Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours — probably in March — for oral argument. The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it. It is unclear, at this point, whether all of the cases will be heard on a single day.
The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group. It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group and three of its members and by Liberty University and two of its employees.
Accepting the constitutional dispute on its very first examination of the cases brought to it speedily by lawyers, the Court wrote three separate orders outlining how it would deal with the cases. That meant that they would not be grouped together, but that they likely will be heard close together, if not back-to-back on a single day.
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burnspbesq
As I said in a comment a couple of threads below, the Anti-Injunction Act issue is the wild card here. The Court can decide that the individual mandate can’t be challenged except by way of a suit for a refund of the penalty for not having insurance. Which would kick the can probably to 2017 or so. And if the Rethuglicans keep hacking away at the IRS budget, who knows when it will get around to trying to collect from people who refuse to pay.
kay
@burnspbesq:
Should this scare me? Because it does.
Yutsano
My predictions:
1) This will get reported on terribly by the MSM. The fact it’s even IN the Supreme Court will be evidence that it’s SOCIALLISM!! and will get struck down.
2) Scalia will do judicial backflips to promote his ideology. He’s already been more than willing to throw out years of jurisprudence.
3) Kennedy will get fluffed, fluffed, and fluffed some more.
@burnspbesq:
Which still won’t matter. We have no enforcement mechanism in the PPACA. In other words, all we can do is note it’s not paid. I haven’t seen how the exact calculations work out yet (I don’t think they’ve even written the IRM!) but unless it counts against total tax liability it has no teeth.
burnspbesq
FWIW, I stand by my earlier prediction that if the Court reaches the Constitutionality of the individual mandate, the vote is 7-2 to uphold, with Alito and Thomas the dissenters.
Villago Delenda Est
One wonders what will happen if some parts are upheld and others are struck down, and how the wingtards will react to that.
The first mentioned, the mandate portion, is perhaps the most far reaching feature of the law, but the other points being reviewed are by no means trivial.
Villago Delenda Est
@Yutsano:
Seeing as it has nothing to do with sex or celebrities, of course it will be reported terribly.
burnspbesq
@kay:
I don’t think so. The Eleventh Circuit’s reasoning on this issue was spectacularly bad. I expect a pretty resounding smackdown.
kay
@Villago Delenda Est:
The mandate got the most media attention, by far, and it is going to be vitally important to the fewest people. It is important to the right people, however.
I’ll make a policy prediction, because I don’t make legal predictions. If the law survives, the mandate will be a non-story, in practice, in terms of “most people” affected by this law. It will always be “hot” as far as controversial, but actual people? Not nearly as important as the expansion of Medicaid. Not nearly.
Zifnab
Get ready to discover that only the liberal parts of the PPACA are unconstitutional. I expect to see some firmly worded gibberish coming off Thomas’s desk. And I’m eager to see how much Roberts respects Stare Decisis this time around (pro tip: His respect has been inversely proportional to the number of times he was forced to say the words in front of the Senate, in order to secure a confirmation).
kay
@burnspbesq:
Good, thanks for the reply. I was worried that they took it up. I didn’t anticipate that. I guess if they strike down the ability of the feds to impose Medicaid eligibility rules, I have bigger problems than the PPACA.
burnspbesq
@Yutsano:
“Scalia will do judicial backflips to promote his ideology.”
Scalia painted himself into a corner with his concurring opinion in Raich. I don’t think his ego will allow him to admit that he was wrong.
Yutsano
@burnspbesq: I’m sure he’d come up with some justification for concurring on Raich but striking down the mandate. He doesn’t have to be consistent just for appearances.
And just FYI: ACS is stressed to the max right now. The hiring freeze is literally killing the IRS. We can’t afford to have to go past 2012.
eemom
what does the argument against the constitutionality of the Medicaid expansion even consist of? More 10th amendment bullshit?
Also too, when this is all over and we win, I am going to drive to Richmond and park myself outside Cuccinelli’s office with a big fat sign reading SUCK ON IT, ASSHOLE. Kind of my own personal Occupy movement.
Villago Delenda Est
@burnspbesq:
Scalia is NEVER wrong. If it turns out he is wrong, well, he his not.
burnspbesq
@kay:
Be glad Powell and O’Connor aren’t around any more. O’Connor’s dissent in Raich, with its references to the states as laboratories, would be a basis for voting against the Feds’ ability to set standards for a Federally-funded-but-state-administered program.
deep cap
I have to agree with Yutsano. Scalia is so intellectually dishonest it doesn’t matter what he said in Raich.
General Stuck
I predict anything can happen, and likely will.
kay
@eemom:
Yup. (pdf)
Pretty much. “Core principles upon which this NATION WAS FOUNDED!”
They can’t opt out of Medicaid because they want the money, but the feds who send them the money can’t tell them what to do, because, tyranny.
chopper
@General Stuck:
i like the timing of the decision. it’s like the SCOTUS got so jazzed over the idea of fucking with an election back in 2000 and they want to try it again.
Omnes Omnibus
I am going with 6-3 to all major parts.
