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
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.”
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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.
idealist707, Corporations are people here. Haven’t you heard?
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.
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.
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?
anon nurse, I just feel so badly for people with pre-existing conditions that will lose if this whole thing gets struck down.
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.
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.
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.
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.””
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.
“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.
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
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.
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
mahtso:
Not so.
“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.
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.