“Supreme Court” Upholds Health Care Law

As I mentioned on Countdown last night, my Supreme Court class (which reviews the leading cases of the term and deliberates as an alternative Supreme Court) ruled on the constitutional challenge over the individual mandate provision (we will be considering the other issues in a separate class). The class ruled 12 to 2 to reverse the 11th Circuit and uphold the health care law. The class also voted on the ethical question of Kagan’s recusal as well as their prediction of what that other Court would do. The associate justices were not sway by the stated concerns of the Chief Justice (here and here) over the future of federalism if the Act is constitutional.

The student justices found past cases dictated an affirmance but also that health care was such a large part of the economy that this is a proper use of interstate commerce jurisdiction. They rejected the distinction between activity and non-activity that is advanced in the briefs opposing the law.

On the prediction of what those nine other pretenders would do, the vote was 11 to 3 to uphold the law.

On the question of Kagan’s recusal, the class was split. However, the majority believed that she should have recused herself by a vote of 8-6.

I expect that the release of these results will make continued coverage of the other court unnecessary. Notably, the class has maintained a very high accuracy rate on predictions. This prediction also mirrors the prediction of former Supreme Court clerks.

59 thoughts on ““Supreme Court” Upholds Health Care Law

  1. I am disappointed that you did not pose the question as to whether Thomas should have recused himself. I would also like to see what their opinion is about his committing perjury for a number of years on his disclosure forms.

  2. By the way, what kind of law classroom is this? Clean-cut kids at seminar tables, laptops, the professor within arms reach, no standing and delivering. Too familiar!

    Now here’s a law classroom::D

  3. This can be an education for the SCOTUS but they only listen to HARVard graduates, never mind that you don’t even have to be skilled in the law, they prove this every time they meet.

  4. You know the classroom has some good applicability….. Maybe these bozos could learn something…..

  5. Vengance is Sweet:

    “… they only listen to HARVard graduates,…”


    Sounds like a little “jurisprudential envy” going on. They did listen to a Dickinson College graduate once and look what is got us … Dredd Scott.

  6. Audio update from Tom

    I stepped out of the oral argument to provide this audio report (at bottom of page).

    For those who prefer reading, here is a summary of the report:

    Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions. Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.
    Tom’s audio update [ 1:42 ] SCOTUS blog

  7. The students might be engaging in wishful thinking. If the mandate is struck down, 2.5 million people will lose their insurance. Many of these are students or otherwise unemployed young people that are able to stay on their parents insurance until they are 26.

  8. swathmore mom:

    Predicting the vote of SCOTUS justices is like predicting jury verdicts. You don’t know what happens behind closed doors.

  9. Bing worried that this court will find the individual mandate unconstitutional is like worrying that those poor ceo’s of banks like BOA might be put in jail, or like worrying that all the ice caps aren’t indeed melting. It will, they won’t and I’d fill your glass quickly if you want any ice.

  10. Oh mespo….. I am pretty sure Thomas is predictable…… Whatever seems reasonable he is against…… Now, the other 8….a different story….

  11. Let’s be adults…

    Forcing people to buy junk-insurance from ruthless profit crazy private enterprise with no effective price controls whatsoever, eliminating Habeas Corpus, killing US citizens by pushing a button six thousand miles away with no judicial review, spying on citizens, adding in compromises to the health care bill that reduce woman’s right to choose, being an adult and trying desperately to cut and gut social security and raise the age of Medicare; these are all absolutely critical 11 dimensional moves we must worship if Obama is going to save the world.

    As is the case in Massachusetts, this means huge transfers of wealth to the owners at the expense and subsidization of the taxpayers (Guido has to be paid somehow when he goes on his little “collection” trips) so the likelihood of the current crop of Supreme Court justices striking down such a gigantic corporate give away has approximately the same probability as Texas finally proving that corporations are indeed citizens by hanging one of them. It ain’t gonna happen.

    When people finally grow up, and become responsible adults, so they get to sit at the negotiating table and repeat the talking points they are told to repeat, it clicks that the individual mandate is safe and sound.

  12. I dont understand this:
    “If the mandate is struck down, 2.5 million people will lose their insurance.”

    I thought that the question was whether the government could require money from people who do not buy a minimum of insurance. I thought that the issue to be decided was whether they could or could not so compel that payment.

  13. As the U.S. Supreme Court prepares to hear arguments on the question next week, it’s also true that many popular changes are in place to the health system because of the Affordable Care Act:

    * Young adults are able to stay on their parents’ insurance to age 25, and can’t be thrown out of care should they have a serious and expensive chronic illness and hit their cap. An estimated 2.5 million young adults have benefitted so far.