Alito, Thomas, and a Justice to be named later will dissent. Also too, Scalia issues a very long concurring opinion that is largely filled with originalist crap.
eemom
@General Stuck:
Indeed. For example, my idiot wingnut sister in law actually did a FB post this weekend about how awesome it is that her two oldest daughters were able to get back on the family’s health insurance plan…..and actually questioning the fact that the republicans want to kill the ACA.
After I picked my jaw up off the floor and paused by the window to admire the flying pigs, I congratulated her on having an open mind.
Villago Delenda Est
@General Stuck:
John McLaughlin is in on line two for you, General. Says you’ve got the prognostication chops to join The Group.
kindness
I just don’t see the Supreme Court being able to reject some the ACA while while OK’ing other lower Courts rulings on other aspects of the law. So I’m a bit uncertain as to the taking 3 different cases & only picking out portions of each case.
Seems to me this is an all or nothing thing. FSM knows there are Supremes that would love nothing more than to stick it to Democrats, but I think they are a minority (3 or 4, I’m not sure).
I’m keeping my fingers crossed and grating fresh parmisian for our lord and savior’s guidance of our highest court.
Omnes Omnibus
Why am I in moderation? FYWP!
eemom
@chopper:
That actually is not on them. The WH made a calculated decision not to drag out the 11th Circuit appeal so that the Supreme Court COULD decide it before the election.
Kay
@Omnes Omnibus:
I took you out. Your comment, I mean.
The Dangerman
IANAL, but there’s no chance that the mandate is struck down while leaving the rest of it in place. It’s all or nothing.
I’d say the USSC votes to uphold the ACA EXCEPT this would be a gaping wound to Obama’s reelection chances in the middle of the campaign if it overturns. Given some of the political hacks currently on the court, how do those hacks keep the hicks happy?
I’m predicting ACA is upheld and lots and lots of hicks heads exploding next summer.
Yutsano
@Kay: You could have taken him out too. There’s nothing wrong with that. :)
chopper
@eemom:
maybe the court will hand down a decision to put bush back in the WH.
burnspbesq
Even though it’s not part of the package of cases that the Supremes will hear, don’t underestimate the importance of the D.C. Circuit’s recent opinion in Seven-Sky v. Holder. Judge Silberman, who wrote the majority opinion, is a demigod in Federalist Society circles, and the opinion is a work of art. Expect it to be cited extensively in the Government briefs. It’s going to be hard for Roberts and Kennedy to ignore?
kay
@Yutsano:
I’m an internet tough guy, as you know. I don’t know where his comment went, though. It was released from comment purgatory.
I’m an incompetent internet tough guy.
Judas Escargot
Enlightened self-interest time here: Say, hypothetically, that SCOTUS does overturn the individual mandate. Would this have any effect on the Massachusetts health care law? (Or similar laws in other states like VT)?
My biggest fear is that the bullies don’t just deny this power to the Feds, but go the extra mile to forbid the states from instituting their own laws like we did here.
We have 98% coverage here, but we do have plenty of home-grown teabaggers here who’d love to repeal our local law, also, too.
Coesy D
Will health insurance and pharmaceutical companies let the mandate slip away? Seems to me they’ll be doing whatever they can to ensure it stays.
Villago Delenda Est
I’m curious as to the gist of the two petitions the SC chose not to entertain.
One was on behalf of two Liberty University (the vile diploma mill of enemy of the Constitution Jerry Falwell) employees.
kay
@Judas Escargot:
They really can’t. There a health insurance mandate contained within child support. It’s quasi-“state”, but it was all but imposed by the federal government, beginning in 1993, and added to by every President since then, by administrative rule change. GWB put huge teeth in it in 2007-8, “with a stroke of his pen”.
burnspbesq
@Villago Delenda Est:
Liberty University was decided on Anti-Injunction Act grounds. They are using a different case as the vehicle for reaching that issue.
Thomas More Law Center was decided on standing, and the Sixth Circuit’s opinion is consistent with recent Supreme Court case law.
These aren’t the droids you’re looking for.
Ruckus
Exact legal issues aside this is when we get to see if we are a country or a corporation.
mark
Think I know why conservative Catholics and the unchristian yahoos at Liberty University don’t like the federal health care law. Because, if their followers and potential followers can get help from the govt. in times of need, they won’t have to come running on bended knee begging for their charity.
Its about power not any moral or legal issues.
Villago Delenda Est
@burnspbesq:
I left some droids around here somewhere, still…
But thanks for clearing that up. The linked article had bupkis on those two denied petitions.
pseudonymous in nc
@burnspbesq: Yeah, the DC Circuit is considered the farm league for SCOTUS, and Silberman is a prime contender for an appointment from a Republican president. While Alito and Roberts are corporatist lackeys whose “philosophy” is to suck up to power, they’ll need a lot of acrobatics to come up with something radically different from the DC Circuit — where even the dissent is a punt based upon the Anti-Injunction Act.
Jay C
Not that I am an expert on these matters, but in this case, is the possible SCOTUS breakdown on the PPACA challenge easy or hard to discern at this point?
