Key Supreme Court Justices Express Skepticism Over Constitutionality Of Health Care Law

It appears that the Supreme Court justices did not hear about the results of the GW Supreme Court deliberations. Key conservative justices expressed notably skepticism about the constitutionality of the health care law. The statements of Roberts and Kennedy are particularly interesting. I will also note that the continued refusal of these justices to allow cameras into the courtroom is indefensible and insulting. The fact that millions of Americans have to wait for individuals to offer second-hand accounts is a ridiculous exercise that, I believe, would have been viewed as positively moronic by the Framers.

As expected, the justice did not allow much oral argument before interrupting with questions. Kennedy was early out of the box with a question that many of us have been asking, “Are there any limits?” Here is a comment that should worry the Justice Department:

————————————————————
JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

Another key vote, Chief Justice John Roberts suggested that there are no such limits under the government’s approach and that the government might require Americans to buy cellphones to be ready for emergencies. Then the third justice that we have discussed, Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles. Returning to the limits thing, Scalia asked “If the government can do this, what else can it … do?”

That is precisely the type of questions that one would ask if you believed that future of federalism itself was at issue — a concern that I have previously raised (here and here). Of course, it is dangerous to make assumptions from the import of such questions. I have seen plenty of cases come out diametrically opposed to the position taken in oral argument by judges or justices. Certainly, these few comments or questions are not enough to strongly indicate an inclination on affirmance or reversal. Yet, Kennedy clearly indicated that, regardless of how he will vote, he views this as a game changer, noting “That changes the relationship of the individual to the federal government.”

What the transcript would suggest is that Kennedy may be the only hope for the Administration. Scalia was silent for much of the debate but his early comments showed a pretty firm view. One passage stands out where Scalia adopts a key view from the briefs of those challenging the law — that this is a regulation of insurance not health care:

JUSTICE ANTONIN SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that was what regulated was commerce. And here you’re regulating somebody who isn’t covered.
By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it and that’s — that’s difference from regulating in any manner commerce that already exists out there.
VERRILLI: Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. That is what it is.
And I do think, Justice Kennedy, getting back to the question you asked before, what — what matters here is whether Congress is choosing a tool that’s reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past. That’s not something that counts against the provision in a Commerce Clause analysis.
JUSTICE SCALIA: Wait. That’s — that’s -it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure.
The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what, what else can it not do?

If Kennedy were in a majority with the justices on the left, he could assign himself the opinion (assuming Roberts would be in the minority). His views however are likely more narrow than the view articulated by Justice Breyer. Thus, the Court could fracture on the rationale or scope of the decision. If he were to go with the justices on the right, Roberts could assign it to himself.

Source: LA Times

83 thoughts on “Key Supreme Court Justices Express Skepticism Over Constitutionality Of Health Care Law

  1. Lyle Denniston Reporter

    Posted Tue, March 27th, 2012 12:20

    Argument recap: It is Kennedy’s call

    Analysis

    If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

    If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature. SCOTUS blog

  2. Guess what…. That united tax that you see on your cellphone bill pay for cellphones for the people needing them….. It’s called universal tax…. I kid you not….

    Yes Scalia…..they can force you to eat broccoli…… But not Bush1……Kegean…… They’re counting on you….. Don’t let your people down…..

  3. BOND v. UNITED STATES
    No. 09–1227. Argued February 22, 2011—Decided June 16, 2011

    Justice Kennedy:

    “Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

    But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their ownintegrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).

    Some of these liberties are of a political character. The federal structure allows local policies “more sensitive tothe diverse needs of a heterogeneous society,” permits“innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes government “more responsive by putting the States in competition for a mobile citizenry.” Gregory v. Ashcroft, 501
    U. S. 452, 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

    Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawfulpowers, that liberty is at stake.”

    http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

  4. Regarding cellphones, just a reminder, though most here probably already know it.

    A cellphone that has been disconnected from service can still make emergency calls. You may find it handy to have one or two “discarded” cellphones in well known places that you can get to when the murder has cut your landline.

    Of course, in any real local emergency, the celltower will be swamped and you won’t be able to get through.

    Coming to your cellphone is CMAS, a federally directed text messaging system including:

    “Subscribers could receive up to three classes of text-based alerts, such as Presidential, Imminent Threat (e.g., tornado), and Amber Alerts.”

    So, great, you will now be swamped three times a week with Amber Alerts you have no ability to do anything about.

    But if you speak out about the stupidity, intrusion, and inability to turn the damn things off, it’s because you hate children.

  5. I predict they will throw out the purchasing mandate.

    I heard on PBS New Radio a host commentator apologist say that people don’t understand the law.
    He said that people misunderstand in believing they will be penalized if they don’t buy insurance even if they are already insured. He clarified that nobody would be punished for not buying health insurance if they are already covered.
    Of course he didn’t clarify that if these people chose not to continue their existing health insurance, that they absolutely would be punished with a compensatory tax for that choice.

