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
Idealist,
Have fun with this one. If im lucky your head will explode like in scanners.
http://www.nationalcenter.org/NPA555_Sweden_Health_Care.html
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…
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.
“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
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apparently lawyers are immune to that formulae……
Firefly,
Allow me: He wants to inform he’s paying down on a Cayman island account. Or a house in Provence. Or……your turn.
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.
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?
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.
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.
SM
“idealist707, Corporations are people here. Haven’t you heard?”
Then that means we can hang them?
Does that include the bonus babies too
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.
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.
Firefly are you plagiarizing a pamphlet someone handed you?
Well, ekeyra, Medicare has been around since 1965 and it’s still doing a remarkable job of providing quality healthcare to America’s seniors.
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.
There have been a lot of W.C. Fields disciples demonstrating before The Supreme Five.
Did you see the sign that read:
….
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.
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.
ekeyra:
Medicare works exceptionally well for the people I know. No shortage of quality doctors or services.
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.