    * Medicare beneficiaries whose drug expenses reach nearly $3,000 fall into what’s called the doughnut hole, when they lose drug coverage until they hit a cap of about $6,500 out-of-pocket. The new health law has discounted the price of drugs purcased during that period, and eventually does away with the hole. According to the administration and Americans United for Change, 5.1 million Medicare beneficiaries would have paid an average of $635 more for their prescription drugs without the ACA doughnut hole benefit.

    * Medicare beneficiaries now have access to free preventive services including annual wellness exams and mammograms.

    * Insurance companies cannot deny coverage to children based on pre-existing conditions.

    * Once the mandate goes into effect and insurance in packages are to be sold in marketplaces called health insurance exchanges in 2014, an estimated 30-million people, out of an estimated 50 million now uninsured nationwide, will gain coverage. Most buyers will qualify for a premium subsidy.

  14. The question of making people pay for services (such as Medicare) has already been decided. The question of forcing people to pay profit seeking private enterprise “supposedly” for health related insurance (but with almost no funded controls or regulation)has also already been decided but is now being reenacted with talking points for our viewing pleasure and so we can feel a part of it all.

  15. Once the mandate goes into effect, Nasa is looking to piggy back future astronomical missions on the backs of insurance rate increases.

  16. If only NASA had any “astronomical missions”

    But either way, the solution to the whole issue is still single payer. Medicare for all.

  17. But either way, the solution to the whole issue is still single payer. Medicare for all. -Frankly

    Alas, Frankly, that fact will now remain hidden until greed for ever more profit has been satisfied and I wouldn’t wait with sandwiches by the phone for that to happen any too soon.

    In the meantime be happy that kids can remain insured by their parents for one or two additional years and that insurance companies are now going to hire a few more lawyers and lobbyists for the usual corrupting of politicians (I know, we’ve never seen that before) to create loop-holes and exemptions to avoid the unenforceable prior-condition rules.

  18. http://www.huffingtonpost.com/

    The splash page on Huff Po (see above link) won’t last long and it’s utterly shameless so it’s worth a gander. The actual article is, as always, less dramatic and to paraphrase the justice’s questions, “Do we really get to screw the masses out of every last penny and force them to give it to our favorite corporations? Really? But then it’s such a serious problem (psst, what’s the problem again, oh yea, health scare) that I guess we’ll just haaaaave to. Oh well…, who could ever guess what we are going to decide with such weighty decisions to decide when we get around to deciding them…”

  19. Might the court strike down the entire law? Or just the mandate provision? -martingugino

    That’s a good question, especially if it were a balanced or non corporate saturated court. I think it could strike down just the mandate, but as I said above the likelihood of that happening is slim to none. If the majority is simply out to screw Obama, they will take down the whole thing and wait until a Republican such as Romney gets exactly the same in a different sheep skin thing through. If they don’t want to risk the once in a lifetime chance to advance hardcore fascism by a country mile on the visceral but transitory joy they would get in a stinging and humiliating defeat for Obama, they will not, repeat NOT, strike down the mandate.

  20. BB,

    I’m a bit slow, so help me.

    I gather that you feel that Obama is pursuing the greatest advance in fascism in the USA history Yes, no?

    You feel if the court cuts his nose off by killing ACA or the penalty, then Obama, the tool or driver of fascism will have lost his chance to drive his deeds further—just so they can get their nuts off. Yes, no?

    If so, why politically will Obama be so impaired by a neg decision on ACA?

    Thanks in advance.

  21. idealist707,

    you havn’t a clue what I feel and even less idea of what I’ve been saying or you wouldn’t couch your insinuations in terms of Obama bashing.

    What is at stake here is the individual mandate, the ability of our government to force us into a destructive relationship with avaricious profit driven private enterprise, but particularly with a service that is so opposed in interests from one entity to the next. To the human entity, health care is about just that, their health. To the corporate entity, health care is about minimizing service in order to maximize profit. You say, perhaps, that with a nice man such as Obama in the office of president, excesses of greed and corrupting influence would never ever happen and if they did, the intrepid DOJ of such an administration would immediately come to the rescue?

    A mere glance at what has been happening with the “too big to fail” banks and their robo-signing fiasco and all milions of families who have been devastated by this greed proves you hopelessly tragically wrong. Moreover, the utter inability and unwillingness of government to hold the giant corporations such as Bank of America accountable to the law is a nasty but irrefutable proof that the dangers I am talking about are absolutely real.