  6. The lack of cameras is insulting.

    Up until this case I had thought the lack of video cameras was regrettable but a relative non-issue. Now, when one of the most important decisions facing the future of this country (no matter which side one supports) is being decided without it, it seems to seriously undermine the legitimacy of the court. Is audio-only truly access in today’s world? Precisely how out of touch is the court that they are not able to use media that is decades old?

    If, people ‘do not understand the law’ as garyonthenet cites an apologist for saying, perhaps it is because the law in some ways does not understand people. Many people are visual learners and best translate information through visual mediums. But this Court denies them a clear understanding of how the law is decided by denying them meaningful access.

    Change has knocked, loudly, on the Court room doors.

  7. Lets bring an element of history and simple common sense to this debate. Our founders wrote and re-wrote our constitution and had contentious battles over the level of power the federal government should have. They purposely wanted a federal government with limited powers. This was not simply to appease individual states and thereby gain ratification. It was to prevent exactly what is happening today.

    Now our Founders could not have envisioned this mandate for they were far more worried about states’ rights than anything like Obamacare. If they had only know, the constitution would have even more restraints on federal power.

    I will be opining on this on http://www.mostly-right.com soon. Check it out. Thanks.

    Jeff

  8. Hey JT,
    How I misjudged you, or confused you with another person.
    Copying what I thought I understood to be your position, here’s what I posted this morning on the Raleigh N&O editorial.on just this issue of cameras.
    They agree with your views above. I stand behind mine—-saying that the media be damned, and the case is not a voting matter for the public to decide.
    ——————————————————————–

    “Public interest, all well and good. But the public as a pressure factor has no place in a law process. Each step must be supervised, but not subject to public vote, or equivalent. pressure.

    Anyone familiar with the media’s distortion capability of selecting snips to show, with more time for the editorial comment than the event it is supposed to present, will understand the justices wish to prevent their work being subject to such treatment.

    Laying speaker voice over a text or a sound bite is damage enough. That decision was the first mistake. Let’s hope for no more.

    For those interested in expert commentary try this link:
    http://jonathanturley.org/2012

    I believe Turley has touched on the matter of public interest versus public influence in a recent post on the public reaction to the killing of Trayvon Martin. Search there and find it, if you will.

    Read more here: http://www.newsobserver.com/2012/03/27/1960893/court-tv.html#storylink=cpy

  9. I think it’s wise not to draw conclusions from what Justices ask in Oral Argument. There ARE occasions (if not frequent) that Justices play the devil’s advocate in order to get answers to questions that other Justices may raise in their private debate about a case.

    Yes, sometimes, the Justices DO tip their hands during Oral Argument and their votes do follow the line of their questions, but I think it’s best to hold one’s fire until we know for sure how they vote.

  10. garyonthenet:

    “He clarified that nobody would be punished for not buying health insurance if they are already covered.”

    I think that is not quite accurate. I think the law demands that one have “adequate” health insurance; if one is deemed to have inadequate health insurance, one could be fined unless one makes the change to adequate insurance.

  11. “And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way. “´
    Justice Kennedy

    How is it with the draft system and it’s relations to inductees. You are going to war to risk your life, young man.
    And certainly other good deeds on the part of government which entail financial burden outside the tax area.
    Obligatory vaccinations, School obligations. Garbage sorting. etc etc.
    Car insurance. House insurance. And if it is a state imposed burden, what’s the difference. Sounds political—–but then am a dummy.

    The justice’s question is dubious, but NBAL, I pass.

  12. ” Of course, it is dangerous to make assumptions from the import of such questions.”

    ************************

    I once had a justice of the Virginia Supreme Court exclaim during oral argument, “Mr. Esposito, how can what you are saying possibly be the law in Virginia?” A month later, that same justice wrote the opinion reversing the trial court and finding for my client.

    So much for gleaning anything from questions or comments during oral argument. Like I said a lot goes on behind closed doors that have to do with everything other than the holdings in case law.

  13. The usual gibberish about mandatory service in the military does not address the issue of a mandatory destructive relationship with giant profit driven, service shriven corporations. I can choose not to drive or not to own a house and thus avoid the much lesser costs of auto or home inurance. But I can’t choose not to live because my government has made doing so illegal. When you combine that law with a health care law that is totally unfunded to regulate the insurance giants, but does indeed regulate me by using my own taxes to force me to pay whatever amount the “too big to fail or to be even held accountable” insurance company wants to gouge out of me, then you start to see just where this constitutional travesty is headed.

  14. The government has a duty to tell the citizen he or she must purchase health care from profit driven sharks but the government has no duty to regulate the price the shark gouges out of the citizen. That must be left to feeding frenzy (I mean competition).

