavering, but I can see a 5-4 unconstitutional now.

    I am rather shocked at how tough Kennedy was, but both he and Roberts seemed to agree with the underpinning necessity of the government’s case: That *everyone* is in the healthcare market, which is the first step to finding it constitutional.

    If you had asked me yesterday I would have said maybe 30-35% chance it would overturned, I now give it even money. I would say the most likely outcomes are 7-2 constitutional or 5-4 unconstitutional.

  • retrocon87

    I had heard Kagan had a conflict of interest on this leading her to support it but that Thomas had a conflict to be against it so both might wind up recusing themselves because of it… I was also surprised to see that Kagan was participating and the first thing that went through my mind was “wow– if she is in this then Thomas damn well better be also” (and he is) so whether both are in or both are out it’s effectively a wash on the outcome

  • lineholder

    But I do think Breyer opened Pandora’s box today, suggesting the incidental introduction into a market was just cause, then the example of simply being born came into question. This provided Carvin with the opportunity to pursue the line of argument that it would be providing “plenary powers” to Congress, setting a precedent that would provide Congress with a means of regulating human activity “from the cradle to the grave”.

    At that point, Breyer backed away from the conversation so quickly that it probably made everyone’s head swim. He attempted to direct Carvin back a question Kagan had asked previously, but both Kagan and Carivn had forgotten the question.

    The one thing that the left does not want to draw attention to is the tremendous expansion of regulatory powers that this law could generate. They want to present it as being “harmless” or even necessary, but to do so in a way that minimizes the reality of this potential.

    Just for a few seconds, Breyer kicked open the door for the whole truth to come through.

    I dooubt that it will alter Breyer’s position. But there are a greater number of people in the general public taking the time and effort to actually read/hear what was said during the hearings. How could it translate politically?

  • califgal

    government can’t force them (say in the case of a communicable disease) but it can and has in the past quarantined, confined people.”

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    Thanks. You make excellent points.

    Arguably, the CJ and Kennedy were posturing and attempting to influence Breyer and Sotomayor. I suspect all four are open and are arguing to each other.

    Justice Breyer’s comments about birth to death and cell phones and inoculation showed conflict. The toughest is the inoculation question. I suspect most Americans would not want a government that can force them to purchase cell phones and thus that argument will not convince a majority of the Court, let alone the people.

    But, I suspect most Americans would think that in a true emergency, the government could force inoculations. I’m not talking about the Texas-type on young girls, or even the Salk vaccine from the 50′s. Justice Breyer was supposed an apocalyptic scenario and real emergency. Clearly, the states could force us all to be inoculated, and would. Most movies that depict the scenario posit states closing their borders (or state lines). I doubt the federal government has the constitutional power to force the inoculations unless it drafted everyone into the military. But it has the actual power to do it and probably would. Then again, I can imagine the governors seizing emergency powers and shutting down all inter-state activity and ignoring the federal government. Would the army really fight the states?

    Justice Breyer is positing far-out scenarios. I see him as truly conflicted on this. Justice Sotomayor is thinking. I don’t think she has decided, but I think she is a long-shot, . . . very long.

    I think 7-2 constitutional is very unlikely, possible, not remote.

  • garfieldjl

    Also the purpose of the mandate isn’t to collect revenue, it is to force people into a contract with a business or government entity.

    So it is a penalty not a tax.

    That’s why Obamacare is arguably unconstitutional.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    The social security tax is constitutional, in my opinion, because it is simply an income tax on the employee and an excise on the employer. Congress may do with the funds whatever it wishes, as we have seen. The money goes to the Treasury. Separately, Congress appropriates funds to the SS administration to purchase Treasury Bonds and to pay benefits. Those are separate programs with separate constitutional analyses.

    We long had (until the 80′s) a top tax rate of 70% (94% in the early 50′s and 93 in the 60′s) but a lower rate of 50% on “earned income.” No one would have questioned an extra 7 or 8 percent on earned income. That is all the SS tax is. It is in subtitle C – employment taxes; however, it is an income tax and is placed upon gross income derived from a source. It is thus constitutional. The employer’s share is a uniform excise on the employer’s activity of employing a person.

    On the spending side, Congress may spend for the general welfare. We could argue that SS and Medicare are not for the general welfare, but we would lose (indeed that has lost). I sympathize with you, but your argument is not going anywhere.

  • lineholder

    the money contributed was squandered or wasted…spent unwisely. Because our government does just that.

  • Melody Warbington (rwm52)

    She believes it’s worth it if those who actually need help are getting it, regardless of the waste and fraud, and even the unfairness of it all. But I’m gonna keep working on her, along with some other mutual friends.

  • JimmyGee

    What I am hearing, and reading is that the issue is not so much about the mandate, it is about the severability. That if the mandate is thrown out, and SC allows the severability, we will have a much greater monster…single payer. Which is what the Dem’s wanted all along.
    Someone please tell me I?m wrong?

  • Tbone

    If you conflate Thomas with Kagan, you are either ignorant of the fact or dishonest. Which is it?

  • Melody Warbington (rwm52)

    but you can bet that if Thomas actually had a conflict, he has the integrity to recuse himself. Obviously, Kagan possesses no such integrity.

  • bs61

    n/t

  • http://www.hakubi.us/ Neil Stevens

    You do know that attack is driven by racism, don’t you?