I realize for hacks like Justice Scalia and
his sockpuppet Clarence The ClownJustice Thomas their “no” vote is probably a given; based just on partisan-ideological-hackery grounds: but what about the others?I cannot imagine that the Obama Administration would have spent as much time and political capital as they did in crafting the PPACA without giving a good deal of thought as to how it would stand up to a Constitutional test: might this turn out to be a case where the actual arguments in front of the Court might make a difference?
Martin
So if its heard in March, when would the decision come down? This could be a fun intersection with the campaigning.
Dave
I don’t see how the SCOTUS can rule the mandate un-Constitutional after the DC Appeals court ruling. The biggest gift the Obama Administration ever got (besides the GOP Clown Car) was Laurence Silberman decimating the anti-ACA side in the DC Court of Appeals. A staunch Republican, mentor to Clarence Thomas, his right-wing cred is impeccable. For him to come down in favor of the ACA was a big deal.
Punchy
I really hope that Kennedy is the only Justice present, since he’s the only one that matters. Otherwise, its a complete waste of the other 8 Justices’ time.
Hell, at this point, Thomas and Scalia could write their opinion already. Hell, coulda done so a year ago.
soonergrunt
@burnspbesq: You don’t think the architect of the Bush v. Gore opinion will strike it down?
kay
@Dave:
Still. I think people are right to be cynical and wary of their impartiality, and their motives.
Unfortunately, I think they earned that reputation. Not all of them, and not all the time, but it’s rational and the anger and mistrust is real and justified.
They’ve done some real damage to their own reputation(s), and that of the Court, IMO. One really does have to earn a reputation, and trust.
Dave
@kay:
I don’t disagree with anything you say. I think their impartiality is highly suspect.
That said, Silberman coming down in favor of the ACA, and doing so forcefully, creates an interesting situation for the right-wing of SCOTUS. More interestingly, it gives Kennedy right-wing cover to rule in favor of the ACA. One thing no one will ever accuse Silberman of is being a liberal. And in the end, Kennedy’s vote is the one that matters.
burnspbesq
@soonergrunt:
Nope. My read on Scalia is that his self-perception as The Last Principled Man ties his hands on the Commerce Clause issue. Bet a mortgage payment that the Government’s briefs will cite Scalia’s concurring opinion in Raich more than once.
Davis X. Machina
WTFWP?
burnspbesq
@Martin:
“So if its heard in March, when would the decision come down?”
June, most likely.
Dork
I find it funny that so many lawyers here want to keep crouching this expected victory in legal terms, when the Republicans on the court have clearly demonstrated (2000 Election, CitzU) that they decide cases largely based on politics.
As said above, a ACA knockdown cripples Obama’s re-election. Given that 1 piece of data (and the only piece I need), I can easily predict its 5-4 for a strikedown of the entire law. Who cares about precedent when a Democrat is in office?
Davis X. Machina
Why can’t you have it both ways, if you’re the GOP?
You can always blow up the ACA now, and hand Obama a setback on his signature issue in a campaign year, then double back and return to driving customers into the arms of the insurance industry like the Blackfoot driving buffalo over a cliff later.
Some think-tank already has a draft of the Health Insurance Industry Perpetual Profitability and Guaranteed Full Employment Forever, And This Time It’s Not Socia1ist, So There! Act of 2013 already written, ready to be whipped through the Republican-held 113rd Congress. The ACA’s DNA, so to speak, came out of the Republicans’ think-tanks.
I have no doubts about the ability of this Court to distinguish two otherwise identical mandates, differing only in the party who passed them, passed back-to-back, if it needs to.
Necessitas non habet legem.
Anonymous At Work
The fact that there are 3 separate orders is BAD news because it gives Kennedy the maximum flexibility to pick and chose what parts of the law he finds objectionable and strike them down without striking down the entire law.
That being said, I find the idea of Kennedy striking down the mandate but leaving the rest intact to be appealing if simply to give insurance companies fits.
Punchy
Not a chance. Not in an election year.
burnspbesq
@Dork:
I find it funny that so many people who have no idea what they’re talking about feel compelled to weigh in.
News flash, ace: Citizens United was correctly decided. Which part of “Congress shall make no law” are you having difficulty understanding?
cleek
@Jay C:
wasn’t ACA was written by Baucus et al, not by the admin ?
burnspbesq
@Villago Delenda Est:
“I left some droids around here somewhere, still…”
Forget about them and get an iPhone ;-)
Villago Delenda Est
@burnspbesq:
You really need to cover up those lobes while posting at tumbrel booking central, you know.
Captain Goto
@burnspbesq: “Citizens United was correctly decided.”
Mebbe…but are you actually saying that “Bush v. Gore” was, too? As long as that turd is still in the punchbowl, I can’t put any stock in the intellectual consistency or integrity of the conservative wing. Do you really think these clowns care about that kind of thing when there are liberals to be fucked over?
Davis X. Machina
@Anonymous At Work:
Striking down just the mandate forces the insurance industry into an adverse-selection death spiral.
The mandate has to come back. It will come back, but under another name, in a distinguishable form from the ACA, and at a time that makes a GOP Congress and/or GOP president look good, is all.