  15. “that concerns me”

    Justice Kennedys last three words when it was shown that when someone goes to the emergency room for treatment and has no insurance the cost its passed on to others who do have insurance.

  16. I do not know much about law yet and how the Supreme Court decides but I strongly disagree with Scalia. The healthcare industry is insurance and the other way around.

  17. Scalia always wants to talk about the original intent of the Framers of the original Constitution before the Bill of Rights. He certainly thinks nothing of the intent of the Framers of the 14th Amdt following the Civil War. But if we would look at the intent of those guys I would bet you a treasure chest that they would not want the follow people on the Court: Italians, Catholics, women, and not all those New York lower east side accents. I dont think that the Framers would want television in there in 1789 or 2012.

  18. TPMDC
    How The Liberal-Leaning Justices Did A Better Job Defending ‘Obamaca
    Health Care Before The Court
    Sahil Kapur March 27, 2012, 6:07 PM 781 2

    The Obama administration’s top legal advocate was pilloried Tuesday for offering a less-than-eloquent constitutional defense of the health care reform law’s individual mandate — the provision at the heart of the challenge to “Obamacare.” Thankfully for supporters of the law, some of the sharpest legal minds in the country unintentionally articulated his case better than he did — the justices themselves. Liberal-leaning justices on the court each stepped in at various points to suggest arguments for the mandate’s legitimacy.

    Here are the four best arguments they made — or at least hinted at — that could sway their skeptical colleagues.

    Justice Stephen Breyer

    The most emphatic defense of the individual mandate came from Justice Stephen Breyer, who several times raised the question of whether Congress may mandate that everyone who has a fatal, communicable disease be inoculated. “A disease is sweeping the United States,” he said, “and 40 million people are susceptible, of whom 10 million will die; can’t the federal government say all 40 million get inoculation?”

    Then Breyer explained the principle behind the argument.

    “It shows there is a national problem, and it shows there is a national problem that involves money, cost insurance,” he said. “So if Congress could do this, should there be a disease that strikes the United States and they want everyone inoculated even though 10 million will be hurt, it’s hard for me to decide why that isn’t interstate commerce, even more so where we know it affects everybody.”

    Breyer returned to the hypothetical several times when the two lawyers for the law’s challengers cried foul on the government’s ability to mandate the purchase of a product.

    Justice Ruth Bader Ginsburg

    When U.S. Solicitor General Donald Verrilli made a vague case for regulating economic activity, Justice Ruth Bader Ginsburg needled him to get more specific about why it’s necessary here — and effectively made his case for him.

    “I thought what was unique about this,” she said, “is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.”

    Ginsburg interjected again when Justice Antonin Scalia grilled Verrilli on whether government can require people to purchase cars if the insurance mandate is upheld.

    “I thought a major, major point of your argument was that the people who don’t participate in this market are making it much more expensive for the people who do,” she said.

    He agreed: “That absolutely is a justification for Congress’ action here.”

    Justice Sonia Sotomayor

    The Obama-appointed Justice Sonia Sotomayor succinctly summed up the need to require everyone to be insured: Everyone will need care at some point. “Virtually everyone, absent some given is intervention from above — meaning that someone’s life will be cut short in a fatal way — virtually everyone will use health care,” she said.

    Quoting a prior Supreme Court decision, Sotomayor said, “the power to regulate, the power like all others vested in Congress is complete in itself, may be exercised to its utmost extent.” She added that “there is no conscription … set forth in the Constitution with respect to regulating commerce.”

    Later, she added: “There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life that some may rail against, but … “

    Justice Elena Kagan

    Justice Elena Kagan, herself a former solicitor general, called out the GOP lawyer Paul Clement’s contention that not everyone is in the health insurance market and that the government wants to force them into it.

    “Well, doesn’t that seem a little bit, Mr. Clement, cutting the bologna thin?” she said. “I mean, health insurance exists only for the purpose of financing health care. The two are inextricably interlinked. We don’t get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.”

    When Verrilli began invoking hypotheticals about commerce power, Kagan stepped in with a rhetorical question about why requiring the purchase of insurance ultimately supports broad well-being as opposed to some people subsidizing others.

    “And this is especially true, isn’t it, General Verrilli, because in this context, the subsidizers eventually become the subsidized?” she asked.

    Verrilli sounded thankful: “Well, that was the point I was trying to make, Justice Kagan.”

  19. Ah, excellent link Swarthmore Mom. I see that Kagan at least agrees with me, and even emphasized my point.

  20. I agree with commoner. Great link Swarthmore. The Scalia examples are apples and oranges, and he knows it. If health insurance for Fourty Million people doesn’t affect commerce, what does?

