Some of the Supreme Court appear skeptical of the claim that, if they strike down the individual mandate provision, they must strike down the entirety of the Act. Early accounts of the justices from the courtroom appeared to be favoring severability but new reports have cast doubt — yet another example how artificial the denial of cameras and live coverage has become. As the argument unfolded, conservative justices appear to suggest that it really is an all-or-nothing proposition.
This was always been viewed a weak argument because of the preference of federal courts to minimize the degree to which they strike down federal laws. However, the Administration blundered in removing the common severability clause of the legislation — creating a game of chicken with the courts where a ruling against the individual mandate would torch the entire historic act. The hope for a “sticker shock” deterrent did not work when the trial court struck down the Act. It still seems a significant departure from past cases to strike down the entire act, including provisions not dependent on the individual mandate.
This matter is made more difficult by the confused and conflicted statements of both the Administration and the Justice Department. Initially, the Justice Department insisted that the individual mandate was essential to the Act, which would be fatally harmed if it were ruled unconstitutional. Then, as with other issues, the Justice Department changed its position on severability.
The argument did indicate that Scalia appears inclined to strike down the individual mandate in saying “One way or another, Congress will have to revisit it in toto.” Scalia added “Once you cut the guts out of it, who knows which parts were desired and which ones weren’t?” Even Justice Elena Kagan (who many felt should have recused herself from the case due to her prior positions as Obama’s Solicitor General) noted “The question is, is half a loaf better than no loaf?”
Even more worrisome for the Justice Department is the statement of Justice Anthony Kennedy who described it as an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.
The gamble of the Administration and Democratic leadership in pulling a severability clause now may have backfired in a major way.
Today, the justices are also considering whether the law’s proposed Medicaid expansion violates the Constitution as a form of conditional legislation. Congress routinely takes in more taxes than it needs so that it can return the money to states with conditions or “strings attached.” The question is whether this is a condition “so coercive as to pass the point at which pressure turns into compulsion.” However, the Court has routinely denied such claims while reserving the possibility that a condition might someday be so coercive as to be unconstitutional. The Court in South Dakota v. Dole did include a strong message that the Court would not dismiss such a claim categorically. It remains a viable claim but one without a successful track record.
Gov. Perry would commute the sentence.
As the saying goes, I’ll believe corporations are people they day Texas hangs one of them.
Rafflaw,
Corporations are people. They really are. It’s actually a group of people that make up a business. Just as the government is people. The difference is that the government really can control us all, the corporations can’t, unless of course the government gives the corporations the ability to do so.
But regardless, it would not fill his campaign coffers nor his ideological frame of reference which is that meritocracy is simply a temporary misspelling of aristocracy.
I meant to add on to that, “so it ain’t gonna happen and no one has to worry about whether or not the current crop of black robed corporate ass-wipes would strike down universal health care or not because with this administration, such legislation is the very last thing anyone has to worry about, and even then only after hell freezes over.”
And trust me, while our attention is focused on this and other impossibilities, hell is doing anything but freezing over.
if the Affordable Care Act is overturned for partisan reasons, there’s nothing to stop the Court from doing the same to other reforms.
That has always been the case as was made explicit by Bush versus
Gore in 2000. It hardly matters if they now overturn a right wing wet dream or not (and you can rest assured they won’t – even though it requires a huge sacrifice where they could just taste dealing Obama a stinging defeat).
But let’s say they did go for the oh-so-sweet policitcal killI and strike down the mandate, I imagine they would have a much harder time overturning a government managed health care than they would this conservative fiasco for which liberals are scurrying to carry water but which is nonetheless designed purely to prop up the insurance company market and allow them to continue shooting fish in a barell (only now with free government enforcement). Moreover, If the case in point was a streight forward government run health care program, the administration’s lawyer wouldn’t have to bend his arguments into pretzel logic; this is a tax but it is not a tax.
A government managed health care system (unlike happy-birthday private enterprise) would not be difficult for Obama to sell or to implement as he would have a very large majority of the country behind him. Sure, he would have to work for it and market it so it sounded like a bill that was legalizing public hanging. But regardless, it would not fill his campaign coffers nor his ideological frame of reference which is that meritocracy is simply a temporary misspelling of aristocracy.
I think the only mandate that will pass muster with this partisan Supreme Court is the mandate that corporations are people and therefore corporations can control us all.
http://www.colbertnation.com/full-episodes/wed-march-28-2012-mark-ruffalo?xrs=synd_facebook
Single Payer Is Doomed Too
Jamelle Bouie
March 28, 2012
If the Affordable Care Act is overturned for partisan reasons, there’s nothing to stop the Court from doing the same to other reforms.
Jonathan Bernstein describes the emerging liberal position on the Supreme Court and health care:
[T]he Roberts Court is unscrupulous, unprincipled, and nakedly partisan, and are going after the ACA for purely partisan reasons. So if only we passed single-payer, everything would be fine.