At its heart it’s a GOP bill. The only problem is who promoted and passed it.
Dork
@burnspbesq: I strenuously disagree, but you’re the arrogant know-it-all here so you got that going for ya.
Martin
@burnspbesq: [Mr. Burns hands] Excccccccellent.
That’s perfect. Gets all of the real candidates on the record regarding what SCOTUS ought to decide, then the decision comes down, then everyone gets to talk about how SCOTUS is legislating from the bench blah, blah, blah.
Now it sounds like I’m being optimistic about how SCOTUS will rule (I am) but that doesn’t matter. Here’s a real case, with REAL impact on young voters. One of the better GOTV arguments on both sides is the power to nominate the next members of the court, and here’s an honest to God, voting may mean life or death for some of you decision, planted right in the middle of the election. No matter how it comes down, it should be a HUGE GOTV driver, and that only helps the left and Obama.
Nylund
Not that I think more information and a better explanation will help get things through the skulls of those who think the president is a Kenyan socialist but…
Most Americans REALLY LIKE the idea of doing away with the insurance company’s ability to discriminate based on “pre-existing conditions.” But, if you do that, then anyone can just wait until they’re sick before buying insurance, which will bankrupt the whole insurance system (since they rely on premiums from the healthy). The only way to get rid of “pre-existing conditions” is to have a mandate. And, the only way to have a mandate is to provide aid to those who can’t afford it. That’s the fundamental aspect of the “three legged stool” argument.
That is, in simple terms, we can have one of two systems:
1. One where the insurance companies say, “You can choose whether or not you want to buy insurance, and we can choose whether or not we’ll provide it for you.”
2. And another where the insurance company says, “We must provide you with insurance, no matter what, but then you must buy it, no matter what.”
The problem, I think, is that many Americans have this notion that there exists a third way where the insurance companies say, “We must provide you insurance, if you want, no matter what, but you don’t have to buy it if you don’t want to, and you can wait until you’re sick to get it.”
That’s just not financially viable. It won’t work. Americans need to realize that’s not actually an option. They need to realize that the choice is between 1. and 2. listed above.
Personally, I think option 2 is better, and I think most Americans would agree. If I’m wrong and America thinks option 1 is better, then the people have spoken. The problem comes when people reject option 2, not because they prefer option 1, but because they think there is a mythical option 3 that’s available. I’m afraid they won’t realize that’s the case until we’ve already declared option 1 unconstitutional and we get stuck with option 2…which, of course, is the crappy system we have now that everyone hates.
(well, of course, there is option 4…a public option or medicare for all, but while theoretically viable, I don’t think it’s politically viable, so I’ve left it out.) On the other hand, maybe if you kill option 1, and people realize there is no option 3, maybe option 4 becomes more possible…
Raven (formerly stuckinred)
What the fuck is it with all these lawyers commenting on, like, the law?????
kay
@Davis X. Machina:
I disagree. It’s the biggest expansion of single-payer since SCHIP, and it’s a whole new regulatory structure for health insurance and, actually, health care. That’s the problem. That’s why conservatives fought it.
If they could keep the mandate and throw out the rest they would. The only thing that’s “conservative” about it is the mandate and the exchanges, the private health insurance portions. It retains SCHIP (which conservatives hated, and fought fucking tooth and nail) and it makes Medicaid a (broader) public health insurance program for low-income adults.
burnspbesq
@Captain Goto:
Bush v. Gore was a joke on a number of levels, but it’s also an outlier. Far more often, judges actually do act the way they are supposed to.
burnspbesq
@Dork:
“I strenuously disagree”
Based on what?
Xenos
@eemom:
This also jumped out at me. How can an existing, constitutional program, have its expansion challenged under some part of the constitution? Either all the Medicaid program is constitutional, or none of it is. Unless the expansion is extremely weird and in some way exceeds the commerce clause and taxation authority of congress… I can’t even wrap my head around it. Time to go to Volokh.com and read some fascist apologetics.
W.T.F? And several phrases using the ‘gam-‘ root are appropriate, too.
kay
@burnspbesq:
Well, sure, burns, but, the whole world was watching. Literally. Some decisions matter more than others, in terms of public perception of integrity.
They’re big boys and girl. I think they should have to own that one.
Presumably they knew they were doing some damage, and if they didn’t, well, now they do. The public behaved better and with more decency and restraint than they did. That’s what happened.
Villago Delenda Est
@Raven (formerly stuckinred):
I don’t know. It’s like asking actual interrogators their professional opinion on the effectiveness of waterboarding (aka water torture, aka “enhanced interrogation techniques”); if it doesn’t fit in with the approved inflict pain on the Muslims! narrative, it’s to be ignored, at best.
Davis X. Machina
@burnspbesq: Far more often, but not often enough. The ‘Drugs are Bad’ carve-out — students don’t check their first amendment rights at the schoolhouse door, they check them outside, on the sidewalk across the street from school — in Morse v. Fredericks is every bit as bad a case of first-draw-curves-then-plot-data jurisprudence as Bush v. Gore.