  • johnjohn23

    Well here’s the problem with that. If you take it as one economy, healthcare, then there is no mandatory action problem. Everyone engages in healthcare eventually. This is what Breyer was getting at and what conservatives find so insulting.

    But if you reject that you backdooringly accept that there are two markets. A market for insurance company insurance and a market of people who self insure. If there are two markets, the latter obviously substantially impacts the former, which subjects it to federal regulation. One manner of federal regulation is to quash the market completely.

    Contrast this with, as the members of the court suggested, brocolli eaters. There is clearly only one market there, because there is no way that non-brocolli-eaters is an economic market.

    But yes I agree what he said was stupid and he realized it.

    I doubt there will be any political issue about the court at all. The ruling will come down before the election. If it is upheld, it will be firepower for the right, if it is ruled unconstitutional in full it will be an argument by the left to do what the court implicitly gave their thumbs up to today – a truly socialized system.

  • retrocon87

    “But there are a greater number of people in the general public taking the time and effort to actually read/hear what was said during the hearings. How could it translate politically?”

    Before this only about 5% of the electorate could name a single Supreme Court justice– after this I expect it’ll be more like 5.2%. If you think the average voter is actually taking 2 hours every night to listen to the court recordings like we are and giving themselves headaches over all the nitty-gritty legal details of all this then you have more faith in the general intellect of the country right now than I do (and honest to God my views on this break my heart but the more I follow politics lately the more true it always seems to be). All the average Democrat cares to know about all this is that “those evil Republicans are trying to kill poor people again” and all the average Republican cares to know is that “this a big expansion of the government which is bad.” If you were to go out onto the street and ask random people whether or not they think the individual mandate is a violation of the commerce clause, 90% of them will have no idea what the hell you’re talking about and most of them probably won’t even care.

    From the standpoint of potential political outcomes of all this, the possibilities as I see them right now are:

    1) It’s upheld, in which case the political results will either be:
    a) Obama declares victory by saying “See? Even the conservative court says there’s nothing wrong with my law! Those Republicans have nothing on me!” which completely demoralizes Republicans and on the whole is a complete disaster for Republican morale, which it hurts us in the election. Or–
    b) It lights a new fire under the a$$es of Republicans and renews the sense of urgency to win the WH and Senate and to keep the House in order to finally just be able to repeal it, while Democrats are happy that it’s upheld but the enthusiasm of the Republicans far outweighs it so that in the end it helps us.

    2) It’s overturned, in which case the political results are either:
    a) Republicans beam with delight, we see Obama’s “signature legislative achievement” thrown out the window (and in humiliating fashion to boot), Democrats get demoralized, and it helps us. Or–
    b) Republicans are happy but it’s relatively short-lived while liberals go absolutely ape-$#%#, Obama finds “an adorable 5 year old girl in Ohio with cerebral palsy who just lost her insurance over this,” the girl becomes the grand centerpiece of his campaign, and it winds up hurting us (unless “Sir Mittens” surprises us and winds up being a much better candidate than many of us seem to think he will be).

    That being said, I feel like it could probably go either way– and my general belief is that the election will wind up being decided on whatever happens to the economy in the next 8 months anyway and that this will only essentially wind up being a side-issue for the candidates to rally their bases on (regardless of which way it actually goes)…

  • deVere

    I see no reason for optimism until a favorable decision is published.

  • lineholder

    I know that four years ago, I wasn’t actively involved in the political process much at all. A lot has changed since then. And I did take the time to read the hearing transcripts. So I’m in that “increase in general public”.

    Plus, there are a lot of people in the health care or health-care related industries (and this extends to pharmaceutical mfg., medical device makers, health insurance agency employees, etc.) who have made it a point to become more consciously aware of what is included in this law. They span across the entire political spectrum, left to right.

    Just in that context alone, it’s more people than we might think.

    I could see it going either way as well. To be honest with you, I’m still on the side of preparing for the worst.

  • krish

    First of all, hope & pray that Obamacare goes down in flames! I do not want to take anythign for granted when it comes to supreme court!

    What about Romneycare – how does this decision affect that legislation? Does somebody have to sue MA to overturn their individual mandate?

    I am worried that other blue states could join MA in enacting similar piece of health care law & when these states go broke, they will push all their debt to the federal government (similar to what MA did)

  • Berean

    I think Roberts idea with his questions was more for the benefit of his fellow jurists – to demonstrate to them that there was no “limiting principle” that could reasonably be used to allow the mandate to stand – thus it must be unconstitutional.

    The next big argument – and one that has to be won also – is severability. Hopefully Mr. Clement will demonstrate that the Government itself has argued in the lower courts that without the mandate the law in its totality is unworkable. Thus it all must be struck down.

  • retrocon87

    http://abcnews.go.com/blogs/politics/2011/11/groups-suggest-elena-kagan-clarence-thomas-should-be-recused-from-health-law-decision/

  • lineholder

    Granted that the health insurance industry probably would not exist with the health care services/provision industry, much in the same way that our current automobile industry probably would not exist without the oil industry. But we do not say that the oil and automobile industries are the same. By the same token, neither are the health insurance industry and the health care services/provision industry the same either. They are two separate entities.