  22. Thanks for the information and the video, I think some of the heath law has helped, some has hurt.. I am not a very politcal person so I try to stay out of things, none the less I do like to know what is going on in the world, thanks for posting the article. :)

  23. BB

    Guess I am stupid.
    I asked honestly for help in understanding your points.
    For that I get attacked.
    All I said was to give you back what I thought you said, not my ideas. Well read on and see what my own ideas and experience is. They’re different than yours.
    Now you’re saying, I think, that I support corporate medical insurance.
    There you are wrong. My position is just the opposite.

    You know nothing about me, but you see a stupid question as something to attack,

    I have lived since 1968 in Stockholm, Sweden.
    I enjoy the benefits of single-payer medical care, including bypass operations, cancer treatment, etc. My drug cap is USD 200 per year,
    My doctor visits capped below that.

    And NO effing insurance company or bureaucrats get between me and the medical people. I don’t have anything to cope with than a telephone call to book a time with my doctor, or go there in the morning to get whichever doctor is available when I get to the head of the queue.
    No contracts to read. No formalities. No whatever that you could tell me about over there.

    Why then do you assume, from what I’ve written, that I would support the blood sucking insurance companies???? I’ve written here several times saying that the insurance companies and the multi-buyers of drugs must be eliminated from the USA system.

    We pay half what you do per person and get better care. From before impregnation, including vaccination for virus causing cervical cancer in teenaged girls, and contemplated same for boys (to prevent prostate cancer).
    To hospice care. Kids up to 18 get free medical care. And everybody is covered, including immigrants.

    So would you please not assume that a simple dumb question is a concealed attack on you and your principles. Cool it.

  24. BB
    PS Re-reading the rest of your rant you attribute to me stuff I did not say anything about. I won’t waste my time “proving” my suspicions about Obama and the rest of the shit you oppose. You have again NO IDEA where I stand. In fact, we are standing on the same place and my indignation matches yours. But you see nothing but red just now.

    I simply don’t trust any of the fuckers. You can’t get higher than a school crossing watchman if you’re not corrupt and bribed AND delivering the goods to the payers. So is it in America, IMHO.

    Good luck, but don’t shoot me or your foot when you look for enemies.

  25. Idealist, We won’t have Sweden’s “socialized” medicine here like you do. Your drugstores are even much different. The tylenol is even dispensed by the pharmacist.The tea party thinks Obamacare is socialized medicine. We just have “junk” insurance as brooklin says. Rather have “junk” insurance than nothing.although it does not cover what it used to. The rich don’t have “junk” insurance . They have what is known a “concierge care”.

  26. I think they’ll uphold the appeals court decision and rule the act unconstitutional. Reversing that decision would really open up Pandora’s Box, granting Congress the legal precedent to pass laws requiring citizens to purchase any good or service they deem to be for the public welfare, or declare to be necessary for our national security, so long as it is in accordance with the current social and political climate. They could also argue that this precedent allows them to pass laws which prohibit the purchase of certain, normally lawful, goods or services, based on the same logic. Americans need to think twice before they celebrate the fact that the government is slowly pushing the boot of tyranny on their necks. They will most certainly end up getting what they wish for.

  27. I hope that the court strikes down the law, or part of it. We need some program that everyone is covered and insurance is out of the picture. We need costs controls.
    A pure insurance system is socialized losses and privatized gains. So, when you hear these smug coots barking about “My Insurance” you must wonder. Do they think they own their insurance company, have any control over it, have any guarantee that the insurance will be there for them, and allowing doctors, pharmacies, clinics, hospitals to charge outrageous fees?
    The current situation is a disaster not waiting to happen.

  28. The LAST and Final steps ~`In Removing Obama From Washington, are upon us.

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    THEIR eXposure has successfully been Framed and They are NOW `Seen {CAPTURED} UPON the Screen, eXposed and Snared in the VERY OWN TRAPS,

    that they Themselves had set for YOU- [ The Prey ] The American Citizens.

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    the very Jaws that they had Sprung for YOU, The American Citizens.

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    In Fact, THE ONLY THING in America – that was trully Needing`“ CHANGE ” ! Was Barry or Barack Hussein OR, .Soetoro OR….Obama the JR. l. or II. ………… HIMSELF. !

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    Barack Hussein Obama II ~( Who HATES American Values ) who is A ” SELF PROCLAIMED Religious and Political Enemy” ~0f ALL Responsible, Morally Conscious and HARD WORKING Americans.