  21. “I mean, health insurance exists only for the purpose of financing health care.[…]”

    The conservatives can’t answer that one because it would introduce the elephant in the room for ALL of them,

    Health insurance exists only for the purpose of making a profit in the United States. And corporations and our entire political system ensure that that is the only legitimate goal of any business. If some diminishing health care results as a side effect, and if that gets a bunch of blacked robed people excited, fine — ho hum–, as long as it does not get in the way of profit and as long as diminishing remains the operative word on anything that costs money such as financing health care.

  22. Very strange dichotomy seems to be at work in this case.

    It was not too long ago that they ruled the EPA must order businesses to take care of the health of the environment, in terms of green house gases, but are they now going to rule that the government can’t require citizens to pull together for each other’s health needs?

    I would say the latest theories on reason have a sound basis in reality.

  23. Mandating that citizens be held captive to the profligacy of private enterprise is citizens [pulling] together for each other’s health needs?

    Perhaps you would care to share what ever it is that inspires such flights of fancy…

  24. then WHYYYYY can I be forced to buy car insurance…..

    and are you forced to drive? Cause I don’t think they give you the option not to live.

  25. then WHYYYYY can I be forced to buy car insurance…..

    Also, I don’t think auto insurance is required by the Federal government. Only by most, but not all states.

  26. The irony that we have liberals falling all over themselves to defend corporate hegemony and government enforced profiteering has that surreal quality of a train wreck that one simply can not tear their eyes away from even though they are aware how much suffering is about to occur.

    Yes, some will get junk insurance that might otherwise not have had it. But many who are barely treading water now will go bankrupt and loose home and family because they are forced to buy absurdly expensive insurance that they simply can’t afford by an arbitrary scale defined by a bunch of over lobbied cut throats. But they will get health care, by gawd, even if we have to ruin everything they hold dear to do it.

  27. (1) Affordable Care Act ruled unconstitutional!
    (2) NEXT States challenge the constitutionally Social Security! RULED unconstitutional!
    (3) Medicare Ruled Unconstitutional!
    (4) God knows what else!

  28. Regarding Obamacare, I wish someone would explain why the controversy about the individual mandate. The federal government has been requiring you to have insurance for forty-something years. It is called Medicare. You say you don’t want Medicare. Too bad. You got it. You are paying for it. You pay 1.45 per cent of your earned income. Whether you want it or not. It’s the law.

    And going back even further, you have Disability Insurance.. Social Security. Or the full name: Old Age, Survivors, and Disability Insurance (OASDI). Federal law for 60 years or longer. You say you don’t want it. Too bad. You have been paying for it ever since you went to work.

    So what’s the problem?

  29. Mr. Hyatt

    Others will correct me if I am wrong, but I believe that the answer is that Congress was unwilling to enact a tax to pay for the ACA.

  30. Ben Hyatt:

    You seem confused about the core difference between the individual mandate in Obamacare and the requirement to pay for Medicare.

    The individual mandate in Obamacare requires everyone to buy insurance from a PRIVATE, PROFIT-DRIVEN, PROFIT-MAKING corporation. The insurance company can charge whatever it wants to for its insurance and can then decide for itself what medical costs it will cover for you.

    With Medicare, the government charges everyone at the same rate and tells the hospital, doctor, or other medical provider what it will pay for any medical service; everyone covered by Medicare is covered by the same coverage rules and payment schedules, and those rules and schedules are established by the government.

    The corporate health insurer’s principal reason for existing is to make money — PROFITS — for its shareholders, and it pays gigantic salaries and bonuses to its executives.

    The government’s primary mission in the Medicare program is keeping Americans alive and healthy. The government’s administrative costs are very low compared to any private insurer, and the government is prohibited from making a profit from the Medicare program.

  31. “But they will get health care, by gawd, even if we have to ruin everything they hold dear to do it.”
    ——————————————–
    “Also, I don’t think auto insurance is required by the Federal government. Only by most, but not all states.”
    ——————————————–
    Did you eer play Monopoly?
    Did you ever play Monopoly with someone who ‘makes up the rules as they go along’?……how about w/cheaters?

    Guess which game is getting played now?

  32. “Broccoli” at present deliberation about Health Care,
    “Shouting FIRE at a theatre” in the past, when 1st. amendment issues were deliberated.

    The Court lives in the Middle Ages. We have to thank God that it allows cartoonists and audio feeds to report. Cameras?-perhaps in 100 years from now.

    May God have mercy upon us.

  33. The confusion here seems to revolve around who is this bill intended to help. Does the individual mandate help citizens with health care funding or does it help giant corporations to heaping profits? On top of that, the issues are being confused with the heroes and villains peddling them. If Bush were to have signed this bill, or if Bob Dole got his way back in the early 90’s, it would be a toxic give-away to private enterprise, but since Obama signed it, it must be a golden stream of compassion. A few others are arguing that hero or villain, the mandate with no protective price controlling regulation is simply a steaming stream of piss.