    I do not find Breyer’s position in regards to stating that a person will be likely to engage in the health care industry insulting because I’m honest enough to acknowledge that it is true. What I do find insulting is to imply that there is NO other alternative than an individual mandate that will grant unprecedented power of the lives (and I do mean life or death) of the citizens of this nation, and to go about doing in a manner that could be described as unscrupulous at best.

    I don’t know which of the justices, Kennedy or Thomas, who said it, but this will indeed completely and totally alter the relationship between citizens and their government. Government will hold the power of life and death within their means, and that’s a powerful weapon that could be held over people’s heads to be used for even further “behavior modification” at any time they choose.

    That’s not freedom. That’s not liberty. That’s not the pursuit of happiness. That watching a tremendous potential for tyranny unfold right before our eyes.

  • http://www.hakubi.us/ Neil Stevens

    The states are limited (or not) to the enumerated powers of their own Constitutions.

    You don’t seem to understand the issues involved here.

  • snowshooze

    MA. can sue MA.
    The rest of us don’t give a dang, so long as ya’all keep it to yerselfs.
    State jurisdiction is State responsibility. Alaska doesn’t give a flip about Massachusetts. At all.
    Rot in hell without us.

  • sbm1

    what is with someone who lives in NH and works in MA, or the other way around?

    Is the NH resident required to carry insurance as is the case in MA? Is the MA resident required ot carry insurance in MA, even if he is employed in NH?

    I am just wondering, because that is one thing about states rights, it is considered easier to move to get away from such regulation.

  • The_Gadfly

    I agree the entire statute needs to be struck down. But at this point, I am not so sure that it needs to be struck down from a political standpoint, and in fact, it might be beneficial if it were not.

    Everyone, including the flaming libs, has openly stated that without the mandate, the law is unworkable. Which means that if the court doesn’t strike the whole law, Congress and the President HAVE to act. That doesn’t happen often. Mostly they have the option to act or not act as the wind blows. Heck, there are times when they ought to act that they don’t, like passing an actual budget. But this one blows up in their faces if they don’t repeal it. Because if the act stands without the mandate, it destroys the healthcare insurance industry. And that’s something voters won’t tolerate.

  • falconrap

    remind them that when government isn’t involved, charities pick up the slack and do so much more effectively. In fact, if government was able to actually do the job, ask them, “Why do we still have a need for charities that just feed people?” The favorite charity of me and my wife is Metropolitan Ministries, which does a great job of feeding numerous people on very little money here in the Tampa Bay area. They can feed 20 people for just $35 or so. What government program can do so much with so little?

    Tell them about how so many more people could be helped, who need it, if the government wasn’t wasting so much money helping a few. Being more specific about the raw numbers and how much the government’s waste could better be used, is probably the only thing you have a chance at getting through to them with. Hopefully, they can come to the truth, but it’s tough. Never give up hope though. It shows you care when you keep trying.

  • sbm1

    and I am not in anyway associated with the law….but here is what most articles about it say, and what public knowledge is

    1&2) The decision is expected in late June.

    2) The judges generally write a majority and a minority opinion on the case, and on a case like this I would be surpised if there were not 7 opinions (5 concurring) written. In these opinions they generally lay out exactly how they came to their decisions.

    3) The last part of your questions means the answer will almost always be yes. “ever”? The supreme court generally is aware of its powerful influence as a decision maker,a nd as the setter of precedent, so they definitely don’t just rely on an eloquent speaker before them. It is not like a jury trial, the judges interrupt presentations to ask questions, to better understand the issue.

    In this case Vernilli started badly, but was in no way a bumbling “just passed the bar, no win public defender” type lawyer. He has a tough case, and even though the left tried to coordinate it with the media in advance with appeals to necessary and proper and all other types of “guilt trips” for the conservative judges, it isn’t an easy case for the government to defend.

    The court, and in this case the lawyers on our side seemed to say “compete single payer socialized medicine would be OK” at least constitutionally, because that would fully fall under the right of the government to tax its citizens for government services….but that isn’t as scary as it sounds, becasue that would be something the court would not have a problem with, but somehting that is not in any way politically feasable, and cannot be snuck by the congress.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    Sorry it took so long for me to get back to this, but I was very busy last night.

    1. They will likely take a straw vote in chambers very soon. From that, they will get a quick idea where this is going. If the CJ is on the winning side, he will assign the opinion to a Juctice or to himself. If he is not, the senior justice on the winning side will assign the opinion. They will circulate opinions and take later votes, which could change which side is “winning.”

    2. Typically it takes a few months. I expect this by the end of June. The Court rarely issues an opinion in July, August, or September; hence, if it is not out by June, expect it the first Monday in October. But, the Court could hold it longer or it could remand it to a lower court. In Bush v. Gore, the Court opinion came out within hours of argument. That will not happen here.

    3. This happens all the time. One, including me, must be very careful about predictions based upon oral arguments. One must read the briefs, the lower court opinions, the lower court briefs, the law review articles, and must understand the issues and the Justices. While I’ve done much of that, I can be just as flawed in reading people as the next guy. I am confident, but please note: I state my confidence at the 65% level. WE COULD LOSE THIS. I don’t think we will, but of course we can.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    for a moment. It is early and I need to develop a thought that caused me to jump from bed.

    The Solicitor General and Justice Sotomayor were fundamentally wrong in a way arguably fatal for their case.

