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:
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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
Of course they call their skepticism reason, but according to modern science, it is not reason.
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.
“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.
“But they will get health care, by gawd, even if we have to ruin everything they hold dear to do it.”
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“Also, I don’t think auto insurance is required by the Federal government. Only by most, but not all states.”
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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?
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.
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.
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?
(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!
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.
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.
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.
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…
then WHYYYYY can I be forced to buy car insurance…..
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.
“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.
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?
Ah, excellent link Swarthmore Mom. I see that Kagan at least agrees with me, and even emphasized my point.
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.”
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.