Bubblegum Tate
@Jay C:
I assume that Roberts and Alito are in-the-can “no” votes as well because, really, why wouldn’t they vote party line on this?
pseudonymous in nc
Roberts and Alito differ from Scalia-and-Thomas because the former are primarily servants to power. Cops vs kids getting strip-searched? Go cops! Polluters vs people who live downstream of the factory? Go polluters! They work on the legal principle of “might makes right.”
In this case, as others have mentioned, Big Health Insurance is shitting bricks about adverse selection if the mandate goes away but the regulatory framework survives. That’s why I think it sticks around.
rp
I wouldn’t go so far as to say CU was correctly decided, but I agree that it’s far too simplistic to say that it was wrong and pure partisan hackery. There are legitimate arguments on both sides of the issue, and while I hate the outcome, I don’t think it’s fair to say that the conservative justices had no basis for their decision.
Bush v. Gore is another matter.
Certified Mutant Enemy
@mark:
Are there any Catholics (conservative or otherwise) attending
Jerry Falwell’s Vanity Diploma MillLiberty University?Certified Mutant Enemy
If he had any integrity, Thomas would recuse himself…
Maddie Reza
As I said in a comment a couple of threads below, the Anti-Injunction Act issue is the wild card here. The Court can decide that the individual mandate can’t be challenged except by way of a suit for a refund of the penalty for not having insurance. Which would kick the can probably to 2017 or so. And if the Rethuglicans keep hacking away at the IRS budget and buy backlinks budget, who knows when it will get around to trying to collect from people who refuse to pay.
Villago Delenda Est
@Certified Mutant Enemy:
If wishes were horses, rides would be free…
ruemara
@Dork: You think it cripples Obama’s re-election? HAH! If this court knocks it down, expect this to be a HUGE campaign issue. Do you believe people would want more conservative judges overturning laws that have benefited the little guy?
NR
No way will the mandate be ruled unconstitutional. The same court that gave us Citizens United will gleefully uphold the mandate, because it facilitates a massive transfer of wealth from citizens to private corporations.
No, the mandate will be upheld, and then that’s it. Say goodbye to Social Security, say hello to the mandate to invest your retirement dollars in private banks. Say goodbye to public schools, say hello to the mandate to pay for for-profit charter schools. Say goodbye to public services, say hello to mandated corporate services. Last to go will be public police and fire departments, replaced by a mandate for you to purchase protection from a private security firm.
Thanks to the mandate, we’ll witness the final corporatization of our society.
burnspbesq
@Certified Mutant Enemy:
I do hope you’re not holding your breath waiting for that to happen.
Turgidson
@eemom:
I’ll send you a pizza! :)
burnspbesq
@NR:
The only thing missing from that paragraph is a logical reason to believe any of it.
David in NY
()! ()! ()! [Applause, that is.]
Certified Mutant Enemy
@ruemara:
But that would be CLASS WARFARE!
— Fox “News”, conservative talk radio, the GOP, etc.
soonergrunt
@burnspbesq: There is one other thing missing from that–the raging that Hillary would never have done this!(tm)
David in NY
Anybody know if there was even any division in the Circuits on the extension of Medicaid question? If not, why did they grant cert on this?
The legal question is whether there is any limit on the use of the federal spending power to bribe states into following certain policies (basically by requiring the withholding of appropriated funds if states don’t comply). Florida seems to read South Dakota v. Dole, 483 U.S. 203 (1987), which upheld the feds’ withholding 5% of all highway funds if states did not raise the drinking age to 21 as some kind of limitation on the spending power, notwithstanding the 21st Amendment, which allowed the states to set policy on the sale of alcohol. The only differences I see are that here, there is no specific amendment, so you’d think the spending power was broader, and here, the bribe is bigger.
But my question really is, was there any dispute about this? If not, why the cert grant?
NR
@burnspbesq: There was no logical reason to believe that the government would ever force people to give money to private, for-profit insurance companies back when the Heritage Foundation proposed it in 1993. But now the Democrats have made that the law of the land. QED.
Bim Skala Bim
@General Stuck:
Now, that was really deep. Thank you for your thoughts on this topic.
David in NY
@NR: “Logic” was the operative requirement. Still missing.
kay
@NR:
You don’t have to, though, NR, any more than you “have” to take out a mortgage, buy a house and get the tax benefit from that.
You just have to pay higher taxes if you’re over 133% of poverty, older than 26, and don’t enroll in a health insurance plan, as long as a plan that is “affordable” is available. If there isn’t an “affordable” plan available (term of art) the mandate drops out.
There’s actually an exception/modification of the mandate for what are called “young invincibles” that I found in the IRS explanation of the plan.
catclub
Charlie Pierce has his opinion out on this case and I doubt that it will be the gold standard that his evisceration of Bobo was.
kay
@NR:
Sorry. The exemption/modification of the mandate is for those under 30 years old, not 26.
Jay C
@burnspbesq:
Why do you need “logic”?? Say hello to the mandate to believe in it!!
Face
If I wanted a mandate, I’d troll some gay online dating services.