    Consistently, the SG (with the aid of the Justice) attempted to switch the argument from a Mandate to one of timing. To paraphrase, “This is not about forcing people into commerce, they are in commerce – the health care market. It is about how they pay. The opponents concede Congress could require people to use [I must check this word, as opposed to have] insurance at the point of sale. Thus, this is about TIMING [which is what I specialize in, so I don't see why I didn't catch this yesterday]. Surely Congress can decide when to regulate something it has the power to regulate.”

    This was a facially persuasive argument, which I recall several Justices entertaining [note to self: check which ones, I think it was Sotomayor, Breyer, and Kennedy]. But, it is wrong.

    Some countries indeed require one to use nationally mandated insurance to pay for medical services – a single payer system is the common, if not universal method. Congress could do that, as least according to both sides. But, it did not. It also did not require me to USE insurance. It, instead, requires me to HAVE insurance.

    I can imagine Justice Ginsberg asking, “what is the difference? Why would someone with insurance not use it?”

    Well, last week I got sick and tired of the hoops in my prescription insurance and told my pharmacist not to run a prescription through the insurance company. They would say not, or they would require me to use a mail-order pharmacy, or they would have said wait (I had several prescriptions to fill). So I paid for it myself. Some years ago I had dental insurance. I did not like the dentist they sent me to, so I went to my own and paid. I then dropped the policy. Also a few years ago, I suffered an injury. Arguably, I could have used workers’ comp, which is insurance. I chose not to because I did not want the wait or the limited choices or all the other hoops I had to jump through. Thus I paid for it myself.

    While congress might have required people to pay with insurance, it did not; instead, it required people to have insurance (and not quite that, even). The difference is fundamental because it destroys the timing argument. Government says this is about the point of sale and method of payment and when to pay (then or in advance). It is not, it is about forcing people to buy a product, not to use it. Some countries forbid people from private payment for medical care. The ACA does not.

    On another level, the government conceded Monday that people do not have to have insurance; instead, they could pay the penalty. The government suggested that someone who paid the penalty had not violated the law. While this is inconsistent with the Tuesday argument that the case is about the timing of payment, it reinforces the reality that nothing in the ACA requires the use of insurance . . . just the purchase.

    The entire case from yesterday should collapse back into a mandate – an argument the government sough desperately to avoid.

  • westcoastpatriette

    Maybe you can make this clearer. Why is the issue of “timing” relevant at all?

  • johnjohn23

    Maybe I’m not understanding the argument. Timing largely deals with the assurance of payment right? Congress could, for example, eliminate the problem of cost-shifting by requiring FULL UP FRONT payment, correct? It’s clearly economic activity at the point of sale and taken in the aggregate has a substantial effect on interstate commerce. Well if they can require full up front payment, they can also require the less-restrictive standard of up front insurance purchase. This virtually guarentees payment because the insurance company will pay the medical care unless it goes bankrupt in the interim. Both have a valid aim of eliminating cost shifting. I think we agree on this?

    I don’t see how the difference between purchase-and-use is fatal. The thing of value to the market is the guarentee.

    To use a similar, and I think we both agree Constitutional, example: Congress could nationalize the requirement that to drive a car you must have automobile insurance. It can do so regardless of a requirement to use the insurance. So you can still pay out of pocket for a minor fender bender, but the important thing the federal government would want, just like what the states want is the guarentee.

    The government is correct in saying it is silly to suggest that people can purchase insurance at the time of use, first because the nature of healthcare suggests not all people will be conscious and of a sound mind at the time, and second that people seeking medical help are uniquely susceptible to compulsion.

    What am I not understanding about your argument?

  • renl57

    Instead of threatening American citizens with a fine of a few hundred dollars, help struggling young citizens with a generous tax credit based on income and number of years employed. (A young person starting out in the private sector for the very first time would get a generous tax credit to help him purchase insurance. Someone who had been working for 10 years already would not.)

    You’re more likely to spend $6,000 on an individual health insurance policy if you get a $4,000 tax credit than if you’re threatened with a $400 penalty.

    Obama and his fellow lefties should be reminded of environmentalism and energy conservation, which they purport to care so much about: We encourage American homeowners to insulate their homes and to install solar panels to generate their own energy, with generous tax credits. We do NOT say to them “You are hereby mandated to pay a contractor to install solar panels on your roof or else you must pay a penalty.”

  • westcoastpatriette

    I understand the difference between purchasing insurance and actually using it, but I don’t see the legal distinction you are trying to make about it with respect to ACA. Please explain further.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    Thanks. Obviously, I need to work on this.

    About 45 minutes of the Solicitor General’s argument focused on what he called “timing.” He consistently argued the ACA does not have a Mandate and that this is about the health care market, rather than the insurance market.

    If this is about how to pay for inevitable health care, then it is TIMING: does Congress require you to pay at the time of service with insurance or to pay for the insurance earlier. Some of the argument and questions concerned how unrealistic it would be to allow people to purchase insurance after they become injured or ill.

    That is a clever, complicated attempt to deflect the reality that it is about compelling commerce. I believe the government knows it will likely lose if this is about whether the government can compel commerce; however, if it is about how one pays for medical care, then it may very well win. Hence the theme or theory of the case matters a great deal. Several Justices, including some conservative ones, sounded intrigued by the timing approach. That is a dangerous argument and needs to be defeated; unfortunately, as good as Mr. Clement was yesterday, he did not destroy that argument.