    …The UN~CHANGEABLE, Cowardly, Fraud, has done His VERY BEST to Inspire His Degenerate MOb to VIOLENCE. LITERALLY, Saying ………To his supporters.Saying

    “Get ready for HAND-to-HAND Combat with your Fellow Americans ! !

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    “You bring a KNIFE to a fight pal, we’ll bring a GUN” – ! **

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  29. By the way, S. Mom, you have been a very enjoyable person to have an “argument” with. Thank you for your forbearance and particularly for your good intentions.

    I still think you need to have a chat with someone about Santa Clause and eight tiny flying reindeer and about Obama being forced by those mean Rethuglicans to do all those crazy things like make secret deals with the insurance companies to scuttle the strong public option or assert that he has the authority to terminate the lives of people with no judicial review.

    Note, I sincerely believe that if we were to drop this health insurance plan altogether, we would be vastly better off. One way or another we will have to face the health care catastrophy that is looming in front of us. But if the bill passes muster in court, we will be devoting the next twenty or so years doing the same thing we are doing now with the Mortgage fraud fiasco and MERS; ignoring it, sweeping it under the rug, bailing out the very institutions that are the cause of the problem, and blaming the deep structural faults on the victims rather than the greedy institutions.

    But that being said, I may also be just a little envious of the faith. Good luck.

    idealist707, stop saying your just ignorant. That may be true (of all of us) but it’s quite clear you don’t believe it for a minute at least not regarding yourself. Anyway, it really sounds phony and makes you sound like you think yourself clever. And frankly you may well be, that attribute certainly seems to be there in some of your comments, but again, it will come across more clearly if you simply drop the “I’m slow” meme.

    It never occurred to me that you were an “enemy”, simply that you were asking questions in a sarcastic manner. Sorry if I misjudged you.

  30. To me, it’s sad to think that highly educated young people would see a socialist form of government as a solution to a problem that was caused by over regulation.

  31. Since 1965 I’ve lost contact with America. Went to Thailand to design American B-52 and F-4 airbases and make moolah. I came to Sweden in ’68, am from the beginning fully integrated here, no ties except my going to visit relatives sparely, and out of touch as to what is going on. Since coming to Turley last fall, have had lots to learn.

    So my stupid meme is a short replacement for a long explanation.

    As for sarcasm, being in a place where it is abundantly used, you have a reason to be suspicious..
    I mean what asshole calls himself stupid if it is not a step in disparaging his opponent. Should have searched for a more believeable meme.
    Suggestions are welcome.

  32. How is it CONSTITUTIONAL to force us to contribute to the profit margins of private insurance corporations who are free to jack up the prices of their premiums all the time when most of us cannot afford their monthly premiums? A similar regulation to force Medicare recipients who qualify for Medicare Part D was made during the Bushista years (minus a penalty fine) to force SSDI/Social Security/Medicare recipients to purchase prescription insurance from a private for-profit insurance corporation. The executives get obscene yearly bonuses with money we are forced to pay to enrich them.

    Even Mussolini knew that the partnership of corporations and government is fascism.

    The BETTER solution to our health care would be for us to all contribute to Medicare (as we currently do with a payroll deduction when we’re working), and increase the donation, so that ALL people can be covered via Medicare. The infrastructure is in place already via personnel who work in Medicare, but more people would need to be hired if a not-for-profit public single-payer plan was put in effect.

    It does not help us to contribute to the profits of private insurance, medical, or pharmaceutical corporations.

  33. Why isn’t “An Act for the Relief of Sick and Disabled Seamen” relevant? The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

    It was signed into law by John Adams in 1798. At the time Thomas Jefferson was President of the Senate and Jonathan Dayton, the youngest signer of the Constitution, was Speaker of the House. If these people don’t understand the Constitution who does?

  34. “Why isn’t ‘An Act for the Relief of Sick and Disabled Seamen” relevant?'”

    Because that act is an example of the government taking money from, i.e. taxing, citizens and using it to provide health care for them. This scheme is similar to Medicaid or Medicare.

    That act did not, as does Obamacare, require citizens to purchase health insurance from private companies. The Sick and Disabled Seamen Act did not seek to force citizens to engage in commerce with other citizens who stood to profit from it.

  35. If the politicians had their way, they would have done just that. But public opinion is not leaning in the direction of a socialized health care system just yet. That’s why they tried this scheme of forcing people to purchase health insurance in the marketplace.

