Cert Granted: Supreme Court Accepts Health Care Challenge

This just on the wire: The Supreme Court has accepted cert in the health care litigation. The resulting decision could have sweeping implication for the future of federalism in this country.

In my view, this case is more about federalism than health care. When I spoke to Congress about the care health care law, I encouraged them to re-write the mandatory health care provision to avoid a challenge over federalism. However, particularly with the death of Sen. Ted Kennedy, the Democratic leadership insisted on muscling through the legislation on the thinnest of margins. No matter how you feel about national health care, that is not the way to begin such a massive program. Now a majority of states oppose the law. I share their concerns over federalism, as discussed in prior columns and blogs.

29 thoughts on “Cert Granted: Supreme Court Accepts Health Care Challenge

  1. I am glad they have challenged it. How can anyone tell someone they MUST have health insurance. Finally something is going right in this country.

  2. Respectfully Professor, I must disagree. The mandate is not my favorite aspect of this law, but without it, the whole program will fail. The states that are against, by far, are states being led by Republican governors or AG’s and they are against if for political reasons. This is our opportunity to insure the bulk of our society for the first time and to do it without adding to the deficit. I would have preferred a public option or a medicare for all system, but the Right would have not allowed that to happen. Judge Silberman put it best when he stated that Congress must be allowed to forge national solutions to national problems. (paraphrase) He also stated that the mandate is no more harsh or ““Certainly,” he acknowledges, citing examples from court precedent, it “is an encroachment of individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

  3. JT,

    If Kennedy proves to be the swing vote, then it appears that Bond v. United States (564 U.S. __ (2011)) is a good preview on Kennedy’s views on federalism.


    A couple of highlights:

    “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)).

    “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 lawful powers, that liberty is at stake.”

    Bond v. United States at p. 9-10

  4. If states can mandate insurance on various things, such as automobile insurance, and even make it a crime not to have it, why can’t the federal government mandate affordable insurance so that all benefit?

    It is a close question in a country with a Penn State of mind.

  5. Rafflaw- wasn’t that the point? The dems came up with this magical saviour of a bill- save one nagging little compulsory action at the point of a gun. And without that action, the bill fails- making it a political issue and the repub’s fault. So obviously they must hate America and the welfare of the citizens to oppose it.

    What a grand drama on a fantastic scale. It really is just a ‘gotcha!’ game.

    I googled ‘obamacare adds to deficit’ and got a lot of results.

    I googled ‘obamacare doesn’t add to deficit’ and got a lot of (adds to deficit) results.

  6. steg,
    check out how the CBO scored the bill. The Dem’s didn’t put the individual mandate in to “catch” the Republicans. The Republicans didn’t want the bill at all. That was the only way to get moderates to go along with the bill. Plus, the mandate was originally a Republican idea that they now won’t accept!

  7. This may be an opening for Medicare for All. if the government provides the service (like Social Security) I do not see any problem with a mandate. it is requiring people to buy from giant corporations that is the problem.

    Unless we could have a system like Swedens, where they cap the profits of health insurers at 5%. the ‘free marketeers’ would never tolerate that.

    Vermont is building a state wide single payer system.

  8. shano,
    the Republicans will not allow any vote on any additional health care legislation. They have already shut down the Senate for almost the entire Obama administration through secret holds and filibusters. Our only hope for the medicare for all or public option is as an outgrowth of the Affordable Care Act down the road.

  9. States mandate immunizations. Either the state, or an insurance compnay, or the individual pays for the vaccination. The immunization requirement has withstood constitutional challenge (with a narrow exception based on the 1st amendment). Clearly the state is requiring the purchase of a health care product. Can a state also require the purchase of a health insurance policy? Massachusetts does and its requirement has withstood legal challenge.

    At present I see no difference in requiring a vaccination and requiring procurement of health insurance policy; admittedly, the first is a “treatment” and the second is a means to pay for the “treatment”, but I think that is a distinction without much substance.

    Can the federal government require immunizations? If tied to another valid exercise of power 9such as taxing), without a doubt; but is there a stand alone power that supports such a requirement. In short, is this a necessary and proper power related to regulation of interstate commerce?

  10. yea, rafflaw, thats true. I have a secret hope that the “non profit’ version in the health insurance exchanges will grow into single payer nation wide.

    wow, this court could really screw us…

  11. chief at 10:59 am:
    “I am glad they have challenged it. How can anyone tell someone they MUST have health insurance. Finally something is going right in this country.”