    I hope this helps. I’ll work on the argument some more. Someone must destroy it . . . and soon.

  • Scope

    Have you all heard that Mayor Bloomberg in NY has now ruled that private citizens will not be allowed to donate food for some homeless shelters. It’s because the food they donate is not “healthy enough.” He is the same Mayor that has fought against salt and fats, and required restaurants to include calorie info on menus.

    Over the past year or so, with Michele Obama’s food police program push, many people have been told they can no longer feed the homeless as they had always done, because it isn’t “safe.” That’s happened across the nation, not just in NY. Food panties have been closed down as well.

    According to the liberals/progressives it is better to kill the charities, and to get people dependent on food stamps and other government programs. I wonder if Argula is food stamp approved.

  • Right Reason

    5^5!

  • ceili_dancer

    n/t

  • Scope

    are all one and the same thing. Just the way the comment was set up- “I had heard” shows the comment was planted by a liberal.

  • Scope

    to be struck down now. That has nothing to do with politics. The pre-existing condition mandate is already in force, and with the individual mandate gone, not many will purchase insurance until they get sick. It will quickly bankrupt the private insurers, and what will the only other option be but to set up government run single payer insurance which is what the liberals want to get to anyway. That will be the perfect impetus to go right to government controlled, regulated and owned healthcare in this country.

    In addition, even if the individual mandate is upheld, there is no vehicle in the law to force people to buy insurance, as there is no penalty if you don’t pay the penalty. That was a major portion of the SC questioning on Monday. They obviously have recognized that there is no vehicle in the law for enforcement.

  • Tbone

    standing on an auction block. That’s why Democrats buy Blacks for their vote harvesting plantation.

  • hls87

    When the government argues that everyone will be in the market for health care sooner or later it is pulling the old bait and switch. The market for health insurance and the market for health care services are two different things. Most (not all) of us will need professional health care in the course of our lives at some point. Many of us, however, will never need services we can’t afford to pay for out of pocket. The ACA attempts to force us into the market for health insurance (and comprehensive health insurance at that, no catastrophic coverage allowed). That isn’t a market we would all necessarily ever be in; the mandate cannot, therefore, be dismissed as a mere matter of timing.

    You don’t have to wander in the weeds arguing that people with insurance need not use it. The only point of that observation is to illustrate that health insurance isn’t the same thing as health care services, which doesn’t require any elaborate explanation. The timing argument falls apart as soon as one notices that many, if not most, of us would never buy anything remotely resembling the mandated insurance product left to our own devices. Many of us would have a high-deductible policy that never paid us a dime’s worth of benefits and self-insure up to the deductible amount. Many of us would do without insurance altogether and gamble on good health.

    It isn’t just a matter of time before everyone wants what the ACA is peddling. The timing argument is a lie. If that’s all the government has, it’s got nothing.

  • Scope

    address the timing argument. He said something about them not being stupid, and that the young need their money now for other things, and that eventually they would buy health insurance. He seemed to dismiss the timing argument that the young and healthy must purchase insurance now in order to pay for those that are already the biggest users of the insurance dollars, or that they are required to start paying now for healthcare they may need in their future years.

    I may very well be wasting my time with putting so much focus on the Monday arguments and questions, but, there was a fair amount of time spent on the “penalty” and what would happen if people don’t pay the penalty. One of the justices asked specific questions on what would happen if it was not paid, would the person be considered a law breaker, could they be jailed, or can their property have a lien put on it for non-payment. Not everyone gets a refund each tax year, and that seems to be the only way to enforce the penalty with withholding the amount due back from the refund. Would the justices put any weight on the fact that the law has no real teeth in collecting the penalty? I believe the solicitor General said that the government expected to collect X number of dollars from those that don’t have insurance. If people can walk with no legal consequence, why would they put a number on the amount of revenue they anticipate collecting? I don’t know what those monies were to be used for once collected. Would it be to pay for the uninsured who show up at emergency rooms? The law that emergency rooms cannot turn people away is still on the books.

  • onemovoter

    I believe your point about compelling commerce runs along the lines of contract law, in the point of forcing through coercion, unwilling parties into a contract.

    Last time I checked of when that happened was when we still had slavery in the south.

    You are right that this is about compelling someone to do something that they don’t want at the time. There is a doctor in Oregon who has done away with accepting any insurance or gov. health plans. Instead you pay a low monthly fee along with an office visit fee of $20. Check it out at Exceptional MD If I decided I would like this service, I’d have to pay twice. Once to the government for an insurance product, and second in cash for this cheaper better service.

    Of course this problem is the same that taxpayers have with public and private schooling. Every time the government takes on a “service”, we lose the freedom to choose. However, the mandate takes away the freedom of choice without even providing any “service”.

    I’m just trying to make a point here off of what your above point was about. I know the point I made runs into a dead end but it might bring about a tangential point to argue.

    Hope this helps to inspire.

  • acat

    ape the liberal bloc-mindedness.

    “Evangelicals are a bloc!” Umm, no. They’re not.

    “Conservatives are a bloc!” Umm, also no.