  36. Very funny Swarthmore. The nuts and bolts of Obamacare is a carbon copy of Romneycare in Massachusetts. These guys always lie. Remember when Obama railed against Hillary’s plan for an individual mandate during the 2008 campaign? He was all for a single-payer system. Turns out he wasn’t really against her idea after all. I hope that didn’t surprise you.

  37. Richard Faircloth:

    “To me, it’s sad to think that highly educated young people would see a socialist form of government as a solution to a problem that was caused by over regulation.”


    To me it’s sad to think that highly educated people would fail to see that every capitalistic society has some system designed to promote the general welfare. Label it whatever you will, but it’s there. It’s hard to imagine an intelligent person living in such a black and white world with so little perception of what is happening around him. Even Adam Smith, the misunderstood Father of Capitalism, believed society had an obligation to protect its weaker members by using the wealth of the stronger. He articulated this in his greatest work, The Theory of Moral Sentiments:.

    “According to this article in the New Statesman by Amartya Sen, winner of the 1998 Nobel Prize in Economics, Smith’s doubts [rational selfishness] and qualifications appear in his much-ignored first book, The Theory of Moral Sentiments:

    Smith saw the task of political economy as the pursuit of “two distinct objects”: “first, to provide a plentiful revenue or subsistence for the people, or more properly to enable them to provide such a revenue or subsistence for themselves; and second, to supply the state or commonwealth with a revenue sufficient for the public services”. He defended such public services as free education and poverty relief, while demanding greater freedom for the indigent who receives support than the rather punitive Poor Laws of his day permitted. Beyond his attention to the components and responsibilities of a well-functioning market system (such as the role of accountability and trust), he was deeply concerned about the inequality and poverty that might remain in an otherwise successful market economy. Even in dealing with regulations that restrain the markets, Smith additionally acknowledged the importance of interventions on behalf of the poor and the underdogs of society. At one stage, he gives a formula of disarming simplicity: “When the regulation, therefore, is in favour of the workmen, it is always just and equitable; but it is sometimes otherwise when in favour of the masters.” Smith was both a proponent of a plural institutional structure and a champion of social values that transcend the profit motive, in principle as well as in actual reach.

    ~John H. Richardson, author of Adam Smith, Socialist

  38. VN: venerical (diseases) now

    Asch, you know and I give him the reply he loves:
    “With every breath”.
    Cuba is a healthy place, free medical care and guaranteed no over weight people.

    Why don’t you take North Korea too.
    But South Korea has also free health care, and the best math kids in the world. Figure (!) that., VN

  39. idealist707, I clearly misread your original comment to me and again apologise. Also, as you may have hinted, I use plenty of sarcasm myself.

    You sound like you’ve had a pretty interesting time of it and seen a lot of things and places in depth.

    I havn’t much of an answer to your original question. I’m not really sure why Obama would be ruined if he doesn’t get his way. What puzzles me, is if getting his way is so generally important for everyone to follow now, then why the hell didn’t he just ask for a strong public option? If the most conservative Supreme Court since the gilded age has to bend over because it’s the presidents entire legislative accomplishment, then surely a few Dems in congress would have bent over for some sane rational price regulation, no?

    Perhaps it is because Obama put too many of his eggs in one basket or at least that is what his detractors are claiming. He may have felt he could afford to spend all that time on it since he only had a few f**king retards on his left and the brainiacs on the right should have recognized he was their friend (after all, from wars, to spying on citizens, to initiating the Bowles/Simson commission loaded with known SS and Medicare haters, he offered more to republicans them they could ever have dreampt of accomplishing in 10 Republican administrations). And they repaid his kindness as is their want by a “Thank you, now would you please put your head in this noose?”

    And now he want the left to tear out their hearts, get thrown out of their houses en masse, and agree to pay the sheriff of Insurance every last penny they make at the end of each and every month; all to improve his chances for re-election. It’s not much to ask and it certainly looks as though he has plenty of takers.

  40. BB
    Glad to hear you re-read me without the suspicion I admitted was rational here.
    Your take on the situation is better informed than mine (about the commission for instance), and the sad view is only too true.

    The ultimate conspiracy theory just occurred to me.

    The Dems were taken over by infiltration, buyout, whatever—–and now even Dem presidents are actual Repubs. They just hold another profile but do much the same crap. Remember Michael Moore’s assessment that Clinton was the most successful Republican president in the last 40 years.
    Not that I’m a buddy of Moore, but he does put out some ideas worth considering—-especially his list of Clinton’s record on laws passed..

    Glad to be on speaking terms again.

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