This sounds ridiculous to Bernstein, and it sounds ridiculous to me as well. The constitutionality of the individual mandate is straightforward; to borrow from the New York Times—“Congress has indisputable authority to regulate national markets and provide for the general welfare through its broad power to tax. Nothing about the mandate falls outside those clearly delineated powers.” If the Court overturns the individual mandate, it will have less to do with precedent and more to do with an ideological opposition to the Affordable Care Act, which was manufactured at the moment that liberals adopted conservative ideas for health care reform.
In a world where the Supreme Court overturns health care reform for nakedly partisan reasons, what exactly will stop them from doing the same to single-payer health care, or any other scheme for universal insurance that liberals can devise? I have an answer!
Nothing, nothing at all.
Breaking Headline:
Bouie: Don’t Expect Single Payer If Mandate Struck Down American Prospect
A commenter on FDL, See Here: Marblex, @March 28th, 2012 at 5:21 pm said it far better than I can,
“Look. The administration rested its entire argument on two premises, both demonstrably false:
1. EVERYONE in the country, either now or inevitably in the future will become a health care customer. Uninsured people who become catastrophically injured or ill foist the cost of their care on all of us (duh — that’s what it means to live in a civilized nation where burdens and benefits are shared).
2. Requiring everyone (presumably the “everyone” that is comprising the total existing and future market for “health care”) is an appropriate way to share the cost of those who can’t afford health care.
RESPONSE:
1. “Everyone” will eventually be in the market for health care. LIE. People who don’t get sick will never be “in the market” for health care. Nor will people who do not go to doctors, for instance, Christian Scientists and people who simply don’t like doctors. Since the entire foundation of Congress’ inexcusable, illogical and unprecedented overreach by Commerce is that health care is something EVERYONE will need and, as shown, that is simply not the case, then there is no reason to treat this effort by Congress to subsidize the private for profit insurance industry by mandate.
2. Buying insurance DOES NOT necessarily mean you will get the health care you need. If the health care you need isn’t covered by your insurance policy, you will have to buy it yourself. The minimum coverage mandated by the ADA will pay for doctor visits, minor surgeries and maternity care (including an up to 2 day hospital stay — just so you know most C sections require 3-4 days). The policy mandated by the ADA DOES NOT FURNISH: (a) extended hospital care; (b) catastrophic care or (c) catastrophic trauma/post trauma care. Bottom line, forcing everyone to buy this policy will not remedy the problem described in #1 above, to wit: the uninsured are a burden on society. Guess what? Even people WITH insurance often find themselves bankrupted by medical bills. Between claims denials, deductibles, policy limits and the ultimate weapon, STOP LOSS, the point at which the carrier simply will NOT pay one more cent, you can STILL GO BROKE PAYING MEDICAL BILLS EVEN IF YOU HAVE INSURANCE.
I would remind all of you: DOCTORS and NURSES and health care professionals provide HEALTH CARE. Insurance companies sell insurance. Insurance SOMETIMES pays for health care, sometimes not.
It is obvious from oral argument that the Administration’s impetus for supporting this legislation is a desire to fix the MARKET and NOT to provide health care to citizens.
If that were the case, we would either nationalize health service like Great Britain did, or establish a common revenue funded by tax contributions, which money is then used to pay between 2-3% for administrative costs ( as opposed to 10-15% costs PLUS of private insurers; bloated executive salaries and bonuses included, PLUS and most importantly, stockholder dividends– leaving only a tiny fraction of your premium dollars to be spent actually paying for your healthcare). The public payer fund by contrast, can spend 97+ cents on every dollar ACTUALLY PAYING FOR HEALTH CARE SERVICES.
We could even give such a public payer a name… I dunno.. uhm… Medicare?
Finally, if NOT buying something is Commerce, then there isn’t anything that isn’t Commerce and, by and through the Commerce clause, the US government becomes a government of unlimited power.
The ADA MUST fail.
Nationalize health services or expand Medicare. Either or both would be entirely constitutional and wouldn’t require acute mental gymnastics, torturing logic or language to justify such legislation.”
Murry,
Have you read the tenth amendment? “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively…”
Yes, the states themselves can constitutionally pass laws that the federal government can’t.
[youtube http://www.youtube.com/watch?v=t3bjMtqpGBw&w=420&h=315%5D
this seemed oddly appropriate
http://www.youtube.com/watch?v=t3bjMtqpGBw&feature=related
I like your idea TalkinDog.
If the Supreme Court Jesters rule that the Federal Government may not impose an individual mandate for Health Insurance, do they not also have to rule such mandates unconstitutional if imposed by the States, as in Massachusetts, for example? Or, does a ruling against only the Federal Government mandate leave State mandates for both Health and Automobile insurance intact? Does anything in this inherent contradiction even matter? After all, like Bush v Gore in 2000, the Court can simply say that what it rules on one day, in the interests of only one man, may not apply as precedent regarding any other man or case, ever — meaning, in effect, that one Supreme Court can shackle all successive Supreme Courts in perpetuity, and that later Supreme Courts will dutifully observe and passively submit to this hobbling by the dead hand of the past.