    Mew

  • hls87

    buying comprehensive medical coverage from an early age is likely to be far more expensive for most consumers than paying their actual medical expenses out of pocket. In fact, the whole point of the scheme is to force those lucky enough to be in good health into sharing the expenses of those who aren’t so lucky. The ACA isn’t designed to make people pay their own expenses up front. It’s designed to make them share other people’s expenses. It isn’t a question of when you pay your own expenses. It’s a question of how much you pay for the expenses of others. The timing argument is sheer bunkum.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    I like your explanation, which is similar to what Mr. Clement argued. Yet, the SG still went into the weeds and got at least 4 Justices in there with him.

    This goes to what kowalski said earlier, the arguments are too complex and esoteric. That is ridiculous. Nevertheless, that is the reality we have.

    I take your advice seriously and see the point must be made both ways: simply and with complex analysis. This is too important and time is too short not to cover all bases.

    The more I think and discuss with others, the more I am convinced the government make a strategic error.

  • sbm1

    Germany,

    They understood this early, and always had an excemption for those over a certain income bracket. There insurance was voluntary….Bismarck invented it, so back then stuff made more sense.

    I hear they changed that last year, and made insurance mandatory, even though high deductible low premium plans are still readily available.

  • Scope

    been focusing my attention. If the pre-existing condition mandate that has already been implemented is allowed to remain, the private insurance companies go bust, and the only thing left is the government to have complete control over healthcare. I am praying that this is a big part of the justice’s discussions behind closed doors. As currently constituted, no one must currently buy insurance until they get sick.

  • JimmyGee

    Obamacare: Know your enemy
    posted at 9:15 am on March 28, 2012 by Steven Den Beste?What is of supreme importance in war is to attack the enemy?s strategy.? ? Sun Tzu
    Which means you have to know what the enemy?s strategy is. So just what do Obama and the Democrats want out of the SCOTUS review of Obamacare (ACA)?
    There are three basic questions that the Supreme Court is trying to decide.
    1. Should they decide now, or wait? (That was argued on Monday.)
    2. If they decide now, then is the individual mandate unconstitutional? (Today.)
    3. If the mandate is unconstitutional, then is it severable from the rest of the law? In other words, if SCOTUS strikes down the individual mandate, does that invalidate the rest of the law? (Tomorrow.)
    For Obama, the ideal outcome is 1. Now. 2. Unconstitutional. 3. It?s severable.
    In other words, the mandate goes away but the rest of the law remains in force. That makes private health insurance economically unviable, and the insurance companies will all exit the business or they will go out of business. At which point the Democrats will try to implement ?single payer?, a total nationalization of the entire health care industry, financed by a huge rise in taxes.
    Single Payer is what they always wanted. The bill wasn?t originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.
    If the mandate is struck down, then Congress will have to act. There won?t be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.
    That?s why the arguments yesterday and today were feeble: Obama wants to lose the first and second questions. Tomorrow?s argument is about severability, and that?s the one to watch.
    And it?s going to be interestiing, because Congress didn?t include a severability clause in the ACA, which is usually routine boilerplate. It was in there originally, but got removed before the law was passed. The Obama administration is going to argue that nonetheless it should be treated as if there was a severability clause, despite evidence of Congressional intent to the contrary.
    This post was promoted from GreenRoom to HotAir.com.
    To see the comments on the original post, look here.

  • lapert

    That is why there was discussion on the difference between if it were a catastrophic insurance mandate and the broader scope that congress has decided on.

    The notion being that, while you might gamble that you won’t be the one to need to catastrophic care at some point you do so only because you assume you will get that treatment anyway – and in fact, it is wholly unknowable which random people will and won’t end up using it. But, as was pointed out, the law has no problem allowing congress to act on statistical likelihoods alone.

    If the justices can find justification for looking at insurance as a one possible method to address the challenge of ensuring care for the random few who need it (thereby viewing it as merely an aspect of the health care market rather than its own entity) than they might (and my thinking from yesterday is Kennedy and Roberts want to get to this point) conclude that congress does have the authority in situations limited to where universal service will be given to those in need regardless of immediate ability to pay (health care is unique historically in this sense) and who will be in need is impossible to be determined by any party ahead of time, to use a statistically driven method like insurance. And, once concluding that they will decide that the specific scope, so long as it is confined to that unique market, is a question better left to the part of government accountable to the electorate (i.e., it is political in nature).

    My sense is that some form of that will be the majority opinion and the next battle ground may be around what can and cannot be required inclusion in the insurance.

  • hls87

    you’re saying that the Court may conclude that health insurance and health care are one market because some people will need health care that they can’t pay for without insurance. The Court might reach that conclusion, but only if Anthony Kennedy is completely brain dead. That conclusion would be idiotic.

    There are many ways to socialize the costs of uncovered catastrophic health care that don’t involve requiring people to buy anything they don’t want. Congress doesn’t have to claim plenary power to determine what we consume in order to cure any problem we may have with health care financing. If it can nonetheless claim that power, the concept of limited, enumerated powers is dead. The issue here is simple — Is there any meaningful, judicially cognizable limit on the power of Congress to regulate interstate commerce? If Congress can “create commerce in order to regulate it.” there is no such limit. That is all ye know and all ye need to know.

  • lapert

    I don’t think they need to conclude it is the only way pay for care – all they need to conclude is that is is one practical method and, as they generally do, give deference to congress to determine the best methods for constitutional ends. They can conclude that health care insurance is an aspect of the health care market as a whole and not a separate market.