    Since it involves hero worship, it’s understandable why there would be such confusion over the difference between a government run program such as Medicare where prices and services are carefully regulated by government so that emphasis is on citizens being given health care, and a program with just about no regulation, run entirely by private enterprise whose only motive is to constantly increase profit. Providing a service always eats into profit and giant corporations have provien time and again that it is easer, and cheaper, to corrupt politicians with lobbyists and fix the media with “a place at the table”, than to actually provide the service. In the auto industry it used to be called planned obsolescence, but whatever the name it always results in progressively less service or product for continually higher prices.

    In this scheme, the role of government and the individual mandate are not to regulate the insurance industry, but rather to regulate the citizens, to force them to pay whatever it is the insurance giants want to charge. So the Fed leaves it up to the states, without funding, to enforce a bunch of vague loose rules about coverage, but takes it upon itself to ensure that all citizens pay and pay up on time. And as an added bonus to these insurance behemoths, that “collection” service is paid for with the victim’s own money via taxation and fines.

    It is that model, where the government forces it’s citizens into an unhealthy pathological relationship with private enterprise and the constitutionality of that relationship that some of us are trying our best to warn others about.

  34. One other note I should make about the difference between Medicare and ANY private insurer, is that if a doctor or any healthcare provider accepts Medicare patients, that doctor or healthcare provider MUST accept as FULL PAYMENT whatever Medicare deems appropriate payment for that medical service. Medicare then pays 80% of the amount it allows. If Medicare says it will allow only $600 for that service, it will pay the healthcare provider 80% of that $600. Most seniors also carry a Medigap plan that pays the other 20%, BUT — and here’s the important point — the doctor or healthcare provider CANNOT extract from the customer the rest of the $1,000 amount it had WANTED to be paid.

    With a private insurer, let’s say the doctor or healthcare provider charged $1,000 but the PRIVATE insurer will pay only $600 of that amount, at that point the customer must make up the difference and pay the balance of $400.

    Summing up: If the health care provider charges a Medicare patient $1,000 but Medicare says $600 is all it will allow for that service, the health care provider cannot get the remaining $400 from the patient. In this case, Medicare would pay 80% of the $600 and the Medigap insurance would pay the remaining 20% of the $600. The doctor or healthcare provider MUST accept $600 as the FULL payment for the service.

    Medicare protects patients from the exorbitant charges some doctors and hospitals would like to collect.

  35. “Medicare protects patients from the exorbitant charges some doctors and hospitals would like to collect.”

    I seen it argued that the hospitals jack-up the rates and then discount to “normal” for Medicare.

  36. Argument recap: A lift for the mandate?

    By Lyle Denniston on Mar 28, 2012 at 12:03 pm

    Analysis

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

    The dilemma could be captured perfectly in two separate comments by Justice Antonion Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.
    SCOTUS blog

  37. Medicare does NOT pay a percentage of what the healthcare provider WANTS to be paid; Medicare sets a rate of reimbursement for each specific service, NO matter what the healthcare provider bills.

  38. The argument is done

    The Court is really struggling with severability. Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act. Most likely would be guarantee issue, community rating and some other pieces essential to keeping insurance prices low. Tea leaves suggested that Justice Kennedy would vote to invalidate the mandate but nothing super-clear. Farr was excellent. Scotus blog

  39. “Summing up: If the health care provider charges a Medicare patient $1,000 but Medicare says $600 is all it will allow for that service, the health care provider cannot get the remaining $400 from the patient….

    Medicare protects patients from the exorbitant charges some doctors and hospitals would like to collect.”

    Price controls do not protect anyone, from anything. All they do is create shortages for an underpriced commodity. How are you not aware that this is how reality works?

    At this point i wish they had just introduced a single payer bill so we could have a debate about the failings and supposed merits of that system instead of this insane rube goldberg device we’ve enacted.

  40. KMS
    To my knowledge, no visual aids are being used in the arguments.

    If not, then is better concentrating on the sound, the words, the message, and not being distracted by visual cues, colors of ties, physical appearances, changing camera views, distracting closeups. claptrap drama insertions by the producer, and stupid or good commentary in every “slow” moment or pause, etc etc etc.

    If you think the visual message is important impeach the justices.

  41. Industry Whistleblower Wendell Potter: However Court Rules on Healthcare, Solution is Single Payer

    http://www.democracynow.org/2012/3/28/industry_whistleblower_wendell_potter_however_court

    “As the Supreme Court examines whether Americans can be penalized if they lack medical coverage, we’re joined by health industry whistleblower, Wendell Potter. A former spokesperson for CIGNA and Humana Insurance, Potter is the author of “Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR is Killing Health Care and Deceiving Americans.” “I, myself, am somewhat agnostic and detached from the outcome of what the justices decide,” Potter says. “We eventually have to get the for-profit insurance companies out of providing coverage, and need to move toward a system or systems like in the other developed countries, that don’t permit for-profit companies to run their healthcare systems.””