In any event, if the federal mandate goes down, but the state mandate stays, then Mitt Romney can run against Barack Obama for failing to accomplish a mandate on the Federal level that Romney accomplished in Massachusetts — but now wishes that he hadn’t. How the so-called “conservative” Jesters resolve this political dilemma in the interest of their fellow conservative Mitt Romney — as they have shown in the past every partisan inclination to do — will probably prove decisive. After all, the Supreme Court does, as someone once truly said, follow (or even determine) the election returns.
That liberals are now defending the mandate shows just how far we have fallen down the rabbit hole of up is down and inside is out.
* This is not a mandate that we have health care.
* This is not a mandate that the government provide health care to anyone as they do the the Supreme Court justices or to members of both houses
* This is not a mandate that health care costs be kept low. If costs are NOT kept low by every one being forced to pay, there will be NO penalty for the the insurance giants that sets those high costs.
* This is not a mandate regulating how much insurance companies can raise their prices each year. There are no funded provisions for any such regulation and the government has seen fit to keep out of it alltogether by giving it over to the states to regulate — WITH NO MONEY TO ENFORCE THEM/b>.
This is a mandate that citizens pay private, profit making companies for insurance that those companies can claim is for health care costs. Moreover, those private giant behemoths can decide what they want to charge for that claimed service. There is no funded regulation for what they charge, no mandate that they do not gouge, only a mandate the citizen pay for that service whether he or she wants to or not, regardless of whether he or she can afford to pay for it or not. The government doesn’t decide what the insurance companies should be able to charge, but they do decide which citizens are poor enough so they don’t have to pay what ever the insurance giant tells them to pay.
Based upon what the government currently thinks about citizens getting any service at all, on their total willingness in both parties to put the social safety net on the chopping block just to look like “serious people”, I imagine one will have to be pretty poor indeed to get anything other than a sheriff knocking on your door and telling you your social security checks will be impounded from now on until you pay up for your insurance.
No public health care for the Supreme Court, for Congress or federal employees because my taxes pay for it and the taxes are mandatory. If the Congress can not pass a law which requires me to pay a tax for my own health care, how can they require me to pay a tax to pay for Scalia’s healthcare? Scalia must agree that the original Framers of the Constitution would never have agreed to have tax payers pay for John Marshal’s doctor bills. Their original intent was to let the doctors come to the home, bleed the patient, and be paid right there on the spot. No payment, not bleeding.
@Neil: There is no feasible way for the national debt to be paid back.
That is simply untrue. The national debt is currently equal to one year’s worth of the national gross income, and the national debt is financed with an interest rate of about 1%.
If you had a debt (say a mortgage on a house) that equalled one year of your salary, with an interest rate of 1%, would you be worried? If so, what in the world FOR?
I will not argue that the money has been spent wisely, or our financial policy is fiscally sensible, but the truth is that the current level of debt is not very worrisome at all, and people that think it is are responding to big-number alarmism and laughably ridiculous extrapolations. They should be more worried about the Federal Reserve printing money and giving it away to Banks. That is a different thing. Debt, per se, is not a big deal, it could triple and not be harmful
Argument recap: Will Medicaid be sacrificed?
Analysis
Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights. It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act. It probably would be done by a 5-4 vote.
Solicitor General Donald B. Verrilli, Jr., and his principal adversary this week, Washington attorney Paul D. Clement, took turns as the final minutes of the third day of argument wound down to make a plea to the Court to think more broadly about their coming decision on not only the Medicaid expansion, but on another key piece of the ACA: the individual insurance mandate that the Court had explored on Tuesday. Verrilli edged toward the emotional, while Clement was crisp and blunt in making a final plea for the Court to sweep away all of the new law. They stepped back as the Court left the bench, to start the task — far from easy — or sorting through four profound legal or constitutional issues they had heard since Monday. SCOTUS blog
Again, that this particular Supreme Court would strike down the opportunity to make constitutional government coercion of citizens into destructive economic relationships with corporate giants is simply unthinkable. Before that ever happened, Texas would prove that corporations are citizens by hanging one of them.
The rest has simply been black robed theater.
I agree Martin. Everyone wants their handout. Especially the filthy rich. And they get it with 700 billion dollar bank bailouts funded by the American taxpayer. TARP anyone? Feel like giving billions of dollars to rich farmers? Well, too bad, your tax dollars have been funding that sort of thing for decades. They call them farm subsidies. Perhaps you’d like to give a few hundred million dollars to elite foreign dictators? Well, you contribute to that as well. It’s called foreign aid, and it sounds real charitable. Oh, and don’t forget the money you gave to GM and Chrysler. Almost everyone is on some type of Welfare. Republican and Democrats alike can’t give enough of the stuff away.