    They will construct a limit to the power that essentially carves out healthcare as a unique market where you are participating it by the mere fact you exist with an unknowable, random, chance of obligating others to provide the service to you at any moment.

  • johnjohn23

    I agree and find the innoculations to be a flawed argument. If there was a disease killing 10% of the population, there would be innoculations regardless. It’s simply an extrajudicial emergency, and it would happen regardless of what the Constitution says.

    I’m just a trial attorney and haven’t studied the court as I am sure you have, but the other way to read what happened yesterday is that from Roberts on down they all decided that the requisite substantial ties to interstate commerce existed and they were all just looking for a good articulation of a limiting principle.

    Scalia said about half way through that the substantial effect existed, the necessity likely existed, but the proper might not, since it would be more proper for the federal government to give up on the pre-existing condition ban than to force the mandate on the people. This is a troubling response long term, because it just means that the mandate will be on doctors next time rather than consumers.

    I forget who said it, but there is a real legitimate question about how do you take into account that it is clearly constitutional to do a further-reaching action (full socialization), so do you penalize the more private one for attempting to be more private?

    If the mandate gets struck down, the next time the dems retake it all, they will just pass a law saying doctors must be paid via insurance, or go further and say doctors must be paid by the federal government. It won’t mandate a purchase by the consumer, but it will mandate a purchase by the consumer. That’s something that’s getting lost in all this. It’s true, the law may not survive, but the sphere of powers the law resides within is getting upheld and there is a more egregious alternative. They’re not striking down Wickard.

  • hls87

    The question isn’t whether Congress has adopted a rational approach to achieving a desirable end. The question is whether the method they adopted is within the limited powers of Congress, and that isn’t a close question. The fact that Congress has many alternatives to the mandate it adopted means that the Court has no incentive to bend the Constitution out of shape for the purpose of solving a compelling and otherwise insoluble problem. Unless AK has one of his (fairly frequent) halucinatory moments, Obamacare is going down.

    If the Court tried to write a narrow opinion authorizing a mandate to purchase health insurance that did not give Congress broad power to mandate any other purchase, it would fail. Even Kennedy is smart enough to know that. There is no stable, sustainable distinction that could keep an opinion upholding the ACA within narrow bounds. If the ACA gets by the Supreme Court the Court will have abdicated all responsibility to police the boundaries of Congressional authority. Congress will be limited only by the ballot box, if at all. I’m guessing AK isn’t inclined to vote for his own irrelevance, but we shall see.

  • johnjohn23

    When you say: “While congress might have required people to pay with insurance, it did not; instead, it required people to have insurance (and not quite that, even). The difference is fundamental because it destroys the timing argument. Government says this is about the point of sale and method of payment and when to pay (then or in advance). It is not, it is about forcing people to buy a product, not to use it. Some countries forbid people from private payment for medical care. The ACA does not.”

    The effect of buying the product is to force a guarantee. That has a market benefit, regardless of how you pay or whether you use it.

  • hls87

    The federal government most certainly could not require the purchase of car insurance nationally. State governements don’t have limited, enumerated powers. They have the general police power and the auto insurance requirement is an exercise of that power. Nor is it clear that Congress has the power to mandate the terms of payment in a private, intrastate contract between a patient and a doctor or hospital, so your “upfront payment” hypothetical is useless.

    Congress has never before asserted the power to require that people buy something. The Constitutiona cannot fairly be read to give it that power (although some S.Ct. precedents can be construedto imply it). It’s as simple as that.

  • lapert

    Of course it is a close question, if it weren’t we wouldn’t need a supreme court decision on it.

    Your assertion that their is no sustainable distinction doesn’t make it so. They can certainly conceive of such a distinction which views health insurance as a component of the healthcare market that everyone is a participant simply by having the unknown possibility of being in a condition that requires others to provide service – the question is will they (and by they I mean Kennedy and/or Roberts and their clerks) find one they are comfortable with.

  • Yil

    I think you’re incorrect in asserting that the “pre-existing condition mandate is already in force.” Insurers are under no obligation to accept anyone and absent state law they can exclude pre-existing conditions for a period of time. That’s why the healthcare law set up the high risk pool for a few years to handle people denied by several insurance companies.

  • hls87

    It’s before the Court because the line of cases interpreting the Commerce Clause left orbit headed for a remote galaxy many years ago and the Court must now determine whether it wants to turn around and head for home.

    I’m not assuming that there is no sustainable distinction between health insurance and any other commoditiy that could serve to limit the power that Congress assertecd when it passed the ACA. I’m deducing that there is no such distinction because none of Obamacare’s defenders have come remotely close to articulating one. Thousands of person hours have gone into trying. If it hasn’t been done, it can’t be done. The idea that we all use health care therefore we all “participate” in the market for health insurance is puerile nonsense and you’ve got nothing else.

    Case closed. The only thing that can save Obamacare is another one of AK’s psychotic episodes.

  • lapert

    Actually, the case is before the Supreme Court because the appeals courts disagree with each other. If it was such an obvious decisions you would have no disagreement and the SC wouldn’t have to take up three days of oral arguments to bother with it at all.