  42. anon nurse. Single payer is preferable, but find one republican that is for it. They do control the house and the Senate is close. There is a reason all the progressive women’s groups are behind Obamacare.

  43. KMS,
    I understand your point, you want the drama. You want to see the Towers fall. But the drama is in what is said, not in what their faces say. The faces are well masked. Fleeting views distract even further. Repeated listening or reading is the only way to judge. If you want to understand, then you can’t understand what these minds are grappling with in real time, when the view is distracting.

    As for movies, when it is dramatic action, few remember the words. In a nature film, many prefer to be without the sound as the beauty of nature can not be conveyed by speaker text. Music and painting can not be commented effectively either, I feel.

    Three of the finast films I have ever seen: one without a spoken word in its whole, one with very few, and an Indian drama mostl mute drama.

    Am sure you have similar favorites.

  44. Swarthmore mom 1, March 28, 2012 at 4:42 pm

    anon nurse. Single payer is preferable, but find one republican that is for it. They do control the house and the Senate is close. There is a reason all the progressive women’s groups are behind Obamacare.

    Swarthmore mom,

    I posted the Potter piece because it may be of interest to some.

    While single payer was my first choice, “Obamacare is better than nothing.” I’m not a fan of the mandate.

  45. anon nurse, I just feel so badly for people with pre-existing conditions that will lose if this whole thing gets struck down.

  46. commoner,
    I still have not seen an apology from you for calling me a bigotted spreader of anti-semitism. Nor have I seen a response or rebuttal to my most recent posts re your insulting me. Do you always run like this?

    Your self-congratulations that Kagan agrees with YOU is of course ridiculous. Or have you prepped the point?

  47. anon nurse, What does your high risk state pool in New York run a month? In Texas it is about $700 a month for those with pre-exising conditions.

  48. BB and others,

    As long as profit motives are involved, in whatever form, then Americans will suffer in increasing degrees. Because profit takes from you, denies you service you thought you had coming, and uses part of it to pay the campaign costs of politicians who will reward them.

    Is there anyone who can deny that this is the American system in a nutshell?

    In Sweden, we keep each other informed as to what service is available.
    (of course the doctor, agencies, etc will also on demand)
    And it is carefullly controlled after intense study by doctors as to result and needs..

    And what it costs us it quite visible in the form of the county tax which we pay on our income each tax year.

    Not the best perhaps, but lot’s better than getting screwed by an insurance company.

  49. Firefly,
    Thank you.
    Permit a repeat. If it is said enough times, maybe it will get through.
    Note this is how it has been for as long as I’ve been in Sweden, 43 years.. And it is the doctors, not the bureaucrats who run the grade of care.
    And we watch like hawks every tax increase paying for this care, and vote thereafter. Can you do either of those?

    “The individual mandate in Obamacare requires everyone to buy insurance from a PRIVATE, PROFIT-DRIVEN, PROFIT-MAKING corporation. The insurance company can charge whatever it wants to for its insurance and can then decide for itself what medical costs it will cover for you.

    With Medicare, the government charges everyone at the same rate and tells the hospital, doctor, or other medical provider what it will pay for any medical service; everyone covered by Medicare is covered by the same coverage rules and payment schedules, and those rules and schedules are established by the government.

    The corporate health insurer’s principal reason for existing is to make money — PROFITS — for its shareholders, and it pays gigantic salaries and bonuses to its executives.

    The government’s primary mission in the Medicare program is keeping Americans alive and healthy. The government’s administrative costs are very low compared to any private insurer, and the government is prohibited from making a profit from the Medicare program.”
    ————————————–

    PS Healthy citizens produce, pay taxes and cost less in health care—-and live longer pursuing happiness. What do you want more of? Getting rich at the cost of others? Vote Republicnn then.

  50. Firefly,
    Why do you deny the hospitals jack up prices? Can’t they play the medicare system that way, and get around limitations. Some drugs companies do so here with the 3 month contracts terms on binding prices only the first month, for example.

  51. ekeyra:

    Medicare works exceptionally well for the people I know. No shortage of quality doctors or services.

  52. Swarthmore mom:

    “They do control the house and the Senate is close.”

    Or, you COULD put it THIS way: The Democrats control the White House and the Senate; all the Republicans control is the House.

  53. idealist707:

    (1) “Why do you deny the hospitals jack up prices? Can’t they play the medicare system that way, and get around limitations.”

    It does NOT MATTER what a doctor or hospital charges, Medicare pays what it has set as the payment for that service. A doctor can “charge” a Medicare patient $3,000 for some procedure, but if Medicare has set the payment for that procedure at $500, that is all the Doctor will be paid.