Anyone worried that if the USSC bounces this law using some strange, twisted hoop-jumping nonsense, then the precedent has been sent to ignore precedent? I mean, wont that signal to future SC’s that everything in the past is fair game, logic and stare decisis be dammned?
Calouste
@NR:
The Netherlands and Switzerland have a mandate to purchase health insurance from private companies. You might want to pitch your deluded fantasies against the reality that is going on in those countries.
Turgidson
@Jay C:
Bwahahaha. Please provide an address for delivery of the internets.
burnspbesq
@catclub:
No kidding. I’m not a Pierce fan, and that didn’t give me any reason to change my mind.
burnspbesq
@Face:
If Thomas writes the majority opinion, that’s the message. Otherwise, not so much.
Xenos
@Calouste:
You can be damn sure that those private companies are non-profits. Just like most US insurers were before the MBA types and their buddies in government got done with them.
For-profit health insurance is an abomination that was considered beyond the pale as recently as 40 years ago.
burnspbesq
@NR:
At least two earlier comments on this thread have explained why a mandate is inevitable in any universal coverage scheme that isn’t single-payer. Or did you skip over the part about adverse selection?
Reality Check
Looks like ObamaCare is going down. The GOP has a working majority on the court–the whining from you losers after SCOUTS repeals Obama’s biggest “accomplishment” will be even sweeter than the whining after Bush V. Gore.
Bada ba ba baaaah….I’m Lovin’ It!
kay
@burnspbesq:
They want a mandate re: Medicaid, too, because it’s an enrollment mechanism. The idea is low-income people will enroll in whatever they qualify for and get preventative care. Only 60-some per cent of people who are eligible for Medicaid enroll in Medicaid, now, because they wait until they’re sick, or broke, or broke ‘n sick. Some states do better than others, but if we buy into the idea that preventative care is one of the keys for better health care (conservatives don’t) everyone has to enroll in something or other.
burnspbesq
@Reality Check:
Care to bet a mortgage payment on that, Mr. I Have No Clue But I’ll Run My Mouth Anyway?
pseudonymous in nc
Dutch premiums are, I think, about EUR 100 a month per person. The Swiss premiums are more expensive, but that’s because they reformed later and have bigger insurers to pay off. There’s also a payroll tax component to the Dutch system, which covers long-term care, mental health treatment — and abortions.
kay
@Reality Check:
I want you to read something because it’s educational and you won’t see it in mainstream media. It makes media uncomfortable. It’s true, though.
Do you know why newer immigrant groups and racial and ethnic minorities were and are the biggest supporters of health care reform, regardless of ideological leaning? Guess.
What a diverse country we have! One would never know that there was this huge divide in attitude re: ACA listening to commercial media. Huge swaths of the country are completely invisible.
Nutella
@pseudonymous in nc:
Swiss health care costs are the second most expensive in the First World because they have everybody with private insurers so profit is built in. It’s still only a little more than half as expensive per capita as ours, though.
Michael
I certainly have no doubt that the SCOTUS will uphold the mandate, and I’m guessing by 7-2 or at least 6-3 margins. However, anyone else who is unsure, feel comforted: Reality Check is predicting the SCOTUS to strike it down, and he’s basically always wrong.
Michael
I’m not as versed in the law as burnspbesq, as I’m just a lowly law student, but reading a lot of contemporary SCOTUS cases for school, I do feel pretty good about this one.
I still don’t like Scalia much at all, but I’m also pretty sure he’s not the cartoon villain I thought he was before law school.
dmsilev
@Michael:
Reality Check is Bill Kristol?
That would actually explain a fair amount.
burnspbesq
@Michael:
Now I’ve got this image in my head of Scalia as Snidely Whiplash tying an indigent pregnant woman to the railroad tracks. Haven’t figured out who Dudley Do-Right is yet.
bob h
With Clarence Thomas sitting in on ACA?
pete
@ruemara: I agree that striking down the ACA would become a huge campaign issue. I’m a little nervous about the ‘Mercan voters, but less nervous than I am about the Supremes. All in all, if Roberts engineers a No vote, then I think we might have the most substantive election campaign in eons, one that really is for all the marbles. Trouble is, the Great ‘Mercan Voting Public is quite capable of giving us a split decision …
David in NY
I did venture to Volokh, and Orin Kerr makes the point that giving 5.5 hours of argument is really extraordinary, suggesting that the Court thinks the case is extraordinary — which (I’m adding here) would only be true if they overturn either or both of the mandate and the medicaid change. Kerr suggests that this should please the opponents of health care.
Of course, one of those hours would be devoted to the Anti-Injunction Act point, which tends to favor the Administration (if it’s a tax, it’s probably constitutional, and if it’s a tax, it can’t be contested yet). But that could be just to seem “fair and balanced.”
Really, a double knock-out of the medicaid change and the personal mandate would be devastating — right up there with Bush v. Gore.
eemom
I forgot how much I missed the idiocy on these threads.