    And I don’t think it is accurate to say that no sustainable distinction has been articulated. I think at least 3 judges already have a clear sustainable distinction in mind and my sense from yesterday is that one other is heavily leaning towards one of his own while two others want to be convinced of it during deliberations.

    The case isn’t closed until the decision is given – your assertion that it is puerile nonsense not withstanding.

  • Scope

    was accelerated by the HHS for children under 19. As of September 2010, insurance companies were required to cover children under 19 with pre-existing conditions. I believe that children staying on their parents policies until 26 years old is also already in effect. I’ve heard liberals on TV raving about how wonderful the legislation is, and they cite statistics showing all of the people who are now insured, that would not have been without the bill.

  • hls87

    The fact that Appeals Courts disagree proves only that the S.Ct. Commerce Clause precedent is insane. There is no shadow of a rational argument that the Constitution authorizes Congress to impose an individual mandate. The only hope for the ACA was that AK or the Chief would decide to be faithful to wacko precedent rather than the Constitution. On the evidence of the last three days , that’s not happening. Game over.

    There aren’t three justices with a distinction in mind between the mandate at issue before the court and any other mandate to buy a commercial product. There isn’t one. There are three and probably four justices who believe that the Commerce Clause gives Congress the power to do whatever it wants (as long as it promotes the onward march of socialism) and are groping for rationalizations that will help them reach the result they want without admitting to that belief. That’s reality. That’s also why the SG, his assistant and the 4 lunatic justices have all looked so foolish for the last three days. Nobody argues well when they have no argument to make.

    Either the mandate fails or enumerated powers become an historical curiosity without contemporary relevance. There’s no middle ground; this baby can’t be split. Of course, Anthony Kennedy is stupid enough to try, but it doesn’t look like he’s so inclined and the other four sane justices are much too intelligent to fall for that foolishness. Once again, game over.

  • lapert

    I understand you believe that however you view the constitution is obvious and the opposing side is clearly stupid. Good for you, I think that makes you an absolute moron, good for me. I think that people can in good faith and with honest approaches reach different conclusions on many (if not most) points of legal interpretation.

    At least we will know which one of us is right regarding Kennedy and Roberts views in this case in the next few months.

  • hls87

    Whether the Commerce Clause authorizes Congress to compel citizens to purchase health insurance (or anything else) isn’t one of them. The government’s only hope was that a majority of the Supreme Court would be unwilling to start policing the boundaries of the CC after so much water under the bridge (Wickard, Heart of Atlanta). Over the last decaqde, there have been plenty of warnings that this wouldn’t fly and the arguments make it clear that it probably won’t.

    If you truly believe there is a rational argument for the proposition that the power to regulate interstate commerce includes the power to mandate that citizens purchase health insurance then you truly are an idiot, and illiterate to boot. Congress has gotten away with a great deal in connection with the Commerce Clause for many years because the Court wasn’t willing to consider seriously any claim that Congress had acted ultra vires. That has apparently changed.

    The Court is considering the challenge to the ACA seriously. Only a fool or a knave could uphold it. Four justices are knaves. The government’s only hope is that AK is a big enough fool.

    Time will tell.

  • hls87

    I believe we were (briefly) collegues when I was visiting on the UF Law School Faculty for a year in the early 90′s. I checked out your website. It seems that over the years we’ve both grown families and beards. It’s a pleasure to see your contributions here and I’m glad to find you well after so many years.

  • http://impudent.edublogs.org/ kyle8

    don’t pretend for a second that the Supreme court was ever going to consider this on a legal basis. All that would be necessary is one more Democrat appointed justice, and the Obamacare would be the law of the land with scant consideration to anything legal or otherwise.

    The left have long ago stopped being invested in either moral, ethical, scientific, economic, or legal arguments, Pure power politics are all that concern them.

  • lapert

    Would you see an opening for the mandate if it was focused on catastrophic coverage only and rather than noncompliance resulting in a penalty compliance led to tax credits?

  • demsaresatanic

    to advance the democrat/socialist agenda, period. In this case the dem/socialist agenda is best advanced by destroying the free market in insurance and replacing it with a purely socialized system. In my view that objective is best accomplished by striking down the mandate and retaining the remainder, and that is where the battle will be.

    http://www.breitbart.com/Breitbart-TV/2012/03/28/Ginsburg-More-Conservative-To-Sever-Mandate-Rather-Than-Throw-Out-Entire-Bill

  • hls87

    That any of the Democrat justices are susceptible to reason. You’re quite right that they aren’t. But the fact that they have no argument to support a decision upholding the ACA still matters, greatly. If they had an argument, even a cretinous one, they would be far more likely to bring Anthony Kennedy on board and save Obamacare. The legal arguments are only relevant at the margin, but the margin is where the rubber hits the road.

  • richmccreedy

    Been arguing this point all day. At no point in American history has Congress ever asserted that a citizen must buy something. But, this goes even beyond that. Because as to where some states require a person to purchase something (like car insurance) that still only occurs after entering into the automobile market in the first place, of which that state does not require you to enter.

    This statute is vastly different than anything to come before it. Congress not only is requiring you to buy something, it is requiring you to enter into commerce from a seemingly dormant state. Completely unprecedented.

  • hls87

    Such a mandate would be marginally better policy, but still clearly outside the scope of any reasonable reading of the Commerce Clause.