    (2) “Some drugs companies do so here with the 3 month contracts terms on binding prices only the first month, for example.”

    Ah, the Medicare prescription drug plan is a horse of a different color. THAT bill was written BY Republicans FOR the drug companies and is a rip-off. But that is NOT the case with the regular Medicare program.
    And seniors pay for those two programs separately and differently: Medicare is completely regulated by the government. The Medicare prescription drug plan — written BY Republicans — is managed by PRIVATE insurers.

    Your questions actually make my point. When the government regulates the premiums and amount it will pay for services, the patient does well. When PRIVATE insurers determine the cost of the insurance premiums and what they will pay for the drugs, the patient and the government get ripped off.

  54. There have been a lot of W.C. Fields disciples demonstrating before The Supreme Five.

    Did you see the sign that read:

    “The best cure for insomnia is to get a lot of sleep.” – W. C. Fields

    ….

  55. Firefly

    “ekeyra:

    Medicare works exceptionally well for the people I know. No shortage of quality doctors or services.”

    I bet underpriced medical care paid for by someone else works out just great for the recipients. However i was referring to a much broader spectrum. Price controls create shortages. Thats reality, its sort of not up for debate or anecdotal rebuttals.

    If you tell doctors or any healthcare professional that there is a limit to what they can charge, there will be less of them because some people who would have become doctors will decide that it is no longer worth their time.

  56. Well, ekeyra, Medicare has been around since 1965 and it’s still doing a remarkable job of providing quality healthcare to America’s seniors.

  57. EKYRA,

    ARE YOU AWARE WHAT YOUR NAME MEANS IN SWEDISH???

    you wrote:
    “Price controls do not protect anyone, from anything. All they do is create shortages for an underpriced commodity. How are you not aware that this is how reality works?”

    It works in sweden. why not there?
    it’s part of the single payer system, where it is paid by a county tax on income. all income, even from invested monies.

    Now why should there be such a large differenct between reputable hospital charges for same service as between the Mayo clinic and one in LA?
    This has been discussed before.

  58. With the VA, MEDICARE AND PERHAPS MEDICAID AVAILABLE as working models of efficient humane health care. why was this way chosen?
    It would appeat to me to be the only political way available solely because of campaign money from the insurance companies to Republicans and bluedogs.

    Any other explanations are welcome.

  59. Firefly,
    We’re on related systems, Medicare which covers seniors and Swedish care which is a central standards but county admisnistrated and separate county income tax paid. Swedcare covers all medical needs.

    My friends in Tucsons papa gets his dyalisis through the VA, Also good says she.

    As you and I say, get the profit-making out of it.

    As for doctors, my clinic doctor is from Shanghai, my cardiologue is from Iran, my urolog is from Iran, my cancer surgeon is from India, my anestheolog is from Sweden, my oncolog is from Sweden, my treatment oncolog is from Greece, my cancer dentist/surgeon is from Sweden, etc.

    No shortages in doctors in other words. And you don’t get sued here, but your work gets checked and complaints can lead to as high as losing your license, or worse as a penalty.

  60. EKYRA
    A simple matter you may grasp.
    A dollar is a dollar, no matter if it is payed by a willing or an UNwilling taxpayer. Both dollars pay equally for services rendered. The service has no knowledge of the willingness of the taxpayer who pays for it.

    So the service is rendered with equal effectiveness. So if you unwillingly pay for someone elses Medicare, then they will benefit in spite of your will.

    Capice? Or was that too hard for you.

    Doesn’t that relieve you of a great responsibility of saving someone elses health. The service doesn’t care, etc. so you are relieved of both money and responsibility.

  61. ekeyra:

    “are you plagiarizing a pamphlet someone handed you?”

    No, and it’s really pathetic that insults and propaganda are all you have to offer.

    Do you have a problem with being given information that conflicts with your propaganda?

  62. Most doctors — well aware of what Medicare will reimburse — bill only for that amount. But there is the occasional doctor who, for some point he or she wishes to make, charges 10 times what Medicare will reimburse for that service. So, when I give the example of a doctor wishing to be paid $3,000 for some procedure that he KNOWS Medicare will reimburse at $500 — and the majority of doctors correctly bill at $500 — one has to wonder what propaganda the doctor is trying to dispense.

  63. “Price controls create shortages. Thats reality, its sort of not up for debate or anecdotal rebuttals.

    If you tell doctors or any healthcare professional that there is a limit to what they can charge, there will be less of them because some people who would have become doctors will decide that it is no longer worth their time.”~ Ekyra
    —————————–

    apparently lawyers are immune to that formulae……

  64. Woosty,
    How many foreign immigrant doctors do you have there?
    We have oodles. Gave a list somewhere above I think.
    As long as it’s better here than there, then they will come. And it’s not always money which brings them.