I do hope Cole and DougJ are gonna revive their Supreme Court horserace bookmaking operation.
eemom
@David in NY:
It couldn’t be that they’re giving it an “extraordinary” amount of time because it’s, like, an “extraordinarily” important matter, and their decision — whatever it is — will have a huge impact on millions of people and the next few centuries of federal legislation and jurisprudence, and they want to make sure they cover it with absolute thoroughness.
Nah. Couldn’t be that.
They TOTALLY all know the law is going down, and they’re just covering their asses. Totally.
peach flavored shampoo
Couldn’t a live of thought be that it behooves the Republican majority in the USSC to maintain the majority, in order to stay relevant in shaping America’s future? After all, the minority rarely if ever gets their viewpoint enacted.
And if issuing a devestating blow to Obama’s reelection serves to put an R in the Oval Office, and thus maintains Republican control of the SC, why would they pass that up?
JenJen
@Michael:
To be fair, Reality Check predicts that SCOUTS will strike it down. And they just might! You never really know with those temperamental Scouts, Campfire Girls, or Brownies.
Mnemosyne
@Xenos:
IIRC, most insurers were non-profit back in 1993, which was the previous attempt at this. Now a majority are for-profit. That’s one of the reasons Obamacare looks quite different than Hillarycare — the market changed in a major way in the intervening 16 years. If anyone wants to explain how we were supposed to change from a for-profit system to a non-profit one with a single piece of legislation without causing a massive disruption in both the overall economy and the healthcare system, I’m all ears. I really think people don’t realize that every part of the system is now for-profit, from doctors to hospitals to home health. Everything.
Captain Goto
@burnspbesq: @burnspbesq:
“Bush v. Gore was a joke on a number of levels, but it’s also an outlier. Far more often, judges actually do act the way they are supposed to.
I’m curious–what makes it the kind of ‘outlier’ that I shouldn’t expect to ever happen again?? I mean, even when a court rules ‘the way it’s supposed to’, there are almost always minorities of living, breathing judges who vote opposite the majority. And that’s not even counting the courts who can and do rule EXACTLY THE OPPOSITE of how they are ‘supposed to’…IIRC, we have mentioned a few upthread already. What makes ‘doing what burnspbesq expects’ such a lock in the SC when the opposite HAS clearly happened–and with ‘everyone watching’, at that??
Mike
The medicaid thing is so that they can “split the baby”… knock out the mandate while “saving” the medicaid parts so they don’t look so “ideological”. That’s the strategy suggested by the ACA litigation blog, and it makes sense.
I’ve been feeling that the SCOTUS wants an out on this one, and seeing the anti-injunction act being put in this case makes me feel that they may use that one just to get that out they are looking for and hoping that the GOP takes control, repeals the law, and that will be the end of that.
Snowball
@Mike:
They will never ever be able to repeat the law as the GOP would need 60 votes in the Senate for this (and hold both the House and the White House).
shortstop
@chopper: Well, but am I wrong in thinking that from the election POV, it’s better to have this decided by July than still hanging out there? Haven’t had any time today to read and in any case never got the backstory, but since Team Obama specifically wanted this in the express lane, it seems that’s their thinking, too?
pete
@shortstop: The Team Obama view is probably that getting the decision early is a total win for them. If it’s up in the air, they face all kinds of attacks from left as well as right, including the notorious uncertainty meme. If it’s decided, then either (a) they have a big policy win to campaign on, and lots of popular parts of it to boast about; or (b) in the alternative they can really pound on the broken system and demand a mandate, while calling righteously for solidarity from the left. Obviously (a) is much preferable, but (b) is better for the campaign than the lies and distortions that go with the uncertainty.
shortstop
@pete: Makes sense to me.
TenguPhule
Plenty of time for dead boys to turn up in Scalia, Thomas and Robert’s beds.
And then the long knives come out.
TenguPhule
If thomas had any integrity, he’d have killed his wife and then hanged himself 10 years ago.
Judas Escargot
@Snowball:
Prediction: If the GOP takes the Senate in 2012, kiss the filibuster goodbye.
Snowball
@Judas Escargot:
Perhaps, but only if they also hold the house as well as capturing the White House. If not, it would be counterproductive.
slightly-peeved
According to the ACA, each exchange will contain at least one non-profit provider that will be contracted for by the OPM.
And Australia’s health system has a similar mandate for private insurance, in that if you buy private health insurance you get a tax break. As other people have pointed out in earlier comments, this mandate is actually pretty weak by the standards of mandates. Given what the insurance companies are mandated to do to join the exchanges (in short, whatever the sec. Of HHS tells them to do), I don’t think the champagne’s popping at any of those companies.
mclaren
None of this matters. The crucial issue is whether Obama’s non-reform ACA legislation actually reduces costs. The evidence is now in from the model on which the ACA was based, namely the Massachusetts health care system: and the Massachusetts health care system is falling apart.
Medical costs have exploded out of control in Massachusetts and the state is in panic mode. They’re talking about “price controls” and “premium freezes.” If you know anything at all about Econ 101, you know that price controls and wage/price freezes never work.
Obama’s non-reform ACA fails to address the underlying problem in American health care: the basic costs are way out of line with the rest of the world, and growing exponentially.