    I too am glad it’s being challenged but my objection is that the mandate requires a commercial third-party that gets to rake off a profit. If the insurance industry wasn’t so obviously corrupt there would be little need for medical care reform, putting them into the reformed process as a profit-taking, superfluous bureaucratic layer is ridiculous.

  12. My opposition to the law is the same as many others have expressed here and elsewhere. You might just call it the, “Full Employment For Insurance Executives Act.”

    Keep it simple, use a tried and true formula: Medicare/Medicaid for everyone.

  13. It really doesn’t matter to those of us who aren’t lawyers. The Supreme Court no longer has any respect from most of us because of their rightwing partisan ideals that are more important than the law to this Supreme Court. We’d be better off having the case go to Diana Ross and the Supremes. At least, they can sing.

  14. “I too am glad it’s being challenged but my objection is that the mandate requires a commercial third-party that gets to rake off a profit. ”


  15. I must also disagree with JT. I don’t see any difference between government mandated social security and government mandated health insurance. I do understand that Obamacare unfortunately uses the Health Insurance company’s, when it should really have extended Medicare.

  16. The economics of the insurance reform are kind of murky to me but as I understand it there will be a government (taxpayer) subsidy of the cost of the cost of the insurance. There will be a cap for the individual (below a certain earning ceiling) and the taxpayer will pick up the rest of the cost – possibly to a pre-set maximum. My insurance coverage is being raised by 51% @month (190$) in cost in January. I’m wondering if massive increases in private insurance is going to be the rule in anticipation of maxing out the oncoming subsidy by changing (increasing) the baseline cost of insurance over the next year or two? I thought that this might happen. Am I the only one taking a hit next year?

    While I would prefer Medicare for all, Medicare Part’s B, C, and D are also handled through private insurance and have deductibles and minimum/threshold pay-in by the insured. They can run into a bunch of money. Government health care should be completely divorced from the private insurance industry IMO.

  17. “I too am glad it’s being challenged but my objection is that the mandate requires a commercial third-party that gets to rake off a profit. If the insurance industry wasn’t so obviously corrupt there would be little need for medical care reform, putting them into the reformed process as a profit-taking, superfluous bureaucratic layer is ridiculous.” (lotta)


  18. Blouise, we are in the majority on this issue. The majority view on the major issues of the day is simply being ignored by our elected elites. I am continuously amazed at how completely irrelevant the majority desires and concerns from the citizenry has become in the nations policy making. Dan Siegal, an ex-advisor to Mayor Quan (he resigned as a show of no support this morning) is on the tube explaining that removing the Oakland protesters was brought about by the persistent hostility of conservative members of the City Council and some of the members of the local Chamber of Commerce. The House spent today naming Post Offices according to Maddow. The irony is crushing.

  19. http://www.latimes.com/news/politics/la-pn-scalia-thomas-20111114,0,7978224.story

    Here is the corruption of the Supreme court.:

    “The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

    The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

    Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

    Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court’s conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

    The featured guests at the dinner? Scalia and Thomas.”

    Furious. Incredible. Outrageous.

  20. They are so brazen they have not even tried to keep it a secret. I saw the story on the evening news tonight. Of course, it will get a big yawn from the average low information voter, aka, Fox News viewers.

  21. For those above trying to drag mandatory automobile liability insurance (which itself is an utter perversion of the very concept of liability insurance) into the debate, there are multiple reasons why these are not at all the same issue. Full response is here: http://open.salon.com/blog/the_ox/2009/09/20/the_tax_that_isnt_a_taxbecause_its_something_else


    First, not “just about everybody in America” has to get auto insurance. Many do, but not most everybody. Kids don’t. Non-drivers don’t. The blind don’t. Non-car owners in many large cities don’t. And there’s still a state or two that doesn’t require it, or at least which have no mechanisms to enforce it. (None should require it as it perverts the entire concept of liability insurance and turns it on its head. But that’s an argument for another time.)

    Second, driving is a privilege. It can be revoked. No one has to have a car. A car is not an inseparable and intrinsic part of self. Being alive and having a body that may need care is not at all the same as owning a car that may need repair. One is a convenience. The other is potentially life or death.

    Third, when you mandate by law that I or anyone else fork over a significant portion of our income to private, for profit insurers who then take 20 percent or more off of the top and pay their executive’s obscene salaries, then yeah, you are effectively granting the power of taxation to corporations.

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