    Will tell you about my cleaning lady from Kurdistan (Suleymaniya) sometime. That is one example on the lower scale of things, but enlightening as to progress there.

  65. Idealist

    “A dollar is a dollar, no matter if it is payed by a willing or an UNwilling taxpayer. Both dollars pay equally for services rendered. The service has no knowledge of the willingness of the taxpayer who pays for it.”

    Theres the the root of the problem right there. When you disconnect the payment rendered from the considerations of those are are paying the costs, of course prices skyrocket. If someone else was obligated to pay for your groceries are you going to load your cart up with walmart knock offs or filet mignon? And then you guys wonder why healthcare costs are astronomical.

    “So the service is rendered with equal effectiveness. So if you unwillingly pay for someone elses Medicare, then they will benefit in spite of your will.”

    Effectiveness for whom? The patient who is denied services the government doesnt wish to pay for, or thinks unnecessary, outside the bounds of “established medical practices” ? You havent given them access to medical care, all youve done is put the decision making for their care into the hands of unelected bureaucrats. Why isnt that a scarier idea then simply letting everyone pay for what medical services or insurance they want?

    Its also disconcerting that you profess to care so much for one persons suffering that you would confiscate resources with violence to fund their care, yet you obviously care very little about the person you are robbing. Do you think this makes you compassionate because you will resort to violence to make the world better?

    “Capice? Or was that too hard for you.”

    No i get it, i just disagree that doing so makes the situation better.

    “Doesn’t that relieve you of a great responsibility of saving someone elses health. The service doesn’t care, etc. so you are relieved of both money and responsibility.”

    How do i have a responsibility to provide for anyone else’s health? How can you have a right that the enforcement of that right violates someone else’s rights? And if i am responsible for other people’s healthcare, why just take my money? Wouldnt we solve this problem of allocating scarce medical treatment if the government just forced everyone to attend medical school? I mean if i have an obligation to fund someone else’s healthcare, why not force me to learn how to provide it as well?

    Woosty,

    “apparently lawyers are immune to that formulae……”

    So there is noone anywhere, anytime, who said “I would be a lawyer but i decided not because i could make more money doing something else” ? What exactly was the methodology involved in coming to that conclusion?

    Bastiat’s seen and unseen yet again…

  66. EKYRA,
    You don’t get it oak dizzy, that’s what ekyra means in Swedish.

    Well, as the supreme justice said 2 days ago: Everybody becomes a health care user, sooner or later (god willing).
    And we know what we get here in Seden with our single payer system—-as I’ve explained before. We even elect the legislators, as you do too, who put this single payer system in place.

    It is the doctors who decide what means are to be used. Weighing cost, likelihood of cure, risk for the patient, benefit to sociaty (for ex vaccinations), increasing quality of life, diminishing of pain, etc

    No bureaucrats are involved here, I know, as all do here.
    And the costs are borne by all earners of income, because someday they will need this health care. We see it on our withholding info we get from the IRS every year at this time. It is clearly shown. And it’s cheaper than even the cheapest insurance you can buy in the USA, and the care is rated higher than yours in international comparisons.

    As another justice said in relation to torts, we have no responsibility to save the drowning man.

    Yes, but we do have a responsibility to pay for our pensions, our national defense, childrens school costs, public libraries, etc.

    All of which you oppose too, I assume from your standing on health care.

    You are stupid. You pay for your congressman’s health care, but not your own. Is not that weird?

  67. Idealist

    “Well, as the supreme justice said 2 days ago: Everybody becomes a health care user, sooner or later (god willing).”

    Even assuming this is true, so what? As another judge said, everyone buys food too. Given that the need for food is much more immediate and repetitive why arent you paying for my lunch if you are so concerned with everyone’s well being?

    “You are stupid. You pay for your congressman’s health care, but not your own. Is not that weird?”

    Do you honestly think im not aware that the people who like to parade around as our “leaders” have no concern over the quality and availability of their healthcare while they decide amongst themselves what the the rest of us will make due with? Why would you call me stupid for that? You assume i oppose the other social spending programs you listed and you are right. Why do you think i make some exception for this egregious state of affairs that sees the people who cause the most damage to our healthcare system insulated from the ruinous edicts they impose on the rest of us?

    I oppose public schooling but im fine with footing the bill for my congressman’s colonoscopy?

  68. They should also revisit the emergency room treatment mandate and reverse that as well.

    Everyone should be required to carry major medical coverage only. Comprehensive coverage should be elective. If you don’t opt for comprehensive coverage, then that’s your call and your risk.

    Any subsidies for lower income participants should come from existing programs directed at that demographic. Start with eliminating the Earned income tax credit – which recipients should have been using for costs such as health care anyhow.

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