No surprise. That’s what you get in a fee-for-service system in which doctors and hosptials and medical devicemakers and insurance companies are encouraged to act as businessmen, free to charge whatever they like and at liberty to maximize their profits.
Not surprisingly, medical devicemakers and doctors and hospitals and insurers do exactly that. They take bribes, sign sweetheart contracts, force one another into anti-competitive non-disclosure agreements, sign lockin agreements fixing insanely high costs in place and then passing them on to the consumer. When bribery and collusion and cartels and monopolies are the rule, what else would you expect but sky-high prices and infinite ever-escalating cost increases?
The Journal of the American Medical Association is rocking the boat in conventional medicine. An article in JAMA has come up with the suggestion — aghast! — that doctors should stop accepting bribes from drug companies. Most people didn’t know that doctors routinely accept bribes (including hundreds of thousands of dollars in “contractor’s fees” for signing patients up for drug trials), so this news may come as a bit of a shock to some.
Big Pharma spends nearly $19 billion a year bribing and influencing physicians, by the way. That’s billion with a “B.” How much money is $19 billion? It’s more money than NASA wastes smashing satellites into Mars and exploding space shuttles in Earth’s upper atmosphere. It’s more money than the entire junk food industry spends hypnotizing obese children into nagging their parents for another box of sugar-bomb breakfast cereal at the quickie mart. Heck, it’s more money than the entire United States spends on genuine disease prevention and health education.
In other words, it’s a lotta dough. But bribing doctors requires a lot of cash. Doctors have big-dollar appetites. They drive Mercedes Benz, Hummers and Audis. They live in 5,000 square-foot houses with high heating and cooling bills (especially for the outdoor pool). They have expensive habits, expensive travel, and expensive dinner bills (fortunately, drug companies pick up most of the travel and dinner). Let’s face it: Doctors have just gotten used to the idea that they’re supposed to be treated to a higher level of comfort and prestige than the rest of the population, and if it takes drug money to buy that lifestyle, then bring on the drug reps!
Source: “Journal of American Medical Association Says Doctors Should Stop Accepting Bribes from Drug Companies,” Mike Adams, 1 March 2006.
Since the AMA artificially restricts the number of doctors who are accepted into medical school each year in order to insure that American doctors make twice as money as doctors in Europe or Japan, well, what else would you expect?
MDs in the U.S. make about $200,000, which is between 2 and 5 times as much as doctors make in other countries. How do we explain the significantly higher physician salaries in the U.S.?
One explanation is the restriction on the number of medical schools, and the subsequent restriction on the number of medical students, and ultimately the number of physicians. Consider the difference between law schools and medical schools.
In 1963, there were only 135 law schools in the U.S. (data here), and now there are 200, which is almost a 50% increase over the last 45 years in the number of U.S. law schools. Unfortunately, we’ve witnessed exactly the opposite trend in the number of medical schools. There are 130 medical schools in the U.S. (data here), which is 22% fewer than the number of medical schools 100 years ago (166 medical schools, source), even though the U.S. population has increased by 300%. Consider also that the number of medical students in the U.S. has remained constant at 67,000 for at least the period between 1994 and 2005, according to this report, and perhaps much longer.
Source: “The Medical Cartel: Why are MD Salaries So High?” Mark Perry, 24 June 2009.
Forget about the supreme court and its rulings on the ACA. That’s a sideshow. The real action is going on with the ever-exploding cost increases in American health care…which is rapidly leading to a total systemic breakdown.
NR
@burnspbesq:
“A mandate to buy insurance from a private company is necessary in any universal coverage scheme that isn’t single-payer.”
“A mandate to buy protection from a private security firm is necessary in any universal protection scheme that isn’t a public police force.”
You can use this argument for anything. Doesn’t make it any less crappy.
What you don’t seem to understand is that with the mandate, you are setting a precedent which will certainly be abused in the future in favor of corporations and against individual rights. You are saying that Congress has the power to turn us into corporate slaves if it wants to. You are saying that Congress has the power to exercise complete control over the way that individuals spend their money. This is very, very shortsighted and dangerous reasoning.
NR
@soonergrunt: Nah, I remember that Hillary supported an individual mandate during the campaign. I also remember that Obama opposed it–but once he got elected, he changed his tune on that faster than you can say “corporate whore.”
kay
NR
Oh, baloney.
The basic premise of your argument doesn’t hold up.
You don’t, in fact, have to purchase anything from anyone.
You,ll pay higher taxes to cover the cost of the uncompensated care that you’ll get if you don’t purchase health insurance. That’s it. That’s the mandate.
Further, if you don’t choose to buy the insurance and you get sick, you’ll be able to get into the system when you get sick, because other people will pay premuims to subsidize your entry.
Don’t buy the insurance. Pay the tax. Buy the insurance when you require millions in care.
That way you won’t be compelled to do anything you don’t want to do, and other people will cover your entry costs.
Feel better?
kay
And, mclaren, it’s so great that you’re now linkng to wingnut screeds on Romneycare.
Do you even read what you post here?
The New American is now your reliable source on health care?
Why not just join the Tea Party and call it a day?